Author Topic: Is the CRoW Campaign Against the BCA Constitution?  (Read 5409 times)

Offline Cookie

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Is the CRoW Campaign Against the BCA Constitution?
« on: April 08, 2016, 07:21:02 pm »
Apologies to all other readers for this but I suspect it is better if I do this publicly rather than by PM.  (It might also help save some time at Saturday's Council meeting.)

So are you saying campaigning to remove landowner rights is not against the Constitution?
Cookie - Your 2015 AGM motion stated that "This meeting confirms that the Constitution allows BCA to seek clarification from DEFRA and Natural England on their existing guidance on The CRoW Act and its application to caving." and places no condition on what else BCA might (or might not) do.  I for one understood your motion to solely focus on the point that the constitution did not allow BCA to campaign to change the law; a point which had been conceded some considerable time ago (I think during the debate on the original proposal in 2014).  As I recall, I made that point during the debate at the 2015 AGM in response to your motion.  (But the minutes record little detail.)

This goes to the heart of the discussion on whether BCA is in breach of its own Constitution.

The Constitution says "4.6. That the owners and tenants of property containing caves have the right to grant or withhold access.". CRoW clarification or not the landowners currently exercise the right. The CRoW campaign's goal is to remove some of those rights. Therefore the CRoW campaign is against the Constitution.

So the conversation goes on to whether the AGM gave National Council (NC) the power to ignore the Constitution by passing the motion "This meeting confirms that the Constitution allows BCA to seek clarification from DEFRA and Natural England on their existing guidance on The CRoW Act and its application to caving." (which, by the way, was not my motion)

There are no other relevant motions passed by the AGM so if this motion doesn't give the NC the power to act against the Constitution then the NC is acting against the Constitution.

The motion authorised communication with DEFRA and NE only. I don't believe lobbying MPs, national newspaper articles and slots on national television can be regarded as a valid means of communication with DEFRA and NE. Nor are these other people and organisations in a position to clarify the legislation.

Clarification is essentially a passive act and it could be argued that it is not against the Constitution because it is a revealed truth that was there all along.

But an active campaign to place pressure on DEFRA/NE to change their clearly stated and repeatedly stated view can not possibly be seen as clarification.

There seems to be a view that if it doesn't require an act of Parliament then all these actions can be regarded a "clarification". I don't believe that is true. Forcing a change of interpretation of the current legislation is not "clarification".

So for these reasons I believe the BCA is in breach of its Constitution.

 



Dave Cooke. BCA: IT Working Party Convenor, Web Services, Webmaster

Offline Peter Burgess

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #1 on: April 08, 2016, 07:30:58 pm »
Very clear. Thanks, Cookie. The difference in "clarification" and "persuasion for a change of interpretation" is very obvious now you point it out. One is "please can you make it clear to us what you mean", and the other is "please can you change your mind on what you mean". It's the difference between a FoI request, and parliamentary lobbying, for example.

Offline droid

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #2 on: April 08, 2016, 07:53:25 pm »
Whilst I don't doubt that the majority vote WAS to campaign for a change in interpretation of CRoW, I have to say that the whole process of Referendum was hopelessly rushed.

Might have been better (with the 20/20 vision of hindsight) to have sorted this out *before* the Referendum.

A few more months wouldn't have mattered that much would it?
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Offline Peter Burgess

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #3 on: April 08, 2016, 07:57:10 pm »
 I have a feeling it WAS discussed before the ref, but not acted upon? TBH I am not sure.

Offline cavermark

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #4 on: April 08, 2016, 08:27:20 pm »
So lets propose and vote through an amendment to the constitution, according to section 8.4 and 8.11 of the constitution. Then the campaign that the majority of the voters in the referendum wanted can continue, and bring about all the well understood benefits of more open access to large numbers of cave sites.

Offline cavermark

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #5 on: April 08, 2016, 08:35:23 pm »
3.1. To support Members of the Association in obtaining, ensuring, maintaining and encouraging the development of access arrangements at national, regional and club level in accordance with national, regional or club practice.

If we don't campaign for CRoW (a development of access arrangements) will we not also be in breach of the constitution?

Offline Bob Mehew

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #6 on: April 08, 2016, 08:47:30 pm »
Sorry this is not in order.  You say "which, by the way, was not my motion".  My apologies, I see the motion was proposed by Damian Weare and seconded by Andy Eavis.

You state "The CRoW campaign's goal is to remove some of those rights."  I disagree.  If the law is interpreted in the way we claim it should be, then the landowner has not held any such right since 2000.  Having obtained QC opinion supporting our claim, it was accepted that BCA would hold a referendum to seek the view of the membership.  Council on the back of the result of that referendum agreed to a campaign (as stated in the wording of the motion - "Should the BCA, on your behalf, campaign for the Countryside and Rights of Way Act to apply to going underground?").  We then moved onto a debate over whether seeking a change in interpretation as opposed to a change in law was within the constitution, even though my memory is it was discussed pre referendum.  I accept that a change in law would as its premise concede that the land owner had the right to withhold access.  It is that principle I thought we had debated within the 2015 motion and accepted at that AGM.  The goal of the campaign is to achieve a change in interpretation of CRoW.

The notice of the poll also stated that:

   "In the event of a majority of members saying "yes", BCA will ...

              continue our dialogue with DEFRA, NE and NRW, including seeking advice on successfully limiting  access to our most fragile sites or to sites which might represent a danger to the public;
   
              consult with land owners and open communication with the Countryside Land and Business Association;
   
              seek further legal opinion to support our case;
   
              liaise with other like-minded organisations, such as the BMC and BCU;
   
              continue to explore ways to effectively protect our more fragile sites;
   
               seek to change Section 4.6 of our Constitution at the June 2015 Annual General Meeting;
   
              work with Regional Councils, affected land owners and Access-Controlling Bodies to ease the transition;
   
              lobby MPs and other persons of influence to push for CRoW to apply to going underground.
"
   
The 2015 motion does not make any statement about not undertaking these other actions mentioned nor provide any direction to Council about them.  If that were intended, then the 2015 motion instead of just saying "This meeting confirms that the Constitution allows BCA to seek clarification from DEFRA and Natural England on their existing guidance on The CRoW Act and its application to caving." would have gone onto say something along the lines of '...and instructs Council to cease other activities noted in the poll...'.  I can understand the tactics of you not raising that point at the time.  I certainly do not recall any discussion on such a step during the debate and as I have previously said, the minutes record little detail. 

Obviously we fundamentally disagree so I guess the next step is to see what is said tomorrow at Council, including the intent of the motion as seen by Damian and Andy. 

Offline Peter Burgess

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #7 on: April 08, 2016, 09:12:19 pm »
3.1. To support Members of the Association in obtaining, ensuring, maintaining and encouraging the development of access arrangements at national, regional and club level in accordance with national, regional or club practice.

If we don't campaign for CRoW (a development of access arrangements) will we not also be in breach of the constitution?
No. Obviously. Silly question. It doesn't specify HOW the development should be encouraged.

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #8 on: April 08, 2016, 09:20:38 pm »
3.1. To support Members of the Association in obtaining, ensuring, maintaining and encouraging the development of access arrangements at national, regional and club level in accordance with national, regional or club practice.

If we don't campaign for CRoW (a development of access arrangements) will we not also be in breach of the constitution?
No. Obviously. Silly question. It doesn't specify HOW the development should be encouraged.

Not at all "obviously", and not at all silly. It is a *very* valid point, should we be going down the route of nit-picking and interpreting the constitution.
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Offline badger

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #9 on: April 08, 2016, 09:30:49 pm »
to be perfectly honest the whole thing from cavers in both camps and especially some cavers who  hold positions within clubs/regions/bca is becoming embarrassing from cavers who need to look seriously at what they are doing to English/welsh caving and the bca who is supposed to represent its members, either members/clubs/regions support the bca, even if they don't like the result of a referendum regardless to how many voted, the members as whole supported a campaign, those who voted therefore would expect the bca to act as per vote.
maybe we need a referendum to change the constitution, but if that also comes out in favour would those who oppose then accept the will of the membership

Offline badger

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #10 on: April 08, 2016, 09:33:44 pm »
I would say Tim Allen has acted with professionalism giving both positive and negative views from what he has been doing,

Offline droid

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #11 on: April 08, 2016, 09:40:12 pm »
Tim has been presumably given a detailed mandate from BCA and is doing what he is told.

I'm guessing it isn't his fault the BCA seems not to have sorted it's own constitution out before proceeding. A simple process of nailing down ambiguities would have sufficed.
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Offline Peter Burgess

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #12 on: April 08, 2016, 09:57:05 pm »
Not ensuring that the constitution was amended to remove the contradiction being debated has resulted in a completely unnecessary conflict over the matter. The rush to get a members' mandate to seek access to caves under CRoW could be seen to be a rather devious tactic, with inevitable consequences. I clearly recall, I don't know where, but have a clear recollection of it being considered a "problem" that a much greater majority of opinion is required to have a fundamental tenet of the BCA altered, than the simple majority of the poll. To require a greater majority on changes to constitutional content is not "unfair" - it protects very important matters from being overturned and then changed again at the whim of whatever faction is prevalent at any particular time. It protects the fundamental nature of an organisation and what it stands for. If a constitutional amendment had not been approved with the required greater majority, then the poll may not have even taken place with the consequent furore over this contradiction we now have (despite those who deny that we have one). If a constitutional change had been approved, then I imagine there would have been a much smoother ride for a properly mandated charge to seek access to caves under CRoW.
So, to rush into the poll has now resulted in much pressure from pros to accept the result because of the poll, whereas those who are not happy have seen a fundamental value of the BCA being ridden over rough-shod, and are understandably not impressed.

Offline badger

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #13 on: April 08, 2016, 10:02:53 pm »
so lets have a referendum on that point of the constitution
but lets all every caver pro or anti look at themselves and they behaviour. to perfectly honest if I did not know we where adults I would think it was a infant school. they done this, no they said this, not they have not done this, no but we did this and so on and so on, and cavers both sides of this debate are all at fault.
maybe we should all go for parliament cause it seems about the same as PM questions.

Offline Peter Burgess

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #14 on: April 08, 2016, 10:13:54 pm »
I have just been reminded that the BCA council itself discussed this in advance of the poll, and the opportunity to sort it out was considered, but it never happened. The idea, as far as I can tell, was that the poll would actually have been a poll to change the relevant clause as required, and it would be made clear that by accepting the change we would also be approving a campaign such as we have. However, as that poll would have required a much greater majority, is it possible that those scared that the change would NOT be approved, made sure that only a 50 percent or greater mandate would be required, by simply not asking for a constitution change? This leaves us in this ridiculous position. You can see how easy it is to think this was done deliberately.

Offline droid

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #15 on: April 08, 2016, 10:18:00 pm »
Never attribute malice where you can attribute stupidity....quote from somewhere, haven't a clue where.

Cue S. Wilson claiming 'dirty tricks'....but from who?
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Offline Peter Burgess

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #16 on: April 08, 2016, 10:19:18 pm »
Never attribute malice where you can attribute stupidity....quote from somewhere, haven't a clue where.
Very true. I didn't make the attribution, simply pointing out how easy it is to wonder if it was deliberate.

Offline cavermark

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #17 on: April 08, 2016, 10:22:31 pm »
"Don't waste time trying to guess what motivates anybody..."

Offline MarkS

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #18 on: April 08, 2016, 10:45:58 pm »
The two principally relevant points from the constitution appear to be the aim, "3.1 To support Members of the Association in obtaining, ensuring, maintaining and encouraging the development of access arrangements", and the guiding principal, "4.6. That the owners and tenants of property containing caves have the right to grant or withhold access.", along with the rest of section 4.6 in which it is made eminently clear that free access should be encouraged.

If the BCA chose not to follow through with the actions listed on the poll, which Bob Mehew pointed out above, it could clearly be argued that it wasn't supporting the members of the asssociation in encouraging the development of access arrangements (i.e. acting against section 3.1). Having acted on many (or all?) of the actions on the poll, it is being argued that it isn't acting on the premise that the owners/tentants have the right to grant access (i.e. acting against section 4.6). Given the obvious opposing arguments here, surely the only justifiable action is to act on the results of the poll, which is exactly what the BCA are doing?

Having voted and been pleased to see such a proactive response from the BCA following the poll, I'd be annoyed if they stalled their efforts on the basis that they may be contradicting one point in the consititution, and by doing so potentially just contradicting another.

Offline Peter Burgess

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #19 on: April 08, 2016, 10:50:19 pm »
I suggest everybody reads exactly what the BCA itself recorded on this matter back in October 2014. It makes interesting reading in the light of what has since happened.

Offline jasonbirder

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #20 on: April 08, 2016, 10:54:57 pm »
Quote
....Constitution...Constitution...4.6....Constitution...AGM..National Council...Constitution...passing the motion ...relevant motions...passed by the AGM...Constitution...Constitution.
...motion...Constitution...Constitution.


Really? Does anyone (other than possibly a tax dodging politician) speak like this in real life...

Does anybody genuinely believe that referring obscurely to the minutia of the legalese in a document few people have bothered to read gives anyone reason to try to delay and obstruct the clear wishes of the BCA members...

Lets not forget what the BCA is....its not ruling the country, its not a court of law or a company worth millions of pounds...its a club of cavers...it is EXACTLY what we the members want it to be...and we want it to be a body that supports access for Cavers...we've been asked and our opinion was LOUD and CLEAR


Offline danthecavingman

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #21 on: April 08, 2016, 10:59:13 pm »
Oh no it wasnt!  ;)
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Offline Cap'n Chris

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #22 on: April 08, 2016, 11:02:49 pm »
... a document few people have bothered to read ...

Jumps out.

Offline Peter Burgess

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #23 on: April 08, 2016, 11:03:34 pm »
Good spot, Chris. Go and read it before passing comment.

Offline jasonbirder

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Re: Is the CRoW Campaign Against the BCA Constitution?
« Reply #24 on: April 08, 2016, 11:11:26 pm »
Why? I'm a caver...not a Technical Author...(or professional bore)

It doesn't take a genius to work out whats happening when the club you're a member of takes a vote...and people that disagree with that vote start bleating on about some trivial procedural point...

Its not big...its not clever and it doesn't reflect well on them...

Getting into the detail of it dignifies their arguments far beyond what they deserve...the rights and wrongs of Article 27 Subsection xxvii Paragraph 13.2 as laid down by the Constitutional Subcommittee on 17th of May 1971 doesn't come into it

Its not a procedural issue...its a moral issue...

One side won the argument,,,another side lost...do the decent thing...man up and accept it...