The context to this blog post is that I am trying to convince the ICO that the Duchy of Lancaster is a public authority.

I have already submitted detailed evidence to the ICO but I have not yet focussed heavily of the legislative powers of the Duchy. This blog post is based on an email I sent to the ICO today.

I gave example from the London Gazette:

“The Queen has been pleased to appoint by Letters Patent under the seal of the Duchy and County Palatine of Lancaster Mr. Eric Jones, J.P., as Constable of Lancaster Castle in succession to the late Mr. Michael Fitzherbert-Brockholes, O.B.E., J.P., D.L.”

London Gazette – Issue Number: 55113 – Notice Code: 1109

It is clear from the Oxford English Dictionary definition (below) of “letters patent” that these letters are instruments of the monarch or government. The use of the Duchy’s Seal demonstrates the fact that these law making powers are derived from Duchy offices. The Chancellor of the Duchy is the keeper of the seal [1].

“a. Law. letters patent n. (also in 14th cent. lettre patent) Originally: an open letter or document (see quot. 1891) issued by a monarch or government to record a contract, authorize or command an action, or confer a privilege, right, office, title, or property. In later use esp.: such a document which grants for a set period the sole right to make, use, or sell some process, invention, or commodity.”

This short extract from OED online (see patent adj.) is reproduced under fair use.

The Gazette is the Government’s Official Newspaper. Duchy of Lancaster announcements are included State Notices

I have found out today thanks to Wikipedia about a committee that I can’t imagine many people know about.

“The subject of the Convention goes to the heart of the relationship between people and governments. The Convention is not only an environmental agreement, it is also a Convention about government accountability, transparency and responsiveness.” Source: UNECE

“All good stuff” I hear you say “…but this is a body formed by international agreement, they won’t return my calls”.

But that is what is really interesting is that unlike most (all other?) international treaties the compliance mechanism can be triggered by members of the public:

“The compliance mechanism may be triggered in four ways:

(4) members of the public may make communications concerning a Party’s compliance with the convention.”
Source: UNECE

When to contact the Committee

“In considering any communication from the public, the Compliance Committee will take into account the extent to which any domestic remedy (i.e. review or appeals process) was available to the person making the communication, except where such a remedy would have been unreasonably prolonged or inadequate. Before making a communication to the Committee, the member of the public should consider whether the problem could be resolved by using such appeals mechanisms.”
Source: UNECE

In the UK it is fairly easy to appeal to the ICO although some cases take a long time to resolve so an argument could be made that it might be appropriate to communicate to the Committee. Also if the ICO will not accept that an authority is subject to the Environmental Information Regulations the ICO cannot issue a decision notice and thus no appeal can be made to the Information Tribunal. A judicial review might be considered an “unreasonably prolonged and inadequate remedy”, in fact someone has already made that argument an they have put it better than I ever could:

“Road Sense maintains that the Judicial Review process is so difficult and expensive for individuals or small associations to pursue in Scotland that it prejudices the ability of a non-governmental body to challenge decisions taken, perhaps unlawfully, by the Scottish Government”
Source: UNECE and someone else has written a very detailed communication about why the UK’s judicial review process is inadequate for the purposes of the convention.

Applicability to Duchy of Lancaster case
I am keeping all my options open for the Duchy of Lancaster appeal but I am still hopeful that the ICO will make the right ruling in the first place.

“I can inform you that I have now written to the Duchy of Lancaster to obtain their submissions where the Commissioner requires further information in order to consider whether it constitutes a public authority under the Environmental Information Regulations.”

email received 2 December 2009

I am pleased to report that the ICO is actively considering the Duchy of Lancaster case. Recently I have been contacted by several people about this case and I think it is right that I keep interested parties updated. I do not want to go into too much detail as it might not help the case.

Today (30 November 2009), I receive an update from the ICO and it prompted me to write back quoting the Defra guidance on the coverage of the Environmental Information Regulations:

“2.23 The Regulations do not apply to any public authority when it is acting in a judicial or legislative capacity. This derives from the provision in the Aarhus Convention that the definition of public authority “does not include bodies or institutions acting in a judicial or legislative capacity”.

For example, Magistrates Courts, Criminal Courts, Coroners and other courts or tribunals, the Council for Racial Equality, Ombudsman, Rent Assessment Panels, Licensing Panels, and Social Services Complaints Panels all carry out judicial or legislative functions. These public authorities are, however, public authorities for the purpose of these regulations to the extent that they carry out other functions, such as the management of their own estate and operations.””

I am very grateful to the ICO official assigned to my case for his detailed consideration of the issues.

For those of you that have been following the Duchy of Lancaster Saga I have a brief update.

“Therefore depending on the verdict, you will receive either:

(1) A much more detailed letter explaining the Commissioner’s view that the Duchy is not a public authority under the Regulations. This verdict can be challenged by judicial review.

(2) A Decision Notice explaining that the Duchy of Lancaster is caught by the EIR and that it must process your request. This can be challenged by either side to the Information Tribunal.”

Email from Information Commissioner’s Office dated 26 November 2009.

Although I am eager to get a decision and the wait can be frustrating, I want to point out that the ICO staff are being very helpful in progressing my case and they appear committed to applying the law correctly to the facts of the case:

“As you are aware (and as your submissions demonstrate) there are a large number of factors that are relevant in this case and all must be considered by me as case officer. I must obtain the facts and apply the law to those facts.”

A while ago now I appealed to the ICO and made the case that the Duchy of Lancaster is a public authority for the purposes of the Environmental Information Regulations.

The ICO essentially said that the Duchy was a private estate and not a public authority but I asked them to look again and to their credit they did and the case has been re-opened:

“I am grateful for the arguments submitted and the issue has been the cause of much debate. In short, I have decided to re-open the case and complete a more thorough examination of the facts presented. This does not necessarily represent a change of outcome, but simply an opportunity to re-evaluate the issue as a whole, as I felt that a simple case review on my part would not have done the matter justice.”

I have also found out that the Duchy of Lancaster itself is not registered but the Chancellor of the Duchy of Lancaster is listed (see http://www.ico.gov.uk/ESDWebPages/DoSearch.asp?reg=4146633). It would appear that a Government Minister is the data controller for all of the Duchy of Lancaster’s activities. It would be impossible to act as data controller for all the personal data of tenants without also controlling at least some ‘environmental information’ about land and buildings. This adds weight to my case that Duchy data is data held by a public authority.

The Duchy have refused to provide the information I asked for in my Environmental Information Request. The reason given is that the Duchy of Lancaster is ‘not a “public authority” as defined within paragraph 2 of the Regulations”. So that is it then the end of the experiment then, well not quite.

Comments are appreciated.

The Duchy website says:

“Protecting the environment Duchy lands encompass areas of outstanding natural beauty. The Duchy of Lancaster endeavours to protect the quality of the land, while respecting the commercial needs of tenants. Land use is monitored by the Duchy’s management agents to ensure that activities will not impair soil quality, and a number of farms have adopted organic farming methods. Sustainability in energy and resources is encouraged in investment and operational property owned by the Duchy.”