A remarkable letter has been received by Mark Starr from Mr Nigel Johnson, Legal Director of British Waterways, about the issue of signage for pedestrians along the canal network (in particular the Birmingham Canal Network).

It is a thorough and careful analysis of the byzantine and convoluted set of laws and issues which govern whether signs should be erected in metric or imperial. Much of it is correct, though there are some errors, omissions and mistakes of interpretation which I shall deal with.

I have written to Mr Johnson to congratulate him on the thoroughness of his research and the detailed reply he has taken the trouble to give - whilst at the same time I have replied to him pointing out his errors (copy of my reply available from me on request).

I reproduce the entire letter below, apart from the first four paragraphs which deal with introductory matters. It's so long that I'll post it in sections:


LETTER (dated 24 October 2002):

"Before I give a detailed description of the relevant legislation you should be aware that the principal point of disagreement between us is your assumption that the laws relating to traffic signs (e.g. the Road Traffic Regulation Act 1984 and the Traffic Signs Regulations and General Directions 1994) automatically apply to signs erected by British Waterways on its towing paths.

"The exemption in the European Legislation on metric measurements that permits the use of imperial measurements of distance in specified circumstances is limited to "road traffic signs".

"Traffic signs are provided for the purpose of road traffic regulation and other signs are provided or other purposes, whether by navigation authorities or by highway authorities, under different powers such as those contained in the Countryside Act 1968.

"The signs erected by British Waterways are not traffic signs within the meanings given by either European or domestic legislation.

...to be continued

...continued (part 2)


LETTER:

"In October 1995 the Units of Measurement Regulations 1995 came into force.

"As you know, these regulations were made under the European Communities Act 1972 and bring into domestic law the Units of Measurement Directive 1979 (No. 80/181/EEC as amended by Council Directive 89/617/EEC).

"These 1995 Regulations require the use of metric measurements for any use of measurement for economic, public health, public safety or administrative purposes.

"The Regulations provide an exemption (as permitted by the Directive) for the use of imperial measurements in "road traffic signs" giving distance or speed measurement.

"The Highways Act 1980 defines "traffic sign" as having the same meaning as in Section 64 of the Road Traffic Regulation Act 1984.

"That section defines a "traffic sign" as a sign that is "specified by regulation made by Ministers acting jointly, or authorised by the Secretary of State".

"That section further provides that traffic signs may only be placed on or near a "road" (as defined) by persons authorised to do so under the Act of 1984.

"This essentially means that it is only traffic authorities (and certain other persons acting under a special Act of Parliament) who may place "traffic signs" on a "road".

...continued

...continued (Part 3)


LETTER:

"Waterways, whether canals or navigable rivers, are not highways at common law.

"This was conclusively decided in the case of Attorney-General, ex rel. Yorkshire Trust v. Brotherton [1991], 1 Weekly Law Reports, p. 1126.

"Furthermore the definition of 'highway' in the Highways Act 1980 specifically excludes waterways.

"Therefore any sign or fingerpost erected to direct or inform those navigating the waterway (whether or not located on the towing path) is not a road traffic sign and therefore does not benefit from the exemption in the Units of Measurement Regulations 1995.

"Accordingly British Waterways is obliged to ensure that all such signs display metric measurements.

"This position is acknowledged by the British Weights and Measures Association.

"Towing paths are not "roads" within the ordinary meaning of that word.

"No vehicular traffic may use any towing path without the consent of British Waterways (Bye-Law 31, General Canal Bye-laws 1965).

"The majority of towing paths also are not public paths and therefore are not "highways" within the meaning of the Highways Act 1980, although a minority are.

"Whether or not a towing path is a highway, any signs erected by British Waterways on its towing paths are erected by it as a navigation authority regardless of whether they are for the benefit of users of the towing path or for those engaged in navigation".

...continued

...continued (Part 4)


LETTER:

"Furthermore such signs are not within the definition of "traffic signs" as they are not of the prescribed design in the Traffic Signs Regulations and General Directions 1994 and are not erected pursuant to the powers contained in Section 64 of the Road Traffic Regulation Act 1984.

"They therefore do not benefit from the exemption in the Units of Measurement Regulations 1995 and accordingly have to show metric measurements.

"The position in respect of signs erected by others on towing paths that are highways (i.e. designated public paths) depends on the nature and purpose of the sign.

"The signposting of footpaths and bridleways by highway authorities is generally undertaken pursuant to powers provided by Section 27 of the Countryside Act 1968.

"Such signs are erected not for traffic regulation purposes and so are not "traffic signs".

"That there is a distinction between signs erected pursuant to powers in the Countryside Act 1968 and "traffic signs" is made clear by Subsection (6) of that section.

"Therefore the exemption in the Units of Measurement Regulations 1995 does not apply to "Countryside Act" signs.

...continued

...continued (Part 5)


LETTER:

"In some circumstances a traffic authority will erect "traffic signs" on public footpaths (including towing paths) for traffic regualation purposes, particularly where there are risks created by the interaction of pedestrian traffic and vehicular traffic.

"To do so they need the necessary statutory powers, and so the word "road" is specially defined in Section 142 of the Road Traffic Regulation Act 1984 to include (public) footpaths that are highways.

"(Incidentally, the reference in that definition to "any other road to which the public has access" does not extend to private footpaths to which the public have access, since footpaths are not roads.).

"Therefore on a towing path that is a public path, a highway authority may erect signposts under the powers contained in the Countryside Act 1968 or a traffic authority may erect traffic signs under the powers in the Road Traffic Regulation Act 1984.

"(Normally a traffic authority is the same body as a highway authority, but highway powers and traffic powers are exercised for different purposes).

"If erecting "traffic signs" they do so in reliance upon their powers contained in the 1984 Act and such signs must comply with the prescribed designs in the Traffic Signs Regulations and General Directions 1994.

"Such signs (*and only such signs*) erected by a traffic authority in reliance of their powers in the 1984 Act come within the exemption contained in the Units of Measurement Regulations 1995.

"Therefore such signs may be in imperial measurements.

...continued

...continued (Part 6)


LETTER:

"British Waterways however is not a traffic authority and therefore is not permitted to erect traffic signs within the meaning of Section 64 of the Road Traffic Regulation Act 1984.

"Indeed the signs that British Waterways does erect are not in the form of the prescribed designs as set out in the Traffic Signs Regulations and General Directions 1994.

"British Waterways erects signs as a navigation authority and not as a traffic authority.

"Therefore it does not have the benefit of the exemption in the Units of Measurement Regulations 1995.

"Therefore British Waterways has no alternative but to use metric measurements on such signs.

"In summary therefore:

1. Waterways are not highways.

2. Accordingly signs for the purposes of navigation are not road traffic signs and have to be in metric measurements.

3. Most towing paths are not public paths and therefore are not highways.

Any signs erected by any person, on a towing path that is not a highway, are not road traffic signs and therefore have to be in metric measurements.

4. A minority of towing paths are public footpaths and signs erected by a traffic authority on those paths under the powers contained in Section 64 of the Road Traffic Regulation Act 1984 *do* benefit from the exemption under the Units of Measurement Regulations 1995.

5. British Waterways is not a highway or a traffic authority and is not permitted to erect traffic signs under the powers contained in Section 64 of the 1984 Act.

6. British Waterways erects signs on such paths as a navigation authority and not for the purposes of road traffic regulation.

As such signs are not traffic signs, they do not benefit from the exemption in the Units of Measurement Regulations 1995.

They are accordingly required to show metric measurements.

"Yours sincerely..."

...continued

I would make these observations on Mr Johnson's letter:


A. Mark Starr in his letter to BWB specifically referred to the case of DPP -v- Jones, the 1999 House of Lords case which, in summary, extends the meaning of 'road' to include all 'highways' and extended the defintion of 'highway' to include all roads, bridleways and paths to which the public has access, including those over 'private land'. The phrase used in the judgment was 'to which the public has access' and not 'on which the public has a right of way'. The judgment was by five Law Lords and they were unanimous.


B. The fact that Mr Johnson omitted all reference to this case in his reply to Mark Starr is highly significant. He omitted it because it does not support his lengthy and convoluted argument on the meanings of the words: 'road' and 'highway'.


C. Mr Johnson does not mention the letter from Mr Mike Talbot, Head of the Traffic Management Division of the Department for Transport, dated 16 July 2002 on the subject of illegal metric distance signs. That letter re-states the position about traffic and pedestrian signs with distances or dimensions on them needing to conform with the Traffic Signs Regulations if they are placed on a road to which the public has access. It may be that he hasn't seen that letter. Examples of land which is privately owned where it is necessary to conform with the TSRGD 1994 include airports, motorway service stations, supermarket and hospital roads and car parks and country houses and parks open to the public.


D. Mr Johnson does not say what penalties or sanctions the European Commission (or the European Court of Justice in Luxembourg) could use if the BWB erects signs in imperial measurements. He does not mention them because there aren't any.


E. Confirmation of this is that there exist many signs on canal towpaths throughout the U.K. in imperial measurements, including two right next to the recent metric bollard signs they have erected at the Broad Street/Gas Street Canal Basin in Birmingham. What can the European Commission do about those? - nothing.


F. The 1979 Euro Directive is vague in its application and has by no means been fully enacted into British law. It has always been the government's claim that no European Directive can be operational or effective until it is enatced by the British Parliament - a claim it has had to make to deceive the British people into thinking Parliament still has real sovereignty and authority. Nevertheless the fact remains that BWB and everyone else must look to a British Act and/or Regulation for authority to act and not a Euro Directive.

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Mr Johnson's letter, in summary, is a classic example of the "If Europe has said it, then it must be done immediately with brass knobs on" school of thought.

Another error is Mr Johnson's misunderstanding of waterways. In UK law, this means signs giving speed and distance to water vessels, NOT signs directed at pedestrians on terra firma in the vicinity of waterways.

The law is what the courts say the law is, not what Mr T Bennett Esq (or anybody else) might *think* that the law is. The law is tested in court and as is well known by readers of this forum, the courts will avoid giving an opinion unless they are absolutely forced to. Where possible, they will try to settle the matter in dispute on some other matter.

"The law is what the Courts say the law is..."

Yes, precisely. That's why I've quoted from the very recent decision of the House of Lords in the case of DPP -v- Jones [1999] on the meaning of the word 'highway', whereas Mr Nigel Johnson, Legal Director of BWB, ducked all reference to it

All this wrangling over whether or not BWB are subject to road traffic signs regulation is not very impressive.

Both BWMA and ARM know very well that those regulations were drafted essentially (as they saw it at the time) to address the safety issues with regard to the motorist. They were never intended to rigidy impose or constrain the content and layout of signs in places like leisure parks for the benefit of pedestrians on footpaths.

Whether your arguments are technically correct or not in the legal sense (though I doubt it) it amounts to nothing more than knit-picking designed to serve an extremist point of view.

pip: "extremist point of view"

ICM Survey 26-28 April 2002: "86% want road and pedestrian signs to remain in British units; only 8% believe we should switch to metric"

Public authorites have power over the rest of us. To prevent abuse, they are restricted to doing only what the law says they can. If Parliament permits them to set up signs in miles, that is what they can do. If Parliament does not grant them such power, they cannot do it. Parliament has not granted local or pulbic authorities to use metric signs. There is nothing extreme in enforcing compliance in this matter.

Pip said "extremist"

...and I laughed!

Yes, I thought that would cause a bit of a stir and possibly some amusement.

My use of the word was to highlight the extend to which activists like ARM are prepared to go just to enforce compliance with such little known regulations.

For people to say they think or prefer imperial measures to metric is by no means extreme. But just how strongly most people feel about it is quite another matter.