A big day for CRoW

[Badlad]

So lets appeal.  I think we are.
 

[mikem]

May just be that DEFRA were invited due to it involving their policy...

[Dave Tyson]

I think it's pretty poor that the judge decided that this action should fall at the first hurdle even though the defending parties didn't show up. That strikes me as biased without good reason and one wonders if words were exchanged before the action - especially if a prepared statement was involved.  Certainly to good grounds to appeal.

Of course the BCA could just declare that caving is permitted by CRoW, document it and spread the word and let everyone carry on caving - either Defra/NRW will turn a blind eye (expected) or they will have to challenge...

Dave

[mikem]

This was a follow up to a previous decision from the court, so not that surprising.

[Stuart France]

May just be that DEFRA were invited due to it involving their policy...
This was a follow up to a previous decision from the court, so not that surprising

How very generous of you to suggest that court officials are familiar with Defra's panoply of policies, especially in the arcane area of caving.  Defra's arrival in the case was not a follow up to any previous court decision - Defra were invited in by the court officials long before any court decision was made.

Since when have Courts been drumming up Claimants, Defendants and Interested Parties?  I know folks are on hard times now, but I don't think Courts are a 'business' in the strict sense of being an enterprise with monthly sales targets, watching their cash flow and creditor balances, etc.  Inviting in Defra was not a commercial move.  The motive for this was something else.

Not long back I noticed that someone at governmentlegal.gov.uk had got themselves into the email trail for this case which certainly caught my eye.  If you google it, you'll see this is the Treasury Solicitor and the Attorney General and all that.  That's how high this CROW case has reached.  They don't have any website that matches their domain name, but further info about them is here:

https://www.gov.uk/government/organisations/government-legal-department/about

Some seriously high up and well connected feathers have been ruffled!

[Jenny P]

I have just come across the following quote re. caving in advice from a goernment department with regard to caving and Covid-19:

Quoted from a letter sent from the Dept of Digital, Culture, Media & Sport 1/6/2020:
“…With regard to caving, as mentioned in the department's letter of 29 May, all outdoor sports and physical activities are now permitted, ....

So, the Dept. of Digital, Culture, Media & Sport is on record as considering caving to be an outdoor sport. 

Make of this what you will.  Joined up thinking doesn't seem to apply here but maybe this should have been referred to as part of the case in Wales - which branch of government do we believe?

[mikem]

I expect DEFRA asked to be invited then, they can't just turn up without judge agreeing it. You are right that courts don't drum up participants, unless they express an interest.

Stuart, you have linked 2 comments that were not related - latter was to Dave's reply about it being the first hurdle, as it had already been refused in court previously.

I suspect it's also standard practice for governmentlegal to be copied in to any court cases their departments are involved in, that question legislation.

Jenny - makes no difference to argument, as other outdoor sports are specifically excluded from CRoW e.g. kayaking & mountain biking. It's the use of "open air" that concerns this discussion.

[Fjell]

I am not convinced this is the right war. There is a widespread campaign ongoing that public subsidy should maximise public goods, and access is top of the list. The post-Brexit settlement will the biggest change for decades. It can put the onus on subsidy-seekers to demonstrate what the public gets for it’s money. And most farmers round here are totally dependant on subsidy. And others who are not would like it thank you very much.
There has been much talk from the likes of Gove in recent years that this will happen, and I think this year could focus the public mind. Holding them to it will require widespread alliances. Caving is little, it needs to attach itself to some bigger dogs with more voters. Politicians like votes, preferably in bulk.

[Fjell]

There are very large farms, not a million miles away from discussions on here, who can’t be getting less than half their gross income from subsidy through the Basic Payment Scheme. And that is ending soon.

The current subsidy regime is planned to be phased out over the next 7 years and replaced with a public goods approach focussed on environment. This is where all the big-boy decisions are going to be made, and it’s where the billions a year will be spent. Including things like restoring bogs. This is the pressure point for public access for decades to come. Includes interesting phrases like paying for “Rights of way, navigation and recreation infrastructure”. Get your tax dollars spent on what you want it spent on.

https://consult.defra.gov.uk/elm/elmpolicyconsultation/supporting_documents/ELM%20Policy%20Discussion%20Document%20230620.pdf

[NewStuff]

So, you're saying we should just give up?

Fuck that. I'm going caving, Don't like it? Sue me.

[mikem]

No, he's saying be sensible about the wars you fight - not ones you are unlikely to gain anything..

In reality they can't do anything about you being on the fell (in access areas), so have to object to you going underground, in which case you just have to return to the fell, as long as you haven't caused any criminal damage, there is nothing they can currently do.

[Stuart France]

I am not convinced this is the right war… The post-Brexit settlement will the biggest change for decades … And most farmers round here are totally dependent on subsidy.

This thread is becoming like one of those panel games where you have to give a word which is totally unconnected to the words used already.  How on earth did we get on to Farm Subsidies and Brexit when the topic is actually a High Court case about cave access?

The looming problem is that a manifesto commitment of the present Conservative government is to criminalise trespass.  That returns us to the 1930’s and the Access to Mountains Act (which never took effect because of WW2) but its general idea was to permit a little bit of public access but also to criminalise a lot.  It’s widely acknowledged that groups representing public access interests fell for this trick and prostituted their constituents, so not a great moment in sports leadership and one that those concerned would rather forget about.  So let’s not go there again.  Read more here:

https://www.oss.org.uk/about-us/our-history/saving-open-spaces-the-trespass-saga/

The problem BCA would have in the scenario that the CROW Caving matter isn’t settled, is that BCA can’t then advise its members with certainty if they are committing civil trespass (as the law stands now) or criminal trespass (as the law might become) when entering a cave on CROW Access Land without permission to do so.  I therefore suggest the present High Court action is both timely and has considerable merit as compared to the idea of manipulating landowners in the future via granting or withholding farming subsides in exchange for public access on a landowner consent basis.

Fuck that. I'm going caving, Don't like it? Sue me.

Do you know, last Tuesdays’ judge got very close to suggesting the above method - but in a more polite way.  You’re not allowed to record court proceedings so I’m going from memory here, but I think he was imagining at one point in his commentary that an alleged trespass case on CROW Access Land would be one way of getting the cave access rights issue into court.

The snag with that idea is that County Courts which would hear civil trespass cases, and criminal courts that deal with aggravated trespass, do not set legal precedents.  It would have to go to appeal to achieve that.  So if the underlying aim of the trespassing was to clarify CROW, it means the trespasser would have to make sure they lost the first court case in order to hope to win the appeal that followed and thus secure the legal precedent in their favour, they hope.  So this trespass court case idea is not very “attractive” (and I’m being diplomatic here) to say the least.

Therefore it is right to appeal the present Judicial Review case as the best way forward for securing caving interests into the long term as well as to clarify the current situation.

[Fjell]

I see the BMC are on the case. They always do seem to be on the case, don’t they?

https://www.thebmc.co.uk/what-is-the-bmc-access-team-doing

Scroll down to “influencing current government policy”.

To save you the bother they advocate paying farmers and landowners for access in all three tiers (you need to read the link above to see what that means). I can well imagine that being a popular idea with them. Just think how much you could rack up on every hole in the Dales, eh? Feel free to dig some new ones etc. Cavers become a desirable fashion accessory for your farmer about town.

[Fulk]

Quote from Dickens:

When Mr. Bumble, the unhappy spouse of a domineering wife, is told in court that "...the law supposes that your wife acts under your direction", replies:
"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass - a idiot".

[NewStuff]

Fuck that. I'm going caving, Don't like it? Sue me.

Do you know, last Tuesdays’ judge got very close to suggesting the above method - but in a more polite way. 

Hence I said what I said, I can't see it happening, and I'm really not worried about judgements against me.
I'm done with polite, I tried for a couple of years, and it most of the time I get  idiots attempting to take it as a sign of weakness and push issues.

[Fjell]

The problem is that a reasonable person could conclude that CRoW was never intended to include caves. It was about fells and mountains. It’s hard to argue they “forgot” about caves and cavers, even if that is somehow bizarrely true. And it is a non-trivial imposition on the rights of landowners to take away the subsurface. And thus I seriously doubt a court is going to modify primary legislation to add it. And then add caving to the list of permitted activities. The government has to do that, and it might do something unfortunate. I am comfortable living in a haze of ambiguity - lawyers regard it as the Cheese Touch.

But I’m not a QC, so who knows. My experience is mostly with what was the DTI, but the behaviour of DEFRA is similar no doubt. They will obstruct by default (less effort), unless you can bring force to bear (ie they will get told off for doing nothing). Toying with people at the level we are working at is child's play because no-one is going to tell them off who matters. And I have to say being ignored by the Welsh government is a really profound level of being ignored. The guy in charge of it complains all the time of being ignored, not just by Westminster either.

The ELM discussion opens up non-CRoW land and will be directly relevant to most other areas in the UK. Failure to engage with it early will likely be an error. The document singles out limestone pavements as the sort of geo asset that needs paying for. It isn’t a huge step to caves. If nothing else, it might put a value on caves.

[Stuart France]

And it is a non-trivial imposition on the rights of landowners to take away the subsurface. And thus I seriously doubt a court is going to modify primary legislation to add it. And then add caving to the list of permitted activities.

Ah.  So CROW "takes away" the subsurface?  Can you point me to where that is done in the legislation please?  And while you are at it, where is this list of "permitted activities" in CROW or indeed in any other outdoors access legislation to which caving might be added?

You misunderstand how such things work in the UK.  Everything is permitted through some initial general purpose statement in legislation unless it is excluded by appearing a later list of exceptions.

In the case of CROW, the general statement is "open-air recreation on Access Land" and the exceptions to "land" are in Schedule 1 and the exceptions to "open-air recreation" are in Schedule 2.

In the case of LPA, the general statement is "air and exercise on [urban commons]" and the exceptions follow in the same section of the Act, namely camping, using a vehicle etc.

I will leave it as an exercise for the reader to discover the general access rights and specific limitations on Town and Village Greens and Government Forestry.

[Badlad]

Fjell.  With all due respect you seem to be conflating two different issues.  On the one hand we have a 2000 Act of parliament which increases public access to certain land.  All parties, including Defra, NE, NRW, BCA etc accept the law needs clarifying on whether it includes caving.  That is the focus of our efforts with the campaign and the JR case.  If this is clarified in favour of caving then this will set in law a legal right of access to cave in over 2500 caves including 71% of all caves across the three northern caves guide books and a number in the other regions.  That is a worthwhile goal.

On the other hand we have a new bill to replace the Common agricultural policy brought about by Brexit and cutting our ties with the EU.  Somehow farmers and landowners are going to need the huge sums of public money they rely on through a different route than at European level.  Hence ELMS, the environmental land management scheme.  This proposes to pay subsides in a different way which should include access to land.  Gove, if you can believe anything he says, as environment minister, stated that public money should be paid for public good and that included public access.  We shall see how that turns out.  The BCA has such limited resources compared to larger outdoor organisations that it has struggled to get caving represented.  The one, all outdoor, team meeting I attended was struggling to define a financial value for public access, how much for allowing access to water, to a crag etc.  It would strike me as odd that we would pay public money for access rights we already hold, footpaths, bridleways or to access land.  Hence gaining a legal right of access rather than paying for it is important.  Never the less the BCA does need to represent caving at ELMS level which unfortunately they have not really done since the meeting I attended on their behalf over two years ago.  Hopefully the new C&A officer is on the case.

[Fjell]

The ELM is but a subset of the even bigger issue of agricultural subsidies allowed by the WTO and others. The government needs to subsidise farmers because food prices just don't cover it in the UK. And the top wheeze allowed for this is environmental improvement and other public goods. So it will happen because there is no alternative short of shutting down farming or somehow imposing big rises in food prices and protectionism (will never happen). So in fact it is an open door coming up with a value for the great outdoors, the more extensive the better for the government.

Anyway, back to CRoW. When I look on .gov, it is pretty clear what it says:

https://www.gov.uk/guidance/open-access-land-management-rights-and-responsibilities

So if “everyone” wants to clarify it for caving, something that the government would not even have to go back to parliament for (minor change), why isn’t that happening right now? If the government opposed it, it would die regardless of court outcomes - they just add caving to prohibited-without-permission list. So really you are always back to knowing what the government would do. Does anyone know?

[droid]

Strikes me the BCA hasn't got 'limited resources' it's got limited propensity to spend them.

[NewStuff]

Strikes me the BCA hasn't got 'limited resources' it's got limited propensity to spend them.

This. A few hundred grand in the bank if I'm not mistaken, and it's being all Scrooge McDuck. I get there's some reason to be frugal, but not to the degree it is. Go push some appropriate legal buttons and pay for it as necessary. Most cavers will wholeheartedly back any action like that.

Also, fuck DEFRA, and the asinine, arbitrary, arse-backwards "limit of daylight" asshattery.

[JoshW]

Strikes me the BCA hasn't got 'limited resources' it's got limited propensity to spend them.

In fairness, the use of BCA finances to pursue further legal action went to a vote at council prior to this hearing and was unanimously (if I remember correctly) agreed on. Since this latest set back there hasn't been a council meeting.

There are many things you can criticise BCA for, but from my (granted limited) experience so far, not being willing to chuck money at this legal case is not one of them.

I'm sure if the team that have been heading this up, come to council with some reasoned arguments as to why BCA should commit further money, and where it would go, that there will be a good selection of the council who would support this.

EDIT: and to add to this, a massive thanks from me (and I'm sure others) for putting their time towards this. As so often the case is that there is the money to do things, but nobody with the time to commit to it, so really appreciate the work that's gone (and hopefully will continue to go) into this.

[Badlad]

Keep calm NewStuff.  The resources I spoke about a few posts up were volunteer resources not financial ones.  Volunteer time to pursue ELMS and other matters that effect access is what we are short of. 

Between the core BCA CRoW group we have spent considerable, and I mean considerable, free time on pursuing the campaign.  This has, in recent times anyway, been matched by BCA money.  Council voted, as JoshW says, to back the JR to the hilt with hard cash, members hard cash, no ifs no buts.  At the moment we are still well within the budget and we will appeal with some welcome additional support from the legal team.  On the CRoW matter all is in line with the wishes of the membership and that is well backed by council and the exec.

I think this thread got sidetracked into other matters that might effect access for which BCA are again struggling to meet volunteer resource and this has to come before any financial input can be identified.

[Badlad]

Moderator Comment

Please tone down the language New Stuff. I won't ask nicely again. We really want to keep any discussion topics civil. Please respect that.

[Duck ditch]

CROW allows for walking, climbing, running and sightseeing. Short of crawling what are cavers doing when going caving if it’s not walking climbing and sightseeing.  To stop caving is to stop the act of turning on a light to achieve all the above. 
Swimming is banned so that’s cave diving out, but why ban swimming.  A bit insidious to consider swimming as harmful not unless you think swimmers are fish botherers.
Keep going, it seems to be a malicious act to think caving is somehow a different form of motion.