QC says cavers DO have access to caves under the CROW Act

[bograt]

Aye, it transmogrified into BCA. Again, I even chaired some of the meetings which led to that happening, so I can remember them taking place. I'm not sure you were there, though.

Not sure transmogrified is the right word, not sure of the relevance of me being at the meetings you chaired, point is that the cavers demanded change and eventually got it, a more representative national caving body!.
People often do not realise how much back room work goes into a reorganisation like this and usually only look at the faces in front of them, I can assure you I was sygnificantly involved  :ras:

you'd probably argue that I hadn't asked the right questions. Rhys

Or asked the right people, it seems to me that interpretation depends on who you ask!


So in our view these answers are definitive on the subject, though of course in the end interpretation of legislation is a matter for the courts:

[/quote]

'A matter for the courts' so we need the advice of a legal expert? maybe a QC?????

 

[Rhys]

I have posted this before but strangely the zealots (not you) will only accept the answers that they wish to hear.

I've read it before, but it's just a restatement of the official view. It adds nothing. No mention of barristers, detailed deliberations or anything. It doesn't override the alternative opinion, just conflicts with it - it just happens to be the current "official" view.

If you have more, I'd like to see it.

 

[martinr]

I'll ask again because I didnt get an answer:

David [Rose]- can you explain how:

"The matter is not entirely free from doubt"

became

"QC says cavers DO have access to caves under the CROW Act" ?

 

[Rhys]

I'll ask again because I didnt get an answer:

David [Rose]- can you explain how:

"The matter is not entirely free from doubt"

became

"QC says cavers DO have access to caves under the CROW Act" ?

The bit you've quoted is followed by this:

However, I conclude, for the reasons set out above, that the better view is that caving is a form of ?open-air recreation? for the purposes of CROW, and that cavers are permitted to enter and remain on access land shown as such on the relevant maps, including cave systems falling within those areas, for the purpose of recreational caving.

I think that's the justification for the headline.

 

[graham]

'A matter for the courts' so we need the advice of a legal expert? maybe a QC?????

Who then goes up against another QC in court. When will you guys work out just how the English legal system works?  :

 

[David Rose]

Let's not bogged down in semantics, eh? It's totally clear if you read the opinion that Dinah thinks cavers should have access to CROW land. (Maybe I should have used that word, "should", rather than "do" in my header). That said, it is not entirely - and I stress that word, "entirely" - free from doubt, because of the failure of the Act to be specific. But this opinion provides an opportunity - a big one. We should seize it.

 

[martinr]

I'll ask again because I didnt get an answer:

David [Rose]- can you explain how:

"The matter is not entirely free from doubt"

became

"QC says cavers DO have access to caves under the CROW Act" ?

The bit you've quoted is followed by this:

However, I conclude, for the reasons set out above, that the better view is that caving is a form of ?open-air recreation? for the purposes of CROW, and that cavers are permitted to enter and remain on access land shown as such on the relevant maps, including cave systems falling within those areas, for the purpose of recreational caving.

I think that's the justification for the headline.

No it's not. The headline states cavers DO have access to caves under the CROW Act, but Ms Rose says the matter is not entirely free from doubt. So shouldn't the headline say:

QC says cavers MAY have access to caves under the CROW Act?

Until the doubt is removed, we don't yet know  cavers DO have access to caves under the CROW Act

 

[martinr]

Let's not bogged down in semantics, eh? It's totally clear if you read the opinion that Dinah thinks cavers should have access to CROW land. (Maybe I should have used that word, "should", rather than "do" in my header). That said, it is not entirely - and I stress that word, "entirely" - free from doubt, because of the failure of the Act to be specific. But this opinion provides an opportunity - a big one. We should seize it.

Semantics? Like Open air recreation?

Your headline  QC says cavers DO have access to caves under the CROW Act gives the impression it's done and dusted.

edit - I like your version  QC says cavers SHOULD have access to caves under the CROW Act

 

[Alex]

Looks like its going to be another one of those threads....

Were everyone goes around in circles arguing pointless semantics. Please stop this now lock it or something!

God 4 times it says someone was wring a post!

 

[Rhys]

... but strangely the zealots (not you) will only accept the answers that they wish to hear.

Graham, can you not see that your statement describes your own behaviour exactly?

There are alternative and valid opinions from each side.

 

[Badlad]

... the barrack room lawyers of this forum (and their much vaunted citations to things they conveniently can't post on a public forum).

I bet that's aimed at me. 

Thing is I quoted what DEFRA have said & I wasn't believed. 

So ask them yourself.  :icon_321:

I could go and ask DEFRA, but you'd probably argue that I hadn't asked the right questions. I look forward to reading the information that your questions gained.

Rhys

Rhys

The following is a direct quote from an email received from NE. The response from DEFRA came as a pdf so is slightly more annoying to cut and paste, however the wording of the points is identical:

Below is a definitive QA on caves and CRoW ? this set of QAs have also been considered by Defra.



The open access rights under the Countryside and Rights of Way Act 2000 are for ?open air recreation? ? see section 2(1). For that reason, even where land is shown on the CROW maps, the legislation did not in our view create any new public rights to use cave systems beneath or within the mapped land. 


?      Do Caves qualify as mapped open country as defined under CROW? 

?      No, except possibly some large open caves on the side of mountains etc. In such cases the experience may remain essentially an open air one, depending on the configuration of the cave.


?      How does CROW apply to exploring natural underground voids? 

?      It does not.


?      Do Cavers have a right to explore natural caves within Open Access Land? 

?      See above. This does not prevent cavers (whether land is CROW-mapped or not) continuing to use particular cave systems, for example where this has been traditional, so long as the landowner continues to tolerate this or has given specific permission to do so.


?      What right do Commercial Cave Instructors have to access caves within CROW land with paid for caving training groups? 

?      None, but see the previous answer. 


So in our view these answers are definitive on the subject, though of course in the end interpretation of legislation is a matter for the courts:

I have posted this before but strangely the zealots (not you) will only accept the answers that they wish to hear.

I'm sure I have replied to this before too.  However..

The DEFRA/Natural England quote you display above was the original reply Natural England gave to Kdxn (his name on here).  They were his questions I believe and the replies were given to him for dissemination to cavers.  He passed that email onto the BCA working group on CRoW.  I'm sure your FOI request will also have produced the correspondence that I had with Natural England, also too, the correspondence they had with the BCA C&A officer and the CNCC Access Officer.  All of this correspondence went to the QC.

The opinion of two DEFRA lawyers also went to the QC.  I expect that you have seen this also and it was discussed on an earlier thread.

Clearly from the QC opinion she found that Natural England's argument that caves are not mountain, moor heath or down to be "a bad argument in law".

That their narrow definition of the term 'open air recreation' leads to the conclusion that their construction [of the argument] is "incorrect".  Further more their interpretation as meaning 'open to the sky' rather than 'outdoor', "does not accord with the policy of the act, or lead to a rational outcome".

Anyway if you have new material to put in front of the QC please let me have it.

 

[braveduck]

 

[graham]

The Scottish act is quite clear. If the Parliamentary draughtsmen we able to be that clear about Scotland, that they weren't about England and Wales is very telling.

What I fail to understand is why the QC failed even to address those parts of the argument. To say that she 'considered' them & rejected them is all very well but her published opinion does not reflect that.

That she considers something a "bad argument in law" is all very well, but she does not say why, she does not refer to other legislation or case law to substantiate that opinion.

Bored now.

 

[ChrisJC]

It would seem therefore that the only way to progress is to have a court hearing and get some case law. I think we need a number of things:
- A learned QC prepared to do some pro-bono work
- A symbolic caving trip at a location which has all the characteristics required to settle the matter
- An arrest
- Probably a large pot of cash if the case is lost!

Any volunteers?

Can you have a case like this without financial risk?

Chris.

 

[graham]

Can you have a case like this without financial risk?

Chris.

No.

 

[kdxn]

To confirm, this topic has now quoted from my personal correspondence with Natural England without my permission.

Whilst I gained the permission of NE to share that correspondence with BCA, a fact that was passed on to BCA, I did not get the permission of NE to share that response on a public forum such as this.

For those of you that do not know, kdxn is my email moniker and I am Kevin Dixon from York, a member of BPC and CPC.

Do I now chastise those members of BCA privy to my correspondence who have chosen to air it publicly when permission from Natural England for such was never requested or given ?

Enough said.

Many thanks to Dinah Rose for the opinion which I consider to be well argued and touches upon my earlier public statement about the interpretation of what is 'open air'. I know that a QC's time is very valuable and British Caving has been given a lot of value with this opinion. There are those that will disagree with it but ultimately it needs to go before the relevant Minister and their department for evaluation as to whether it should require a clarification of the law. Until that happens, we have to continue as is.

 

[graham]

Kevin

I got that correspondence in response to an FoI request.  Sorry, but that means your consent was not required. Unless of course you are really Prince Charles!

 

[tony from suffolk]

The Scottish act is quite clear. If the Parliamentary draughtsmen we able to be that clear about Scotland, that they weren't about England and Wales is very telling.

It'd be interesting to learn why there should be a difference. Did someone in Scotland specifically ask if caving was included at an advantageous time in the process? Even more telling, why if it was the intention to exclude caving in England, was it not specifically mentioned?

 

[Badlad]

The Scottish act is quite clear. If the Parliamentary draughtsmen we able to be that clear about Scotland, that they weren't about England and Wales is very telling.

What I fail to understand is why the QC failed even to address those parts of the argument. To say that she 'considered' them & rejected them is all very well but her published opinion does not reflect that.

That she considers something a "bad argument in law" is all very well, but she does not say why, she does not refer to other legislation or case law to substantiate that opinion.

Bored now.

The CRoW Act came into being in 2000.  The Land Reform (Scotland) Act in 2003.  There is a difference there.  I presume the Scottish legislation went through the Scottish parliament the CRoW legislation through Westminster.  A difference again.

Anyway Graham, I repeat for the third time, if you have any documentation that you think wasn't considered by the QC which might change her opinion I would be happy to pass it onto her for comment. 

If you google Dinah Rose you will see that she is a highly respected and experienced QC.  I think at some point you have to consider that in these matters she may know more than you do - hard as that may be to grasp.

 

 

[droid]

She may be a 'highly respected and experienced QC' but she can only analyse the information she is provided with.

Graham's evidence has been quoted many times so it shouldn't need Graham to provide it at this late stage. Of course, ALL the evidence was produced for the QC, wasn't it.


I'm reminded of the computer saw: Rubbish in, rubbish out'.