Court application 2nd Jan 07

Reasons for Application to initiate proceedings submitted to the Truro County Court on 2nd October 2006. Hearing before District Judge Mitchell 2nd January 2007.

Recent government reorganisation has led to the closure of the Office of the Deputy Prime Minister (ODPM) and the creation of the Department for Communities and Local Government (DCLG) with responsibilities extending beyond those of the ODPM and the regional and local public bodies the original subject of this Application. Consequently, with the approval of the Court, it is proposed to limit the present Application to the Department for Communities and Local Government (DCLG) and H.M. Treasury.

The application by the Cornish Stannary Parliament for the commencement of proceedings of 2nd October 2006, in respect of alleged bias and racial discrimination on the part of specific public authorities against the Applicants as members of the Cornish national minority, relies on: “The right to equality before the law as a universal right” as provided in the European Community Race Directive, (Directive 2000/43/EC), currently not available in English law.

It is contended that the Truro Crown Court has the right to exercise its European Community Treaty obligation of making equality before the law available to the British public since this international principle qualifies for acceptance into United Kingdom law under the provision of “without further enactment to be given legal effect” at section 2 (2) of the European Communities Act 1972.

The House of Lords Judgement in Berkeley v. Secretary of State for the Environment ([2001] 2 AC 603 HL, para.7), sets a precedent by declaring: “Individuals may rely upon the Directive before a Court of a Member State to obtain from the national authorities the setting aside of the national measures incompatible with those provisions”. The Berkeley judgement confirms the ruling of the European Court of Justice in the Simmenthal Case No. 106/77 “setting aside national legislation”, and Cases Nos. C290/03 and 508/03 have exposed the failure of public authorities to correctly transpose E.U. Directives into U.K. law.
(Department for Communities and Local Government, (DCLG), 30th June 2006).

It is contended that the “Burden of Proof” (Directive 2000/43/EC Article 8) falls upon those persons acting in an official capacity to refute allegations of bias and discrimination against the Applicants and others of Cornish origins. The evidence suggests a failure to comply with E.U. Directives in respect of :- equality before the law; Environmental Impact Assessments for planning projects (Directives; 2003/4/EC; 85/337/EEC amended by 97/11/EC and 2001/42/EC) as well as Race Equality Impact Assessments, (Directive 2000/43/EC) within “The Code of Practice on Racial Equality in Housing” issued by the Department for Communities and Local Government. (DCLG). Equality and Assessments are intended to cover: “policies and plans for housing, (which embraces second homes and affordable homes) regeneration, and their impact upon social advantage, conditions of human life, cultural sites, (which embraces Cornish Mining World Heritage Sites) infrastructure and provide public access to the information obtained in advance of decisions”. (Directives 2003/4/EC and 2003/35/EC).

Suggestions made to the Applicants regarding “seeking legal advice”, are considered to be inappropriate under circumstances in which the Duke of Cornwall exercises: “the right to control or otherwise intervene in proceedings affecting its (his) rights, property or profits”. (Crown Proceedings Act 1947, Section 40, 2g ). The legitimate suspicion is aroused that the Duke’s inalienable “rights” are likely, in adversarial cases, to prove intimidating for legal advisors and to compromise the “independence and impartiality” of the national Courts.

The “rights” of the Duke of Cornwall, in respect of his Duchy of Cornwall Estate in Cornwall, extend to the Stannaries by virtue of the grant of the Stannaries to the Duke by three Duchy of Cornwall Charters of 1337/8, the first, published by Her Majesty’s Stationery Office in 1979 as Statutes in Force, Constitutional law. The evidence suggests that the three Charters were intended to avoid imposing a general taxation on the English public to provide an income for the heir to the throne. By the second Charter, one day after the first, Cornwall was placed under the control of the Duke with the authority of: “the King’s writ and summons of exchequer”. Evidentially, the reason for an additional Duchy Charter was to conceal the state’s absolute power of selectivity in respect of land and property. Such acts of feudal racial bias remain applicable to Cornwall through the Land Registration Act 2002, which reveals: “the Crown is the only absolute owner of land”. (Explanatory notes, para.2) and, at section 84 note 135, “Disapplication of requirements re Duchy land “. H.M. Treasury ignored both the Act and Charters two and three when it stated: “The Duchy was set up as a private estate by Charter in 1337 by Edward III to provide an income for his son and future Dukes from its assets. It remains private because it has never been taken into public ownership by purchase, under statute or otherwise”. (Letter dated 26th July 2006).

There appears to be no official guidance as to whether the official oath of allegiance to the Crown extends to Her Majesty in Her private capacity and whether, by including the heir to the throne as part of H.M. in Her private capacity, (Crown Proceedings Act 1947, section 38 (3)), the oath also includes the alleged Duchy of Cornwall “private estate”. The “absolute owner of land” has claimed the land, minerals and institutions of the Stannaries of Cornwall as “private”, from which arbitrary provision, English people assume the Cornish are English.

The suspicion of incomplete official statements concerning Cornwall and the Cornish, gains credibility when it can be demonstrated that there are, on behalf of the Duchy, deep rooted institutionalised “administrative provisions” (Directive 2000/43/EC Article 14) supporting:- “immunity from prosecution” under Planning laws (DCLG, Circular 02/2006, para.35): “the right to control or intervene in proceeding etc., provided in the Crown Proceedings Act 1947; the exemption of the Duke and Duchy of Cornwall from the Freedom of Information Act 2000, section 37, and the unique rights of debt administration for the Duchy concerning bona vacantia in Cornwall under section 120 of the Supreme Court Act 1981.

The Draft Second Report on the Council of Europe’s Framework Convention for the Protection of National Minorities states: “The Government is very much aware of the strength of feeling about Cornwall’s separate identity and distinctiveness”. (Department for Communities and Local Government, (DCLG), 5th December 2006). Nevertheless, the Department has yet again proposed to exclude the indigenous Cornish from the Human Rights of the Framework Convention. It is possible that the Department (DCLG), although aware of the position of the Cornish, is powerless to apply the principles of cultural diversity and equality before the law to the extent of recognising the Cornish as a national minority.

In recognising the Cornish language, (Second Draft Report, para.17), the Department (DCLG) has failed to observe the Cornish language place names and surnames of Cornwall which offer substantive evidence of the existence of a minority Celtic people in Britain. Without an intelligible set of reasons, government agencies are proposing to deprive the Applicants, and others of Cornish origins, of their indigenous Cornish cultural heritage as well as their “enforceable Community rights”. (European Communities Act 1972, sect.2 (2)).
The Anglo-Saxon principle of the rule of law conceals instances of ‘no law no violation’ as with the exclusion of Article 13, ECHR from the Human Rights Act and the absence of a statutory guarantee of equality before the law in English law. These omissions make it possible to create laws which conform to the rule of law but are biased and discriminatory. The unchecked Anglo-Saxon rule of law arouses the suspicion of an administrative provision capable of being understood as sufficient authorisation “for persons acting in an official capacity” (Article 13, ECHR) to freely engage in direct and indirect bias and racial discrimination (Directive 2000/43/EC, Article 2 (4) & 14) against persons known to be in: “association with a (Cornish) national minority”. (Article 14, ECHR).

Such rule of law opportunities for bias and discrimination are exposed in any comparison between the statutes applicable to the ‘public spirited’ Crown Estate governed by the Crown Estate Act 1961 and those applicable to the analogous organisation in Cornwall the ‘private’ Duchy of Cornwall Estate governed by the Duchy of Cornwall Management Act 1863-1982. The Crown Estate provides affordable housing and has no holdings in Cornwall (Letter 7th January 2005) and therefore, no investments, whereas, the ‘private’ Duchy of Cornwall Estate has state controlled holdings in Cornwall and is authorised by H.M. Treasury to make investments outside Cornwall. The suspicion is aroused that acting outside the constraints of equality before the law, the constitutional provisions of: “the royal prerogative”, “the right to control proceedings” and “immunity from prosecution” are an agreed source of power for officials of departments of state and the Duchy of Cornwall Estate to promote the English national majority as racially superior. The abuse of power is evident in policies intended to eliminate or absorb the Cornish minority identity by “laws, regulations and administrative provisions” which claim pre-England Cornish ‘cultural sites’ as English as in the case of English Heritage. (in violation of Directive 2000/43, Articles 2; 3; & 14 and Directive 2003/4/EC, Article 2f, it is contended) (some sites are included in Duchy Charters).

It is, therefore, contended that, at least, the offending section 40 (2g) of the Crown Proceedings Act 1947 permitting the Duke of Cornwall to exercise: “the right to control or otherwise intervene in proceedings”, etc., is: “abolished” as a “law or provision contrary to the principle of equal treatment” as required under Article 14 of Directive 2000/43/EC.
The Court can rely upon the House of Lords judgement in the Berkeley case of 6th July 2000, for: “the setting aside of incompatible national measures” and the European Court of Justice ruling in the Simmenthal case No.106/77 of 9th March 1978 imposing on national Courts the obligation of: “refusing to apply any conflicting provision of national legislation. In its judgement of 5th March 1996, in the Factortame Case C-46/93 and C-48/93, the European Court of Justice, in an assertion that no “immunities” are possible in European Community law, ruled that a Member State is responsible for Treaty violations: “irrespective of whether the breach was attributable to the legislature, the judiciary or the executive”, para.34).

The Department (DCLG) apparently cannot give reasons which would comply with a duty to apply equality before the law. Article 14 of the European Convention of Human Rights (ECHR), which includes the prohibition of discrimination on the grounds of: “association with a national minority”, is, by its inclusion in the Human Rights Act 1998, given validity as a legal concept despite the contention of the Home Office (Letter dated 22nd March 2004) that: “national minority is not a legally recognised term”. Consequently, the Truro Crown Court is respectfully requested to consider recognising the Cornish as a people of Celtic ethnic origins and a national minority under Article 14 ECHR on the grounds that they are living within Cornwall, the “area of Celtic culture” (National Geographic Magazine, March 2006) with a Celtic language and civilised pre-Christian traditions, (The Voyage of Pytheas the Greek, Professor Barry Cuncliffe, Oxford University, Walker & Co., New York, 2002), culminating in, the award by UNESCO of the Cornish Mining World Heritage status.

..for and on behalf of, The Cornish Stannary Parliament.

A detached observer may reasonably conclude that the royal fortune obtained by successive Dukes from the Cornish Stannary mining system, initiated in place of imposing a general taxation on the English public for the upkeep of the heir to the throne over a period of six centuries, might warrant the exclusion of the Cornish Stannary Parliament from the English legal system under claims of acting in the national interest of the national majority.

As if Britain was terra nova when the Anglo-Saxons arrived c.450AD.

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