Public Bodies Bill

Memorandum submitted by Nigel Moore on behalf of Brentford Community Council (PB 01)

Summary

The British Waterways Board has responsibility for the management and control of a hugely significant national asset and a degree of power over the many thousands of British nationals and overseas visitors that enjoy its amenity.

The history of the organisation throughout its several forms has been one of seeking ever-increasing powers to abolish public and private rights wholesale, while seeking ever wider powers to criminalise activities on and surrounding the canal network - only the ever-vigilant scrutiny of Parliament has hitherto contained these ambitions within reasonable bounds.

Removal of the organisation from even the present nominal government oversight, while permitting them to retain legislative and other powers that will infringe the ordinary rights of the people, will inevitably result in a self-aggrandising and draconian body with greater freedom than ever before to trample on and curtail the human rights of ordinary boaters and live-aboards, and to criminalise every healthy social activity associated with the waterways that does not have their written consent.

This curtailment of the public rights should never be placed into the hands of anything other than a public body subject to public scrutiny and judicial review, with secondary legislative powers subject to governmental approval after public consultation.

If British Waterways are to be removed from the public sector, then they must be stripped of powers that properly belong only to a public [and accountable] body.

1. My name is Nigel Moore; I have been chair of the Brentford Waterways Forum for the last 9 years; was formerly an elected Stakeholder Representative on the London Mayor’s Thames & Waterways Stakeholders Forum and as such sat on the Thames & Waterways Steering Group responsible for the "Blue Ribbon Network Policies" of the London Plan; as such I was also a member of the Parliamentary Waterways Group and was active for several years as a witness in support of several of Hounslow Council’s waterside planning decisions at appeals; gave presentations on waterways to the Council’s local Area Planning Committee; made submissions to the last Select Committee Report on British Waterways, and contributed to the Mayor’s later Review of the Blue Ribbon Network policies.

2. I am currently the Waterways Advisor to the long-standing Brentford Community Council, which was established by London Borough of Hounslow in 1989, and whilst now a fully independent body, continues to advise the Council on all planning applications affecting the local community.

3. Further to this, for the past four years in a personal capacity I have been engaged in historic litigation with British Waterways as to the limitations to their current powers and the accountability of Board officers for the conduct of the Board. This case, referenced in Halsbury’s Laws of England, commenced in 2007, with the main trial set down for the first week in November at the Royal Courts of Justice.

4. Brentford Community Council’s concerns are twofold: firstly with the effect of a transfer of navigational bodies out from the public sector, and secondly [should the government nonetheless continue with the project], with the proposal to transfer legislative powers to the replacement bodies.

INCLUSION OF BRITISH WATERWAYS IN THE PUBLIC BODIES BILL

5. The initial rationale for the government decision to abolish quangos was stated to be the laudable one of lessening the burden on the public exchequer. In the first place, however, we cannot consider that British Waterways as an institution are an acceptable target for such a cost-cutting exercise; it has always been recognised that the financial contribution of the waterways to the national exchequer through its attraction for tourism is considerable. This wider financial benefit to society is only possible for BWB to access through a grant mechanism. Is only proper therefore that a proportion of such national contribution be returned into maintenance of such a – generally - profitable national asset.

6. The government should have instead targeted the overblown salaries and bonuses of the institution’s management, which, while also a stated general objective government, has not, in BWB’s case, been implemented.

7. The failure to introduce cuts where those would be simplest and most effective [in a streamlining of BWB’s top-heavy management] is to be much regretted. It makes a mockery of the government’s central rationale; no cost cutting where it benefits the waterways has been considered, only cuts where the nation’s interests are damaged.

8. There is considerable alarm at the effect of transferred ownership of the operational segments of the property portfolio. This is not simply a matter of investment; it is tied into much of the claimed powers of control that BWB assert.

9. A further alarm is that the current management of BWB, as a matter of government choice, are biased towards increasing reliance on development of a property portfolio and development, to the detriment of operational priorities. The result has been a roller-coaster financial ride, accompanied by ever declining maintenance. The removal from the public sector with even the minimal/nominal oversight of government, can only exacerbate that detrimental situation.

10. The ills attending the management of British Waterways have been very largely due to the calibre and motivation of the management and Board. The change in structure will not address this specific problem; it therefore risks only encouraging a greater freedom for them to exploit the national asset for personal aggrandisement and profit.

11. The increasing friction and legal disputation between the Board and boaters arises largely from actions taken by BWB employees and management, who have been encouraged by the historic lack of all personal accountability to the public they are ostensibly there to serve. Shakespeare’s "insolence of office" was always apparent in waterways management even prior to nationalisation; years of practical insulation from personal responsibility have instilled an institutional confidence in their invulnerability to prosecution. This feeling, with its practical repercussions, will intensify in the event of further removing the institution from even nominal oversight.

12. Of equal cause for dismay is the vision of a BWB continuing to enjoy their present draconian powers [let alone those that they wish to introduce], while becoming relieved from the normal susceptibility of a public body to Judicial Review, that ordinarily acts as a sanction for the public against wilful abuse of powers and inappropriate decision making.

13. In a similar vein it will be a serious distancing of BWB from essential public scrutiny if they are ever permitted to attain non-public body status in regards to the Freedom of Information Act. This Act has slowly become a vital first line of inquiry by ordinary members of the public into potential abuses in conduct and financial dealings, quite part from being a measure than helps to ensure a measure of awareness of some degree of accountability in any public body.

TRANSFER OF LEGISLATIVE POWERS AS AMENDMENT 99A

14. Amendment 99A relating to Schedule 5 of the Public Bodies Bill operates to exempt the successors to British Waterways and the Environment Agency from the wise general exclusion of any transfer of legislative powers. We endorse the findings of the Lords’ Select Committee Report published 8 March 2011 to the effect that ". . . it is not appropriate for an existing power to make subordinate legislation to be transferable to another, unidentified, body. This renders the powers in clause 5 in relation to these bodies especially inappropriate. The Committee draws the attention of the House to amendment 99A."

15. We would wish the Committee to consider how such concern of the Lord’s Select Committee is demonstrated to be historically justifiable in the context of the experience set out in our submission.

16. It is a matter of historical record that British Waterways have always sought to promote legislation that Parliament has consistently found excessive and draconian. The relevant Select Committee Minutes of Evidence from 1970 onwards contain the explicit recognition of this fact, and demonstrate the essential role that Parliamentary scrutiny has played in ensuring fairer Acts that operated to protect the members of the public from – not only the then current management, but – future, unknown exercisers of the powers granted by Parliament.

17. The most recent major legislation promoted by British Waterways was so contentious that it took nearly 5 years for the resultant [much altered] Bill to pass as the 1995 Act. The content of both Hansard Debates and Minutes of Evidence echo the current concerns of the March 2011 Select Committee Report.

18. On 17th May 1993 Mr Cryer drew the attention of Parliament to an element of the proposed 1990 British Waters Bill that involved a power to remove and substitute legislation concerning houseboats "as they think fit". He said "That means that the House of Commons . . . is giving the BWB power to alter all of schedule 1, which is a considerable part of the Bill running over two and a half pages of close text. The BWB, a quango, can remove from primary legislation all that text because the House of Commons will have given it that power. I do not accept that proposal." "I would not give Ministers the right to change primary legislation. All too often, the Government introduce what are called Henry VIII clauses because he cut off the heads of his wives and Ministers are given the opportunity to cut off parts of Acts. I do not think that such powers should be handed to Ministers, so I certainly do not think an outside body should be given the power to remove sections of legislation that this House has considered and which imposes conditions that we think reasonable. If we decide to pass legislation on a vote, we should not put it into the hands of an outside body the power to remove sections of it. I am in favour of public bodies, but the truth is that canal users mistrust British Waterways."

19. It is a matter of public record that Parliament agreed with those sentiments, as the section referred to did not survive the passage into the final Act. It is appropriate that the present committee take cognisance of the above sentiment, especially in view of the exacerbated situation where it is proposed to move BWB out from even being a quango.

20. Even more topical was the response, some months later, of the Chairman [Mr George Mudie] to the Commons Select Committee on the 1990 Bill on 1st July 1993. Mr Mudie was reiterating the Committee’s long-running objection to BWB’s desire to criminalise failure to comply with all the new clauses on moorings that they wished to introduce in the Bill.

21. BWB’s QC [Mr Drabble] suggested that the Board had no intention of leaning on such powers; he agreed that "We seek to have a criminal offence, that is right. You make it sound as if we are going to go to court every time a boat is moored, which is an obstruction, which is plainly not the Board’s intention."

22. It is the Chairman’s response that remains relevant today: "But you will accept that – my colleague said that to Mr Dodd I think – it is not you we are worried about, or the present enlightened Board, but it is their successor who we do not know. They may all be Labour appointees!" [Ed. - my underlining.]

23. It is significant that the relevant clauses for control of the mooring of boats, likewise did not survive passage into the 1995 Act.

24. Particularly pertinent to the question of powers to create secondary legislation is the content of the present new Draft Byelaws that have been prepared by British Waterways and which are "waiting in the wings" as it were, pending any decision on the Public Bodies Bill.

25. It is remarkable that the very clauses regarding control of the mooring of boats as introduced in the 1990 Bill, which did not survive Parliamentary scrutiny, have been transposed word for word into these new draft Byelaws. If, therefore, BWB’s successor [complete with current management] has powers to create such Byelaws, we know that they will criminalise mooring infringements of their design directly contrary to the express and re-iterated will of Parliament throughout the lengthy and tortured passage of the 1990 Bill.

26. It would repay the committee to examine the Draft new Byelaws drawn up by BWB. Should the present committee approve the inclusion of BWB in the Public Bodies Bill, especially with amendment 99A in force, then it must recognise that the resulting foregone conclusion will be the introduction of a wide range of criminal offences; not only those that were previously found by Parliament to have been objectionable, but which will extend far beyond boating control to include every conceivable activity associated with the canals.

27. It is a fundamental tenet of British law that where Parliament has ratified rights of the public, only the express will of Parliament can take that right away. The proposed amendment would result in the powers to take such rights away being handed over to unaccountable individuals with a track record of neglecting the public interest and the will of Parliament.

September 2011