CRT publishes new Boat Licence Terms and Conditions in spite of challenges and ICO decision upholding NBTA complaint

Canal & River Trust (CRT) yesterday published its revised Boat Licence Terms and Conditions which have been slightly re-worded but have not fully taken consultation responses into account.

The NBTA and other concerned people and groups will continue the legal challenge to the new Boat Licence Terms and Conditions. We are very grateful to all the members and supporters who contributed to the appeal to fund this. Now we know exactly what we’re up against, please would you consider giving the appeal another push?

– Pledge £15, or any amount you can, on:

– Share the link on Facebook, Instagram, Twitter, Snapchat or spread the word in another way (eg to friends and family who are active on social media, through a blog or by email). Thank you!

CRT appears to have treated the consultation as a majority voting exercise, using the number of favourable responses submitted as justification for its original proposals and ignoring the detailed objections regarding the proposals and the conduct of the consultation from many individuals and organisations. The only objection that CRT has accepted is the objection to the proposed requirement for boats to use fenders whenever there is a risk of striking another boat or a navigational structure, which many boaters objected to on safety grounds.

Notably there are a number of changes that CRT has included in the final version of the revised Terms and Conditions which were not included in the consultation, so boaters have not had an opportunity to comment or even to assimilate the changes. CRT has stated that the new Terms and Conditions will be applicable to new and renewed boat licences from 1st June 2021.

You can download the new Terms and Conditions here 43839-general-terms-and-conditions-for-boat-licenses-june-2021

CRT’s report on the consultation is here 43840-boat-licence-terms-and-conditions-consultation-report-final

One of the most insidious and significant changes, which was not even included in the consultation, is that on Page 1, the new Terms and Conditions separate the Standard Canal and River Licence, which should apply to boats licensed both with and without a home mooring, into two new categories: “Pleasure Boat Licence” (also referred to as a “standard boat licence”) which must have a home mooring, and “Continuous Cruiser Licence”. This is contrary to the definitions in Section 17 of the British Waterways Act 1995, which simply defines a ‘relevant consent’ as a Pleasure Boat Certificate, a Licence or a Houseboat Certificate; and in Sections 17(3) (c) (i) and (ii) stipulates that a Pleasure Boat Certificate and a Licence (referred to in the Act as a “Relevant Consent”), can be obtained either with or without a home mooring.

It is obvious where CRT is going with this sweeping reclassification: the separation of the Standard Canal and River Licence into two categories would make it easier for CRT to charge a higher fee for a so-called “Continuous Cruiser Licence”, something which was threatened and consulted on several times by British Waterways, most recently in 2008, but was dropped each time following opposition.

There were many representations from boaters and boating associations, including those such as the NBTA which quoted the judgement in Canal & River Trust v Geoffrey Douglas Mayers (2013), Chester County Court (Claim 0NH00407) in which the Judge found that:

“… A boat which has a home mooring is not required to be “bona fide used for navigation throughout the period of the licence” but neither is it required to ever use its home mooring. The [British Waterways] Act [1995] requires that the mooring is available, it does not say it must be used. The guidelines also have this effect. The boat is still subject to the restriction that it must not stay in the same place for more than 14 days but there is nothing to stop it being shuffled between two locations quite close together provided they are far enough apart to constitute different places.”

CRT has however persisted in including the following condition, which is contrary to Section 17(3)(c)(i) of the British Waterways Act 1995:

“5.1. You must travel on a journey when You are away from Your Home Mooring. Your journey should be a genuine journey. It should start and end at Your Home Mooring. It does not have to be over a certain duration, distance or range, or follow a single direction. It cannot contain short, repeated movement in a small part of the Waterway for an extended period, unless You return to the Home Mooring between repeated trips. Each time You leave Your Home Mooring You start a new journey.”

In addition, in Condition 10.10, without any consultation CRT has introduced a completely new requirement that the boat “must not display an association with, or advertise, any company, business or service without our express consent in writing”. This appears to be another attack on liveaboards as many of our community work from home (as opposed to trading from their boats) and advertise their services in their boat windows.

In Condition 10.11 CRT has introduced requirements regarding towing other boats, again without any consultation:

“10.11. If towing a boat (for example, an unpowered butty or another boat that has broken down) You must ensure:
10.11.1. that there is appropriate insurance cover;
10.11.2. that the boat you are towing is licensed;
10.11.3. that you do not tow the boat for reward, payment, or a promise of payment.”

There was no condition relating to towing in the 2015 Terms and Conditions but in 2012 the Conditions included “You may use the boat for towing another licensed boat (for example, an unpowered butty or another boat that has broken down) as long as you are not doing it for reward or a promise of payment.” It is possible that this was missed out of the 2015 terms and Conditions in error, but CRT at least owes us an explanation of why this condition has been re-introduced with an entirely new requirement for insurance.

Finally we note that the new Terms and Conditions document contains a number of spelling mistakes and errors, including a reference to a non-existent British Waterways Act 1972 (it was 1971).

There were a number of data protection issues in the consultation proposals. By coincidence, also yesterday the Information Commissioner’s Office (ICO) responded to a complaint from the NBTA about the data protection aspects of the proposed changes, unfortunately this response was received some two hours after CRT published the new Terms and Conditions. The ICO requires CRT to take action:

“… to revisit the way you have handled this matter and consider what further action you can now take to resolve this complaint. We expect organisations to deal with the data protection complaints they receive and to proactively work with their customers to provide an appropriate resolution.

If you believe that you have complied with the data protection law, you need to explain this in detail to your customer. You also need to be confident that you have done all you can to find an appropriate resolution. If your organisation could have done more to resolve the concern then we expect you to take steps now to resolve the issue with your customer.

We expect you to contact your customer within the next 28 days with this further detail…. If we consider that you are infringing data protection law then we will consider using our formal powers and any sanctions available.”

The NBTA has today informed the ICO that the new Terms and Conditions violate the principle in the General Data Protection Regulation (UK) and the Data Protection Act 2018 that the establishment of a contract cannot be contingent on data sharing consent being granted by the data subject. For example, the Boat Licence Terms and Conditions require the licence holder to consent to CRT providing information about their boat to their insurance company, and to CRT providing their personal information to other unspecified third parties (see clauses 4.3, 7.4 and 10.14 of the new Terms and Conditions).

Here is the ICO letter to CRT ICO to Canal and River Trust 24.05.2021