QC says cavers DO have access to caves under the CROW Act

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David Rose

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My sister, Dinah Rose QC, a leading public law expert, has now written her formal, legal opinion on whether cavers should have free access to caves on CROW land and concluded that we do. In her view, Parliament cannot have intended to exempt caving from the CROW Act's provisions, there is no public policy reason why caves should be excluded, and it would be "irrational" - a word with a very strong legal meaning - to argue that they are.

This is evidently a development of enormous significance to the ongoing debate. Chris Howes has kindly agreed to make the whole opinion available on the news section of the Descent website shortly, and I will post the link when he does. 

I know some will find this controversial. I urge people to read it fully and to consider it with the same care with which it has been drafted before they begin to post their own views here. My own position is simple: that cavers, if possible working through the BCA, which will be discussing the issue next month, should now take every possible step to make sure our CROW Act access rights are respected and enforced. I believe this represents a liberation from onerous, unnecessary and unlawful restrictions.

Meanwhile, I hope others reading this will join me in thanking Dinah for mastering a large amount of material, and producing an opinion of great force and clarity without charge. Thanks are also due to Tim Allen and Bob Mehew, who spent many hours collating hundreds of pages of documents to enable her to do her work.
 

martinm

New member
Brilliant. Thank Dinah for me David, this is great news, I will read through everything with great interest.  (y) (y)
 
Although this is a useful step forwards, I'd urge people to remember that it's still only an opinion. It won't become a legal fact until it's tested in court. That said, it does potentially change the dynamic of any test case
 

David Rose

Active member
The hope is that it will not need to be tested in court - that we may be able to use the opinion to persuade the relevant public bodies to accept that this what the law really means. That may prove too optimistic. We shall see...
 

graham

New member
David Rose said:
The hope is that it will not need to be tested in court - that we may be able to use the opinion to persuade the relevant public bodies to accept that this what the law really means. That may prove too optimistic. We shall see...

I'm sorry David, but until and unless it is tested in court it remains simply an opinion. An opinion that does not concur with the legal opinion held by DEFRA.

Sadly what it will do is give encouragement to idiots & I predict criminal damage within a couple of days.
 

Rhys

Moderator
graham said:
David Rose said:
The hope is that it will not need to be tested in court - that we may be able to use the opinion to persuade the relevant public bodies to accept that this what the law really means. That may prove too optimistic. We shall see...

I'm sorry David, but until and unless it is tested in court it remains simply an opinion. An opinion that does not concur with the legal opinion held by DEFRA.

Graham, you're entirely dodging the point. The point is that DEFRA might change their opinion when they see this one.

Rhys
 

graham

New member
Rhys said:
graham said:
David Rose said:
The hope is that it will not need to be tested in court - that we may be able to use the opinion to persuade the relevant public bodies to accept that this what the law really means. That may prove too optimistic. We shall see...

I'm sorry David, but until and unless it is tested in court it remains simply an opinion. An opinion that does not concur with the legal opinion held by DEFRA.

Graham, you've entirely dodging the point. The point is that DEFRA might change their opinion when they see this one.

Rhys

Have you read it Rhys? They won't. Not on the basis of the FoI information I have had from them & from NE.

She says:

Conclusion

    The matter is not entirely free from doubt, since the term ?open-air? is undefined, and may carry different shades of meaning.

That matter has been debated within DEFRA & NE a number of times (I've seen the emails) & their position is that it does not apply. This opinion does not even cover other objections to the application of CRoW to caves, such as the inconvenient fact that they do not regard caves as being

mountain, moor, heath, down
 

martinr

Active member
I notice she hedges her bets and prefaces her conclusion by stating "The matter is not entirely free from doubt, since the term ?open-air? is undefined, and may carry different shades of meaning."

It may not the unequivocal interpretation people were hoping for. Caving might be covered by CRoW. Or it might not. I daresay if EN engage a QC now, they may get an opinion which supports their interpretation of CRoW  :confused:

Incidentally, , she also says access through a building isn't covered, would that apply to a blockhouse, or an entrance that has been constructed in some other way (eg an entrance via a gated pipe?)



 

martinr

Active member
Rhys said:
The point is that DEFRA might change their opinion when they see this one.

Rhys

Or they might not?

They presumably have access to people equally as qualified as Ms Rose. How do we know they have not already had a QC opinion that caving is not covered?
 

David Rose

Active member
Graham, in the interests of transparency and an informed debate, it would be very useful if you would make the materials you mention widely available too. Will you ask Chris to put them on the website?
 

Rhys

Moderator
This opinion was never going to be a silver bullet to kill the debate; or even a "clarification" unless it happened to agree with the existing official advice. The official advice may or may not change because of this.

Graham, if you have relevant information from a Freedom of Information request, please share it with us all - or provide a link. I recently checked for any relevant requests online but couldn't find any. The organisation I work for publishes the details of all such requests on its website.

Rhys
 

complex

Member
David Rose said:
My sister, Dinah Rose QC, a leading public law expert, has now written her formal, legal opinion on whether cavers should have free access to caves on CROW land and concluded that we do. In her view, Parliament cannot have intended to exempt caving from the CROW Act's provisions, there is no public policy reason why caves should be excluded, and it would be "irrational" - a word with a very strong legal meaning - to argue that they are.

One quick question: where does Dinah use the word "irrational" in her opinion? My quick skim reading of the document during my lunch break failed to find it.
 

molerat

Member
Many thanks to Dinah and everyone else involved for the time and effort put in to this valuable piece of work.

complex said:
One quick question: where does Dinah use the word "irrational" in her opinion? My quick skim reading of the document during my lunch break failed to find it.

"Put shortly, the interpretation of ?open-air? in CROW as meaning ?open to the sky? rather than ?outdoor? is in my view too technical and narrow, and does not accord with the policy of the act, or lead to a rational outcome."
 

martinr

Active member
David - can you explain how "The matter is not entirely free from doubt" became "QC says cavers DO have access to caves under the CROW Act" ?
 

TheBitterEnd

Well-known member
Well the whole thing is clearly questionable since Cumbria is missed of the list of counties containing significant cave systems  ;)

Seriously though many thanks to Dinah and to David, Tim and Bob for making this happen. Anyone who was expecting an unequivocal "yes" or "no" is clearly detached from reality but the fact is that a senior QC has considered this and and found that there is a strong case for Access Land to include caving. This is the most senior opinion we have and therefore carries much more weight than the barrack room lawyers of this forum (and their much vaunted citations to things they conveniently can't post on a public forum).
 
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