The Duke and Duchy of Cornwall and the EIRs

April 5th, 2016

The Duchy of Cornwall was established by Edward III in 1337 for his son. There is a landed estate (the Duchy) and a title (the Duke). Edward III was no doubt unconcerned about any legal duties that may attach to the Duchy; he had bigger fish to fry. In the 21st century, however, at least one knotty question of legal duty has surfaced.

The question was raised by a Mr Michael Bruton, who was interested in obtaining certain environmental information from the Duchy. He made a request under the Environmental Information Regulations 2004 (EIRs) – but the Duchy was only obliged to respond if it was a “public authority” for EIR purposes. It said it wasn’t; the ICO agreed but, upon Mr Bruton’s appeal, the First-Tier Tribunal did not. It considered the Duchy to be a public authority for EIR purposes.

The Duchy appealed to the Upper Tribunal. The pivotal provision of the EIRs was regulation 2(2)(c), by which a public authority includes a “body or other person, that carries out functions of public administration”. The appeal was successful, and the FTT’s decision was overturned in Attorney-General for the Prince of Wales v the IC and Mr Michael Bruton [2016] UKUT 0154 (AAC).

The primary issue for the UT (Charles J) was whether the Duchy and/or the Duke fall within regulation 2(2)(c) EIR. That involved applying the decisions of the CJEU and then the UT in the Fish Legal litigation, in which water utility companies were held to be public authorities for EIR purposes.

The key questions from Fish Legal are (i) is the entity a legal person governed by public or private law; (ii) if so, has the legal regime applicable to it entrusted it with the performance of services of public interest, inter alia in the environmental field, and (iii) has it been vested with special powers?

The UT warned, however, that the Fish Legal questions should not be applied in a rigid, box-ticking fashion without an overall ‘sense check’. See paragraphs 42-43:

“42. If follows that the CJEU test should not be applied rigidly or without reference to, and a cross check with, both the words of the Directive and the EIR and their underlying objectives and purposes. That cross check involves standing back and asking whether in all the circumstances of the case the combination of what are, or are arguably, the   factors identified by the CJEU in its test result in the relevant entity being a functional public authority.

43. The key issue on that approach is whether there is a sufficient connection between what is relied on to satisfy the functional test and what entities that are organically part of the administration or the executive of a state do.”

Charles J concluded that:

  • The Duchy is not a public authority under the EIRs. In fact, it has no legal personality at all. Its 1337 charter did not create a legal personality for the Duchy, and nor has anything else since. “The Duchy of Cornwall or the Duchy is no more than a name that has been used correctly to describe the possessions of the Duke of Cornwall (the Duchy estate), or to the Duke (or his title), or collectively and conveniently to describe the officers and persons who from time to time act for and on behalf of the Duke as the owner of the Duchy estate.”
  • The Duke is a public authority under the EIRs, but only in that he is a statutory Harbour Authority. i.e. the harbour and lighthouse authority for the harbour at St Mary’s on the Isles of Scilly. His status as Heir to the Throne (and the constitutional implications of that role), his entitlement to wreck/treasure rights and bona vacantia within the Duchy do not constitute functions of public administration for these purposes.
  • The Duke’s duty to disclose environmental information under the EIRs extends only to environmental information he holds as the Harbour Authority. Mr Bruton had not asked for any such information.

The last of the above issues is potentially of wider application, beyond the peculiarities of the Duchy. The “hybridity” question asks whether a limited range of public administrative functions triggers an entitlement to ask for all environmental under the EIRs, or only environmental information relating to those specific functions. Charles J’s conclusion was that the hybridity analysis for individuals (such as the Duke) was not necessarily the same as for water companies. In the case of individuals, the function-specific approach applies, and the EIRs have only a limited purchase on the Duke.

Charles J also concluded that the Duke’s functions as a Harbour Authority were de minimis. i.e. they were too slight to render him a whole-scale EIR public authority. See paragraph 158:

“If my view on the application of the hybridity principle to the Duke is wrong, I have concluded that applying a de minimis test the combination of the following factors:

  • the balance between on the one hand (a) the extent and onerous nature of the wider obligations and the invasion of private information they would trigger, and on the other (b) the importance of environmental information being made available and the wide ambit of the Directive that was intended, and
  • the comparatively very small amount of environmental information that the Duke would hold as a harbour authority when compared with all other environmental information he holds as a private landowner

excludes the Duke from being a public authority under the functional test.”

As it happens, it was acknowledged by all involved that the information requested by Mr Bruton was not held. The Bruton litigation was about the principled analysis of the Duchy and Duke under the EIRs. The UT’s analysis came down firmly in the Duchy/Duke’s favour.

11KBW representation aplenty: Karen Steyn QC and Joseph Barrett appeared for Mr Bruton, Anya Proops QC appeared for the ICO (as I did before the FTT) and Amy Rogers was junior counsel for the Duchy/Duke.

Robin Hopkins @hopkinsrobin

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