Recommendations from APPG on Outdoor Recreation and Access to Nature published

[ChrisB]

The recommendations of the All-Party Parliamentary Group on Outdoor Recreation and Access to Nature, have now been published. This page has a summary with a link to the full report. Caving is mentioned specifically, reflecting the submissions by BCA, Regional Councils (CNCC that I'm aware of) Outdoors for All (which BCA supports) and individuals.

I've written to my MP asking her to support these recommendations, the proposed Green Paper and any consequent legislation. Please write to your MP too!

 

[Stuart France]

Well, let's get down to the nitty gritty. The first document in the link above is a pdf called "Summary of Existing Access in England" and does not mention caving at all. The second called "Outdoors For All - Recommendations to Government on Access to Nature" mentions caving once, as follows:

"2. Extend statutory access rights for a broader range of recreational activities, including but not limited to wild camping, paddling, swimming, cycling, caving and horse riding.

As well as expanding the types of landscape to which the public has freedom to roam away from public rights of way, the majority of submissions argued in favour of expanding the type of activities allowed. Cycling, horse riding, paddling, swimming, caving and wild camping do not currently enjoy rights of access, limiting opportunities for public enjoyment of the outdoors. Several respondents noted that the Secretary of State could amend Schedule 2 of the CRoW Act. 'Higher rights’ like wild camping, horse-riding and swimming are explicitly excluded on CRoWAccess Land under Schedule 2 of the Countryside and Rights of Way Act (2000)”

This is very unhelpful of the committee and it's nothing to celebrate, i.e. them saying above that caving does not have a right of access. Well, I'm afraid that actioning their recommendation for fixing that issue (as they understand it) will not help the caving situation because caving is NOT prohibited under Schedule 2 of the Act unlike cycling etc on Access Land. So there is no prohibition of caving that is amenable to removal by future legislation. The right already exists as expressed in the first few pages of the main Act, which has led to the argument with DEFRA etc about what the terms "open-air recreation", "access land", and so forth embrace.

DEFRA (and NRW in Wales) are not going to change their minds, and the legal action by way of BCA's judicial review to have the Courts change their minds for them was abandoned on the steps of the courthouse due to lack of funds and strategic problems with the way BCA's case was managed that need not detain us here, so we will have to live with the present situation.

My suggestion is that we just ignore DEFRA and NRW, keep calm and carry on. Our opponents will definitely not ever bring a legal case against any caver or caving organisation. They fear the courts, as the JR case amply demonstrated, because the quangos know their argument against access rights to go caving are contrived and threadbare and they would be exposed as such in public by airing them in Court

 

[ChrisB]

The page I linked to has been changed since I posted the link. The "Summary of Existing Access" wasn't linked earlier.

I also spotted the statement that caving doesn't have right of access. This has to be read in the context of the report; if it had stated that caving does have a right of access, there's no need for any action.

I agree with your explanation of the difference between inclusion and lack of exclusion, but a report at that level isn't going to look at that level of detail for a relatively minor sport. It can be dealt with in the future stages. The point is that caving is even mentioned, in a list of six activities, the other five of which have a much higher public profile.

 

[David Rose]

I met Andy Macnae MP before the APPG report was published and he is very sympathetic to the cause of granting wider access to cavers. In case you don't know, before he became an MP he was a BMC deputy CEO and has a very distinguished climbing record, including greater ranges first ascents. In short, an excellent guy. So far as the report is concerned, I regard it as strongly positive that it explicitly recommends "expanding statutory access" to caving. Of course we believe the CROW Act already gives us this, but officialdom doesn't, so I don't find any problem with the wording.

 

[Cavematt]

I see your point Stuart, the wording could have been better, but I don't feel any concern that the report could be used as a counterargument against the current BCA position. I agree with ChrisB - simply to have caving acknowledged in such a report is an important step - it's probably the best we could have hoped for to ensure that caving remains a noted activity for any future review. Well done to the BCA and CNCC for responding to this consultation on behalf of the caving community (and any other Regional Councils, clubs or individuals who did the same). For anyone interested, the full CNCC submission is published in the agenda for their October meeting, in the interests of transparency.

 

[Stuart France]

My comments are not a criticism of those who responded to the consultation on behalf of caving interests.

I hope you are right that it doesn't matter, but I feel that this does matter. DEFRA, NRW and assertive landowners will be jumping for joy to read that "caving [etc] do not currently enjoy rights of access, limiting opportunities for public enjoyment of the outdoors" in an official report from an All-Party Parliamentary Group for Outdoor Recreation and Access to Nature. They have lumped caving in with prohibited activities that are listed in Schedule 2 of the Act when caving is not in the list: having to say this Group had too small an amount of page space to explain things correctly is a weak position for caving to find itself.

The implication is that the Parliamentary Group wants to see the prohibition list reduced in size. Getting caving removed from a list that it is not on is not an answer to the problem.

The only solutions are to get the Courts to reject DEFRA and NRW's narrow interpretation of terms like "open-air recreation" and make them more inclusive through case law, as happened in the Dartmoor camping JR where every judge involved in that case said in their own way that legislative terms which have been broadly cast by Parliament should not be re-interpreted in a literal and pedantic way by others motivated to reduce the scope of enabling legislation for their own purposes.

Other than civil litigation, the CROW Act would need revision to define its broad terminology in a clearer way, as the equivalent Scottish Act and code of practice have done by using the words "above, on and below the ground" to define the territory where Scottish right applies.

 

[Bob Mehew]

Other than civil litigation, the CROW Act would need revision to define its broad terminology in a clearer way, as the equivalent Scottish Act and code of practice have done by using the words "above, on and below the ground" to define the territory where Scottish right applies.

So what is wrong with getting that written into the CRoW Act? Yes is will take some effort but not as much as finding both a suitable case to push in the courts as well as sufficient money to fund the legal team to do it. Even better is it is wording which has caused no problems over at least 20 years, which would be very attractive to the persons drafting the amendment.

 

[Stuart France]

I rather think that what the All-Party Parliamentary Group has in mind is tinkering around the edges by reviewing the list of banned activities in Schedule 2 rather than amending the main body of the Act. Tinkering at the edges is exactly what the Welsh Government had in mind too with the intended Welsh reforms to CROW to extend outdoors recreational access in Wales. For example, to remove hang gliding from the Schedule 2 ban. Amending the main body of the Act would not be attractive and this is simply not going to happen. The fact its wording has "caused not problems for over 20 years" as you state makes changing it unattractive not attractive.

I hope you don't mind me reminding you that the BCA's JR case centred on the illogical legal decision that caving should be dis-invited from the group working on broadening the scope of CROW in Wales to include excluded sports because caving was excluded from CROW. In other words, hang gliding can be reconsidered because it is excluded, but caving cannot be reconsidered because it is excluded (in their view).

BCA has shown that it does not have the resources or resolve to run a civil case. That is fact, not a criticism. It isn't in a position to find "a suitable case" and "push it through the courts". BCA had a suitable case and they didn't push it through the courts.

There is no point in looking for another case unless you are suggesting it should be privately managed and funded. The first lesson anyone needs to learn is you get a leading specialist KC involved before you issue proceedings and have them guide the whole process - not you.

 

[Bob Mehew]

BCA had a suitable case and they didn't push it through the courts.

That was your opinion. It was not mine or I think others involved on the side lines in the case, nor the recommendation of the QC.

 

[Stuart France]

So , how just far did the BCA case get before a QC was onboarded who could deal with the ultimate court proceedings that never took place?

 

[Bob Mehew]

I'm not sufficiently expert in these matters to make a judgement as to whether a change in personnel would have made any difference to the outcome. But let's spend our energies on the future not the past.