New paper by John Angarrack: 'A brief examination of Lord Berkeley’s Duchy of Cornwall (Private Estate) Bill'
Following a request by Bewnans Kernow, John Angarrack has prepared the following paper to clarify current developments.
A brief examination of Lord Berkeley’s Duchy of Cornwall (Private Estate) Bill (HL).
1. As stated by Lord Berkeley in the Explanatory Notes, the Bill intends to, among other things, “remove the presumption of Crown Immunity applying to the Duchy of Cornwall”. The Bill also seeks to “remove a number of exemptions and immunities under various Acts of Parliament” from the Duchy of Cornwall. In addition, the Bill seeks to remove “certain rights and obligations” applicable to the Duchy of Cornwall and vest them in the Crown, and thus “place Cornwall and the Isle of Scilly in the same position as the rest of England and Wales”.
2. Although it is left to the reader to try and fathom out what the underlying purpose of the Bill is, three principal themes, or assumptions, appear to resonate throughout the explanatory notes that accompany the Bill: [A] The Duchy of Cornwall and The Crown are two quite separate entities [Background and clauses 4, 5, 6, 7, 8]. [B] The Duchy of Cornwall is, or should be made into, a private estate [Background and clauses 2, 4]. [C] There are legal and constitutional differences between England and Cornwall/Isles of Scilly which should be removed [Background and clauses 5, 6, 7, 8].
3. This short paper intends to show how some of the assumptions made by the author of the Bill are not only simplistic, but also factually and legally incorrect. As such, it will be demonstrated that the essential message contained in the Explanatory Notes which accompany the Bill is fundamentally misleading, and that in such circumstances, the underlying premise of the Bill is fatally flawed.
4. [A] The Duchy of Cornwall and the Crown are two quite separate legal entities: In fact and in law, the Duchy of Cornwall is part of the Crown. Take, for example, Part 12 [Final Provisions] of the Planning Act 2008. Here Parliament states, “Crown land is land in which there is a Crown interest or a Duchy interest”, and that, “The appropriate Crown authority in relation to land belonging to the Duchy of Cornwall is such person as the Duke of Cornwall, or the possessor for the time being of the Duchy, appoints”. Moreover, at Section 8 the Planning Act 2008 states “the Crown includes the Duchy of Cornwall”. Likewise, Part 1 of the Petroleum Act 1998 states, “For the purposes of subsection (2), “Crown land” means land which belongs to Her Majesty or the Duchy of Cornwall”. Similarly, the Limitation Act 1980 [Part III Miscellaneous and General] states, “For the purposes of this section, proceedings by or against the Crown include proceedings by or against the Duke of Cornwall.
5. Not only does Parliament legislate in ways that consider the Duchy of Cornwall to be part of the Crown, it also expressly identifies the Duchy as a Crown body [House of Commons Library Ref:SN/SG819: 'Finances of the Monarchy' p.10 (9 May 2008)] and Government Ministers insist upon it. For example, in 2008 Andrew George MP received such notification from then Government Minister Iain Wright [letter dated 16th June 2008]. The letter concerned thwarted attempts by Scilly Islanders to buy their Duchy-owned properties under the Leasehold Reform Act 2002. Their spokesman, a Mr Davis, had been told that as the Duchy was part of the Crown, ‘Crown exemptions’ applied. When this was again challenged, the exasperated Parliamentary Under Secretary of State wrote to Mr George: “It does seem that Mr Davis is unwilling to accept that the Duchy of Cornwall is part of the Crown despite numerous explanations that this is the case.”
6. Many other examples can be given, but it is already clear from the above that the highest authorities in the land already consider the Duchy of Cornwall to be part of the Crown. Therefore a principal assumption made by the author of the Bill [that the Duchy of Cornwall is separate from the Crown] is wholly incorrect. As such, one of the principal aims of the Bill, [to remove certain rights and obligations from the Duchy and vest them in the Crown] has no substance.
7. This can be no better highlighted than by a simple analysis of just one aspect of the Bill. For example, the over-riding aim of Section 7 of the Bill is that, “The right to Bona Vacantia within Cornwall and the Isles of Scilly shall vest in the Crown”. Yet HM Revenue and Customs state, “If there are no surviving relatives, the Crown [which includes the Duchies of Lancaster and Cornwall] in the last resort takes the residuary estate as bona vacantia”. [IHTM 12126 – Distributions under intestacy [Bona Vacantia]]. Therefore the right to Bona Vacantia within Cornwall is already vested in the Crown.
8. [B] The Duchy of Cornwall is, or should be made into, a private estate: It is clear from the above that the Duchy of Cornwall is a Crown body, and not a private estate. Although it remains unclear why the author of the Bill wants to turn the Duchy of Cornwall into a private estate, deprive the Duke of his prerogative rights and effect a constitutional change to Cornwall/IoS, a possible motive can be found at Section 16 of this paper.
9. [C] There are legal and constitutional differences between England and Cornwall/Isles of Scilly which should be removed: Although this is not the time and place to bring forth such a debate, there are a number of historic legal and constitutional reasons why the Duchy of Cornwall is considered to be a discrete part of the Crown, or government structure of these islands. The author of the Bill has in fact acknowledged legal and constitutional differences between Cornwall/IoS, and the rest of England and Wales. However, these differences, which the Bill seeks to remove, are in part what give Cornwall/IoS its unique Duchy status. So to remove these identifiers in order to bring “Cornwall and the Isles of Scilly into the same position as the rest of England and Wales” is to effect a change in the constitutional position of this part of the British Isles. A constitutional position that was recognised in the 1973 Kilbrandon Report into the British Constitution, and is currently held with great affection in the hearts and minds of its inhabitants. Surely, in a democracy, such constitutional change would require the consent of the people?
10. NOT FIT FOR PURPOSE: Even if the Bill could, by some remote possibility, serve the purpose which appears intended, its drafting is entirely muddled. For the Bill seeks to remove a centuries-old constitutional settlement by amending an entirely random hotch-potch of legislation pertaining to the Duchy of Cornwall - thereby removing some rights and obligations, while leaving others intact. For example, the Bill seeks to remove from The Planning Act 2008 the section which bestows the Duchy of Cornwall with Crown Authority, while leaving intact Part 1 of the Petroleum Act 1998 which states, “For the purposes of subsection (2), “Crown land” means land which belongs to Her Majesty or the Duchy of Cornwall”. So the Duchy of Cornwall will own Crown land, but not have Crown authority.
11. Even when the Bill references a particular Act, not all Duchy of Cornwall aspects of the Act are removed. For example, the Bill seeks to delete the reference to the Duchy of Cornwall at Section 37 (6) of the Limitation Act 1980 [which will remove the right of the Duchy of Cornwall to gold or silver mined in Cornwall] but not Section 37 (3) of the same Act which extends Crown rights and exemptions to the Duchy of Cornwall.
12. FRAMEWORK CONVENTION FOR PROTECTION OF NATIONAL MINORITIES: The Bill will also undermine current efforts to cement into the political process the consequences of the government recently including the Cornish within the Council of Europe Framework Convention for the Protection of National Minorities, where marginalisation of identity and border blurring are counter to the aims of the Convention. There is no doubt that the Duchy constitutional dimension is the key identifier of the Cornish National Minority’s territorial identity, and formal transition from Duchy territorial marker to Duchy private estate, which the Bill effectively proposes, runs counter to the Convention and the interests of the Cornish National Minority.
13. PREROGATIVE RIGHTS: It must be pointed out that what is under discussion in the proposed Bill is the removal of many of the Duke of Cornwall’s prerogative rights. For example, the Bill seeks to remove the words ‘Duke of Cornwall’ from the following phrase contained in Section 37 (6) of the Limitation Act 1980, “Nothing in this Act shall affect the prerogative right of Her Majesty (whether in right of the Crown or of the Duchy of Lancaster) or of the Duke of Cornwall to any gold or silver mine.”
14. It is also worth noting that some of the rights mentioned in the Bill precede the Duchy Charter of 1337. For example, Section 8 of the Bill references the Right to Escheat. Historically, the records of the 1284 Launceston Eyre show how Edmund held, “Cornwall above the King and has the Office of Escheator throughout Cornwall, so the Escheator of the King shall not intermeddle in anything belonging to the Sheriffdom of Cornwall”.
15. Therefore, before Parliament can discuss, let alone terminate, the Duke’s prerogative rights, it must first establish the source of those rights in order to determine whether or not what is vested in the Duke is a matter of adjudication on its part, held as a trust on behalf of and in the name of Her Majesty, or held as an absolute right by His Royal Highness alone.
16. THE AUTHOR OF THE BILL: Lord Berkeley is being guided by author of the Bill, John Kirkhope. Professor Kim Stevenson (Plymouth Law School), Professor Judith Rowbottom (Nottingham Trent University) and Dr Samantha Pegg (Nottingham Law School) have all questioned John Kirkhope’s Duchy of Cornwall related research practices and motives, and expressed concern about the “impact of the intrusion of personal baggage on the research project”, concluding that the author of the Bill is not a “formal academic scholar”. [Editorial: Vol. 4. Issue 2. SOLON Online Journal, July 2014].
17. IN SUMMARY: Apart from Article 1 [Succession to title], Lord Berkeley, and the author of the Bill, John Kirkhope are entirely misguided and Parliament is being misled, while the Bill itself is an ill-thought-out, constitutionally questionable and potentially undemocratic abuse of Parliamentary procedure serving next to no purpose.
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