Middle Level Navigation Byelaws confirmed

The Middle Level Navigation Byelaws 2020, which provide enforcement powers for the Middle Level Commissioners (MLC) regarding boat registration, compulsory third party insurance and Boat Safety certification, were confirmed by the Secretary of State for DEFRA on 28th May 2021. The MLC however, have been demanding that boaters pay for a “licence” and were requiring third party insurance and evidence of compliance with safety standards from 1st September 2020 without having the Byelaw powers to require either insurance or BSS certificates. The Byelaws and Boat Removal Protocol are online here https://3rwzrk3imltm11ru71g1sxd1-wpengine.netdna-ssl.com/wp-content/uploads/2021/05/Byelaws-and-Appended-Boat-Removal-Protocol-1.pdf

DEFRA’s response of 3rd June to a Freedom of Information request for:

“ The date that the Middle Level Commissioners Draft Navigation Byelaws 2019 were confirmed or the date that they are expected to be confirmed; and

All correspondence between the Department for Environment, Food and Rural Affairs (DEFRA) and the Middle Level Commissioners regarding the confirmation of these Byelaws”

resulted in the release of “36 pieces of correspondence between Defra and the Middle Level Commissioners during the period 25 June 2020 to 5 May 2021, consisting of 35 email exchanges and one formal letter, plus 19 documents attached to various of the emails. Copies are enclosed with this letter”.

Powers to make these Byelaws were granted to the MLC in the Middle Level Act 2018. The NBTA was one of the Petitioners against the Bill that became the 2018 Act.

The information from DEFRA shows among other things that:

  • The MLC took no heed of any of the responses to the public consultation on the draft Byelaws except to drop the proposed requirement for boats to be tied bow and stern when using locks;
  • The MLC told the DEFRA Inland Waterways and Navigation Team that the draft Byelaws were considered by the Parliamentary Select Committees that considered the Middle Level Bill in 2018, when they were not, and the Policy Adviser dealing with the Byelaws challenged them on this statement;
  • The byelaw confirmation process took thirteen and a half months, during three of which the byelaw confirmation application from the MLC sat on a desk in the DEFRA offices because these were closed due to the pandemic;
  • The MLC stated to DEFRA that “Depending on what happens with Covid-19 arrangements, it was the Commissioners’ intention to start registration of boats from 1st September 2020 but obviously we need the Byelaws in place for enforcement purposes”;
  • The MLC stated later that “We are into our second year of registration of boats under the Middle Level Act but not having our Byelaws in place is now becoming a serious issue for us as a Navigation Authority as are unable to enforce against boats that do not have the necessary safety standards etc”;
  • The MLC told DEFRA that they were hoping to derive an income of £150-£200,000 per year from registration of boats with an expected expenditure of £300-£400,000 and told DEFRA that “It is … our intention to start enforcement as soon as we have the Byelaws confirmed”.
  • The DEFRA official dealing with the byelaw confirmation pointed out that “The issue is therefore that it is at present in effect a voluntary payment being made since there are as yet no Byelaws to enforce requirement of payment”

You can read and download all the correspondence here https://www.whatdotheyknow.com/request/draft_navigation_byelaws

Marshlander, an NBTA member on the Middle Level, describes the situation:

Nearly ten years ago I ended up living on a narrowboat on the Middle Level. I had experienced a bit of the boating life for an annual work project during the eighties and nineties and, when family issues and bereavement gave me cause to deal with homelessness, I bought my first boat. Being a law-abiding sort I went to the offices of the Middle Level Commissioners, the local drainage, flood defence and navigation authority in 2011 to make sure I was fully legal. I was told there was no licence to worry about so all was well. They didn’t even want to know the name of my boat. They did, though, sell me a key for one of the lock pounds that also fitted the locked doors of the sanitation and water point in March Town Centre.

In 2016 a post cropped up in my Facebook feed from somebody I didn’t know. I followed that up and it appeared to be a one-man campaign contesting the introduction of a “Middle Level Bill”. The draft Bill had been presented to Parliament and seemed likely to affect my peaceful existence. I read it through and saw that the Middle Level Commissioners were seeking powers that even the police don’t have. There was nothing to do, but offer my assistance to this one-man campaign. In a move that was to become quite characteristic of the way the Commissioners work I did not find out about the Bill until after the consultation period had closed. Despite their claims to be a navigation authority, drainage and flood defence are their obvious and necessary priorities and any thought of notifying boaters living in peaceful isolation was not given sufficient consideration. Most boaters on the Middle Level rent moorings in one of the three marinas. When pressed the Commissioners admitted they need the new laws to deal with twelve of us who live and moor outside the marinas on the hundred miles of waterway in their care.

The campaign gathered some momentum. The NBTA were already on the case and gradually a tiny alliance of boaters coalesced around opposing the draconian (a word that cropped up in the House of Commons debates) measures and powers sought in the Bill. It was nearly impossible to recruit other locals to the cause. The past Chief Executive of the MLC had fired the first salvo in early 2016 by demonising boaters on the Middle Level in the local paper. Most of the people we spoke to felt too intimidated to express support for the cause, were already antipathetic to those of us allegedly “hiding on the waterways” in our “neglected”, “scruffy” boats, otherwise feeling unable to get involved, or were too busy to donate any time or, sadly, they were simply fatalistic and saw no point in opposing the Bill. Over the years of our campaigning I would guess there were about ten activists in opposition to the proposed changes who drifted in and out of the campaign. I was one of the liveaboard boaters on the Middle Level who were directly affected. I freely express my gratitude to others, especially to the man whose initial campaign and steadfast opposition alerted me to the issue, and to the NBTA’s Chairperson and her contacts, who gave so much of their time and energy and who kept me going.

The Middle Level Bill was being put through Parliament as a Private Bill. A Private Bill is quite different from a Government-sponsored bill or a Private Member’s Bill in that it is basically a law-making mechanism paid for by a private interest and is generally a rubber-stamping exercise. Our opposition to the Bill raised a lot of curiosity in the administrative backrooms in both Houses because Private Bills are rare enough, but even more rarely are they opposed. To have six petitioners against a Bill of affecting relatively few people was apparently almost unheard of. The admin staff were very supportive and helpful. I was surprised that some people actually found this stuff interesting. Getting my head round the historical and legal implications was hard going and meeting deadlines for submissions was very stressful. In the end six of us petitioned against the Bill in the Commons and five against the Bill in the Lords. This meant speaking at the Committee hearings in both Houses – spending a total of eight days in Parliament. Of course, we each bore our own expenses – travel, accommodation and sustenance, because we did not enjoy the luxury of having the corporate funding enjoyed by the Bill’s sponsors. One of our fellow petitioners was a veteran of waterways campaigns and participated fully during the Commons Committee sessions. Unfortunately the Bill’s sponsors used an arcane rule to have his knowledgeable contributions excluded during the Lords Committee sessions.

I suspect I was in a minority who wanted to see the Bill thrown out in its entirety, a result that was one potential outcome. I didn’t get my way and the Bill received Royal Assent in November 2018, becoming the Middle Level Act 2018. However, while we didn’t get what I wanted, the force of our joint opposition persuaded the Bill’s sponsors to propose about twenty amendments and undertakings, amongst which was to be the creation of a Protocol for the removal of boats. These mitigated the worst of the excesses sought in the Bill’s draft form. Among the changes the 2018 Act introduced were powers to impose registration and annual licensing, create new Byelaws and establish a Navigation Advisory Committee, supposedly to represent boaters’ interests. It was recognised in the text of the Act that income from licensing would not be required to cover the costs of the new responsibilities. One of the undertakings was that 25% of this new annual income should be spent on improving navigation facilities. At the time there were six locks on the one hundred miles of the system. The ones at each end were sluices keeping tides at bay. Of the four between them, one has not been operational for years. The Commissioners provided no moorings or facilities for boaters anywhere on the system, so to be required to start spending on facilities meant an improvement was inevitable. When pressed in Committee the sponsors thought that an annual licence fee would be in the region of £300. This figure was also quoted at an annual general meeting of the Well Creek Trust that I attended. The final figure would be decided in consultation with the Navigation Advisory Committee once constituted and according to the powers bestowed in the Act and in the Byelaws that at the time were yet to to be drafted and approved.

The Byelaws were quite quickly drafted and sent to DEFRA for approval. Shockingly some of the powers rescinded in the undertakings and amendments were reintroduced in the draft Byelaws and in the Protocol for the removal of boats. For example, an authorised officer of the Commissioners can demand access to my boat, to ensure that my home meets their safety and insurance requirements. This is despite the fact they would have access to my BSS and insurance details and declarations in my licence application. Similarly impounding and selling off our boats for licensing issues was reintroduced as an option we thought had been discarded. This is despite Kevin Foster MP’s assurances after taking legal advice during the Commons debates that taking our homes from us was not a proportionate response to a licensing dispute. Swimming in any of the waterways will now be banned and the Commissioners wanted to specify how to use a lock in the Byelaws, despite the fact that the procedures specified were not safe for solo boaters. I contacted the MLC to express my concerns over some of these parts of the Byelaws, but true to form received neither acknowledgement nor response. Not trusting that my arguments would even be presented to the Navigation Advisory Committee I wrote to DEFRA, but it is apparently not normal for them to respond either. Reading through the minutes of the Navigation Advisory Committee, DEFRA had been seeking responses from the MLC on a number of points, so I was be cautiously hopeful that my concerns would be considered.

Since 1st September 2020, the pressure has been ramping up on boaters on the Middle Level to comply with the requirements for registration and licences. This has been via carrot and stick. Last time I looked the number who had bought their licences was in the low eighties. It will be a higher number by now. Shortly before the Byelaws were confirmed I decided that the MLC had now met enough of my requirements that I registered my boat and paid for the first year’s licence, valid from 1st April 2021. The Protocol For The Removal of Vessels is on their website, albeit one needs to know it’s there to be able to find it, as they don’t signpost anything easily. They have repaired/replaced the dangerous lock landings at Salter’s Lode and Marmont Priory Locks. They have installed (so far) four “rural moorings”. Each of these consists of a row of five posts and a trimmed (for now) area of bank. These have been erected on the Sixteen Foot Drain, about half a mile west of the Manea/Wimblington crossroads; on the Forty Foot near the village of Ramsey Forty Foot; on Yaxley Lode near Yaxley and on New Dyke, near Holme. I went out recently to see what the one nearest me (on the Sixteen Foot) is like and it looks as though it might actually be long enough for two fifty-foot boats like mine. Their Navigation Advisory Committee meeting minutes for March are finally up on their website and it looks as though there are plans afoot for further improvements, some quite substantial. Incidentally the Navigation Advisory Committee seems to contain more local authority members than boat owners and it will have to be seen whether boaters’ interests will be fairly represented. This burst of activity comes in advance of a demand from Parliament for a report by the MLC on their progress by this summer following complaints from the petitioners that several parts of the Act had not been met two years after the date the Act came into force. Again we’ll have to see whether this is part of a new and ongoing interest in navigation or whether navigational interests and priorities will age and die quietly. As a self-confessed sceptic there is a certain dynamism about the organisation that has been distinctly absent in the past, so I am watching with interest …

To the best of my knowledge there are still no notices about registration and licensing at the locks as required by Section 5 of the 2018 Act. A few months ago I gave my MP an assurance that I would comply once some basic obligations had been met and I recently decided to pay up the almost £1100, which is quite a difference from the £300 mentioned when they were soliciting support in Parliament and from local house-dwellers. I thought it fair to contact someone who has a boat moored near me and let him know that I have decided to pay. An interesting conversation ensued. Apparently my boat owner neighbour is personally acquainted with the new MLC Navigation Officer, a post created in the light of the 2018 Act. In conversation between them the Navigation Officer informed my friend that registration was desirable since the MLC is preparing to start “towing boats in”! He was talking about this before the Byelaws had been stamped by DEFRA and to the best of my understanding before the licences and Protocol can be legally enforced. Apparently the Navigation Officer has been up and down the river several times, which sounds like a nice job that the licence fee doesn’t yet pay for in one of their fleet of maintenance craft. I mentioned to my friend that, since they have published the Protocol for the removal of vessels, specific procedures need to be followed before the MLC can start stealing and selling off people’s boats and property. I like to keep handy the words of Kevin Foster (Conservative MP for Torbay) who led the 2018 Act through the Commons during its Bill stage. It will be a reminder to myself in any future encounters with the legal process that people will offer all sorts of assurances that do not lie within their power to grant in order to win the point and sway the argument.

“I have raised that issue in relation to the Bill’s powers and have been advised that the commissioners are a public authority bound by the Human Rights Act to comply with the European Convention on Human Rights. If removing a vessel would interfere with its owner’s Article 8 rights—namely the right to respect for private and family life, home and correspondence—that could be done only if it is proportionate to do so. The courts have indicated that it is more likely to be proportionate if a vessel plainly fails to meet safety standards or its owner consistently refuses to show that they have insurance, but it is not likely to be proportionate if there is a genuine dispute about breach of licence conditions.”

(House of Commons debate – Kevin Foster MP [Con Torbay]. Citation: HC Deb, 29 March 2017, c357)

So, in short:

  • The Middle Level Act 2018 has been passed into law.
  • Boats on the Middle Level must now be registered.
  • An annual licence fee is payable. This is equal to the amount paid to access the Anglian Waterways of the Environment Agency and runs from April-March with no reduction for registration after September.
  • Boats registered and licensed on the Middle Level can buy a supplemental licence, the “Anglian Pass” for £100 from the EA to access Anglian Waterways and the waters of the Cam Conservators. No reciprocal arrangements are in place with CaRT although Gold Licences will be accepted on the Middle Level until December 2021.
  • Boats on the Middle Level have until 27th May 2022 to ensure their BSS certification is up to date. Insurance is a requirement for being granted a licence.
  • A Protocol For the Removal Of Boats sets out the procedures that must be followed by the Middle Level Commissioners wishing to remove a boat. Special consideration must be afforded to those whose boat is their home.
  • The new Byelaws are in force.
  • The Navigation Advisory Committee has been established. It currently consists of sixteen members, all of whom have been invited and appointed by the Middle Level Commissioners, other local authorities or business interests. There is no representation from among the general non-aligned boat-owning population. The full current list of members that makes such interesting reading is here: https://3rwzrk3imltm11ru71g1sxd1-wpengine.netdna-ssl.com/wp-content/uploads/2021/02/Appointments-Reasons-1.pd

I may have mentioned that finding specific information on www.middlelevel.gov.uk is challenging …