MINUTES OF EVIDENCE
taken before the
Wednesday 18 July 2007
David Taylor, in the Chair
Mr Stephen Crabb
Ordered: that Counsel and Parties be called in.
359. CHAIRMAN: Good morning, everyone. Welcome to the second public meeting of this Opposed Bill Committee. My name is David Taylor and I am chairing the proceedings and my parliamentary colleagues are here. Yesterday, we heard the case for the Promoters from Mr George and cross-examination from Mr Jamie Campbell. I understand, Mr George, that you want to make some points at the start of today's session.
360. MR GEORGE: Yes, three very small matters. First, yesterday morning I circulated a single page called 'Amendments to the Filled Bill'. The Defra representatives have helpfully identified a tiny error relating to clause 12, so could I ask that there be circulated a replacement sheet and then I will identify the point. (Same handed). It is simply an inconsistency in that, whereas it had been agreed that 28 days in a particular place moved to 56 days, this had not been recognised in one place, so the sheet now has got "18.07.07" at the top and, so far as clause 12 is concerned, that is the addition there.
361. CHAIRMAN: I take it that the Petitioners and their Agents have had sight of this or are they just receiving it?
362. MR GEORGE: I think they are only just receiving it, but everyone had wanted it to be 56 days, so it is not going to be a controversial matter.
363. CHAIRMAN: Okay, and your second point?
364. MR GEORGE: The second point is that, so far as the transcript is concerned, there are, as always, the occasional typo or something and nothing turns on that, but I should just mention perhaps that on the first page, in fairness to Mr Campbell, he is not Irish and he is recorded as being "Mr O'Campbell". Secondly, on page 38, in item 231, there is a strange mention of "Rutland Water", whereas it should be "Rockland Broad", as Mr Campbell agrees. At page 40, in item 246, the question was, "Are you happy it qualifies as" rather than, "Are you happy to disqualify it", which alters the meaning of the phrase. The next matter is that on page 41, in items 250 and 252, the word "Brundle" is "Brundall"; it is wholly understandable, that error. On page 42, item 260, "Filby" is not spelled as in the spy, and perhaps I could add that the transcript is of an enormously high standard. The other matter is on page 37, the second line where there is a question mark in the transcript, it should be "on the Norfolk Wherry", not "waters". Sir, I do not think any of those are significant. The very last matter to mention is that, so far as the Marine Coastguard Agency are concerned, Mrs Wakelin yesterday at page 43, item 273, said that they had been consulted on the draft versions of the Bill as well as on the deposited Bill. Having checked the matter, they were only consulted, that is, sent a copy of the deposited Bill, they were not sent copies of the earlier versions, so I just correct the record and I apologise.
365. CHAIRMAN: Thank you very much for those corrections. Indeed, as you have said, in the light of the pressure and the speed of the report that we have had back today, it is quite a tiny number of amendments. There may be others that come to mind to people and if they can feed those back to the Clerk, we will make sure that everyone is aware of what those corrections are and I would just pay tribute to those who take the minutes for the accuracy that they provide in this place. Mr Campbell, I think you are going to be making the case for your Petitioners. Will you be starting with your main speech or with your witness?
366. MR CAMPBELL: I would like to introduce my witness, but, first of all, I have a statement from Peter Sanders who is unable to be here for family reasons and perhaps I might read it out on his behalf.
367. CHAIRMAN: Okay.
368. MR CAMPBELL: This statement is from Peter Sanders with regard to the Broads Authority Bill.
369. "I am the owner of a private motorcruiser moored and exclusively used on the Norfolk and Suffolk Broads. Despite the distance from my home in Rugby, I spend most of my leisure time aboard. My childhood holidays were spent in riverside cottages and motorcruisers and I have owned my own motorcruiser since 1985. I feel I have considerable experience of navigation in the Broads area.
370. "The proposed seizure of further powers by the Broads Authority within their Private Bill gives me great cause for concern, particularly by an Authority that appears not to have the best interests of navigators of the waterways at its heart and apparently seeks at every turn to place legislation and restriction on boaters. There is no (publicly available) evidence that this is either necessary or required and I regret that the Broads Authority is an organisation which no longer enjoys the trust of the majority of the Broads navigators. This matter was also raised by the Member for North Norfolk during the parliamentary debate on the Bill.
371. "The status of the agreement over this Private Bill between the Broads Authority, the Royal Yachting Association and the British Marine Industry Federation appears unclear. As a result of assurances from both sides that this was a legally binding agreement, I have restricted the scope of my Petition and I am aware of several other bodies and individuals who were similarly advised.. As a consequence, I removed a number of items from my Petition and fail to understand, apparently in common with Defra, why the RYA, the BMF and the Broads Authority agreement has not been fully reflected on the face of the Bill. The legality of this agreement was also raised during the debate in the House on this Bill.
372. "I have particular concerns for the introduction of special directions under this Bill. It is not clear either how the Broads Authority intends to carry out the delivery of special directions or receive confirmation that one has been received. In inclement weather, windows would be closed around my enclosed helm position and it may not be possible to hear further directions which could lead to unintentional non-compliance. Very few Broads Authority navigational staff are qualified to give navigational instruction and particularly volunteer or auxiliary navigation rangers have usually only minimal training and virtually no experience. I am concerned that the possibility of disobeying incompetent or impractical navigational directions may become a criminal offence. Many private owners and a number of boat hirers are very experienced boat handlers. A special direction given by an unqualified Broads Authority ranger with little experience effectively gives the ranger control of the vessel. In some circumstances, this might in fact invalidate the vessel's insurance and, under those circumstances, I request that either (a) the Broads Authority is required to employ properly qualified navigation staff or (b) in the absence of dependable directions, the Broads Authority assumes responsibility for the safety of the vessel and its occupants when it issues mandatory special directions. I should like to thank the Committee for the courtesy extended to me as a Petitioner."
373. HAIRMAN: Thank you very much, Mr Campbell. Are you now going to start your case with your second Petitioner, Mollie Howes, who will be your next witness?
374. MR CAMPBELL: Mollie Howes will be a witness, but, with your permission, sir, I would like to call Richard Williams as a witness first. This is changing the order that I hope to get through. He has had major heart surgery not long ago and he has not been well, so I am quite anxious to keep the strain off him.
MR ALAN RICHARD WILLIAMS, sworn
Examined by MR CAMPBELL
375. MR CAMPBELL: Commander Williams, would you be kind enough to tell us something about yourself, your qualifications and your career.
(Mr Williams) I went to sea in the Merchant Navy when I was 17 years old. I obtained a Master's Certificate of Competence. I joined the Royal Navy as a reserve officer in 1960 and subsequently I had a parallel career in the Navy. I worked for a shipping company in Liverpool and I have had a number of jobs after I had been at sea for about 25 years. When the British shipping industry began to decline, I, like so many of my colleagues, found myself looking for alternative employment which I found as the First Navigation Officer at the Broads Authority. I came to Norfolk to do that job when the Authority was established in 1988. I worked there for four and a half years and I operated the 1988 Act as the Navigational Officer.
376. CHAIRMAN: From when to when?
(Mr Williams) From 1988 to 1993. After I left the Authority, I went back to sea. I was the Chief Officer on a number of liner vessels and eventually became a master of the MAFF, now CEFAS, research vessels until I retired in 2000. At the end of that time, I went to Lowestoft College as a lecturer in maritime studies, teaching the young officers how to manage ships and I now work as an independent consultant and auditor to the offshore and wind farm industry.
377. MR CAMPBELL: Mr Williams, during your time at the Broads Authority, you were, I believe, responsible for the first set of Boat Safety Regulations which were to be done by BW and EA. Is that correct?
(Mr Williams) Yes.
378. So you cannot be said by those standards to be against boat safety?
(Mr Williams) Absolutely not. This was in the very early stages of the discussions between the, then, NRA and later the Environment Agency on the Thames and British Waterways to produce a set of standards for fire and explosion which had been a particular problem on the Thames because of the number of petrol-driven craft. They came up with a set of rules, of byelaws, which they operated on the Thames above Teddington and what was happening was that British Waterways boats were coming out of the canal system on to the Thames and had a different operating regime, in fact a much inferior operating regime. The two organisations set about amalgamating their own regulations into what has now become the Boat Safety Scheme. As the Navigation Officer at the Broads Authority at that time, I was party to those discussions, contributed to the way in which they developed and returned with the draft of that Boat Safety Scheme to Norfolk and presented it to the Broads Authority in an endeavour to seek to have them join the scheme. They would not. I left the Broads Authority, as I said, without any further progress on that item and I remember Dr Packman saying that the Broads Authority had been seeking to do this for 15 years. Well, indeed, that would be the timescale from the time that I first introduced them. However, I do know that the Navigation Committee did precious little about it for some considerable time thereafter and I think that the Waterways Director told us yesterday that this system was reintroduced in 2002 and has now been introduced, as we know, by byelaw and was operational from 1 April this year.
379. The Authority, I believe, has made a case for legislation rather than byelaws. Can you tell us, firstly, what your overall view is of the proposals containing this view?
(Mr Williams) I think the whole question about how we introduce a scheme like this is quite important. It is important in terms of the way in which the legislation, whatever it might be, is implemented, is introduced and how it is perceived by people who are using the waterways. When you have a set of byelaws, you obviously have to go through a consultation process. Indeed, we have heard how difficult it is sometimes for organisations like the Broads Authority to secure agreement to their byelaws, and I understand that. However, I do believe that when you are talking about an organisation, such as a national park authority, the Broads Authority or even the Environment Agency, there is an obligation upon the legislators to ensure, when they put forward proposals like these, that not only are the people who are affected by them perfectly content with them, but also that they are seen to be fair, it is clear legislation and that they are of benefit not just to the administration, but to the users as well.
380. The Government guidelines on regulation make a number of points which should be used as a guiding principle for legislation. Would you outline these, please.
(Mr Williams) I picked this up out of the Marine Bill and it is not anything that the Broads Authority have put forward during their consultation process. Defra produced the Marine Bill as a consultation document last year. When they produced it, they introduced the concept which the Government are promoting at the moment about better regulation, that regulation should be proportional, should be only as strong as is necessary to achieve the objectives, it should be transparent, in other words, the users can understand what is being proposed and how it is implemented, it has to be financially justified and people have to be accountable for it, and that it should not cost people more than is absolutely necessary. I think the questions that arise show actually the Defra approach when they produced the White Paper, that they had a very wide consultation and then produced their Green Paper as a consequence. It shows the way in which the Government would have gone about doing an exercise like this, and, I would have to say, if you look at it from the perspective of a user, there has to be a concern and that concern has got to be that, as a consequence of this process, we have got to a point where, even after the Bill had been deposited, the Authority were still negotiating with members of the Royal Yachting Association and the British Marine Industry Federation on an agreement which was actually going to modify the Bill, and modify the Bill in a way which means that, if you read the Bill, you do not actually know what is happening and you have to read the agreement to go with it. I will not advance into the legality of that, but I just think that that fails on the clarify issue as far as the users are concerned because you cannot read the Bill and know what it says.
381. The Chief Executive said yesterday that the Department for Transport had agreed that the only way to achieve their objectives was by this Private Bill. Do you have any comment you would like to make about that?
(Mr Williams) Yes. I have been in personal correspondence with a number of members within the administration over the course of this Bill because of my intense interest in making sure that the Bill comes out in the best way possible. I did write to Colin Morris of the Department for Transport and I asked him if it was true that the only way in which this objective could be achieved was by using a Private Bill. His reply to me was that it was not them who had insisted on this Bill being the only way forward. Indeed, the process could be achieved by byelaws, but, if it was, then it would not meet the Authority's requirements for the scheme to be variable, and a Private Bill is all about the variability of some of the provisions that are contained within it. I will perhaps a little later on, if I may, explain what I mean more clearly about that.
382. The Boat Safety Scheme is the core of this Private Bill. It is described as a national scheme. Is that your understanding?
(Mr Williams) No, it is not. As I explained at the outset, this scheme, the Boat Safety Scheme, was an agreement between British Waterways and the Environment Agency and now it is the British Waterways and the Environment Agency and the Broads Authority. When we come to talk about adjacent waters, I will talk about Lowestoft and I will talk about Great Yarmouth, both adjacent areas where boats are held adjacent to the Broads, and neither of these areas has a Boat Safety Scheme. Indeed, I talked to the Harbour Master in Milford Haven as part of my enquiries nationally about the way in which these things work and discovered from him that, even though we have got a national park at the eastern end of Milford Haven, we actually do not have a Boat Safety Scheme there, and we do not have a Boat Safety Scheme on the Lake District National Park. Therefore, I would say to you that the only national schemes that are in place are those that actually have been developed by the Maritime and Coastguard Agency and they are national. This scheme is not.
383. Am I not correct in the assumption that in Milford Haven there is the National Park Authority and separate Harbour Board?
(Mr Williams) Yes, there is, but they do work very closely together and the Harbour Master, who of course is a qualified master mariner in Milford Haven, does have an arrangement with the National Park Authority to share the process of rivers management at the eastern end of the harbour. He does it and the National Park Authority subscribe to it.
384. CHAIRMAN: So that is the Pembrokeshire National Park?
(Mr Williams) Yes.
385. MR CAMPBELL: In his opening remarks, Mr George mentioned that this legislation was needed because it might be necessary to modify it if it is no longer a national scheme. Is it not the case that actually it is already being overtaken by a framework which is national and is implemented under the auspices of the MCA and are these different from the boat safety schemes?
(Mr Williams) Perhaps I can take that in little pieces, if I may. First of all, the Boat Safety Scheme was developed, as I said to you earlier, in consultation and it was based upon fire risks on the Thames which is why you heard yesterday that these regulations are basically fire and explosion regulations and they are not wholly about safety. They are not about watertight integrity, they are not about stability and they are not about access or anything like that. What is happening is that the Maritime and Coastguard Agency has been introducing them progressively over a period of time, starting with large commercial yachts and now moving down to small passenger boats and, I have to say, the Waterways Director has been party to these consultations insofar as she is, as she said yesterday, a member of the IANA, which is the Inland Association of Navigation Authorities, with whom the MCA has been consulting on the whole of these processes. Unfortunately, I do not have the exact details of places to find this, but, if you look at the licensing of boats within the Bill, you will actually find that there is a reference there to the way in which the MCA are planning to develop codes which will cover some of the areas which are indeed covered under the Boat Safety Scheme. In a document called 'Sound Practice, Safe Waters', there is a list of all of the regulations which are to be applied to small vessels and some of these include standards which are not within the Boat Safety Scheme, so there is in that context a variation between what is happening nationally and the scheme which the Broads Authority have recently adopted.
386. So the agreement we have makes the point that the Bill seeks to have a scheme that is variable.
(Mr Williams) Yes.
387. Perhaps I can proceed with adjacent waters. What is your opinion of the value of this requirement?
(Mr Williams) It is fair to say that actually there may be adjacent waters on which boats are kept which may or may not meet the standards that exist on the rest of the system. When you look at the adjacent waters that were in the plan and the ones that have been discussed, there are two things that really stand out about them. The first is this question of consistency of whether they are attached to the main waterways, and we looked at a number of places, I think, when we discussed it yesterday and there was a question about the Filby, Ormsby and the Rollesby Broads and the fact that there is a water level difference between the Broads and the river. Of course the river is tidal, so that level does change anyway. When you look at Black Horse Broad and the adjacent water to that, you will see that it is completely separated, it is cut off, you cannot navigate on it and there are no boats on it, so the question about what value there is in that adjacent water being included in the Bill does seem to me to be open to some question. Further, when you look at Hoveton Great Broad, which is the next one and quite a large water area, it is in the ownership of Judge Blofeld, and he has a small environmental tour which is allowed on the Broad, using a small craft. So, in a sense, that is neither of any interest either because there are no boats there; it is all the owner of the land, who is the owner of the Broad. Then you look at some of the others which were mentioned by my Agent yesterday. But we look, instead, at Wroxham Broad, and I have to express an interest in Wroxham Broad; it is in my Petition and I keep my boat on Wroxham Broad. Wroxham Broad is part of the Trafford Estate, and it is separate from the river. It is leased by the Norfolk Broad Yacht Club and there are a significant number of sailing craft and a number of motor cruisers which are berthed on that water. The argument that is being put forward is that these boats might be a risk because they are not being properly kept and that they might not pay tolls. I would have to say that the case is unproven there. I do not believe you are talking about a lot of half-deckers which, apart from paying a small toll, would not fall under the boat safety scheme; you are talking about a number of mud cruisers that are used on the river, and without question, every one of the boats that is on that broad actually has a toll, because the club insists that they have a toll. So why the Authority wants to introduce this issue about adjacent waters in this way, does seem to me to be unnecessarily complicated. Brundall main dyke (?), similarly, has lots of power boats - sea-going power boats a lot of them - and incidentally, a sea-going power boat does not have to comply with the boat safety scheme unless it is kept on the Broads. If you keep it in Southampton, if you keep it in the Hamble or Chichester Harbour it will not have to comply with the boat safety scheme, but it will if you keep it in Brundall Bray Marina (?). Indeed, if you keep it in Yarmouth it does not have to comply, only when you bring it on to the Broads. So the question about adjacent waters and the regulation of this for the sake of what is assessed as a comparatively small risk, if you look at your figures on the impact of the fires and explosions that have occurred on the Broads over recent years and how many people have been injured or died, and so on, you will actually find that this is a very well managed waterway; the people who are there are very conscientious. Indeed, a lot of the people who own boats on the Broads, like my friend, who is the first Petitioner, live all over the country and they come to the Broads because of its beauty. Somehow or other there seems to have been growing a notion that people who own boats on the Broads are not environmentally conscious.
388. JIM SHERIDAN: This is just, probably, a simple but rather naïve question. Given your CV suggests that you are an experienced navigator and there have also been accusations made about the dangers of inexperienced navigators on the Broads, what qualifications, if any, does a navigator need in order to become a navigator? What training and what qualifications do they require?
(Mr Williams) Do you mean to become a navigation officer for the Broads Authority?
389. JIM SHERIDAN: Yes.
(Mr Williams) It is contained in the Port Marine Safety Code. Because I have only got one copy myself I was not able to arrange for it to be provided for the Committee, but I think the Committee Members really ought to have a look at it. It is an NVQ system of qualifications for a navigation officer on the Broads. I am talking now about the person who is the head ranger. The head ranger is the navigation officer under the terms of the 1988 Act, and which is still in force until and unless this Bill is enacted. As one of my friends said yesterday, he is a retired Metropolitan policeman who has some experience which he has acquired on the Broads since he arrived there.
390. CHAIRMAN: Have you completed your remarks on the adjacent waters?
(Mr Williams) I have not, sir. If I may? I think the other thing that we have got to consider about adjacent waters is the one that I have just mentioned about the adjacent ports. There are two marinas in Lowestoft - quite substantial marinas. We have this sort of situation which, to me, seems a trifle odd, that if you keep your boat in one of the marinas in Lowestoft and you then bring it on to the Broads you have to have a boat safety scheme for it when you bring it on the Broads. If you, for example, lived on the Broads and kept your boat at sea, while you had it at sea it would not need the scheme but when you come on to the Broads it would. That is not to say that we do not need the boat safety scheme. As I explained earlier, sir, I do believe - I tried to promote it. I just want to be clear that what we really need is a scheme that meets the needs and not one that has just been adapted from somewhere else.
391. MR CAMPBELL: We heard yesterday that the 1988 Act requires two navigation officers. Do you have any comment about that?
(Mr Williams) Yes, indeed. The 1988 Act was drafted at a time when the commercial traffic in and out of the river Yare (which is up to Norwich) was fairly consistent: small coasters. The traffic had been really regenerated as a consequence of the miners' strike when everybody was looking for small ports to run cargoes into, and Norwich itself with a draught of 10' 6" or 11' at high water could take coasters of about 400 tonnes. As a consequence of that, the Great Yarmouth Port and Haven Commissioners (who are now the Great Yarmouth Port Authority) were quite reluctant to hand over the navigation responsibility to the Broads Authority, unless they had someone who was capable of managing the Norwich navigation and managing the commercial traffic. So what they said was we will have a Norwich navigation officer and we will have a Broads navigation officer. When the Bill was prepared there was a question about whether the Great Yarmouth Port and Haven Commissioners would continue as the responsible authority for that river, and for the commercial traffic coming to Norwich. In the event they appointed me and, as a consequence of that, they did not need to have any second navigation officer, because I was there and capable of doing both jobs. So the idea that there were two navigation officers with two sets of duties - there was only ever one navigation officer.
392. That navigation officer, under the 1988 Act, has to be approved by the Department for Transport, does he not?
(Mr Williams) For the Norwich navigation.
393. Is it not true that the current situation is that the Broads is a harbour authority and we have a largely unqualified harbour authority staff supervising pleasure boaters, who also have no need of qualifications - or a number of them have had.
(Mr Williams) That seems to be the case.
394. I presume that, as a result of your Petition, you would wish to see.
(Mr Williams) I would wish to see, as part of my Petition, one of the issues which I raised was about authorised officers, and that is the point that I am trying to make at the moment.
395. Mr Williams, you mentioned the Port Marine Safety Code and its significance. Is there anything more you would like to say about that?
(Mr Williams) Yes. I think the Port Marine Safety Code - it is incumbent upon all port authorities to set up a safety management system within their area of jurisdiction. It is a requirement that was laid upon them all by the MCA through the Department of Transport and came into being in 2000 initially, and was reconfirmed in 2002. The Port Marine Safety Code does have, within it, a large number of processes by which a port authority can manage its safety. It is a power that a port authority has. As a port authority the Broads Authority has it, and so when we start looking at the requirement for further primary legislation, such as we are faced with today, the question I would ask is whether indeed the regulations which have been put in place in a different way are much more appropriate to the management of this system than the proposals which have been put forward by the Authority to us.
396. Do you have examples of where this Port Marine Safety Code has been implemented by other harbour authorities?
(Mr Williams) Yes, I have. I have spoken to a number of harbour authorities in the process of my investigations. These have included the Medway, Harwich, Great Yarmouth, of course, Milford Haven, Chichester and Poole. Poole is important because Poole is a commercial port with a very strong environment background to it. None of those, incidentally, apart from Milford Haven and Harwich - where, I have to say, there is a 24-hour vessel traffic service, manned by professional people - have introduced this requirement for special directions - general directions - because they have the ability to create the requirement without using primary legislation. Indeed, you will know that we have not had a Private Bill coming forward from Chichester, for example, or from Poole. This is coming forward from the Broads Authority, but it is not what is happening as the norm around the country, with the implementation of this safety scheme.
397. MR CAMPBELL: I believe that completes my questions of Mr Williams.
398. CHAIRMAN: Mr George, do you wish to cross-examine?
399. MR GEORGE: Yes, please, sir.
Cross-examined by MR GEORGE
400. MR GEORGE: Mr Williams, there was very extensive consultation, was there not, in relation to the contents of the Bill which was eventually deposited?
(Mr Williams) Yes.
401. You were someone who took the trouble to respond, did you not, at the earlier stages?
(Mr Williams) Yes.
402. Following the deposit of the Bill you were sent a letter, were you not, when you had petitioned against it in early February, inviting you to attend a meeting with the Broads Authority to discuss your concerns, were you not?
(Mr Williams) Yes.
403. I think it is right, is it not, that you responded in a letter of 16 February, saying that it was difficult to see how any further discussion would assist?
(Mr Williams) Yes.
404. Do you remember that?
(Mr Williams) Yes, indeed.
405. Notwithstanding that, the Broads Authority pursued the matter, did they not, and said that they thought it would be desirable to have a meeting, which is why eventually there was a meeting in June of this year.
(Mr Williams) I think I would, perhaps, phrase that in a different way. I do not think it is fair for you to present it as though we were not interested and the Broads Authority were keen to consult, sir, because that was not the situation. I was dealing, at that time, through my agent, and we did agree to have a meeting when we were all able to get together. When you make the point that I did not see any point in further discussions, can I say that in response to the first consultation when it come out, sir, I raised the issue of the Port Marine Safety Code, and asked them why they were introducing this primary legislation when they had facilities like this in order to cover the process that was involved. I got no response to that and I got no answers. If you look at the way in which the consultation timetable is shown, what you will see there is that the Broads Authority's consultation process ended up with almost no changes, and, when they started, the first draft of the Bill contained huge sections which were not even filled in, which said: "We intend to fill in something here at a later stage". So when we were consulted we did not even know what the Bill was going to be about, sir.
406. Can I now come to the question of the boat safety scheme? The situation is that at the present time there are now byelaws which have introduced the provisions of the boat safety scheme.
(Mr Williams) Yes, there are.
407. Whether those are wholly appropriate or not appropriate is not really a matter, is it, which arises, because even without this Bill there are those byelaws requiring compliance with the terms of the present boat safety scheme?
(Mr Williams) That is not the whole story, sir, is it?
408. That is the position at present, is it not? There are in force byelaws ----
(Mr Williams) Are we here talking about this Bill?
409. No. Can you agree with me that that is the position as of today?
(Mr Williams) As I said, the byelaws were introduced on 1 April this year.
410. As I understand it, part of your case is that the boat safety scheme may not in all particulars really be fully appropriate for the Broads. Is that right?
(Mr Williams) No, I said it had variances. It was too variable.
411. You say it is not tailor-made for the Broads.
(Mr Williams) No, I did not say that.
412. I thought that was what you were saying.
(Mr Williams) No, you said that. What I said at the time, and I will say it again, is that actually when you look at this Bill, when you look at the requirements of this Bill, Defra themselves have said that these byelaws should introduce the boat safety scheme. That is what they said. Actually, if you look at the content of the Bill you will find that it can be for any boats in different places at different times - whatever the Broads Authority want to make it. I do not believe that is the way in which a safety system should work, sir.
413. One has got a safety system, and the effect of clause 12 of the Bill is that with immediate effect the provisions in the present byelaw, that is the present terms of the byelaws, will apply, will they not, but subject to a power to change those boat standards. In other words, to make them specifically Broads-specific, if it is decided to be appropriate.
(Mr Williams) You use that phraseology but that is not what the Bill says. The Bill does not say anything about making them appropriate for the Broads; it just says they can change them.
414. And it provides, does it not, a substantial code for consultation before there is any significant change from those which apply under the present byelaws? That is done by page one of the pages apart. That provides for the consultation process, does it not?
(Mr Williams) It does, sir. I really would like to pick up this word that you use "consultation". There is a presumption that when you consult somebody you are going to make some consideration of the responses you receive. Now, I have got here the responses from the RYA and the BMF and the NSPA that were put in at the time of the public consultation. Some of the issues that came out in the final agreement were issues that had been raised then but were never taken into account during the consultation. So the value of consultation, sir, depends upon the willingness of the parties involved to consult.
415. If the present boat safety scheme were to be changed it would not, at present, as enforced under the byelaws, take effect of its changed form, would it? There would have to be new byelaws promoted in order to incorporate the changes to the existing scheme.
(Mr Williams) Yes.
416. Therefore, through all the procedures of byelaws, which do not in fact include any statutory provision for consultation, do they?
(Mr Williams) No, but let me just say that when you have a scheme which is intended to provide safety on the water - in other words, you are going to say that these are standards that are required - then it behoves the person who is promoting those safety standards to ensure that they are durable. It is no good coming along and producing a safety scheme you are going to change. I was going to refer, if I may, just for a second, back to the note in Hansard where a number of the Petitioners, including myself, were described as "like those people who did not want safety belts in cars", which I found really quite offensive. The safety scheme has got to be a safety scheme that you can install on a boat and you can be reasonably certain that once it has been installed then it is providing you with a safe craft. If you actually come and look at the boat safety byelaws you will find there are all sorts of exceptions and grandfather clauses - even one that says if the boat was built before a certain time it does not have to have a reversing gear.
417. Mr Williams, the point is those are there in the provisions and all that is being provided is a mechanism so that they can be speedily updated from time to time but subject to a consultation procedure. That is all that clause 12 is about, is it not?
(Mr Williams) When you express it in those terms I would have to agree.
418. So far as adjacent waters are concerned, you instance an example of some land and water which is owned by Judge Blofeld, where you say that the only boats that use it are his own boats. Do you remember that example? That will therefore be covered, will it not, by clause 2(2) of the proposed Bill, and under clause 2(2)(d) that will not count as an adjacent water; therefore there will not be any power over it. That is the sort of restriction which is included in the Bill itself. Did you understand that?
(Mr Williams) I did, yes. It was a statement. It is a private Broad. You described it as an adjacent water, for what purpose?
419. It is not critical that it is private. Much of the Broads themselves and much of the navigation areas are private land. The crucial thing is not that it is private but if it is only used by the owner then it will not count as an adjacent water, and the Broads Authority will not be requiring any powers in respect of it. So that the introduction of Judge Blofeld and examples like that do not advance your Petition, do they?
(Mr Williams) I have actually heard that described as the "Blofeld clause", actually.
420. So far as all these provisions here are concerned, the 1988 Act gave power to make special directions, did it not?
(Mr Williams) Yes.
421. The Great Yarmouth Authority have got a power to make more extensive special directions and to make general directions, have they not?
(Mr Williams) Yes.
422. Therefore, so far as the land which is to be transferred is concerned, it, at present, is subject to a wider range of powers of special direction and a power of general direction, which it would not have if it was transferred to the Broads, at the present time.
(Mr Williams) That is true.
423. The effect of clauses 4 and 6, the one for general directions and the other for more extensive special directions, simply means that in respect of that area and the rest of the navigation area there is similar power to that enjoyed by many other authorities to give the specific and general directions.
(Mr Williams) Yes, and I think it is worth making the point that you have just made about the area which is being transferred. It seems to me, we are talking about the lower end of Braydon, and the bottom of the River Bure, which was Great Yarmouth Port Authority navigation area and is to be transferred. The way in which the navigation in that area has been managed over the last 40 or 50 years, while there has been even higher density traffic than we have now on those waterways, through the Great Yarmouth Port and Haven Commissioners/Port Authority, is there has been a management system that has worked perfectly well, that has not caused significant incidents and yet now we are facing a situation where, because the Broads Authority have taken it over, they are reviewing the regime and making it much more controlling.
424. CHAIRMAN: My colleague Stephen Crabb would like to ask a question.
425. MR CRABB: Reference has just been made to the Great Yarmouth Port Authority and other authorities having powers to make special and general directions. Are you aware that those authorities have entered into private legal agreements to effectively constrain the use of those powers?
(Mr Williams) No.
426. MR GEORGE: The last matter I wanted to ask you was in relation to the Medway, which you mentioned. They have their own Act, do they not, which enables them to give general directions in just the same way as they can give in Great Yarmouth and as the Broads Authority will be able to here?
(Mr Williams) Yes, but I would just like to make a point here. When we are talking about the Medway, there are two parts of the Medway: there is the tidal Medway and the Environment Agency's navigation, which is non-tidal. I think you need to be quite clear in your own mind exactly what we are talking about here. The tidal Medway - remember the Broads are tidal - is managed by an organisation which is an off-shoot of the Mersey Docks and Harbour Company, and it has a proper harbour master, a qualified harbour master, and a VTS.
427. I think I may have said that was the last, but the very last question: you have looked at the agreement, have you not, which has been reached with the Royal Yachting Association and the Marine Federations?
(Mr Williams) Yes.
428. You will have seen in it that the first part of the agreement dealt with certain clauses in which they specifically requested that amendments be made and brought forward to the Bill to incorporate those matters. Do you recollect that?
(Mr Williams) Yes.
429. That has been done, has it not? Then there were other matters which they considered were better dealt with by an agreement with those two bodies. Is that not right?
(Mr Williams) Yes.
430. I think you would agree that the Royal Yachting Association is the national association for the private users of craft on the Broads.
(Mr Williams) Yes.
431. And similar areas. The Marine Federation ----
(Mr Williams) I see where you are taking me, sir. Can I just interrupt and ask you this question?
432. CHAIRMAN: I am sorry ----
(Mr Williams) Am I not allowed to, sir?
433. Not really.
(Mr Williams) It is only that the agreement says that in order that they refrain from opposing the Bill it should do these things. This is not like an agreement, is it, really? It is like saying: "If you do not agree to these we are going to oppose the Bill", like we are doing.
434. MR GEORGE: The benefit they got from not opposing the Bill was that they were given all the safeguards which they wanted. There you have, do you not, the two principal users of the Broads - those who own private craft and the commercial craft - who are entirely satisfied, as it appears are the Department for Transport and Defra with the exception of one clause in the accounting arrangements. That is the position, is it not?
(Mr Williams) No.
435. MR GEORGE: Thank you.
436. CHAIRMAN: Mr Campbell, do you wish to re-examine?
437. MR CAMPBELL: No, sir, I just wish for some procedural advice, if I may. In his opening questions to the Petitioner, Mr George implied that the Petitioners had refused to meet with the Broads Authority. This, indeed, was reported and I have the Minutes of a meting of 23 March, which said that the Authority had offered to meet the Petitioners and their Agent but, for the time being, the offer has been declined. This was not true.
438. CHAIRMAN: You are putting that on the record?
439. MR CAMPBELL: Yes.
440. CHAIRMAN: Is that the conclusion of your re-examination?
441. MR CAMPBELL: That concludes my re-examination. I, as their Agent, emailed (and I can produce that email) the Broads Authority's solicitor and offered to meet them if they were prepared to modify their position and accommodate the Petitioners.
442. CHAIRMAN: If you can supply that to the Clerk. As this is an appropriate time I am going to suspend the sitting. We will adjourn until 1.00 pm today in this room for a long period to 4.30 pm.
After a short adjournment
443. CHAIRMAN: Good afternoon, everyone. Welcome to this session of the Opposed Bill Committee. I understand from Mr Campbell that there was one question that you would like to have put to Richard Williams and would like the opportunity now. Is that correct?
444. MR CAMBPELL: If that is in order, yes, please.
445. CHAIRMAN: I would very much like to give Mr George the opportunity to cross-examine on that point as well. Mr Williams?
Re-examined by MR CAMBPBELL
446. MR CAMBPELL: Mr Williams, the Breakaway V incident that we have heard quite a lot about, this tragic drowning, was quoted by the Authority as a basic reason for requiring this legislation, a need for the legislation. What is your opinion of this?
(Mr Williams) Sir, can I start by saying when the Breakaway V capsized on the River Bure, unfortunately with a fatality, it came as quite a surprise to the Authority, I think there is no doubt about that. This was a day boat, a boat that is hired on a day basis, and the subsequent inquiry by the Marine Accident Investigation Board raised a number of issues that were really quite important issues, particularly about the licensing, craft and the role of the local authorities which the chief executive highlighted for us yesterday. I think the point that we would like to make - I would certainly like to make - about this incident is that it was not the first time that we in the Authority, and I was there in the Authority, had been aware of the problems of loading on day boats. Whilst it came as a surprise, the question that must arise, I would say, is what had happened before. When I joined the Authority I was aware that the provisions of the 1907 Act would not apply to the Broads Authority, I was told so by the solicitor, and so we had to go and find a way to try and solve that problem. What we did is what the Authority have done now, to set up a consultative organisation with the operators of the day boats. We agreed the maximum numbers that were to be allowed on any day boat that was operated by day boat operators on the Broads. It was done on a voluntary basis because at that time there seemed to be no other way of solving it. I would like to say it is a reflection of how important it is to have navigation staff who actually do understand the importance of other elements apart from those which we are maybe encouraged to talk about today.
447. CHAIRMAN: Remind us of the year in which that fatal incident took place, not the details, just the year.
(Mr Williams) That took place in 2002, 2003, from 19 July 2003.
448. MR CAMBPELL: The arrangements that you made with the operators, were they to write on the outside of the hull the maximum number of people?
(Mr Williams) Yes, it was.
449. CHAIRMAN: Mr George, do you want to cross-examine on that point?
450. MR GEORGE: I do not need to cross-examine.
451. CHAIRMAN: Thank you very much, Mr Williams.
The Witness Withdrew
452. MR CAMBPELL: Thank you for your indulgence.
453. CHAIRMAN: I understand, Mr Campbell, you wish to take Mollie Howes through her own Petition and then Mr Paul Howes and then you want to make your main statement at the end of those two sessions?
454. MR CAMBPELL: Yes, sir.
455. CHAIRMAN: That is perfectly fine by me. Mollie Howes.
MRS MOLLIE HOWES, Sworn
Examined by MR CAMPBELL
456. CHAIRMAN: Mr Campbell?
457. MR CAMBPELL: Mrs Howes, you are retired, are you not?
(Mrs Howes) Yes.
458. You spent 20 years organising a major event with your late husband, the Three Rivers Race on the Broads?
(Mrs Howes) I think it was nearer 15 than 20, Mr Campbell.
459. You sat as a magistrate for a total of 28 years before you retired?
(Mrs Howes) Yes, I did. I am also a director of a family business.
460. MR CAMPBELL: Mrs Howes, the Broads Authority response to your Petition, one clause, clause 8(1) was boats, the last paragraph - and bear in mind this was written to a magistrate - "The Bill will make the actions lawful, this is what legislation does", how did you feel about that?
(Mrs Howes) I must admit I rather took exception to a comment like that. That I would like to link with clause 7 about the enforcement of the special regulations. It says that a reasonable time should be specified, but I am concerned that it says: "Any other person authorised is refused entry". I would like to strengthen that by replacing "may apply" with "shall apply". That is on page seven of the Filled Bill.
461. CHAIRMAN: Line?
(Mrs Howes) I did not get the line, I am awfully sorry, but it is about the second or third line, I believe. I am not sure. I will wait until you find it, sir.
462. CHAIRMAN: Carry on, Mr Campbell.
(Mrs Howes) The words "shall apply for a warrant" and in subsections (4) and (5) I am concerned over the "qualifications of any person authorised to make a decision over grave and imminent danger". I can think of only two instances where this might apply, and that is fire and leaking fuel. As I said in my Petition, to break into somebody's property without a warrant I would consider to be the unlawful act of breaking and entering. I know from experience that warrants can be obtained at any hour on any day, having been knocked up at 2:40 in the morning, but I will repeat that I took great exception to being told that the Bill will make the action lawful and that is what legislation does.
463. MR CAMBPELL: Thank you, Mrs Howes. In your Petition you stated that the Broads are the safest inland waterways in the country.
(Mrs Howes) Yes.
464. Do you have any supporting evidence for this statement?
(Mrs Howes) Yes, I do. My printer packed up on me on Monday morning, so Ms Jones very kindly copied them for me. Have the members got them?
465. CHAIRMAN: Yes.
(Mrs Howes) I think I will give a copy to Mr George (Same handed). The first sheet, the National Water Safety Forum gives the figures for drowning trends on inland waters. The first column gives the year and the second the total number of deaths that occurred. It certainly makes very sad reading. The second page marked 'table 1' is from the Broads Authority and gives the years across the page with deaths on or from boats and the number of deaths not from boats. When you add these figures together, they do not even go into double figures. The rest of the page goes into the causes, nature of injuries and those reported needing hospital treatment. You have probably noticed on there about the near-miss drownings. I would like to explain something about that. At the age of eight when most children are beginning to learn to sail as part of their stage one for the OIA, they are shown how to capsize a boat and also how to right that boat once it has capsized. At stage two they actually have to do it themselves so that on the waters, particularly this time of year and in the warm weather, these children often capsize their boats for the sheer fun of it because they know they can right them. I hope a difference will be made in those figures that the Broads Authority intend to produce between those that are playing about and those that might capsize during a race. Can I say that all the sailing clubs have craft on the water watching the youngsters when they sail so there is no harm that can come to them. I am extremely concerned that they do not start including those that capsize it for fun; they finish a race, and it is hot and sticky so they capsize. In their response to me, the Authority says that the inclusion of adjacent waters would be of benefit to all, to ensure that there would be greater consideration in safety standards. Surely it will be very difficult to better the figures that I have already produced for you.
466. CHAIRMAN: Before you go on, Mrs Howes, Stephen Crabb would like to ask you a question.
467. MR CRABB: In the figures you have produced for us, table 1 since 2002, 2003 there seems to have been a very sharp increase in the number of near-miss drowning incidents. What do you attribute that to? Is it deliberate capsizing, people practising their manoeuvres?
(Mrs Howes) I do not know, because I do not know where they got their figures from, to be perfectly honest. One happened at Horning and when it was announced in the paper about near-miss drownings, I did write a letter and, funnily enough, the following day a letter appeared from the father of the child, the 15-year-old, that it had happened to. The only reason he had contacted the Broads Authority was because he was concerned it was a hire boat that was not being manoeuvred properly that had caused the problem. Children can capsize in boats because the wind picks up or there is a wind shift, but they are all right and the boat is all right because they have all been trained as to how to cope with it.
468. CHAIRMAN: Mr Campbell?
469. MR CAMBPELL: Would you wish to go on to the third page?
(Mrs Howes) Yes. The third page marked "table 2" gives an analysis of fire and explosion, 19 of which were caused by arsonists, that is in the column marked "22 craft", and two of the others actually had boat safety certificates. If you turn to tab 6 in the bundle provided by the Broads Authority, you will see that the Broads Authority has double the number of craft per navigable mile than any other waterway. I really feel that in some ways the boat safety scheme is not required, but I can see it needs to be done for the benefit of others but they should not be too draconian.
470. Again in your Petition, you said you thought the reason for the Bill was to cover safety issues only. You went on to comment about changes to the accounts. Would you please explain?
(Mrs Howes) Yes. I am not an accountant, but I can on most occasions understand a balance sheet but I must admit I strongly object to the removal of section 17, subsection (7) of the 1988 Act which states: "any deficit in the navigation revenue account shall be made up by contributions from the general account". I know Dr Packman mentioned it yesterday that the wording should be "no less", but I think to retain this will make it far clearer. I would like to see this particular wording retained for three reasons. First, because there is an awful lot of backlog of dredging; second, I can see nothing wrong in using part of the general account as the Authority has three purposes; and the third one is the fact that the Environment Agency and British Waterways have government funding and some of that funding goes on their navigation duties. It also benefits conservation by helping to preserve the area and I believe the system that they are hoping to use is the one that they have agreed with the Royal Yachting Association and the British Marine Federation. I feel that this agreement in its entirety should form part of the Bill itself. I am extremely concerned that if this Bill is enacted in its current form it will take precedence over any legal agreements or memoranda of understanding that was signed prior to the enactment of the Bill. If I was back in court, if somebody came up with a parliamentary bill and an agreement that had been signed before, I would assume that the case would be that the bill would take precedence.
471. MR CAMBPELL: Thank you, Mrs Howes. There were some questions during yesterday about the consultation process used for this private bill. I believe you would like to add to this.
(Mrs Howes) Yes. I was surprised to find that the first draft of the Bill had actually been drawn up without consulting the Navigation Committee. I felt that the Navigation Committee should have been consulted before a draft was produced by the parliamentary agents, particularly as it was supposed to be about safety. One thing I was relieved to see that came out of that was the idea the Broads area should become a national park.
472. CHAIRMAN: Could I ask you a question. Mr Williams earlier on suggested that the first draft of the bill had large holes in it into which things would be slotted. Was it that draft that eventually went to the Navigation Committee and was not intended perhaps by the Broads Authority that the Navigation Committee would insert the relevant section at that point?
(Mrs Howes) No, from memory, sir, I do not think that they were all to do with navigation. I think some of them were concerned with other aspects of things that they wanted to change.
473. Thank you.
(Mrs Howes) Even the final deposited bill was not seen by the Navigation Committee before it came and I know there were one or two alterations made. It was produced to the full Broads Authority but not to the Navigation Committee.
474. Did all of the Navigation Committee's concerns or points, as far as you are aware, eventually get incorporated into the Bill as amendments?
(Mrs Howes) I think most of them may have been, but what concerned me too was that little notice was taken of the people who had been consulted. In my case they completely ignored my comments about using search warrants but sometime after the Bill had been deposited, I must admit, they did change most of them. Now is it any wonder that the Authority has lost the trust of navigators? This fact was even mentioned by a member of the Navigation Committee at one of their committee meetings. Take the case of a recent advertisement in the local press. I think I have got copies here. Yes, I have. Thank you (Same handed).
475. You wanted to draw our attention to it?
(Mrs Howes) I wanted to draw your attention to part of it, yes. It was for a head of construction and facilities for a qualified civil engineer whose principal task will be dealing with dredging but the final sentence reads: "an understanding of and commitment to the Authority's conservation aims is essential". If you discover a problem on the water and report it, little or nothing gets done. I can give two good examples of this. Last year in the Three Rivers Race, which is a national sailing event, several cruisers went to ground in a marked channel. The Authority I know was informed at its next meeting because I was there, I was present.
476. The point you are trying to make, Mrs Howes, is it linked to something specifically in the Bill that you wish to address?
(Mrs Howes) No, it is all about lack of trust by the navigators, sir. May I continue?
477. Finish reasonably soon and then the point is on the record.
(Mrs Howes) There was a recent race this month that took place when three sailing cruisers were holed. That happened during an afternoon and the Navigation Officer did not turn up until 11 o'clock the following morning. It could have been the case that other boats were holed. It was because the water level, I think, was about six inches higher than normal and covered some piling.
478. Your point is that the Authority has difficulties?
(Mrs Howes) Yes.
479. Would it not be reasonable to expect that is likely anyway in a large area like the Broads? A public body will sometimes have its difficulties, will it not?
(Mrs Howes) I would have thought when it comes to safety, sir, because remember this relates back to safety, that something would have been done to mark the beginnings and the end of the piles that were covered by water. I would have thought that would be a reasonable assumption to make, that the Authority would do it as soon as possible after it had been reported.
480. CHAIRMAN: That point is on the record. Mr Campbell?
481. MR CAMBPELL: I have no further questions for this witness, sir.
482. CHAIRMAN: Mr George, do you wish to cross-examine Mrs Howes?
Cross-examined by MR GEORGE
483. MR GEORGE: The last point you raised, this was some piling by the Environment Agency, was it not, and a complaint has been made by the Broads Authority to the Environment Agency about it?
(Mrs Howes) Yes, but, Mr George, when you are on water and you hole your boat, because there are two bodies involved, you assume that, provided you let the Broads Authority know, they would take immediate steps to report it to the Environment Agency, particularly in view of the first person to turn up was at 11 o'clock the next morning was a member of the Authority and not the Environment Agency.
484. Coming to the first draft of the Bill which you mentioned and the blanks in it, I have got a copy here of the first version which also track-changed the changes in the second version. The sorts of matters that are left blank are, for instance, Schedule 5, transitional provisions. It is said to be completed in due course and the definition of the Schedule 3 extension of the navigation area, that is the transferred area, again it is said that was to be completed. It is that sort of matter, is it not, where you have a blank page saying, "to be completed later", and in one other place about the details in some byelaws it was said that there would need to be consideration given to some additional provisions. That is the limit of the matter about these blanks in the first draft which have been filled in by the second draft and then moved on to the deposited version.
(Mrs Howes) Yes, sir, but it makes it very difficult for a lay person like myself to comment on the document when it is incomplete.
485. MR GEORGE: In any event you accept that a number of your comments were taken into account and led to specific changes in the wording of the Bill?
(Mrs Howes) Eventually, yes, but it was a long time after the Bill had been deposited and I must admit I had replied three times to the Broads Authority and I stated ----
486. CHAIRMAN: Your points were generally taken into account eventually at the final stage?
(Mrs Howes) At the final stage, but I would have expected them to be taken into account at a much earlier stage of the consultation period.
487. MR GEORGE: Just to give an example, you have raised Clause 8. I wonder if I could ask the Committee to look up Clause 8 because you have sought a specific amendment to Clause 8 now. Could we just look at Clause 8? Do you have it? It is page seven of the Bill.
488. CHAIRMAN: Under the title "Enforcement Special Direction".
(Mrs Howes) Yes, it is Enforcement Special Direction.
489. MR GEORGE: If we go to Clause 8(4), this is: "any person referred to in subsection (3) is refused entry to the vessel and in his reasonable opinion non-compliance with the special direction gives rise to grave and imminent danger to persons or property, that person may exercise the powers of subsection (2) without a justice's warrant". That phrase "grave and imminent danger", for instance, you suggested that would be an appropriate provision and that is an example of a change which was made between the original consultation version and the deposited Bill, is it not?
(Mrs Howes) Yes, that is true, but I would like to say here that you could see fire and you could see fuel leaking which were the two examples I gave which, I am sure, any right-minded person would be quite happy for somebody, regardless of whom, to do something about that, but it is only if they are refused entry. I am sure somebody in that situation would never refuse entry to anybody.
490. Can we look at your amendment, your amendment is proposed to line 12 and to substitute "shall" for "may". Is that not right?
(Mrs Howes) Yes.
491. The situation is if the matter is of extreme urgency, the Navigation Officer can go in straightaway, can they not, under 8(4) which we have just been looking at, they are refused entry?
(Mrs Howes) Yes, but under this section it says: "subject to subsection (4)", but I think in these circumstances I can only think of two occasions when it would be right and proper for somebody to break and enter a boat but it also refers back again to refusal, does it?
492. I think you may have possibly misunderstood the "may". If it is an extreme case and entry is refused, they can go in under 8(4). All 8(3) says if they are to go in, otherwise they will need the magistrate's warrant, the decision may be taken that for some reason they are not going to enter at all. If you write in the word "shall" then as soon as entry has been refused, they will be obliged to go to the magistrate's court even if they have decided that in all the circumstances for some reason it is no longer appropriate to be taking action under section 8 at all. The word "may" is there because they have an option of not deciding to go through the 8(3) procedure and doing it by some other means, but they cannot do it under Clause 8 unless they get the magistrate's warrant. That is why it is made. Do you understand that?
(Mrs Howes) Right, yes, sir.
493. Could we please turn to one or other drafting matter, and this is section 17 of the 1988 Act. Could I ask you to go to tab three in the bundle, page 16.
(Mrs Howes) Yes.
494. I think there is quite a lot of common ground between you and the Broads Authority here because we, like you, think that non-navigation monies on occasion could and should properly be used for navigation, there is nothing between us on that.
(Mrs Howes) No.
495. But you suggest that one should retain the words in 17(7) which are there shown with a line through them "any deficit in the navigation account should be made up". You see, the difficulty there, Mrs Howes, is that under this Bill the requirement for the separate navigation revenue account goes, and that is why 17(5) is struck out. The Department agree there is no need for a separate account and once you have struck out the separate account, as a consequential matter, you have got to delete 17(7) because there is no navigation revenue account left, so to achieve what you want you could not do it by the amendment that you are suggesting.
(Mrs Howes) No, but you could ensure --- We are going to have, I understand, an account for the Navigation Committee in due course after the accounts have been drawn up and, if I remember rightly, they are split into three columns: one is for conservation; the middle one is for covering both; and the third column is for navigation. If we are going to have a navigation breakdown of the figures for the Navigation Committee, then I feel that it should be possible to show that more monies have been paid for navigation than their income on navigation.
496. And if that did happen there would be a power to use any other monies for the navigation purpose. The problem is that the Department provide all our other money and they may choose under their section 15 grant to say it may not be used for navigation, that is entirely a matter for them, but if there is any money that is available to the Broads Authority, it will be in the future perfectly open to them to use it to top up the navigation income because the Bill merely says that all the money that has come in as navigation income must be spent on navigation and for no other purposes, that is the "no less". But if there is any other money available it will remain open to the Broads Authority to use it for navigation.
(Mrs Howes) Yes, I wanted to ensure that actually happened.
497. I do not think there is anything between us. The very last matter, I would like to circulate a document, it is the Poole Harbour Revision Order and it is a very short point. Could you make sure that the Committee have it first. (Same handed) You and other Petitioners are very concerned about extra controls, the extra special directions and general directions, are you not?
(Mrs Howes) Yes.
498. You may remember Mr Williams before lunch prayed in aid Poole and said they are quite like the Broads but they managed perfectly well, and I have got a note of him saying that they have no need for general or special directions. In the course of luncheon my instructing agent drew my attention to this order - the Poole Harbour Revision Order - which is awaiting determination by the Secretary of State, so it just awaiting his decision, it has been published, consulted on and so forth, it is simply with the Department, and the interesting thing is that Poole, as we can see on the first page at item 14 and on the second page at item 16, are seeking precisely powers to make general directions and special directions, with criminal sanctions under clause 17 for failure to comply. You probably will not have come across this document and I do not suggest you should have, but it does suggest, does it not, what I have been saying all along, which is we are only doing what other authorities faced with like circumstances are doing, that that was a truthful statement, and that the suggestion that places like Poole do not feel any need is plainly negated, is it not, by the Poole Harbour Revision Order which they are promoting?
(Mrs Howes) They may be promoting it; they have not got it yet.
499. MR GEORGE: I accept perfectly they may not get it.
500. CHAIRMAN: Mr Campbell, you will have a chance to re-examine Mrs Howe ---
501. MR CAMPBELL: No, sir, it was not a re-examination question at all. I was going to ask Mr George if this was properly a question to Mrs Howes or does he wish to recall Richard Williams.
502. MR GEORGE: I was trying to save time. I thought it would be said that that would take longer. I merely want the Committee to know that there is a proposal. That is the limit of the matter. Sir, if you want to have Mr Williams back, fine. I thought Mr Williams was under strain and I thought we were told that is why he was up first.
503. CHAIRMAN: I am happy for Mr Campbell to take advice from Mr Williams and perhaps incorporate what he asserts into his final statement to the Committee.
504. MR GEORGE: I readily accept that the Secretary of State may not confirm this Revision Order, but the suggestion was that Poole were perfectly happy without. I have no further questions to you, thank you very much.
505. CHAIRMAN: Mr Campbell, do you have any re-examination?
Re-examined by MR CAMPBELL
506. MR CAMPBELL: I have one further question for Mrs Howes. Mrs Howes, do you think it is fair that that, for instance, riverside businesses, boatyards, restaurants, cafés, fishermen, walkers all benefit from dredging and navigation expenditure on the Broads?
(Mrs Howes) Oh yes.
507. MR CAMPBBELL: Thank you, no further questions.
508. CHAIRMAN: Thank you very much, Mrs Howes, for your written submission and for your evidence this afternoon.
The witness withdrew
509. CHAIRMAN: We now come to the case for the fourth and final Petitioner Mr Paul Howes, who has been sworn I believe.
MR PAUL DERRICK HOWES, sworn
Examined by Mr Campbell
510. CHAIRMAN: Mr Howes, would you please tell the Committee your experience of the Broads and your current occupation.
(Mr Howes) Yes I will, Mr Campbell. I learnt to sail on Woodbastwick Decoy Broad, which is one of the adjacent waters, at the age of 12 with the Sea Scouts and have been a frequent yachtsman on the Broads ever since, although I have lived overseas for some 22 years. My occupation, as you stated yesterday, I am an actuary by profession but in practice my day-to-day job is a management consultant.
511. As a management consultant what do you think of the progression of this Bill to date?
(Mr Howes) Well, as a management consultant I have to do two things. I have to listen well to my clients and from that listening process I have to help them develop and then translate a strategy into a series of actions. That is what consultants do. Given the number of amendments to the Bill, both immediately before through the shape of the agreement with the RYA and the British Marine Federation, and since, as reflected in the number of pages apart and the number of handwritten amendments in the Bill, I have to wonder just how good the listening process has been in this situation. It really surprises me that there are so many amendments and that the Chief Executive would call this a success. I would say, too, that in all of this we, the Petitioners, want to emphasise that we are absolutely in favour of increased safety on the Broads. We do not wish any of our criticism of the methods proposed here to undermine that. However, a private bill grants special privileges to the promoter of that private bill. It is therefore incumbent on the promoter to ensure that the powers they seek are both necessary and that they can only be achieved through these special privileges and, frankly, so far I am less than convinced. Between us I think the Petitioners have shown and I hope what little I have left will show that there are even greater doubts as you look underneath the surface.
512. Please tell me what makes the Broads unique, in your opinion, Mr Howes?
(Mr Howes) There are just a couple of relevant points here. Firstly, the Broads are man-made. I think that came out yesterday very early on. It was not discovered until the 1950s that the Broads had actually been constructed through the means of digging for peat and subsequently flooded and also the rivers on the Broads did not get the way they are by accident. Over the last 200 years there has been a series of trading boats, originally called keels, they had a certain sail plan (and now there are only seven left) which plied the waters of the Broads, trading, they moved grain, fish, coal, ice, wheat and all kinds of things in these boats that were up to 50/55 tonnes. In order to move these boats around, rivers had to be dredged to a depth of about six feet, deeper in places, and for the Norwich navigation, where they had commercial craft, they had to be dredged deeper than that. My basic fundamental point here is that the Broads are man-made, they did not get that way by accident, and in order to conserve the Broads they need to be dredged regularly to that kind of depth. We all heard Mr Packman mention yesterday one of his achievements as the dredging of Barton Broad, and I think everybody in the whole community recognises that that would be one of the major achievements of the Broads Authority. Even he said, as a result of that, plants are now growing in Barton Broad that have not been seen there for 50 years. Dredging, although it seems on the surface that there is a dichotomy, an opposition between "boating interests" - I hate that phrase - and "conservation interests", there is actually scope for a lot of agreement between those two parties. However, in order to maintain those rivers and broads in that kind of condition, to conserve the way they are, you have to input a lot of energy. The rivers are deeper than they need to be to carry the rain run-off from the local area, so if you do not dredge them they will silt up. That is why the Petitioners are very concerned about the amount spent on dredging. It is not just for our benefit; it is for that of the conservationists and the other trades people that depend on the Broads. The second background point is the Magna Carta. You are Members of Parliament from places other than the Broads and perhaps you will not appreciate this but local people have jealously guarded their rights to navigate, to anchor and to fish those tidal waters ever since the Magna Carta in 1215. There was a major rebellion in Norwich in 1549, which I think I quoted in my Petition, that the waters should be free for the rights of people to use, and even in the last century there have been fights within living memory between people on the Broads over the right to navigate tidal waters, so these two things go deep into the psyche of the local people.
513. We had given to us yesterday Defra's report on the Filled Bill. I understand that you feel that there are a couple of points that were not adequately covered yesterday. Would you please advise the Committee?
(Mr Howes) Yes indeed. Mr George went through the report from Defra on the Bill and he covered all of Defra's comments that were not italicised, but in the second paragraph of their report, Defra said: "As a matter of general approach, the Department thinks the Authority should consider whether some of that material" - ie the agreements reached after the deposit of the Bill - "should instead appear on the face of the Bill, to facilitate greater transparency." I am not sure, I do not recall Mr George dealing with that point yesterday and I think it is quite fundamental - I referred to it in my Petition - that the way the Broads Authority has it worded right now they are seeking greater powers than they actually intend to use. They have said actually in the preamble to the Bill that these things are exigent and then in the agreement with RYA they agreed not to exercise some of them, so as a citizen now I am in a very awkward situation. I do not know my position under the law and I think that is a pretty fundamental point. It does not matter how detailed it is, it is the fundamental principle that I am complaining about. Just to give you one example: the Broads Authority in agreement with the RYA decided not to exercise certain of the powers that it seeks in respect of pleasure craft. As it happens, I own a pleasure craft and, as it happens, I know about that agreement. I should know my situation under the law. It should be very obvious to me if I am able to read it. I should not have to read all the side agreements and everything else that the Authority undertakes. The Authority themselves say that they want that agreement to remain off the Bill so that it is flexible and they can change it if they want to. All they have to do to change it is to change the agreement with the two parties, which may or may not represent me at the time. I think that is an outrage. I think it is an affront to our democratic freedoms. The second point I had was an italicised section which Mr George did not deal with at the top of page 3. If I quote: "We note that the draft Filled Bill proposes a new clause 12(1A) which provides for the consultation of bodies appearing to represent boating interests but the Department would prefer to also see some commitment to consult locally, as would be the case with byelaws, since many individual boat owners may not belong to any organisation." I completely agree and I can see why Mr George skipped over that bit. As it happens, this January after the Bill was deposited I joined the RYA, so to some extent they could be seen to represent me, but I was not a member of the RYA when they concluded that agreement and I do not see why ---
514. CHAIRMAN: Sorry to interrupt you. I have made a note of the point you have just raised and I think it is a reasonable one which we will pursue when the Department are giving evidence on their statement shortly.
(Mr Howes) Thank you.
515. MR CAMPBELL: Mr Howes, I wonder if you would be kind enough to state your residual major points of disagreement with the Bill.
(Mr Howes) Okay. The whole notion behind general directions and special directions. I will not go into detail here but Mrs Wakelin when she was in this chair yesterday herself agreed that the range of powers that the Authority was taking was quite significantly more than what they currently had. So there is a dramatic increase in power over individuals. I do not see the justification for it. They have listened to my point about length of time for which navigation is closed, and I am grateful for that, but there is no detail on the person giving directions, just that they are an "authorised person". The general directions propose restricting movement in terms of high winds. I really particularly object to that. I am a skipper, I have got 40 years' experience. I keep envisaging a situation where I arrive at the top end of Breyden Water, which is that large body of water just above Great Yarmouth, on a Friday night after having participated in Oulton Regatta all week and I need to get to another regatta by Saturday morning, so in practice Friday night is the only time I can go across there, and I can envisage myself arriving there and being told by somebody in a Broads Authority launch, "You can't go down there." If it is an emergency, a bridge has fallen down or somebody has sunk in the channel first, of course, we all understand, it makes sense, but if there is high wind or fog, that is a matter for my judgment not the Broads Authority's judgment. I remind the Committee at this point that my Petition is against the Bill as drafted not really the contents of the side agreement. So you know, the basic Bill talks about being able to make restrictions on boats moving around in times of fog or high winds ---
516. CHAIRMAN: In your Petition, Mr Howes, at paragraph 7, I think you make the point that as a master of a vessel you have used the Broads safely in conditions such as these when other masters have chosen not to venture out, those conditions being poor visibility and high winds. Are you acknowledging that you are taking a risk they were not willing to take?
(Mr Howes) Yes, and what I am saying is that there are so many variables involved, sir. The Broads cover an area of a huge number of square miles. It is not simply the longitudinal length of the navigation water; it is a very big area. One part of it might be foggy, one part of it might be clear. It is impossible for a ranger on the ground in a boat to know exactly what is happening on any part of the water. The boat may be more stable than other people's boats and perhaps I might be more foolhardy than other skippers, that is true, but that is my risk. The point is there are so many conditions that go into making a judgment call as skipper whether to go out in certain conditions or not, and there is no way the Authority can make that call on behalf of everybody and draw the line in a sensible place.
517. Okay, we understand the point. Mr Campbell?
(Mr Howes) Actually I was still answering Mr Campbell's questions, sir, if I might continue. I think the restrictions go way beyond what is necessary and it is recognised in the side agreement and that is supported also, but that point is also supported by Defra. I will ignore that piece. In the end, even if you go through this whole general directions process, what you find is that the Authority must consult with lots of different bodies, some local, some national and inland waterways and so on, but in the end the final right of decision as to whether to promulgate the general position under this law is with the Broads Authority, and we have seen today earlier how poor they are sometimes at listening to people until they are actually forced to by the process, so it worries me a lot. That would be different if they had to legislate by byelaws, there would be more of a consultation process, so I see that as one of the checks that we have as a community on an unelected public body. You have heard a lot about byelaws being inflexible and the modern way is to go with this kind of approach. I do not believe that at all. I think it is a fundamental protection of the people against an unelected public body that they have to use byelaws. I will cut this next point out. Yes, and the Broads Authority has given way on that point about six hours so I am quite happy with that. Yes, I think the major point I tried to make in my Petition was around strategy. The Broads Authority has three goals. Two of them are the same as those in national parks. It is the third one that makes the Broads different. We talked about that yesterday. The Broads Authority already has conflict between its three goals that are deeper that the ones the national parks have.
518. CHAIRMAN: Would you like to see the Broads covered by the Sandford principle?
(Mr Howes) No, I would not, sir, anything but, but I believe some kind of equivalent principle needs to be worked out before we give additional powers to this body. The national parks have the Sandford principle, that is great. The Broads has three main goals. By definition, if two of them are the same as the national parks, they have conflicts but they have no means of resolving them today, while Defra is sitting on the sidelines saying that navigation income must equal navigation expenditure, the amount of money being spent on maintaining the waterways is going to continue not to be enough. For the last two or three years the number of boats going aground on the Broads has increased quite dramatically. I have gone aground myself several times in the last couple of years in places that I would not have before, so to me it is really important now that the vital importance of the waterways for navigators and for conservationists be seen reflected as a principle. If the waterways are not there, you do not have the Broads any more.
519. Those extra groundings, are you saying that they are as a result of inadequate dredging expenditure?
(Mr Howes) Yes, even the Broads Authority themselves trying to do their best have recognised that. But even they will recognise that they have a serious backlog in dredging and, as I said before, if you do not continue to dredge these rivers they will silt up because they are deeper than they need to be.
520. CHAIRMAN: We need to return to the core of the Bill. Mr Campbell?
521. MR CAMPBELL: I have no further questions of Mr Howes.
522. CHAIRMAN: Mr George, would you like to cross-examine Mr Howes now?
Cross-examined by MR GEORGE
523. MR GEORGE: Mr Howes, I think there is some common ground between you and the Broads Authority ---
(Mr Howes) There is.
524. Because our wording of the revised provision that the expenditure on navigation matters should be not less than the navigational income is precisely designed to leave available the possibility for what you seek whereas what the Department seeks, which is that they be exactly equal, would prevent what you are looking for. Is that not right?
(Mr Howes) Yes, sir, it is. Mr Packman and I do not agree on everything but on this point we are united.
525. MR GEORGE: Could I turn please to page 1 of the pages apart which is the provisions of consultation in relation to standards. You drew attention to the Department's point and the Chairman was interested in it.
526. CHAIRMAN: Mr George, this is the old page 1?
527. MR GEORGE: Page 1 of the pages apart.
(Mr Howes) I have it, sir.
528. You mentioned that the Department said that there should be wider consultation than just with bodies. Do you remember that point and the Chairman was most interested?
(Mr Howes) Yes, sir.
529. That was at a stage when there was only going to be 1A(a), precisely to meet that point. There has been added 1A(b), which I think is before the Department completed their report, which says "publish a notice of its intention to do in a newspaper and in the newspaper must summarise all the matters and give the opportunity for representations", so precisely the matter the Department thought was desirable has been done in the version at pages apart, page 1, which is before the Committee. That is why I did not deal with the matter when I was going through the matter because we have met the Department's point and that is why the Department's bit is in italics. Do you understand that?
(Mr Howes) I do yes, sir.
530. Good. Secondly, could you go in the bundle, which I think you have got, to tab 3 and to page 43, and we are here in the 1988 Act but showing the amendments. Ever since 1988, navigation officers have had a power, have they not, to give directions for regulating vessels, as we can see under section 18?
(Mr Howes) Yes.
531. I understand that you are, so to speak, a protector of Magna Carta and so forth, which is a very good thing and I do not seek to scorn it all, but the fact of the matter is from 1988 and even if this Bill did not exist there would be a power for whoever is appointed a navigation officer to give directions which would regulate your common law rights under Magna Carta and other measures, is that not right?
(Mr Howes) Yes, I believe that is correct, sir, but when I am faced as a private individual with a list that is now three times as long as the original list of possibilities then I start to get worried as a private individual. If this is enough, and generally speaking it has been enough over the past 20 years, then why change it?
532. I took my witness through the new provisions and the circumstances they will be used yesterday so I will not take that matter further. As far as the Royal Yacht Club agreement, could we just turn please to tab 4 ---
(Mr Howes) That would be the Royal Yachting Association.
533. I am sorry, the Royal Yachting Association, you are quite right and the British Marine Federation. Could we go to tab 4, page 3, and at the same time could you have open your copy of the Filled Bill at clause 4, and it is page 4 of the printed text of the Bill. So far as (c) and (d) at page 3 in the middle of the page there are concerned, those refer, do they not, to the power to give a general direction for prohibiting or regulating entry into the navigation area or into the navigation and (f) is about the poor visibility matter, and what has been agreed is that for the time being, ie until such time as those two groups, the Royal Yachting Association and the British Marine Federation consider appropriate, (e) and (f) on page 4 of the Bill will not apply to pleasure craft? You, as I understand it, would prefer that that be added into the wording on page 4 of the Bill. Is that right?
(Mr Howes) Together with the rest of the agreement, yes.
534. I just want to deal with that matter first. Now, so far as (e) is concerned on page 3 of the Royal Yachting Association's agreement, that is about 4(3)(g) and that is about requiring the master to give qualifications and in that at the present time the pleasure craft master does not need qualifications, it has very sensibly been agreed that until such time as the pleasure craft master needs qualifications, no general directions will be given, nor could they sensibly be given. Again, that is a provision which you are suggesting to the Committee, as I understand it, should be incorporated into the wording of the Bill. Is that correct?
(Mr Howes) Yes, I want the agreement between the RYA, the BMF and the Broads Authority to be incorporated into the Bill.
535. I will come to other matters in a second, but involved in your proposition would be that those three matters were incorporated into the text of the Bill. Is that right?
(Mr Howes) Certainly. Those are subsets of what has been agreed with the RYA, yes.
536. If the position does arise, therefore, that next year or the year after it is decided that really it would be sensible that some leisure craft should be subject to that form of general regulation and that the British Marine Federation and the Royal Yachting Association agree, your proposal would be that the Broads Authority should have to come back to Parliament to seek a further Bill. Is that correct?
(Mr Howes) That is a consequence of your decision to pursue the Private Bill. I am suggesting that actually there should be legislation by byelaw rather than general directions.
537. But the fact of the matter is, is it not, that if one had put those additional clauses into the Bill, the consequence would be that, in order to amend it, we would have to come back to Parliament?
(Mr Howes) Sorry, you are the lawyer. I think you are the one who is trained not to answer hypothetical questions.
538. So far as the other matters are concerned, there are very many of them if we look through it which I think really would not be very appropriate to put into the Bill itself, would they? You could have a hugely long Bill, but most of them simply deal with the way in which inspections and things would be done and they are not the sort of matters which one would expect to find in the text of a Private Act and we cannot see why they should be in the text of the Act itself. Parties have been perfectly content to deal with it in this way and we say that that is a perfectly appropriate way to proceed, and you simply differ on that.
(Mr Howes) I would like to see as much of this as possible in the draft Bill and then I would reserve my right whether to petition or not.
539. MR GEORGE: I do not suppose you are aware of this, but I ought to put it to you, that there is before Parliament at present the Local Government (Improvement and Health) Bill which in a variety of circumstances is to give local authorities the power to confirm their own byelaws. It is not going to apply to all byelaws, but to quite a number of byelaws and were you aware that there is a trend, a belief, it is described as 'subsidiarity', that byelaws should be made locally?
540. CHAIRMAN: I am not sure, Mr George, that that is a reasonable question to put to this witness.
(Mr Howes) I am quite happy to answer it, sir, if I might. I am aware of the principle of subsidiarity. The point here is that local authorities are subject to democratic controls because the councillors themselves are elected. Several MPs during the course of the debate raised the possibility that elections to the national park boards and, by extension, to the Broads Authority ought to be elected. Were that to be the case, I would have no problem with their confirming their own byelaws.
541. MR GEORGE: The last matter is that you complain about a number of amendments to the Bill, but of course if I appeared before the Committee with no amendments, it would be very easy, would it not, for Petitioners and others simply to say, "Look at them! It is a mark of how set in their ways they are that there is not a single suggested amendment. They have got a closed mind". The one thing that these pages show, do they not, is that the Broads Authority have had a very open mind or receptive mind to making changes to improve the Bill?
(Mr Howes) Only at the last minute.
542. MR GEORGE: Thank you, that is all.
543. CHAIRMAN: Mr Campbell, do you wish to re-examine?
544. MR CAMPBELL: No, sir.
545. CHAIRMAN: In that case, I think I will call a brief break before we have the Defra officials, so could the Committee return by 2.15 please and we will resume at that point.
After a short break
546. CHAIRMAN: Mr Campbell, I would ask you now to sum up the case as precisely as you can for the Petitioners, but focusing especially on what you and your Petitioners believe is necessary to be in the Bill before it can be allowed to proceed to its next stage.
547. MR CAMPBELL: Thank you very much indeed, sir. First of all, the Statutory Instrument which Mr George produced for Poole Harbour, you asked me to cover that briefly in my summing up. This is not a current document and it has not been approved. The copies we have start at page 10. The tone and the situations are entirely different. We have a 24-hour harbour under the control of the Commander RN (retired) which also operates under a completely different safety system. There is no point in going into the details.
548. CHAIRMAN: You are making the suggestion that these are not comparable?
549. MR CAMPBELL: This Bill is not comparable, in Richard Williams' opinion, to anything on the Broads.
550. CHAIRMAN: Thank you. Would you like to continue.
551. MR CAMPBELL: Firstly, the Petitioners would all like to thank you for the opportunity of being heard. We are dealing with the Broads and, when we are dealing with the Broads, we are dealing very much with a sort of Arthur Ransome world. I grew up in a (?) Club since its existence and I have always said that the Broads were a great place for old men and children and I suppose I am beginning to feel in the former category. These sheltered waters are an incredibly safe place for children. We have an admirable safety record. A rowing boat with an outboard motor is probably the first piece of mechanical equipment that a child is able to use on his own, unsupervised. He can go off and poke into the reeds. Children, when they are doing that sort of thing, learn unfashionable qualities of self-reliance and they learn how to appreciate healthy, open-air recreation and the natural world around them. When first placed in a two-man dinghy, this is often the first experience of team work that today's youngsters get. Freedom from too many controls is an essential part of the ingredients and that balance, I suggest, requires a soft touch. Young people learn from their mistakes and the safe environment of the Broads permits this. The situation "where someone inadvertently finds themselves in the water" is now officially described by the Broads Authority as a near-miss drowning. Not only does this fail to remotely comprehend the ethos, it is also incorrect to the point of being laughable. When individuals fall off a windsurfer, or water-skis or when young people turn over a dinghy, it is not a near-miss drowning or anything like it; it is an essential part of their learning curve. I, for example, as a sailing instructor, always preach that it is actually impossible to over-rescue, but that is not to advocate watching children drown or even watching them get themselves into trouble because, if you frighten them, you put them off for life. What it does is give them the opportunity to rescue themselves so that, when it happens to them at sea or in difficult circumstances, they are much more likely to be able to cope with it. It is not a desperately edifying fact, but actually more people drown every year by driving their cars into fenland drains than drown from boats on the Broads, and the majority of those regrettably tend to be inebriate adults falling off boats that are moored up anyway. None of the Petitioners is against boat safety.
552. They would, however, wish to argue the case for legislation as unjustified and unnecessary. There are only four Petitioners, but I am aware of a number of other individuals and one 1,200-member sailing club who would have petitioned prior to the last-minute agreement signed by the Broads Authority and the Royal Yachting Association. Both parties advised these individuals that the agreement was binding, although the legitimacy has been questioned in the House and is not entirely reflected on the face of the Bill.
553. I submit that the adjacent waters part of this Filled Bill is frankly a mess and inconsistent with their own definition of 'adjacent waters'. Private Bills, as such, I understand, are usually uncontentious and it is unusual to get an opposed one. My understanding of the procedure for a Private Bill is that the Promoters carry the onus of proof that they have an absolute need for legislation and that there is no alternative open to them. The Petitioners submit that the Broads Authority have failed to show this need.
554. We have in this Private Bill a Boat Safety Scheme with basically simple proposed legislation complicated by several, frankly, opportunistic adults. Boat safety itself would normally be an uncontentious topic. Exploding boats are bad news in all respects. During the period the Broads Authority have been working on this Bill, they have also instituted boat safety byelaws, so they already have their Boat Safety Scheme and they have shown us that they do have an alternative. I am reminded that after the imposition of a speed limit on Windermere, which was a heavy-handed imposition and caused great problems and great disagreements up there, the recent Deputy Prime Minister urged the use of byelaws precisely because they carried a period for public consultation. This, to us, is a proper safeguard in the face of an unelected authority and particularly one where there is currently some considerable background of mistrust. That is why we believe it is important that this legislation be carried through by byelaws.
555. The Petitioners submit that the existence of these byelaws mitigates the need for legislation. Indeed, what we do have here is not a Boat Safety Scheme, but a set of fire and explosion regulations and I ask that we do not confuse this with the Breakaway V incident which was concerned with stability, weight distribution and the construction of boats.
556. The legislation already exists for local authorities to license day boats, such as Breakaway V, on the Broads. What we are seeing is a legislative requirement brought on by an inability of the Broads Authority to work effectively in company together with their neighbouring local authorities. This is by no means an isolated example of such problems. Planning and tourism similarly carry examples of the Broads Authority failing to work together with their neighbouring local authorities.
557. To arrive at this point, we have been through what the Petitioners consider to be a flawed consultation process. There has been no consultation with commercial shipowners and we are aware that the consultation with the MCA, who really are the prime movers in this in the country, the prime body responsible for boat safety, was limited to an acknowledgement of receipt. The Broads Authority must have been advised by Defra throughout this process and, frankly, the Petitioners are surprised that at this late stage Defra has come out with the response that it is quite critical in several respects, and we do not believe that they consulted with their Department effectively either.
558. The agreement hammered out at the last minute between the Royal Yachting Association, the British Marine Industry Federation and the Broads Authority, in our view, quite radically changes this Bill, the Filled Bill, and to that extent has fundamentally undermined the previous consultation process. The Petitioners believe that it is a fundamental right that a citizen should be allowed to know their position under the law rather than be the subject of side agreements, and indeed the Petitioners agree with Defra that they would like to see this more fully reflected on the face of the Bill.
559. Negotiations between representative bodies are easier for all concerned, but it certainly feels to lay people, and that is me, that parties cosying up for a last-minute agreement saying, "Never mind what it says in the Bill, the eventual Bill or the Act, this is what we're going to do anyway" must run very close to contempt of Parliament. It certainly shows disdain for the previous consultation process and demonstrates a lack of thinking in the Bill before it was presented to Parliament.
560. We have heard from Mrs Howes about the level of mistrust between the Broads Authority navigators, and indeed this has been recorded today. Navigation is a significant part of the Broads Authority's responsibilities, yet they have a management structure almost devoid of navigational qualifications and experience. This becomes particularly evident when you compare this with their planning or conservation operations which are packed with highly qualified people. There may be no statutory requirement for qualifications, but with a normal harbour authority there is a port manager who is normally a master mariner and of course qualified pilots, and that is there to protect port users.
561. We have heard from both Mollie and Paul Howes about rights of entry and I think one of the things I have to say in this is that the Broads Authority are seeking some, as they have been described, draconian powers. Now, actually we are not dealing, I suggest, with anti-terrorist legislation, we are dealing with leisure boating and I think there is a priority which the Petitioners request the Committee consider.
562. To conclude, really the Petitioners do not believe that the Authority have proven the case to require legislation and request that the Committee instruct the Broads Authority to use byelaws. Thank you.
563. CHAIRMAN: Thank you, Mr Campbell. Mr George?
564. MR GEORGE: Thank you, sir. There are six preliminary points. The first is that you will recall the duty of the Broads Authority as a harbour authority to keep under review its procedures, and the matter was dealt with in the transcript for yesterday at paragraph 274 when Mrs Wakelin told you that the Port Marine Safety Code applied to them and that they had been particularly taken to task for dragging behind their obligations and duties, and it was with that in mind that the provisions in the Bill have come forward.
565. Secondly, the Committee has heard about the very extensive consultation that has taken place and even Mrs Howes admitted that the suggestions she had put forward had on a number of occasions made their way into the deposited Bill and more of them into the version which is before the Committee. It is really not possible to say that there has not been the fullest consultation.
566. Thirdly, there is the very large measure of support that the Bill has. You have heard that the constituents who make up the Broads Authority include representatives of no fewer than six local authorities, that they have got four leaders of their local authorities on the Broads Authority itself, that it is a multi-party representation and that there are remarkably few Petitioners, four Petitioners left at the end.
567. Fourthly, there is no novelty. Pretty much everything in the Bill is precedented elsewhere and it really will not do now to say, "Oh well, Poole's a bit different" because Poole only came in because this morning Mr Williams said, "Look at Poole. It's rather similar and they don't feel any need there for powers to give directions". He prayed it in aid as something which is comparable and we have shown that they are seeking the similar powers. The classic example here is to look at this area to be transferred where there is already a power to give general and special directions, but as soon as that area is transferred away from the Great Yarmouth Harbour Authority, that power will lapse and it is plainly appropriate that the new Authority should have the power.
568. Fifthly, the fact that there are these number of changes in the Filled-up Bill is really not against the Bill, but it rather shows that there has been an attempt to compromise, an attempt to produce a package which can be agreed which is better than what went before. If there were any government bills which did not have any amendments, I suspect it would be very rare indeed and Members will be aware of being faced with numerous amendments which come forward and that is for good reason and desirable.
569. The last matter is that plainly there is a need for a Bill. You cannot do these things simply by byelaws. You cannot make the constitutional changes. You cannot introduce the third-party insurance. You cannot make third-party insurance and compliance with some of the standards conditions of the way in which it is done by clause 11 of the Bill without having a Bill to provide the power. Once the situation is that the Broads Authority have got to bring forward a Bill, is it not sensible that it incorporates provisions, such as clause 12, which means that it is not stuck with the old byelaws provision and that when the boat safety standards alter, they can simply, and subject to their own consultation procedure which is set out in the Bill, introduce revised standards rather than having to promote byelaws again and for a prolonged period be enforcing those standards which are by then out of date. Once one has got to have a Bill, it surely is sensible to go forward.
570. Could I just ask the Committee quickly to turn to tab 1 where there is the summary of the Petitions and, so far as adjacent waters are concerned, it was really accepted by Mr Williams this morning that there are certain parts of the adjacent waters where it is perfectly sensible to have the controls which are now sought. It is accepted by the Department to be sensible to have some controls in adjacent waters, and the one example given which was the example of a particular judge's private waters, it transpired, would not be count as adjacent waters in any event. This is plainly a sensible provision.
571. So far as item two is concerned, qualifications for the authorised officer and the navigation officer, the navigation officer who gives the special directions under the 1988 Act other than within Norwich itself does not need any qualifications at present. Why should he need any special qualifications written into the Act in the future? The phrases "authorised officer" and "powers for the authorised officer" appear in the 1988 Act in various circumstances again without any pre-requirement for qualifications.
572. Line 3, the toll point, I think, has gone.
573. Line 4, directions, as I say, we are simply seeking to expand the specific directions for the various circumstances which Mrs Wakelin identified and to have the same power of general directions which many other harbour authorities have.
574. So far as construction standards are concerned, there seems to be a slight misunderstanding here. We are going to have some standards under our byelaws come what may because we have got the byelaws. The only question is whether it is not sensible, as indeed the Department thinks is sensible, as indeed I think everyone thinks is sensible, apart from these four Petitioners, to have a provision such as section 12 whereby we make our own standards rather than being dependent upon the Boat Safety Standards, but we have agreed that if our own standards are to differ to any significant degree from the national standards, then there will be extensive consultation, and that is provided in the Filled-up Bill.
575. So far as the right of entry is concerned, I think that point really has gone with the amendments in the Filled-up Bill showing that in pretty much every circumstance, unless one of dire emergency, there is going to be a requirement for a warrant from the magistrate. Therefore, there is nothing radically different left there.
576. So far as unsafe vessels are concerned, you have not heard any evidence against those provisions from these Petitioners. It is plainly a sensible definition of "unsafe vessels" and a sensible power to deal with such unsafe vessels.
577. So far as the request for information is concerned, that is not a matter which was pursued today in evidence and nothing turns on it.
578. So far as the transferred areas are concerned, as I understand it, there is no contest and it is accepted that that area should be transferred to the Port Authority and there is no reason to suppose that it is going to lead to any unreasonable extra expense, and you have heard about that.
579. So far as agreements are concerned, the original point raised by Mr Williams was that the new clause 38 to enter into agreements went too far and that does not seem to be pursued today. The Committee has heard evidence that it will be used for agreements with the Environment Agency and British Waterways on various matters of pooling administrative arrangements.
580. So far as the other matter over agreements is concerned, it is absolutely commonplace in the case of Private Bills to have side agreements. What is unusual here is the transparency which we have produced and with which Parliament was able to debate it because there were references made in the second reading debate to the agreement with the yachting and marine bodies and we have placed that lead agreement before the Committee, so there cannot be any accusation of a lack of transparency here. To describe that as a contempt of Parliament is to go far beyond what is appropriate. That being said, it is entirely a matter for the Committee to decide whether there are any provisions in that agreement which they think should be added to the clauses of the Bill, and it is a matter entirely for you that there be no contempt or nothing disreputable in any of what has been done. All that has been done is to give assurances, binding assurances, to two very responsible bodies as to how powers will be exercised.
581. So far as the next line is concerned, pleasure boat licences, it is my understanding now that all that is said is, "Well, wouldn't it perhaps be better if the six district councils did the licensing?", but it is difficult to see why that should be preferable to the Broads Authority itself doing the licensing of pleasure boats, particularly since all the six district councils have agreed that that is an appropriate course and that, therefore, means that these hired-out pleasure craft, which make up a substantial number on the Broads, will be subject to a regime which has applied ever since 1907, but which the Broads Authority itself has not had a power itself to administer. That will be a sensible matter and I do not think that there is really very much objection to that.
582. So far as the navigation account is concerned, no one is contending that there is really a case for having the separate account and it is rather odd if you have a separate account as under the 1988 Act because it means that the general account does not include navigation, so you have the general account which does not have navigation and for navigation you would in effect have to produce a third set of accounts which shows what happens when you put the two of them together. What is proposed in future is that you simply have the one set of accounts, but you have an annual report which shows how the navigation income and expenditure has been dealt with and a provision to safeguard boat-owners that every penny which comes in through their tolls and charges for navigation will be spent on navigation purposes. We ask for the provision to have those words "not less" rather than "equal" so that if there is any other money which becomes available for use on navigation, it can be used as well. That, happily, is one of the matters in respect of which we and the Petitioners seem to see the same way.
583. So far as the power to close waterways is concerned, that, I think, has gone now as an issue. There has always been a limited power to close the waterways in certain circumstances under the 1988 Act and, although they are made slightly more extensive in the case of some recreational activities under this Bill, there is also a provision in the Filled-up Bill to ensure that at all times there will be a path left for vessels to sail through, which was the concern of Mr Howes.
584. Sir, those are my submissions. We would contend that the case for the Bill has been made and that none of the Petitioners' points, interesting as they were, should prevail.
585. CHAIRMAN: Thank you, Mr George.
586. MR CRABB: I would like to ask you a couple of questions about clauses 4 and 6 of the Bill. You have presented a draft Statutory Instrument to the Committee and in your remarks about that draft SI, you either said or certainly implied that it had been through all the stages and was effectively waiting to be signed off by the Minister.
587. MR GEORGE: It is at the stage where there is not going to be a further hearing or anything about it, but the Secretary of State has got observations which various people have put in and he has got to consider them and decide whether the provisions are appropriate. That is why I cannot say that the Secretary of State will make it in this form, but I merely use it as an indication of what in Poole they are seeking.
588. MR CRABB: That clarification is helpful. If we accept, for the moment, that this is evidence of a growing interest, perhaps, among harbour and port authorities to use general directions and special directions, are you aware that the trust port of Poole (?) is engaged in discussions with any non-statutory bodies to come to some legal agreement to modify the operation and the implementation of the provisions?
589. MR GEORGE: My instructing agent nods and says yes, he does know that they are in negotiations, but I am not in a position to tell you what agreements there have been entered into.
590. MR CRABB: Is it the case and should the Committee be aware that alongside a growing trend towards using special directions and general directions there is a trend for using binding legal agreements between ports and non-statutory bodies?
591. MR GEORGE: Not, I think, particularly to ports. It has always been a feature of private legislation (which includes Private Bills promoted, for instance, by - it used to be British Railway and nowadays it will be other organisations) that if people petition against the Bill, if it is possible to enter into a legal agreement with them which resolves their concern by explaining or doing a thing in a particular way, that is how it has been dealt with. There is nothing new about that; that goes right back to the last century.
592. MR CRABB: Given that Mrs Wakelin yesterday signalled pretty strong interest in reopening the legal agreement and, perhaps, modifying it further down the line, what weight should we attach to that legal agreement?
593. MR GEORGE: All she was saying is that in discussions it appears that it was recognised that there might be a case to review the position of hired pleasure craft, in which case she believed that an agreement to apply the general directions to them might be forthcoming. It goes no further than that matter. We are seeking the power which is set out in the Bill that having told Parliament that unless the most responsible bodies, the most involved bodies, which are the parties to that agreement, concur we will not use those very limited provisions of the general directions - those three categories in the case of pleasure craft. That is the position.
594. MR CRABB: Would it not just be so much clearer and simpler if the Authority and the interested parties just worked out exactly how they wanted the powers to apply to which category of pleasure craft and have that written on the face of the Bill rather than what I would regard as a slightly unclear and complex ----
595. MR GEORGE: Plainly, you will have read the agreement. There were certain provisions which the associations felt should be in the Bill (that is the first part), and they particularly require us, the Promoters, to bring forward changes, and that has been done. There were other matters which they felt were perfectly satisfactory to deal with in the way it has been dealt with, and that is how it has been done. It is not that they were unaware they could actually seek an amendment to the text, because they did in respect of certain provisions. For the sake of these provisions they thought it better to leave the matter flexible but it is still subject to their agreement; if they do not agree and we were to do it they could go to court and seek an injunction against us. At second reading there was a misunderstanding because one member said he was not sure whether the legal agreement was binding. The legal agreement is a legal agreement and that means it is binding.
596. CHAIRMAN: Thank you very much, Mr George. We now come to the departmental report. We have, to assist us, Kim Gunningham, Peter Crockford and John Kilner. Mr Kilner, would you like to take us through the report?
597. MR KILNER: Yes, sir. Defra, the Department for Environment, Food and Rural Affairs, is the Government Department which covers most of the areas with which the Broads Authority deals. We are not, by any means, the only government department. For example, it was pointed out yesterday that the Broads Authority is a harbour authority and so deals with the Department for Transport and it would also have dealings with a range of other government departments, but we have, I think, the largest single interest. In particular, we deal with the Authority as an authority, so it is Defra who makes the government appointments, pays the largest amount of government grant and deals with issues to do with the statutory framework which controls how the Authority operates. That is why this report is in the name of our Secretary of State but it has been drawn up in consultation with the Department for Transport, who are content and have nothing to add to it.
598. We have based our report on the deposited Bill. Obviously, there have been changes since then but we thought it important to base it on that version because, of course, the Committee may not accept the changes that have been put forward in the Filled Bill. If you do not accept those changes or you make other changes then it may be that that has a knock-on effect on the side agreements. So in order to present the whole story we have left in the report all the comments we had on the deposited Bill, but we have followed this convention of putting in italics the points which would be dealt with if you accept the changes in the Filled Bill or have been dealt with in side agreements, and it is only the non-italicised parts which are, if you like, still live.
599. Our general position is to support the aims of the Bill. The Government made that very clear at a very early stage. So we are supportive of what the Bill seeks to do. Against that background, we have made two fundamental objections. One of those is on the question of the name, and that clause is now withdrawn in the Filled Bill, so our only remaining objection of principle is on the funding of navigation, and we can describe that in more detail later. The rest of our comments are offered very much in the spirit of trying to improve the legislation on drafting comments or comments about the way of achieving things. We have used rather diffident language in putting those forward, but I think, essentially, what we are saying is that if this were a Public Bill the Government was bringing to Parliament this is how we would go about achieving what the Bill wants to achieve. I think that is the background to our report.
600. Would you like us to go through ---
601. CHAIRMAN: Yes, please. The italicised ones, because they are not a matter of residual dispute, can be ----
602. MR KILNER: We can leave aside.
603. CHAIRMAN: The normal type ones which remain a problem or there are objections or comments which the Filled Bill does not answer - we can spend more time on those.
604. MS GUNNINGHAM: The Department is content with the adjacent waters provisions being included. We accept the Authority's point that it is understandable that people, wherever they are within the Broads area, should expect similar standards to apply, and with the safeguards that have been put in place we support the inclusion of the adjacent areas provisions.
605. CHAIRMAN: Any questions from colleagues on the adjacent waters? No. Clause 4(3) then.
606. MR CROCKFORD: I was going to speak on this one. As we have heard, there has been a suggestion that the proposed limitation of the general directions power by way of the side agreements that they will not apply to certain categories of vessels or certain classes of direction will not apply, we have made the point that ideally we would prefer to see such clear exclusions of a certain class of direction applying to certain types of vessels. We would prefer to see that on the Bill. As my colleague, Mr Kilner, said, if we were doing it we would endeavour to have as much of the legal provision appearing on the face of the Bill, whilst I accept what Dr Packman said about not being too rigid and what Mr George has said about it not being appropriate for everything in these side agreements to be included on the face of the Bill. We think that where you are actually dis-applying whole provisions for whole classes of vessels we are talking about pleasure craft, which we understand to be a category that covers the vast majority of vessels in the Broads, then ideally we would prefer to see those exclusions put on the face of the Bill.
607. CHAIRMAN: Questions from colleagues? Clause 11(2) relating to byelaws for registration of vessels - the italicised one, which is not a question of contention.
608. MS GUNNINGHAM: Again, the Department is content with this one. There was mentioned earlier there is a general move away from the use of byelaws in certain circumstances by some government departments. Using byelaws, as already mentioned, I believe, would result in more changes having to go to the Department for Transport for consideration under byelaws procedures, and the Government is satisfied with these provisions, given the safeguards that are in place.
609. CHAIRMAN: Thank you very much for that. Moving on to an area where there was substantial discussion from the Petitioners, clause 12(1) and (2), page 10, lines 18 to 26, construction and equipment standards, there was reference to that in the Petitioners' evidence.
610. MR CROCKFORD: This was an area where we had concern that boat owners who were not members of a boating organisation might not be consulted where the original provisions said that the Authority would be under a duty to consult such bodies representing the boating interests ----
611. CHAIRMAN: That was raised by Mr Howes.
612. MR CROCKFORD: Mr George, in his re-examination, pointed out that this has now been dealt with by a provision in the Filled Bill requiring the Authority to publish a notice in a local newspaper where they are proposing to depart from the national scheme. So we are content.
613. CHAIRMAN: Is it your experience that consultation can satisfactorily be carried out by notices in newspapers? Sometimes that may not seem to be an adequate way of handling it.
614. MR CROCKFORD: It is the normal way of doing it.
615. CHAIRMAN: It is the normal way, but there are other ---
616. MR CROCKFORD: There could be. The alternative would be to require the Authority to consult every registered owner, and the question is whether that would be onerous to do so.
617. CHAIRMAN: Do you know if the Authority has a website?
618. MS GUNNINGHAM: I should add, the provision also makes clear, section 1(1)(a)(b) on the revised page one actually says "and on the Authority's website". So it does actually include the provision that not only is it in a newspaper circulated in the area but it is on the website as well.
619. CHAIRMAN: As far as you know, it solicits comments from the general public. Another italicised section, clause 13(3)(b), standards appeals panel.
620. MR CROCKFORD: Yes, a purely technical amendment that we sought to make clear there was a cross-reference. That has now been included in the Filled Bill so we have no outstanding issue there.
621. CHAIRMAN: Questions from colleagues? Clause 16, pages 11 to 12, lines 38 to 37, Entry on and inspection of vessels. Another italicised section, no longer contentious.
622. MR CROCKFORD: We are content, yes.
623. CHAIRMAN: One that remains a problem for the Department, clause 16(8), page 12, lines 30 to 33, entry on and inspection of vessels.
624. MR CROCKFORD: We do still have some outstanding concerns here, although I should stress that they are indeed minor ones. Mr George rightly pointed out that in legal interpretation the plural includes the singular, so when reference is made to not complying with "a standard" or "standards", whichever way it were worded, a failure to comply with an individual standard would suffice as a breach. However, again, if the Department were drafting it I think our preference would be to have it expressed in the singular so that it was clear to the non-legally trained reader that breach of an individual standard is sufficient to bring enforcement.
625. CHAIRMAN: You say in your letter: "However, the change from 'standard' to 'standards' is also proposed as is the removal of 'it is established that the vessel' neither of which we think is helpful". Is it those two suggested changes that are the core of your continuing concern, and if those two are not there then this will become, as it were, an italicised paragraph?
626. MR CROCKFORD: Correct. I just refer to the first one, which is about whether you have a "standard" or "standards". We would prefer "standard" but even if it were "standards" legally there would be no difference. The second point: I think Mr George put it to Dr Packman that it was unnecessary wording and he would not support the inclusion of unnecessary wording, but I would suggest that talking about the Authority enforcing against vessels which do not materially comply with the standard or standards, again, from a government draftsman point of view, we would prefer to have a procedural step; a determination that fixes in time a point at which the Authority forms that view that there has been a material non-compliance. So taking out the words "It is established that", we feel, is unhelpful. My own personal suggestion would be where the Filled Bill includes the word "which", if we simply change it to "which it determines" (?), and there you have the Authority determining in its own mind as a public body making a decision that at that point there has been a material non-compliance. At that point the boat owner then has the right to go to the standards appeal panel with its right of appeal. So you have got a procedural step at which things then start to happen. Those words do have that role to play, and that is why we would prefer to see them included.
627. CHAIRMAN: Thank you. The next two are italicised paragraphs, the meaning of "unsafe vessels" and powers as to unsafe vessels, etc. They remain not a problem. Now on to the one that Defra was dealing with, the removal of unsafe vessels. Clause 19(2), page 13, page 4 of your letter.
628. MR CROCKFORD: Yes. We think this one is self-explanatory and if the Department were doing it we would think that it were appropriate if the public authority made a mistake in declaring something unsafe and had taken action to remove that property to relocate it if they were found to have acted inappropriately that compensation that would be payable should include not just any loss or damage in terms of damage to the vessel but, also, the relocation expenses.
629. CHAIRMAN: So if the amendment incorporated reference to, for instance, "on the offender's premises (?), this would turn into an italicised paragraph?
630. MR CROCKFORD: Indeed, yes.
631. CHAIRMAN: The next one is italicised again. Request for information as to vessels. Clause 22, notices requiring information from masters and owners, etc, as to vessels. You are suggesting this is an unnecessary change?
632. MR CROCKFORD: We think this wording is unnecessary because there is a reasonable excuse defence, but we merely note that. We are not going to quibble if they want to leave it in.
633. CHAIRMAN: So it remains a problem but not a major one.
634. MR CROCKFORD: Indeed.
635. CHAIRMAN: The next one: notices requiring information from landowners, etc, as to vessels. That is italicised, which leads us on to the top of page 5.
636. MR CROCKFORD: That has been dealt with, I understand.
637. CHAIRMAN: Similarly, clause 23(2), noting the Authority has entered into agreements, suggesting it will not apply this provision. Clause 23(3), the next paragraph - my colleagues, I am sure, will stop me if they think it necessary - the Department notes that the Authority has entered into agreements suggesting it proposes to seek changes to the effect ... etc. Do you have anything to add to that?
638. MR CROCKFORD: No.
639. CHAIRMAN: The next one, entry on land, clause 24. You are suggesting there may indeed be a case for us to consider changing the provision so that it does not apply to such vessels - i.e. vessels which are ashore.
640. MR CROCKFORD: This has now been done in the latest version of the Filled Bill. This one will now be in italics.
641. CHAIRMAN: This has been addressed, from your point of view. Licensing of rescue boats. You wonder how far advice and training might achieve that goal, without needing to resort to regulation and licensing.
642. MR KILNER: This is not an issue on which we have any first-hand knowledge; we simply have the description from the Authority which the Committee heard yesterday, but given that description we wonder whether advice and training, if you like, taking the carrot approach is not rather better than going for the stick of regulation, given that people who are offering themselves as rescue boats, presumably, are well-disposed and are trying to be helpful, that we should build on that rather than going for regulation.
643. JAMES DUDDRIDGE: Just to confirm, that having heard the evidence from yesterday, you are still ----
644. MR KILNER: That still remains our view, yes.
645. JAMES DUDDRIDGE: Is that a strong opinion?
646. MR KILNER: I think we have to bow to the Broads Authority's judgment because they are dealing with the affected volunteers directly. So I think we have to bow to their judgment on what will work, but it is, of course, government policy, and has been of all recent governments, to minimise regulation and remove regulation where possible. So it would be our fairly firm recommendation that we should look at every other avenue first before we go for regulation.
647. CHAIRMAN: Thank you very much. The one at the bottom of page 5, relating to water skiing or wake boarding. I did not know what that was until yesterday, but now I do. The Department says it will consult such people "likely to be affected by the resolution" rather than "significantly affected by the resolution".
648. MR CROCKFORD: Dr Packman explained that he thought it would make it unclear to widen this to amend the word "significantly", but we understand that the number of residential properties involved is likely to be very few. The view we took was that part of the purpose of the consultation with these property owners would be to find out how they might be affected. If you restricted the obligation to consult to only those to whom it was considered likely to be significantly affected, that would preclude you from receiving evidence from people who might be marginal but who might then make the case as to how significant that effect on them would be. So, given that there is only a small number of properties involved we thought it would be more appropriate to have it as a duty to consult those likely to be affected, and then on the basis of their responses one could determine how significantly affected they could be and you can decide whether it is appropriate to permit or not to permit.
649. CHAIRMAN: If "significantly" was not deleted are you saying that that would be a problem for the Department?
650. MR CROCKFORD: It would not be a problem but we would prefer to see "significantly affected" if we were doing it, and that is the way we would do it.
651. CHAIRMAN: Over the page to 6, Breydon Water and Lower Bure. The Bill has now tackled that problem, so nothing outstanding. The next one is clause 36(5) and (7), is really an observation, I think. Clause 40, Water Resources Act 1991, you are noting the agreements and noting the draft Filled Bill proposes this solution, but you suggest that the new section in the 1988 Act needs to be omitted and the draft Filled Bill will propose that, so that is fine. Now on to the middle of the penultimate page, clause 41(3), removal of vegetation. Is that self-explanatory?
652. MR CROCKFORD: It is, and the wording that we suggested has now been incorporated into the latest version of the Filled Bill, so we have no further outstanding issue on that.
653. CHAIRMAN: That is resolved now.
654. MR CROCKFORD: It is.
655. CHAIRMAN: Clause 42, application of requirements of Public Health Acts Amendment Act 1907. You sought elucidation as to what is intended and think it could perhaps be made clearer.
656. MR CROCKFORD: Indeed, and it has now been made clearer by an amendment in the latest version of the Filled Bill, including a new clause 42(i). So we are content.
657. CHAIRMAN: At the bottom of page 6, Schedule 6, the numbering of the paragraph needing realignment, and then Schedule 6, amendments to the Norfolk and Suffolk Broads Act 1988. Mr Kilner.
658. MR KILNER: That is me. I am afraid that needs a slightly longer explanation. This is the finance point. The position is that for most of its life there has been almost total separation between navigation funding and non-navigation funding. There were, if you like, two sealed systems in which navigation income was raised, primarily, from tolls but also from other sources and spent on navigation. Alongside that was an almost entirely sealed system which paid for, if you like, the national park purposes of the Authority, and was funded from other sources, primarily government grant. For the three-year period which ends next March the Government has been making some contribution towards navigation. So there has been, if you like, a slight departure over the last few years.
659. The Government's policy is that it does not think it should routinely contribute towards navigation costs in the Broads, and it does not intend to do so after next March in the immediate future, which, I think, practically, means over the three years of the Comprehensive Spending Review. So that is Defra's position on funding. Out of that then comes the question of what the Bill should say and whether we should retain the clarity of the 1988 Act which had this completely, or almost completely, sealed system between navigation and other funding, or whether we should go for the slightly more amorphous wording that the Broads Authority wants. We prefer to keep the distinction in the 1988 Act and we think there are three main reasons why we prefer that. The first one is that it actually keeps all the options open because the Government could fund navigation under other powers, so it does not preclude the possibility of funding navigation in future; it simply retains the clarity of this piece of legislation.
660. The second reason that we would prefer to keep the status quo in legislation is because, as was explained yesterday, the Broads has very much a dual role: it is fulfilling both the role of a national park authority and an inland waterways authority, and we think it is useful to keep that clarification in the Act by maintaining a separation in finance. The other suggestion we offered, which was to clarify that dredging is not an act of navigation (?) and that dredging might be carried out for conservation, was all part of that clarification. So we think when you are undertaking dredging it ought to be possible to be quite clear why you are doing it and to say, for example, that you are removing pollutants from the waterway to improve water quality, but that you were also deepening the channel for the sake of navigation. We think it should be possible to specify that difference.
661. The third and final reason is that we see the 1988 Act as having struck, if you like, a contract or balance between navigation and non-navigation. This Bill is largely about improving safety and making some streamlining and efficiency gains, but we think it is going a step further to actually challenge the basic contract, if you like, in the 1988 Act, which was, as I have said, to keep navigation separate from non-navigation. So that is why we have proposed the change we have, which would have the effect of maintaining this almost total separation between the two sides of the Authority's activity.
662. CHAIRMAN: Are there, Mr Kilner, unresolved matters which prevent the Department's support in relation to this general ----
663. MR KILNER: If the Bill went through as drafted, Defra could, as has been pointed out, still choose to fund navigation or not to fund navigation. So in that sense it is not crucial. However, we are saying that we would prefer to keep the clarity in the Bill.
664. CHAIRMAN: So these are not essential for support.
665. MR KILNER: It is the view of both the new Minister and his predecessor that he thinks it is preferable for the legislation to remain in the way we have asked for it to be amended.
666. CHAIRMAN: We can move on to see if we can complete this. The penultimate paragraph. Was that manuscript change correct from your point of view?
667. MS GUNNINGHAM: Just the number.
668. CHAIRMAN: The final paragraph, an italicised paragraph, you wanted the clause there omitted.
669. MR KILNER: That is the main point, and I think the Filled Bill does remove it.
670. CHAIRMAN: Is that resolved or not?
671. MR KILNER: It is.
The Committee suspended from 3.09 pm to 3.25 pm for a division in the House
672. CHAIRMAN: The Committee will now resume its consideration. I think, Mr Crockford, you wanted to make one brief correction before I declare the close of the formal hearing. Clause 24, page 17, 18, Entry on Land, page five of your letter.
673. MR CROCKFORD: Yes, thank you, Chairman. I am grateful to Mr George for pointing out in the recess where we referred in respect of this Clause 24 to now being contemporary because a suitable amendment has been made in the latest version of the Filled Bill. Mr George has pointed out that the amendment we thought had been made to Clause 24 in fact refers to Clause 23, so our concern about Clause 24 remains.
674. CHAIRMAN: As a fatal one?
675. MR CROCKFORD: Not as a fatal one.
676. CHAIRMAN: But as a desirable change?
677. MR CROCKFORD: Indeed.
678. CHAIRMAN: Thank you. That concludes the hearing. Do not necessarily go away from the precinct, but the Committee will now withdraw to consider the evidence and we hope to announce our conclusions depending on pending discussion later today, but I cannot be certain of that.
679. MR GEORGE: Before you adjourn, could I correct something I said, that there were six authorities with four leaders among the constituents. There are, in fact, eight authorities if you include the two county councils, and the four are what are described as "lead members" rather than leaders of the council. I would not want to mislead.
680. CHAIRMAN: They are a member of the executive of their council not necessarily the leader?
681. MR GEORGE: That is right, correct.
682. CHAIRMAN: Thank you for that clarification. The Committee will withdraw into private session.
Counsel and Parties were directed to withdraw and after a short time were called back in.
683. CHAIRMAN: The Committee's conclusions are that the Bill be allowed to proceed, with four distinct caveats which I am going to announce now.
684. Clause 25 - we believe the case for clause 25 in relation to licensing of rescue boats has not been made and we therefore remove it from the Bill.
685. The second caveat, the Defra report on the Bill - all residual items which are described by colleagues as desirable must be incorporated into the Bill, in other words the recommendations must be observed and the Authority must bring about the changes to reflect that.
686. Thirdly, tab 4 of the document here which related to the BMF/RYA agreement - we believe that the legal weight of that agreement after any Act might reach the statute book is questionable and therefore the signatories should reflect on their position at this point.
687. And fourthly a more general point, the Committee were concerned to hear of the difficulties in terms of trust and consultation in the lead-up to this Bill and at other times and we shall be reporting to the Commons in a separate report suggesting perhaps that the way in which the Broads Authority is constructed and elected could be examined to see if there are lessons to be learned from, for instance, the national parks and authorities north of the border where there is a more modern and accountable structure in place, so we are wanting the Government to have a look at that on our behalf.
688. We will formally prove the preamble in just a moment but what will happen now is that this will go back into the House of Commons for final consideration on third reading. We have no idea when that might be - it may be before the recess, it may be after the recess in October - and then it will go to the House of Lords in the normal way and there will an opportunity at that point for Petitioners to sustain their objections or make entirely new ones if they so wish.
689. The final matter for us is the formal proving of the preamble.
690. MR GEORGE: Sir, just before we proceed on that, could I just ask for some clarification on item three. You have asked the parties to reflect on the legal agreement but am I correct in understanding that is something you are merely asking them to reflect on, you are not suggesting that there should be any change?
691. CHAIRMAN: Yes, it is not directed at the admissibility or desirability of the Bill at all. We are just suggesting that the signatories to that agreement ought to reflect on their new position after any Act hits the statute book.
692. MR GEORGE: Sir, the only other matter I had is you of course will be making your report on consultation.
693. CHAIRMAN: Consultation and indeed the whole democratic ethos surrounding the Broads Authority.
694. MR GEORGE: I say nothing about the democratic ethos, but on the consultation, you have heard about the very extensive consultation, and perhaps you would make it clear in what respect there was inadequate consultation because the measure of consultation was far in excess of that which is normal to have consultation on two versions of the draft Bill. It would be helpful if in your report you would explain that matter.
695. CHAIRMAN: Yes, the Committee heard evidence and it will report in due course in rather more detail than the fairly concise observations I made a moment or two ago. Formal proving of the preamble. Mr Packman has already been sworn. Counsel and Mr Packman to prove the preamble.
DR JOHN PACKMAN, recalled
Further examined by MR GEORGE
696. MR GEORGE: You have already been sworn. You are the Chief Executive of the Authority. Have you read the contents of the preamble?
(Dr Packman) I have.
697. Are they true?
(Dr Packman) They are.
The Witness Withdrew
698. CHAIRMAN: That proves the preamble. Thank you very much and thank you for the evidence that people gave to us yesterday and today, to the Petitioners who have put a great deal of effort into their observations on this Bill, to those representing the Authority, the legal representatives, to my three colleagues from the House who have found the time from an action-packed Tuesday and Wednesday to take part in this important process. I thank you all, and those who observed at the rear as well. I now conclude the session of this Committee.