In November 2011 the Information Tribunal decided that the Duchy of Cornwall was a “public authority” under the Environmental Information Regulations. This important and far reaching decision meant that members of the public, including our client Mike Bruton, are entitled to ask and be told what the Duchy is doing in relation to the environment.
Mr Bruton is particularly interested in the Fal and Helford, a European protected area belonging to the Duchy (in common with the whole Cornish coast and vast tracts of land in and outside Cornwall.) The Duchy permits farming of the non-native oyster, which may present a threat to the local eco-system. Mr Bruton would like information about its protection.
International treaty, European legislation and domestic regulation protect the right for the public to be told about the environment by public authorities. But the Duchy argued that it was a private estate and not a public authority and has no public obligation. It appealed.
That was three years ago. The appeal was stayed pending a European decision in the case of Fish Legal and others (“Fish Legal”) who were seeking information about pollution from water companies who also claimed that as private, not public, bodies they were immune.
In December 2013 the European Court gave judgment as to how the definitions of “public authority” in the Directive should be applied. But it did not decide on the facts of the case before it (Fish Legal) and the decision would also have to be applied in the Duchy of Cornwall’s appeal. The cases were joined to be decided, on their facts, by the Upper Tribunal.
At that point the cases took an unexpected turn. The cases were joined with yet another information appeal, from Helen Cross who wanted to know about the Queen’s household. The Cabinet Office decided to intervene and argued that the Tribunal did not have the power to overrule an ICO decision that a body was not a “public authority.” Only the High Court, in an application for judicial review, could do that.
So the Government, through the Secretary of State for the Environment, has applied for a judicial review of the Information Tribunals and on Monday, parties in cases first decided in 2011 (Fish Legal, Emily Shirly, the ICO, the water companies, Mr Bruton, the Duchy of Cornwall, the Attorney General to the Prince of Wales, Helen Cross, the Cabinet Office) will all pitch up at the High Court to argue about which court should decide whether or not the Duchy of Cornwall is a “public authority”.
Mr Bruton, who originally asked to know about the treatment of his local natural beauty spot under a regime which promises cheap and speedy results, can be forgiven for feeling bewildered.
SSEFRA v The First-Tier Tribunal, The Upper Tribunal and 11 interested parties
Before Mr Justice Charles; Judge Jacobs & Judge Grays