Official Report (Hansard)
Date: Thursday, 28 May 2009
28 May 2009
Members present for all or part of the proceedings:
Mr Barry McElduff (Chairperson)
Mr Kieran McCarthy
Mr Raymond McCartney
Mr Pat Ramsey
Mr Jim Shannon
Mr Brian D’Arcy ) Waterways Ireland
Ms Caroline McCarroll )
Mr Alec Foye ) DCAL
The Chairperson (Mr McElduff):
I invite officials from the Department of Culture, Arts and Leisure and Waterways Ireland to join the meeting. Michelle Estler, the head of waterways in DCAL, has apologised for not attending today. Welcome, Brian, Alec and Caroline. Perhaps, Brian, you will introduce your team and begin the presentation.
Mr Brian D’Arcy (Waterways Ireland):
Good morning, welcome to Enniskillen, and I thank members for honouring us with their presence in our new headquarters building. I am Brian D’Arcy, the director of operations in Waterways Ireland. Alongside me is Caroline McCarroll, who is the head of administration in our operational division. She will deal with any queries that you might have about the public consultation process or about the legislative and procedural context of bringing forward by-laws. Alec Foye is the deputy principal in the inland waterways and fisheries branch of DCAL in Belfast.
I have been asked to speak to the Committee as part of the pre-consultation process to draft and revise by-laws for the Waterways Ireland navigations network. At the outset, I must point out that by-laws exist for six of the seven navigations that are under our control, and a voluntary code of conduct is in place for the other one, all of which work well.
We have no great concerns about the present legislation; however, we intend to introduce a set of by-laws across the network that will bring consistency and cohesion to the enforcement of navigational rules under which our customers can enjoy the waterways experience. We have attempted to incorporate best practice, based on our collective involvement of managing inland navigations, as well as the experience of other navigation authorities and the views and feedback of our stakeholders and customers.
The draft by-laws should be treated as a prototype template to facilitate discussion and consultation, because it is a virtual certainty that they will pass through many iterations and amendments before progressing to the next step in the legislative process. We are aware of and recognise the crucial jurisdictional differences that exist between Northern Ireland and Ireland regarding legislative requirements and court procedures.
I now refer specifically to Northern Ireland. The Erne system is subject to the Lough Erne (Navigation) Bye-laws (Northern Ireland) 1978 and the Lough Erne (Navigation) (Amendment) Bye-laws (Northern Ireland) 1986. Those by-laws will now be revised.
The Lower Bann is not subject to any by-laws at present, so the proposed by-laws will be entirely new for it. However, as I said, a voluntary code of conduct is in place for the Lower Bann, and that works exceedingly well.
The part of the Shannon-Erne Waterway that is in Northern Ireland is not subject to any by-laws or a code of conduct; however, the centre line of that channel marks the international boundary between Ireland and Northern Ireland. The Cavan side of the waterway is subject to the Shannon Navigation Bye-Laws 1992; however, the Fermanagh side of the water is not subject to any by-laws. However, if necessary, I suppose that we could prosecute offenders by forcing them over to the Cavan side. That is one of the legislative anomalies that we came across when we started to look at the by-laws.
I want to mention some of the main changes that the new by-laws represent for the registration of craft, public mooring, speed restrictions and penalties. First, I will deal with the registration of craft. This new by-law will require all craft using our navigations to be registered. The term “craft” covers vessels, boats, personal watercraft, fast power craft and even seaplanes. Eventually, we want to have registration control over anything that floats on the water.
For registration, full details of the craft and its owner or owners will be required. We intend to phase the registration process in, and there will be a charge for the registration of vessels, personal watercraft and fast powerboats. However, initially, there will be no charge for the registration of craft in the category defined as “boats”.
Each registered craft will be required to display prominently an easily read registration number. We are in the final throes of commissioning a new craft-registration management system. That system will improve the traceability of craft and their owners, regularise the transfer or sale of craft, and, I hope, determine more accurately the actual number of craft using our navigations.
Secondly, a new by-law will deal with public moorings. At present, the length of time that vessels are allowed to stay at public moorings varies. The new by-law intends to limit the stay at a jetty or harbour to three consecutive days or a maximum of five days in any calendar month, in order to free up berthing space, particularly during busy periods. It is an attempt to combat the harbour-hogging phenomenon that is far more prevalent on the River Shannon than on Lough Erne or the Lower Bann.
Thirdly, a new speed restriction by-law will be particularly relevant to the Erne system because, under the present regulation, each speed restriction has to be prescribed in line with the speed limit and the limit of navigation to which it applies. Changing the limits is a cumbersome process, and the new by-law will give us power to react better to those changes, whether they are permanently or temporarily required. Obviously, all changes will be subject to consultation and notice of change.
The final by-law, and probably the one that will cause most legislative difficulty, is that in relation to fixed-payment notices, or on-the-spot fines. They have been used elsewhere, particularly on the road system, and they have been proven to streamline the standard penalty procedure. Taking prosecutions through the courts tends to be a laborious and resource-consuming practice. In my experience, it should be avoided if at all possible. The option of issuing fixed-payment notices seems to be the right way to go. The option to go to court will be still available, if required or necessary.
That is all that I have to say on the by-laws, unless anyone wishes me to make a specific comment on individual ones. In total, 39 by-laws are being drafted. I will leave it to members to decide whether they require further information.
Thank you for your presentation. I am delighted, as we all are, to be in this salubrious building this morning, and I wish you every success for the future. You have outlined the by-laws, but who will they ultimately benefit? How will they benefit the users of the facilities?
The by-laws will lead to the more orderly use of the facilities and will, hopefully, create a safer environment in which to enjoy the many facets of the waterways. The speed restrictions may help the surrounding environment. The legislation will impact on all of the customers, of which there is a wide range. Aside from the obvious customers who use the waterways for boating, there are also anglers, walkers, and people who enjoy the facilities that we provide.
The variation in impact might be very little; in fact, as I said at the outset, the existing by-laws are fairly good. There is no great urgency to introduce new ones, although we hope that the new by-laws will make things a little better for Waterways Ireland’s customers. I mentioned one criticism in relation to public moorings, where people tend to leave craft a lot longer than they should. That is not so much the case on the Erne system, but it happens elsewhere. That uses up space that other people cannot then enjoy. The by-laws are aimed at regularising that type of thing.
I should make it clear that the by-laws are legislation, and Waterways Ireland does not wish to legislate against boaters or other users of the waterways, but to encourage them to enjoy the facilities.
It is to make things better for them?
Yes. It is not on our agenda to prosecute people here, there and everywhere. The number of prosecutions that Waterways Ireland will bring in relation to the by-laws will be absolutely minimal. We would like to continue with that, but where people are deliberately flouting the by-laws, the use of fixed-penalty notices may allow us to pursue those people much more easily than through the court system.
Mr P Ramsey:
You are welcome to the Committee. It is lovely to be here and to see the accommodation. We have a number of prepared questions, but I have some additional ones. Waterways Ireland is obviously doing very well, and using the canals has become more fashionable. It is obviously necessary to have some effective policing mechanism in force. What will it cost to implement and manage the registration process? Do you envisage that the incoming revenue through fixed penalties will offset that cost? Will there be any problems relating to the jurisdictions in the North and the South, or has that been settled through North/South legislation? What other authority has been consulted on the introduction of the by-laws? What difference will the by-laws make to the management of the waterways, particularly here at the moment?
You may have to refresh my memory as we progress, because I have not noted down all the questions. The change in management will be minimal. Mr Ramsey asked about resources and policing. I particularly do not like the word “policing”. We do not consider that we police, as such. We attempt to educate people and help them to enjoy themselves. If we have to enforce, we will. However, that is not high on our list of priorities. If people make legitimate mistakes on the waterways, we will assist them and put them on the right track. We do not want to take them to court or fine them unless it is absolutely necessary. The main income will be derived from the registration process. I do not consider fixed-penalty notices to be a major source of income.
Mr P Ramsey:
You will not be the proverbial traffic wardens.
Absolutely not; I want to make that clear. As I said to Mr McCarthy, we will not penalise anybody who transgresses and makes a casual mistake. However, if a person persistently flouts the regulations that are intended to benefit everybody, we will, more than likely, take action.
Mr Ramsey asked about the resource that is available for the warden or inspection service. In the current financial downturn, it is more than unlikely that we will be afforded the luxury of additional personnel on the water. We have a fairly skeletal staff. However, they operate in a liaison-orientated way that works well, and, given our geographical spread, the number of complaints is minimal.
Mr P Ramsey:
Will you give an example of a situation that went badly wrong? If there was a series of complaints about an owner, what action would your officers take either to bar that person from the waterways or to ensure that his or her vehicle achieves a certain standard?
I will use the example of “harbour-hogging” — as it is called in the South — whereby somebody leaves a vessel at particular quay for longer than the permitted time. We inform the owner, if he or she is traceable, that he or she is in breach of the by-laws. If the owner persists and does not remove the vessel, we will go through a process and, eventually, remove the vessel, place it in storage and charge the owner for the full removal, storage and refunding costs.
It is similar to clamping.
It is much more difficult to clamp a boat. However, it is similar.
It is lovely to be here. When the sun comes out, as we hope it will, everyone will want to sit in this room.
I have a couple of questions about the system. During you introductory remarks, you outlined how the process works. Moreover, in the background papers, you referred to the schedules for the public consultation and the process itself. At this stage, I suspect that you have gauged people’s opinions of the process prior to the public consultation. I am keen to see that feedback.
You mentioned the fixed-penalty system. The Committee is always concerned about that. However, you said that it will not penalise casual users who make a mistake once or twice. Everybody make mistakes; that is life. Will the proposed changes to the by-laws dissipate people’s concerns? The Republic of Ireland and Northern Ireland might have different laws and different rules. Therefore, have you been able to gel those considerations to develop a common approach that does not impinge upon the rules, laws and legislation of both jurisdictions?
I may let Caroline answer the question. In my opening remarks, I said that we spoke to the necessary people about those legislative differences, the introduction of enabling legislation, the terminology, and so on. They have also looked at some of the draft by-laws, and there are obvious differences in the ways in which they would be introduced in Ireland and Northern Ireland. We would like the by-laws in each jurisdiction to have as much in common as possible. According to the information that we have been given, the majority of the by-laws can stand alone in either jurisdiction. However, specific changes will have to be made, so the wording in the by-laws, North and South, will not be exactly the same.
Mr Alec Foye (Department of Culture, Arts and Leisure):
As the sponsor Department, the Department of Culture, Arts and Leisure will be working with Waterways Ireland on this matter, not so much to keep an eye on what it is doing, but more to ensure that the legal process is followed. Ultimately, the Department is responsible to the Examiner of Statutory Rules, under whose scrutiny the legislation will be made, and we wish to avoid his criticism.
Working back from that, last week, we had a provisional discussion on the draft proposals with the Departmental Solicitor’s Office (DSO). We have already received its responses on a couple of major points concerning jurisdiction. Under existing primary legislation — and this is secondary legislation — there is no provision to introduce fixed-payment notices in Northern Ireland. Therefore, an alternative solution, such as summary convictions, will have to be found for Northern Ireland. One can issue fixed-penalty notices in the South, but not in Northern Ireland. That is one major issue.
Furthermore, the differences are such that the Water (Northern Ireland) Order 1999, under which the navigation rules have been made, only has provision to make Orders, not by-laws. Therefore, one could have by-laws in the Republic of Ireland and an Order in Northern Ireland. As we go through the process with the Departmental Solicitor’s Office, there will be distinctions, or vagaries, between what can happen in Northern Ireland and in the Republic. Similarly, with respect to court jurisdictions, we are talking about magistrates’ courts in Northern Ireland; whereas, in the Republic of Ireland, a different court level applies. We will have to tease those details out as we go through the process.
Ms Caroline McCarroll (Waterways Ireland):
In an attempt to tie those contributions together, I shall recap what has been said. First, in order to introduce by-laws in Northern Ireland, the procedure that is prescribed in legislation — the Water (Northern Ireland) Order 1999 — must be followed. The enabling legislation and the administrative procedures for enacting by-laws in Northern Ireland differ from those in Ireland. Therefore, there will be two completely different sets of legislation and procedures to enact the by-laws.
Secondly, Waterways Ireland’s powers were transferred under the North/South Co-operation (Implementation Bodies) (Northern Ireland) Order 1999, and that gave us the power to introduce the by-laws through the legislation that was passed on to us, the Water (Northern Ireland) Order 1999, to which Alec referred. That legislation updates previous pieces of legislation, which, historically, gave us the power to introduce the by-laws on the Erne system. There are no by-laws for the Lower Bann; however, the Water (Northern Ireland) Order 1999 gives us the power to introduce by-laws for any waterway under our jurisdiction in Northern Ireland. There is separate legislation for Ireland under the British-Irish Agreement.
With respect to consultation, the process that we have undertaken, to date, to produce the present draft by-laws has primarily involved in-house consultation and taking account of the various correspondence that we receive from users and the public at large. In light of the most recent information from the Departmental Solicitor’s Office and the views that have been expressed today, we will re-examine our by-laws and put them in a format that is suitable for taking them to the next stage, which is public consultation. Public consultation is an integral part of drafting by-laws, and we shall attempt to take on board the various views of users and other stakeholders who are likely to be affected by them. It is only by engaging with the wider public that we can find some common ground on the by-laws to enable us to share the waterways and to maximise the multifunctional use of the waterways in a way that will not cause difficulty to some users.
Our briefing note to the Committee outlines the two-phase public consultation process for doing that. We envisage commencing the first phase in August of this year; it will involve the issue of a questionnaire seeking the views of various stakeholder groups on the appropriateness of the by-laws. The stakeholder groups will include umbrella bodies that represent users, such as angling clubs on the Lower Bann, the Lower Bann Advisory Committee, the Lough Neagh Advisory Committee, and the Lough Erne Advisory Committee. We estimate that there are about 100 such groups.
The groups will be given 12 weeks to consult their members, formulate their views and submit the completed questionnaire to Waterways Ireland. We will analyse the questionnaires and amend the by-laws to find the best balance before we embark on the second phase of consultations. We envisage that the analysis and the revision of the by-laws will be carried out in November and December after the 12-week consultation. Phase 2, which will involve public meetings, will commence in February 2010.
We intend to advertise public meetings throughout the country. Copies of the by-laws will be available on request from our offices to those who want them; they will also be available on our website and to those attending the public meetings. All the comments made at the public meetings will be noted and considered to ensure that a balanced view is taken in revising the by-laws.
Through that iterative process, we can consult the widest possible number of users to ensure that the final draft encompasses the views of all the user groups and stakeholders that the by-laws will affect.
I asked that question because there are differences that must be taken on board, and I wanted to make sure that members do not think that everything in the garden is rosy. However, I am pleased that Caroline made the point that those who have used the waterways for years should not feel that this process will take away their enjoyment — or employment. I feel reassured by the process that Caroline has outlined. I do not mean to be critical; that is not my form. However, it is vital that all viewpoints are brought together and that there is a system, which, although not ideal, people feel part of.
The timetable shows that you intend to take 11 months to consult on and to revise the draft by-laws, whereas three months is the usual period for public consultation. Is that two-phase consultation the best use of resources?
As far as phase 1 is concerned, under the codes of practice that apply in the UK and in Ireland, stakeholders must be given a 12-week statutory period in which to formulate their views and consult their interest groups. If one started in August, one would have only the months of November and December to analyse the collated views and revise the by-laws. As Christmas falls in December, and many people are not up and running again until the end of January, we believe that February would be the best time to hold public meetings.
We will then take account of and analyse the comments that have been made at those public meetings and subsequently revise the draft by-laws. That second revision is the most important one, as it ties together the two phases of the consultation process. Therefore, the legislation that we take forward will be grounded in the widest possible views and will have been considered in a fair and balanced way.
Scheduling that analysis for March and April is not considered to be unrealistic or unreasonable in any way. We have waited a long time for the by-laws, and we want to ensure that they are right, because it will be some time before we can go through such a process again.
You mentioned a 12-week consultation with the clubs, and I welcome that because many people in the community will have an opportunity and time to input their views. It is better that the process takes that wee bit longer and includes everyone’s view.
Thank you for your presentation. I echo the comments of other members when I say that it is nice to be here.
Do you have a timeline for the by-laws to come into operation? Will they be introduced in one block or separately? I hope that these questions all run into one another. Will the Assembly have a role to play in approving the by-laws or assisting their progress? To date, have any by-laws been passed under article 49 of the 1999 Water Order?
Do you mean historically?
No, not to date.
So you have not used the North/South Ministerial Council to approve legislation?
In answer to your question about the timeline, once we revise the by-laws in March and April 2010, we will be eager to begin their enactment through the Assembly’s procedures. Under article 49, the introduction of the by-laws must be carried through an Order. The Order will follow a procedure called a statutory rule, which will be subject to negative resolution. Members will be more familiar with that than I am. It means that the statutory rule will be brought into operation on a specified date. It will be laid before the Assembly, and Members will have the opportunity to vote against it within a specified time, which is 10 sitting days or 30 days, whichever is longer. A 21-day rule also applies whereby there must be at least 21 days between the date of the rule being laid before the Assembly and its coming into operation. If, during that time, the Assembly resolves to annul the statutory rule because it disagrees with the by-laws, the statutory rule will be void from the date of that resolution.
The timescale of that process will be outside Waterways Ireland’s control. We need to fast-track the by-laws as expeditiously as possible from their revision to their submission, through the Department of Culture, Arts and Leisure, for approval by the Assembly under the negative resolution procedure. We carried out some legislative research, which we have passed to the Department of Culture, Arts and Leisure. The Departmental Solicitor’s Office has recently commented on it and confirmed that that is the legislative procedure that we will have to follow. We await confirmation of the timescale of that from either the Departmental Solicitor’s Office or our colleagues in the Department of Culture, Arts and Leisure.
If the by-laws are to be introduced in one block, and if one becomes a problem, will you proceed with the other three, or must you proceed with the four as a unit?
We intend to proceed with the by-laws as a complete entity and not to introduce partial by-laws. That is mainly because, as I said in my opening remarks, I have the comfort of knowing that the existing by-laws work reasonably, if not very, well. Therefore, that would not be a priority issue with regard to being a threat to Waterways Ireland. I would certainly advocate that they be introduced as a complete, homogenous package and not bit by bit and by stealth.
Waterways Ireland cannot make this legislation under order of by-laws except with the approval of the North/South Ministerial Council. That is another layer of recent thinking.
Mr P Ramsey:
Does this meeting constitute Waterway Ireland’s statutory consultation with the Committee, or is it purely a briefing session?
It is purely a briefing session.
Mr P Ramsey:
Will there be a separate consultation session?
We are anxious to work with the Committee at all stages.
Mr P Ramsey:
What is the situation with regard to North/South jurisdiction? Alec said that there was a difficulty in enforcing the penalties in Northern Ireland.
There is legislation in the South. The Maritime Safety Act 2005 gives us the power to introduce fixed-penalty notices. There no related system in Northern Ireland. Therefore, Alec is quite right, and the advice from the Departmental Solicitor’s Office matches that. We would have to introduce enabling legislation in order to have fixed-penalty notices enacted here.
Mr P Ramsey:
At present, however, setting aside the by-laws, do the enforcement and jurisdiction rights transcend the border with regard to the management of the present system?
We operate under the existing by-laws that are in place. For the Erne system, therefore, we have the Lough Erne (Navigation) Bye-laws (Northern Ireland) 1978 and Lough Erne (Navigation) (Amendment) Bye-laws (Northern Ireland) 1986. That is the basis on which we operate here at the moment.
Mr P Ramsey:
On a non-related matter, I see from your titles that you are both director of operations. Is that wrong?
That is incorrect. Someone has promoted Caroline without telling me.
Without telling me, either — which is embarrassing. [Laughter.]
I thank you, Brian, unless you want to make a concluding point.
I thank the Committee for hearing us. As I said, Waterways Ireland is more than anxious to keep in touch with you. If, at any stage, the Committee wants an update on how we are progressing, we will be happy to provide that