Non-Tidal Thames Off-line Marina Moorings

[erivers]

The formal judgement in this case was handed down at Reading Magistrates Court today.

 

District Judge Lachhar described the EA's attempt to extend registration requirements to the private adjacent water marinas without Primary legislation as "repugnant".

 

The full judgement is here: www.hartfordmarinaca.org/EA judgement201115.pdf

 

[MtB]

Blimey, excellent!!

[Alf27]

Blimey, excellent!!

Wot he said, well done !

[David Mack]

I see from paragraph 10 of the judgement that the Order applies to Anglican waters, Medway, Thames and Wye. I wonder what the case is for waterways of other religious persuasion, or those of none?

[NigelMoore]

This result is a perfect example of just why it can be important for courts to be able to look at the background to the legislation, in order to properly ascertain the meaning and intent.

 

I would be curious to know whether the EA had accepted the references to the Secretary of State correspondence, or whether, like BW/CaRT always do, they vehemently opposed it. In this instance the material was the hinge pin on which the decision depended [for all that the defendants' arguments had stand alone validity].

[ditchcrawler]

I see from paragraph 10 of the judgement that the Order applies to Anglican waters, Medway, Thames and Wye. I wonder what the case is for waterways of other religious persuasion, or those of none?

Surly it would depend on what the original Act said.

[erivers]

This result is a perfect example of just why it can be important for courts to be able to look at the background to the legislation, in order to properly ascertain the meaning and intent.

 

I would be curious to know whether the EA had accepted the references to the Secretary of State correspondence, or whether, like BW/CaRT always do, they vehemently opposed it. In this instance the material was the hinge pin on which the decision depended [for all that the defendants' arguments had stand alone validity].

 

The EA did not accept the significance attached by the defendants of the Secretary of State's 2010 letter at all. They claimed that it had no significance and the only reason that the 'adjacent waters' provision had to be removed before the Order was granted was because the enabling Act (T & W Act 1992) allowed him only powers to make an Order in respect of 'inland waterways' under their control. The judge turned that argument right round by pointing out that it proved that for the EA to gain the powers they claimed must require Primary Legislation.

[ditchcrawler]

I looked earlier but was unable to find it, today I got it first shot. This is the Broads Authorities take on licences on adjacent waterways http://www.broads-authority.gov.uk/__data/assets/pdf_file/0005/468014/BA-Act-Tolls-in-Adjacent-Waters-nc030909.pdf

[Scholar Gypsy]

This result is a perfect example of just why it can be important for courts to be able to look at the background to the legislation, in order to properly ascertain the meaning and intent.

 

I would be curious to know whether the EA had accepted the references to the Secretary of State correspondence, or whether, like BW/CaRT always do, they vehemently opposed it. In this instance the material was the hinge pin on which the decision depended [for all that the defendants' arguments had stand alone validity].

 

My understanding (though we need a proper constitutional lawyer here, I am only the armchair variety) is that the Courts traditionally would only look at the legislation as passed, and not look at the underlying intent.

 

This was modified some years ago by a case called Pepper vs Hart, when the House of Lords did look at speeches in Parliament to help interpret what legislation meant - ie what Parliament (or rather the MPs present on the relevant Bill Committee) thought it was doing when it passed the Act. This Wikipedia article suggests the Courts have rowed back somewhat from that judgement.

 

I suspect that statements made outside Parliament would have even less weight - as they are in effect statements by the Executive as to what they would have liked the legislation to mean, or what officials thought it would mean when they drafted it. There's a fairly obvious response to such arguments: ask Parliament to change the law, and see what happens.

[erivers]

I looked earlier but was unable to find it, today I got it first shot. This is the Broads Authorities take on licences on adjacent waterways http://www.broads-authority.gov.uk/__data/assets/pdf_file/0005/468014/BA-Act-Tolls-in-Adjacent-Waters-nc030909.pdfT

 

The Broads Act 2009 was an example of Primary Legislation, properly debated in both houses of Parliament before being passed. It was achieved in half the time and at little more than half the cost of the EA's secondary legislation - a Statutory Instrument - the EA(Inland Waterways) Order 2010. The EA applied for the Order way back in 2004 and since then has wasted almost incalculable sums of money to achieve very little of its aims.

 

The Broads Act clearly defines the 'adjacent waters' but doesn't of itself extend registration requirements to those waters. It does allow the Authority to create Byelaws for such registration but as yet the existing byelaws have not been amended. A Broads 'adjacent waters' case was recently heard by the Administrative Court in London and the judge made no ruling except to advise the Broads Authority to go away and "sort your Byelaws out".

Edited November 21, 2015 by erivers

[NigelMoore]

Surly it would depend on what the original Act said.

 

It does, yes.

 

The 2010 Order applies only to EA waters. Every jurisdiction has different powers respecting the requirement for boat registration or licensing; the principle of the judgment, however, applies to all such situations, affirming that the powers of the various authorities in that regard are strictly constrained by the terms of their specific legislation.

 

The EA seems to have been making a similar argument for their powers of registration to be extended to connected adjacent waters, to that which CaRT are making for no limitation to main navigable channels in a single body of water – i.e. that allowing boats to be unregistered when they could so easily enter and leave the controlled area would be so absurd that Parliament could not have intended that.

 

It is not absurd; Parliament has at all times been sensitive to minimise constraints on navigation rights.

 

I appreciate ditchcrawler's link to the Broads proposals; they indicate a very sensible and equitable approach to the same issue.

[NigelMoore]

 

My understanding (though we need a proper constitutional lawyer here, I am only the armchair variety) is that the Courts traditionally would only look at the legislation as passed, and not look at the underlying intent.

 

This was modified some years ago by a case called Pepper vs Hart, when the House of Lords did look at speeches in Parliament to help interpret what legislation meant - ie what Parliament (or rather the MPs present on the relevant Bill Committee) thought it was doing when it passed the Act. This Wikipedia article suggests the Courts have rowed back somewhat from that judgement.

 

You are right on all points. It is a shame that the courts have back pedalled on the principle; and is a backward step in my opinion. That is why I noted this instance of where such material has helped shed light on the intent.

 

Of particular relevance to this case, is the comment in a previous case cited in Pepper v Hart, where the omission from the Act of a draft provision was considered important.