Although David Rose is the Claimant in this case and BCA is meeting his costs, I am the aggrieved party since ARAG refused me membership of its Working Groups on the grounds that ARAG believed caving is not ?open air access? (as they put it), and so CROW does not apply to caving in their view, and so removing any ambiguity in CROW concerning caving via the government's new access reform programme will not be considered - all because CROW does not apply to caving. Illogical I know!
I met the Deputy Minister in April 2019 and she asked me to write to her about what caving wanted regarding the upcoming sorting out of caving access in Wales within the upcoming reform programme that followed the Welsh Government public consultation which she had just trumpeted.
I did write, and she replied that she would get her ?officials? to deal with this or words to that effect. What actually happened is that an advisory committee called ARAG which was not (apparently) instructed by her "officials" dealt with it. ARAG is chaired by WG?s Head of Landscape and Recreation called Simon Pickering. WG and NRW provide the secretariat. WG funds it directly or via NRW. The judge today thought ARAG is not a part of WG and is purely advisory, has free rein, and is not publicly accountable.
It?s actually more complicated. ARAG is split into two levels: a upper level Steering Group that is non-advisory and is there to ?manage? the programme via 5 people and all of them central government or NRW or local government employees and all appointed by central government, and three lower level Expert Groups which are volunteers drawn from interest groups like ramblers, climbers, landowners, water companies, fishing, kayaking, hang-gliders etc, appointed by the Steering Group to advise on Policy Intents which were defined by (guess who) the Steering Group - and thus directly or indirectly by the government or by their own invention depending on whom you believe. To join an Expert Group you have to agree in advance to support the Policy Intents.
If Steering Group and its Policy Intents are not a part of Welsh Government and ARAG itself is non-government then it means an ad hoc group is somehow now in charge of defining future legislation which is nonsense so the premise that ARAG is non-government is nonsense too.
This is not necessarily the end of the matter as we could take our present case (i.e. asking a third time for permission to proceed with the main CROW case) to the Court of Appeal for not a lot of extra cost to BCA. The CA would then decide the matter of whether our CROW case is allowed to go ahead and thus to overturn today?s judgement.
Alternatively, for example, we can try to get NRW to affirm its statutory advice to the public under CROW S.20 and JR their affirmation that CROW does not apply to caving in their view. But they will then argue their general public advice was prepared too long ago to be reviewable by a court now and we?ll be back in the same game of the government wanting to argue over something other than CROW: in such a case it would be the effective date of the alleged incorrect NRW advice for judicial purposes. The case would then revolve around the smoke-screen of whether a policy affirmation is a new decision or not, in other words if it is eligible for JR or not.
Alternatively we could follow today's judge's incredible suggestion, if I heard this correctly, to engineer an alleged trespass case and get the access rights matter decided by a court in that way.
Alternatively we can ask the High Court for a Declaration that CROW applies or does not apply to caving because BCA is now uncertain as to how to correctly advise its members on whether all caving south of Scotland is trespass unless consented by the landowner because today?s case has solved nothing at all of importance and it leaves everything, as it was before, in limbo land.
Preventing the big legal questions from being addressed by erecting a smoke-screen issue in front of the main issues seems to be normal practice for government defence of JR cases.
Defending a case so as to leave things in limbo is not a win for the Welsh Government nor NRW because they have ducked the substantive questions by obstructing them from being decided by a court.