Constitutional implications of the Cabinet Manual - Political and Constitutional Reform Committee Contents

Written evidence submitted by Philip Hosking

Please find below some ideas for inclusion in your consultation process.

Perhaps you know this already but within the United Kingdom of Great Britain and Northern Ireland you never really own the land you live on. If you are ever lucky enough to buy property you'll do so as a freeholder.[4] Essentially you are "free" to "hold" this land for as long as you like and dispose of it as you see fit but you don't really own it. The land is held from the Lord Paramount.[5] In the UK this is the Crown.[6]

If you die without heirs -intestate[7] your land reverts to the Crown and is disposed of by the Crown Estate. The bigger legal concept is that of Bona Vacantia[8] or ownerless goods. So what? You might be asking. After all we do need a way of dealing with intestacy, ownerless goods, mineral rights, treasure trove[9] and so on. Very true, but where does this right to Bona Vacantia come from and what can it tell us about the Cornish question.

Clearly the answer is sovereignty.[10] Who has sovereignty over the territory in question has the rights. In England and Wales this is the Crown. Equally in Scotland and the Six Counties of Northern Ireland it comes to the same Crown. Within the territory of the Duchy of Lancaster[11] the Monarch recuperates Bona Vacantia as she/he holds the rights to the Duchy. This is always the case. The money generated from the Duchy of Lancaster is filched by the Monarch as an income. An interesting constitutional question therefore is whether the Monarch has the de jure[12] constitutional power to govern the Duchy of Lancaster differently from the rest of England?

To recap, the Crown is sovereign over the UK's "home-nations" and so has the rights to Bona Vacantia, amongst other things, in these countries. In Cuba, Malaysia, the USA, so on and so fourth, the Crown has no such rights because in these places it has no sovereignty.

Is that the whole story within the UK? No, not quite. Within Cornwall, what many call the historic county of Cornwall, Bona Vacantia is not the right of the Crown. Instead the Duke of Cornwall gets to trouser it[13], the current Duke being Charles Prince of Wales. So does this mean that in some legal constitutional de jure way the UK Crown and its government are not sovereign in Cornwall even if they do exercise de facto[14] authority? Does that equate to the Duke of Cornwall being the constitutional head of state of Cornwall having un-exercised sovereignty?

It should also be noted that ignoring the already mentioned Crown, Duchy of Lancaster and Duchy of Cornwall ALL other royal titles found within the British Isles are merely titular and carry NO constitutional power. They are just for show. Only the Crown, Duchy of Lancaster and Duchy of Cornwall are mentioned when new laws are passed. They are protected from having their rights infringed by the new laws. No other titles are mentioned as they don't have rights and powers that could be infringed upon. Take for example the Tamar Bridge Act of 1998 which states in section 41 under Crown rights:

  • (1)  Nothing in this Act affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown including (without prejudice to the general law concerning the applicability of statutes to the Duchy of Cornwall) the Duchy of Cornwall and, in particular and without prejudice to the generality of the foregoing, nothing in this Act authorises the Authorities to take, use, enter upon or in any manner interfere with any land or hereditaments or any rights of whatsoever description:
    • (a)  belonging to Her Majesty in right of Her Crown and under the management of the Crown Estate Commissioners, without the consent in writing of those commissioners; or
    • (b)  belonging to the Duchy of Cornwall or enjoyed by the possessor for the time being of the Duchy of Cornwall, without the consent of the Duke of Cornwall testified in writing under the seal of the said Duchy or, as the case may be, the consent in writing of two or more of such of the regular officers of the said Duchy or of such other persons as may be authorised under section 39 of the [1863 c. 49.] Duchy of Cornwall Management Act 1863; or
    • (c)  belonging to a government department, or held in trust for Her Majesty for the purposes of a government department, without the consent in writing of that government department.

You'll never find anything like that for the Earl of Wessex[15], Duke of York[16] or Duke of Edinburgh[17]. An interesting constitutional can of worms don't you think? Many more of the Dukes rights over the territory of Cornwall can be found here[18]. What is the basis in constitutional law for these rights? Cornish constitutionalists[19] are unanimous in stating that sovereignty over the territory of Cornwall was annexed and united to the Duchy of Cornwall when it was created in 1337 and that since this date, in legal terms, nothing really has changed. Returning to the subject of freehold: in Cornwall you hold your land from the Duke of Cornwall as Lord Paramount over the territory of Cornwall.

Why was Cornwall chosen for the creation of this very particular constitutional arrangement? Could it of had anything to do with the fact that Cornwall was inhabited by Cornish Britons with a long history of fighting for their independence? Could it of had anything to do with the rich mineral wealth of Cornwall?

We could comment that today to deny the Cornish their recognition via this special legal status to the point of even denying them any open and honest knowledge of the Duchy and its history is an effort by the establishment to erase Cornish specificity.

So what is on my belated Christmas wish list with regards the above? Well to start with what on earth is this nonsense of a Monarch (even if fused with a partially elected government) or Duke being sovereign? We the people are sovereign. It is only because enough of us continue to believe in the Monarchy and Duchy or ignore them as being unimportant that they continue to exist favouring as they do their small selection of super-citizens[20] above the laws that govern the rest of the populace. Return the sovereignty of Cornwall to the residents of Kernow for them to govern themselves as they see fit.

5 January 2011

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© Parliamentary copyright 2011
Prepared 29 March 2011