Further to Robin Hopkin’s post this morning, here is a summary of the First-Tier Tribunal’s decision in Bruton v IC and The Duchy of Cornwall & The Attorney General to HRH the Prince of Wales (EA/2010/0182).
Mr Bruton had requested environmental information from the Duchy of Cornwall, concerning the conservation of an area designated under the Habitats Directive 92/43/EEC which lies within the Ducy. The Duchy refused the request on ground that it was not a public authority for the purposes of the Environmental Information Regulations 2004 (“the EIRs”).
The statutory framework
Under regulation 2 of the EIRs:
“(2) Subject to paragraph (3), “public authority” means –
(a) government departments;
(b) any other public authority as defined in section 3(1) of the Act Freedom of Information Act 2000, disregarding for this purpose the exceptions in paragraph 6 of Schedule 1 to the Act, but excluding –
(i) any body or office-holder listed in Schedule 1 to the Act only in relation to information of a specified description; or
(ii) any person designated by Order under section 5 of the Act;
(c) any other body or other person, that carries out functions of public administration; or
(d) any other body or other person, that is under the control of a person falling within sub-paragraphs (a), (b) or (c) and –
(i) has public responsibilities relating to the environment;
(ii) exercises functions of a public nature relating to the environment; or
(iii) provides public services relating to the environment.”
The EIRs of course implement Directive 2003/4/EC of 23 January 2003 on public access to environmental information (“the Directive”). This provides that:
“2. ‘Public authority’ shall mean:
(a) government or other public administration, including public advisory bodies, at national, regional or local level;
(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and
(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).
Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity. If their constitutional provisions at the date of adoption of this Directive make no provision for a review procedure within the meaning of Article 6, Member States may exclude those bodies or institutions from that definition.”
The Tribunal also took into account the definition of a public authority for the purposes of the Aarhus Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters.
The issues
The Tribunal was mindful that the concept of public authority that pertains in relation to the public’s right of access to environmental information as deployed in the Directive must be construed having regard to the wider scheme of EU environmental law, in particular the Habitats Directive (paragraphs 20-21).
It identified at paragraph 32 that the questions to be decided were:
a) Whether the Duchy was a body or other person, and
b) If so, whether it carried out functions of public administration, or
c) Whether the Duchy was under the control of the Duke who carries out functions of public administration and has public responsibilities relating to the environment, exercises functions of a public nature relating to the environment, or provides public services relating to the environment.
Whether the Duchy was a body or other person
On the first issue, the Tribunal considered detailed evidence about the Duchy, which makes for an interesting (if esoteric) read. It concluded that, “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 the way it has presented itself to the world including Parliament, the differentiation 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” (paragraph 57).
Whether it carried out functions of public administration
The Tribunal described the Upper Tribunal decision in Smartsource v IC and others [2010] UKUT 415 (AC) as “very relevant” here (paragraph 58). It found that Smartsource meant that “a body which carries out functions of public administration will not be a public authority for the purpose of the EIR if those functions are on the whole secondary functions which are related to and flow from primary functions which are not functions of public administration. But where the functions of public administration are separate self standing functions which do not flow from or depend on the main activity of the body, they are not “ancillary” in Smartsource terms and the body may be a public authority for the purpose of the EIR” (paragraph 63). Note that this aspect of the decision may well not be the final word on this topic. The Upper Tribunal is due to hear an appeal in Fish Legal and Shirley v IC and United Utilities Water plc and others (GIA/0979 & 0980/2011) in January 2012, which will include consideration of the Upper Tribunal’s decision in Smartsource v IC and others [2010] UKUT 415 (AC).
Applying this test in the case of the Duchy, the Tribunal found that its primary function (according to its 2010/11 Annual Report) was to provide an income for present and future Dukes and that the Duchy’s principal activity to generate this income was the commercial management of its lands and properties (paragraph 64).
The Tribunal found (after a further lengthy esoteric discussion) that it was also a Statutory Harbour Authority (paragraph 87). As such, it was a relevant authority and a competent authority for the purposes of the Habitat Directive and the Conservation of Habitats and Species Regulations 2010 (paragraph 97). The judgment records (without expressly endorsing) the argument of the Appellant that “it would be entirely contrary to the aims of the Aarhus Convention, the Directive and the EIR if a body which is a ‘relevant authority’ for the purposes of what the European Commission has stated is “the cornerstone of Europe’s nature conservation policy” (alongside the Birds Directive) was not subject to the European access to environmental information regime” (paragraph 92).
The Tribunal applied the multifactorial approach in Smartsource to the Duchy’s activities as a Statutory Harbour Authority and concluded that “the preponderance of factors point to the Duchy carrying out functions of public administration. This conclusion does not mean that we consider all Statutory HAs will necessarily be public authorities under the EIR. It depends on the facts in each case” (paragraph 99). (In the alternative, it found that the Duke was the Statutory HA (paragraph 100).) It further concluded that these functions were not ancillary to the Duchy’s primary business (paragraph 101).
Where have we got to so far?
At this point of the judgment, the Tribunal helpfully summarises its conclusions as follows (paragraph 102):
“So far we have found that:
i) The Duchy is a body or other person;
ii) The Duchy is a Statutory HA;
iii) Statutory HAs are ‘relevant authorities’ and likely ‘competent authorities’ under the UK regulations implementing the Habitat Directive;
iv) The Aarhus Convention requires the Directive to be read purposively so as to cover information requests relating to the EU environmental regime as a whole;
v) Statutory HAs carry out functions of public administration;
vi) Therefore the Duchy is a public authority under reg 2(2)(c);
vii) Even if the Duchy is not the Statutory HA, the Duke is;
viii) The present Duke manages and controls the Duchy;
ix) Then the Duchy is a public authority under reg 2(2)(d).”
The most interesting point here is that the Tribunal accepts the Appellant’s argument (which was not expressly endorsed at paragraph 92, as discussed above) that the Directive has to be read so as to cover information requests relating to the EU environmental regime as a whole. Does this mean that any competent authority for the purposes of the Habitats Directive and/or other environmental directives must be a public authority for the purposes of the EIRs?
Conclusions
Having reached the above findings, the Tribunal found that it did not need to go any further. The fact that the Duchy was a public authority for the purpose of the EIRs in its capacity as a Statutory Harbour Authority meant that it was a public authority for the purposes of the EIR generally (paragraph 103).
The Tribunal did go on to comment on two other factors which it considered also pointed towards the Duchy being a public authority that was subject to the EIRs. These factors were that the Duchy provided an income for the Price of Wales in his constitutional capacity to undertake public services and that it enjoys a statutory right to bona vacantia.
The decision only applies to public authorities for the purposes of the EIR and not also FOIA. However, as discussed in previous posts (e.g. here) the definition of environmental information is wide.