The A G for the Prince of Wales v Information Commissioner and Mr Michael Bruton
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Charles |
| Neutral Citation | [2016] UKUT 154 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Information rights,Information rights - Environmental information - general |
| Date | 22 March 2016 |
| Published date | 01 December 2016 |
The A-G for the Prince of Wales v the IC and Mr Michael Bruton
[2016] UKUT 0154 (AAC)
GIA/158/2012
1
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
1. 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).
The A-G for the Prince of Wales v the IC and Mr Michael Bruton
[2016] UKUT 0154 (AAC)
GIA/158/2012
2
2. 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.
3. 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).
4. 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.
5. 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).
The A-G for the Prince of Wales v the IC and Mr Michael Bruton
[2016] UKUT 0154 (AAC)
GIA/158/2012
3
Brief overview of the issues
6. 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.
7. 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.
8. 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).
9. 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
To continue reading
Request your trial
1 cases
-
Cross v Information Commissioner and the Cabinet Office
...points raised in the Duchy case [The Attorney-General for the Prince of Wales v the Information Commissioner and Mr Michael Bruton [2016] UKUT 154 (AAC)] that were not taken or which were reserved in this transferred appeal and have concluded that it is not necessary or appropriate for us t......