Prince Charles, oysters and environmental information

6 November 2011 by David Hart KC

Bruton v IC and The Duchy of Cornwall & The Attorney General to HRH the Prince of Wales (EA/2010/0182)    3 November 2011. This significant decision of the First Tier Tribunal (FTT) is well described on 11 KBW’s Panopticon blog. So just a few thoughts on a case which has the hallmarks of going to appeal.

The underlying question was whether the Duchy of Cornwall had to answer Michael Bruton’s requests for information about the Duchy’s oyster farm, and in particular whether the farm had undergone environmental assessment before it commenced operation. Bruton’s concerns were that the Duchy’s oysters were non-native Pacific oysters, and he wanted to know whether the Duchy had considered whether the establishment of such a fishery affected existing oysters or had other effects upon the environment. In many regards, the case is round 2 of a battle started by Bruton in 2009 challenging the original grant of a licence by the Duchy to the oyster fisherman: see the 2009 decision by Burton J granting permission for this challenge. In the present case, the Information Commissioner said that the Duchy was not obliged to provide the information. The FTT disagreed.

The decision turned on whether the Duchy of Cornwall was a “public authority” within the Environmental Information Regulations 2004, and in particular whether it carried out “functions of public administration”. The issue was a classic public/private one. The main task of the Duchy was to provide an income to the heir to the throne – tick, private. But somewhere en route (since the Duchy’s creation in 1337 (sic)), it had gained rather specific public responsibilities: so, it had become the Statutory Harbour Authority for the Isles of Scilly, and this carried with it certain obligations under the EU Habitats Directive and in respect of merchant shipping, pilotage, and pollution – the sorts of things you do if you run a harbour – so, tick public.

Hence, we were firmly in the territory of the Smartsource decision last year (see my Ibsenian post), in which the Upper Tribunal decided that water/sewerage companies were not public authorities within the EIRs.  In the current case, the FTT came to a different view. Smartsource had asked the question whether the public functions of the water companies were “ancillary” or “secondary” to their private functions as suppliers of water and removers of sewage. If so, as it decided, those public functions did not mean that the companies were carrying out functions of public administration. Applying this test, the FTT said that the Duchy’s public responsibilities were nothing to do with providing the heir to the throne with a sufficient income, and hence they had a life of their own – they were not “ancillary”. Hence, they were an important pointer towards the Duchy being indeed a public authority carrying out functions of public administration.

The FTT helpfully set out the various factors bearing on this question in its [98]

Taking each in turn:
a) Whether there are types of functions that are typically governmental in nature? We find there are. The power to create by-laws, to licence operators and to undertake and/or regulate pilotage are examples.
b) Do the functions of the body in question form part of a statutory scheme of regulation? We find there are such functions. There is a statutory scheme to regulate merchant shipping, pollution, dangerous substances, to board vessels etc.
c) Are those functions such that if the body did not exist some Governmental provision would need to be made for the exercise of those functions? We consider some government intervention would be needed even if it was to appoint a private body or person to undertake the functions. Such appointments seem to be made by statutory order. St Mary’s seems to be open to the public. Provision would need to be made for the safety of individuals and private boats as well as oil pollution and other environmental matters.
d) Whether the organisation has a statutory basis, or whether it exists purely as a matter of contract? The Duchy is, at the very least, a creature of statute. As a Statutory HA there are many other statutory provisions, outlined in previous paragraphs, which lead us to find that it does have a statutory basis.
e) Whether the organisation is accountable to members or shareholders, or alternatively whether it has some formal accountability to government (e.g. a
requirement to make reports to Parliament)? We find that the Duchy is accountable to the Treasury and Parliament for annual financial reports. Also it requires the consent of the Treasury to certain transactions……
f) The extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service. We consider that a Statutory HA provides a number of public services in relation to the environment for example dealing with oil spillages and other forms of pollution.
g) The extent to which the body is performing a regulatory function and the degree of government control. We consider that a number of the functions of a Statutory HA are regulatory functions from issuing bye laws to responsibility for navigation. These are largely controlled through legislation. There appear to be no regulators like OFWAT in the water industry as described in Smartsource.

Hence its conclusion:

99. We conclude from this analysis that the preponderance of factors point to the Duchy carrying out functions of public administration. This conclusion does not mean that we consider all Statutory HAs will necessarily be public authorities under the EIR. It depends on the facts in each case.

As I said said above, we may not have heard the last of this case. We should also keep an eye out for the appeal to the Upper Tribunal in Fish Legal and Shirley v IC and United Utilities Water plc and others, due to be heard in early 2012 – in which the Smartsource decision stands to be reviewed. Fish Legal are making a similar complaint to the Aarhus Compliance Committee.

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