Premature action on CRoW?

[Peter Burgess]

Being fearless, but not wishing to be censured, I hope it is OK to bring this to members' attention, particularly to anybody involved with BCA. Some of you may think of accusing me of mischief, which is why I have thought long and hard about it. Please accept that all I want to do is to ensure things are being done properly.

Tim Allen, according to the BCA Council minutes

http://british-caving.org.uk/wiki3/lib/exe/fetch.php?media=about:documents:council_meetings:council_minutes_2015-06-14.pdf 

has been "appointed CRoW-Liaison Officer, working within the constraints of the BCA Constitution."

A key point is made by DW and Tim in the minutes:

"DW: As a matter of principle we would generally consider the C&A Committee to be the ones who should decide how the Committee should operate. CRoW has already been delegated to Executive and, therefore, we can legitimately appoint a CRoW-Liaison Officer, but we should be uncomfortable about dictating to C&A that it should split itself in two halves. If TA is to be appointed to work on BCA's behalf, he needs to confirm that he will not seek a change in the existing law, either on our behalf or personally.

TA: Is happy to agree to this."

Up to this point, all well and good. However.......
 
According to the latest BCA newsletter, Tim Allen has "begun to lobby a number of our MPs as some have shown a keen interest in recreational activities and the outdoors. He has been introduced to the parliamentary under-secretary for DEFRA by his own MP, Julian Smith. They have both been members of the APPG for Mountaineering until promotion in the party caused them to stand aside.

He has also been put in touch with the senior Conservative MP, the Rt. Hon. David Davis, who has agreed to support our cause and make representations to the minister on our behalf. Mr Davis has stated that he remembers well the passage of the CRoW Act through parliament and agrees with the opinion of Ms Rose."

So, why are Members of parliament being lobbied, if it not in pursuance of a change in the existing law, or the way it is interpreted?

BCA are obviously well within their rights to appoint a CRoW Liaison Officer but as the BCA constitution is currently written, and this was acknowledged by them when the CRoW poll was held, they would need to change the constitution before they could lobby for CRoW to apply for caving To quote Andy Eavis at the Council meeting held on 11th October 2014: "First of all, if we are to do anything as an Organisation towards changing CRoW we will have to change our Constitution, so that the rights of the landowner are not sacrosanct if the law says differently."  It makes no difference whether they are lobbying for a change in the law or a change in the interpretation of the law, a distinction which is meaningless in practice. Currently the constitution obliges the BCA Liaison Officer to lobby for the opposite - for DEFRA to maintain the current position.

Can someone please provide UK cavers with verifiable reassurance that the terms laid down in the minutes by the BCA are not being ignored, and that consequently the current constitution of the BCA is not being contravened?

 

[Simon Wilson]

         

 

[Peter Burgess]

Edited to correct poorly rendered punctuation characters.

 

[Badlad]

CRoW Liason Officer Report to Council - 1st October 2015.

The role of the CRoW Liason Officer

At the last Council meeting the Conservation & Access Officer announced his withdrawal from any association with a BCA campaign for the Countryside and Rights of Way Act 2000 to apply to going underground due to a conflict of interest with his employers, Natural England.  This is entirely understandable as any campaign would need to question the DEFRA/NE current interpretation which is applied to the Act. 
At the end of last year the BCA had conducted a poll of its entire membership asking the question;
Should BCA, on your behalf, campaign for the Countryside and Rights of Way Act to apply to going underground?
The result was a clear majority in favour and the BCA would find it difficult to fulfil the expectations of its membership without some form of dedicated access officer.  With the support of the C&A Officer I stepped forward and offered to take on this role.  There was some debate before the new title of ?CRoW Liason Officer? was decided upon and I was duly voted into the role with all agreed bar one against.
There was further debate whether the term ?campaign? could be used at all, even though it was the term used in the membership poll.  Some members had suggested Section 4.6 of the Constitution prevented BCA from campaigning for any sort of change to the status quo.  Section 4.6 states:
That the owners and tenants of property containing caves have the right to grant or withhold access.
This had already been discussed at the January Council meeting where the Secretary stated;
DW: If it is determined that the current law actually includes caving, then there is no problem with our current Constitution as the law of the land takes precedent over a Constitution anyway. The problem arises the moment we seek to want the law to be changed, as that will be campaigning against landowners having the ultimate say. Section 4.6 says that this is a guiding principle of the Organisation and one, therefore, that we should not work against. Therefore, the point at which we are seeking to change the law, is the point at which we have to amend our Constitution.

It was suggested at the June Council meeting that I might have a conflict of interest myself, undertaking the role within these conditions.  Having given it more thought since, I can see no conflict between my pre-role position and the BCA mandate.  I have never sought to change the law (the CRoW Act), in favour of caving as I believe it already does apply to caving.  Much of my previous efforts has been to clarify the DEFRA/NE position and to question whether it is the correct interpretation of the law.  In doing this I, with others, have sought legal opinion from the eminent public barrister, Dinah Rose QC, whose opinion came out in favour of caving and with other BCA individuals researched, in depth, the history and passage of the Act through parliament.
Therefore, as the BCA poll question suggested, it is a matter of campaigning for the CRoW Act to apply to going underground as the law stands. This will include clarifying the existing law and questioning the current interpretation of that law by reference to the bullet points made on the BCA poll document in the event of a ?yes? vote.  This will also require persuading the relevant authorities that their interpretation of the law is incorrect and that it should be reconsidered in line with parliament?s intention.  If during the course of this work individuals, authorities or organisation conclude that changing the law is the only way forward then I would not campaign on this myself but gather information and report back to Council.
I would be pleased if Council could confirm that I may continue the role on this basis.

The current position

It is worth stressing the current advice and interpretation of the law from DEFRA/NE.  It is important to note that caving is NOT an activity which is excluded under the Act.  The advice from Paul Johnson, the principal specialist in statutory access at Natural England, is supported by DEFRA senior executive, Richard Heburn and confirms that any member of the public, including cavers, may walk to any cave entrance across ?access land? without any sort of permission what so ever.  They may also descend into the entrance for an indeterminate distance.
In Mr Johnson?s view, ?a cave on a hill that faces out into the open air? is covered by CROW. But, he goes on, ?the question in each case would then be how far inside a cave of this type, if it were deep, a member of the public would have to go before the rights ceased to apply because use no longer amounted to open-air recreation?.  In further correspondence Mr Johnson has suggested that this distance would be to the limit of daylight penetration.

The advice given by NE has been described as legally perverse by one MP.  Research of Hansard, the official report of proceedings in both the House of Commons and the House of Lords, suggests that it does not reflect the intention of parliament.  In Ms Rose?s view, to exclude caving from the scope of the Act simply because parts of caves have roofs is neither logical, nor in accordance with the wishes of Parliament when it passed the Act. She states:
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? (i.e., 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. Caving as an activity is closely analogous to climbing, abseiling and canyoning, all of which are unquestionably covered by CROW.

Taken together there is every good reason that cavers, and the BCA as the representing body, should call into question the advice given by DEFRA/NE. 
I would suggest, as a point of discussion for Council, that BCA should recommend that Access Controlling Bodies should honestly inform landowners of the current situation and this should include; current DEFRA/NE advice, the Dinah Rose opinion and the BCA poll outcome.  As well as being honest this may be helpful as some access agreements are in place to control access across the land and not necessarily to the cave itself.

The way forward

The BCA should develop a strategy on CRoW which will meet the expectations of its membership.  This should make reference to the bullet points used in the poll following the yes vote.  I would suggest the important objectives should be;
- Lobby MP?s who have an interest in the outdoors.  It is only through them and the Westminster processes that we can exert pressure on the civil servants of DEFRA/NE to change their advice.
- Gather support and inform organisations, authorities and landowners who have an interest in the outdoors and the caving regions affected.
- More generally present the social, economic and health benefits of caving as an outdoor recreational activity, emphasising the off-season value of caving to the rural economy. 
- Promote a better understanding of caving to authorities where that is lacking and the benefits of improved access to the activity.
- Be polite, respectful and honest whilst keeping landowners informed of the current situation and highlighting the benefit of reduced liability under CRoW.
- Exploit the potential reputational risk to DEFRA/NE in maintaining their current advice.
- Continue to promote better cave conservation education by best practice, good management and not by restriction.
- Address the concerns some cavers have over landowner reaction and conservation.

Ongoing work

Much of the background research into the CRoW Act and its application to cavers has been completed by independent cavers and made publically available.  In addition a powerful legal opinion has been obtained which together with the research is a great benefit to any BCA campaign.
Is it safe to assume that the debate on the issue of CRoW has been had by cavers?  There has been numerous informative articles in Descent and other sources of information freely available on line.  A quick check of ukcaving shows that in the last ten years there have been 35 specific topics raised on CRoW.  This has produced 4481 posts in reply and all together they have been viewed 235,510 times!
In recent months I have contacted a number of outdoor organisations and informed them of our position on CRoW with a view to gaining their support.  I have been in contact with several access officers of the BMC including Cath Flitcroft their main access lobbyist.  The BMC is the secretariat for the All Party Parliamentary Group on Mountaineering which is considering widening its remit to cover more of the outdoors.  I have also contacted the CEO of the Outdoor Industries Association which is closely linked to the Sports and Recreational Alliance.  These groups are both active in Westminster promoting outdoor issues and events.  I have more to do here over the winter months.
Some of our politicians have shown a keen interest in recreational activities and the outdoors and I plan to make contact with them.  My own MP here in the Dales, Julian Smith, used to be on the APPG for Mountaineering but resigned to be a whip for the government.  I wrote to him and he made representations to the parliamentary under-secretary for DEFRA on my behalf.  The reply he received from DEFRA was disappointing but not unexpected in trotting out a consistent position.  I plan to visit my MP at surgery this winter to see what more he can do.
Other cavers have put me in touch with the senior Tory MP, David Davis.  Mr Davis has agreed to champion our cause and make representations to the minister on our behalf.  He has stated that he remembers well the passage of the Act through parliament and agrees with the opinion of Ms Rose.  On the position of Natural England and my correspondence with them he concluded;
The outcome of this was deeply unsatisfactory, indeed in my view worthy of an episode of "Yes Minister".

The full outcome of this is awaited and further correspondence is expected.  Things are happening but the wheels of government turn very slowly and nobody should expect an immediate result.  I will continue to lobby on behalf of BCA, involving members of the exec as necessary, and look forward to reporting at further Council meetings.
Best regards
Tim Allen

 

[Badlad]

The full report to BCA Council printed above - rather than a few selected quotes.

If anyone wishes to see the full Council discussions on this matter they should go back probably a year and read all the Council minutes published on line

http://british-caving.org.uk/wiki3/doku.php?id=about:documents:council_meetings:start

BCA Council were happy for the CRoW officer to continue the role on the basis as described in the report.

Worth remembering that the BCA polled it's entire membership on the question , "Should BCA, on your behalf, campaign for the Countryside and Rights of Way Act to apply to going underground".

The membership returned a majority in favour and so that is the direction BCA is taking.

 

[Cookie]

The key thing is Due Process.

The Minutes of the October Council meeting are available from http://british-caving.org.uk/wiki3/doku.php?id=about:documents:council_meetings:start

They suggest Tim's report was accepted and therefore Council agrees with the way he is proceeding.

Personally I think if Tim proceeds as he has said, he will be acting outside of the BCA Constitution but who am I to say? Who decides these things (rhetorical)?

Ultimately the AGM but in the meantime it is BCA Council, the majority of whom support CRoW.

BCA Council has a real problem here because of due process, i.e. calling a vote to amend the Constitution, is in conflict with the majority view. It is unlikely sufficient members will vote to change the Constitution.

Due process is very important and in my view should be given a greater weight and value than BCA Council is currently doing.

 

[Peter Burgess]

I do not feel reassured. Badlad does not properly address what could worryingly be construed as the unconstitutional nature of his actions. This is what needs clarification. The "law of the land" does not take precedence over BCA constitution as the latter does not permit or require us to act illegally. I shall continue to monitor the posts here, and will let you know when I feel happier. I recognise the majority view that things should change, but do not accept that this should be done in an improper way. It would be interesting to know if anybody else has misgivings.

 

[NigR]

No misgivings at all, other than being concerned that Tim will find his efforts being needlessly obstructed from some quarters.

 

[bazdog]

Thanks tim for doing a great job. Hope common sense wins out.

 

[Badlad]

I do not feel reassured....

I can only suggest that you either write to the BCA secretary, chairman, C&A Officer, etc., with your concerns or indeed attend the next BCA Council meeting and bring them up in person.

Of course, CRoW already does apply to some caving as the DEFRA/NE guidance clearly states and which is detailed in my report.  Therefore, section 4.6 of the BCA constitution which states "that owners and tenants of property have the right to grant or withhold access" cannot apply in these circumstances as the law of the land, an Act of Parliament, trumps anything written in the BCA constitution.  That would be like saying that cavers, under the BCA constitution cannot walk on a Right of Way if the landowner wishes to stop them.

This particular section of the constitution appears somewhat dated, unclear as to its original intention and certainly unclear as to how it applies to this issue or for the benefit of cavers in general. Unfortunately those who don't agree with the Right to Roam have tried to use it as a barrier to progress, against the obvious will of the majority.

 

[ah147]

The majority of cavers want BCA to campaign for CRoW to apply.

Constitution this, due process that, balls to that.

Let common sense rule and let BCA do when people voted for, rather than throwing up roadblocks to try and slow momentum.


Sent from my iPhone using Tapatalk

 

[Peter Burgess]

I do not feel reassured....

I can only suggest that you either write to the BCA secretary, chairman, C&A Officer, etc., with your concerns or indeed attend the next BCA Council meeting and bring them up in person.

Of course, CRoW already does apply to some caving as the DEFRA/NE guidance clearly states and which is detailed in my report.  Therefore, section 4.6 of the BCA constitution which states "that owners and tenants of property have the right to grant or withhold access" cannot apply in these circumstances as the law of the land, an Act of Parliament, trumps anything written in the BCA constitution.  That would be like saying that cavers, under the BCA constitution cannot walk on a Right of Way if the landowner wishes to stop them.

This particular section of the constitution appears somewhat dated, unclear as to its original intention and certainly unclear as to how it applies to this issue or for the benefit of cavers in general. Unfortunately those who don't agree with the Right to Roam have tried to use it as a barrier to progress, against the obvious will of the majority.

Thank you for confirming that you are fully aware that you are acting unconstitutionally by ignoring the particular clause you refer to, simply because you think it is dated. The clause actually post-dates the passing of CRoW, so would have been made in the full knowledge of the legislation and how it was originally interpreted. I may not be reassured, but at least the position is properly clarified. that's really all we needed to know.
BCA appears to be allowing it's officers to act unconstitutionally and this could be setting  a worrying precedent and damaging its own reputation.

 

[Rhys]

I don't have any concerns. The possible conflict between constitution and CROW is a bit of a red herring, in my opinion. We're in a period of flux and potential change. While campaigning occurs, the law of the land trumps the BCA constitution and the constitution can be amended at a later date if need be.

Keep up the good work.

Rhys

 

[Simon Wilson]

 

[Badlad]

I do not feel reassured....

I can only suggest that you either write to the BCA secretary, chairman, C&A Officer, etc., with your concerns or indeed attend the next BCA Council meeting and bring them up in person.

Of course, CRoW already does apply to some caving as the DEFRA/NE guidance clearly states and which is detailed in my report.  Therefore, section 4.6 of the BCA constitution which states "that owners and tenants of property have the right to grant or withhold access" cannot apply in these circumstances as the law of the land, an Act of Parliament, trumps anything written in the BCA constitution.  That would be like saying that cavers, under the BCA constitution cannot walk on a Right of Way if the landowner wishes to stop them.

This particular section of the constitution appears somewhat dated, unclear as to its original intention and certainly unclear as to how it applies to this issue or for the benefit of cavers in general. Unfortunately those who don't agree with the Right to Roam have tried to use it as a barrier to progress, against the obvious will of the majority.

Thank you for confirming that you are fully aware that you are acting unconstitutionally by ignoring the particular clause you refer to, simply because you think it is dated. The clause actually post-dates the passing of CRoW, so would have been made in the full knowledge of the legislation and how it was originally interpreted. I may not be reassured, but at least the position is properly clarified. that's really all we needed to know.
BCA appears to be allowing it's officers to act unconstitutionally and this could be setting  a worrying precedent and damaging its own reputation.

[Sigh] Not true and not what I said. 

 

[steviet_scg]

The constitution also recommends that individuals are part of a caving club ? this doesn?t seem to stop BCA offering Direct Individual Membership.

I do feel reassured; don't feel that these actions are unconstitutional and expect that BCA's reputation will be enhanced by working towards the views expressed by its members.

Sent from my Nexus 4 using Tapatalk

 

[Ian Adams]

I completely agree with Rhys, what a very sensible post 

Additionally, (if this even needs saying), the BCA balloted members and got a "yes" vote back. A small number of "no" campaigners hiding behind  technicalities (and a smaller number of BCA members trying to derail a process by pressing home those technicalities) is a very poor show. Having been given a "yes", the BCA and the members should be doing everything in their power to move forward positively (as the members voted) rather than spending time trying to derail it.

If some officers of the BCA are unwilling to act in the members interests they should step aside and empower those who are prepared to represent our wishes.

Tim hasn't just expressed his opinion but he has put his "money where his mouth is" and actively gone out and done something about it (and continues to do so) that benefits us all as cavers.

We need more "Tim's" 

Ian

 

[Wayland Smith]

Some people would rather play party political games than move forward.
Then we end up having a meeting to decide if we can have a meeting to have a vote.
All for a few peoples politics or delaying tactics.

 

[Peter Burgess]

Whatever. I expected all the replies we have had today, but for those who care and who stay quiet, at least the matter is out. Thank you everyone for your well-considered responses.

 

[Ian Adams]

but for those who care and who stay quiet....

Care about what?  Stopping people going caving?