INFORMATION COMMISSIONER AND TRIBUNAL DECISIONS - NEXT FOI CASE LAW UPDATE 6TH JUNE 2024. RESERVE YOUR PLACE NOW!

Duchy of Cornwall subject to Environmental Information Regulations

The First-tier Tribunal has ruled that the Duchy of Cornwall is a public authority under the Environmental Information Regulations. The Duchy was established by Charter in 1337 to provide an income for the eldest living son of the Monarch and heir apparent who automatically inherits the title Duke of Cornwall.  The Charter provides that the Duke is entitled to the income from the Duchy but not to the capital, thereby preserving the estate for his successors.

In evidence to the Tribunal, the Secretary and Keeper of the Records of the Duchy, confirmed that:

the estate currently comprises some 53,628 hectares of land and around 2,100 hectares of woodlands mostly in the south west of England, together with around 258 km (160 miles) of coastline, the Isles of Scilly, the navigable riverbed of the Tamar, most Cornish rivers and some rivers in Devon.

The case involved a request for information made by Michael Bruton, an environmentalist, who had become concerned about the introduction of non-native Pacific oysters at an oyster farm in Port Navas within the Duchy. Mr Bruton asked the Duchy for details of any consents or permissions given to the tenant of the oyster farm and details of any environmental assessments carried out regarding the impact of the oyster farm’s activities. The Duchy refused on the basis it was not a public authority for the purposes of the EIR, a decision which the Information Commissioner upheld. The questions for the Tribunal were whether the Duchy was a public authority under regulations 2(2)(c) or (d) of the EIR. In other words:

a) Whether the Duchy is a body or other person, and

b) If so, whether it carries out functions of public administration, or

c) Whether the Duchy is under the control of the Duke who carries out functions of public administration and has public responsibilities relating to the environment, exercises functions of

Both the Information Commissioner and Duchy argued that the Duchy is not a separate legal entity. Referring the Upper Tribunal’s decision in Smartsource, that the notion of ‘public authority’ is both place and time specific, the Tribunal disagreed:

whatever the basis of the Duchy under the 1337 Charter, we find that the Duchy is now a body or other legal person. Taking into account all the above evidence and other statutory provisions, the practices of the Duchy and Duke in commercial and tax matters as well as under legislation and the contractual behaviour of the Duchy, we are led to the conclusion that the Duchy is a body or other person for the purposes of regs 2(2)(c) and (d) of the EIR.

The Tribunal went on to consider whether the Duchy had functions of public administration.

The Tribunal’s ruling is the latest twist regarding the public’s rights to information about the Royal Family [see earlier post]. The Royal Family itself is not subject to the FOI Act and, following an amendment to the Act introduced in [to come], there now an absolute exemption for communications [to come] with the monarch, heir and second in line to the throne. However, this amendment does not apply retrospectively, so requests made before [to come] must be considered under the qualified exemption. A number of such requests are currently being appealed to the Tribunal. In addition, a number of requests for Prince Charles letters will be dealt with under the EIR, where no absolute exemption for his communications exist.

Finally, the Tribunal’s latest decision also opens the door for the Tribunal to re-consider whether the Duchy of Lancaster is subject to the EIR. In Cross [to come] the Tribunal found it did not come under regulation 2(2)(c) because the

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