In order to obtain details on how the legislative process works in the democratic system of the United Kingdom, the Notary Public, John Kirkhope has acquired from the Cabinet Office a copy of the process and rules according to which HM The Queen and HM Prince of Wales, the Duke of Cornwall, give their consent to Acts of Parliament at the early stage of draft proposals.   At first, information was refused by the Cabinet Office but after protracted delays and following an appeal to the Information Commissioner, disclosure of an edited version in the public interest was agreed.

Well done Mr Notary Public.   Unfortunately, not all attempts to obtain official information on the relationship of the Duchy of Cornwall to Cornwall and its people are successful.  For example, after four years of requests, tribunals and appeals, information on the tax liability of the Duke of Cornwall for the period 1960 to 1962, Mr Kirkhope has been refused the information in the form of a 31 page document.   

What is the Government trying to hide?  The Crown Estate and the Duchy of Lancaster accept their responsibilities under the Freedom of Information Act 2000, so, why not the Duchy of Cornwall?   The Duke of Cornwall gets special treatment or Crown immunity by other means. The Freedom of Information Act has been amended by the Constitutional Reform and Governance Act 2010, Schedule 7, by which “exemptions not subject to the public interest test” now include “Communications with the heir to the throne”.   That is, the Duke of Cornwall and the next in line to the throne.   This Act is totally at variance with The Princes Case 1606, otherwise studiously followed by Attorney-Generals,  which affirms that “Acts (or decisions) concerning the Prince of Wales (The Duke of Cornwall) are public Acts to be judicially noticed”.  

A tradition of transparency was confirmed by Rowe v. Brenton, Trial at Bar 1828-30.  “The public has in interest in everything that is done in the Duchy”. (Concanen Edition, 8B & C737).   Currently, if logic applied, then, the logical conclusion would be that whatever the Duke of Cornwall does in respect of Cornwall, the exceptions or immunities provided mean that, it is officially not in the public interest.

In what appears to be the last release of documents, in a version considered suitable for public viewing, in relation to the Duke and Duchy of Cornwall, has been given the title: “Queen’s or Prince’s Consent” comprising 30 pages of 145 paragraphs and an appendix of 40 paragraphs with some deletions published by the “Office of the Parliamentary Counsel” on “10 November 2010”. Paragraph 4 of the main text reads:-

“Queen’s consent is likely to be needed for – provisions affecting the prerogative; and provisions affecting the hereditary revenues, property or personal interests of the Crown, the Duchy of Lancaster or the Duchy of Cornwall”. This process is initiated when, except in cases requiring consent in respect of the prerogative only, there is considered to be “a potential impact on operations or privileges”, as given at para.121, in respect of the Crown Estate or the Duchies.   (Note:- Acts concerning the Duchy of Cornwall require the Queen’s consent when there is no Duke and the estate reverts to the Crown to be administered separately until the next Duke is born.   The Duchy is never absorbed into the Crown).  The “privileges” apparently refer to unspecified privileges above and beyond those available to the ordinary individual citizen.

The “Consent” document makes no reference to the Cornwall foreshore dispute between the Monarch and the Duke leading to the Cornwall Submarine Mines Act 1858.  The evidence presented in that case by the parties reveals (a) and (b) Duchy evidence and (c) Crown evidence.  (a)“The Dukes of Cornwall have from the creation of the Duchy enjoyed the rights and prerogatives of a County Palatine”.  (b)  “The three Duchy Charters are sufficient in themselves to vest in the Dukes of Cornwall, not only the government of Cornwall, but the entire territorial dominion in and over the county which had previously been vested in the Crown”.

(c)  “That the Crown by virtue of its dominion and authority over the soil… is conceived that such rights in the Crown are irreconcilable with the alleged independence or quasi independence of the county from the sovereignty of England”.  

In this 1858 royal dispute the Duchy of Cornwall’s argument was accepted and it was awarded the minerals of the foreshore and rivers of Cornwall.  Normally, such assets would be taken as Crown property.  Not so for Cornwall.   The Crown Estate (“held by her majesty in her political capacity”, Halsbury’s Vol.12(1) para.278) has confirmed: “The Crown Estate has no holdings within the boundaries of Cornwall”.  (Letter dated 7th January 2005).   At least, in this respect, Cornwall is officially and inexplicably detached from the rest of the UK.

Under “Prince’s consent” para.34; “The Duchy of Cornwall was created in 1337 by Edward III for his son Prince Edward  (the Black Prince).   A charter ensured that each future Duke of Cornwall would be the eldest surviving son of the monarch and heir to the throne”.   Paragraph 59 recognises the Duchy of Cornwall as a “Dukedom”, i.e. an area ruled by a Duke.

The “Consent” document does not reveal that the creation of the Dukedom was achieved by three charters.  The first was deemed, by The Prince’s Case of 1606, (8 Co.Rep) to be “equivalent to an Act of Parliament since, even though it created a mode of descent unknown to the common law which it is doubtful whether the Sovereign’s grant can do without parliamentary authority”. (Halsbury’s Laws, 4th Ed, Vol.8, Constitutional Law, para.1560).   These charters were originally written in latin.  There is no record that members of the English Parliament in 1337 spoke or understood latin.  Official translations into English were made in 1830 by James Manning for the Trial at Bar, Rowe v. Brenton case.  (convened to award the Duchy the copper deposits of Cornwall).  The case was under the direction of the Lord Chief Justice.   In 1337, the Cornish spoke Cornish.  In terms of minerals and metals, the Charters refer only to: “Our stannaries”, i.e., tin and “coinage” or, the Dukes tax levied on tin production at twice the hundred rate for Cornwall compared to that collected in Devon.  Figures from “The Stannaries” by G.R.Lewis, Harvard University, USA, 1908).  The tax was discontinued in 1838 and replaced by an annuity of £16,216.00 till 1983. (‘The Duchy of Cornwall’, by Crispin Gill, publishers, David & Charles, 1987, pages 51 and 196).

All three, as yet unrepealed Duchy Charters, contain the phrase: “We have given and granted Our son…………….according to the nobility of his race”.   This insertion, otherwise unrelated to the text, reflects the prerogative at work apparently as authority to discriminate against the Cornish.  

The first Charter of 17th March 1337 claimed the pre-England Cornish tin mining organisation as “Our stannaries ” and gave the assurance: “lest it may in anywise hereafter be doubted what or how much the same Duke or others Duke of the same place ought to have in particular we have commanded to be inserted in this our Charter”.   One would suppose – job done. 

On the following day, the 18th March 1337, a second Charter decreed an off the official record prerogative grant extending the Duke’s considerable powers to maximise his income in Cornwall.

Then there was the third charter of 3rd January 1338 which authorised a virtual Duchy Dictatorship in Cornwall by the Monarchy and Parliament granting “the King’s Writ, summons of exchequer and official acts, notwithstanding Our prerogative”.    

Fourteenth century imperialism, by charter, prerogative or otherwise, should be recognised as undemocratic in twenty-first century Britain and promptly abolished. 

Also excluded from the “Consent” document is the statement to Parliament of 27th March 1996  by the Prime Minister which sets out the constitutional position:

“No formal title to the lands of the Duchy of Lancaster is vested in the Sovereign and of the Duchy of Cornwall in the Prince of Wales.  However, neither the Sovereign nor the Prince of Wales (the Duke of Cornwall) is able to dispose of the estate’s capital; they are entitled only to the annual income”.  (Hansard Col.22811).   

In other words, certain royal private assets can not be disposed of as is the case with a normal private estate.   However, the “Consent” document asserts:  “The private estates differ from the Crown Estate in that they can be freely disposed of and are not subject to the Civil List Acts. (Consent para. 28).

The right to “signify consent” for certain proposed Acts of Parliament in respect of  “personal interests” and “the prerogative”  which is “now exercised by Crown servants”,  (Consent, para.8 ), appears to signify an intention to retain and extend the realm of prerogative rights for the Government, the Monarch personally and for the Prince of Wales, the Duke of Cornwall who is officially part of Her Majesty in Her private capacity.   Accordingly, the law states:  “Any reference in this Act to His Majesty in His private capacity shall be construed as including a reference to His Majesty in right of his Duchy of Lancaster and to the Duke of Cornwall” (Crown Proceedings Act 1947, section 38 (3c). 

The decisive part of the Crown Proceedings Act is section 40 (1) which clearly states:  “Nothing in this Act shall apply to proceedings by or against, or authorise proceedings in tort to be brought against His/Her Majesty in His/Her private capacity”.  (Includes the Duke of Cornwall).   This provision is clearly a constitutional benefit of Crown immunity proportions for the Duke of Cornwall which is not applicable to everyone else.   The “Crown Application” publication also released to Mr. Kirkhope by the Cabinet Office reveals a conflict of interest at para.101: “There is no question of personal immunity from legislation for any member of the Royal Family other than the Sovereign.  This includes the Prince of Wales”.  i.e. The Duke of Cornwall.

Furthermore, Halsbury’s Laws, 4th Ed., 1974, Vol. 8, Constitutional Law, para.885:  presents the legal status of the heir to the throne as: “The same legal status as an ordinary subject”. Clearly, in denial of HM in His/Her private capacity.

The Crown Proceedings Act 1947, section 38 (3c)  is often quoted to justify an exemption from an Act of Parliament for the Heir to the Throne as Duke of Cornwall, as for example, the Equality Act 2010 section 205, Crown Application, para.(6)).  The 1947 Act does not specifically include: “Duchy”, it only specifies “Duke”, although, according to Lord McNally of the Ministry of Justice:   “The constitutional position is that the Duchy of Cornwall is a private estate that funds the public, charitable and private activities of the Prince of Wales, the Duchess of Cornwall, Duke of Cambridge and Prince Harry”. (House of Lords, 11th May 2011 Column WA214).  

This appears to indicate the existence of a “constitutional private estate”.

On the other hand, Sir Walter Ross KCVO, the Secretary to the Duchy of Cornwall, affirms: “The Dukedom is a hereditary title and the Duke has no constitutional function”. (At para.55, First-Tier Tribunal on royal taxation liability, 15th January 2013).  In response to this FOI request by Mr Kirkhope it was revealed that, a team of legal experts claimed that the Duke’s tax affairs were private just like everyone else.

This appears to expose an “unconstitutional Dukedom”.

It has become patently obvious that there are many diverse interpretations and applications of “private” and “constitutional” in use for the maintenance of royal privileges.

The “Queen’s and Prince’s Consent” document declares at para.10;  “It is not possible to give a comprehensive catalogue of prerogative powers”.   Consequently, when dealing with the constitutional position of the heir to the throne as Duke of Cornwall, people in power appear to believe, as did Edward the Third in 1337, that “the nobility of his race” is a royal constitutional command of over-riding importance to be adopted in arriving at any government or Duchy of Cornwall decision relative to Cornwall.

 The “Consent” document does not make reference to the series of Duchy of Cornwall Management Acts enacted over the centuries dedicated to promoting the interests of the Dukes of Cornwall.

Confirmation of the royal prerogative of 1337 is enacted in the Duchy of Cornwall Management Act 1982, section 8 which reads:  ”The Treasury shall have regard to the interests of both present and future Dukes of Cornwall or the possessors of the Duchy”.   Neither the Act nor the prerogative, it appears, is intended to benefit the Cornish people.

Consequently, it is contended that the secret behind the Parliamentary and Royal “Consent” document is to cover up the truth behind almost seven centuries of uninterrupted secret exploitation of Cornwall with the profits invested elsewhere in the United Kingdom without the consent of the Cornish people.  This policy of “elsewhere” for the distribution of income from Cornwall is currently also specifically stated as policy in the Duke of Cornwall’s Benevolent Fund, registered Charity number 269183.  For the Duchy of Lancaster its Charity is committed to distributing benefits within the area from which the income is collected.

The Duke’s interest in Charities (Appendix 7 of the “Consent” document) does not mention the sources from Cornwall only.  These include: base and royal minerals, Treasure Trove, intestate estates, the foreshore and rivers, the administration of bankruptcies under the Supreme Court Act 1980 section 120.  In these times of financial hardship in both 2010 and 2011 £50,000.00 was transferred to the Duke’s Benevolent Fund from the Bona Vacantia account. (Duchy of Cornwall Annual Accounts 2011).

The release of “Consent” information regarding the protection of the “prerogative” and “personal interests” of the Duke of Cornwall appears to indicate acceptance of responsibility by both the Monarch and Parliament for the creation and retention of the Duchy of Cornwall.   The Duchy Charters and the accompanying official protective laws and secretive quasi-legal documents represent a monument to feudalism. 

The people of Britain need a long overdue modern British Constitution in a single document to include the United Nations principle of equality before the law. (UN Universal Declaration, Article 7).   Across the western world a hands-on written Constitution is designed to assist the individual in identifying those who exercise power in order to prevent the abuse of power. 

At the present time the British government’s constitutional policy can be summarised as: Questions are out of the Question.  The conclusion is; democracy is therefore not working but the unlimited prerogative is working.

Many thanks Mr Kirkhope, a very busy Notary Public, for putting your head on the block in defence of democracy.   The system is making it much more difficult to discover hidden agendas lying under that official carpet.   It is to be hoped that Freedom of Expression in the Human Rights Act 1998 will not continue to be denied or rewritten to prevent the search for the truth.

Colin Murley

Save Cornwall 

22nd January 2013

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