David Rose
Active member
I'm writing this post in the interests of transparency, providing accurate information and avoiding misleading rumours.
Since Tim Allen's Descent article earlier this year, the debate over cavers' unrestricted access to land under the 2000 Countryside and Rights of Way Act has been gathering pace. Much of it is reflected in other threads on this forum. However, looming over all of it remain areas of legal uncertainty. The position currently being taken by the relevant authorities, as Tim described, is illogical: that cavers have an unrestricted right to abseil down entrance shafts on open moors, but not to explore the passages beyond. This does not appear likely to be what parliament intended. Meanwhile, in English law, the courts usually presume that something that isn't specifically excluded or banned - such as cavers' access under the CROW Act - is allowed. The legal view that the BCA had, until this year, accepted, appears, at the very least, to be questionable.
After conversations with Tim, I suggested approaching my sister, Dinah Rose, who not only has done a few trips underground, but happens to be a very eminent public and administrative law QC, to ask her for a formal legal opinion. Rather fortunately, a complicated case which she had expected to go to trial this month has recently settled, freeing up some of her time, and she has very kindly agreed to study the voluminous documentation that relates to this question and provide such a document on a pro bono basis.
Tim and Bob Mehew have spent many hours providing her with this documentation, from official reports, parliamentary debates and other sources going back many years - not just to the passage of the CROW Act, but to its more distant forerunners, in which phrases such as "open air recreation" were first used and defined. The consequence should be that we will have a definitive statement about cavers' rights or their absence, which will carry great weight in its own right with bodies such as DEFRA, local authorities, and environmental bodies.
I do not know, at this stage, on which side of the debate Dinah will come down. But either way, cavers will have a much clearer view of where we stand. Either way, her opinion will be a significant contribution, likely to influence future events for some time. She hopes to be in a position to draft it within the next few weeks. Watch this space.
Since Tim Allen's Descent article earlier this year, the debate over cavers' unrestricted access to land under the 2000 Countryside and Rights of Way Act has been gathering pace. Much of it is reflected in other threads on this forum. However, looming over all of it remain areas of legal uncertainty. The position currently being taken by the relevant authorities, as Tim described, is illogical: that cavers have an unrestricted right to abseil down entrance shafts on open moors, but not to explore the passages beyond. This does not appear likely to be what parliament intended. Meanwhile, in English law, the courts usually presume that something that isn't specifically excluded or banned - such as cavers' access under the CROW Act - is allowed. The legal view that the BCA had, until this year, accepted, appears, at the very least, to be questionable.
After conversations with Tim, I suggested approaching my sister, Dinah Rose, who not only has done a few trips underground, but happens to be a very eminent public and administrative law QC, to ask her for a formal legal opinion. Rather fortunately, a complicated case which she had expected to go to trial this month has recently settled, freeing up some of her time, and she has very kindly agreed to study the voluminous documentation that relates to this question and provide such a document on a pro bono basis.
Tim and Bob Mehew have spent many hours providing her with this documentation, from official reports, parliamentary debates and other sources going back many years - not just to the passage of the CROW Act, but to its more distant forerunners, in which phrases such as "open air recreation" were first used and defined. The consequence should be that we will have a definitive statement about cavers' rights or their absence, which will carry great weight in its own right with bodies such as DEFRA, local authorities, and environmental bodies.
I do not know, at this stage, on which side of the debate Dinah will come down. But either way, cavers will have a much clearer view of where we stand. Either way, her opinion will be a significant contribution, likely to influence future events for some time. She hopes to be in a position to draft it within the next few weeks. Watch this space.
