The Duchy's powers and privileges
The Duchy enjoys various rights, powers and privileges that Republic believes are completely unacceptable and unjustified.
Rights of Ownership
The Duchy of Cornwall automatically owns all mines in Cornwall, irrespective of the individual ownership of the land. This includes mines under the sea extending beyond Cornwall but originating there.
It has the right to mine underneath privately owned homes without the consent of the owners.
The Duchy owns any ship wrecked on Cornish shores which is not claimed within 1 year.
The Duchy owns about two thirds of the foreshore (tidal land and riverbeds) in Cornwall and the Isles of Scilly, although parts of this land have been sold.
The Duke has the exclusive right to the carcass of any whale or sturgeon washed up on Cornish shores.
In other parts of the UK, these rights belong to the Crown Estate and therefore any financial advantage or powers associated with these rights are accountable to parliament. Such wide-ranging powers should be exercised by a government department in a public fashion rather than by a private individual.
Right to Veto Legislation
A rule called Queen's and Prince's Consent offers Prince Charles a unique veto over new laws that affect his private interests. This effective veto means that all laws are tailored to provide the Duchy with unique exemptions and itself explains the powers and privileges listed on this page.
As reported by the Guardian there appears to be a secret consultation process on a wide range of legislation between Ministers and the Monarch and Duchy of Cornwall. It appears that the Duke has been able to obtain substantial preferential legal and financial treatment for himself by creative use of this power. This power derives in part from Charles's position as Duke of Cornwall.
The Duchy is often depicted as enjoying the right of Crown Immunity as distinct from the Crown Estate. This claim is almost certainly untrue.
In fairness, the Duchy does not publicly claim to be immune from prosecution in any formal way. Instead, the Duchy has negotiated for itself certain specific immunities from legislation affecting any other property. Examples are given below.
The Duchy of Cornwall has the right to claim “Bona Vacantia” within Cornwall. That is to say, where property within Cornwall becomes ownerless, it belongs to the Duke of Cornwall instead of the government. Typically this would arise where a person dies without leaving a will and without having any traceable relatives. The Duke also administers the estates of people who die without a will, even if the rightful owner is eventually traced. While the Duchy says it pays all this money to charity it is questionable whether a private individual should be able to pay these funds to their own charity, as Charles does.
The income generated is notable- about £1,000,000 over the past seven years. The money goes to a charity called Duke of Cornwall’s Benevolent Fund, but the activities of this charity are entirely at the discretion of the Duke. It could be used for anything. There is no readily publicly available information on what it actually does. He is under no obligation to give this money to charity at all- he legally could refuse to do so tomorrow and spend it all on a holiday, if he so wished(!)
Elsewhere in the UK (except the Duchy of Lancaster), Treasury Solicitors, a government department, deals with Bona Vacantia. This includes in lands forming part of the Crown estate. Treasury Solicitors manages Bona Vacantia in a very transparent fashion.
As a matter of law, it goes directly to the public purse. It could not legally be squandered or embezzled. Essentially it is only the Duchy of Cornwall (or Lancaster) which could do so. Amalgamation with the Crown Estate would resolve this irregularity
Despite what has been claimed, this is not an “ancient right” but has only existed in this form since 1925 (see the s.57(2) Administration of Estates Act 1925 for details). The Duchy previously claimed the right since the 17th century, although the fact it was written into law in the 20th century suggests the claim was ambiguous. The Duchy acquired powers in relation to the administration of dissolved companies as part of Bona Vacantia as recently as 2006 by s.1012(1) Companies Act 2006 (presumably by use of veto powers).
Treasure Trove and Ancient Monuments
The Duke owns “treasure troves” in Cornwall: finds of buried valuable metalwork of a certain age. It has only enjoyed this right in law since 1996 (see s.5 Treasure Trove Act 1996) although it had previously been claimed since 1896 without any agreement by parliament or scrutiny in the courts. Again, most likely as a result of the royal veto.
Elsewhere in England and Wales, if an archaeologist finds, for example, a buried Anglo-Saxon coin hoard, the Treasure Act would give a relevant museum an absolute right to purchase the find, if not taken up, it belongs to the finder. For any other kind of archaeological find, the landowner, not the finder, has the interest.
For Cornwall, this all goes out of the window. The Duchy is exempt outright and has absolute title to any such finds.
There is no publically available information on how much money is generated by the Duchy or what it is used for. If a valuable or historically important find was made in Cornwall, The Duke could keep it, sell it, or dispose of it at his discretion.
If, hypothetically, a find was made in Cornwall which the British Museum wished to acquire for historical interest, but if the Duke wished to keep it as a personal belonging, or sell it to a private overseas collector, he could do so without any legal recourse.
Certainly the finder or the individual landowner would be cut out of the equation.
The Ancient Monuments and Archaeological Areas Act 1979 creates sweeping powers to protect Ancient Monuments of archaeological or historical significance.
For example, it would be a criminal offence to buy and demolish Stonehenge. Anyone who planned to do so could be stopped by court order and would be arrested. If, however, the Duke was to buy and demolish Lanyon Quoit, this would not only be legal, but there would be no legal way to prevent him from doing so.
The consequences of all this could be tragic. There is no publicly available explanation for these powers, nor examples of the manner in which they are used, if any.
Amalgamation with the Crown Estate would not deprive the Duchy lands of this power. The Crown Estate has similar powers. The difference is that the Crown Estate is a government body, but the Duchy is not. The Crown Estate could not blatantly abuse its powers without facing criticism in Parliament and ultimately accountability at the ballot box. The Duke has no such checks and balances. He could openly and unapologetically abuse these powers without any recourse whatsoever.
The Crown could buy and demolish Stonehenge, but would have to explain itself to the general public at the next election. If such exceptions are to exist (and that must itself be questionable) then they should at least be administered by an accountable public body.
Right to Commit Certain Crimes without Punishment
Special provisions and exemptions allow the Duchy to commit any act under the following laws which would be a crime for anyone else:
- The Wildlife and Countryside Act 1981
- Water Industry Act 1991
- Countryside & Rights of Way Act 2000.
- Land Reform (Scotland) Act 2015.
Exemption from Leasehold Rights
In 1967, long-term leaseholders in England and Wales acquired the right to have those leases extended automatically, whether the landlord agreed or not, albeit on payment of compensation. This added enormous value to long-term leases and security to hold property down the generations.
This does not apply to the Duchy of Cornwall (see 33(2)(c) of the Leasehold Reform Act 1967 - again, no doubt because of the veto). Neither does it apply to any other Crown Land, including the Crown Estate. In theory, the Duke (or the Crown Estate) could refuse to extend the lease, obliterating the value of the property, although in practice, the Crown Estate and the Duchies comply with the rules applying to everyone else voluntarily. But they are under no legal obligation to do so. They could simply refuse to comply as of right.
These rights were extended and clarified as recently as 1993 in the Leasehold Reform, Housing and Urban Development Act 1993. Again, the Duchy negotiated (by way of the veto?) a specific exception for itself- see s.94(11)(c).
Amalgamation with the Crown Estate would not deprive the Duchy lands of this power. Again, the different is that the Crown Estate is effectively accountable to and controlled by our elected government.
Compulsory Purchases and Areas of Outstanding Natural Beauty
Local Councils can compulsorily purchase land to ensure that harbours can function properly. For example, if a member of the general public owns land with a building preventing proper mooring of boats, the Council can buy the land without the owner’s consent. The Duchy of Cornwall (and Lancaster, and the Crown Lands) are the only landowners immune from this power (s.52 Harbours Act 1964).
This means that the only harbour in Cornwall able to exercise this power reliably is St Mary's Harbour in the Scilly Isles, because the Duchy of Cornwall is the Harbour Master.
Similarly, Local Councils can compulsorily purchase land to preserve or improve the visual amenity of Areas of Outstanding Natural Beauty or National Parks. The Duchy of Cornwall (and Lancaster, and the Crown Lands) are the only landowners immune from this power (s.47 Countryside Act 1964).
The Duchy of Cornwall contains a very significant and substantial Area of Outstanding Natural Beauty, the Cornwall AONB. So long as this exception exists, this AONB will not enjoy the same protection as others elsewhere in the UK.
Planning law (see below) prevents inappropriate development in certain areas. If the Duke wished to build a car factory in the middle of the Cornwall AONB, permanently destroying the visual amenity of the area, that would be legal. It would not, thankfully, be legal for anyone else.
There is, again, no publicly available information on why these exceptions exist, what they are used for, or when they have been used.
Again, it is accepted that the Crown Estate enjoys similar powers to the Duchy - but there is, at least, a democratically elected body responsible for it - though the question arises as to whether these exceptions should exist in the first place.
Immunity from Certain Infrastructure Laws
An electricity company has the right to enter private land to ensure the proper functioning of the electricity system, such as to carry out repairs, remove obstructions, or to undertake almost any necessary work. Such companies can do so without the consent of the land owner, unless the owner is the Duchy of Cornwall (and Lancaster, and the Crown Lands), which are immune as a result of s.63 Electricity Act 1989.
One particularly striking legal immunity available to the Duchy is that it is illegal for an electricity company to disconnect the electricity supply to any property owned by the Duchy - even in the event of non-payment of bills! In the event of a power cut requiring access to Duchy land to repair, or even an emergency causing a risk of electrical fire, the Duke could refuse to allow engineers acting for the electricity company access for any reason whatsoever. The company would be unable to gain access by any legal means, irrespective for the consequences for the general public.
Local Councils have substantial powers to carry out works and to compulsorily acquire land in order to prevent flooding. They can use these powers to prevent blockages to rivers, repair ditches and canals, improve bridges, and carry out drainage works. However, they cannot do so if the Duchy of Cornwall (or Lancaster, or the Crown Lands) are the only landowners (s.74 Land Drainage Act 1991).
If a town or village were at risk of flooding unless, for example, a river bed were dredged, but that river belongs to the Duchy of Cornwall (recall that the Duchy owns most Cornish riverbeds), the Duke could legally refuse permission for the Council to carry out the dredging for any reason whatsoever, irrespective of the potential consequences for the people living in the area at risk.
Immunity from Planning Law
The Duchy of Cornwall is to all practical intents and purposes immune from any planning control whatsoever. This power is relatively new, granted partly in 1990, partly in 2008, and partly in 2011.
The two main acts governing planning control are the Town and Country Planning Act 1990 and the Planning Act 2008. Some breaches of planning law are criminal offences, and the Acts grant powers to the planning authorities to enforce planning decisions. Unless, that is, the offender is the Duchy of Cornwall, (or Lancaster, and the Crown Lands)
- s.296A(1) of the 1990 Act prevents the Duke from ever committing a planning related offence under that Act.
- S.296A(5) makes it impossible for the Duke to ever be sued for planning reasons under the Act, or for any entry to Duchy lands to ever take place without his permission. The planning authorities are, however, permitted to ask him not to break the law.
- ss.135 and 228 of the 2008 Act apply the same principles to that Act. However, unlike the 1990 act, if the Duke breaks the law under the 2008 Act, the planning authorities are not permitted to ask him not to do so unless he agrees to let them ask him! Even if he agrees to let them ask him not to break the law, he still can break the law unless he agrees not to!.
- s.117 Localism Act 2011 allows the planning authorities to charge landowners for the costs of planning decisions. S.118 exempts the Duchy of Cornwall (and other Crown Land) from such charges.
These are entirely brand new powers conferred on the Duchy in the last few years by the current and recent governments, with no reference whatsoever to ancient rights or powers. They are not feudal remnants.
These exceptions appear to have been acquired through the use (or threat of use) of the veto. The hypocrisy is frankly breathtakingly audacious. In 1989, the Duke of Cornwall published a book criticising the current state of planning law in the UK. A few months later, Parliament passed a law radically improving planning law (the 1990 Act). In response, the Duke demanded his own unique exemption from that new law.
It may be that the Duchy actually intends to use this power to create a Poundbury- type suburb in Newquay.
There is no information on when these powers are used, or why they exist. Amalgamation would at least democratise the powers- if they are to continue at all.
Extended Limitation Periods
If a person occupies land for a certain period, and treats that land as if it were their own, it will cease to be possible for another person to subsequently argue that the land does not belong to the occupier. For example, if I build a house on land which you say belongs to you, but you don’t do anything about it for 12 years, you will lose the right to do anything about it in future.
Unless, that is, you are the Duke of Cornwall (or Lancaster or the Crown Estate). In that case, the period is thirty years (s.10 Sch.1 Limitation Act 1980). If the land is foreshore, the period is sixty years (s.11 Sch.1 Limitation Act 1980).
Right to Practice as an Unqualified Lawyer
Rather bizarrely, the Duchy has the right to appoint an officer to act as a “law clerk”. This officer is permitted to act as a solicitor in all courts in the UK and is exempt from the requirement to be qualified to do so! They are under no obligations of any kind, other than employment by the Duchy, so are exempt from mandatory training or practicing requirements.
The law clerk is also exempt from the regulation of the Solicitors Regulation Authority, meaning that they cannot be struck off or disbarred, or otherwise penalised for misconduct.
The law clerk may therefore deliberately mislead the court, breach undertakings, act in conflict of interest or breach of confidentiality, or mishandle money in breach of the usual accounting rules without punishment provided he does not act criminally. In other words, these powers entitle the Duchy of Cornwall to openly cheat at civil litigation or other legal procedures without recourse.
The clerk does not even have to be acting for the Duchy of Cornwall. The Duke could allow the law clerk to act for one of his friends, he would enjoy similar advantages.
See s.31 Stannaries Act 1855; s.88(1) Solicitors Act 1974; and s.193(1)(d) Legal Services Act 2007.
Exclusion from Freedom of Information Regulations
The Monarchy generally enjoys exemption from Freedom of Information powers. The Duchy has also been left out of the law's remit.
In 2011, the Duchy attempted to use this position to prevent public awareness of an environmentally harmful - but lucrative - oyster farm in Helford, Cornwall.
The Duchy is now, as a result of that case, deemed to be a public authority for the purposes of the Environmental Information Regulations 2004. However that doesn't include the Duchy within the Freedom of Information laws. It can exercise its powers without any real scrutiny.
Amalgamation with the Crown Estate would allow the Duchy to operate in a more open fashion in the future.
These powers and privileges are real, modern and serious
In the past supporters of Charles and the monarchy have claimed any powers the Duchy has are ancient and largely symbolic. Yet these are very real powers and privileges, granted to the Duchy in recent years and decades. Collectively these legal exemptions and unique rights establish the Duchy as an autonomous fiefdom within the United Kingdom, a commercial operation and landowner that is a law unto itself.
Some of laws appear fairly obscure, but parliament would not have spent time passing them if they meant nothing. More work needs to be done to fully appreciate the scope and possible repercussions of these laws - but if we imagine the Duchy wanting to build new towns, influence councils or the government or pursue commercial development projects it is easy to see how they would benefit greatly from this privileged position. No doubt to the detriment of the wider community.