Problems looming for BCA?

[Mark Wright]

The proposed amendment has clearly been worded to further derail the campaign......

How do you work this one out?

Its basically mirroring a change to the constitution of Cambrian Caving Council of which I am legal and insurance officer and if memory serves me correct was originally instigated by me.

There is a situation in law whereby land ownership and mineral ownership can be in separate hands, and where this is the case and access to an abandoned mine is desired then the authority to grant or withhold permission will lie with the mineral owner. Likewise if a natural cave has had material extracted from it and sold, then it will be mineral property.

The change was instigated simply to reflect the true legal position and would actually work in favor of someone requiring access as even where a natural cave is concerned a mineral owner has full rights over land and beneath it. So a separate mineral owner could give permission even against wishes of the landowner, and vise verse. Access could only be denied by the two acting in concert.

If there is any desire by parties to use this to derail the CROW campaign, then it will be entirely due to their own possibly fanciful interpretation.

Having said all of this it may well be best option to remove it completely as suggested.

Many people, myself included, couldn't see the original wording of the first sentence of Section 4.6 precluding the BCA from pursuing the CRoW campaign, but clearly it did and has derailed it for the past 7 months.

The proposed amendment wording confused me even more than the original wording, and I'm sure I'm not alone.

I've been given a very detailed verbal explanation of the potential problems the amendment could introduce and removing the offending sentence would be the best way of providing clarity that the BCA is able to act effectively in the interests of its members in the case of CRoW and other issues which could arise in the future, particularly following the will of the 52% majority of those who voted us out of the EU and the ramifications this might have. That's bloody democracy for you.

I certainly don't claim to be an expert in the legal elements of cave or mine access, but I would certainly put you (Roy) in the category of somebody that does, and you agree that removing the sentence may be the best way forward so it can't be that important.

There is only one sure way of ensuring there is no fanciful interpretation of the first sentence of Section 4.6, get rid of it at the AGM and give the BCA CRoW Liaison Officer our full endorsement to  renew the campaign with vigour on Monday 12th June and look after the interests and access rights of all cavers.

Mark

 

[Ian Adams]

.... give the BCA CRoW Liaison Officer our full endorsement to  renew the campaign with vigour on Monday 12th June and look after the interests and access rights of all cavers.

Mark

+1 

 

[cavemanmike]

.... give the BCA CRoW Liaison Officer our full endorsement to  renew the campaign with vigour on Monday 12th June and look after the interests and access rights of all cavers.

Mark

+1 

? 1= 2
Keep it going  :

 

[droid]

I also suspect (but clearly can't prove) that most BCA members join because it is a requirement of their club membership and not by personal choice.


Mark

I suspect and in two cases can prove) that the requirement for BCA insurance and therefore 'membership' is a requirement if you want to cave with that club.

 

[andrewmcleod]

I also suspect (but clearly can't prove) that most BCA members join because it is a requirement of their club membership and not by personal choice.

There is a very good reason for this. Arguably the most important part of the BCA insurance is the insurance provided to the clubs themselves and their officers. I can't remember in exactly what circumstances club committee members (possibly even regular members?) are all liable if the club is sued for something, but having that insurance is well worth it! In exchange for requiring all club members to be insured, the club doesn't have to pay vast sums of money for insurance.

 

[droid]

Good point.

 

[cavemanmike]

Ye but be fair the insurance policy is a bit of a white elephant, if the policy had a significant claim against it we would all be in trouble and uninsurable

 

[ah147]

I also suspect (but clearly can't prove) that most BCA members join because it is a requirement of their club membership and not by personal choice.


Mark

I suspect and in two cases can prove) that the requirement for BCA insurance and therefore 'membership' is a requirement if you want to cave with that club.

If one member of the club is not insured, the entire club is not insured.

BCA insurance FAQs on their website I was reading the other day but can't be bothered to find and link to you all now.

 

[Jenny P]

Interestingly, if you look at the figures in the link quoted above, it appears that the grand total of 14.2% of the entire membership of BCA voted against allowing BCA to campaign to improve access to caves.

What percentage of the entire membership of the BCA voted in favour?

Simple calculation says 23% of the entire membership of BCA voted in favour, 14.2% against i.e. a ratio of 3:2 in favour.

Perhaps unfair to suggest that all those who didn't vote didn't care - there may well have been quite a few who thought about it and genuinely couldn't decide.  But in any ballot you normally only count those who vote for or against and disregard the non-voters.  It's not like a show of hands where you normally count "abstentions".  (And by the way, there was one notorious vote at an NCA meeting at which a contentious proposal was passed with 3 votes for, none against and 19 abstentions!)

The really disappointing aspect is the virulence and mud-slinging with which some of those opposed to the result of the vote have attacked those working to try to carry out the wishes of the BCA members as expressed in the result.  The vote was arranged in good faith to try to establish what was generally felt to be the best way forward and BCA now has to try to make progress along those lines. 

The BCA Constitution is open to differing interpretations of the first sentence of item 4.6 and the idea was to try to clarify this by amending the constitution to make it less ambiguous.  Constitutions are only ever guidelines and require good will to make them work - if the good will isn't there then almost any section of any constitution can be used to oppose action on a contested point by those determined to do so, irrespective of the result of any vote.  This is the situation in which BCA finds itself so we shall need a great deal of good will to resolve the problem.

 

[Ian Adams]

The really disappointing aspect is the virulence and mud-slinging with which some of those opposed to the result of the vote have attacked those working to try to carry out the wishes of the BCA members as expressed in the result.  The vote was arranged in good faith to try to establish what was generally felt to be the best way forward and BCA now has to try to make progress along those lines. 

+1 


Ian

 

[PeteHall]

Well said Jenny!

And sorry to keep bringing it up, but yet again, we are reminded that this whole argument stems from a matter of inturpretation.

An AGM has the authority to clarify the inturpretation by a simple vote, so the cost of a ballot could easily be avoided!

If however we do go ahead with a ballot, it would make sense to remove the offending sentence entirely. After all, the BCA constitution doesn't tell us to obey the speed limit on Bull Pot Farm Lane or that we shouldn't break into Inglesport and help ourselves to all that shiney new gear. These are matters of law which the BCA need not get involved in.

 

[royfellows]

Absolutely, Jenny, Ian and Pete.
Ownership carries common law rights which do not need to be affirmed in the constitution of an organisation. So if its its causing problems, get rid.
You cant come walking into my home unless I invite you and access at Cwmystwyth and Dinas although in effect 'free access' is courtesy of CMT and NAL who enjoy the common law rights of ownership.

 

[Mark Wright]

Ye but be fair the insurance policy is a bit of a white elephant, if the policy had a significant claim against it we would all be in trouble and uninsurable

We shouldn't be 'in trouble' as 'hopefully' the policy would pay out, but we would very likely be uninsurable the following year, or possibly immediately following a big payout and then all the access agreements that require cavers to be insured will have to be re-negotiated or scrapped completely, certainly causing a lot of 'trouble' for those tasked with sorting it all out.

I see the 'trouble' of not being insured as being a potential benefit. I could spend my ?17.00 on lottery tickets which would probably have a higher likelihood of paying out ?5M than the likelihood of any of us ever being successfully sued for dropping a rock on somebody or other such genuine underground accident when we were the ones stupid enough to go down the cave in the first place.

Anyway, I've allowed myself to get drawn into bloody insurance when it should be about ensuring the BCA demonstrably represent the will of the majority of its voting membership and let the CRoW Liaison Officer get on with leading the CRoW campaign under the banner of our national body, the BCA. 

Mark

 

[cavemanmike]

if the anti's had there way bca would not pursue the possibility that caving falls under the crow act and so it leaves it open that a lot of cavers might leave feeling they have been mis- represented

 

[Jenny P]

Ye but be fair the insurance policy is a bit of a white elephant, if the policy had a significant claim against it we would all be in trouble and uninsurable

But the main benefit of the BCA policy is in persuading landowners that, in the event of something bad occurring on their land which they might be held responsible for, they are insured through BCA and will not be at risk of major expenditure to defend themselves in a case brought against them.

I think the legal principle has an official Latin name, but basically it says that, if you willingly undertake a pursuit which might be considered dangerous, you cannot then sue the landowner if you have an accident.  However, solicitors make their money by persuading landowners that they still aren't safe so they ought to deny access, just in case.  Being able to demonstrate to them that our insurance covers them can go a long way to enabling us to negotiate access.

 

[Brains]

.... give the BCA CRoW Liaison Officer our full endorsement to  renew the campaign with vigour on Monday 12th June and look after the interests and access rights of all cavers.

Mark

+1 

? 1= 2
Keep it going  :

Myself included

 

[andrewmcleod]

An AGM has the authority to clarify the inturpretation by a simple vote, so the cost of a ballot could easily be avoided!

I'm not convinced it is as simple as that though - in both cases I can see the argument that the BCA is somewhat restricted by the clause. The BMC has an access database where a significant fraction of the places either have no known access agreement or where it is known that the landowner is not a fan of climbing but climbing continues (the access database usually just says 'if asked to leave do so'). I can imagine a situation where if the BCA published similar advice about a cave with 'traditional' access (i.e. people have been going down it quietly for years with no issues) that it could be challenged.

The BCA would be unable to participate in a Kinder Trespass type protest, should it decide that was the proper course of action. If it decided to organize a well-publicised deliberate 'trespass' of a CROW land cave, in order to bring about a legal case for clarification, it might be restricted from doing so. I'm not arguing these are valid choices of action, just that the BCA should be free to do what is best for cavers - not just now but in the future, when access might not be as good as it is today and cavers might need to fight harder to gain or regain rights of access.

Interpretation is deciding what it means or was originally intended to mean, not what you think it should mean, and I would vote at an AGM on this basis, regardless of what I thought the constitution _should_ say.

If however we do go ahead with a ballot, it would make sense to remove the offending sentence entirely. After all, the BCA constitution doesn't tell us to obey the speed limit on Bull Pot Farm Lane or that we shouldn't break into Inglesport and help ourselves to all that shiney new gear. These are matters of law which the BCA need not get involved in.

Agreed - lose the whole thing.

PS I believe the BMC insurance has had claims against it, and the BCA insurance is an equivalent policy from the same broker, so a claim is not the end of the world and wouldn't necessarily result in increased premiums, I would speculate.

 

[Bob Mehew]

I have followed this debate with interest.  For those of you who have time to spare, my thoughts can be read at https://drive.google.com/open?id=0B0RTfmWzkLQMcTNsd05UcHNDOWs.  I have submitted them to the BCA Secretary as requested and await to see how the March Council meeting sorts it out. 

It is a royal mess (and that applies to not just sub section 4.6) and needs some careful work to ensure BCA comes out of it with a modicum of credibility not just from the AGM but also from its March Council meeting.

Given I am biased on the topic of CRoW, I write this and also my thoughts in the link as an individual member of BCA and NOT as BCA's L&I Officer.

 

[andrewmcleod]

So has anyone submitted a motion to remove the whole sentence? (No point waffling on about it on here if not!)

 

[Bob Mehew]

So has anyone submitted a motion to remove the whole sentence?

Yes, Badlad has submitted one to delete it.  I also have submitted another pair, one part which modifies it so as to keep the the aim of it whilst the other part stops not just using this sentence but also using any other part of the constitution to prohibit campaigning for a change in the law.  (Having learned the hard way from the events surrounding CRoW.)