Author Topic: Statement by BCA CROW Access Group convenor  (Read 1956 times)

Offline David Rose

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Statement by BCA CROW Access Group convenor
« on: March 21, 2020, 11:35:23 am »
I've just sent this to BCA council members, who must vote by email whether to accept the Conservation and Access Committee's decision to challenge discrimination against caving in Wales (see the forum elsewhere for details).

 
Hello everyone,
 
As you know, voting members of the BCA council will shortly be asked to vote by email on whether to support the C&A committee’s decision to spend about £6,000 on challenging the discrimination being practised by Natural Resources Wales against caving, and their claim that it is not an outdoor sport. This is to fund a Pre-Action Protocol (PAP) letter threatening a judicial review and the seeking of an opinion from a barrister. The letter must be issued within three months of the decision being communicated to Stuart France, the CCC access officer, in other words, within the next few weeks.
 
This is it: the chance to determine once and for all whether caving does or doesn’t come within the scope of the Countryside and Rights of Way Act (CROW) 2000, and its ‘right to roam’ on mountain and moor.
 
First, it is vital to remember that the BCA membership have given council an extremely clear direction on this issue. The original poll to run a campaign was further supported by the ballot to remove impediments from the constitution which had been used to frustrate that campaign. It received a staggering level of support: 85% of clubs and 88% of individual members backed it. The mandate could hardly be stronger. Consequently, the C&A committee was tasked to draw up a BCA policy on CROW.  This was done, approved by council and further ratified by the membership at the 2018 AGM.
 
This policy states: ‘The British Caving Association holds the opinion that the CROW Act already permits access for recreational caving. The BCA will support cavers in their work to develop access to caves on CROW access land.’
 
Not ‘may’, but ‘will’. If council does not support this motion, then BCA democracy means nothing. The Welsh Government action is contrary to our policy and must be challenged.
 
I’ve been CROW campaign group convenor for the past three years. In that time, the only progress we’ve made has been cosmetic. To be sure, it was gratifying to see the BCA position adopted by the Glover Review on national parks last year. Several MPs have said supportive things. Tim Allen, Bob Mehew, Jenny Potts and others have done incredible work in preparing our case, and building alliances with other outdoors groups. But ultimately, we want results. It’s become clear to me that we are never going to get them via the political process. Caving is simply too low on the list of parliamentary priorities. The  only practical way is going to be via the legal process.
 
Ever since my sister Dinah Rose QC wrote her legal opinion, stating that caving DOES fall within the scope of the CROW Act and that parliament did not intend it to be otherwise, I have been looking out for an opportunity to put it into practice – a legal casus belli that can unite, not divide, most cavers, and offer a decent chance of success. This is by far the best opportunity we’ve had, and I urge us to take it.
 
Some may fear that by issuing the PAP letter and seeking counsel’s opinion, they are voting for an open-ended commitment that may eventually run to much more money – perhaps £50,000.  The opposite is true. The point of seeking counsel’s opinion is to determine whether we are likely to succeed. What counsel tells us will have a massive influence. No one wants to tilt at windmills. It seems to me that unless we have an estimated chance of success of something greater than 60 – 40 we should not proceed any further.
 
Moreover, the point of the PAP letter is that we may not need to proceed at all, because NRW and its allies may well at that stage fold, at least to the extent of reconsidering their current stance. But we do have to get the PAP letter out before the deadline. I suspect that because of the looming Covid-19 apocalypse, there will be no legal deadlines of any kind for a long while after that. The civil courts are going to go into a state of suspended animation. There will plenty of time to contemplate what, if anything, we should do next.
 
Nevertheless, if we don’t take this chance, it will be lost forever. We may as well end the campaign right now. I urge you all to do what the BCA membership so clearly wants – and support the C&A decision.
 
David Rose
CROW Access Campaign Convenor

Offline mch

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Re: Statement by BCA CROW Access Group convenor
« Reply #1 on: March 21, 2020, 03:07:26 pm »
In my view, any BCA Council member who fails to vote in support of the C & A Committee's decision should seriously consider their position.

Offline Pegasus

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Re: Statement by BCA CROW Access Group convenor
« Reply #2 on: March 21, 2020, 03:12:58 pm »
I am voting in favour  :)

Online Pete K

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Re: Statement by BCA CROW Access Group convenor
« Reply #3 on: March 21, 2020, 05:22:20 pm »
Bang on. Best of luck to you.

Online Dave Tyson

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Re: Statement by BCA CROW Access Group convenor
« Reply #4 on: March 21, 2020, 06:39:14 pm »
If this does end up with a judicial review then I think NRW will really struggle to justify their position on caving. They have never managed to give any sensible or reasoned arguments when I and other members of the Cambrian Caving Council met them (on several occasions). They basically stonewalled us and said it their decision and it was final. Given that other sports are likely to see some restrictions being eased, I think NRW and the Welsh Government would have to pull some magic out of a hat to convince a judge - and I don't think that will happen  ;D

Dave

Offline Madness

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Re: Statement by BCA CROW Access Group convenor
« Reply #5 on: March 21, 2020, 06:39:21 pm »
In my view, any BCA Council member who fails to vote in support of the C & A Committee's decision should seriously consider their position.

Surely, any council member who does not support this is acting against BCA Policy, and therefore should be thrown off of the council.

Online mikem

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Re: Statement by BCA CROW Access Group convenor
« Reply #6 on: March 21, 2020, 10:28:23 pm »
Democratic organisations don't work like that.

Online andrewmc

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Re: Statement by BCA CROW Access Group convenor
« Reply #7 on: March 21, 2020, 11:38:47 pm »
I _hope_ that Council members will vote in favour, but I don't _require_ them too. I expect to be representative members to represent the bodies they represent, even if so don't like it, and elected council members should be free to use their own judgement (even if they reach the 'wrong' answer...)

Offline alastairgott

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Re: Statement by BCA CROW Access Group convenor
« Reply #8 on: April 13, 2020, 11:10:28 am »
Dave, Stuart or CCC, please could someone post up a link to the NRW/Welsh Government Paper, I cannot find it anywhere online.

Offline alastairgott

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Re: Statement by BCA CROW Access Group convenor
« Reply #9 on: April 13, 2020, 11:15:43 am »
Scrap that, think I've got it, two clicks away on this link.
https://cdn.naturalresources.wales/media/689440/meeting-summary-nafw-63-4th-april-2019.pdf

Online Minion

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Re: Statement by BCA CROW Access Group convenor
« Reply #10 on: April 13, 2020, 03:31:12 pm »
Will the result of the response to the email be posted anywhere?

Ideally with who voted which way, similar to the ‘They Work for You’ website for governmental affairs.

Offline BCA Secretary

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Re: Statement by BCA CROW Access Group convenor
« Reply #11 on: April 13, 2020, 06:24:42 pm »
Hello all

I just wanted to try to set the record straight on where things are at the moment because some information seems to be getting misinterpreted across the various discussions that are currently ongoing on this forum.

At present (13th April), BCA Council has already given approval (a few weeks ago) to progress to a PAP (preliminary) stage of a Judicial Review with possible cost implications around £5000, as originally discussed in this thread. This vote was conducted by email and received overwhelming support (no votes against and >70% participation within four days). BCA Council was extremely unified on this.

The PAP has progressed and I spent some time on the phone yesterday with our CRoW group convenor, David Rose discussing the outcomes and the possible ways forward. There is some (mis)information in other forum threads suggesting that the BCA has only a week now to make a decision on progressing to a full Judicial Review (with a possible cost implication up to £50k) or everything is totally lost. After speaking with David, this is not necessarily correct or the full story, and the BCA CRoW group are still evaluating options.

I will continue to work with David to facilitate democratic decisions with BCA Council as and when they are required. Clearly there MAY be some timeframe related restrictions along the way that need quick decisions to avoid missed opportunities, but we will deal with these as they happen. We will hopefully know more this week.

I would like to assure everyone that there are no underhand moves in BCA Executive to frustrate this process.

Although of course any substantial expenditure on this campaign needs authorising by BCA Council particularly with input from our Treasurer (as does any substantial expenditure on anything), my gut feeling is that Council are fully aware of the mandate given in 2014 from our members. I will continue to work with David and BCA Council to deliver whatever secretarial support is required as the process evolves.

I know David uses this forum so he may wish to chip in if there is anything I have missed (but he is understandably quite busy at the moment).

The CRoW matter continues to remain a hot topic even six years after the original member ballot; I totally understand this. I also understand that some of the people involved in working hard on this are extremely passionate, driven, and have had some bad experiences in the past when it comes to matters of access. It is therefore understandable that things can get a little heated now and again and the feeling of the need to 'fight' persists. I really hope we can look forwards, not back, and work to move this forward in a calm and unified way.

Kind regards
Matt Ewles

Offline David Rose

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Re: Statement by BCA CROW Access Group convenor
« Reply #12 on: April 13, 2020, 07:43:49 pm »
I've just spoken to my sister, Dinah Rose QC, who wrote the original opinion on CROW for the BCA.

She confirms that you are exactly right, Matt.

Even if we do have to issue proceedings next week - because of the ticking clock since the decision we seek to review was made, and the usual three month deadline  - we will not be exposed to a large costs penalty. We will merely be ticking a legal box to keep the case alive.

In our pre action protocol (PAP) letter, we have stated that if we do issue proceedings, we will stay them until we get a letter from the Welsh Government responding to our PAP letter. At that point, we can decide to withdraw, or press ahead. Or they may agree to review their original decision, in which case, the action will stop. If they review it and come to the same decision again, then we can decide what to do when that happens.

There is no hurry, no gun to anyone's head. We are proceeding as agreed and will see what happens in due course. For now, all we need to do is wait for the WG's response.

Offline Alex

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Re: Statement by BCA CROW Access Group convenor
« Reply #13 on: April 18, 2020, 12:22:11 pm »
Thank you guys, fighting our corner is what the BCA should be about, and I am glad to see that is happening despite recent misgivings, falling out and certain people trying to block things.
Anything I say is represents my own opinion and not that of a any club/organisation that I am a member of (unless its good of course)

 

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