WHY BW/CART LOST THE SECTION 8 CASE
I’ve simplified the title because the Appeal judgement cannot be understood in isolation, and
it is the history of the proceedings that gives rise to the end result. There were THREE
successive judgements in the case – 1st on preliminary issues, where BW lost the argument
for abolition of the Public Right of Navigation; 2nd the main trial, where BW [contrary to
their press-release claim that they won on all issues] lost the new primary argument that
licences were needed anyway, and finally, 3rd, the Appellate decision disposed of the
secondary argument, which Mr Justice Hildyard had agreed with, that s.8 could apply simply
because BW withheld permission. So ALL judgements in turn, contributed to BW/CART’s
eventual failure.
The immediate trite answer to the title’s question could then be – because they were wrong.
But that is scarcely the whole answer. Unfortunately, right or wrong does not always enter
into the judicial picture; other factors are at work that have: to do with the direction in which
the court wishes to see the law progress; to do with personal and governmental bias, and
especially to do with a weighty presumption that no-one is better qualified to expound the
waterways law than the appropriate waterways authority.
No less an authority than the recently deceased Lord Bingham – the only judge ever to have
held all 3 of the top judicial jobs in this country – observed ruefully that the growing breadth
and complexities of law has meant that often judges are reliant on the competing counsel in
some cases, to inform them of what the law actually says. In such circumstances, achieving
any “equality of arms” for humble litigants in person is problematic; perhaps no less so than
for those who can hire a professional, but cannot afford the top QC’s to rival the opposition
legal teams, hired by the bottomless-pit-funded national organisations.
To put this in perspective, you must realise that other boaters on this identical section of
waterways, in an identical situation, have gone to court on identical arguments only a few
years previously, - and have calamitously and wrongly lost.
So an alternative answer could be – just lucky. Of course, to profit from the luck I had to be,
as Mr Justice Hildyard claimed: “stubborn and relentless”, but nonetheless, it is horrifying to
recall just how serendipitous things were, how dependant upon the whims and miscalculations
of the opposing side – and at various moments it was a very near disaster just because of
technical manoeuverings with the courts as much as with BW. At every step, I would win my
argued issue, only to have the judge say it didn’t matter – BW could still do as they wished!
Then there is the third element – the self-preservatory interest of the judiciary. A High
Court judge might gloss over matters by reason of time restraints and carelessness in the
course of seeking to cut through to what they see as key elements of a case, but when they get
an elementary principle of law wrong, then the Lord Justices of Appeal [who take a dim view
of appeals anyway, because it undermines public confidence in the judiciary system whenever
a judge is found wrong], are really compelled to correct that mistake. It is because Mr Justice
Hildyard got a fundamental principle of law - underpinning the very constitution of this
country – so catastrophically wrong, that the Appeal Court recognised a need to bandage
over the ‘problem’ with all the dispatch and emphasis possible.
So those are the accumulative reasons why BW/CART lost the case. It is important for all
boaters [who might otherwise feel that this victory signals easier victories in future], to
understand and recognise each of these elements.
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The Hildyard Findings
There were two fundamental arguments presented by BW at the main trial, having previously
lost the argument first put forward by Nigel Johnson, that there were no public rights of
navigation over the relevant section of waterway. That trial on preliminary issues was a
crucial first step, disposing of Johnson’s utterly false assertions as to the applicable law – but
because it is not of universal application I won’t go into it now.
One of the remaining 2 arguments Mr Justice Hildyard found against BW, the other he found
for them.
Mr Justice Hildyard summarised the arguments as:
a) “Leading counsel for BWB clarified that “it is sufficient for [BWB’s] case that the s.8
notices in question were served . . . on the basis that the requisite “relevant consent”
they lacked was a licence”.” [para. 142]
b) “As to its own powers, BWB contends that unless the Claimant can establish a positive
right to moor (whether under the 1793 Act or otherwise) the regulatory regime
entitled it to remove any moored vessels from waters owned or managed by it” - that,
it must be noted, in the context of a boat since possessed of a boat licence.
[the 1793 Act referred to is the Grand Junction Canal Act 1793].
The dismissed argument
The first argument was an insistence that for so long as they were the statutory navigation
authority, then anything not permitted by them was, ipso facto “without lawful authority”,
such that [as the principle applied in my case] even where public rights of navigation
persisted, they were still, nonetheless, entitled to demand that a boat obtain a licence, and be
subservient to whatever terms and conditions they saw fit to impose on use of the waterway.
It boiled down to the argument that permission was needed from the statutory authority to
classify anything done on ‘their’ waterway as being with lawful authority. This discredited
legal philosophy imbues and underpins everything they seek to do and impose on boaters.
Mr Justice Hildyard rejected this argument on the available facts, more than on the principle
of law [which he overlooked]. He said, correctly, that it was contrary to the whole history of
their legislation; he wrote – “I am not persuaded by this. In particular, in my view, BWB have
never convincingly addressed or offered a coherent and consistent explanation of the fact that
the legislation has distinguished between the various types of inland waterways under its
ownership or control, and BWB's powers are differently expressed in relation to each.”
Denying BW’s argument that a boat licence was needed regardless of Public Rights of
Navigation, he therefore concluded: “no licence is legally required for a vessel bona fide used
for navigation exclusively on tidal stretches of the GUC which have not been designated as
river waterways specified in or further to the 1971 Act: the Public Right of Navigation
recognised by the 1793 Act still applies”.
[the 1971 Act referred to is the British Waterways Act 1971].
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So BW first lost the argument that boat licences were a universal requirement; they lost
because – it was simply untrue, and the judge was able to see that clearly enough. It is a
salutary lesson that: boaters should not naively believe that a thing is right because
BW/CART say so; should not naively believe that BW/CART will tell the truth about the
law, despite being in a position to know it better than anyone else.
The accepted argument
Regarding the actual over-riding argument BW succeeded on, this was identified by Mr
Justice Hildyard as: “BWB’s primary case as to the proper interpretation of the phrase
“without lawful authority” in s.8(1) of the 1983 Act”.
It was the judge’s acceptance of this argument that was overturned on appeal. He had written:
“the phrase "without lawful authority" in section 8(1) of the 1983 Act focuses on the lack of
lawful authority, not on breach of a regulation or provision regulating mooring (and
constituting a criminal offence). The gist is not contravention, but lack of authority.”
As I wrote in my appeal skeleton argument, this was not merely construing the Act so as to
counter the common law [which is forbidden to judges]; it contravenes the very foundation
principles of the constitutional underpinnings of the common law. The Appeal Court agreed.
It is to the appeal judgement that we need to turn for the disposal of that final element of
BW’s case.
The Appellate Court findings
There were any number of reasons why Mr Justice Hildyard’s judgement was wrong. I have
re-read through my 108 page set of arguments, and I can find nothing that, rightly or wrongly,
was dismissed or nullified by any findings of the Appeal Court. Mostly, of course, they didn’t
deal with them at all. Lord Justice Mummery’s closing comment at trial was that judges
couldn’t survive if they were not able to focus in on single issues. It is a matter of sheer
workload and available time.
In fact they dealt with two issues:
a) the common law riparian right, and
b) the true construction of the relevant statute.
With a) they did not deal with my arguments, they dealt with the straw-man argument which
BW and Mr Justice Hildyard had said that I needed to prove [which was that I needed to
establish a right to “permanently moor”]. So I need not go there; the Appeal Court upheld
what they proclaimed to be Mr Justice Hildyard’s findings on rights to permanently moor.
That left remaining, the pure-law argument on interpretation of statute.
The reason BW lost on the appeal, in a single encapsulated bullet-point, was on their
interpretation of statute; they had abused their position of entrusted power, in seeking to
impose their own unsanctioned extrapolations of their powers – claiming, as they persist in
doing even now, that they are endowed with unprecedented, wide-ranging, discretionary
powers.
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It is the core finding of the appeal court in rejecting such imperious claims, that has such
wide-reaching implication, not only for BW/CART but for all governing bodies. Legal
websites have, for example, been discussing the implications of the judgement as respects
such far-removed topics as wheel-clamping.
It is for this single reason, that the judgement affects [or should affect] the whole approach of
the waterways authority to its public, which we’ll explore under the separate topic of how the
Appeal judgement affects boaters.
My argument
The argument chosen by the Appeal Court covered only 4 out of the 108 pages of argument.
Rather than re-hash it, I will read it out for you, paragraphs 344 – 362.
The heading was – “Contravening Constitutional Basis”
344 – 362
344.
In his paragraph 133 the judge notes: “According to the Claimant, the phrase
‘without lawful authority’ . . . relates exclusively to vessels that are present on BWBcontrolled waters without a relevant consent.” In paragraph 157 he further quotes from
my Skeleton Argument: “ ‘Left or moored therein without lawful authority’ can only be
interpreted as moored against the law, and where there is no law there is no offence.”
345.
The judge rejects my argument and says, paragraph 156: “I have concluded, not
without hesitation, that the words used are broad enough to catch a vessel left or
moored where no right to moor . . . can be demonstrated.” [my emphasis]
346.
The judgment claims [paragraph 159] that “the phrase ‘without lawful authority’
in section 8(1) of the 1983 Act focuses on the lack of lawful authority, not on breach of a
regulation or provision regulating mooring [and constituting a criminal offence]. The
gist is not contravention, but lack of authority.” [my emphasis]
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347.
The judge concluded [paragraph 160] that an inability to demonstrate some
lawful entitlement to moor vessels where they were, regardless of the fact that they
were lawfully entitled to be on the waterway & were not in breach of any mooring
regulation, sufficed to qualify them as being moored “without lawful authority”, and so
subject to seizure under the powers of Section 8(2).
348.
The construction places the onus on any boater to prove a lawful entitlement
even in the absence of a legal prohibition. That is clearly in opposition to a cornerstone
of our constitution - the concept of ‘negative rights’, i.e. that in our society, all behaviour
is permitted, save that which is specifically prohibited by statute.
349.
Judges in this country sit under the motto ‘Dieu et mon droit’, developing the
Common Law, and interpreting Statutory Law commensurate with the Common Law.
The Common Law being founded, since Alfred the Great, on his amalgamation of the
three Christian kingdoms of Kent, Wessex and Mercia with Mosaic law and Christian
ethics, these latter are taken to underlie the construction and administration of our law.
350.
In The Prologue to Alfred’s Law Code: Instruction in the Spirit of Mercy,
Florilegium 13, 1994 pp79-110, Michael Treschow states that the last section of the
Prologue not only describes "a tradition of Christian law from which the law code draws
but also it grounds secular law upon Scripture, especially upon the principle of mercy".
351.
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Following Alfred’s “Doom Book”, and after some centuries of development of
the common law, Henry Lord Bracton in 1569 organized the Common Law system into
four volumes “On the Laws & Customs of England”. In an article entitled “Common
Law, Natural Law, and Classical Liberalism” [July 7, 2011], Denise Rhyne wrote:
“Lord Bracton believed all laws must end in and lead to the will of God. Using the Bible,
he organized the penal code and the laws for real property. The entire system was based
on the Mosaic code. Early Americans used the Common Law system and the Bible during
the 167 years leading up to American Independence.”
352.
She continues: “Lord Bracton’s monumental work was the English, legal
reference work until 1765. That was when England’s pre-eminent legal authority, Sir
William Blackstone, thoroughly organized, analyzed, and explained the entire body of
English Common Law”.
353.
New Testament commentary respecting individual responsibility under the
operation of law is therefore most apposite. In New Testament Greek, the word for “sin”
“hamartia” is most universally regarded by scholars as denoting “missing the mark” –
see Strongs G266: (1) (b) ‘to miss the mark’; and in Thayer’s lexicon: “failing to hit the
mark”. In modern idiom, it could probably best be described, in context, as denoting
“failure to comply” [with the law]. This is directly confirmed by the wording of 1 John
3:4 [KJV] “sin is the transgression of the law.”
354.
Romans 5:13 teaches: “. . . sin is not imputed where there is no law”; i.e. there
can be no ‘transgression of the law’ where no law exists. The previous chapter [Roman
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4:15] defines this fundamental philosophical principle in words of ultimate clarity – “. . .
for where no law is, there is no transgression.”
355.
It is unsurprising, with this background, that the English Constitution should
always have demonstrated such a precursive alignment with the principles of the more
modern Human Rights Act of 1998.
356.
Consequently, our doctrine of the rule of law holds that in construing legislation
courts will interpret any uncertain language in favour of common law principles of the
liberty of the citizen; see Allan, Legislative Supremacy and the Rule of Law:
Democracy and Constitutionalism, 44(1) CAMBRIDGE L.J. 111, 117 (1985). supra
note 11, at 202-03
357.
According to the 19thC constitutional authority A. C. Dicey, the doctrine of the
rule of law has three meanings. First, it means the absolute supremacy of regular as
opposed to arbitrary law. Professor Dicey writes that "Englishmen are ruled by the law,
and by the law alone; a man may with us be punished for a breach of law, but he can be
punished for nothing else." [my emphasis]
358.
As previously mentioned, the House of Lords in Leach v Rex [1912] AC 305
[confirmed by Yorkshire Derwent Trust] held that save insofar as they are clearly and
unambiguously intended to do so, statutes should not be construed so as to make
alterations in the common law. I submit that construing an ambiguous statute so as to
undermine a key constitutional principle of the common law, is equally untenable.
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359.
The judge has construed Section 8 to give BW the power to punish in the absence
of a breach of law, on the arbitrary notion that a boater must prove a positive right to
do what he does. For all the above reasons I submit that such a construction violates a
critical foundation principle of our constitution.
360.
I stand by my argument therefore, that “Left or moored therein without lawful
authority” can only refer to a breach of the legislation – whether that is the sole
qualifying mooring regulation [Section 18 of the 1995 Act] or, more pertinently, those
statutory regulations requiring that a boat obtain the “relevant consent” to be kept within
the waterway. That boat licence/certificate where required by law, is the necessary [& the
only necessary] “lawful authority” for the boat to be “left or moored” within waterways
controlled by BW.
361.
Where any specific mooring offence brings a boat within any sub-section of
Section 8, it only does so by specific Parliamentary identification of that offence as so
qualifying it. Re-inforcing the above, are the Select Committee Minutes and the 1990
Bill, demonstrating the desire of BW to have introduced a tranche of mooring
regulations, breach of which would be criminal and rendering the offender subject to
Section 8.
362.
That Parliament’s wishes were otherwise inclined is, even absent the evidence of
the Minutes, amply demonstrated by the simple fact that all but the offence already
extant in the Byelaws were omitted from the subsequent Act.
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At the end of the day, I think that this particular argument was the clincher chosen by the
court because it was of the most universal import, and because it could ensure that the
judgement would become an important quotable milestone for all debate on the English
Constitution – judges have their vanity too, and desire for peer acknowledgement.
Lord Justice Mummery’s finding
Again, it is simplest and best to quote verbatim. He wrote:
37. As BWB can only require the removal of vessels unlawfully on the GUC, it is necessary to
ask whether, even in the absence of an established riparian right to moor, the claimant, on the
particular facts of this case, was committing any wrong at common law or under statute,
which made what he was doing unlawful? If he was not, what power had BWB under s. 8 to
require removal of the vessels?
38. I am alerted to the possibility that the claimant was not committing any wrong by a pithy
observation of Sir Robert Megarry V.-C. in Metropolitan Police Commissioner [1979] 1 Ch
344 at 357C:-
"England, it may be said, is not a country where everything is forbidden except what is
expressly permitted: it is a country where everything is permitted except what is expressly
forbidden."
39. During the course of oral argument in this court it emerged that the multiplicity of issues
generated by this dispute and the paper mountain of materials googled by Mr Moore had
overshadowed the significance of that basic, if not totally accurate, maxim of English Law
supportive of Mr Moore: what is not prohibited is permitted.
That notion was at the core of the first element of AV Dicey's classic statement of the Rule of
Law in 1885 . . . accentuating the need in law enforcement to prove distinct breaches of
established law. The notion also survives Lord Bingham's re-formulation in The Rule of Law
(2010), emphasising the accessibility of law and the need for it to be, so far as possible,
intelligible, clear and predictable, so that the citizen knows when his actions would be
unlawful. Those "rule of law" considerations apply to the power of BWB to require the
claimant to remove vessels from the GUC, because its exercise depends on whether the
vessels are moored unlawfully.
40. In this long running battle it is entirely understandable that BWB wishes to establish and
exercise its statutory power to manage moorings on the GUC under pain of removal of
unlawfully moored vessels. The point is that, if the claimant is doing nothing wrong in
mooring his vessels alongside his part of the bank, then he has acted within the law, not
contrary to it. If what he does is lawful, BWB has no power under the legislation, from
which its statutory powers derive, to compel him to remove his vessels from their moorings.
41. In the light of what BWB accepted at trial I am unable to identify what unlawful act the
claimant was committing that entitled BWB to serve a notice under s.8. During the hearing of
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the appeal Mr Stoner QC accepted that BWB has not alleged that the claimant has obstructed
the public right of navigation by other members of the public. Nor has he committed any
wrong to the riparian owners, as it was agreed, for the purposes of the action, that he has the
rights of riparian owner in possession or occupation of the canal bank at the point of the
moorings. Nor has he committed any wrong as regards the canal bed of the GUC with the
tidal element, since the BWB makes no claim in this action to any title to or right to
possession of it. BWB simply relied on its statutory powers, but Mr Stoner QC was unable to
point to any power entitling BWB to require the removal of vessels when no private or
public wrong was committed.
42. In brief, BWB has no statutory power to compel removal of vessels from this stretch of the
GUC when no wrong is committed by the mooring of the vessels alongside the bank possessed
or occupied by the claimant. Although the common law does not recognise a positive riparian
right to moor alongside the bank permanently, the absence of that right does not necessarily
connote the commission of a wrong and the presence of an unlawful mooring. If what the
claimant was doing was not a legal wrong, he was entitled to do it. If he was entitled to do it,
he was not doing it "without lawful authority" within s.8, because the law allows him to do
what it did not prohibit at common law or by statute.
43. At the end of all the arguments running to hundreds of paragraphs in the claimant's
skeleton submissions, the question for decision by this court is this: what wrong, if any, was
the claimant committing by mooring his vessel to a part of the canal bank, which has been
treated as belonging to him, so that the barge remains stationary in the water flowing over
the canal bed, which has been treated as not belonging to BWB? If no wrong, such as
obstruction to the public right of navigation or to rights of access enjoyed by other users of
the canal or trespass to the canal bed or the canal bank, was committed by the appellant, he
was and is acting lawfully and BWB had no powers, statutory or otherwise, to require him to
remove his vessels.
44. In this appeal the position simply is that, on the agreed facts about the bed and the banks
of the GUC at the relevant point, BWB had no power under s.8 to require the claimant to
remove vessels the mooring of which was lawful, as their presence was not unlawful: BWB is
unable to support its notices on the basis that the mooring of vessels by the claimant was
"without lawful authority" within s.8.
So there you have it – BW lost their s.8 case –
(i)
because they were wrong to construe the Transport Act 1968 as abolishing all rights to
keep and use boats in their waterways;
(ii)
because they were wrong to construe s.43(3) of the Transport Act 1962, in conjunction
with s.8 of the British Waterways Act 1983 as granting them discretionary power to classify
moorings as unlawful absent specific statutory authority
(iii) because I was just sufficiently stubborn to refuse to accept the court’s rebuffs of my
position at every stage, and because the court system still allows for challenge to them at each
of those stages
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(iv)
because I was just blessed with dumb luck that the tactical manoeuvering going on in
the background was flawed, and
(v)
at the end game, because the position taken by BW and approved by the High Court
was so patently contradictory to the first of the primary 3 foundations of the Rule of Law as
provided by the country’s constitution – AND because I knew that to be the case and put the
court on notice to that effect – that there was no room left for the court to manoeuvre and still
retain an appearance of integrity with the core principle of their existence; there yet remained,
as they knew, recourse to the Supreme Court, as the case hinged upon a pure point of law in
the public interest.
...ooOoo...
(1) In 1275, by the first Statute of Westminster, the time of memory was limited to the reign
of Richard I (Richard the Lionheart), beginning 6 July 1189, the date of the King's accession
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