Why is the Duchy of Cornwall exempt from the Freedom of Information Act?

Philip Hosking made this Freedom of Information request to Ministry of Justice

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was refused by Ministry of Justice.

Dear Sir or Madam,

The Duchy and UK government claim that the Duchy of Cornwall is a private estate (i.e. not a public authority) and therefore exempt from the FOI act.

The UK definition of the term ‘public authority’ is a body or organisation that performs any function of a public nature, and was either (a) created by Parliament or (b) by the Royal Prerogative. The Duchy of Cornwall meets that definition on all counts.

Within Cornwall the Duchy of Cornwall performs a similar role to the Crown Estate. The former is exempt from the FOI act while the latter is not.

During the 1828 Rowe v Brenton Trial at Bar, the presiding judge, Lord Tenderten, Lord Chief Justice Kings Bench, affirmed that: "the public has an interest in everything that is done in the duchy." Even in 1828, case law could identify that the duchy was a public body and therefore legally anything but a ‘private estate’.

During the course of the 1855-58 foreshore dispute the Attorney General to the Duchy of Cornwall made the following statement: "The presumed object of the officers of the Crown is to show that the Duchy possessions consisted merely of the particular manors and estates which are mentioned by name in the Duchy Charter, and did not comprise a territory such as Terra de Cornubia [the territory of Cornwall]. I intend to show how little ground there is for such a conclusion." This duchy statement totally contradicts the latest claims that his duchy is merely a ‘private estate’ based on a collection of manors and other holdings as referenced in the duchy charters.

The Duke of Cornwall is still granted a number of unique statutory "privileges, exemptions, powers, rights and authority" in the Cornwall (Tamar Bridge) Act 1998, s.41, and other Acts. In addition the Treasury Solicitors agency for Bona Vicantia Division considers The Duchy of Cornwall to comprise the County of Cornwall.

The Kilbrandon Report (1969–1971) into the British constitution recommends that, when referring to Cornwall, official sources should cite the Duchy not the County. This was suggested in recognition of its constitutional position.

Please explain why the Duchy of Cornwall is exempt from the FOI act in light of the above information. Please provide all information that could elucidate the exact constitutional status of the Duchy of Cornwall and validate or not its exemption to the FOI act.

Yours faithfully,

Philip Hosking

Oyama, Emily, Ministry of Justice

1 Attachment

Dear Mr Hosking

I am sending the attached on behalf of my colleague Janet Hawkes. <<57321
- hosking - reply to email of 22 de.doc>>

Regards

Emily Oyama

Emily Oyama
Constitutional Settlement Division
Constitution Directorate
Ministry of Justice
7C-015 (Post Point 7.40)
102 Petty France
London
SW1H 9AJ

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Dear Emily Oyama,

Many thanks for your response and I full understand the comments regarding my repeated requests. This has been taken on board and understood.

You wrote:

""""‘Public authority’ has a specific definition for the purposes of the Freedom of Information Act. It is defined there as any body listed in Schedule 1 to the Act or a ‘publicly-owned company’. The Duchy of Cornwall is not listed in Schedule 1. Nor is it a publicly-owned company as defined in section 6 of the Act. This means that the Duchy is not a public authority for the purposes of the Act""""

""""The FOI Act includes powers for Ministers to designate additional organisations as public authorities for freedom of information purposes by orders, either under section 4 which applies to bodies created and partly appointed by the Crown or by government etc, or under section 5 which applies to bodies that carry out public functions. The Government has no plans to bring the Duchy of Cornwall within the scope of the Act""""

Its seems totally unsatisfactory that a body such as the Duchy of Cornwall which does have some of the attributes of a Public Authority and is clearly a body of governance should be left out of the FOI act.

Its seems list you mention in schedule one is rather arbitrary. One must ask why the Government has no plans to bring the Duchy of Cornwall within the scope of the Act? As can be seen from this fully referenced website www.duchyofcornwall.eu there are many unanswered questions pertaining to the Duchy and it is a shame that the government does not feel in a position to be able to answer them.

I would be grateful if you could pass my comments on to those who may be interested and I would also appreciate any advise you can give on progressing this issue.

Yours sincerely,

Philip Hosking

Francis Irving left an annotation ()

Blog post about this request: http://thecornishdemocrat.blogspot.com/2...

Hawkes, Janet, Ministry of Justice

1 Attachment

Dear Mr Hosking

Please see attached a reply to your email of 23 January to my colleague
Emily Oyama.
<<57321 - hosking - duchy cornwall - reply to email of 23-01-2009.doc>>

Regards

J Hawkes (Ms)
Constitutional Settlement Division
Constitution Directorate
Ministry of Justice
7C-015 (Post Point 7.40)
102 Petty France
London
SW1H 9AJ

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Dear Janet Hawkes,

It is strange for you to claim that the Duchy of Cornwall is simply a 'private estate' because the Duchy in its arbitration against the Crown over the right to the Cornish Foreshore claimed quite the opposite (see below)

"""In conclusion, it is submitted that the facts and authorities before referred to are sufficient to establish,-

1st. That Cornwall, like Wales, was at the time of the Conquest, and was subsequently treated in many respects, as distinct from England.

2nd. That it was held by the Earls of Cornwall with the rights and prerogatives of a County Palatine, as far as regarded the Seignory or territorial dominion.

3rd. That the Dukes of Cornwall have from the creation of the Duchy enjoyed the rights and prerogatives of a County Palatine, as far as regarded seignory or territorial dominion, and that to a greater extent than had been enjoyed by the Earls.

4th. That when the Earldom was augmented into a Duchy, the circumstances attending its creation, as well as the language of the Duchy Charter, not only support and confirm the natural presumption, that the new and higher title was to be accompanied with at least as great dignity, power, and prerogative as the Earls had enjoyed, but also afford evidence that the Duchy was to be invested with still more extensive rights and privileges.

And lastly. That the Duchy Charters have always been construed and treated, not merely by the Courts of Judicature, but also by the Legislature of the Country, as having vested in the Dukes of Cornwall the whole territorial interest and dominion of the Crown in and over the entire County of Cornwall"""

Duchy of Cornwall,
Somerset House,
May, 1855."

There is an obvious contradiction between what is officially presented, and publicly perceived, as "the Duchy of Cornwall" and what the Officers of the Duchy of Cornwall submitted as conclusive evidence to support the Duke's right to the ownership of the foreshore, around Cornwall, between high and low water mark back in 1856-57. It amazes me that the UK government considers lies and disinformation to be acceptable when the research on the fully referenced www.duchyofcornwall.eu website totally rubbishes the claim that the Duchy of Cornwall is simply a private estate.

The Duchy of Cornwall performs a similar function within the territory of Cornwall to that played by the Crown Estate in the rest of the UK. The former is exempt from the FOI act yet the latter is not.

Perhaps you could tell me if the Duchy of Cornwall was ever discussed by government in relation to the FOI act and schedule 1. Who gave an opinion on this subject? What did they say?

Yours sincerely,

Philip Hosking

Hawkes, Janet, Ministry of Justice

1 Attachment

Dear Mr Hosking

Please see the attached reply to your further FOI request of 10 February
below.

Kind regards

Janet Hawkes
J Hawkes (Ms)
Constitutional Settlement Division
7th Floor, Post Point 7.40
Ministry of Justice
102 Petty France
London SW1H 9AJ

Tel: 020 3334 3555
Fax: 020 3334 4455
Email: [email address]

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Philip Hosking

Dear Sir or Madam,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Ministry of Justice's handling of my FOI request 'Why is the Duchy of Cornwall exempt from the Freedom of Information Act?'.

A full history of my FOI request and all correspondence is available on the Internet at this address:
http://www.whatdotheyknow.com/request/wh...

It is totally unacceptable that a body such as the Duchy of Cornwall which clearly is NOT just a private estate is exempt from the FOI act. Further more it is equally unacceptable that the Cornish public has no way of knowing if the Duchy has even been discussed in relation to the FOI act.

You may like to know that on the 6th of March in Redruth, Cornwall, John Kirkhope (B.A. (Hons.), LL.B.(Hons.), Dip. N.P., TEP Notary Public, Non Practising Solicitor) will be giving a public lecture on the constitutional legal position of the Duchy in relation to the territory of Cornwall.

Once again, with a public audience, the fiction that the Duchy of Cornwall is just a private estate (the fiction you and the current Duchy authority like to promote as the truth) will be rubbished.

Yours sincerely,

Philip Hosking

Data Access & Compliance Unit, Ministry of Justice

1 Attachment

Dear Mr Hosking,

Please find attached the acknowledgement to your request for an Internal
Review.

Yours sincerely,

Kate Holliday
(On behalf of Michael Evans)

<<Acknowledgement - 58446 - Hosking.doc>>

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Walsh-Atkins, Eirian, Ministry of Justice

1 Attachment

Dear Mr Hosking,

I have attached a response to your request for an internal review of this
decision to this email,

Many Thanks

Eirian Walsh Atkins

Constitutional Policy Branch
7C-013 (Post Point 7.40)
102 Petty France
London
SW1H 9AJ

<<Hosking - FOIA IR response 5-06-09.doc>>

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alan m dransfield (Account suspended) left an annotation ()

It beggars belief the Duchy of Cornwall NOW claim they are not under FOIA 2000. What are they hiding then?