Queen’s Speech

Lord Berkeley Excerpts

Tuesday 15th May 2012 Lords Chamber

[Lord Berkeley]

My Lords, being the last Back-Bencher to speak, I thought I would talk about an issue that was not actually legislation in the gracious Speech; there was a statement of intent that the:

“Government will continue to work with the fifteen other Commonwealth Realms to take forward reform of the rules governing succession to the Crown”.

This is interpreted to mean that the eldest child, of either sex, would inherit the Crown and there would no longer be a ban on Roman Catholics inheriting. I suggest that this is not before time. The Prime Minister has also been quoted as saying that he will introduce legislation before the next election, so there is clearly not much hurry there.

Given that today’s debate includes legal issues, I thought it would be useful to suggest that this legislation should be extended to clarify the status and role of the Duchy of Cornwall. I raised this briefly during debate on the Legal Aid and Sentencing Bill, for reasons I will explain later. The main issue to be resolved is whether the Duchy is a private or public body, something in between or outside the law completely. As a representative of the Duchy claimed at a hearing of the First-tier Tribunal of the General Regulatory Council, which I quoted,

“the Duchy is not democratically accountable in any meaningful sense”.

I believe that it is time that it was. I have since uncovered a further list of rights, duties and obligations that the Duchy still has. Some are effectively dormant, some are used occasionally and some rather more frequently, but there is the threat of use and a lack of democratic accountability on all these counts. I shall quickly list them. One involves the harbour authority of the Isles of Scilly, which includes the right to create by-laws and breaching them would be a criminal offence, which would be rather odd if a private person was able to do it. The Duchy is a major landowner in much of Cornwall. Some say it is a good landowner, some say otherwise, but that is no great surprise. What is missing is the leaseholders’ ability to get enfranchisement or be able to buy the freehold of their property. If they were council tenants they would have been able to do that for years, but you cannot do that with the Duchy. The Duchy also has the right to Crown immunity. I understand that between 2003 and 2008 it made some £43 million in capital gains and did not pay any capital gains tax on that sum.

I turn now to more interesting issues. The Duchy has the right to any whale, sturgeon or porpoise that gets landed in the county. I am not sure whether the present Prince of Wales would exercise that privilege, and quite right too. The Duchy is the Receiver of Wrecks, and again, why is this different in Cornwall? It also has the right to the gold and silver mined in the county. It is interesting to note that apparently the Crown Estate is challenging this right. It is not the Government and it is not the Royal Family challenging each other; perhaps there is an argument for putting them all into one pot.

The Duchy owns the foreshore and fundus in Cornwall, so if you want to play on the beach or use a ferry, you have to pay a sort of tax to the Duchy. I believe that it is proposing to charge those people who want to use metal detectors on the beach £50 to do so. That is not done anywhere else in the country, so why should Cornwall be able to do it?

The next two things are much more difficult. Bona vacantia and escheat concern treasure trove, something that we all understand. Basically, it means that the Duchy has the right to ownerless property, goods and treasure. Is that a right for a private individual or a public body? There is also an obligation to meet part of the costs of the head of state—something we have debated often enough—and to submit accounts to Parliament. There is a right to be consulted on and give consent to Bills that affect the private interests of the Prince of Wales. That, too, is a good one.

No doubt there are many more of these issues, but the most important one is that the Duchy has the right to be represented by the Attorney-General. It would be nice to be represented by the Attorney-General at no cost. This is really why I tabled an amendment to the legal aid Bill because it is unfair that people who have a dispute with the Duchy have to provide for their own costs while the Duchy can use as much of the state legal machinery as it wants. Again, that is pretty unfair.

What should be done about this? There is a Bill in the Queen’s Speech which I mentioned earlier. At the moment we have the Duchy of Cornwall owned by Prince Charles as if it was his private fiefdom. It does not have any democratic accountability. Its tenants are left effectively without any means of making complaints because they know that if they do so, they will be treated rather badly. Why should an unelected body not only have such powers, but go on to claim that it is not even a public body at all, as it has done? It is as if it sees itself as sort of floating above the riff raff as it is not democratically accountable in any meaningful sense.

I suggest that it is time to modernise the Duchy and put it on a modern footing, or possibly dissolve it. The problem of revenue for Prince Charles could be solved through the Crown Estate because this year the Government have introduced a new law which says that the Royal Family should get 15% of the Crown Estate’s revenue. I did ask whether the Crown Estate has a forward budget and I was told it does not, but as it is to get a slice of all the revenue from the windmills that are being put up around our coast, I think that there is probably plenty of money around. I suggest that Duchy tenants should be allowed the right to buy their houses or properties as if they were council tenants, which in any case would be good revenue for the Treasury. Most important, the Duchy should not have Crown immunity and we should not need to ask permission to promote Bills that affect the Prince of Wales’s private interests. Moreover, the free legal services of the Attorney-General, although very nice, should be abolished. All these things are pretty important in order to bring the Duchy into the 21st century.

It may even be best to transfer all the residual rights to the Crown Estate and abolish the Duchy completely. Land could be handed to the local council. Would it be nationalised or was it nationalised already? That is a debate we can have, but anyway it could be done on the basis of localism, with surplus going to the Treasury. The harbour of the Isles of Scilly could be transferred to the council, or turned into a trust port, with enough land to help it. There is an awful lot to do and a lot of uncertainty about all this, and it is very unfair on people who are trying to do business or take action against the Duchy that there are all these things stacked up against them. I hope that the Government will look at this and take it forward.

In closing, I must challenge the statement by the noble and learned Lord, Lord Wallace of Tankerness, in his response to me in that debate in January, when he said it was for the courts to decide whether a body is a public authority. He might be right if it is just the Human Rights Act we are talking about, but I suggest that it is for Parliament to decide and it is for the Government to start this process. I hope they will soon.