Initiated in 1949, with the UK as a founder member, the Council of Europe is the oldest international organisation working for the protection of human
rights in Europe. The institution in its
present form serves 800 million Europeans in 47 member states. At the heart of
the Council of Europe lies the European Court of Human Rights, through which
the European Convention on Human Rights is enforced.
There are a number of other C of Eu treaties which member states are asked
to sign up to. The C of Eu Framework Convention for the Protection of National
Minorities is one such treaty. These treaties are not enforced by the Court,
They rely on the ratcheting mechanism of states compiling, and submitting to
the C of Eu, regular reports on measures taken by the state to bring about
implementation.
The C of Eu is nothing to do with the European Union, which operates its
own European Court of Justice. Membership of the C of Eu is not limited to
members of the EU, and withdrawal from this body would still leave the UK as a
member of the C of Eu. The seat of the EU is in Brussels, while the seat of the
Council of Europe is in Strasbourg, France.
The Council of Europe’s Framework
Convention ‘Committee of Experts’ on minority rights [the Advisory Committee]
has consistently come out strongly in favour of Cornish inclusion within the
Convention. For example, the Advisory Committee’s 30th November 2001
formal ‘Opinion’ on the UK 1st Compliance Report included the
following comments:
12. Whereas the Advisory Committee notes on
the one hand that Parties have a margin of appreciation in this respect in
order to take the specific circumstances prevailing in their country into
account, it notes on the other hand that this must be exercised in accordance
with general principles of international law and the fundamental principles set
out in Article 3. In particular, it stresses that the implementation of the
Framework Convention should not be a source of arbitrary or unjustified
distinctions.
13. For this reason the Advisory Committee
considers that it is part of its duty to examine the personal scope given to
the implementation of the Framework Convention in order to verify that no
arbitrary or unjustified distinctions have been made. Furthermore, it considers
that it must verify the proper application of the fundamental principles set
out in Article 3.
14. The Advisory Committee strongly welcomes
the inclusive approach of the United Kingdom in its interpretation of the term
“national minority”. The Advisory Committee notes that the term “national
minority” is not a legally defined term within the United Kingdom, but that the
State Report is based on the broad “conventional” definition of “racial group”
as set out in the Race Relations Act (1976). Under this Act “racial group” is
defined as “a group of persons defined by colour, race, nationality (including
citizenship) or ethnic or national origin”. This includes the ethnic minority
communities. The Courts have furthermore interpreted the term and found it to
include the Scots, Irish and Welsh by virtue of their national origin. On a
case-by-case basis the Courts have also included Roma/Gypsies as well as Irish
Travellers (also defined as a racial group for the purposes of the Race
Relations (Northern Ireland) Order (1997)), Sikhs and Jews.
The
Advisory Committee notes that the Courts have the possibility of defining which
groups amount to a “racial group” under the Race Relations Act (1976). The
Advisory Committee however notes that there are certain groups that have not
(or not yet) been included within the definition while others have and that
this may raise issues of inequalities between groups.
The
Advisory Committee notes that the Government does not consider the people of
Cornwall to constitute a national minority. The Advisory Committee however
notes that a number of persons living in Cornwall consider themselves to be a
national minority within the scope of the Framework Convention. In this, the
Advisory Committee has received substantial information from them as to their
Celtic identity, specific history, distinct language and culture.
Notwithstanding
that the Courts have an important role to play through defining a “racial
group” under the Race Relations Act (1976), the Advisory Committee considers
that there remains scope for covering further groups within the scope of the
Framework Convention.
Similarly, the Advisory Committee’s 6th June 2007
formal ‘Opinion’ on the UK 2nd Compliance Report included the following
comments:
Findings in the first cycle:
27 & 28. In its first Opinion . . . , the Advisory Committee
noted that certain groups have not (or have not yet) been included in the
definition of ‘racial group’, including Muslims and other religious groups
(although, in many cases, the latter are also members of minority ethnic
communities which are covered by the Framework Convention), as well as the
Cornish. The Advisory Committee therefore considered that there remained scope
for covering further groups in the application of the Framework Convention and
called on the authorities to examine this question in consultation with the
persons concerned.
Present situation:
30. The Advisory Committee notes that, since
the first monitoring cycle, the Government has extended other forms of
protection to Muslims, Cornish individuals and Scottish Gypsies Travellers
notwithstanding their non-recognition as racial groups. In the case of the
Cornish, in 2002, the United Kingdom recognised the Cornish language under Part
II of the Council of Europe Charter for Regional and Minority Languages.
Outstanding issues:
31. The Government of the United Kingdom
maintains its position that the scope of the Framework Convention is confined
to the protection of ‘racial groups’ as defined in the Race Relations Act 1976,
which in turn is a matter for the Courts to interpret. The Advisory Committee notes
that there have been calls from different quarters in the United Kingdom,
including from the Commission for Racial Equality, for the Government to take a
broader approach to establishing which groups fall under the scope of the
application of the Framework Convention. The Advisory Committee considers that,
while the ‘racial group’ criterion, as interpreted by the Courts, has allowed a
wide range of groups to benefit from protection under the Framework Convention,
there is a risk that over-reliance on this criterion, without taking other
considerations into account, may result in exclusions from the Framework
Convention’s scope of application of groups that have legitimate claims to be
covered.
33. The Advisory Committee notes that the
Government of the United Kingdom has not adopted the representations made by
Cornish organisations and individuals concerning the possible inclusion of the
Cornish under the Framework Convention’s scope of application. These
representations, which began as the submission of information concerning the
Celtic identity, and specific history, language and culture of the Cornish,
have gained in magnitude over the years, culminating most recently in an
application for judicial review concerning the Government’s non-inclusion of the
Cornish in the second State Report. The Advisory Committee considers that the
‘racial group’ criterion, which requires a Court to determine liability in a
claim of racial discrimination, appears to be too rigid to accommodate the
situation of the Cornish, whose separate
identity and distinctiveness is recognised by the Government of the
United Kingdom in their second State Report.
Recommendations:
35. The Government should consider
supplementing its current criterion based on recognition as a racial group in
case law with additional criteria to ensure that the Framework Convention is
applied in a fair and consistent manner. This concerns in particular the
situation of Scottish Gypsies/Travellers whose formal exclusion . . . ,
36. The Advisory Committee encourages the
Government to consider this question also in relation to the Cornish, whose
claims for recognition under the Framework Convention deserve further
examination, in consultation with the persons concerned.
Census categories.
Findings of the first cycle:
38. In its first Opinion, the Advisory
Committee noted that persons belonging to certain groups (including the Welsh,
Cornish, Ulster Scots and Roma-Gypsies) regretted not having the possibility to
declare their affiliations with a particular group in the context of the 2001
census, even though the possibility of writing in an affiliation to an ‘other’
group existed for certain census categories. The Advisory Committee called on
the authorities to provide greater clarity, in the context of future censuses,
on the possibilities for affiliating to other particular groups.
Present situation:
39. The Advisory Committee is pleased to
note that the ethnic identity questions to be included in the 2011 censuses are
currently subject to review and consultations by each of the of the United Kingdom
administrations. The wide-ranging nature of the consultations, which have
included meetings with representatives of minority ethnic communities, and also
with Cornish organisations and individuals, are to be welcomed in view of the
important role that census categories play not only in the collection of census
data but also in the monitoring arrangements used by public authorities in
order to meet their obligations under their Race Relations (Amendment) Act
2000.
Outstanding issues:
43. The Advisory Committee also notes that
Cornish organisations and individuals have criticised the decision not to
include a separate tick-box for Cornish in the census test question, which, in
their view, prevents the Government from obtaining accurate data about the strength
of Cornish identity.
Recommendation:
45. Whilst recognising the limitations in
terms of space and capacity to process information in the context of the
census, the authorities are encouraged to identify ways of improving the scope
and accuracy of data concerning non-visible minority ethnic communities, if
necessary, by means other than a census, and to consider the proposals of other
groups, including the Cornish.
On 26th October 2007
the UK Government published its response to the Advisory Committee’s latest
Opinion, the content of which was distinctly Orwellian.
Concerns raised by the Advisory
Committee in respect of other groups were discussed in detail by government,
who showed respect and understanding towards the plight of these groups. This
included, for example, many positive references in respect of the non-case law
recognised Ulster-Scots, However, all concerns raised by the Advisory Committee
in respect of the Cornish were entirely ignored.
The level of contempt was such that government could not
bring itself to even mention the Cornish. It was as if the Cornish did not
exist. Upon studying the report further, it was clear that government had made
a conscious decision to wipe the constitutional position of Cornwall, and the
existence of Cornish people, from the legal, administrative and historical
record. |
