In 2004, members of Cornwall 2000
were invited to travel to London to meet a high level delegation from the CRE.
The Framework Convention was one of a number of subjects under discussion. In
March of 2007 the CRE published its long awaited Framework Convention Shadow
Report. We were pleased to see that the CRE
had followed though on the promises made to us at the 2004 meeting. In fact, we
were more than pleased, for the CRE findings mirrored almost exactly the
contentions we had put to the CRE in 2004.
Relevant extracts from the March
2007 UK Commission for Racial Equality Shadow Report are as follows:
The position of the CRE is that the
Government’s approach to the meaning of national minorities only by reference
to racial groups that have been recognised as such in case law is too narrow
and creates arbitrary distinctions and is not reflective of the purpose of the
Convention.
The CRE outlined the position of
the UK Government:
The Government stated that
it noted the Advisory Committee’s suggestion
for an extension of the Framework Decision’s
application on an article-by-article basis, but that they had provided no
practical advice on how this could be done. Although consulting with Cornish
groups on the issue, the Government has decided to maintain its interpretation
based on racial groups under the RRA and therefore does not consider the
Cornish or other groups such as Muslims to be national minorities.
The CRE then outlined its own
position with regards to the Cornish and expressed concern at the government’s
arbitrary application of the Convention
There are a number of reasons why the CRE
considers the interpretation of the Government as to what constitutes a
national minority is not appropriate and too narrow:
a) As
the Advisory Committee stated in its opinion, Member States should take a broad
approach in interpreting national minorities without any arbitrary or
unjustified distinctions, and specifically take into consideration article 3
which emphasizes the importance of a group identifying themselves as a national
minority.
b) Applying
the criteria that a group must have been recognised in a court as a racial
group under the RRA to qualify as a national minority ignores the fact that the
RRA and Convention are completely different types of instruments. The RRA is a
domestic Act of the UK Parliament that provides individuals with directly
enforceable rights in courts. As a result, in order to determine liability in a
claim of racial discrimination, it must be determined first whether a group
constitutes a racial group. Whereas the Convention is an agreement entered into
by the UK Government that has not been incorporated into domestic law (unlike
the incorporation of the European Convention of Human Rights by the Human
Rights Act) and does not provide individuals with directly enforceable rights.
The focus on having to have had the group
recognised as a racial group by case law is unnecessarily narrow approach and
not in accordance with the purposes of the Convention.
c) The fact that the UK Government states
that a group must have been recognised in case law as a “racial group” is also
arbitrary.
For example, at the time of the first report
of the UK Government, Irish Travellers had not been recognised as a racial
group, but they have since. Similarly, Scottish Travellers have not yet in law
been recognised as a racial group but it is likely they would be on the same
criteria of ethnic origin as Gypsies and Irish Travellers and the CRE considers
that the Government should treat them as a racial group for the purposes of the
provision of public services and the race equality duty (see the section on
Scottish Gypsies and Travellers in the section on article 4).
d) The
RRA criterion used by the Government may not have been applied consistently, in
that reference is made in the first UK report to Gaels and Ulster Scots (not
just in terms of languages but as groups of people), and we are not aware of
any case law which legally recognises them as racial groups for the purposes of
the RRA.
Further, an inconsistency is created by the
Government’s approach since Jews and Sikhs are considered national minorities
by reason of them having been recognised as racial groups, but Muslims are not.
The position of the CRE is therefore that in
relation to the meaning of “national minorities” the Government should take a
broader approach than only using the criteria of a racial group that has been
recognised in case law and should reconsider its position on groups such as the
Cornish and Muslims. |
