New stage of CROW access campaign

RobinGriffiths

Well-known member
cavemanmike said:
Quality cave dave and believe it or not not that many people have gone to the end

Dunno if it's true, but I saw a statement somewhere at some point saying more people had been to the moon!  #12, surely that can't be correct?
 
The written response of the Welsh Government to the BCA's representations paper arrived on 1st April which was discussed by BCA Council on April 5th.

To recap, the case was compromised and so did not have a final hearing. The compromise was that BCA would send in a representations paper within 8 weeks and then WG would consider over the following 2 months whether to improve cave access in Wales or not, and they would have to give their reasons for that with reference to present legislation like CROW.

The result is that WG has decided to do nothing to improve caving and their reason is a lack of resources. They have been very careful not to repeat their earlier mis-step of coupling a formal decision to a particular interpretation of statute as gave rise to this JR case in the first place when they dis-invited caving from the national access reform programme because they claimed the CROW Act does not cover caving.

BCA may say they had no choice but to accept a compromise, because one had been offered by the WG, rather than let the case continue to a formal hearing and then risk looking obstructive in court. But rejecting a compromise which allowed the WG the complete discretion to determine the outcome of the case could not be a fair compromise and thus not one that could have been admitted as practical.

BCA may say they lacked sufficient existing funds to continue the case, but they did not ask the membership about any budget difficulties nor ask for private contributions to top it up.

I have decided to leave the BCA CROW Access Group over this matter as I am struggling to see sufficient benefits from the way the case has been managed. To be clear, the Access Group have been in an advisory role throughout concerning CROW, and not running the JR case.
 

Badlad

Administrator
Staff member
It is worth recording that David Rose, the BCA CRoW convener and prominent person in the case is away on expedition at the moment. I know he is at a deep camp underground and in a fairly remote area. I'm sure he'll make a full report on his return at the end of the month.

He did ask me to summarise the efforts put into the campaign which I will do in the next few days.
 

Badlad

Administrator
Staff member
I wouldn't say that myself. As David reported several months ago the Welsh Government offered a settlement on the Judicial Review and the legal advice was that we should accept it. Pursuing a court case with a settlement on the table was likely to severely reduce our chances of further success. The process of that settlement has now come to a disappointing end with little material gain.

It is worth remembering that the primary issue in the case was the Welsh Governments exclusion of caving from its Access Reform Advisory Group. The secondary issue was the reason given that CRoW did not apply to caving. Despite being given every opportunity to have the secondary issue settled in court the WG, together with NRW and DEFRA used every available filibuster so that it didn't get before the judge. I can only presume that they did not have much confidence in their case.

This was all in contrast to the letters I received from the minister at DEFRA several years ago when I was running the campaign. He stated that although their view was that CRoW did not apply to caving that was only their view and it would be up to a judge to decide in court. It looks to me like when it came to a judge deciding they didn't want to take the risk of being wrong.

There are now options going forward which will need to be considered by David and the BCA. I'm sure we're going to hear more when he gets back from expedition.
 

andrewmcleod

Well-known member
My first instinct is to wait for those who actually have an informed legal opinion.

But this is a forum, so here's my horribly uneducated guess at what is happening :p

FULL DISCLAIMER: all the above might be total rubbish. But this applies to everything else people have written so far about this response...

The WG agreed to a consent order that was carefully worded so that (amongst other things) they would be required to explain their original decision, giving full reasons and specifically their interpretation of the CROW act. This would then present a simpler case for a judicial review (if we didn't like their interpretation of the CROW act. It was always expected that the next step might be a (more straightforward) judicial review, and realistically there was little chance of the WG suddenly changing their mind so I guess this was the likeliest outcome.

Unless they have managed to weasel out of this due to poor drafting (and I have no reason to think this is the case), then there are two obvious routes this can go.
1) they haven't stated their interpretation of the CROW act in a way relating to their decision, in which case they may not have complied with the consent order
2) they have stated their interpretation of the CROW act relating to their previous decision, and it can be challenge in a straightforward judicial review.

I will also be waiting for Dave's summary of the lawyer's responses. The logic is, I believe, that most of the legwork making documentation for the case that caving is included under CROW has already been done, so a straightforward JR would just be a restating of that (incurring minimal costs, hopefully).

PS I believe that 90% of that WG response is completely irrelevant. All that matters is that they state their interpretation of the CROW act as it applied to their previous decision. Therefore I most of Stuart's points are not really of concern to me (although clearly they have finally got their act together in actually making a coherent response).
 
The Consent Order 8/12/2021 which ended the case without a hearing was as follows:

"The Welsh Government [undertakes]:
A. To consider reform of access arrangements for caving in Wales in accordance with the provisions and timetable set out in the Schedule hereto; and,
B. To provide full reasons for any decisions reached, including the Welsh Ministers’ interpretation of The Countryside and Rights of Way Act 2000 (the 2000 Act) such as is relevant to the decisions reached and which will include the Welsh Ministers’ reasoning as to whether "open-air recreation" for the purposes of section 2(1) of the 2000 Act does or does not include caving."

The above order did not seek an explanation of the 2020 decision to dis-invite caving from the reform programme then (which gave rise to the 2020 JR case) and instead it’s an undertaking to consider afresh whether or not to reform cave access going forward in 2022 and to explain why. When the Minister’s decision under this court order arrived on 1st April it was not to reform cave access and his reason for that was simply a lack of resources.

It does not take a genius to realise that the 2000 Act is not relevant to doing nothing if your reason for doing nothing is a lack of resources. Therefore to comply with the court order the minister does not have to explain his reasoning for doing nothing in terms of the 2000 Act because it has nothing to say about lacking resources.

The claimant/BCA were not, in the end, willing to take the 2020 case to a final court hearing in which we had some chance of success; and despite spending a huge amount of money and effort, they decided on a compromise exit instead which has delivered no benefits at all to caving, as any sensible person would have seen coming down the line. We didn’t need to get the government to re-state its position on CROW in terms of its January 2020 decision to dis-invite for "open-air" reasons. We already had them on that with the case which was stopped.

However, on a positive note, we’re now able to argue from our lengthy journey with the many attempts by our opposite numbers to prevent our 2020 case ever reaching a court hearing that the government has little confidence that their interpretation of CROW could withstand legal scrutiny and this was why they would not allow themselves to be put to proof in open court.

If contesting the case was unacceptable to BCA then any consent order should have turned the clock back by obliging the government to form a new committee to spend a year specifically looking into caving and then report back because that would have righted the original wrong which was to dis-invite caving from the reform programme of January 2020.

I suggested the above form of compromise and nobody took any notice of me; then the government escaped as predicted. Given the time and costs to get where we were, we should have taken our chances in court rather than abandon ship. I find it hard to believe that the lawyers encouraged our case to develop for 18 months, only to advise at the last moment not to proceed with it. The opportunity will not come again with our opponents now wiser. Put simply, it seems to me that a unique opportunity has been forgone by choice, and that is why I left the CROW group when I did.

A second court case? Dream on.
 

David Rose

Active member
This is only a preliminary contribution. I’m in the Mexican Huautla area, internet coverage is patchy and I’ve not had a chance to discuss the situation with the other members of the Crow group from which Stuart, regrettably, has resigned.

But this is an email I sent out some days ago to the BCA council and the group before going on an underground camp:

*****

Hello from a very remote Mexican village, which does have satellite internet.

The WG response to the BCA representations is attached. I believe some of you may not have seen it.

I want to make a few points here.

1. For the very first time, the WG is now engaging properly on the substance of the issue - should/does Crow apply to caving. Their response is disappointing. But it does give reasons why they disagree with us. Our job now is to decide: can we challenge them to the point where we would stand a decent chance of winning a further JR?

2. As Richard Buxton states in the appended letter, such a JR would not be clouded by procedural diversions. It would be focused solely on the central issue. To have got to this point, given that the WG spent two years trying to bog us down with exactly such diversions, is an achievement and an opportunity. We can get this thing resolve now, one way or the other.

3. I understand certain individuals have suggested that the fact that the WG is taking this line demonstrates that we should not have settled the original case last year, but fought it out in court. I remind you that we did so after receiving advice from leading counsel that had we done so, there was a strong likelihood that the case would not have even got to the substantive issue at all, and that we would thus have eliminated any chance of recouping any costs. Our QC put our prospects at around 30%. Not great odds. If we had refused the settlement we would have shut down any possibility of the opportunity we do now have of a new case focused on the matter we have always wanted resolved in court.

4. The question therefore is: how far can we undermine the WG response? As some of you know, I am away caving. Tomorrow I start a six day underground camp. But I can chip in when I’m on the surface. I ask those with the requisite knowledge to begin considering what facts and arguments we could now deploy. This is our chance. We should seize it.

David Rose

****

I followed this with a further note:

*****

There is a further point. Stuart and I had a lengthy discussion about the decision to accept the settlement. Much of this is preserved as emails. He reluctantly accepted that because of the restricted way in which the JR process works, we really had no choice.

*****

This is the reality. We were boxed in by the highly technical nature of the JR a process, and by the obstructive way the WG fought the case for the best part of two years.

However, we now are at a position where we can fight a further case unclouded by any of the procedural issues that bogged the first one down. It would be a straight fight, too, in which we would ask the court two questions: does Crow apply to caving or not? And given that the WG advisory group has already recommended that the Act should be extended to cover horse riders and cyclists, are we being unfairly discriminated against?

Meanwhile, we are still anticipating a substantial costs refund from the first case, so we should be able to begin this from a position of strength.

The WG has, for the first time, set out a bunch of reasons to justify its position. Some are, to me, patently absurd, such as the claims that no one knows exactly where cave entrances are, and that caves are not mapped, so that establishing which caves would come under Crow access provisions would be disproportionately expensive, requiring a vast surveying operation.

We don’t have much time to file a new case: three months from the WG issuing its decision on 1 April (a symbolic date).

The job now is to determine how far their reasons can be exploded, and therefore how good our chances would be.

I have to say I am disappointed by Stuart’s suggestion that we somehow “capitulated” in accepting the first settlement offer, and that the case was abandoned when we had a prospect of winning. In fact, as he should be aware, our QC was very clear that there was a strong likelihood we wouldn’t even be able to get the court to consider the substantive argument over the meaning of the law if we’d rejected the deal, and would have spent several very expensive days in court for no conceivable benefit.
 
Sadly, the above forum post is the first I've heard of a 30% (or other specific) chance of success from the QC for the case. The BCA CROW working party has been run at arm's length. I've never met, spoken to, nor been in any meeting with this QC, yet I'm a member, or was, of the BCA group, and I'm the Access Officer for Wales and the offended party who was dis-invited from the Welsh access reform programme.

It is absurd for David to equate cavers with equestrians and mountain bikers. The latter definitely had no pre-existing access rights, being excluded explicitly under the CROW Act Schedule 2. Though lacking any legal access rights these groups were nevertheless invited into the access reform programme. But cavers were excluded from it on a pretext that artful interpretations of sections of the Act that do not deal with exclusions were deliberately framed by parliament to deny us access rights. This is coupled to the logical absurdity that a reform programme that was designed expressly to create new rights where none existed could not apply to us because we had no pre-existing rights (!) as construed by the government and its quangos.

So BCA has thrown away a 30% chance of success (as legally advised) and instead opted for a 0% chance of success by abandoning a unique challenge opportunity. The compromise to end the court case has handed the government the luxury of deciding to do something or nothing about caving as the government wished. They chose nothing, and that's not challengeable. The compromise also demanded reasons for their decision to be stated. They said it was a lack of resources. That is not challengeable either. As to costs, cases ending in compromises generally result in each side paying their own costs.

The only positive outcome useful to me in my access officer role is the certainty, imagined by the QC too it seems, the WG/ NRW/ Defra would fight to the bitter end from behind a shield of peripheral issues to prevent the central CROW-Caving question ever getting in front of a judge for determination. This says a great deal about our opposite numbers' obstructive conduct throughout this lengthy case, and I imagine their own private opinion of their limited chances of success in court for winning on the substantive CROW-Caving issue. This can be pointed out to any interested party in the future, and sadly that's about it folks.
 
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Badlad

Administrator
Staff member
I see in the paper today a piece on right to roam. Doesn't mention caving so the case is not receiving any media attention. https://www.theguardian.com/uk-news...o-roam-in-england-as-ministers-wind-up-review
To be fair it doesn't mention any specific outdoor activities. It is a more general piece about winding up a government review and not publishing any results. If it is not going to publish anything you can hardly expect to see specific sports mentioned.
A search on here will find you any number of pieces in the press on the CRoW campaign. There was a good one in the Times I remember and plenty of others. There is also your own very negative piece in Descent magazine for people to consider.
;):)
 

kay

Active member
It also doesn't concern existing right to roam, it's about hoped-for extensions to rights to roam to rivers and to land not currently covered, so is not relevant to the current case.
 
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