The A - G for the Prince of Wales GIA 158 2012
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Charles |
| Judgment Date | 22 March 2016 |
| Neutral Citation | 2016 UKUT 154 AAC |
| Subject Matter | Information rights |
| Respondent | the IC and Mr Michael Bruton |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 158 2012 |
| Appellant | The A - G for the Prince of Wales |
DECISION
(1) This appeal is allowed.
(2) The Duchy of Cornwall is not a public authority for the purposes of the Environmental Information Regulations 2004 or of the Environmental Information Directive 2003/4.
(3) The Duke of Cornwall is under no obligation to provide the environmental information sought by the request that is the subject of the decision of the IC and the FTT in this appeal.
OVERVIEW
(1) The Duchy of Cornwall does not have legal personality (unless it is being used as a reference to the Duke of Cornwall) and is not a person, body or entity that has a separate identity of its own.
(2) The Duke of Cornwall, as the harbour and lighthouse authority for the harbour at St Mary’s on the Isles of Scilly (the Harbour Authority) is a public authority for the purpose of the above-mentioned Regulations and Directive.
(3) The Duke of Cornwall’s obligations to provide environmental information as such a public authority are limited to the environmental information he holds as the Harbour Authority.
REASONS
Introduction
- This is an appeal from a decision of the First-tier Tribunal (the FTT) who found that the Duchy of Cornwall (the Duchy or the Duchy of Cornwall) was a public authority for the purposes of the Environmental Information Regulations 2004 (the EIR or the Regulations) and directed the Duchy to disclose the requested environmental information to Mr Bruton (the Appellant before the FTT and the second Respondent to this appeal). The EIR is intended to implement the EU Directive on Public Access to Environmental Information (Council Directive 2003/4/EEC) (the Directive)
- Confusingly the EIR has different numbering to the Directive. When I refer to a Regulation I am referring to the EIR and when I refer to an Article I am referring to the Directive
- The request was made to the Duchy and refused on the basis that the Duchy was not a public authority. That refusal was upheld by the Information Commissioner (the IC). The information sought does not exist but no point has been taken that this appeal is academic. This is because the underlying legal issues are relevant to another request Mr Bruton has made, other requests that he and others would like to make and more generally. Also the parties to this appeal were given and took the opportunity to make submissions to the Upper Tribunal (of which I was a member) on common underlying legal issues in Fish Legal and Shirley v Information Commissioner and Ors [2015] UKUT 0052 (Fish Legal UK).
- In reaching its decision the FTT concluded that the Duchy was a “body or other legal person” (my emphasis). Apart from setting out a summary of the evidence and argument the reasoning it gives for reaching that conclusion is scant. Essentially it is found in paragraph 57 of its Decision which states:
57 The UT in Smartsource found that:
The definition of “public authority” for the purposes of the EIR 2004 may be fixed as a matter of its wording, but the outcome of its application will necessarily change according to the context and over time. To that extent the notion of a “public authority” is both place and time specific [105]
With this in mind, 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 the 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 remainder of the FTT’s Decision is directed to whether the Duchy, as such a body or person, is a public authority. It is based on the approach taken in the Smartsource case to determining who is a public authority and is not relied on because that approach has been overruled by the CJEU in Fish Legal v Information Commissioner [2014] 2 WLR 568 (Fish Legal EU).
Brief overview of the issues
- A great deal of time and paper has been taken up on the issue whether the Duchy is, as the FTT concluded, a “body or other legal person”. This has been read (in my view correctly) as a conclusion that the Duchy has legal personality. This part of the conclusion of the FTT does not mirror the language of Regulations 2(2)(c) and (d) because it includes the word “legal”. I confess that it is not clear to me how central the finding of legal personality is to the FTT’s later conclusion that the Duchy is a body or other person for the purposes of Regulations 2(2)(c) and (d). However, a requirement of legal personality does reflect the argument of the IC and the Attorney General of the Prince of Wales (the A-G) that the “body or person” referred to in Regulation 2(2)(c) must have legal personality.
- On the legal personality issue the arguments are:
i) whether the “other body or other person” referred to in Regulation 2(2)(c) has to have legal personality,
ii) is the Duchy a body or person that has legal personality, and
iii) if the Duchy does not have legal personality, is the Duchy nonetheless a body or person referred to in the Regulation.
- Save in respect of:
i) one of the arguments on whether the Duchy (as a body or other person) carries out functions of public administration namely, Mr Bruton’s argument that it does so because, as a separate entity, it has been entrusted with the management of assets and been given special powers to provide funds for the Heir to the Throne, and
ii) the hybridity issue
this is an arid argument because it is clear that the Prince of Wales is a natural person who has legal personality if he is so described (or if he is described in any of the following ways, namely as the Duke of Cornwall, or the Duke in right of the Duchy, or the Heir to the Throne, or the Duke in right of or acting as or as a harbour authority). All such descriptions (save for the last) were used by Mr Bruton’s counsel in argument. In all such capacities the Prince of Wales is an individual and in none of them has he been made a corporation sole (as for example some Secretaries of State and other officers (e.g. the Treasury Solicitor) have been).
- The second main issue is whether the Duchy or the Prince of Wales as an individual (by whatever title or name he is so described) carries out functions of public administration or otherwise falls within Regulation 2(2)(c). On this issue it was accepted before me by the A-G and the IC that the Prince of Wales (as the Duke of Cornwall) does carry out functions of public administration as the harbour and lighthouse authority for the harbour at St Mary’s on the Isles of Scilly (the Harbour Authority). On this issue the A-G expressly reserved the right on any appeal to withdraw this stance and to argue that the Upper Tribunal’s decision in Fish Legal UK was wrong.
- On the second issue:
i) Mr Bruton argues that the Duchy is an organic public authority within Article 2(2)(a) of the Directive and from that base that, as it is not mentioned in Regulations 2(2)(a) and (b) of the EIR, it is included within Regulation 2(2)(c),
ii) Mr Bruton argues that the Duchy as a body or person carries out a number of functions of public administration,
iii) Mr Bruton argues in the alternative that the Prince of Wales / Duke of Cornwall or the Duke in right of the Duchy carries out a number of functions of public interest, and is a public authority within Regulation 2(2)(c), and
iv) the IC and the A-G argue that Mr Bruton wrongly elides the Duchy and the Duke, the Duchy has no separate functions and save in respect of the Duke’s function as a harbour authority he has no functions of public administration.
- The next issue is whether the Duchy is a public authority under Regulation 2(2)(d). This was not pursued in oral argument on behalf of Mr Bruton. As I understood it, this was because of the inability of Mr Bruton to identify the environmental responsibilities, functions or services of the Duchy (as a body or person) that he relies on if the Duke is a public authority under Regulation 2(2)(c). That inability shows that Regulation 2(2)(d) does not apply and is instructive because it indicates that there is considerable force in the argument that the Duchy does not have any functions separate and distinct from those of the...
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