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THE RIGHTS OF THE DUKE OF CORNWALL
Monday, March 30 2009 @ 06:27 PM BST|
Contributed by: Admin
A. The Duke of Cornwall and the legislature
(1) The Duke of Cornwall enjoys the right to intervene in legislative procedures.
1. Westminster:- Guide to Legislative Procedures, Cabinet Office 2004, for
“legislation regarding the potential it may have on Duchy operations” –
“Draft Bill to be sent to The Duchy of Cornwall”. (para.14.6).
(The Crown Estate is similarly covered by the Guide).
2. Scottish Parliament – “where a Bill may require the consent of Her Majesty or
the Duke of Cornwall” – Standing Orders – Rule:- 9.11.
3. Welsh Assembly:- “where a measure may require the consent of Her Majesty
or the Duke of Cornwall” – Government of Wales Act 2006, section 98
4. Cornwall:- “Nothing in this Act shall prejudice, diminish, alter, detract from
or take away any of the rights, powers, privileges or authority attaching to the
possessions of, or exercisable by the possessor of the Duchy of Cornwall in
relation to any land belonging to the said Duchy……..” Cornwall County
Council Act 1984, section 50. (Repeated in the Tamar Bridge Act 1998,
section 41). (Para (15) below).
Notes:-The reference to “powers” and “authority” may refer to Duchy powers
and authority for the government of Cornwall some of which may be
held in abeyance. Cross refer Duchy Charter No.2 of 18th March 1337 and
its unrepealed provision of “The King’s Writ and Summons of Exchequer
and Attachments throughout Cornwall” for confirmation of Duchy
‘operations’ for the Duke of Cornwall to govern Cornwall.
Duchy government of Cornwall has been accepted as a fact in respect
of Charles the First b.1601 – d.1649. (‘The Estates of the English Crown’,
1558-1640, R.W.Hoyle & G. Haslem, Cambridge University, 1992).
The Duke of Cornwall is a member of the House of Lords –
“Countryside and Rights of Way Bill - Division No. 234 – 14th June 2000
Third reading - Queen’s consent on behalf of the Crown and Prince of
Wales’s consent on behalf of the Duchy of Cornwall”.
(2) Crown Proceedings Act 1947,
“Her Majesty in her private capacity includes the Duke of Cornwall” .
section 38 (3). Therefore, the Duke of Cornwall has: “the right to intervene or control legal proceedings to protect his rights, property or profits”. section 40 (2g).
(3) House of Commons Library.
Response to enquiry regarding extent to which Members can ask questions and seek information on the Duchy of Cornwall.
Letter of 16th June 1996 to Andrew George M.P., for St.Ives, Cornwall.
“There are restrictions on any question which casts reflections upon the Sovereign or the royal family and there is a similar injunction in relation to speeches”.
(4) Relevant case law
(a) It is a matter of investigation as to why the Duchy of Cornwall is appears to be ignoring the duty of ‘cum onere’ in matters of planning and land. ‘Cum onere’, a beneficiary of the ‘pros’ of an Act of Parliament is expected to accept the ‘cons’ of an Act). (A.G. v. De Keyser’s Hotel Ltd.,  AC 508 at 549-550).
(b) “The Crown is otherwise exempt from legislation save where specific provision is made”. (Note:- Refer:- Thomas v. Pritchard  1 KB 209 at 212).
(Note:- The Crown includes the Duke of Cornwall ).
B. Official Documents:-
(5) Cornish Mining – Nomination Document - Accepted by UNESCO 2006
“St Piran’s flag unfurled at events in North America & South Australia. Cornishness continues to have a unique international dimension”. (page 44). “Mining practice was based on Stannary law”. (p.42). “The tax (coinage) levied (till 1838) on tin production in Cornwall was double the rate applied in Devon”. (p.124). “The Duchy of Cornwall was probably the largest mineral lord in the south-west”. (page 125).
“Richard Trevithick produced the first high pressure steam locomotive in the world in 1804”. (page 40+96). (www.cornish-mining.org.uk – downloads - nomination).
(6) The NARA Document on Authenticity - Article 4
“In a world that is increasingly subject to the forces of globalisation and homogenization, and in a world in which the search for cultural identity is sometimes pursued through aggressive nationalism and the suppression of the cultures of minorities, the essential contribution made by the consideration of authenticity in conservation practice is to clarify and illuminate the collective memory of mankind.”
(7) ICOMOS – Cornwall & West Devon Mining Report No.1215 – April 2006
“The substantial remains are testimony to the contribution Cornwall and West Devon made the industrial revolution in the rest of Britain and to the fundamental influence the area had on the mining world at large”.
“A major development planned for the centre of Hayle”. “The scale and scope of the project would mean that, if built, the new structures would dominate the harbour and compromise its integrity as the main port for the Cornish mining industry”.
(8) Culture South West – a government body.
The publication “People, Places and Spaces, dated 19th December 2007 under Icons of the South West includes Jurassic Coast World Heritage Site but excludes an entry for the Cornwall and West Devon Mining World Heritage. Following complaints, a revised version dated September 2008 repeats the exclusion.
(9) Rowe v. Brenton, Trial at Bar before the Lord Chief Justice, 1829
“With regard to the Duchy of Cornwall, I am clearly of the opinion that the Duchy of Cornwall (it is sometimes in the hands of the Crown and sometimes the Duke) and therefore, the Crown, in other words, the public has an interest in everything that is done in the Duchy”. (Lord Chief Justice Tenderden).
(10) The Duchy of Cornwall, letter of 22nd February 2005,
Refused a request for information on the date of the transfer of Tintagel Castle from the Duchy of Cornwall to English Heritage on the grounds of claiming exemption from the Freedom of Information Act 2000.
(Note:- Neither the Duchy of Cornwall Management Acts nor the National Heritage Act 1983 (setting up English Heritage) provides for these bodies to respect the principle of cultural diversity).
(11) The Duke of Cornwall’s Benevolent Fund – Reg.No. 269183 - 1975
Benefit:- United Kingdom and elsewhere Operation:- Worldwide.
(Note:- Collects intestate estates and bona vacantia throughout Cornwall).
(12) Duchy of Lancaster Benevolent Fund - Reg. No. 1026752 - 1993
Benefit:- The Counties of Lancashire, Great Manchester, and Merseyside.
Operation:- England and Wales. (Note:- Income from intestate estates and bona vacantia is distributed within the area of collection).
(13) Murley v. Secretary of State for Transport – High Court
Murley – “I think we have demonstrated that the Acts quoted, especially in relation to the Crown Estate, that there is a serious case of discrimination against the people of Cornwall”.
Mr Justice Bean - “Mr Murley relies on the submission that the Duchy of Cornwall has, in effect, rights of veto under certain provisions of the Highways Act. I must dismiss his application”.
(14) The Royal Commission on the Constitution 1969-1973
The Kilbrandon Report, reveals:- “The people of Cornwall continued to be Celtic. Just as the people of Scotland and Wales so the people of Cornwall regard their part of the United Kingdom as not just another English County.
“The creation of the Duchy of Cornwall in the fourteenth century may have been in some respects a mark of English overlordship, but it established a special and enduring relationship between Cornwall and the Crown”. (Para.329).
C. Acts of Parliament
(15) Tamar Bridge Act 1998 – section 41
“Nothing in this Act affects prejudicially and estate, right power, privilege, authority or exemption of the Crown including the Duchy of Cornwall, and in particular and without prejudice to the generality of the foregoing, nothing in this Act authorises the Authorities to take, use, enter upon or in any manner interfere with any land or hereditaments or any rights whatsoever description , belonging to:-
(a) Her Majesty in right of her Crown.
(b) The Duchy of Cornwall, subject to the consent of the Duke of Cornwall.
(c) A government department”.
(16) Planning and Compulsory Purchase Act 2004
Enforcement in relation to Crown land (Crown land includes Duchy of Cornwall land) Section 84 – amending s.296 of the Town and Country Planning Act 1990:-
(1) “No act or omission done or suffered by or on behalf of the Crown constitutes an offence under this Act”.
(2) “A local planning authority must not take any step for the purposes of enforcement in relation to Crown land unless it has the consent of the appropriate authority”.
(The appropriate authority in relation to any land includes the Duchy of Cornwall)
Part 9 – 111 Crown – (1) “This Act (except Part 8) binds the Crown”. includes
Duchy of Cornwall.
Part 8 - 99 - “Compulsory acquisition of land for development etc”.
Schedule 3 (3) “The Secretary of State must not authorise the acquisition of any interest in Crown land unless:- (b) the appropriate authority consents to the acquisition”. (e.g., The Duke of Cornwall in respect of Duchy of Cornwall land).
Schedule 3 (10) “The Secretary of State may by regulations modify or exclude any statutory provision relating to the making and determination of such applications. (by the Crown – e.g. includes the Duchy of Cornwall).
Schedule 4 Part 1 -2(c) – This part applies to a development if:- “the developer is the Crown or a person acting on behalf of the Crown”.
(17) Commonhold and Leasehold Reform Act 2002, sections 108 and 172
(2) “Land is Crown land if there is or has at any time been an interest or estate in the land”:-
(a) comprised in the Crown Estate
(b) belonging to Her Majesty in right of the Duchy of Lancaster
(c) belonging to the Duchy of Cornwall
(d) belonging to a government department……
(18) Natural Environment and Rural Communities Act 2006 - Section 102
(3) “Crown land means land an interest in which”-
(a) belongs to Her Majesty
(b) belongs to Her Majesty in right of the Duchy of Lancaster
(c) belongs to the Duchy of Cornwall
(d) belongs to a government department
4. “The appropriate authority in relation to any land, means, if the land belongs to”:-
(a) belongs to HM in right of the Crown, the Crown Estate Commissioners
or other government department
(b) belongs to Her Majesty in right of the Duchy of Lancaster
(c) belongs to the Duchy of Cornwall
(d) belongs to a government department
Note:- Section 54 – Application to the Crown. (2) “No contravention makes the Crown criminally liable”. (5) Nothing in this part affects Her Majesty in her private capacity”. (6) Sub-section (5) “meaning of HM in her ‘private’ capacity section 38 (3) of the Crown Proceedings Act 1947”. This form of words and numbers avoids a direct reference to the Duke of Cornwall, Prince Charles, heir to the throne. From which, the dubious inference has been officially made that the Duchy of Cornwall Estate is therefore ‘private’. Officially is not necessarily legally.
(19) Law of Property (Miscellaneous Provisions) Act 1989
1 (9) “Nothing in subsection (1 b), (20, (3), (7), or (8) above applies in relation to deeds required or authorised to be made under”:-
(a) the seal of the county palatine of Lancaster (b) or the Duchy of Lancaster, or
(c) the seal of the Duchy of Cornwall.
(20) Competition Act 1998, section 73, Crown Application:-
(1) (a) The Crown is not criminally liable……..
(c) nothing in this Act affects Her Majesty in her private capacity
(“Her Majesty in her private capacity includes the Duke of Cornwall”.)
(Crown Proceedings Act 1947, section 38 (3)).
(21) Environmental Protection Act 1990 – s.159 Water Industry Act 1991, s.221.
(5) “Nothing in this section shall be taken as in any way affecting Her Majesty in Her private capacity… “ (Includes Duke of Cornwall, Crown Proceedings Act 1947, s. 38 (3)). (The Duchy of Cornwall is the appropriate authority in relation to Duchy of Cornwall land – Town and Country Planning Act 1990, section 293 (2d)).
(22) Companies Act 1985 sections 654-657 and The Supreme Court Act 1981 s. 120.
Distributions under intestacy and Bona Vacantia – HM Revenue and Customs
(IHTM 12126) (Form RE2152). “If there are no surviving relatives The Crown (includes the Duchies of Lancaster and Cornwall) in the last resort takes the residuary estate as bona vacantia”. (Also Form ihta84/s230 Acceptance of property in satisfaction of tax).
(Note:- The Duke of Cornwall pays tax on a voluntary basis).
Note:- H.M. Treasury FOI request – response 26th July 2006. “Under the terms of the Acts, the Treasury has no role in planning capital investment or any locus in the Duchy’s policy on constructing properties or making the Duchy’s properties, land real estate assets or bona vacantia available for the construction of affordable housing in Cornwall”.
Note:- The Prime Minister - Hansard, House of Commons - 27th March 1996
“Neither the Sovereign nor the Prince of Wales (Duke of Cornwall) is able to dispose of the estates capital, they are entitled only to the annual income”.
Note:- The Paymaster General - Hansard 9th July 2002, Column 224WH.
“Assets of the Duchies of Lancaster and Cornwall do not belong to the Queen or the Prince of Wales (Duke of Cornwall) and are not theirs to dispose of”.
(23) Crown Estate Act 1961
The Crown Estate is under an obligation to: “exclude any element of monopoly”. (The Crown Estate Act 1961, section 3(1) and, www.crownestate.co.uk).
“The Crown Estate has no holdings in Cornwall. The analogous landowner in Cornwall is the Duchy of Cornwall”. (Crown Estate letter of 7th January 20050
The Crown Estate has a Marine Stewardship Fund and provides affordable housing throughout the United Kingdom except Cornwall.
(Note:- DEFRA 2006- The Department for the Environment website, asserts:- )
(“UK Organisations – Crown Estate”. “The Crown Estate is part of the hereditary possessions of the Sovereign in right of the Crown”).
(24) Duchy of Cornwall Management Act 1863 -1982, section 8,
“The Treasury shall have regard to the interests of present and future Dukes of Cornwall”.
Note:- It is contended that these allegedly private ‘interests’ of the Duke of Cornwall exclude the Duchy from replicating for Cornwall the Crown Estate policies of Marine Stewardship and affordable housing provided by the Crown Estate elsewhere in the UK, except Cornwall.
Note:- Some “interests” are listed in the Tamar Bridge Act 1998, s.40, and other Acts, as “any estate, right, power, privilege, authority or exemption of the Duchy of Cornwall” confirm the governmental powers granted in the second day Charter of 18th March 1337 under the King’s Writ and Summons of Exchequer etc. in Cornwall).
Note:- Halsbury’s Laws of England , 4th ed., Vol. 12 (1) 1998, para. 66, which reveals: “The land which the monarch enjoys in her political capacity, comprise (1) the demense land belonging by forfeiture (2) land rights relating to the prerogative (3) land and rights acquired by escheat”. (that is:- land and rights acquired by intestate estates and bankrupt companies by bona vacantia). It would appear that these Duke of Cornwall’s “interests” extend to the political sphere as indicated by the second day Duchy Charter and the example of the Monarch.
Note:- DEFRA 2006 – Department for Environmental, Food and Rural Affairs (website) “UK Organisations – Duchy of Cornwall” . “The Cornish estates in particular contain considerable number of old mines and mine workings”. “The Duchy is run on commercial lines in accordance with the requirements of the Duchy of Cornwall Management Acts”. (Note:- There is no reference to a private estate).
(25) The Cornwall Submarine Mines Act 1858 – Articles of Agreement – (between the Crown and the Duchy of Cornwall).
“All mines and minerals lying beneath the foreshore of Cornwall are part of the soil and territorial possessions of the said Duchy, vested in the Prince of Wales in right of his Duchy of Cornwall”.
(26) The Treasure Act 1996 and the Treasure (Designation) Order 2000/2666
Includes mineral rights from royal gold and silver to base metal objects of cultural importance such as tin for the Duke of Cornwall.
(Note:- DEFRA 2006 - The Department for the Environment website), asserts incorrectly that:- (“UK Organisations”. “The Crown Estate also owns the prerogative right to all ‘Mines Royal’ (gold and silver) wherever they are found in the UK.). (Note:- “Except Cornwall” is not included in the text).
Note:- Cultural objects of metal found in Cornwall should be recorded and preserved as the cultural property of the Cornish people in accordance with the provisions of the UNESCO NARA Document on Authenticity. (Para. (6) above) The present arrangement appears to be state authorised theft of Cornish intellectual property rights.
(27) Limitation Act 1980, section 37.
“Application to the Crown and the Duke of Cornwall” – “Extensions and exemptions in favour of the Crown”. “The Crown in this context includes the Duchy of Lancaster and the Duke of Cornwall”. “Nothing in this Act shall affect the prerogative right of Her Majesty or of the Duke of Cornwall to any gold or silver mine”.
(Note:- The Duke of Cornwall in Cornwall and Her Majesty elsewhere in the UK).
(28) The Land Registration Act 2002, Section 84, note 135.
The Duchy of Cornwall is exempt from registering its land. This exemption prevents establishing why the Royal Mines Act 1688, “no tin mine shall be taken as a royal mine” has not been observed in Cornwall.
Note:- Because Duchy of Cornwall land in Cornwall is claimed as “inalienable” land, (as defined by the Windsor Estate Act 1961) leaseholders of Duchy properties are unable to purchase such properties from the Duchy as otherwise intended by the Leasehold Reform Act 1967 and the Housing and Urban Development Act 1993.
(Lords Hansard, 19th November 2001, columns 926-928). Note:- This is the cause of an ongoing dispute on the Isles of Scilly.
(29) The Limitation of Actions Act 1860, designed: “To quiet titles within the County of Cornwall as against the Duchy of Cornwall” [23.& 24 Vict. Cap.53
(30) Race Relations Act 1976 – Amendment 19A
(1) “It is unlawful for a planning authority to discriminate against a person carrying out their planning functions”.
(31) The Race Directive; E.U. Directive 2000/43/EC, Article 3. (S.I. 1626)
“this directive shall apply to all persons, as regards the public and private sectors…. “
It is contended that Race equality law should apply to the Duchy of Cornwall even as a ‘private’ estate.
D. Correspondence and Opinions
(32) H.M. Treasury letter dated 24th February 2009
“The Crown Estate does not own any of the foreshore of Cornwall, and hence the Crown Estate’s Marine stewardship programme would not cover Cornwall as the programme is designed to support the Crown Estate’s marine business interests. You may want to direct any future enquiries regarding coastal protection to DEFRA who have responsibility”.
Note:- No advice to contact the Duchy of Cornwall.
(33) Ministry of Justice – Constitutional Settlement Division
Request 11th February 2009, - “The Ministry of Justice may wish to consider itself as ideally situated to investigate the Cornish case and propose a solution”.
Response 27th February 2009 “Unfortunately, we do not have the capacity to dedicate our time towards the kind of investigation you refer to in your letter”.
(34) Department of Communities and Local Government Letter 22nd May 2008
Response from Local Democracy and Empowerment Division
No reference in response to enquiry regarding Crown Estate commitment to 40% affordable housing
(35) Ministry of Justice – FOI request – response to Mr P.R. Hosking,
31st August 2007.
“The Duchy of Cornwall is simply a private landed royal estate and a Crown body”
(36) Department for Constitutional Affairs – Letter dated 22nd December 2005
“I have noted the concerns that you raise about the Duchy of Cornwall and about being denied equality before the law”. However, this is not an area of policy in which the Constitution Directorate can intervene”.
(37) Home Office – FOI request – response 26th January 2005
“You request information regarding the Cornish and the Framework Convention for the Protection of National Minorities including any reference to the history of Cornwall and the Stannaries”.
“After careful consideration it has been determined that this information (for the period 2004 to the present) is exempt from disclosure by virtue of section 35 of the Freedom of Information Act”.
Note:- The Cornish have been excluded from the Council of Europe’s Framework Convention for the Protection of National Minorities since its inception in 1998.
(38) Home Office – letter of 22nd March 2004
“The government does not recognise any national minority because it is not a legally recognised term in the UK”.
(Note:- There is recognition of “national minorities” at Article 14 of the European Convention of Human Rights and it is incorporated into the Human Rights Act 1998).
(39) Commission for Racial Equality – Letter dated 2nd April 2003
“It is not for the Commission for Racial Equality but for the courts and/or Parliament to determine whether the Cornish, or any other group for that matter, in an ethnic group for the purposes of the Race Relations Act” (Note: No reference is made to Article 14 (national or social origin and national minority) of the European Convention of Human Rights included in the Human Rights Act 1998).
(40) Lord Chancellor’s Department - Letter dated 20th June 2002
Duchy of Cornwall Matters - “The Duchy foundation charter makes it clear that Edward III’s purpose in founding the Duchy was that the heir to the throne should ‘live of his own’; in other words, be self-supporting”.
(Note:- This conclusion agrees in substance with the ‘Report on the Committee on Crown Lands’ of June 1955, Command 9483). (Note:- Date of first or foundation Charter, 17th March 1337).
Note:- The Lord Chancellor’s Department also affirms: “The general law governing the Duchy of Cornwall is largely common law”. (20th June 2002).
Note:- An explanation is required to reconcile the Lord Chancellor’s statement above with the fact that: “The Charter creates a mode of descent unknown to the common law” according to Halsbury’s Laws of England, 4th Ed, Vol.8, 1974, Constitutional Law, para. 1560, Title, ‘Revenues of the Duchy of Cornwall’.
Note:- It has therefore been confirmed by the Lord Chancellor’s Department, that historically the income from the estate for the heir to the throne was obtained principally from Cornwall. From this source of a royal fortune from the Stannaries, investments were made outside Cornwall.
(41) Who Owns Britain by Kevin Cahill, Canongate, Edinburgh, 2002 (page 74).
“Unless Parliament calls a halt to state purchases for a private endowment, the Crown Estate and the Duchy of Cornwall, who are already the largest land holdings in the country, will achieve neo-monopolistic status in the real estate market”.
Note:- A current planning application shows the Duchy of Cornwall as a landowner at the proposed Hayle World Heritage site for 1039 flats with only 17% affordable homes. By the Coast Protection Act 1949, section 11 (2d), the Duchy should be protecting the coast of Cornwall, a function performed by the Crown Estate elsewhere un the UK. and using its influence to prevent speculative second home projects.
(42) Department for Culture, Media and Sport, Letter 26th August 1998).
“The majority of properties, including Tintagel Castle which you mention specifically, have been placed in the guardianship of the Secretary of State because the owners have been unable or unwilling to commit the time and funding necessary to maintain them in satisfactory condition”.
“We have no plans to create a separate organisation for Cornwall”.
(43) Office for National Statistics – News Release – 29th June 1998
“The separation of Cornwall and Devon into two separate areas, recognising Cornwall’s distinct cultural and historic factors reflecting a Celtic background”.
Note:- There is still no separate Census tick box for 2011 for the Cornish despite copious correspondence and a meeting in Cornwall, April 2007.
(44) Foreign and Commonwealth Office – Letter 15th April 1996
“States are, of course, obliged to give effect to the obligations under any treaty to which they are party in accordance with the provisions of international law”.
(45) The Duke of Cornwall has the right to reject human rights. Duke of Cornwall has expressed his opposition to the Human Rights Act. (The Times, 2nd March 2002).
It would appear self evident that the Cornish Stannary right of veto obtained by the Charter of Pardon of 1508 was secured to provide the means to rectify any abuse of power by the racial majority against the Cornish national minority. This principle is currently being denied by the British government. It should now be accepted as necessary to secure some form of arrangement based on equality before the law, whereby, the Duchy of Cornwall is required to adopt for Cornwall the socially supportive policies of the Crown Estate elsewhere in the United Kingdom. The duke of Cornwall has a duty to recognise the indigenous Cornish, of pre-England, Celtic ethnic origins as part of the original Celtic inhabitants of Britain. Recognition should also mean the right to a proportionate share of taxes to control and promote their own language and cultural heritage through being included within the provisions of the Council of Europe’s human rights Framework Convention for the Protection of National Minorities.
(46) The rights of the Duke of Cornwall and Duchy of Cornwall are out of date. The introduction of a guaranteed right to equality before the law would provide the basis upon which to render social justice as between the methods of the Crown Estate compared with those of the Duchy of Cornwall. It is time for the government to transpose United Nations law into British law in order to bring to an end the centuries of collective punishment of degradation to which the indigenous Cornish national minority has been subjected.
© Cornish Stannary Parliament – April 2009
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