Freedom of information and the Duchy of Cornwall

8/14/2019 Freedom of information and the Duchy of Cornwall

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The National Archives

The Duchy of Cornwall

and

Freedom of Information Act 2000

The expe r i e n ce o f on e re sea r cher

Introduction

I am a post graduate student at the University of Plymouth who has just

submitted a thesis for consideration entitled The Duchy of Cornwall A FeudalRemnant? As part of my investigations I spent a great deal of time exploring The

National Archives (TNA) records maintained at Kew. I came across a closed file

IR 40/16619 Liability of the Duchy of Cornwall to tax: covering dates 1960-

62. The tax status of the Duchy of Cornwall was one focus on my research so I

requested under the Freedom of Information Act 2000 (FOIA) that the file be

opened.

The Initial Request

I sent my request for the closed file to be opened on 16th February 2010. TNA

advised me on 30thMarch 2010 that the file was exempt from disclosure under

FOIA sections 40(2) (personal data) and 41 (information provided in confidence).

I asked on 10thApril 2010 for an internal review and received a response on 19th

August 2010 in which the original decision was confirmed. FOIA section 10

provides a reply should be sent by the public authority within 20 working days. It

will be observed that the TNA replies exceeded the statutory provisions.

I would note that I have made a large number of requests to various public

authorities in connection with my thesis and, with the exception of Her Majesties

Revenues and Customs (HMRC), in no case have I received a response within

the statutorily prescribed limits.

I complained to the Information Commissioner (ICO) on 4th September 2010

about the way my request had been handled. Eleven months later, on 26thJuly


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2011, and 17 months after my initial request, I received a Decision Notice

(FS50348825) from the ICO upholding the original decision by TNA.

It is my experience that the delays in the ICO considering complaints are not

untypical. In fact in this matter the ICO responded rather more quickly than in

other matters with which I am concerned.

I decided to appeal to the First Tier Tribunal (Information Rights) (FTT).

The First Tier Tribunal (Information Rights)

John Kirkhope v Information Commissioner and National Archives

(EA/2011/0185)

Before continuing I should, at this point, explain two things. First I was

concerned to appeal the case because, as a lawyer, I was curious to know the

process and procedures. I regarded it as something of an academic exercise. Next

I recognised that if I succeeded in opening the file I may ether decide it was not

interesting or while it was interesting it did not add to my thesis. I had no way of

knowing since I had not seen the file. I quickly discovered my relatively relaxed

attitude was nave.

I submitted the basis of my appeal against the ICO Decision to the FTT. The ICO

responded and I made additional observations in reply to the ICO. At this stage

TNA applied to join the case which application was accepted by the Tribunal.

There then ensued considerable and delays while the Duchy of Cornwall decided

whether they also wished to join in the matter. At one point I was informed a

decision could not be made because the Prince of Wales was out of the country

and he needed to be consulted. In the event the Duchy concluded they would notproceed with their application.

Witness statements were exchanged. The witnesses for the other side included

three people holding knighthoods including the Chief Executive of the Duchy, a

former Permanent Secretary at the Treasury and a previous Principal Private

Secretary to the Queen and the Prince of Wales. In addition two senior civil

servants from the TNA and HMRC were to give evidence. I was fortunate in that a

barrister whom I had previously assisted agreed to act for me on a pro bonobasis.


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Various communications were passed between the parties relating to procedural

and other matters. A considerable amount of papers submitted to the FTT was

closed. That is I was not allowed sight of the material because it would reveal

details of the documents I was not permitted to see.

The case was finally set down for hearing on 7/8 February 2012 almost exactly 2

years since my original application to TNA. Space does not permit a detailed

consideration of the hearing. Suffice to say I arrived at court with my Legal

Executive and Counsel to find the Court allocated could barely cope with the

various people who were in attendance for the other side. TNA was represented

by a QC who is also First Treasury Counsel, he was, of course supported by a

junior counsel. The ICO was represented by their counsel. The instructingsolicitors were also in attendance as were the five witnesses. In addition, as I

discovered later, various senior civil servants from the Cabinet Office came along

to observe. There were a number of other people whose identities I did not

discover until later. In total, excluding the Judges, there 22 people in the Court

Room of whom 3 only were from my side. The seriousness with which the matter

was being taken was brought home to me.

For a little more than a third of the two days my team was excluded from the

Court as it went into closed session to consider the documents in detail. There

were various legal arguments which took longer than anticipated and it was

decided that a matter before the Court of Appeal had relevance to the case. The

court decided that another day at least would be required and the matter was

adjourned. A further date was eventually agreed for 23rdMay 2012.

The hearing in May started with legal arguments which included, extraordinarily,

a consideration of the Bill of Rights 1688 and Contempt of Parliament. These

lasted for some two hours. After that the three sides summarised their positions.

The Judge concluded by saying that usually the Court sought to make a

judgement within 3 weeks this case would take much longer to decide.

After the hearing had concluded I was told that the QC, being First Treasury

Counsel, would be more often found in the Court of Appeal representing the

Government not in the lowly First Tier Tribunal. It was explained to me that a

gentleman who sat through all three days in Court was, in fact, a representative of


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the Queens solicitors. I was informed that the Cabinet Office took the matter

seriously as evidenced by the resources they had devoted to it. It had caused some

annoyance. Finally I was asked if I had considered the expenditure on the

proceedings. I can only speculate at the total cost of senior lawyers spending three

days in court never mind the cost of senior Civil Servants spending a similar time

without even taking account of the costs of preparation of the case.

Conclusion

At every stage in my research in to the Duchy of Cornwall I have found there to be

a reluctance to provide information or to allow the Duchy to be opened to public

scrutiny. The case has convinced me that if the establishment decide they will

resist a request they will devote resources which the ordinary citizen cannot

match. It has been made clear that should I win the case, and I dont expect to,

the other side will appeal and the question would then arise how much more time

and energy I can devote to the issue for a file which it ever is revealed may be of

no interest to me at all.

Documents

Freedom of information and the Duchy of Cornwall