One major difficulty faced when
considering ways of overcoming government intransigence is the arbitrary time
limit imposed by government for aggrieved people to bring proceedings against
it. Although the Home Office was responsible for the 1st UK
Compliance report, and the adverse decision within it, as the law stands, there
is little to no possibility of bringing a case based on an ongoing course of
conduct emanating from a much earlier decision. Proceedings of whatever form
must [unless very exceptional circumstances arise] be issued within the
statutory time limit specified for each type of action.
For example, Human Rights Act
1998 cases must be brought within 12 months of the act, decision or event that
first gave rise to the claim, and proceedings alleging racial discrimination
under the Race Relations Act 1976 must be brought within 3 or 6 months
depending on the nature of the incident.
Similarly, complainants seeking a
judicial review of a decision made by a government department must commence
legal action within 3 months of the decision being made. Within this period,
all pre-action protocol procedures must be completed and the lengthy and often
complex judicial review application form must be lodged at the High Court. The
courts will rarely countenance applications made outside of the three-month
limitation period. Having looked at the government’s spurious reasons for
arbitrarily imposing such a small window of opportunity, it is clear that the
real intention is to make it more difficult for complainants to bring cases to
court.
Therefore, by the time we
realised that government were, come what may, going to arbitrarily keep the
Cornish, and only the Cornish, out of the Convention, we were well out of time
for bringing legal proceedings based on the 1999 decision. However, as new
evidence had subsequently been presented to government from both the Cornish
and the Council of Europe, it was obliged to re-take its decision to exclude
the Cornish, and also include the outcome of that decision within the 2nd Compliance Report. We therefore prepared for the release the UK draft 2nd report, expected sometime in early 2004, as this would present a new
opportunity to legally challenge the decision.
Prior to the establishment of the
new Commission for Equality and Human Rights, the way groups become recognised
in the UK under Race Relations Act case law was for the UK Commission for
Racial Equality [CRE] to fund a case of racial discrimination involving members
of that group. The courts then had the opportunity to make a Declaration as to
whether or not that group is a ‘racial group’ for the purposes of the Act. The
CRE have funded successful cases for the Scots, English, Gypsies, Jews, Sikhs
and more recently in respect of Irish Travellers.
As shown in Scat t’Larrups, all
applications for CRE funding to test the attitude of the courts to the Cornish
have been rejected on spurious grounds, and the potential legal costs for a
private individual bringing a Race Relations Act case were entirely
prohibitive. Moreover, as further revealed in Scat, it later transpired that
because of government’s wish to continue the rolling programme of assimilating
the Cornish, and its unswerving compulsion to maintain the Duchy/private estate
deception, the possibility of obtaining a court Declaration in favour of the
Cornish being a ‘racial group’ for the purposes of the Act ranged from zero to
nothing. So launching a Race Relations Act case was out of the question.
Consideration was given to the
possibility of bringing proceedings against the government under the European
Convention on Human Rights [ECHR], now ostensibly incorporated into domestic
law as The Human Rights Act 1998 [HRA]. However, the government had refused to
sign or ratify Protocol 12 of the ECHR. This Protocol provides a free standing
right to non-discrimination and is intended to rectify the defect of Article 14
ECHR - which only prohibits discrimination in relation to, and in conjunction
with, other Convention rights. Reasons given by government for not ratifying
the Protocol are that, shock horror, rights
set forth by law would apply to everyone, and that ratification would lead
to an, unacceptable explosion of
litigation.
[See Joint Committee on Human Rights, Seventeenth
Report, session 2004-05, paragraph 31]
Although Protocol 12 entered into
force on 1st April 2005, the UK, which projects itself as a bastion
of human rights, joined Bulgaria, Montenegro and eight other counties in
refusing to sign the Protocol. By contrast, thirty-seven European countries
have signed the Protocol and thirteen have gone on to ratify it without
experiencing any explosion of litigation.
I did examine the possibility of
utilising Article 14 in conjunction with Articles 6, 8 and/or 13 of the ECHR,
but found the supporting arguments to be tenuous and unconvincing. The degree
of detriment required to succeed in such cases was also absent. My decision to
decline taking action under the HRA was not taken because our grievance was in
any way flawed or unjust. It was simply because our circumstances did not
sufficiently relate to those Articles of the ECHR currently ratified by
government, and the existing body of case law pertaining to those Articles.
The only remaining option was to
attempt to subject the government’s Convention related policies and practices
to judicial review. Bearing in mind that judicial review is concerned with
reviewing not the merits of any decision but rather the decision-making
process, it is an inappropriate and largely ineffective vehicle for challenging
long-term direct and indirect discrimination. However, as all other avenues of
redress were closed, it became necessary to prepare papers in readiness for a
judicial review of government Convention-related decisions. As I would be
relying on the moral and financial support of others, the decision to go down
this route was agreed by all supporters of Cornwall 2000
As mentioned previously,
Convention reporting obligations placed an onus on government to submit its 2nd Compliance Report to the Secretary General by May 2004. Although the government
had from 1999 to prepare its report, the Department for Communities and Local
Government [DCLG] withheld publication of the draft report until 7 Dec 2006,
and consultation with stakeholders like Cornwall 2000 was to end on 20th Jan 2007, with Government saying that the final report was to be sent to the
Council of Europe, before the end of
January 2007.
Therefore the draft 2nd report, which had purportedly taken government [with all its vast resources]
seven years to write, and was in any event almost three years late, was open
for consultation for just 5 weeks. Although Cornwall 2000 had no intention of
taking part in any bogus consultation exercise [we had said all we had to say
on the subject many times previously] as the consultation period, and hence
legal challenge ‘window of opportunity,’ extended over the disruptive Xmas
holiday, Cornwall 2000 had difficulty convening a meeting and initiating legal
action prior to government submitting the report to Europe. This was no
accident.
Release of the draft 2nd report by government had been carefully timed so as to fall just within the
Council of Europe’s February 2007 last chance deadline for accepting the UK
report. You will remember that, under the terms of the treaty, the report was
timetable for submission back in May of 2004. Since that time Cornwall 2000 had
been asking the Home Office, and then the DCLG, when the draft 2nd report was to be published. We had been regularly notified that the report was
largely complete and the delay was due to the fact that Ministers had yet to
make a decision on the Cornish issue. Of course, both sides knew that asking
when the draft report was going to be completed was code for really asking when
the decision about the Cornish was to be made known. Once it was known, we
could then instigate our promised legal action. It is therefore unquestionably
true that publication was deliberately withheld by government for 2.5 years in
order to make it difficult for Cornwall 2000 to complete legal formalities
prior to the very last deadline for submission of the 2nd report.
Indeed, at the opening High Court
hearing the government was quick to argue that as the last date by which the
Advisory Committee could accept the 2nd report was 20th February 2007, any delay caused by legal action: would put the UK in breach of its Article 24-26 obligations under the
Convention. Yet government had deliberately engineered this situation.
I do not intend to repeat here
all that has been stated at length in Scat t’Larrups about the 2007 High Court
hearings. Suffice to say that, given the weight of evidence in their favour,
the Cornish were quite clearly victims of what some might describe as a
conspiracy, but which I would prefer to describe as ‘a common understanding’
between the government and the judiciary.
That ‘understanding’ left the
government free to state in its defence numerous untruths to the High Court,
and the various High Court judges free to unquestionably accept the
government’s untruthful postulations as factually correct. The government’s
defence papers, and our detailed observations upon them, are fully detailed in
Scat.
The shameful consequence of this
behaviour was that the three central contentions of the judicial review were
never addressed, the phrase ‘Courts of Justice’ was given a whole new meaning,
and the Cornish remained excluded from the Convention. Lack of funds left us
unable to appeal the perverse outcome.
Such is the government’s
overwhelming desire to suppress Cornish history, keep the assimilation
programme rolling and maintain the Duchy/private estate deception, later
correspondence from government revealed that any and all attempts to include
the Cornish in the Convention would be “strongly resisted” no matter what
evidence transpired.
It cannot be lawful for a
minority group to undergo extinction simply because of its association with a
legally extant Crown dependency now masquerading as a commercial enterprise. It
has to be said that implementing a covert policy to eradicate the Cornish
identity is the equivalent of conducting community-wide retribution against a
vulnerable cultural group that has committed no crime.
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