Written evidence submitted by Mr Alan Davis [LHR 112]

A Summary of our position

1. Although the Crown is not bound by the Leasehold Reform Acts, the Duchy of Cornwall (Duchy) (claiming to be part of the Crown and not a private estate) secured a unique exemption from the Leasehold Reform Acts for land areas rather than the buildings.

2. The Duchy exemption was a private arrangement with Ministers and announced in Parliament, along with the Crown exemption for Palaces etc. (Please see Hansard: Crown Leaseholders 11 Dec 2001: Column: 842W.) The exemptions asked for by The Prince’s Council were given to the Duchy without consultation or debate in the House. The Duchy now has total exemption from FOI requests.

(The minutes of the Princes Council meeting Paper R are Pages 8 & 9 of this summary.)  This” request” has been repeated in subsequent Leasehold Reform legislation including the 2002 Act.

3.              Below is a paper (Pages 10 to 16) “A Commentary on matters of historical and legal interest in relation to the ownership of the Isles of Scilly” by Dr John Kirkhope, Visiting Research Fellow University of Plymouth.

The summary is:

1              There is no evidence to sustain the assertion by the Duchy that the Isles of Scilly have been part of the Duchy of Cornwall since the 14th Century. Indeed, the Law Officers in 1832, at best, could see evidence that the Islands had been part of the Duchy only for the previous forty years. Thus, the claim by the Duchy on its web site is misleading.

2              In 1832/33 after an examination of the available evidence the Law Officers of the Crown found, in the first two references, that the Isle of Scilly were property of the Crown. Only on the third reference did they find it was property of the Duchy.

3              It is vital to understand that a Law Officers Opinion is not Law. The Opinions in 1832/33 were never tested in Court. Thus, at the very least, a question mark must hang over the ownership of the Islands.

4              The Duchy would seem to be unable to provide documentary evidence the Islands have been property of the Duchy since the 14th century. Indeed, they seem unable to provide evidence the Islands are property of the Duchy at all.

5              This is a matter which is not merely a question of constitutional nicety. It is fundamental to the rights of residents of the Islands. If the ownership of the Islands by the Duchy cannot be demonstrated, then the rights of the Duchy to crown immunity over leasehold properties on the Islands cannot be sustained. Thus, the leaseholders on the Islands would have the same rights as other leaseholders in England and Wales.

3. There appears to be a lack of understanding within government as to the differences between the Crown Estate and the Duchy of Cornwall (Duchy).  The Crown Estate manages all the Royal Palaces and other Crown properties.  The Crown Estate has NO presence on the Isles of Scilly.  The properties on Scilly are owned by the Duchy of Cornwall (see http://duchyofcornwall.org/ which variously describes itself as a private estate and when needed, part of the Crown.  This Crown is NOT the Crown Estate, but the national institution under the full control of Parliament. Please also see http://duchyofcornwall.org/leases-and-freeholds.html.

4. Whilst an exemption for real Crown buildings, such as the Royal Parks and Palaces is reasonable. An exemption for a land area where no member of the royal family resides is unreasonable. The exemption should not include the non-historical homes of individuals on Duchy land that meet the criteria for enfranchisement.

5. The original Duchy exemption was based on safeguarding heritage and the environment, but with today’s numerous safeguards to heritage and the environment, the Duchy exemption was later changed to an exemption of association with the Crown and not the environment.

6. Most of the houses in the exempted area are modern, not Listed with no particular architectural merit.

7. The untenanted land in the Scilly exemption areas has been handed over to the local Wildlife Trust to maintain at their expense.  The contribution by the Duchy to the Wildlife Trust is negligible.  The maintenance of historic buildings/structures in the exempted areas is paid for and carried out by Historic England and not the Duchy.

How does this affect us?

A              If you require monies to carry out repairs/improvements, the mortgage companies will not lend, due to the leases being under 80 years.

B              If you wish to sell, mortgages are not available.

C              If you wish to release equity this also is denied due to the length of lease.

D              Lease extensions are only available for 50 years.

E              With a lease extension, at the end of the lease, further extensions are not available, and the property automatically reverts to the Duchy, with you as rent paying tenant i.e. you have lost the right to your home.

F              A lease extension will cost the leaseholder ca £13k, as the Duchy uses its own expensive lawyers.

G              If you wish choice, restrictive covenants prevent freedom of choice.

H              Future ground rents are based upon the modern-day value of letting the site without buildings. On present values, this could incur ground rents of around £8k pa. or more.

J              The Duchy rent houses in an exempted area as holiday homes https://www.duchyofcornwallholidaycottages.co.uk/destinations/isles-of-scilly .

Previously these houses were homes let to locals on long term rental.  Whilst others in the area use their houses as holiday homes, they use them themselves and contribute to the community.  The Duchy houses are “faceless” and have adversely changed the community.

The Situation is:

•                      1. Feudal

•                      2. Unfair

•                      3. Discriminatory

•                      3. Lacks transparency. (The Duchy is protected from FOI requests. What transpires between the Duchy and Government is no longer disclosed).

•                      4. Removes the legal rights of individuals.

•                      5. Ignores equality.

•                      6. Future costs are uncertain and may be punitive.

•                      7. Imposes restrictive covenants that limits the way in which the home can be used and generates revenue from the covenants for the Duchy who provide nothing in return.

The Future:

1. Permitting a private (Crown?) feudal body to oversee and use family homes as a means of generating revenue and restricting the rights of individuals, by claiming a land area exemption, is not appropriate in the 21st Century.

2. The Statement to Parliament with the Duchy exemption should be rescinded and leaseholders be allowed the option of enfranchisement i.e. to really own their family home and fulfil the promise that Mrs May made, “to provide equal treatment for all and not just the privileged few”.

3. The Royal Palaces etc (The Crown Estate) will no doubt be given exemptions in any future housing legislation, but it is important for us, that the Prince of Wales’ commercial interests of his private estate (Duchy) are NOT exempted.  We have no royal presence on the islands, so security is not an issue.  The islands are protected by numerous statutory bodies e.g. Historic England, Planning law and the Council of the Isles of Scilly.

4               Should enfranchisement be again denied to us by the “hand of privilege”, then leases should be replaced by 999-year assignable leases with a peppercorn rent, minus the restrictive covenants i.e. freehold in all but name.

5              Follow the Scottish/NI lead and abolish residential leasehold tenure and replace with Freehold for houses and Commonhold for flats.

A Commentary on matters of historical and legal interest in relation to the ownership of the Isles of Scilly.

Dr John Kirkhope

Visiting Research Fellow

University of Plymouth

Introduction

Whilst researching the Duchy of Cornwall for my thesis[1] I frequently came across intriguing references to the Isles of Scilly to which, I promised myself, I would return when time permitted. I subsequently wrote a booklet entitled “The Laws of the Duchy of Cornwall, the Isles of Scilly and Devon”[2] in which, amongst other things, I considered the peculiar legal status of the Isles of Scilly.

However, my interest had not been satiated. For example, I did not know that, until a change in the law in 1953[3], the people on the Islands paid no tax and there was a concern in Government the Islands were becoming a tax haven.

Despite the assertion by the Duchy of Cornwall that:

“….the Isles of Scilly have been part of the Duchy of Cornwall since its beginning in the 14th century. Today the Duchy owns most of the land and nearly a third of the residential buildings on the islands.”[4]

I challenge whether the Duchy claim can be substantiated. I will demonstrate that my  doubts reflect the reservations raised by Government from time to time.

Who Owns the Isles of Scilly?

The Duchy of Cornwall asserts:

“The Isles of Scilly have been part of the Duchy of Cornwall since its foundation in the 14th Century.”[5]

The claim is supported by Government. For example in a letter dated 16th June 2009 from the Department of Communities and Local Government it was claimed:

“….the Isles of Scilly, including St Mary’s, has been part of the Duchy of Cornwall since the 14th Century….”[6]

Despite the certainty evidenced by the above statements and the public functions performed by the Duchy on the Isles of Scilly[7] there is some ambiguity in the Duchy’s claim to the Islands. For example, in the papers relating to a dispute which became known as the Cornwall Foreshore Case the Duchy observed:

“These Islands, as before mentioned, were parcel of the Earldom, and held as of the Great Honor of Dunheved or Launceston; but although parcel of the Earldom, they are not expressly named in the Duchy Charter[8]; (emphasis added) but that the Seignory of these Islands did pass to the Dukes, though not specifically named in the Charter is clear from the Inquisition Post Mortem of Ranulph de Blanchminster, in the 22nd Edward III, eleven years only after the creation of the Duchy, which states that he held of the King no land in Cornwall, but that he held of the Lord Edward Duke of Cornwall the Castle of Sully with the Islands to the said Castle appertaining; and his heir being under age, the profits in the next year are accounted to the Duke.”[9]

As further evidence the Duchy cited an “Inrolment” of the Duchy of Cornwall of 22nd June 1637 by which the Scilly Isles were leased to Sir William Godolphin.

There are, however, those who have raised questions about the status of the Isles of Scilly. For example, Robert Heath in his 1750 study of the Scilly Isles:

"After the Dissolution of Abbies and monastical Estates, the ecclesiastical Jurisdiction of Scilly devolving to the See of Exeter, the Civil Power was granted by the Crown to Lords Proprietors, on Condition of their paying certain Rents into the Hands of the Receiver for the Dutchy of Cornwall, for the Tenure of those Islands; by which they came to be acknowledg'd as Part of the Jurisdiction of the said Dutchy; but only by the King's Favour: For I cannot find by any Records that they were ever annex'd thereunto. (Emphasis added)

And here I shall observe, that in the Grant of the Dutchy of Cornwall (which I have seen) to the Prince of Wales, as eldest son of England, there is no mention made of the Islands of Scilly…whence if Scilly appertains, or is part of the said Duchy, it is rather permitted by Favour than given to be so by Royal Authority; especially as the Grant of those Islands to several late Proprietors, is expressed in so ample a Manner."[10] (Emphasis added)

Later in 1824 Fortescue Hitchins wrote:

“When the county of Cornwall was erected into a Duchy, these islands seem either to have been forgotten or purposely omitted as they are not mentioned in the general grant. This omission has given rise to some disputes whether they belong to the Duchy or not. It is certain that some Kings of England have made separate grants of them when there have been Dukes of Cornwall; and when the dissolution of religious houses took place, the lands which belonged to the abbey of Tavistock fell to the Crown; and hence it is presumed, that the dominion of these islands accompanied their destiny. If, therefore Scilly is now considered as a part of the Duchy, it is rather permitted by favour, than given so by royal authority.”[11](Emphasis added)

The following lengthy quote appeared in a memo written by a Mr J Hall in 1889, quoting from a work of 1831, in connection with a proposed Local Government Bill[12]:

“It has been questioned whether (the Scilly Islands) ever belonged to the Duchy of Cornwall, as they are not specified in the grant (of the Duchy of Cornwall 17th March 1337) for the erection of the Duchy; and though it may be inferred that they were in some respects dependent on it, there are no records to show that they were ever annexed to it. After having been granted away by Henry VIII they reverted to the Crown by exchange, in the reign of Queen Mary; and Elizabeth, in 1571, gave them to Francis Godolphin, but after having been more than 200 years under the sway of the Godolphins and Osbornes, Dukes of Leeds, they have again lapsed to the Crown (1831) and are at present under the Duchy of Cornwall.”[13] (Emphasis added)

The most significant challenge to the Duchy’s claim to the Scilly Isles came in 1832/1833 when the case was examined by the Law Officers of the Crown. Initially in 1832 the question was raised “…as to whether the Scilly Islands generally formed part of the Land Revenues of the Crown..” The question was submitted to Solicitors of the Office of Woods and Forests who in two opinions dated 8th and 10th June 1832 advised the Scilly Isles belonged to the Crown[14] . Further information was supplied which caused the solicitor to modify his opinion and an application was made to the Law Officers of the Crown (a copy of whose opinion appears in the Appendix) who having:

“…carefully examined the copies of several documents submitted to us together with the very able statements and arguments and elaborate searches which accompany them and we are of the opinion upon the whole that the Scilly Islands are to be considered as part of the properties of the Duchy of Cornwall and they do not belong to the Crown jura coronae[15]..”

They also said:

“it is to be regretted that in a matter of so much importance there should not be a regular series of authentic public documents by referring to which the question between the Crown and the Duchy of Cornwall might be at once satisfactorily decided.”[16]

They went on to say:

“..we are further of the opinion under all the circumstances that there is nothing of sufficient ground….to call in question the right of the Duchy as it has been asserted…for forty years.” (emphasis added)

The papers do not reveal why the question was raised in 1832 neither do they provide copies of all the evidence submitted. But it is clear from the documents that are available there is not an overwhelming unequivocal support for the Duchy’s claim to the Islands. The two initial opinions found the Islands were the property of the Crown and although the Law Officers later took a different view they could find support only for the assertion that the Duchy had enjoyed the Islands for forty years not since the fourteenth century as the Duchy claims. Needless to say the Law Officers Opinion has never been tested in Court.

Augustus Smith wrote in 1838 to the then Prime Minister, Lord Melbourne, requesting he be appointed Governor of the Islands. In the letter he stated: “..the Islands were held under the Duchy of Cornwall from the reign of Elizabeth..”[17]

Mary Coates, in her paper to the Royal Historical Society in 1927, offers a different explanation of how the Scilly Isles became part of the Duchy:

“Annexata Maneria added to the Duchy by subsequent Acts of Parliament….these included...fifteen manors confiscated by Henry VIII after attainder of Henry Courtenay, Marquis of Exeter…and lastly fifteen more obtained by the Crown through the dissolution of the Priories of Launceston and Tywardreth...in the list of the 15 Courtenay Manors we find….and the farm of the Scilly Isles.”[18]

The right to the Isles of Scilly is claimed by the Duchy relying to some degree on documents which predate the Duchy Charter of 1337. They argue that they “succeeded” to the property rights and privileges of the Earls of Cornwall and thus, by implication, enjoyed the benefits of the Earldom. That argument was not accepted by the Crown in, for example, a dispute with regard to Royal Mines[19] within Cornwall[20] and I can find no reason to see why it should be accepted with regard to the Isles of Scilly.   

What is clear is that the Crown felt able to dispose of the Islands as it wished well after the 14th Century. Since there is no indisputable document by which it can be demonstrated the Islands were passed to the Duchy of Cornwall the questions which remain are: by what means did the Islands become the property of the Duchy and when did that take place?

The Duchy of Cornwall agreed to give me access to certain records and I requested copies of any “papers relating to the ownership of the Isle of Scilly including the various disputes which arose in the 19th century particularly during the 1830’s”[21]

The reply I received was as follows:

“I have not managed to locate accounts of legal cases and constitutional points to which you refer. In regards to Scilly we have surveys including volumes from around the period of this case (1829 and 1833). In addition, we have Isles of Scilly Council Minutes. Neither set of records appear to comment on the dispute……I do have bundles of correspondence from this date relating to Scilly but these do not contain anything of relevance.”

SUMMARY

1              There is no evidence to sustain the assertion by the Duchy that the Isles of Scilly have been part of the Duchy of Cornwall since the 14th Century. Indeed the Law Officers in 1832, at best, could see evidence that the Islands had been part of the Duchy only for the previous forty years. Thus the claim by the Duchy on its web site is misleading.

2              In 1832/33 after an examination of the available evidence the Law Officers of the Crown found, in the first two references, that the Isle of Scilly were property of the Crown. Only on the third reference did they find it was property of the Duchy.

3              It is vital to understand that a Law Officers Opinion is not Law. The Opinions in 1832/33 were never tested in Court. Thus, at the very least, a question mark must hang over the ownership of the Islands.

4              The Duchy would seem to be unable to provide documentary evidence the Islands have been property of the Duchy since the 14th century. Indeed they seem unable to provide evidence the Islands are property of the Duchy at all.

5              This is a matter which is not merely a question of constitutional nicety. It is fundamental to the rights of residents of the Islands. If the ownership of the Islands by the Duchy cannot be demonstrated then the rights of the Duchy to crown immunity over leasehold properties on the Islands cannot be sustained. Thus the leaseholders on the Islands would have the same rights as other leaseholders in England and Wales.

Appendix I

Scilly Islands

Cornwall

Copy Opinion of the Law Officers of the Crown[22]

It is to be regretted that in a matter of so much importance here should not be a regular series of Authentic public documents by referring to which the question between the Crown and the Duchy of Cornwall might be at once satisfactorily decided.

This however (owing to accident or neglect in past times) is not the case and the conclusion now to be arrived at, is one derived rather from argument and inference, than from positive and direct evidence.

We have carefully examined the copies of the several documents submitted to us together with the very able statements and arguments and elaborate researches which accompany them And we are of the opinion upon the whole that the Scilly Islands are to be considered as part of the possessions of the Duchy of Cornwall and that they do not belong to the Crown jura Coronae[23].

And we are further of opinion under all the circumstances of the case that there is not any sufficient ground for our advising the Crown to call in question the right of the Duchy as it has been asserted and enjoyed for the last 40 years.

              Wm. Horne

              J Campbell

              Lincolns Inn January 1833

August 2018