Archive for the ‘constitution’ Category

During the course of my Ph. D. research I made a number of Freedom of Information Requests. In some I succeeded in getting the information I requested in other cases I did not. 
There was one matter which related to a record held in the National Archive which was marked closed and which the National Archive refused to open in which decision they were supported by the Information Commissioner. I decided to pursue the matter to a Tribunal hearing. I had no realistic prospect of success; I was interested, as a lawyer, to see how the process worked.
Of course, like everyone I have heard of the term “the establishment” but had no personal experience of it. Immediately we arrived in Court on the first day it was made clear to me what the expression meant. We were three, my legal executive, my barrister and myself. I lost count of the number of lawyers employed by those opposing us. They included a QC a further two barristers and I don’t know how many solicitors including the regular attendance of a solicitor from the firm which represents the Queen. The court was also attended by a number of senior civil servants. The witnesses they called included three Knights of the Realm. In summary matched against us there were nineteen people. Indeed there was hardly enough space to include all those attending. The case was originally scheduled for two days but in fact extended over three. During the course of the case there was discussion, albeit theoretical, about whether I was in breach of Parliamentary Privilege and could be imprisoned.
I have no knowledge of what the cost of the hearing was given the resources which the other side devoted to defending the case. Suffice to say we the tax payers paid the bills not the Duchy or Duke of Cornwall. After the case was completed I was told via a third party that someone in the Cabinet Office stated “I had no idea how much trouble I had caused” and my barrister was informed in the gentle round about way these things are done maybe he would think carefully before taking on a similar case.
I discovered from this experience there is an establishment which is peopled by anonymous men in grey suits. Furthermore even though my case was in many ways trivial and stood no realistic chance of success if you take on the establishment and specifically the Duke of Cornwall the establishment can and will deploy resources against you which an ordinary private citizen cannot hope to match. Finally I will admit the experience was intimidating and not one which I shall forget quickly.
John Kirkhopes new book – An Introduction to the Laws of the Duchy of Cornwall, The Scilly Isles and Devon – is now available in all good bookshops.
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We can’t have a repetition of the situation 12 years ago whereby 10% of the people of Cornwall called for their own assembly, only for it to be rebuffed out of hand by the political establishment because it was inconvenient for them.

England the Elephant in the Room | Unlock Democracy

Well done and thanks to Unlock Democracy for not forgetting our right to self-determination. If we can’t have a Cornish assembly for the moment and a UK constitutional convention seems unlikely in the near future then perhaps MK and others should consider the potential of a peoples assembly (pdf).
The Duchy of Cornwall describes itself and is described by Government as a “private estate”. As will now be demonstrated it is a private estate headed by a private citizen which enjoys a unique set of privileges which enables it to enjoy real power within our system of government and economic advantage.

As more evidence seems to emerge daily(1)(2) of the Duke of Cornwall’s completely antidemocratic right to influence the governance of Cornwall and wider UK perhaps it’s time for us to consider demanding a proper modern democracy. Perhaps it’s time for some civic republicanism.
The OurKingdom article by Jose Luis Marti linked to above is interesting if a little surprising in its choice of Spain as an example of working civic republicanism. Whilst I’d be over the moon to obtain the same degree of recognition and self-determination for Cornwall that is enjoyed by Catalonia, Galicia or the Basque Country, as a republican, I’d prefer an elected head of state. However, as Marti writes, a republican democracy should strive to reduce all forms of domination, something I can only agree with:
Civic republicanism has a very simple idea: we must avoid or minimize domination in the world. No matter what kind of domination, no matter what source, no matter who is being dominated and by whom. We must minimize domination, being careful of not producing a greater domination in the process. To do so is to empower the weak, while controlling and restricting the powerful. According to this view, the source of all political evils is the imbalance of power that makes domination possible. Power, of course, comes not only from economic means – although obviously these are very effective. Power may come, for instance, from unequal access to information, from cultural inequalities, from sexist cultural patterns, and from many other sources. 
We must sweep away the last relics of our feudal past whilst ensuring Cornwall does not continue to struggle under the mismanagement of consecutive English governments. The Duchy of Cornwall must be handed over to the democratic control of the Cornish populace and not simply abolished.
Sadly many a ‘British’ Republican (in their vast majority from England), at best, know nothing of or care little about the Cornish question and, at worst, are actively hostile wishing to see a centralised London based British Republic.
To end I’d just like to point out that whilst certain anonymous blogs * close to Labour have been trying to convince us all that the Duchy of Cornwall is simply a private estate and not really an issue, Cornish autonomists have been steadfast in their exposure of this outrageous feudal relic.
* Please note that the blog linked to allows for no comments indicating an author terribly sure of her/his opinions.
“I know the Cornish have been shouting about this for a long time, but they turn out to be right”. 
Click the image above to read the article.
More from Cahill can be found here and here.

The following is a transcript  of a speech made Labour Lord Berkley in the House of Lords concerning the Duchy of Cornwall. Queen’s Speech -15 May 2012. It makes for interesting and somewhat concerning reading in a ‘modern democracy’.

Given that today’s debate includes legal issues, I thought it would be useful to suggest that this legislation should be extended to clarify the status and role of the Duchy of Cornwall. I raised this briefly during debate on the Legal Aid and Sentencing Bill, for reasons I will explain later. The main issue to be resolved is whether the Duchy is a private or public body, something in between or outside the law completely. As a representative of the Duchy claimed at a hearing of the First-tier Tribunal of the General Regulatory Council, which I quoted,

“the Duchy is not democratically accountable in any meaningful sense”.

I believe that it is time that it was. I have since uncovered a further list of rights, duties and obligations that the Duchy still has. Some are effectively dormant, some are used occasionally and some rather more frequently, but there is the threat of use and a lack of democratic accountability on all these counts. I shall quickly list them. One involves the harbour authority of the Isles of Scilly, which includes the right to create by-laws and breaching them would be a criminal offence, which would be rather odd if a private person was able to do it. The Duchy is a major landowner in much of Cornwall. Some say it is a good landowner, some say otherwise, but that is no great surprise. What is missing is the leaseholders’ ability to get enfranchisement or be able to buy the freehold of their property. If they were council tenants they would have been able to do that for years, but you cannot do that with the Duchy. The Duchy also has the right to Crown immunity. I understand that between 2003 and 2008 it made some £43 million in capital gains and did not pay any capital gains tax on that sum.

I turn now to more interesting issues. The Duchy has the right to any whale, sturgeon or porpoise that gets landed in the county. I am not sure whether the present Prince of Wales would exercise that privilege, and quite right too. The Duchy is the Receiver of Wrecks, and again, why is this different in Cornwall? It also has the right to the gold and silver mined in the county. It is interesting to note that apparently the Crown Estate is challenging this right. It is not the Government and it is not the Royal Family challenging each other; perhaps there is an argument for putting them all into one pot.

The Duchy owns the foreshore and fundus in Cornwall, so if you want to play on the beach or use a ferry, you have to pay a sort of tax to the Duchy. I believe that it is proposing to charge those people who want to use metal detectors on the beach £50 to do so. That is not done anywhere else in the country, so why should Cornwall be able to do it?

The next two things are much more difficult. Bona vacantia and escheat concern treasure trove, something that we all understand. Basically, it means that the Duchy has the right to ownerless property, goods and treasure. Is that a right for a private individual or a public body? There is also an obligation to meet part of the costs of the head of state-something we have debated often enough-and to submit accounts to Parliament. There is a right to be consulted on and give consent to Bills that affect the private interests of the Prince of Wales. That, too, is a good one.

No doubt there are many more of these issues, but the most important one is that the Duchy has the right to be represented by the Attorney-General. It would be nice to be represented by the Attorney-General at no cost. This is really why I tabled an amendment to the legal aid Bill because it is unfair that people who have a dispute with the Duchy have to provide for their own costs while the Duchy can use as much of the state legal machinery as it wants. Again, that is pretty unfair.

What should be done about this? There is a Bill in the Queen’s Speech which I mentioned earlier. At the moment we have the Duchy of Cornwall owned by Prince Charles as if it was his private fiefdom. It does not have any democratic accountability. Its tenants are left effectively without any means of making complaints because they know that if they do so, they will be treated rather badly. Why should an unelected body not only have such powers, but go on to claim that it is not even a public body at all, as it has done? It is as if it sees itself as sort of floating above the riff raff as it is not democratically accountable in any meaningful sense.

I suggest that it is time to modernise the Duchy and put it on a modern footing, or possibly dissolve it. The problem of revenue for Prince Charles could be solved through the Crown Estate because this year the Government have introduced a new law which says that the Royal Family should get 15% of the Crown Estate’s revenue. I did ask whether the Crown Estate has a forward budget and I was told it does not, but as it is to get a slice of all the revenue from the windmills that are being put up around our coast, I think that there is probably plenty of money around. I suggest that Duchy tenants should be allowed the right to buy their houses or properties as if they were council tenants, which in any case would be good revenue for the Treasury. Most important, the Duchy should not have Crown immunity and we should not need to ask permission to promote Bills that affect the Prince of Wales’s private interests. Moreover, the free legal services of the Attorney-General, although very nice, should be abolished. All these things are pretty important in order to bring the Duchy into the 21st century.

It may even be best to transfer all the residual rights to the Crown Estate and abolish the Duchy completely. Land could be handed to the local council. Would it be nationalised or was it nationalised already? That is a debate we can have, but anyway it could be done on the basis of localism, with surplus going to the Treasury. The harbour of the Isles of Scilly could be transferred to the council, or turned into a trust port, with enough land to help it. There is an awful lot to do and a lot of uncertainty about all this, and it is very unfair on people who are trying to do business or take action against the Duchy that there are all these things stacked up against them. I hope that the Government will look at this and take it forward.

In closing, I must challenge the statement by the noble and learned Lord, Lord Wallace of Tankerness, in his response to me in that debate in January, when he said it was for the courts to decide whether a body is a public authority. He might be right if it is just the Human Rights Act we are talking about, but I suggest that it is for Parliament to decide and it is for the Government to start this process. I hope they will soon.

Essentially the above encapsulates much of what our various Cornish constitutionalists have been saying for decades. I hope a large enough section of the public will one day get to see clearly who has been lying and who has been defending truth and rights.