This is the report I have just written on the CROW Act case for next week's BCA council meeting. It sets out how we have won a partial victory, and the next steps we must take to make this something more. On reading it, maybe readers will understand why I was not delighted by another thread on this forum, which suggested that our continuing campaign has been a "waste of time and effort". As will be seen from the report, it contains a commitment by me and others to do quite a bit more voluntary work, and it's not pleasant to see our efforts dismissed in this manner. But I digress. 

1. After many twists and turns, the BCA?s judicial review over the Crow Act is, for the time being, settled. We have won a partial victory, and we are hoping we will be awarded at least a portion of our costs, although this remains to be determined by the judge ? not as a result of a hearing, but on the basis of written submissions.

2. Despite efforts we have made to simplify it, the ?consent order? settling the case is written in somewhat complex, legal language. Anyone who wants to see it can ask me for a copy. It is not yet ?sealed?, and this is not expected to happen for a week or so. The clock on its various deadlines doesn?t start ticking until it is.

3. So how did we get to here? The case has always had two distinct, though related, elements. The first was the decision made by the Welsh Government (WG) in January 2020 to exclude cavers, specifically the CCC access officer, Stuart France, from its Access Reform Advisory Group. The second was the reason it gave for doing so: that caving is not covered by the Crow Act?s ?right to roam? provisions on mountains and moorland. We, of course, argue that it does. Winning acceptance for this would benefit cavers across the country. Under the Act?s s.26, vulnerable caves on Crow land (such as St Cuthbert?s Swallet and Upper Flood Swallet in the Mendips) could continue to have restricted access, with gates and leader systems. Elsewhere, recognition that Crow applies to caves would open up important areas that are currently closed, especially in the northern Pennines, and remove uncertainty from others that do allow access, but where this could be removed at the whim of a landowner. Campaigning for this right has been BCA policy for many years.

4. At an early stage, the case became bogged down in legal technicalities. The WG (with Defra and Natural Resources Wales added as ?interested parties?) argued that there was no scope for a judicial review because the decision to exclude cavers from ARAG was not ?justiciable?. That means they claimed it wasn?t a decision by an administrative body that could be examined by a court. At first, our application for legal permission to bring the case was rejected by two successive High Court judges on this ground, but we appealed and won. That meant the Court of Appeal had determined there was an arguable case, both in relation to the first element and the second. Of course, the second element, the actual meaning of the law, is the one we care about. 

5. Since we won the appeal, the WG has continued to argue about everything. It has also been quite contradictory in its approach. It offered a settlement in July 2021, but said it couldn?t discuss the details until September because its lawyers were on holiday. Then it changed its mind, saying it wanted to fight the case after all, and it filed a formal defence to our claim. This defence continued to maintain we were wrong on both elements.

6. The problem for us was, that if we lost on the first element ? and there was, for various technical reasons, a risk that we might, despite the Appeal ruling  ? we would never get to the second element of the case, the bit we cared about. The court just wouldn?t ever get to making a decision over it. A few weeks ago, we instructed a QC, Gwion Lewis. He felt the odds this might happen were high. On the other hand, he also said that if we could get the second element in front of a court without any complications over the first, we would have a strong chance of winning. He thinks the law DOES mean what we say it does ? that Crow covers caving.

7. A few weeks ago, it looked as if the WG was going to agree that both sides should ask the court not to bother with the first element of the case at all, and just focus on the second. Then, after a few days? thought, it said no: it wanted to fight on both fronts.

8. However, it then made a further proposal. It suggested a settlement, which means we would not, for the time being, go to court. Under the terms of this settlement, within 56 days of the order being sealed, we must submit written representations saying how we think cave access should be reformed, and why. We must also address the question of whether ARAG or something similar should be convened to consider the issue. (The original ARAG has been wound up, having finished its work.) We won?t need lawyers to do this. I will write and edit the submission, with the help of the rest of the BCA Crow working group. 

9. Then, within another two months, the WG must say whether it intends to reform cave access, and whether it intends to convene a review body. It has to give reasons ? including its view of caving and Crow. This amounts to a significant victory. It means the WG is effectively admitting we should have been part of ARAG.

10. If, after we make our representations, the WG responds by saying: ?we don?t want to reform cave access or even consider it, and we don?t think Crow covers caving either?, we could launch a new judicial review. This would have the virtue of being much simpler, and only cover the second element of the current case. There would be no technicalities to get in the way. Because we have done all the preparatory work already, it would also be much cheaper. So this is also progress. 

11. If the WG does decide to set up a new review body like ARAG to consider caving, obviously we will try to persuade it of our case. It must report within 12 months of it being established. The WG would then have to tell us what it proposed to do about its report within another two months. That would also give us an opportunity to launch a fresh, much simpler, judicial review.

12. I?m sorry this is so complicated. I have to miss the BCA council meeting this week for family reasons but if anyone wishes to ask me questions, please PM me here.

13. At this stage, we do not have to take any decisions. I just need to get on with the representations.



David Rose, BCA CROW working group convenor
December 3, 2021

Really great work Dave.

Clear report, David, thanks 😊

My brain hurts 

David Rose said:

On reading it, maybe readers will understand why I was not delighted by another thread on this forum, which suggested that our continuing campaign has been a "waste of time and effort".

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But the other thread also indicates that you have the support and good wishes of the vast majority of the caving fraternity, which is more important.

The majority of those on UKC that othered to reply.

Sorry.

Pedant head on.

Thanks for all your hard work David!

If the settlement goes ahead can the WG decide that it doesn't need to reform access, and it doesn't need to set up a review body to do so, and if the WG does decide that is there anything we can do about it? If we applied for a judicial review of that decision would we then be down to the nitty gritty of whether CRoW applies to caving?

Top stuff David, thank you for your continued work and thank you to the others who are working hard behind the scenes too 

Ian

Ari: yes, that's exactly what we could do, and yes, we would be straight to a case where the only issue would be whether CROW applies to caving.

Stunning work!  Thank you all.

So am I reading this correctly with the vague summary below?
I've read through this report several times now trying to understand exactly what point has been reached, in simple terms as the machinations of the legal system can be interesting at times...

Fair play to all involved and the work they have put in for managing to negotiate this minefield with the Welsh Government.

1. We (Being the BCA and it's representatives on this matter) are now somewhere in the process of the steps of the settlement offered by the WG, where the written representations on cave access reform and the like must be presented.

2. The WG will then give their points on whether or not they are going to reform cave access and if CROW applies. (Though this already is partly an admission by them that Caving shouldn't have been excluded from the previous ARAG?)

3. If the points given by the WG are not satisfactory, then a second judicial review needs to be undertaken, this time though it would be aimed primarily at the 'Caving = Crow or not' point.

Am I also right in thinking that with DEFRA pinned as an 'interested party' in the review so far, that if the WG is forced to accept that Caving is covered by CROW, then this would most likely lead to changes in the way it's interpreted in the rest of the UK?

Shapatti, you are correct on all points.

Why do we not read about this in BCA News?
After all BCA are using our money to fight this case.

I sent the report to the BCA yesterday. If it?s not on the website now, it soon will be.

Great work keep at at

Thank you for all of the hard work, and here's hoping for a successful outcome at some point in the future (this a government body you're dealing with here, so 'slippage' is more than likely !)

One of the most important things of this whole campaign is that the national association of caving, with a democratic mandate, is challenging authority, both a government and their agencies.  This is no discourtesy, IMO, it is exactly what authorities expect of sport organisations looking to improve matters for those who participate in the activity.  Dismissing caving from the access reform group was just plain wrong.  The reasons given just wrong too.  Without challenge this would just give the authorities carte blanche to dismiss, ignore and side line caving from any future similar reform or review.  They have now got to sit up and take note at least.  Not giving caving a seat at the table is less likely to happen in future thanks to these efforts. 

The more specific CRoW campaign goes on.  It is likely to be long term with spin off improvements along the way such as the opening up of access in the North.  On with the submission and the next stage.

We also concurrently have underground exploration getting a huge amount of very positive media attention, thanks to the two recent major rescues, and the goodwill generated by those is an asset of value in arguments such as these. If cavers are perceived to be dogged, determined, adventurous, intelligent and above all, humane, rather than weird, beardy, dirty eccentrics, that's a very good thing for all of us in getting the activity taken more seriously by authorities.

pwhole said:

If cavers are perceived to be dogged, determined, adventurous, intelligent and above all, humane, rather than weird, beardy, dirty eccentrics, that's a very good thing for all of us in getting the activity taken more seriously by authorities.

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Can?t we be both?

Not if you want to sit on a sofa with Sally Nugent and Dan Walker, with them swooning all over you, no. At least they didn't ask either of them what they thought of the current Strictly Come Dancing situation, which is pretty much all they talk about now. That's basically why I had Sky News on at the time and missed this. Kay Burley's much more fearsome and makes politicians sweat, especially Raab. She loves torturing him