Cornwall, minorities and the law

The United Kingdom signed the Council of Europe Framework Convention for the Protection of National Minorities¸ (CETS No.: 157) on 15 January 1998, and on 24 April 2014 a Treasury/DCLG Press Release announced that “the proud history, unique culture, and distinctive language of Cornwall will be fully recognised under European rules for the protection of national minorities”.  However, it also included the caveat that

“The government’s approach to the Framework Convention is to be modified to recognise the unique position of the Cornish as a Celtic people within England. It is without prejudice as to whether the Cornish meet the definition of ‘racial group’ under the Equality Act 2010, as only the courts can rule on that”.

The circular nature of the definition of “racial group” in section 9(3) of the Act would certainly benefit from some clarification, i.e.  “[a] racial group is a group of persons defined by reference to race; and a reference to a person’s racial group is a reference to a racial group into which the person falls,” but given the government’s reluctance to include “caste” as a protected characteristic under section 9(5) after its substantial defeat in the Lords, further statutory clarification seems unlikely under the present administration. However, a fuller definition is included within the Crime and Disorder Act 1998 (as amended)[1], “A racial group means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins”, for which CPS Guidance includes a number of case-law examples demonstrating its application.

The Cornish language is the only language in England recognised under theSt Piran, St Ives, IMG_3512(02) Council of Europe’s Charter for Regional or Minority Languages. In March 2014, the government announced a further funding of £120,000 to the Cornish Language Partnership for the development and promotion of the Cornish language which since 2010 has received over £500,000 in government funding. Of the 560,000 people in Cornwall recorded in the 2011 census, 84,000 people declared themselves as Cornish rather than English, and although in 2010 the United Nations classified the language as extinct[2], there are now 557 people who claim it as their main language.

Few are willing to speculate on what benefits this new protection as a National Minority, but it is likely that Mebyon Kernow, the “progressive left-of-centre party in Cornwall”, will take advantage of this new status in its campaign for the creation of a legislative National Assembly for Cornwall and greater decentralization. Although clearly not a “law and religion” issue, the so-called “pasty tax” and its recent consequences on a large Cornish producer will be used as an example of the problems caused by “London-based legislation”. However, it could be argued that if the pasty had not been given Protected Geographical Indication (PGI) status in 2011, the effects of the tax on pasties would not be restricted to Cornwall, as in the case for other catering and take-away food.

Duchy of Cornwall

An indirect impact of the recognition of the Cornish people as a National Minority group will be to focus attention on the finances and privileges of the Prince of Wales as Duke of Cornwall. Although not directly linked to recent events, Lord Berkeley’s Private Members’ Bill Rights of the Sovereign and the Duchy of Cornwall Bill [HL] 2013-14, which received its second reading on 8 November 2013, summarizes some of the issues that might be raised. The Bill seeks to:

“ . . . amend the Sovereign Grant Act 2011; to amend the succession to the title of the Duke of Cornwall; to redistribute the Duchy of Cornwall estate; and to remove the requirement for a Parliament to obtain the Queen’s or Prince’s consent to consideration of Bills passing through Parliament.”

The succession to the title of Duke of Cornwall was not changed by the Succession to the Crown Act 2013 during the Bill’s rushed passage through parliament.  The Duchy’s 1337 charter established that the Duke of Cornwall is the eldest surviving son of the monarch and the Heir to The Throne, and when the current Prince of Wales accedes to the throne, Prince William will become Duke of Cornwall, as he still would, theoretically, if he had en elder sister.

A summary of the financial issues relating to the Duchy of Cornwall is to be found on its FAQs web page, which includes information on: the 7,119 hectares of land in Cornwall owned by the Duchy, (i.e. 13 per cent of the total Duchy estate); bona vacantia, its administration by Farrer & Co, and the Duke of Cornwall’s Benevolent Fund; issues of income tax, capital gains tax and corporation tax, and the roles of the Treasury and National Audit Office; the registration of mineral rights; and the Prince’s approval on certain parliamentary Bills, below. However, a different view has been advanced by the Duchy of Cornwall Human Rights Association, here.

Consent of Prince of Wales to Parliamentary Bills

Provisions that expressly mention the Duchy of Cornwall or otherwise have a special application to it are required to have the consent of the Prince of Wales as well as that of the Queen.  Provisions in which Duchy land is treated in the same way as other Crown land do not generally need Prince’s Consent, as the Queen’s Consent is taken to include the Consent of the Prince of Wales.  This has been the subject of a FoI request; but fuller details are contained in the pamphlet Queen’s or Prince’s Consent.  The latter was produced for members of the Office of the Parliamentary Counsel in relation to the process involved in the drafting of legislation; and Annex A contains examples of where it has been required. In modern times, the Prince of Wales has never refused to consent to any bill affecting Duchy of Cornwall interests, unless advised to do so by ministers. Every instance of Prince’s Consent having been sought and given to legislation is a matter of public record.

Stannary Courts and Parliament

Reference to the stannary courts and stannary parliament was made in some of the material in the campaign for National Minority Recognition which noted (in 1999):

“the relevant point in respect of the Cornish claim to be a national minority is that people in Cornwall have revived the claim of Stannary rights, meeting regularly since 1974 and actively demanding the recognition of rights long since ignored by Westminster.  The existence of bodies like the Stannary Parliament both reaffirms the distinct constitutional history of Cornwall and provides an ethnic dimension to contemporary protest movements that is rarely found in England.”

These legislative and legal institutions in Cornwall (and Devon) date from the Middle Ages; administered equity for the region’s tin-miners and tin mining interests; and were courts of record for the towns dependent on the mines.  Their present status and that of the Duchy of Cornwall were outlined in a parliamentary answer on 6 March 2007, [HC Hansard 6 Mar 2007 : Vol 457 Col 1878W]:

Andrew George:  To ask the Minister of State, Department for Constitutional Affairs what assessment she has made of the constitutional status of  (a) the Duchy of Cornwall,  (b) Cornwall and  (c) the Isles of Scilly. [125139]

Ms Harman: The Duchy of Cornwall is a private estate that funds the public, charitable and private activities of the Prince of Wales, the Duchess of Cornwall, Prince William and Prince Harry. Cornwall is as an administrative county of England, which is subject to UK legislation. The county elects MPs to the UK Parliament and has always been an integral part of the Union. Similarly, the Isles of Scilly are represented in Parliament as part of the St. Ives constituency. The Government do not intend to change the legal position of the Duchy nor the constitutional position of Cornwall.

and on 29 March 2007, by Bridget Prentice, Parliamentary Under-secretary, Ministry of Justice in a Commons Written Answer, [HC Hansard 29 Mar 2007 : Vol 458 Column 1673W]:

“ . . . . On the question about stannary organisations, there are no valid Cornish stannary organisations in existence. It is noted that stannary courts were abolished under the Stannaries Court (Abolition) Act 1896.  Cornwall has always been an integral part of the Union. There are no treaties today that apply to Cornwall only. With the exception of geographically limited matters such as Private Acts of Parliament for infrastructure works, Acts of Parliament, regulations and statutory instruments apply in Cornwall as they do throughout England, but do not always apply to the Isles of Scilly. There is no special status for legislation which applies to Cornwall or to Cornish localities.”

[1] Sections 28(4) and 50A(6).

[2] The last sermon to be preached in Cornish was at St Wynwallow’s Church, Landewednack in 1678, although there are rival claims from churches of St Tewennocus, Towednack, and St Paul the Apostle, Ludgvan.

3 thoughts on “Cornwall, minorities and the law

  1. The requirement for Queen’s and Prince’s Consent is a purely internal rule of Parliamentary procedure (see Erskine May); therefore no legislation is required to change it, merely a resolution of each House.

    • That would be my view as well. The other point is that, in spite of efforts to change the procedure, Queen’s and Prince of Wales’s Consents are still given in the two Chambers and minuted: so, as David points out, there’s nothing secret about the procedure in spite of what some commentators have suggested.

      (I might also add, as a former Clerk of Bills in the Commons, that the whole thing is a minor administrative nightmare and on one horrible occasion I forgot to put a Queen’s Consent on the Order Paper: aargh.)

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