After a remote hearing at Cardiff High Court on 13 October, we were
again refused permission to bring a judicial review of the decision by
the Steering Group set up the Welsh Government (WG) to refuse membership of its Access Reform Advisory Group (ARAG) to Stuart France of the CCC on the ground that caving is not covered by the CROW Act.
The judge accepted the WG’s argument that because ARAG can only advise, not make policy, nothing it does can be judicially reviewable.
Therefore, in his view, we do not have a ‘justiciable’ case. Our barrister argued that this was wrong because the Steering Group is chaired by the senior WG civil servant in charge of outdoors policy, and in deciding membership of its advisory groups, was therefore exercising a power that should be reviewable by a court. Both sides accept that if that civil servant, Simon Pickering, had made his decision sitting in his WG office, it would have been justiciable. Because he did it in the conference room next door, as chairman of ARAG, the WG argued, it isn’t.
This decision to exclude cavers from ARAG means that in effect, the WG has been saying: ‘we are consulting on reforming the law on access, but we don’t want to hear from you cavers because the law as it stands now doesn’t cover you.’ This, we believe, is illogical and deeply unfair.
Moreover, as the court heard, Natural Resources Wales, which was also
part of our action and has a staff member on the ARAG steering group,
stated last year in correspondence with Stuart that it believes the law on cavers and CROW is unclear and the ARAG process might be an opportunity to clarify it.
However, the judge – who appeared to be reading his decision from a screen, having written it before the hearing – was unmoved. He accepted the WG’s arguments.
Our lawyers believe this decision was unjust, and, more to the point,
wrong in law. They believe we have a good chance of winning an appeal and therefore getting a proper hearing of the real issues, rather than just this sterile argument over justiciability.
BCA is now considering is position.
CRoW Working Party Convenor