Author Topic: QC's opinion on cavers' access to land under the CROW Act 2000  (Read 4084 times)

Offline David Rose

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I'm writing this post in the interests of transparency, providing accurate information and avoiding misleading rumours.

Since Tim Allen's Descent article earlier this year, the debate over cavers' unrestricted access to land under the 2000 Countryside and Rights of Way Act has been gathering pace. Much of it is reflected in other threads on this forum. However, looming over all of it remain areas of legal uncertainty. The position currently being taken by the relevant authorities, as Tim described, is illogical: that cavers have an unrestricted right to abseil down entrance shafts on open moors, but not to explore the passages beyond. This does not appear likely to be what parliament intended. Meanwhile, in English law, the courts usually presume that something that isn't specifically excluded or banned - such as cavers' access under the CROW Act - is allowed. The legal view that the BCA had, until this year, accepted, appears, at the very least, to be questionable.

After conversations with Tim, I suggested approaching my sister, Dinah Rose, who not only has done a few trips underground, but happens to be a very eminent public and administrative law QC, to ask her for a formal legal opinion. Rather fortunately, a complicated case which she had expected to go to trial this month has recently settled, freeing up some of her time, and she has very kindly agreed to study the voluminous documentation that relates to this question and provide such a document on a pro bono basis.

Tim and Bob Mehew have spent many hours providing her with this documentation, from official reports, parliamentary debates and other sources going back many years - not just to the passage of the CROW Act, but to its more distant forerunners, in which phrases such as "open air recreation" were first used and defined. The consequence should be that we will have a definitive statement about cavers' rights or their absence, which will carry great weight in its own right with bodies such as DEFRA, local authorities, and environmental bodies.

I do not know, at this stage, on which side of the debate Dinah will come down. But either way, cavers will have a much clearer view of where we stand. Either way, her opinion will be a significant contribution, likely to influence future events for some time. She hopes to be in a position to draft it within the next few weeks. Watch this space.

Offline Cookie

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Re: QC's opinion on cavers' access to land under the CROW Act 2000
« Reply #1 on: June 23, 2014, 11:51:35 am »
This does not appear likely to be what parliament intended.

Do you think:

A) Parliament considered the specific issues around caving, came to a conclusion but then hid their conclusion in convoluted piece of legislation to be unearthed many years later.

or

B) Didn't really think it through.

If B then the conclusion of the legal opinion will be based on random chance rather than based on what is for the best.

PS
I'm not necessarily against giving the public a right of access to caves but I would like to understand the consequences and have time to mitigate them before letting this particular genie out of it's bottle. 
Dave Cooke. BCA: IT Working Party Convenor, Web Services

Offline ianball11

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Re: QC's opinion on cavers' access to land under the CROW Act 2000
« Reply #2 on: June 23, 2014, 12:39:14 pm »
I'm thankful for Ms Roses' willingness to offer an opinion.

Offline TheBitterEnd

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Re: QC's opinion on cavers' access to land under the CROW Act 2000
« Reply #3 on: June 23, 2014, 12:47:31 pm »
To avoid this thread just raking over the same old ground, please could the moderators do one of the following
  • Paste the contents of all other CROW threads in here and save us the bother
  • Move contentious posts out of this thread into another CROW discussion so that this could be kept for thanks, announcements and the like relating to Dinah Rose's work

Personally I'd prefer option 2 and my thanks to Dinah and David for progressing with this.
'Never argue with a fool, onlookers may not be able to tell the difference.' — Mark Twain

Offline David Rose

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Re: QC's opinion on cavers' access to land under the CROW Act 2000
« Reply #4 on: June 23, 2014, 12:57:22 pm »
I do think this thread is not the place to debate the rights or wrongs of the issue, or the next steps once Dinah's opinion has been written. I just wanted everyone to know what is in progress. When the opinion is done, then we will have something concrete to work with. Until then, speculation is not much use.

Offline bograt

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Re: QC's opinion on cavers' access to land under the CROW Act 2000
« Reply #5 on: June 23, 2014, 01:04:58 pm »
I concur with what David and Bitterend have said, lets keep this thread for information and updates, there are enough alternative places for contentious debates.
Aim low, achieve your goals, avoid disappointment

Offline Cookie

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Re: QC's opinion on cavers' access to land under the CROW Act 2000
« Reply #6 on: June 23, 2014, 01:10:18 pm »
I think my question is new ground directly related to the OP.

If you want an announcements topic, why not create one with "Announcements" as part of the subject?
Dave Cooke. BCA: IT Working Party Convenor, Web Services

Offline Badlad

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Re: QC's opinion on cavers' access to land under the CROW Act 2000
« Reply #7 on: June 23, 2014, 01:11:07 pm »
In reply to Cookie (and sorry I was typing this before I saw all the other threads) With all due respect - if you wish to have a better understanding of parliaments intention then I would suggest that you either:

a) Wait a short while until the legal opinion is completed.  The QC will have given considerable weight to parliaments intention.

b) You read through all the relevant Acts, parliamentary reports and debates, etc. yourself.  This will give you a very good idea of parliament's intention, but it is a formidable amount of reading.





Offline Ian Adams

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Re: QC's opinion on cavers' access to land under the CROW Act 2000
« Reply #8 on: June 23, 2014, 01:12:21 pm »
I'm thankful for Ms Roses' willingness to offer an opinion.


I would like to echo that .....  :)

Ian
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Offline Cookie

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Re: QC's opinion on cavers' access to land under the CROW Act 2000
« Reply #9 on: June 23, 2014, 01:19:40 pm »
b) You read through all the relevant Acts, parliamentary reports and debates, etc. yourself.  This will give you a very good idea of parliament's intention, but it is a formidable amount of reading.

OK, do you have a handy list of URL's?

If I searched them for "caving", will I get any hits?
Dave Cooke. BCA: IT Working Party Convenor, Web Services

Offline Bottlebank

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Re: QC's opinion on cavers' access to land under the CROW Act 2000
« Reply #10 on: June 23, 2014, 01:54:12 pm »
I think the caving world needs to have the debate and decide how to proceed in the event of a  favourable option before the opinion is released - even if that means delaying it's release.

I don't really care which thread things appear under.

Once the genie is out it's out.



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Offline blackholesun

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Re: QC's opinion on cavers' access to land under the CROW Act 2000
« Reply #11 on: June 23, 2014, 04:25:05 pm »
I think this is excellent news and am also very thankful and glad that Ms Rose is willing to put in the time and effort required for such a document. I believe a great number of cavers will be interested in this legal opinion.

Without further information, that the caving community does not already have, I think that this debate will just go round in circles, as perhaps it appears to be at the moment. I doubt you have any intention to do so, but please do not delay the release of the opinion once it is in a suitable form.

Offline Andy Sparrow

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Re: QC's opinion on cavers' access to land under the CROW Act 2000
« Reply #12 on: June 23, 2014, 05:33:51 pm »
I think this is excellent news and am also very thankful and glad that Ms Rose is willing to put in the time and effort required for such a document. I believe a great number of cavers will be interested in this legal opinion.

Without further information, that the caving community does not already have, I think that this debate will just go round in circles, as perhaps it appears to be at the moment. I doubt you have any intention to do so, but please do not delay the release of the opinion once it is in a suitable form.

I wouldn't bank on it.  A judge is obliged to make a decision one way or the other.  A lawyer is entirely free to say that the interpretation remains uncertain.  Don't expect too much - there's plenty of going round in circles still to come.
Andy Sparrow



Offline mmilner

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Re: QC's opinion on cavers' access to land under the CROW Act 2000
« Reply #13 on: June 28, 2014, 01:19:13 am »
I think the caving world needs to have the debate and decide how to proceed in the event of a  favourable option before the opinion is released - even if that means delaying it's release.

I don't really care which thread things appear under.

Once the genie is out it's out.

It won't make any difference unless people want it to! Most of us don't have a problem with our current access agreements. It will just give the few people who have a problem a bit of extra ammo in access negotiations with landowners/tenants to make access easier for them possibly. This is all being blown out of proportion and won't affect most of us...
Norbert Casteret (Ten Years Under the Earth) and Pierre Chevalier (Subterranean Climbers) were my inspiration to start caving. (And I'm still doing it.) Secretary, Darfar Potholing Club, the Peak District.

Offline Martin Laverty

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Re: QC's opinion on cavers' access to land under the CROW Act 2000
« Reply #14 on: July 10, 2014, 12:50:33 pm »
There is a report in the latest Cambrian Caving Council newsletter [ http://www.cambriancavingcouncil.org.uk/pdf/newsletters/July2014.pdf ] that:

 "Chairman Andy Eavis stated at the June AGM that he “cannot see how the CRoW Act does not apply to caving”."

Can anyone confirm this statement in the absence, as yet, of any minutes being available on the BCA website?

Offline damian

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Re: QC's opinion on cavers' access to land under the CROW Act 2000
« Reply #15 on: July 10, 2014, 07:08:09 pm »
Can anyone confirm this statement in the absence, as yet, of any minutes being available on the BCA website?
That is nearly what Andy said, but not quite. He said that he cannot see how CRoW will not apply to caving. He was looking into the future and definitely not commenting on the current state of affairs.

I gave the Cambrian article a quick skim earlier and also noted that David Judson's article was taken off the BCA website because it had not been through the formal process of approval at BCA Council (rather than Executive) ... a small point, but I mention it for the sake of clarity.

I will read the rest of the newsletter later.

Damian Weare
BCA Secretary