David Rose
Active member
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
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