Application to the European Court of Justice.

   
Decision and order sought:- Annulment of Council Decision of 19th April 2007. On the grounds that, the Decision does not guarantee fundamental rights for all Community citizens and does not include the adoption of the tried and tested United Nations International Convention on the Elimination of all Forms of Racial Discrimination (CERD) ratified by all Member States.
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Application to the European Court of Justice Ref:- CERD

Summary of Case
1. Type of dispute:- (Detail at para. 5 -7 )

Misuse of powers by the Council and Commission of the European Community in withdrawing responsibility for the fundamental rights of citizens of Member States who ratify Treaties without incorporating them into domestic law and thereby denying citizens of the fundamental democratic right of equality before the law. (Anx.B01).

2. Decision and order sought:- (Detail at paras. 8 - 11)

(2a) Annulment of Council Decision of 19th April 2007. (O.J. L110, 27/04/2007).
(Anx.B01) On the grounds that, the Decision does not guarantee fundamental rights for all Community citizens and does not include the adoption of the tried and tested United Nations International Convention on the Elimination of all Forms of Racial Discrimination (CERD) (Anx.B02) ratified by all Member States. (Anx.B03).

(2b) A declaration that the United Nations International Convention on the Elimination of all Forms of Racial Discrimination, (CERD), (Anx.B02) constitutes a legal right for Community citizens and is an “essential procedural requirement” for adoption by the Community and Member States under TEC Articles 230: 253: 281; 302 and 308, (Anx.B04) and, Charter of the United Nations, Article 103. (Anx.B05).

3. Brief account of relevant facts:- (Detail at paras. 12 - 39)

(3a) “The UK has no statutory guarantee of equality before the law”. (Anx.B06). (3b) “There is no individual recourse for UK individuals”. (EUMC-RAXEN) (Anx. B07). (3c) The failure of the European Community and the government of the United Kingdom to guarantee the right to equality before the law (Anx.B06) for all persons as an “enforceable Community right”, European Communities Act 1972, section 2, (Anx.B08) facilitates: (3d) the denial of the legal right of the Cornish to exist as a national minority, (Anx.A01), (3e) the abuse of power with no effective remedy, (Anx.B61); (3f) the continuation of the institutional racial discrimination and bias inherent in the system of certain legislation not being passed without the consent of the Duke of Cornwall in matters of Crown interest and the Duchy of Cornwall estate, (Anx.A04) and (3g) claiming Celtic monuments as English; denying proportionately equal funding for Cornish culture, traditions and language. (Anx.A13).
Summary of case (pages 2 and 3) Ref:- CERD
4. Pleas of law on which the application is based:- (Detail at paras. 40 - 51)

(4a) All 27 Member States of the European Community, being co-members of the United Nations, have ratified and agreed, (Anx.B03):- “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”. (Article 103, Charter of the United Nations), (Anx.B05) (TEC Articles:- 5; 10; 13; 211) (Anx.B04), (TEC Articles:- 230; 253; 281; 302 & 308) (Anx.B04). ECJ Opinion 1/94 (Anx.B09) and 2/94. (Anx.B10). (Judgement in Case T-306/01 Court of First Instance, Yusuf & Al Baralaat International Foundation v. Council and Commission, of 21st September 2005, para 4). (Anx.B11).

(4b) The right to equality before the law for all persons, is internationally defined as ‘jus cogens’, and guaranteed at CERD Article 5, (Anx.B02) with hopes aroused by Directives:- 2000/43/EC, (recital 3); 2000/78/EC, (4); 2002/73/EC, (2) 2004/113/EC (2), (Anx.B12), and the EU Charter of Fundamental Rights, Art. 20. (Anx.B14).

(4c) Failure of the United Kingdom to transpose Article 14 of Directive 2000/43/EC: viz:- “Member States shall ensure that: (a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished”. (Anx.B13) into Statutory Instrument 1626. (Anx.B15). Judgement in the Case C-6/90 & C-9/90 Frankovich [1991] ECR I 5357, para.2). (Anx.B16), CERD Article 2,1c. (Anx.B02).

(4d) The ‘administrative provision’ of no guarantee of equality before the law for all persons permits official indirect bias and racial discrimination in giving priority to the commercial interests of the Duke of Cornwall, Prince of Wales, in Cornwall. The suspicion is aroused of: “conduct of the authorities having the effect of depriving the plaintiff of enforcing his rights before the national courts”. (judgement in Case C-228/96 Aprile Sri, [1998] ECR I-7141, para.4), (Anx.B17). (The High Court of Justice, 2005, Case No. CO/2464/2005, para 3). (Anx.B18). Failure of the Council, Commission and the UK to observe the “non-discrimination and effectiveness criteria” - judgement in Case 158/80 Rewe Nord [1981] ECR 1805 para.6 (Anx.B19) and judgement in Case 199/82 San Glorgio ECR 3595, para. 17.(Anx.B20).
Application to the European Court of Justice Ref:- CERD
Arguments in support of each plea - pages 4 to 14

5-1. In order to assist in establishing for all European Citizens, regardless of nationality or national origin, equality in the availability of equality provisions.

6-1 In addition to the Court’s Opinion 1/94 [1994] ECR I-5276 (Anx.B09) and Opinion 2/94 [1996] ECR I-1757, 28 (Anx.B10) the Council, at para. 95 of Case T-306/01, (Anx.B11) argues that the Community has competence under Article 308, “where the Treaty has not provided the powers of action”. (Anx.B04) Furthermore, at para. 106; “ The United Kingdom maintains that the use of Article 308 in the circumstances is no different from its use in situations, especially in the sphere of social policy, in which that Article has been relied upon in order to attain other Community objectives, where the Treaty had not provided a specific legal basis”.

7-1 In the present case the “social policy” of the Community can be enhanced by the same arguments as given in the Courts Opinions and judgements quoted in this Application in order to adopt, as an internationally recognised “legal personality”, the International Convention on the Elimination of all Forms of Racial Discrimination, (Anx.B02) into European Community law. (TEC Article 281). (Anx.B04).

8-2a Council Decision of 19th April 2007 (Anx.B01) is non-enforceable in the UK as with the ‘Framework Decision on Racism and Xenophobia’ (8665/07), the Opinion of Economic and Social Committee, 14th February 2006, SOC/216, the conversion of the EU Monitoring Committee of 1997 to an Agency in 2007 under Regulation (EC) No. 168/2007; Fundamental Rights Agency and the Berlin Declaration 2007. (Anx.B21).

9-2a In the case of ECJ Opinion 2/94 (Anx.B10) Article 103 of the Charter of the United Nations (Anx.B05) was not relevant but it is relevant in respect of the incorporation of CERD into Community law. Giving direct effect to CERD (as agreed at Article 2 of CERD) (Anx.B02) would avoid the duplication of a further “General programme”, (formerly ‘The Hague Programme’ 16054/04) (Anx.B22) by the European Community. Action now would avoid delay in guaranteeing all EU citizens a right to “fundamental freedoms”. (TEU Article 6 (1)). (Anx.B23).
10-2a The Council Decision of 19/04/07 (Anx.B01) asserts, at recital 2, “The charter of Fundamental Freedoms reflects the rights as they result in particular from the constitutional traditions and international obligations common to the Member States”. The Charter remains disputed, even Article 20, “equality before the law” (Anx.B14) is asserted by the Race Directive 2000/43/EC but only as a recital. (Anx. B12). In addition, “international obligations” with regard to the ratification of United Nations conventions are being disregarded. (TEC Article 302). (Anx.B04).

11-2b All Member States have ratified CERD (Anx.B03) since the Court’s judgement in Case 4/73 Nold [1974] ECR 491 para.2. (Anx.B24). The situation warrants priority for the “legal certainty and uniform principles” (judgement in Case 43/75 Defrenne [1976] ECR 455 paras. 3 and 28) (Anx.B25) required to implement “fundamental freedoms”, action, which would require more than a “general programme” after the Court’s Judgement in Case T306/1 [2005], para.4. (Anx.B11).

12-3a ‘Concerns and Recommendations by the UN Committee on the Elimination of Racial Discrimination in respect of the United Kingdom’. “The Committee recommends the State party consider giving full effect to the provisions of the Convention in its domestic legal order”. (CERD Report 13th March 2003, CERD/C/430/Add.3, Paragraph 10). ‘Concluding Observations , “The Committee condemns decent-based discrimination as a violation of the Convention, and recommends that a prohibition against such discrimination be included in domestic legislation”. (10th December 2003’, CERD/C/63/CO/11. Paragraph 25). (Anx.B26).

13-3a The advice of the UN is clear, act now, an: “autonomous and uniform interpretation” (judgment in Case C-201/02 Delena Wells, [2004] ECR I-723, para. 37) (Anx.B27) of : “the constitutional traditions common to the Member States” and “fundamental rights and freedoms” should not exclude CERD. (Anx.B02).

14-3a The possibility of the indirect use of: “obstruct” as found in: “laws, regulations or administrative provisions of the Member States which are such as to obstruct the fundamental freedoms” judgement in Case C-154/04 & C-155/04 Vitamins Case, [2005] ECR I-6451, para. 28, (Anx.B28) may require an autonomous definition to prevent an infringement of the right to adversarial proceedings.
15-3a “The UK has no statutory guarantee of equality before the 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”. Professor Francesca Klug, Professorial Research Fellow, London School of Economics, Centre for the Study of Human Rights, confirmed on 6th July 2006. (Anx.B06).

16-3b “The implementation and enforcement of existing legislation also needs to be reinforced, and adequate measures should be taken to improve access to justice and the power of the courts and tribunals to enforce anti-discrimination law. There is therefore a pressing need for the UK government in reviewing its equality legislation to consider how the various protected grounds interact with each other, and how to eliminate ‘artificial’ distinctions”. (EUMC, RAXEN 4, UK; 7, ‘Summary and Conclusions’). (Anx.B07).

17-3b “The UK has signed and ratified the International Convention on the Elimination of All Forms of Racial Discrimination completing the process in 1969. It has also signed the International Covenant for the Protection of Civil and Political Rights, completing the process in 1976. However, it can be argued that the principle of equality central to both has as yet not been used to frame and shape UK legislation in a comprehensive manner and there is no individual recourse for UK individuals”. (The European Monitoring Centre, (now Agency) RAXEN 4 Report, UK, Vienna 2004, para. 3.2.4. p.18 (Anx.B07)on CERD) (Anx B02). This cannot be acceptable as a tradition common to the Member States

18-3c Hopes of a directly effective legitimate expectation in the form of a statutory guarantee of: “The right to equality before the law and protection against discrimination for all persons” have been aroused in Directive 2000/43/EC, recital (3):- “The right to equality before the law and protection against discrimination for all persons constitutes a universal right recognised by the Universal Declaration of Human Rights, the International Convention on the Elimination of all forms of Racial Discrimination, etc.etc. to which all Member States are signatories”. (Repeated in Directives: 2000/78/EC, recital 4; 2002/73/EC, recital 2 and Directive 2004/113/EC, recital 2). (Anx.B12).

19-3c The recital is dismissed by the UK as “explanatory background”. On 5th January 2007, Mr Naysmith of the Department (DCLG), affirmed:- “The reference to “equality before the law” that you mention in your fax comes from what is known as the “recitals” to the Directive, rather than its operative articles, which start at chapter 1. In the recitals, the Council of the European Union (i.e. the member states) recall the background to the Directive and provide further explanatory information concerning the Directive that follows. (Anx.A01).

20-3d Following many requests to the Home Office and the Department for Communities and Local Government (DCLG) to recognise the Cornish as a national minority, the Home Office letter of, postmark 22.03.04 stated:- “the government does not recognise any ‘national minority’ because it is not a legally recognised term in the UK”. (Anx.A02). This would appear to exclude legal recognition in the domestic law of the UK. However, “the existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision of that State party but requires to be established by objective criteria”. (General Comment No.23, The Rights of Minorities (Art.27): 08/04/94. CCPR/C/21/Rev.1/Add.5; UN Covenant on Civil and Political Rights). (Anx.B29).

21-3d “Ethnic minorities” in common UK usage, refers to distinct ethnic communities within the UK who are not White, and in particular Black and Asian”. (EUMC, RAXEN 4, Glossary p.64). (Anx.B07). No account is being taken of CERD. “Membership of racial or ethnic groups , if no justification exists to the contrary, be based upon self-identification by the individual concerned”. (UN Committee on the Elimination of Racial Discrimination, Session 38, 1990, UN Doc.A/45/18 at 79). (Anx.B30).

22-3d “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this declaration and against any incitement to such discrimination”. “Note, the principle of equality before the law is especially important for minority groups”. UN Universal Declaration of Human Rights, Art. 7).
(Anx.B31).
23-3d A letter to Eurostat, copy to the Office for National Statistics (ONS) (Anx.A03) reveals no comment by the ONS (Anx.A03) to the claim that statistics on the Cornish are necessary for the proper application of Objective One funding for “endogenous potential”. (Regulation EC No.1783/1999). (Anx.B32).

24-3e “The Treaty would be set to naught ( if ) the national authorities would thus be able to rely on their own unlawful conduct in order to deprive decisions taken by the Commission under provisions of the Treaty of their effectiveness”. (Judgement in Case C-303/88 Italian v. Commission [1991] ECR-I p. 1433, para.5). (Anx.B33).

25-3f A number of “laws, regulations and administrative provisions” should be abolished under Directive 2000/43/EC Article 14, (Anx.B13) and CERD, Article 2 (1c). (Anx.B02). There are exemptions from laws and the exercise of a legislative, judicial and executive function on the part of the Duke of Cornwall, which may facilitate indirect historical and current institutional racial discrimination against the Cornish and constitute the misuse of powers. Such powers involve legislation and Parliamentary Standing Orders. (Anx.A01;A02;A4;A5;A9;A10;A11;B34 to B56).

26-3f In promoting the legitimate rights of the Cornish national minority, human rights provisions are rendered negligible for those concerned by the modern replacement (ersatz) privileges for the loss of the government of Cornwall by the Duke of Cornwall. It is contended that the official secrecy surrounding the history of the Duchy of Cornwall and Cornish mining lies at the centre of the government’s refusal to recognise the Cornish as a national minority as reflected in its refusal to include the Cornish within the provisions of the Council of Europe’s Framework Convention for the Protection of National Minorities. (Anx.A01).

27-3f “The Scotland Act 1998 places Bills of the Scottish Parliament in the same position as Bills of the UK Parliament by requiring standing orders to include provision for obtaining the consent of Her Majesty or the Duke of Cornwall, where a provision of a Bill impacts on Crown interests, before the Bill may be passed”. (Letter from the Scottish Executive dated 31st May 2007, re Standing Order 9.11 of the Scottish Parliament and Standing Order 7.178 of the Westminster Parliament).
(Anx.A04). “Consent” would indicate the Duke’s right to a legislative veto.
28-3f In addition the Duke of Cornwall is part of the Crown as “part of Her Majesty in Her private capacity” under section 38 (3) of the Crown Proceedings Act 1947, and at section 40 (2g) has: “the right to control or otherwise intervene in proceedings affecting its rights property or profits”. (Anx.B34). There is no definition of Crown interests and “control” of “proceedings” indicates a judicial function for the Duke.

29-3f In addition, section 120 of the Supreme Court Act 1981, dealing with intestate estates provides: “sureties in the administration of the estate of the deceased do not apply to the Duchy of Cornwall” in Cornwall. (Anx.B35). (Treasury form BVC 3; Inland Revenue form RE 2152), (Anx.B36), which along with exemptions from enforcement, (Planning and Compulsory Purchase Act 2004, section 111, Part 8; and sections 82 & 84) (Anx.B37) and “powers” under the Tamar Bridge Act 1998. (Anx.B38). “Powers” indicates an executive function for the Duke of Cornwall.

30-3f The Library of the House of Commons, letter of 16th June 1997 reveals an injunction to prevent questions on the role of the Duchy of Cornwall in Cornwall, (Anx.A05), and its letter of 4th June 2007 affirms: “The Duchy of Cornwall has existed to promote an income for the heir since 1337. Edward III created his eldest son, Duke of Cornwall and endowed his Duchy with ample lands……” (Anx.A05).

31-3f The House of Commons Library avoids reference to the Cornish tin mining industry (now UNESCO World Heritage) (Anx.A14) which provided a royal fortune for the Duke through a tax on Cornish tin production (coinage) at twice the rate applicable elsewhere. Coinage ended with the Coinage Abolition Act 1838. (Anx.B39). A double tax was by English custom levied on foreign produce.(Anx.A06 to A08). The evidence suggests that in 1337, the system was created because Parliament at Westminster was reluctant to impose taxation on the English national majority to support the heir apparent. (Anx.B40). The format has essentially remained unchanged. The Crown Lands under the Crown Estate Act 1961, are managed for the Sovereign in her political capacity. (Anx.B41;B42). Section 8 provides for a non-monopolistic public service in the UK except Cornwall. The Crown Estate has no holdings in Cornwall and the Duchy of Cornwall is the analogous body in Cornwall. (Anx.A09). The Duchy of Cornwall Estate is exempt from the Freedom of Information Act 2000 (Anx.A10) but the Crown Estate is not.
32-3f There are no monopoly restrictions placed on the Duchy of Cornwall under its Management Acts. The Duchy of Cornwall Management Acts 1863 to 1982, prescribe at section 8 of the latter, a: “Duty of Treasury” (Anx.B43) confirmed as “Treasury control”, (Anx.B44) in effect, state aid. However, H.M.Treasury letter of 26th July 2006 states; “the Duchy was set up as a private estate”, (Anx.A11) while under the Cornwall Submarine Mines Act 1858, the Duchy of Cornwall was awarded the foreshore and rivers of Cornwall as: “part of the soil and territorial possessions of the Duchy”. (Anx.B45;B46). A territorial possession is not private. The Duchy is exempt from the registration of land under section 84 note 135 of the Land Registration Act 2002, and section 79 note 129 provides for the transfer of Crown lands (demense) to the Crown or Duchy estate as private property. (Anx.B47).

33-3f The three Duchy of Cornwall Charters of 1337/8, published in 1978 as Constitutional law, granted the Duke of Cornwall as heir to the throne: “Our Stannaries and coinage (tax on tin production) and King’s Writ and Summons of Exchequer and Attachments throughout Cornwall”. (Trial at Bar, Rowe v. Brenton, 1828 ( 9 Geo IV), Manning edition 1830, Appendix). (Anx.B48; B49). This enabled the Duke in Cornwall to exercise the powers of the government of Cornwall. (Anx.B50) (The Stannaries covered the whole of Cornwall and traditionally administered the Cornish tin mining industry of pre-England origin). (Anx.A12).

34-3f The Equality Act 2006 makes no reference to equality before the law while section 78, Crown application, para.5, states: “The provisions of Part V of the Crown Proceedings Act 1947 shall apply…………..” (Anx.B51). Part V includes both sections 38 (3) and 40 (2g) (Anx.B34), indicating an exception from the provisions of the Act for the Duke of Cornwall. “The Crown is not bound by Act of Parliament unless the contrary is expressly stated or there is a necessary implication that it was intended to be bound”. (Thomas v. Pritchard [1903]). (Anx.B52). The Cornwall County Council Act 1984, provides “Savings for the Duchy of Cornwall”. (Anx.B53).

35-3f Clearly, the concept of state responsibility in the field of racial discrimination has been understood as a serious duty for states by: “States party, shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination”. {CERD Article 4 (c)}. (Anx.B02).
36-3f “The liability of a Member State under Article 169 (now 226) arises whatever the agency of the state whose action or inaction is the cause of the failure to fulfil its obligations even in the case of a constitutionally independent institution”. (judgement in the Case 77-69 Commission v. Kingdom of Belgium, para.2).
(Anx.B54).

37-3f The Duchy of Cornwall is a: “provider of a public service under the control of the state”. (judgement in Case C-188/89 Foster v. British Gas [1990] ECR I-3313, para.1). (Anx.B55). “In international law a state whose liability for breach of an international commitment is in issue will be viewed as a single entity, irrespective of whether the breach was attributable to the legislature, the judiciary or the executive. This must apply a fortiori in the Community legal order….” (judgement in Case C-46/93 & C-48/93 Brasserie/Factortame ECR I-1029,05/03/1996, para.34). (Anx.B56).

38-3g The Duchy of Cornwall charters included the castles of Tintagel; Restormel and Launceston in Cornwall. (Anx.B48). These and an ancient tin mining village, Chysauster are managed by English Heritage under the National Heritage Act 1983 (Anx.A13) and thus constitutes an administrative provision which sanctions cultural conformity and the suppression of minority culture to deny the Cornish their identity. For racial majority advantage this process ignores the UNESCO Nara Authenticity Document 1994, Article 4 of which states: “in a world in which the search for cultural identity is sometimes pursued through aggressive nationalism and the suppression of the cultures of minorities,……” (Anx.A14). It is contended that TEC Article 151 (Anx.B57) implies the correct, impartial and accurate definition of the cultural origin and intellectual property rights of any given archaeological site, historic event or invention. (Anx.A15).

39-3g The Cornish language (Kernewek) is No.21 on “The Community Language List” for lesser used languages. (Anx.A16). Cornwall’s Celtic roots create a strong sense of identity within the county”. (Local Government in Cornwall , Local Government Commission, January 1995). (Anx.A17). The National Geographic Magazine of March 2006, describes Cornwall as one of the “Areas of Celtic Culture”.
(Anx.A18).

40-4a Membership of the Community presupposes membership of the United Nations per TEC Article 302, (Anx.B04) and UN membership requires compliance with obligations under Article 103 of the Charter of the United Nations. (Anx.B05). It follows that the Community, under the subsidiarity rule, can act under TEC Article 5, (Anx.B04), since, “action cannot be sufficiently achieved by the Member States” in providing a legally binding CERD (Anx.B02) as part of Community law in place of the Council Decision of 17th April 2007. (Anx.B01). Opinions 1/94 (Anx.B09) and 2/94 (Anx.B10) and TEC Article 308 (Anx.B04) support “fundamental rights and freedoms” as ‘jus cogens’ within the context of both the internal and external competence and the international obligations of the Community.

41-4a Treaty of the European Community TEC Article 10, “They (Member States) shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty”. (TEC Anx.B04). It is contended that non-action in the field of “fundamental rights and freedoms” should be construed as a “measure”.

42-4a TEC Article 13, “The Council may take appropriate action to combat discrimination…” (Anx.B04) TEC Article 211, “The Commission…..shall: - ensure that the provisions of this Treaty and the measures taken by the institutions pursuant thereto are applied…..”. TEC Article 230, infringement of an essential procedural requirement”. TEC Article 253, “Regulations, directives and decisions….shall state the reasons” . TEC Article 281, “The Community shall have a legal personality”. (TEC Anx.B04). The absence of a reason for the exclusion of CERD (Anx.B02) from the Council’s Decision of 19th April 2007 (Anx.B01) in respect of “the General programme of fundamental rights and justice” arouses the suspicion of the misuse of powers.

43-4a TEC Article 302 “It shall be for the Commission to ensure the maintenance of all appropriate relations with the organs of the United Nations and of its specialised agencies”. TEC Article 308 “If action by the Community should prove necessary to attain…………the Council shall………take the appropriate measures”. (Anx.B04). Article 103 of the Charter of the United Nations: “ the present Charter shall prevail”. (Anx.B05). (Judgement in Case T-306/01 Court of First Instance, Yusuf and Al Baralaat v. Council and Commission, 2005, para 4). (Anx.B11).
44-4b “Respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, whilst inspired by the constitutional traditions common to the member states, must be ensured within the framework of the structure and objectives of the Community”. (judgement in Case11-70, Handelsgesellschaft, [1970] ECR 1125 para.2).(Anx.B58).

45-4b “The right” and “for all persons” in “The right to equality before the law for all persons” given in the recital of Race Directive (Anx.B12) appears to refer to an established directly effective legal right. The official arousal of expectations that prove not to be legitimate must be considered as a form of the misuse of powers. It is ambiguous on legal certainty and the enforcement of: “Rights which a national court has a duty to protect”, judgement in Case 45-76 Comet [1976] ECR 2043 (Anx.B59); and judgement in Case 106/77 Simmenthal, [1978] ECR 629, para.4.(Anx.B60).

46-4c “Each state shall take effective measures to review governmental, national local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists”. {CERD Article 2 (1c)}. (Anx.B02).

47-4c “The UK largely complies with the requirements of the EU Race Directive……the standards of the Directive are in certain respects better than the UK legislation as well as providing a different definition of indirect discrimination”. EUMC, RAXEN, UK, 4.1.1 The Race Relations Act 1976 (Amendment Regulations) 2003. (Anx.B07). The Amendment refers to Statutory Instrument 1626 (Anx.B15) which claims to transpose the Race Directive 2000/43/EC into domestic law but excludes Article 3 “access to housing”, and “shall take measures to abolish laws”, Article 14. (Anx.B13). “Largely complies” and “cannot alter existing law by this method if the Directive does not apply” EUMC, RAXEN 4 Report, UK, para. 4.1.1.5 p.24 (Anx.B07) re Race Directive, 2000/43/EC. (Anx.B12;B13) indicates that the Scottish Executive letter (Anx.A04) can be interpreted as exposing official barriers to repealing laws under Article 14 of Directive 2000/43/EC and CERD Article 2 (1c). (Anx.B02). The letter from the EU Commission of 01.06.04, (Anx.A19) in response to a query on the Race Directive does not mention the High Court that should be the competent authority to deal with cases of alleged institutional racism.
48-4d High Court of Justice, London, 3rd November 2005, C.F. Murley, Case No. CO/2464/2005, “the Duke of Cornwall has various privileges by comparison with ordinary subjects of the Crown”. para 3). (Anx.B18). “Enforcement is largely confined to CRE, (Commission for Racial Equality), and a failure to take substantive outcome-orientated steps can only be challenged by the expensive and risky approach of judicial review”. (EUMC, RAXEN 4, UK, 5.3 p.38). (Anx.B07).

49-4d “The Human Rights Act 1998 came into effect in the UK in October 2000. The Act is of major constitutional importance as it incorporates the ECHR into domestic law, “The UK has not yet signed Protocol 12”. (EUMC, RAXEN 4, UK, 5.2 p.35). (Anx.B07). “It incorporates the ECHR into domestic law” is a common mistake since, the vital Article 13 ECHR has been excluded from the Human Rights Act without reason or explanation. Article 13 ECHR is headed: “Right to an effective remedy” re:- “violation by persons acting in an official capacity”. (Anx.B61).

50-4d The Constitution of the Monarchy of Sweden, Chapter 1, Article 9, affirms:- “Courts, public authorities and others performing functions within the public administration shall observe in their work the equality of all persons before the law and shall maintain objectivity and impartiality”. (Anx.B62). This ideal should be enshrined in Community law as a “legitimate expectation” an “enforceable Community right” a “fundamental right and freedom” and “jus cogens” to become an effective “constitutional provision common to the Member States”.

51-4d It is contended that it is not in the interests of the citizens of Europe that the Council and the Commission should avoid action by spending the next five years rediscovering Sir Hersch Lauterpacht, “The claim to equality before the law is in a substantial sense the most fundamental of the rights of man. It occupies the first place in most written constitutions. It is the starting point of all other liberties”, (‘The International Bill of the Rights of Man’, 1945, p.115), (Anx.A20), the United Nations ‘Universal Declaration of Human Rights’ of 1948. (Anx.B63) and the ‘International Convention on the Elimination of all Forms of Racial Discrimination’ of 1969. (CERD). (Anx.B2).

 

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