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.
- o o o O o o o –
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].
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.
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 BWB-
controlled 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]
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.
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: