CFF

EURAC DRAFT STUDY on the
COUNCIL OF EUROPE FRAMEWORK CONVENTION PROTECTION OF NATIONAL MINORITIES

SUGGESTIONS ON CONSULTATION COMMENTS FROM THE CORNISH

It has been circulating for some time on Cornish internet blog sites and chatrooms that the European Academy of Bolzano/Bozen (EURAC) has invited persons belonging to national minorities, non-governmental organisations and experts working in the field of minority protection to provide their input into a study on indicators for assessing the impact of the Framework Convention for the Protection of National Minorities (FCNM). This consultation will feed into an evaluation process of the Framework Convention’s impact in its State Parties.

EURAC’s text continues, “The consultation process was launched in Strasbourg during the conference to mark the 10th anniversary of the FCNM’s entry into force held on 9-10 October 2008. The aim of the study is to identify indicators that would help to review the impact of the FCNM in the legislative and political environment as well as in the field of the judiciary. In order to produce as complete a study as possible, it is essential that those interested and, in particular, persons belonging to national minorities, comment on the text. Umbrella organisations and federations of associations of minorities are kindly invited to forward the message to their members.”

Although the above text makes it clear what those who wish to contribute to the consultation are being asked to do, some Cornish contributors appear to have misconstrued what is required of them and seem intent on simply making the case for Cornish inclusion within the FCNM to the authors of the draft EURAC study. As the writers of the study have not asked for excluded groups to make their case for inclusion to them, and in any event have no powers to compel state parties to alter their respective positions, this is an entirely inappropriate course of action which serves only to confuse the situation.

This short essay intends to clarify what is being suggested by the EURAC public announcement and also make some suggestions as to style and content should anyone wish to take part in the consultation exercise. In essence, the authors of the EURAC draft study are asking people/groups to comment on the text of their 98 page document entitled “Indicators for assessing the impact of the FCNM in its state parties” available HERE: FCNM Indicators Study_draft.pdf

The aim of this exercise is to help EURAC assess what, if any, impact the Convention has made on the situation of minorities in Europe. Of course, for the Cornish there is no impact, so our exclusion tells them nothing about how the Convention is impacting those UK communities that are supposedly benefiting from inclusion.

For those Cornish individuals and groups that do wish to comment point by point on the draft study in respect of UK implementation [particularly with regard to the Cornish situation], suitable areas of the draft study worth reading and commenting on include the following:

Section B. Political discourse indicators:

1. Government actions and practices:

Indicator B. Increased and improved dissemination efforts.

2. Public debates:

Indicator E. Increased attention to FC provision in parliamentary politics.

Indicator F. Increased attention to FC provisions in local politics.

Indicator I. Increased attention to FC provisions in public spaces.

Section C. Legislative Indicators:

1. Right to existence and recognition of minorities:

Indicator A. Status of FCNM in the domestic legal system.

Indicator B. Scope of application of the FCNM and definition of minorities.

Indicator C. Data Collection.

3. Right to identity and diversity:

Indicator F. Educational rights.

Section D. Judicial Indicators:

1. Courts structures and organisation:

Indicator A. Awareness raising about minority issues and and training on the FCNM.

Indicator C. Accessibility to the judiciary.

Indicator D. Coordinated efforts in dealing with discrimination or ethnically motivated incidents.

2. Judgements:

Indicator E. Direct applicability of the FCNM within the national system.

Indicator G. ‘Constructive’ use of the FCNM.

Indicator H. ‘Destructive’ use of the FCNM.

Those commenting on the draft study might wish to highlight the fact that the UK Government has admitted to signing the Convention for the wrong reasons [See my last book ‘Scat t'Larrups' p. 172]. Here we find that the UK Government signed the Convention not to fulfil Convention principles, but to, “underline its commitment to tackle racial discrimination”.

While taking measures to prevent racial discrimination is a noble cause, it is not the same as protecting the existence of endangered minorities. Combating discrimination involves taking actions to treat people equally, whereas protecting minorities involves generating different treatment in order to preserve characteristics possessed by the minority that distinguish them from the majority. There are, therefore, subtle differences between preventing discrimination, which in the UK is the function of Race Relations legislation, and the protection of minorities, which is the role and purpose of the FCNM.  Yet the UK Government chooses to misconstrue the function of the FCNM and merely interpret it as a vehicle to prevent racial discrimination. This is why the UK Government asserts that it already satisfies all the requirements of the FCNM [see below].

To clarify matters, the prevention of discrimination requires the elimination of imposed adverse distinctions, whereas the protection of minorities requires the establishment of safeguards to preserve distinctions voluntarily maintained. By misapplying the Convention, its potential to protect minorities in the UK is effectively neutered. This fundamental flaw is the principal reason why the Convention is having next to NO impact in the UK.

In the context of the draft EURAC study, and with particular regard to the relevant sections highlighted above, the authors of the study should also be informed that the UK Government does not know, and will not say, which groups are covered by the Convention [See Scat t'Larrups p.173 & p.297]. In essence, the UK Government is refusing to publish a list of Convention groups - appearing instead to prefer to keep inclusion vague and incoherent, which in turn generates apparent inconsistencies - particularly when assessing the position in respect of groups such as the Ulster-Scots, Irish Travellers, Gaels, Scottish Travellers and the Cornish.

In both UK compliance reports [1999 and 2007] we find that the Cornish are the only UK group singularly targeted and overtly excluded from the Convention for the stated reason that they are not a UK Race Relations Act case-law recognised group. However: a) the Irish Travellers were included as a Convention group in the first UK compliance report - which was published well before this group became a case-law recognised group; b) the non-case law recognised Scottish Travellers, which are stated in the second UK compliance report as being a non-case law recognised group, are nevertheless in that same paragraph deemed to be a Convention group; c) the non-case law recognised Gaels and Ulster-Scots have been treated in both UK compliance reports, and in UK Government correspondence with the Advisory Committee, as if they were case-law recognised, and hence Convention, groups.

Of course, in the case of the Ulster-Scots, the Government is playing a duplicitous game. By refusing to publish a definitive list of Convention groups, the Government can suggest to the Cornish that the non-case law recognised Ulster-Scots are not a Convention group whilst at the same time suggesting to the Ulster-Scots lobby that they are [See Scat t'Larrups p.231, 232, 217 and 218, for evidence of this policy in action]. This gives the non-case law recognised Ulster-Scots the satisfaction of seemingly obtaining parity of esteem and equality of status with the case-law recognised [and hence Convention included] Irish, who are their long-standing political/cultural rivals.

Unlike the situation of the Cornish, where the Government sends a clear and unambiguous message to decision takers/policy makers that the Cornish are to be deprived of Convention benefits, at no time in any of the UK Convention compliance reports do the Government state or even imply that the Ulster-Scots are not a Convention group - and should therefore also be deprived of Convention benefits.

As the Government are determined to keep the application of the Convention vague, and have consistently resisted all attempts to force them to name which groups are included and which groups are excluded, how will UK legislators, policy makers and service providers know which groups to award Convention rights and benefits to? Moreover, in the absence of case-by-case quantitative and qualitative benchmarking processes, how can the Council of Europe and other monitoring bodies assess the effectiveness of Convention implementation? [See Scat t'Larrups p.173 for further information]

It is noticeable that EURAC’s draft study makes special reference to data acquisition. The authors of the study raised this issue in conjunction with the Jan 2003 Committee of Ministers Resolution requesting that state parties supply statistical data on groups covered by the Convention - a request studiously ignored by the UK Government in its subsequent 2007 second compliance report. But how could the UK Government possibly satisfy this requirement when it stubbornly refuses to provide the Council of Europe with a definitive list of groups that are covered by the Convention?

EURAC’s draft study draws attention to the Advisory Committee’s statement that the Convention “should not be a source of arbitrary or unjust distinctions.” Any comment by us on this should draw attention to the fact that in the UK [particularly with regards to the application of the Convention to the Irish Travellers, Ulster-Scots, Gaels, Scottish Travellers and the Cornish], groups in analogous, or relevantly similar, situations are being treated differently and without proper justification. This deliberate policy undermines the principle, aims and spirit of the Convention.

Another point worthy of mention in any commentary is the fact that in 2007, the Government stated that the Convention “does not govern policy or lawmaking in the UK”, [See Scat t'Larrups p.294] and in any event, it already “fully meets the requirements of the Convention” [See Scat t'Larrups p.174], so sees no need to take any measures in respect of implementation. In other words, according to Government, the Convention [and the associated monitoring system] is redundant window dressing. As shown earlier, this ties in with the Gov stating that it signed the Convention merely to combat discrimination.

Commentators might also include reference to the fact the UK Government is of the opinion that the Convention, as applied in the UK, ”does not confer any benefit to those who are recognised under it” [See Scat t'Larrups p. 301 and p.303] and those falling under the protection of the Convention in the UK “do not stand to gain anything” from inclusion [See Scat t'Larrups p.301].  Once again, the actual purpose of the Convention is dismissed by the UK Government as something for others to implement.

There are of course many other areas for commentators to focus on. For example, the Government is relying on the Cornish inability to achieve case law recognition under UK law as a means to deprive them of the protection of international law. Aside from the fact that Government agencies have actively assisted other groups to gain the stipulated domestic legal recognition, and have consistently refused to do so for the Cornish, the Cornish inability to acquire case law recognition is, under international law, not permitted to act as a barrier to being recognised as a minority and treated as such. As long ago as 1947 the Creco-Bulgarian Communities judgement determined that the factual existence of minorities outweighs any artificially contrived domestic legal barrier: “The existence of communities is a question of fact, not a question of law”.

Although these are merely suggestive topics, any worthwhile commentary would conclude that the UK Government signed the Convention as a public relations exercise, and has no intention of properly honouring its numerous commitments under it.

If commentators wish in the course of their response to make a case for the Cornish, this should be done as briefly as possible, preferably by simply re-stating the many positive observations on this subject made by the UK Commission for Racial Equality and the Council of Europe Advisory Committee itself.

John Angarrack [author ‘Scat t'Larrups? - Resist and Survive' 2008]

Director, Cornwall 2000.

Feb 2009

Further reading: http://Cornishfightingfund.org

Those interested in submitting comments on the draft study are invited to convey their views and proposals to the authors [not later than 31 March 2009] at: fcnm.consultation@eurac.edu.