18 January 2007.
Dear Mr Naysmith
I am writing to you with my criticisms of the draft 2nd UK Framework
Convention Compliance report. I have to say that, after waiting almost three
years for sight of this document and after having made repeated requests to
see it, it was iniquitous of your department to circulate the document
immediately prior to the Christmas/New Year break, allowing individuals and
NGOs effectively only a couple of weeks in which to formulate their
responses before the deadline for comment expires on 20 January 2007. That
notwithstanding, a local member of parliament, Andrew George M.P., has
received a letter from the Minister, Mr P Woolas, M.P., dated 18 December
2006, informing him of his intention to submit the UK Compliance report to
the Council of Europe by the end of January. If this is an accurate
reflection of the time scale involved, then doubt must be cast on the
government's intention to take this public consultation exercise seriously
since it would appear that insufficient time is available for it to make any
adjustments or alterations to its current position as a result of NGO input.
Furthermore, your e-mail to me, dated 8 January 2007, in response to a
Freedom of Information Act request for information, on 7 December 2006,
gives me great cause for concern. It seems that certain correspondence that
I have requested in regard to the government's application of a Council of
Europe Convention, is classified as exempt information and is now subject to
a public interest test that will take a further 20 working days to complete.
You will, no doubt realise that this important information relating to the
decision making process will not be available to me until 7 February, some
time after the expiry of the deadline for submissions, thereby prejudicing
my opportunity to comment. I am reminded of my criticisms later in this
report of the Duchy of Cornwall, and its possible role in the government's
application of the Framework Convention, and now that information that could
be related to it has been officially classified as exempt, my fears about
these matters have most certainly not been assuaged. Since this information
is deemed to be a potential state secret, I shall draw my own conclusions as
to why this might be so and I shall articulate them in this shadow report
that I intend to widely disseminate.
Bearing in mind the time limitation imposed on the public consultation
exercise and the subsequent Freedom of Information Act obstruction, my
comments are somewhat fore-shortened.
The government's draft report is unacceptable as it is seriously flawed in
regard to a number of issues, which I intend to raise in the same order that
they arise in the draft report, as follows (the emphasis, in the main,
refers to statements made by the government in it):
The Draft Report states that,
"the Race Relations (Amendment) Act 2000 has come into force, bringing
public services fully with in the scope of the Race Relations Act and
placing a positive duty on bodies to promote race equality"
The draft report does not make it clear to British subjects and the Council
of Europe that the Race Relations (Amendment) Act 2000 has been superceded
by Statutory Instrument 1626 to bring it into line with European Union
Directive 2000/43/EC (the EU Race Directive). However, it does state, in the
following paragraph that,
"the EU Race Directive and the elements of the EU Employment Directive
relating to religion or belief have been fully transposed into domestic law,
providing an important additional protection against discrimination"
That notwithstanding, a comparison between the Statutory Instrument 'fully'
incorporating the Directive into English Law and the EU Race Directive
itself reveals that Paragraph 3 of the Directive 'recitals' (amongst other
components) has been omitted from the Statutory Instrument. Bearing in mind
that the government was involved in the formulation of the 'recitals' of the
Directive, without which its operative articles are placed out of context,
the failure to include a similar text, or 'recital' in the Statutory
Instrument 1626, in the light of the revelations that follow in this
document, leads one to conclude that it was a deliberate act to protect the
powers, rights and profits of the Duchy of Cornwall, based on feudal,
inequitable legislation, and to facilitate anti-Cornish discrimination by
it. To suggest or imply to the Council of Europe, i.e. that equality before
the law does exist in domestic English law, is nothing less than
disingenuous and a downright lie.
Furthermore, it should be born in mind that the government's own special
advisor on the Human Rights Act has confirmed to me in an e-mail, dated 6
July 2006, that English law does not provide for equality before the law.
She stated that, "you are right about no statutory guarantee of equality
before the law" but she continued to state subsequently that, " but Article
14 in conjunction with Article 5/8 ECHR can be, and has been, read that way
to some extent. The ECHR Preamble refers to "Rule of Law", Protocol 12,
which the government has refused to ratify, gives a general right not to be
discriminated against on any ground, not just in relation to ECHR rights,.."
The professor's wording here is clear and it is fair to say that, even if
there is a theoretical presence of equality before the law in English law,
it is questionable and open to wide interpretation and is by no means
certain or universal.
In addition, the statement in the draft report that,
"also in 2006, an Equality Act was introduced which prohibits discrimination
on grounds of religion or belief in the provision of goods, facilities and
services and public functions in Great Britain"
is similarly misleading since it neglects to mention that the new Equality
Act similarly does not contain a provision for 'equality before the law'. If
British subjects do benefit from the principle of equality before the law,
why on Earth does this statute not make it perfectly clear that it really
does exist, so there can be no doubt in the public's and legal profession's
mind, and dispel any possible myth that it is just an illusory concept? The
absence of this important principle in the legal system, despite
international treaty obligations to provide it, means that equality is a
subjective, rather than an objective, concept in the UK. I shall return to
this matter later.
The draft report states in
"Practical arrangements made at the national level for following up the
results of the first monitoring cycle on the implementation of the Framework
"the Government undertook a wide-ranging consultation as part of the process
for preparing this 2nd report on the Framework Convention."
It must be said that this was not a pro-active exercise on the part of Her
Majesty's central government departments and it is clear that, had the
Cornish not threatened a legal action against the government early in 2004,
the opportunity to be consulted in the process would not have arisen,
despite the fact that the Council of Europe recommended dialogue with
Cornish organisations at the end of the first monitoring cycle.
The draft report states subsequently in Paragraph 10 that,
"the Government routinely consults the non-governmental sector when
developing policies or legislation".
In so far as the Cornish National Minority is concerned, this is another
incorrect statement. Despite the 2004 threat to sue the Home Office and
subsequent repeated requests for various government departments to discuss
issues relating to the status of the Cornish national minority and its
relationship with the Duchy of Cornwall, no opportunities for discussion
with representatives of this ethnic group, apart from one meeting with the
Race Equality Unit of the Home Office and one with the Commission for Racial
Equality, both in regard to the threatened legal action against the
government in 2004, have arisen.
The non-governmental sector in Wales would not appear to have been consulted
in regard to the government's application of Article 16 in the principality.
In recent years, there has been considerable disquiet in Welsh-speaking
areas about the massive decline in the proportion of Welsh speakers in those
communities. The marked decline is due to the affects of unrestrained inward
migration from other parts of the UK and the population proportions are
rapidly changing. The draft UK Compliance Report does not include a single
government comment on this Article of the Framework Convention.
In regard to the section dealing with Article 3:
a) The draft report states that,
"the term "national minority" has no legal meaning in the UK and so there is
no mechanism under any of the UK's legal jurisdictions to grant "national
minority status" to any particular group nor is it proposed to introduce any
Yet, Article 14 of the Human Rights Act 1998 states,
"the enjoyment of the rights and freedoms set forth in this Convention shall
be secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status."
The term, 'national minority' is also frequently used in official government
publications for the benefit of the public. It is inconceivable that the
legislature could enact legislation using terminology it doesn't recognise.
The Draft Report states,
"the Government has considered the arguments put forward for the inclusion,
(i.e. of the Cornish) but has not been convinced that a move away from the
rra formula can be justified."
Mr Naysmith will recall the reaction of the former Head of the Home Office's
Race Equality Unit, Mr Bruce Gill, when members of a Cornish delegation
briefed them both, prior to the threatened legal proceedings against the
Home Office in 2004. Mr Gill stated that he could not understand why the
Cornish minority had not been formally recognised under the Framework
Convention. He went on to state that he would raise the issues immediately
with the then Minister when he said, "leave it to me!"
One week after making this assertion, Mr Gill was transferred to other
duties. In the meantime, the department has failed to maintain any dialogue
with the Cornish national minority and has yet to offer even basic reasons
why your department has so far "not been convinced", despite being presented
with a considerable quantity of information.
Almost three years later, despite the obvious Breach of Article 25 of the
FCPN, the Cornish are still not included within the Convention and the
Council of Europe is still waiting for the UK Compliance Report.
"The Government considers that the UK's enormous diversity, embracing
individuals of many different (and sometimes multiple) ethnic, national,
cultural and faith identities is a matter for celebration and a source of
Unless, of course, you happen to be Cornish.
"The fact that the UK does not recognise "national minorities" as such as
(sic) not been a barrier to the UK's many communities being able to maintain
their distinct identities."
The maintenance and protection of a valuable, threatened minority culture
requires resolute action in the form of sound financial input from central
government. It must be emphasised at this point that a recent (January 2,
2007) attempt to bring an anti-Cornish discrimination Race Relations Act
court case (using the government's own Race Relations Act "formula") was
recently thwarted by a judge who refused to accept that the action was a rra
case and suggested that the applicant instigate potentially costly judicial
review of a plethora of individual specific public authority decisions.
Indeed, the judge also refused to accept the relevance of the EU Race
Directive, and refused to grant a remedy for the state's failure to provide
a guarantee of equality before the law. It is, therefore, patently
fallacious to imply to the Council of Europe that the Cornish National
Minority (as per Article 14 Human Rights Act 1998) are able to maintain
their own distinct identities.
In the above instance of the English judiciary's reaction to what should
have been a clear cut case of anti-Cornish discrimination, involving the
difference of treatment between the Cornish, subject to the Duchy of
Cornwall Management Act 1863 - 1982, and the rest of the UK that is subject
to the analogous Crown Estates Act, the government's Race Relations Act
"formula" clearly does not work and is irrelevant to the Framework
Convention for the Protection of National Minorities.
"The Government is very much aware of the strength of feeling about Cornwall's
separate identity and distinctiveness."
Despite such awareness, the government still insists on specifically
excluding the Cornish National Minority from the provisions of the Council
of Europe's Framework Convention for the Protection of National Minorities
and refuses to facilitate access to the courts as it has done with other
ethnic/national/racial groups. No other group is meted out with similar
treatment and other analogous groups receive central government funds and
Framework Convention benefits without having to satisfy a court under the
Race Relations Act (the government's Race Relations Act "formula"). Examples
of these excepted groups quoted in the draft report include 'black',
'minority ethnic', 'Chinese', 'asylum seekers' 'refugees' and 'Scottish
travellers'. Recent rra cases have determined also that "foreigners"
constitute a racial group for the purposes of the Act and, under the
government's Race Relations Act "formula" this group can be considered under
the scope of the Framework Convention for the Protection of National
Minorities. Such a determination renders the government's practical efforts
to comply with the terms of the Convention, virtually useless.
"In this context the Committee may wish to note that, in 2002, the
Government recognised the Cornish language under Part II of the Charter for
Regional or Minority Languages."
Then why does the government not facilitate the recognition of the culture
and people with which the Cornish language is very closely associated, by
treating them in the same manner as it did in the case of the three Irish
Travellers who were refused entry to a pub and who were unable, as a
consequence, to purchase an alcoholic drink? In this case, access to the
courts was swiftly facilitated under the Race Relations Act, leading to the
recognition of Irish Travellers as an ethnic group under the Act, despite
Irish Travellers being unable to satisfy Lord Fraser's earlier judgement on
ethnicity as set out in the 1983 case of Mandla Dowell v. Lee. There can be
no doubt that, in this instance, the courts were being used politically to
remedy a situation arising from the difference in the status of this group
in England and its status in Northern Ireland. In the process, the standard
criteria for the determination of ethnicity, set as a precedent by Lord
Fraser, were dispensed with by the judge.
"The Advisory Committee may also wish to note that, in June 2005, the
Government announced the provision of £240,000 over three years to support
implementation of the adopted Cornish Language Strategy. This funding is
part of a package totalling £600,000, including EU Objective 1 funding
approved in January 2006, and support from Cornwall County Council. "
In analogous areas in which minority languages are recognised, considerably
larger sums of money have been supplied from central government sources to
support these languages. Ulster Scots is, perhaps, the best example. In this
case, millions of pounds of government money has been allocated over the
same period in which Cornish has received comparatively little. Moreover,
Cornwall being the recipient of European Objective One funds, is now
expected to provide language support from that award, with the consequence
that less money will now be available for vitally needed affordable housing
projects in Cornwall. Ulster does not receive Objective One funds and Ulster
Scots receives substantial funding from central sources. This is another
example of difference of treatment between analogous groups.
Whereas there is a demonstrable need for affordable housing for local people
generally throughout Cornwall, there are many proposed developments, made
under the guise of urban regeneration and funded by European Objective One
money, that do not include adequate provision for this need. It has become
clear that the current massive move to regenerate Cornwall's economy is
driven almost entirely by the construction of new houses, the vast majority
of which will be occupied as either holiday or second homes. It has been
suggested by local authorities that much of the remainder of the properties
not occupied by second home owners or tourists, will be available for people
from outside the Duchy who have the expertise to drive the regeneration in
any new employment opportunities that are created in the process.
Such a policy, bearing in mind that thousands of new homes are currently
proposed or are already being constructed in Cornwall, an area in which
there is a relatively low demand from local people, except, perhaps, in the
low cost sector, fuels the rapidly increasing levels of inward migration
from other areas of the UK, especially from England. Due to the massively
high costs of property in Cornwall and with average incomes way below the
national average, the Cornish are effectively being denied access to the
property market. Were the Cornish to be included under the Framework
Convention, this policy would, undoubtedly, be a breach of Article 16.
"The Advisory Committee may wish to note that the ethnic identity questions
to be included in the 2011 census will be subject to review and consultation
by each of the UK administrations. This will help to ensure that the
questions are acceptable and relevant when 2011 is reached."
The Advisory Committee may also wish to note that, because a specific
Cornish tick-box was not included in the 2001 Census, Cornish subjects were
forced to choose between ticking a box that reflected their citizenship and
their racial (as opposed to their ethnic) group, i.e. "White British", and
one that did not immediately reflect their ethnicity, i.e. "Other". They
were entitled to tick just one box. Statistics obtained from such a flawed
analysis did not reflect the true position on the ground as subjects were
grossly confused between their nationality, citizenship, ethnicity and
racial group. The 2011 census, as far as I am aware, does not intend to
address this point. Bearing in mind the government's attachment of great
importance to the amount of work it is doing in support of the Cornish
language, one might be excused for thinking that, now the Cornish language
is a recognised UK language under the Council of Europe's Charter for
Regional or Minority Languages, the government would be keen to gauge
accurate numbers of Cornish speakers, in order to assess its own performance
in regard to the Charter and service provision, by including a specific
Cornish language tick-box in the 2001 census. This has already been ruled
out by the Office for National Statistics, despite the two main users of
Cornish Census information, the Government Office for the South West and the
Cornwall County Council, requesting specific information on this subject.
Such an approach to its census categorisations, all of which are legally
undefined, together with a flippant approach to its indigenous minorities,
as opposed to its new minorities, together with its 'laissez faire' approach
to its international responsibilities to the Council of Europe, is not at
all apparent in the draft UK Compliance report.
"Bearing in mind the statistical purpose of the census, the value of
comparability with previous data and the availability of space on the form
it may not be practical nor necessary to have all identities pre-listed. "
The availability of space for 'Cornish' on a census form, or lack of it, is
a cop-out and, more importantly it is an excuse for institutional racial
"The review may involve research (to improve understanding of a range of
related issues, such as language, religion and discrimination), consultation
The fact remains that, for the foreseeable future, at least, the Cornish
will remain unprotected and statistically invisible because of a combination
of government incompetence and government deference towards the Duchy of
Cornwall, so-called 'private estate' which derives its income on feudal,
anti-Cornish discriminatory legislation, a topic that is regarded officially
as being so 'sensitive' and beyond criticism that it can neither be raised
in open court nor can questions be raised in the House of Commons by elected
members of parliament because of a legal injunction in both houses of
parliament on questions that, 'cast reflections on the royal family'.
(Letter to Andrew George, M.P. 1997)
Whilst these official feudal structures and deference to the inequitable,
discriminatory constitutional rights of an individual who, by accident of
birth, derives the whole of his not inconsiderable income independently of
the majority tax-payer, from assets held or derived from profits generated
over the centuries from the Cornish mining industry by feudal means, are
maintained and unchallengeable, the Cornish will continue to bear the
unacceptable burdens of institutional racism, notwithstanding that these
structures represent a serious violation of Article 14 of the European
Convention on Human Rights.
See above for evidence of a complete lack of "equality before the law" in
"19. The United Kingdom has strong and effective laws against
discrimination, which protect all individuals against racial discrimination,
not just members of minority groups. The UK's anti-discrimination laws have
been strengthened since the Government's 1st Report to the Advisory
Committee, and are being strengthened further."
In practice, if by accident of birth or ethnicity, one happens to be
Cornish, the laws are ineffective and the avenues for redress blocked. All
demands for the Cornish to be given access to the courts and to be treated
fairly, in the same manner as other analogous ethnic groups, such as Irish
Travellers, have been thwarted by either the Commission for Racial Equality,
who refuse to support such actions, or by the courts themselves, as was
recently the case in Truro on 2 January 2007.
"21. Legislation on racial discrimination in Great Britain and Northern
Ireland was further strengthened in July 2003 with the transposition of the
EU Race Directive into domestic law. The principle changes were a change to
the definition of indirect discrimination, the introduction of a definition
of harassment, a shift in the burden of proof and the introduction of "a
genuine and determining occupational requirement" as the only exception to
the employment provisions of the legislation. "
As was explained earlier, the EU Race Directive has only been partially
implemented into the domestic legal system. The instrument of transposition,
Statutory Instrument 1626, omits the Directive requirement for "equality
before the law". The court in Truro, on Tuesday 2nd January 2007, refused to
take note of this Directive and failed to provide a remedy for the
government's failure to provide this Enforceable Community Right. Other EU
Directives with specific provision for minorities, particularly significant
to the Cornish National Minority, are similarly disregarded. In the massive
regeneration process that is currently underway in Cornwall, public
authorities, under the supervision of the Department for Communities and
Local Government (the same department that is producing this draft report to
the Council of Europe) regularly and routinely flout EU Directives relating
to Environmental Impact Assessment and Race Equality Impact Assessment.
Unlike the Crown in the rest of the UK, the Duchy of Cornwall, in Cornwall
only, continues to be exempt from the planning regulations. Moreover, the
Duchy of Cornwall acts as an advisor to the Objection One Programme and is
also a recipient of Objective One funds. An arms length charitable company
of the Duchy of Cornwall also acts as advisor to the Camborne-Pool-Redruth
Urban Regeneration Company, established under the remit of the government
departments known as English Partnerships and the Government Office South
West. The Duchy of Cornwall currently has plans to construct over 1,000 new
homes in the Newquay area, for which planning permission is not required
because of the planning exemption and whatever the Duke does it must be
considered to be lawful. Large areas of what were formerly territorial
assets of the Duchy of Cornwall now lie under thousands of tons of concrete,
the profits arising being the 'private' income of the Duke of Cornwall,
rather than to Cornwall itself.
Such behaviour is a manifestation of the official "harassment" that
Cornu-British subjects receive at the hands of the UK government that
amounts to direct and indirect discrimination..
"22. It is important to note that discrimination law in the UK protects all
individuals from racial discrimination, not just people who consider
themselves as members of an ethnic minority."
Incorrect. Another lie. Discrimination law in the UK does not offer any
protection, if one happens to be Cornish.
Of course, if the Duchy of Cornwall is the discriminator, current domestic
legislation is not capable of stopping the practice, in fact, it positively
encourages it. Public authorities, including the courts, must pay due regard
to the Duchy of Cornwall Management Acts 1863 - 1982 which make a provision
for the maximisation of Duchy profits. It is inconceivable that deferential
government departments, consumed with the demands and burdens of 'royal
protocol', would not be aware of this important legal duty. However, if that
weren't enough, and things go wrong for him, the Duke of Cornwall can
exercise: "the right to control or otherwise intervene in proceedings
affecting its (his) rights, property or profits". (Crown Proceedings Act
1947, Section 40, 2g ).
The government has yet to explain, in its draft UK Compliance Report, how
this aspect of the current law fits in with the Race Relations Act "formula"
in so far as the Cornish National Minority is concerned and whether it could
be, as Professor Klug intimated, consistent with "Article 14 in conjunction
with Articles 5/8 of the ECHR" if that really does provide for equality
before the law in English law. Moreover, this legislation has not been
tested for compatibility with the Human Rights Act (1998) or the ECHR
Section 40, 2g of the Crown Proceedings Act does, perhaps, offer a
tantalising clue as to why repeated attempts by members of the Cornish
community to discuss these matters with government officials, and to bring
such issues to court, routinely fail.
A further clue to the cause of these Cornish difficulties would appear to
lie in the oaths of allegiance to the Crown made by members of the
legislature, the executive and the judiciary.
The oath taken by a judge is that, "I [NAME], do swear that I will well and
truly serve our Sovereign Lady Queen Elizabeth in the office of [OFFICE
SPECIFIED], and I will do right to all manner of people after the laws and
usages of this realm, without fear or favour, affection or ill will."
The oath taken by ministers and M.P.s is that ".I will be faithful and bear
true allegiance to HM Queen Elizabeth, her heirs and successors, according
Clearly, there is a conflict with these undertakings and justice in cases
that question the very essence of the state and legal system and their
relationship to the Monarch and her heir, the Duke of Cornwall. It is not
surprising, therefore, that successive Ministers of the Crown and judges
have taken the course they have regularly taken in regard to the Cornish
National Minority whose territory has provided Dukes of Cornwall with vast
"private" incomes for the past six hundred years, incomes that are based on
discriminatory, feudal constitutional legislation. In fact, it should be
said that such legislation constitutes a breach of Article 17 of the
European Convention on Human Rights as they are laws that appear to be
deliberately designed to deny Cornish subjects access to their convention
Should the government persist in its policy towards the Cornish and maintain
its current, flawed Race Relations Act "formula" in regard to its
implementation of the Framework Convention for the Protection of National
Minorities, then members of the Cornish National Minority will have no
option but to seek judicial review of the administrative procedures employed
by the government to reach its decision in regard to the Cornish National
Minority, in the High Court. However, serious doubts arise about the
independence of the judicial review process in circumstances of this nature,
bearing in mind the failure of the government to provide UK subjects with
a) a written constitution to limit the power of public authorities,
including the Duchy of Cornwall
b) equality before the law,
c) Article 13 of the European Convention on Human Rights which is missing
from the Human Rights Act 1998,
together with the implications of the
i) judicial oath of allegiance,
ii) the Crown Proceedings Act, 1947, Section 40, 2g
iii) the Duchy of Cornwall Management Acts 1863 - 1982 mentioned earlier.
"Human Rights Commissions
40. The Equality Act 2006 also establishes a new Commission for Equality and
Human Rights in Great Britain. The Commission will have as part of its
the promotion of understanding of the importance of human rights;
the encouragement of good practice in relation to human rights;
the promotion of awareness, understanding and protection of human rights;
the encouragement of public authorities to comply with section of the Human
Rights Act 1998 (the prohibition of action incompatible with ECHR rights)."
As long as the promotion of equality before the law is NOT included.
As long as 'good practice' does not include the provision of 'equality
before the law'.
Very little is currently done by government to promote UK public awareness
either of human rights or of the work and function of the Council of Europe.
It should be born in mind that the current Duke of Cornwall has, on a number
of occasions publicly questioned the importance that government currently
pays to human rights. Out of deference to this individual, who is the
recipient of a plethora of rights, profits, privileges and exemptions under
the law on account of an accident of birth, public authorities usually
acquiesce to this person's point of view.
That notwithstanding, since Article 13 of the ECHR has been omitted from the
Human Rights Act 1998, public authorities are not constrained by thoughts of
having to provide a remedy in the event that violations have been committed
by those acting in an official capacity.
In an e-mail to me, dated 6 July 2006, the government's own special advisor
on the Human Rights Act, Professor Francesca Klug, Professorial Research
Fellow, the London School of Economics, stated that Article 13 ECHR was "not
incorporated because the government's view (with which I did not agree) the
HRA itself is the domestic remedy it guarantees."
"Promotion of equality
England and Wales
48. The March 2003 Strategy Unit report on Ethnic Minorities in the Labour
Market examined and analysed the extent, nature and causes of ethnic
minority disadvantage in the labour market. The Government's strategy to
raise the ethnic minority employment rate addresses the three main factors
in the ethnic minority employment disadvantage."
The UK draft Compliance report is riddled with many similar meaningless
statements. It should be born in mind that the government's earlier
statement that, "there is no comprehensive list of 'recognised' groups and,
in the UK, rights are individual and universal", casts doubt upon the
government's ability to properly comply with its FCPNM duties since, without
a definitive list of UK minorities, how on Earth is it possible for it to
treat the various ethnic groups that typify the diversity of the UK, fairly?
As a result, government policy, far from being even-handed, is almost always
centred upon the rights of those it has classified, for political reasons,
as belonging to the legally unrecognised (i.e. without having passed through
the Race Relations Act "formula") and somewhat nebulous "black and minority
ethnic", new minority group, together with the two non-indigenous groups,
that have successfully solved the Race Relations Act "formula", the Gypsies
and Irish Travellers.
In practice, it would appear that the courts and the government's Race
Relations Act "formula", have been dispensed with in favour of a system
which is more politically correct and based upon arbitrary, un-defined,
legally unrecognised, political criteria, determined by the Executive. This
system, it can be argued, promotes racial equality between the various
racial groups but does little to promote equality of culture, especially if
one happens to be a member of a "white" minority group. In this way,
although the government is able to assert that it does a great deal for its
new minorities, in reality the indigenous "white" minorities, such as the
Welsh, Scottish, Manx, Cornish and Ulster Scots remain largely hidden and
"63. A number of other projects have been taken forward in Scotland
an analysis of ethnicity data in the 2001 Census. "
The Council of Europe's Advisory Committee might, at this juncture, be
unaware that the ethnic categorisation employed by the UK state authorities
is not based upon legally recognised definitions and, as a consequence, one
finds such bizarre "ethnic" classifications as, "white", "black", "white
British", "black", "black Caribbean", "Indian", "Pakistani", "Chinese",
"Bangladeshi", "minority ethnic" and "black minority ethnic" all of which
are based upon racial characteristics and/or geographical origin.
The Cornish have been specifically excluded from the FCPNM on the grounds
that they have so far been unsuccessful in obtaining Race Relations Act
caselaw precedent in the courts. In complete contrast, the "ethnic" or
racial groups to which I referred above have NOT been subject to a similar
requirement to submit their credentials for judicial scrutiny. Decisions
relating to ethnicity have not been made in the courts, as has been
suggested in the draft report, but are based entirely on arbitrary and
politically correct motivated criteria, dreamed-up by the Executive.
At this juncture, the Advisory Committee might care to note that the only
groups to have successfully won a rra case so far, thereby satisfying the
government's Race Relations Act "formula", are the "Sikhs", "Irish
Travellers", "Gypsies", "Welsh", "Scottish", "English" and "Jews". In the
draft report to the Council of Europe by far and away the groups with the
most references are "black" and/ "minority ethnic" neither of which has
satisfied a court on their ethnic/racial/national credentials. Moreover,
only two groups that have satisfied the Race Relations Act "formula",
Gypsies and Irish Travellers receive significant attention in the draft
report, whilst the other recognised groups receive little if any. It should
be noted that, in a UK context, Irish Travellers and Gypsies, as in other
parts of Europe, do have severe social problems and in the largely
uninformed British public's eye, they are a political hot potato.
The draft report makes it perfectly clear that these legally undefined
groups which have not been subject to the Race Relations Act "formula" are
in receipt of government (Strategic, Community and Project - parag. 71)
grants that must be, because they are mentioned in the draft report, awarded
in a context of the Framework Convention for the Protection of National
Minorities. Furthermore, it seems also that 'asylum seekers' and 'refugees'
are being afforded protection under the FCPNM (Parag. 76) without having to
first satisfy a court.
93. The Government recognises that an important barrier to economic
fulfilment and employment is the low level of basic skills in literacy and
numeracy demonstrated by many adults (currently estimated at 1 in 5 of the
adult population). The Adult Basic Skills Strategy will aim to improve the
literacy, numeracy and/or language skills of at least 750,000 adults by
2004. Scotland's Adult Literacy Strategy aims to help 150,000 people improve
their literacy and numeracy skills by 2006. The Department will be targeting
key priority groups where the biggest and most rapid impact can be made.
These include jobseekers, benefit claimants, prisoners, workers in
low-skilled jobs, people at risk of exclusion and people who live in
This has no relevance to the implementation of the Framework Convention in
96. The Department of Health is committed to transforming the NHS so that it
produces faster, fairer services with equity of access for all. The creation
of more equal access for the Gypsy and Traveller community is an integral
and vital aspect of the Department's programme of investment and reform.
97. There is no place in the NHS for discrimination, harassment and
stereotyped or prejudiced treatment on grounds of race or ethnicity, age,
gender, sexual orientation, disability, religion, class, nationality, income
or employment status. Nearly 8% of staff employed in the NHS are from black
and minority ethnic groups, making the NHS the largest employer of minority
ethnic staff in the country. Black and minority ethnic staff make an
immensely important contribution to ensuring the Health Service provides
high quality healthcare and that services are accessible, equitable, and
capable of responding sensitively to the needs of the diverse communities
The Advisory Committee should be aware that the NHS public authority does
include provision for those who wish to self-identify as "Cornish" on ethnic
monitoring forms. However, it has become widely accepted that, once the
statistics have been collated centrally, those forms on which a Cornish
ethnic background has been asserted are ignored and the information altered
to one of the other non-Race Relations Act "formula" categories.
This is a very serious practice since citizens should be able to self
identify and have the expectation that the state will not interfere in the
process by recording this information incorrectly. Similar practices occur
in the Pupils level Annual Schools Census (PLASC) surveys and those pupils
that have asserted a Cornish ethnic background on the official form for the
purpose are entered as "white" or "white British", by school enumerators on
the computer whose PLASC software cannot accept a 'Cornish' entry.
Since there are many serious social problems in Cornwall occasioned by the
generally low levels of income in the Cornish sector of the community,
depressive illness and illnesses linked to poor dietary intake tend to have
higher prevalence in Cornwall than they do in the more affluent parts of the
UK. Moreover, there is a specific medical condition known as Malignant
Hyperpyrexia, with life-threatening consequences, that occurs in significant
pockets in Celtic communities, and more instances of this condition occur in
Cornwall than anywhere else. As a result of the failure to recognise the
Cornish centrally in statistical analyses, a distorted picture in the
epidemiology of these conditions is much more likely. The practice of
ignoring or interfering with such important statistical data might very well
have disastrous implications for some individuals.
Gypsies/Travellers and Race Equality
116. The Scottish Executive's Equality Strategy and Race Equality Scheme
both identify Gypsies/Travellers as a minority group vulnerable to prejudice
and discrimination. Race relations legislation is reserved to UK Government.
Case law in England has ruled that Roma Gypsies and Irish Travellers are
protected by the 1976 Act. No Scottish test case has ever established that
Scottish Gypsies/Travellers are a racial or ethnic group for the purposes of
the Act; the Scottish Executive nevertheless treats them as such. The
Executive has acknowledged that all Gypsy/Traveller communities in Scotland
have specific needs and require the same protection from potential
discrimination and abuse as do any of Scotland's minority ethnic
communities. However it is outwith the Executive's remit to recognise
Gypsies/Travellers as ethnic groups within equal opportunities legislation."
Here we have the ludicrous example of how the UK government applies its Race
Relations Act "formula" - whereas the Cornish are required to pass through
the formal hoops of a Race Relations Act court case, there is clearly no
such requirement for "Scottish Gypsies" to do the same, prior to being
included within the terms of the Framework Convention. To treat analogous
groups differently is an offence under the Race Relations Act and yet that
is precisely what the UK government is condoning and encouraging in regard
to the Cornish National Minority.
1 The Parties undertake to promote the conditions necessary for persons
belonging to national minorities to maintain and develop their culture, and
to preserve the essential elements of their identity, namely their religion,
language, traditions and cultural heritage.
2 Without prejudice to measures taken in pursuance of their general
integration policy, the Parties shall refrain from policies or practices
aimed at assimilation of persons belonging to national minorities against
their will and shall protect these persons from any action aimed at such
The government has a tradition of ignoring demands for Cornish recognition
and, apart from knee-jerk reactions when, for example, it has been
threatened with legal action, government policies towards the Cornish, in
deference to the Duke of Cornwall and to protect his income, have attempted
to marginalise Cornish culture. At the same time, it has presented
bureaucratic barriers to those who wish to assert their Cornish identity and
have it recorded officially in an exercise that can only be described as
forced assimilation. (See observations on Census practices.)
It is fair to repeat at this juncture that the government's policies towards
the Cornish and the laws supporting the Duchy of Cornwall are deliberately
interfering with their rights under the ECHR - a breach of Article 17.
Promoting the value of diversity
149. In addition to exercising its statutory powers, the Commission for
Racial Equality (CRE), also works to promote equality by seeking to educate
and inform the public, to influence attitudes and so encourage good race
It should be noted that the CRE and other government departments routinely
treat members of what is described as the "White" ethnic group as being
homogeneous in nature, in which there is no ethnic diversity. In complete
contrast, broad ethnic diversity is accepted in the new minority groups, as
the 2001 Census examples clearly demonstrate. This distinction leads to
differences in treatment between the new minorities and the indigenous
national UK minorities..
150. To this end, the CRE runs public education campaigns to raise awareness
of race issues, and to encourage others to play their part in creating a
just society. The CRE has collaborated in a number of high profile campaigns
to promote racial tolerance and cultural diversity. Examples include:
· the "Would I.?" television advertisement. Leading celebrities donated
their time and images for the CRE to produce a unique advert celebrating
diversity. The advertisements challenged negative stereotypes in a thought
provoking way by "changing" the ethnicity of leading sports persons,
musicians, and media personalities.
· the annual "Race in the Media Awards" established to encourage informed
coverage of race relations across all media in the UK.
· the "Sporting Equals" three-year programme developed with the English
Sports Council to promote racial equality in sport."
This statement is made for politically correct reasons - the indigenous
national minorities of the UK are ignored in these respects since the
government's emphasis is on race and NOT on ethnicity.
"ARTICLES 7 AND 8
The Parties shall ensure respect for the right of every person belonging to
a national minority to freedom of peaceful assembly, freedom of association,
freedom of expression, and freedom of thought, conscience and religion.
The Parties undertake to recognise that every person belonging to a national
minority has the right to manifest his or her religion or belief and to
establish religious institutions, organisations and associations.
223. The rights to freedom of expression, association, peaceful assembly,
and thought, conscience and religion are all guaranteed under the Human
Rights Act. "
Of course,, despite the government's assertion that. ""the term "national
minority" has no legal meaning in the UK ", Article 14 of the Human Rights
Act 1998 states,
"the enjoyment of the rights and freedoms set forth in this Convention shall
be secured without discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status."
The statement, 223, is therefore economic with the truth.
1 The Parties undertake to recognise that every person belonging to a
national minority has the right to use freely and without interference his
or her minority language, in private and in public, orally and in writing.
2 In areas inhabited by persons belonging to national minorities
traditionally or in substantial numbers, if those persons so request and
where such a request corresponds to a real need, the Parties shall endeavour
to ensure, as far as possible, the conditions which would make it possible
to use the minority language in relations between those persons and the
3 The Parties undertake to guarantee the right of every person belonging to
a national minority to be informed promptly, in a language which he or she
understands, of the reasons for his or her arrest, and of the nature and
cause of any accusation against him or her, and to defend himself or herself
in this language, if necessary with the free assistance of an interpreter."
The Draft report fails to give information on the Cornish language. There
is, at this time, no air time devoted to the language on the state-run BBC
and ITV television services. BBC Radio Cornwall provides a 3 three minute
news broadcast once a week on Sunday in the Cornish language. One regional
newspaper provides a limited column partially in Cornish, once per week.
Local newspapers, all of which are owned by big news corporations, often
report on the Cornish language in derogatory terms.
The remainder of the draft UK report, a not inconsiderable proportion of the
total, is devoted to religious and so-called faith groups under the
Framework Convention for the Protection of National Minorities. These groups
are not within the remit of the Convention and they have not, with the
exception of 'Jews' successfully solved the government's Race Relations Act
Finally, there can be no doubt that the government has breached Article 25
of the FCPNM by failing to provide the Council of Europe with its UK FCPNM
Compliance Report in the proscribed period. This report is now almost three
years late, three years in which the Cornish National Minority have
continued to have been discriminated against on account of feudal
legislation that is designed to protect the income of the heir to the
throne, Prince Charles, Prince of Wales, Duke of Cornwall.
The almost three year overdue UK draft Compliance Report gives the
superficial impression that the state has been highly active in promoting
the interests of its minorities. Closer analysis reveals that it is riddled
with inaccuracies, half-truths and in some instances, downright lies. Even
superficial inspection will reveal that the report is highly detailed in
regard to the so-called 'new minorities', i.e. what the government refers to
as 'black' or 'black minority ethnic' groups, none of which have satisfied a
court under the government's Race Relations Act "formula" and none of which
fall within the strict scope of the Framework Convention for the Protection
of National Minorities. The inclusion of such groups within the report,
although an admirable concept, has occurred simply because of the fact that,
historically the UK has had a bad record in dealing with its racial
minorities, a fact highlighted by the Stephen Lawrence Inquiry which has
fostered an atmosphere of political correctness in which the UK's indigenous
minorities have been vary largely neglected.
Despite the fact that the government creates an impression that it is
bending over backwards to help its minorities, it is clear that it there are
only two minority groups that have satisfied a court under the Race
Relations Act "formula" that receive detailed attention under the
Convention. These are the 'Gypsies' and 'Irish Travellers'. Whereas these
two groups are mentioned as being the recipients of much government support
and action, the indigenous groups that have similarly achieved success under
the Race Relations Act "formula" i.e. the 'Welsh' and 'Scottish', receive
detailed attention only in regard to provision of their languages, most of
the detail of which is a regurgitation of the government's position in
regard to the Charter for Regional or Minority Languages.
The Race Relations Act "formula" clearly does not work as it is not being
properly and fairly applied by the courts (as in the case of the Cornish)
and the government is arbitrarily giving Framework Convention benefits to
other groups without the necessity for them to first obtain successful Race
Relations Act case history..
The lack of a constitutional or statutory guarantee of the fundamentally
important European principle of 'equality before the law', contrary to the
European Union Directive 2000/43/EC, affects all UK minorities, especially
the Cornish National Minority that is subject to feudal influences.
For this reason, the Cornish National Minority is a special case. It is the
only European national minority that is subject to feudal, constitutional,
discriminatory laws that relate to the rights of the heir to the UK throne,
his allegedly 'private' estate and his 'private' income. The Duke of
Cornwall obtains his income from legislation that directly and indirectly
discriminates against those people who reside to the west of the River Tamar
alone. There are legal injunctions in both houses of parliament that prevent
the asking of Duchy related questions and the legislature, the executive and
the judiciary are subject to oaths of allegiance to the Crown in which the
Duke is part of Her Majesty in her private capacity. Together with the
provision in law that the Duke has "the right to control or otherwise
intervene in proceedings affecting its (his) rights, property or profits".
(Crown Proceedings Act 1947, Section 40, 2g ), the Cornish are likely to
languish in the cultural doldrums with no prospect at all of a just outcome
in the domestic courts.
The government's behaviour is clearly irrational in nature, unreasonable in
a practical sense and blatantly unfair in excluding a group who is unable to
establish the full extent of the unequal treatment that arises from
Government's de facto, arbitrary selection method. It is, therefore,
contrary to the provisions of administrative law.
In the year 2007, what justification can there be for such official
attitudes, as have been displayed to the Cornish, by the Executive,
Judiciary and Legislature who seem to take the view that deference and
acquiescence towards one privileged individual is more important than their
obligations towards international institutions of which this country is a
Dr Nigel Hicks
The Federal Union of European Nationalities