Bodmin 4th November 2003

Dear All

Following on from their stunning victory which saw Cornwall Council capitulate in the face of determined opposition, the small but growing band of steadfast 'Rakehellers' have found it necessary to turn their attention to yet another public authority wantonly abusing their position of public trust to deny the Cornish their rights.

22 Cornish families are taking action and have agreed to undertake a class action against the Commission for Racial Equality.

The decisive meeting was held last night, and absent friends, whom we have yet to contact, will join us. However, there is an opportunity for others to join us in this unique and historic action. I hope after reading the following passages you will give this some serious thought and, even if you cannot make the commitment yourself, tell others who might.

Our action comes at a difficult time for the Government who must file a Council of Europe Framework Convention for the Protection of National Minority Compliance Report to the Council of Europe by May 2004, and its first EC Race Directive Compliance Report to the European Commission the following year. The CRE have never before faced communty class action - this is without doubt an historic occasion with far reaching implications.

We must strike while the iron's hot. A few hundred pounds spent now will secure millions of pounds in cultural and educational funding later. If you, or someone you know, wishes to support this endeavour contact any of the above asap.

The following passages are taken from recent discussions between the claimants and their solicitor.

Mr Pearse

As expected, despite leading Counsel saying that our case has "good prospect of success" our recent application to the Commission for Racial Equality for assistance has been summarily rejected. I have sent you the CRE's glorified two finger salute.

Turning to the future, although the Council have quietly capitulated, in order to pre-empt this sort of behaviour we should send a clear warning signal to other public authorities who might be contemplating discriminatory action against the Cornish. We need a high profile, cost effective, legal victory and the Commission for Racial Equality have dutifully provided us with that opportunity.

For the present we must give up on trying to obtain a Declaration that would establish the Cornish as a Race Relations Act group - it is much too costly for us to undertake on our own [see below]. With the limited resources we have we have no other option but to go for a quick victory. We must go for the throat via a short, ruthless and sustained legal assault. Thankfully the CRE have left themselves wide open to group action, and the possibilities listed below might be mixed and matched.

These actions are in respect of Judicial Review proceedings, which must be lodged at the High Court in London within three months of the adverse decision [21 October].

Charge CRE with a breach of the Human Rights Act 1998: Article 6(1) in conjunction with Article 14. In determination of his civil rights everyone is entitled to a fair hearing before an impartial tribunal/This right shall be secured without discrimination on any ground.

General:

What is discrimination under the Act? "The notion of discrimination within the meaning of Article 14 includes general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention" [Abdulaziz, Cabales and Balkandali v UK 1987. [Note: Simply 'person or group' - not 'racial or ethnic group'. The HRA applies to discrimination against a group on ANY ground i.e. simply because we are of Cornish national origin/social background/culture heritage, or because we are a Census 2001 group being treated differently than other Census 2001 groups etc.

Will being 'Cornish' satisfy a courts grounds of differentiation? The versatility of Article 14 is demonstrated by looking at some of the grounds by which differentiation has been accepted. Difference in wealth, marital status, dog-owners by reference to breed of dog and landowners by size of property have all been accepted.

As a distinct group the Cornish have a recorded history extending back over 1000 years. The Cornish are classified by Parliament as a UK Census 2001 ethnic group, and are treated as such by local government, central government and international bodies.

Their language has been accorded official status, their distinct culture receives limited funding and the UK authorities recognise the existence of their separate history. They satisfy the difference argument both subjectively and objectively. The Cornish perceive themselves, and are perceived by others, to be a distinct group.

BREACH OF ARTICLE 14 [Prohibition of discrimination]:

The Cornish seek: uniform acceptance of their identity, greater parity of status and freedom to register as Cornish. They wish to be statistically monitored and accrue the benefits thereof in order to access the education to which they are entitled, receive due cultural funding and appropriate protection under law in areas like employment and housing. In procuring these internationally accepted rights and benefits they have a primary right to expect equal treatment from the Commission for Racial Equality.

When does unlawful difference in treatment occur under the HRAct? An unlawful difference in treatment occurs when "others in an analogous or relevantly similar situation enjoy preferential treatment" and there is no "objective and reasonable justification". [Belgian Linguistics case 1968 para 10; Stubbings v UK 1996 para 70]

Background: In June 2003 the Cornish asked the CRE to assist them in a case of racial discrimination against a public authority in which leading Counsel had stated they had "good prospects" of success. As a pre-requisite, they asked the CRE to fund a preliminary hearing to ascertain whether the Cornish were a group who could claim the protection of the Race Relations Act 1976. This is standard procedure in such circumstances.

In October 2003 the CRE refused to assist the Cornish case. The implied terms for refusal appear to be "The Cornish are not recognised by case law, so the RRAct does not apply to them, therefore this case has little prospects of success". If this operating practice prevails, the CRE could never fulfil one of its stated functions - that of bringing new groups under the protection of the Act.

LEGAL ARGUMENTS SUGGESTING DISCRIMINATION:

• The CRE consistently apply this circular argument to the Cornish, but not to other groups they have assisted in similar situations. [English, Rastafarians, Kurds, Irish Travellers, Sikhs, Gypsies etc].
• The CRE have effectively stated that they will never assist the Cornish in making their initial case before the courts. They do not adopt this position for other groups.
• In 1999 the CRE admitted to destroying all complaints from the Cornish. They do not do this for other groups.
• The CRE have consistently refused to answer written questions or even indicate whether or not they take the view that the Cornish are a group who should come under the provisions of the RRAct. The CRE readily state their views when it comes to discussing other groups not yet covered by the Act.
• The CRE have consistently said that "those of a particular ethnicity are entitled to claim that ethnicity". This does not seem to apply to the Cornish.
• The CRE have consistently said that groups who wish to come under the protection of the Act are at liberty to put their case forward so that the attitude of the courts can be tested. Yet the only groups to have done so are those that have been assisted by the CRE.
• Within the UK, the Home Office has responsibility for race issues. In 1999 the HO Race Equality Unit informed the Council of Europe that the CRE: "Legally assists complainants in case of discrimination, tackles institutional discrimination, raises public awareness of problems and the advantages of multiculturalism". [UK Report, FCPNM]. Although the CRE perform these functions in respect of other groups, they fail to do so for the Cornish.
• The CRE have a statutory duty to "work towards the elimination of discrimination","promote equality of opportunity" and "keep the working of the RRA under review." [RRA Section 43 (1). Although the CRE carry out these duties in respect of other groups, they fail to do so for the Cornish.
• This do-nothing policy prevails in spite of the CRE being aware that the Council of Europe recently issued a strong condemnation of the UK Governments treatment of the Cornish, and then acknowledging that the C of Eu linked the dire situation of the Cornish with that of Gypsies and Irish Travellers - two groups who the CRE have actively assisted, even though the particular circumstances of each case involved lesser degrees of discrimination.

BREACH OF ARTICLE 6 [RIGHT TO FAIR HEARING]

"A ECHR right is involved where that person who fulfils the eligibility criteria for a benefit will have an enforceable claim" [Rolf Gustafson v.Sweden, August 1 1997 RJD 1997 - IV No.41; EHRR 623] . The Cornish fulfil the eligibility criteria for recognition of identity and status, ethnic monitoring, special educational provision, parity of cultural funding and equal treatment from CRE.

Matters dependant on expert judgement like fitness to practice a profession which involve an evaluation of knowledge and expertise are largely within the discretion of the decision making body, but questions of fact susceptible to judicial assessment form the subject matter of a civil right. Quote: "An Article 6(1) dispute arises when proceedings centre on procedural irregularities or the arbitrary or ultra vires character of the decision". [Van Marle and others v Netherlands 1986 8EHRR 483]

The CRE took the decision on a simple, deeply flawed and wholly inoperable, principle that they habitually apply only to the Cornish. In doing so they deliberately or negligently ignored inter alia:

1. Barristers opinion,
2. Evidence of discrimination,
3. Evidence that Cornish meet RRA criteria,
4. Massive loss and injustice suffered,
5. Reasons why government enacted RRA [White Paper]
6. Their own terms of reference
7. Council of Europe condemnation of Government treatment of Cornish and same body equating Cornish with Irish Travellers and Gypsies [who the CRE have supported],
8. DfES monitors groups who have no case law history
9. Cornish now obliged to register as White British, and this term has no more legal standing than Cornish.
10. Council acknowledges Cornish as 'ethnic' group.
11. Council cannot now determine if RRAmendment Act complied with.
12. Education policy now based on incorrect data.
13. We asked for the issue of whether the Cornish come under the Act to be treated as a preliminary issue etc.etc.

Supplementary dicriminatory issue of primary importance needing urgent clarification by a court:

The CRE and Home Office say that UK 'ethnic' monitoring is based on ONS Census 2001 categories. According to ONS these groups are categorised as such because they self-define. Yet the Cornish are consistemtly denied rights because they are not a case law recognised group. Other self-defining groups have received assistance from the CRE, but the Cornish are denied assistance on the pretext that they are not a case law recognised group. The CRE agree with the Home Office assertion that the Framework Convention applies only to case law recognised groups, but the UK Convention Report refers to many groups that self-define.

A violation of Article 6 'right of access to a court' has been found where uncertainty in the law deprives an individual of clear, practical and effective opportunity to challenge administrative acts which interfere with his rights.[De la Pradelle v France 1992 Series A No.253-B - Uncertainty over time limits for appeals]. Although when it comes to the Cornish the authorities deliberately confuse ONS Census 2001 self-perception groups with case law groups, there is no correlation between Census 2001 groups and case law recognised groups. It is therefore not necessary to become established via case law to be ethnically monitored and accorded other rights. This duality in the perceived stance of public authorities applies only to the Cornish, gives rise to uncertainty in the law and perpetrates an injustice. The situation needs clarification by a court.

A violation of Article 6 'right of access to a court' has also been found where a litigant lacking the means to employ a lawyer is not granted legal aid in respect of complex cases [Airey v Ireland 2 EHRR 305]. This would apply to the LSC decision, its principle might also apply to the CRE decision. [There is much useful case law surrounding this issue]. The CRE letter of rebutal states that our case would be 'complex'.

WHY HRA, WHY NOT SIMPLY RELY ON RRACT?

We cannot afford several days of court time debating whether the Cornish satisfy meaning of 'ethnic'. Discrimination under HRA is more wide-ranging. HRA is uncomplicated by RRAct and Fraser quagmire. Better to take on CRE, bigger fish with wider positive benefits. HRA and Directive approach will draw more international attention to our plight. More people locally might support action against non-Cornish body staffed by friends and relations.

Also, a substantial body of evidence reveals an irrational refusal by all parties responsible for overseeing effective implementation of UK domestic race relations and administrative redress procedures [Home Office Race Equality Unit, CRE, Standards Board for England, Ombudsman, LSC etc] to properly evaluate evidence and objectively assess Cornish related complaints. In the circumstances, the Cornish cannot in all fairness be expected to rely on such bodies to implement the provisions of this Act in any other way than that which defeats the purpose of the Act.

This is particularly so when considering what is likely to happen when we get sent down Fraser route. We need to introduce a European [Council of Europe/European Union] aspect to the case. We have managed this with Human Rights Act, but what of EU?

CRE NON-COMPLIANCE TO EC DIRECTIVE:

The CRE decision came after July 19th, and is thus subject to the provisions of EC Directive 2000/43/EC. The European Communities Act 1972 makes EC Directives applicable in the UK. The Directive is an overarching, directly applicable, instrument of primary legislation intended to ensure that persons of minority racial or ethnic origin obtain equality before the law. Therefore Community law confers rights upon the Cornish above and beyond domestic legislation and all emanations of the state are covered by the Directive. [Precedent: Article 177 of the Treaty of Rome ensures that Community Law has an authority which can be invoked by individuals in domestic courts.]

Unfortunately, once a Directive is transposed into domestic law the individual can no longer rely on the direct effect doctrine. However, this principle fails if the domestic implementation measures are incorrectly or inadequately applied [Kampelmann v Lanshaftsverband Westfalen-Lippe 1997, ECR I-2771; Marks and Spencer v Commissioners of Customs and Excise 2000, STC 16]. This is so in our case.

The UK 'Race Relations Act 1976 [Amendment] Regulations 2003' incorporate the Directive into the 1976 Act. Although the Directive relates to provision of education, access to services, affording social protection and social advantage, the Directive is not being applied in practice in a correct and adequate way by administrative bodies [Home Office/CRE] to the Cornish.

Prior to the 2003 Regulations, indirect discrimination occurred when a person applied a ‘condition or requirement’ which was apparently neutral but which did, or could, put people of a particular racial or ethnic origin at a disadvantage. The new Directive definition replaces "condition or requirement" with the phrase "provision, criterion or practice". The new definition covers formal requirements, conditions and provisions, as well as informal practices. The CRE's oft-repeated pseudo-reason for refusing to grant assistance to the Cornish is an informal practice that both directly discriminates and indirectly discriminates against the Cornish.

Furthermore, although bodies like the Police, Prison Service, Probation Service, and Crown Prosecution Service are subject to the provisions of the RRAmendment Act 2000, the CRE are exempt. Because the CRE has sole responsibility to take action under the RRAmendment Act 2000 - if the CRE itself fails to adhere to the Act in respect of the Cornish, there is no means of forcing this body into compliance.

Part of the 2000 Amendment makes it a statutory duty for designated public authorities to produce a race Equality Scheme. These schemes show how the authority will "Access and monitor its services and policies to make sure they are not affecting some groups negatively, and that all communities are satisfied with them" and "deal with evidence that its services or policies are not in line with the general duty". The CRE is not subject to these requirements and hence are free to continue ignoring and destroying all complaints from the Cornish. This unilateral, arbitary and discriminatory action is a direct contravention of Art6 of the HRA and Article 2(1), 7(1), 14(a) of the Directive.

Because the CRE are failing to fully implement and apply the overarching EC Directive to the Cornish, the Government are failing to meet even the minimum lawfully required EU standard of protection for this group. Therefore the Home Office claim [REU1] that the Directive gives Cornish people greater protection is false.

Do the CRE Legal Affairs Committee constitute a 'tribunal' as required by the HRA?

The term does not simply refer to "courts of the classic kind" and includes administrative authorities. As the Court stated in Van De Hurk v Netherlands [1994 18 EHRR 481], "the power to give a binding decision which may not be altered by a non-judicial authority to the detriment of an individual party is inherent in the notion of 'tribunal', as is confirmed by the word 'determination'' in the Article". The Home Office has described the CRE as a "quasi-judicial Statutory Commission" [First Report to the Home Affairs Committee 1981-82 HC 46-1]. There is no method of appealing the CRE decision.

In respect of the Cornish, the CRE is acting in breach of its own legislation. The RRAmendment Act 2000 cannot be enforced against this body and UK public authorities in general operate in breach of the EC Directive. There is a given assumption that the UK should not operate in breach of its international obligations [Garland v British Rail Engineering p.177] .

ALTERNATIVES:

We could invoke breach of HRA against CRE as a ground for judicial review OR simply JR decision on grounds of unfairness, abuse of discretion, denial of natural justice etc

Legal Arguments:

Under the ultra vires doctrine a public authority may not abuse its position by exercising discretionary powers in a bad faith or for an improper purpose by taking account of irrelevant considerations or ignoring relevant considerations. The Cornish had a legitimate expectation [Cocks v Thanet D.C. 1983 2, AC 286] that the CRE would treat them the same as they treat other communities. The CRE's attitude undermines the principle of equality before the law. [Diceyan principal]. The CRE abused its powers of discretion when it failed to keep an open mind and:

1. Acted on a flawed and wholly inoperable principle,
2. Failed to take all relevant factors into account. The onus is on the CRE to work to its existing terms of reference and thus give practical effect to the objectives of the RRA as set out by the Act and the White Paper that introduced the Act to Parliament. Because this body acted on a flawed and inoperable principle, the CRE decision was unreasonable, irrational and absurd [Wednesbury Test] .

The decision, taken together with letters kept on file, reveal that the CRE are instinctively unsympathetic towards the Cornish, often making incoherent, rash and unsubstantiated statements in order to avoid offering constructive advice and/or offering meaningful assistance to the Cornish. In March 1999 the Commission for Racial Equality admitted to destroying all complaints from the Cornish. There is no obvious or lawful justification for adopting this irrational stance. If the reason for refusing assistance prevails, the CRE could never again assist any groups in obtaining RRA recognition.

OR

Sue Council under RRA:

We have gone down this road. Unfortunately, unless PoC changed to group action, would need to press ahead with me as single litigant. Insufficient backing to do so. LSC unreasonableness and delay, and CRE hostility and prevarication have compromised our position. Also judges predisposition towards CRE, and deference towards established thinking, will prevent fair hearing. Rests on expensive preliminary hearing establishing the Cornish as ethnic group, which will become a quagmire in itself

OR

Charge CRE with misfeasance in public office [knowing the adverse decision was unlawful]

OR

Group judicial review attempt to obtain mandatory order compelling CRE to:

• examine evidence and properly evaluate case
• indicate whether in their view Cornish are ethnic group
• adhere to RRA/EC Race Directive
• work to existing terms of reference
• stop infering that absence of case law prevents CRE from offering assistance
• stop destroying complaints from Cornish
• stop condoning discrimination
• treat Cornish same as other groups etc

Mandatory orders compel performances of a public [not necessarily statutory] duty. For example, it may be granted where there has been an ultra vires abuse of discretion to ensure the matter is reconsidered according to law. [e.g. Padfield v Ministry of Agiculture 1968 AC 997]. Alternatively, a quashing order would overturn a previous ultra vires decision. Both orders can be sought in respect of administrative acts. [RV Hillingdon Borough Council ex p Royco Homes 1974]

OR

Group JR attempt to obtain mandatory order compelling the Council to adhere to CRE, DfES and Home Office guidance Strasbourg court rulings and domestic legislation.

The order might compel the authorities to:

• Agree to monitor the Cornish in PLASC surveys.
• Base the formulation and implementation of educational policy on ethnic monitoring data that includes the Cornish.
• Refrain from associating the Cornish, and linking their social dimension with irrelevance, danger, unhealthiness, unhelpfulness, uselessness and financial waste.
• Actively challenge and discourage anti-Cornish prejudice and discrimination.
• Ensure that educational bodies Race Equality Policies accommodate the Cornish dimension
• examine existing schemes of work and curriculum guidelines to ensure that full advantage is taken of the National Curriculum when promoting the Cornish dimension
• ensure that the Cornish dimension is taught to all pupils as a cross-curricular aspect and contributes to Citizenship Education
• ensure that pupils and students are taught about ‘difficult’ aspects of Anglo-Cornish socio-political interaction and ‘disturbing’ historical events [Strasbourg Case law]
• ensure that the curriculum meets the schools ethnic, cultural, and linguistic diversity as reflected in an ethnic monitoring programme that must include a category of Cornish
• ensure that resources of every kind reflect the ethnic, cultural and linguistic diversity of Cornish society
• use correct ethnic monitoring data
• update its Educational Development Plan to incorporate the Cornish dimension
• update its Race Equality Scheme to include the Cornish dimension
• ensure that next years DfES ethnic categorisation includes ‘Cornish’
• ensure that all support service staff are aware of how they can help schools promote the Cornish dimension
• properly support schools as they meet the cultural, historical and linguistic needs of Cornish children
• provide training about the Cornish dimension to advisers, teachers, support teachers, classroom assistants, governors and others associated with the care and education of children, pupils and students
• ensure that schools have suitable resources in adequate quantities to promote the Cornish dimension
• advise schools about where they can go for help and support in their endeavours to promote the Cornish dimension
• regularly update schools about Cornish related legal developments and requirements, and provide relevant examples of best practice
• establish professional links with Cornish cultural organisations
• identify how all subjects can respond to the requirements of Education for a Multiethnic Society
• address concerns, or answer questions, from a wide body of opinion [Council of Europe, parents, Cornwall Youth Parliament etc] on the delivery of the curriculum
• ensure that curriculum delivery does not conflict with the aims of Education for a Multiethnic Society - in particular Strasbourg Court rulings pertaining to the content of the curriculum, Sections 406 and 407 Education Act 1996 and the CRE's Framework for a Race Equality Policy for Schools
• monitor regularly the extent to which the LEA itself and schools in particular implement these aims.

We might consider an injunction on LEA or DfES prohibiting them from

1. Publicly branding the Cornish dimension "dangerous, unhealthy, unhelpful wasteful" etc.
2. Inferring that only case law groups are ethnically monitored and
3. Basing the formulation and implementation of educational policy on incomplete ethnic monitoring data etc etc
4. using English and White British in ethnic monitoring surveys. [Public authorities say they are not compelled to use 'Cornish' as absence of case law gives it no legal standing - English and White British 'ethnic' categories have no legal standing either]

END

John Angarrack

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