The legislators were aware of caving. It is mentioned in the Hobhouse Report which played a significant role forming a basis for the Act. Caving, via the NCA and others, responded to the consultation in 1998 and that is detailed in the consultation document. This quote from one of my submissions to a select committee sums up the issue.
10.The BCA and its officers have conducted an exhaustive search of Hansard, which has not turned up a single comment from anyone involved in the parliamentary debates suggesting that caving ought to be treated in a different manner to its sister sports. Indeed, speaking for the then-government in the House of Lords, Baroness Farrington successfully urged the withdrawal of an amendment which listed the activities that would be covered by the Act. She did so by arguing that such a list would be ?undesirably restrictive and unnecessary,? and would, wrongly, ?exclude activities which can properly take place inside or outside? activities not necessarily carried out in the open air.? In the then-government?s view, only activities which were specifically excluded from the CROW Act, such as hangliding, would not be covered. The Rt Hon Chris Mullin, Parliamentary Under Secretary of State for the Environment, Transport and the Regions clearly stated in April 2000, ?We are trying to allow everything that is not specifically excluded.? There is no schedule that lists caving as such an excluded activity.
Also a few snippets from the Dinah Rose QC opinion which I extracted for the same submission explains the case a little more...
?The intention of the legislation is to permit access to the countryside, for the purposes of the recreations that may be carried out in such areas. ?Open-air? in this context is best read in the sense of ?outdoor? (ie., not within a building). Excluding caving from the definition on the ground that caves are underground tunnels would lead to arbitrary distinctions. Some caves include shafts which are open to the sky.
?It is easy to see why Parliament was not intending to permit the public to access buildings. It is much harder to see why it should have been concerned to permit access only to locations with a view of the sky, or unconstrained air. Caving is an activity of the same kind as climbing, abseiling, scrambling, canyoning and walking, all of which are obviously intended to be included within CROW. There does not appear to be any policy reason for excluding caving from the scope of the Act.
?It is harder still to see why Parliament should have intended, as Natural England apparently believe, to include within the scope of CROW caves which are ?open to the sky?, on the side of mountains, or with open shafts, but to exclude cave systems with underground passages. The distinction is unprincipled. It tends to undermine the policy of the Act, by placing an arbitrary restraint on some forms of caving but not on others?
?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.?
?I conclude, ?that the better view is that caving is a form of ?open-air recreation? for the purposes of CROW, and that cavers are permitted to enter and remain on access land as shown on relevant maps, including cave systems falling within those areas, for the purpose of recreational caving.?