THE ROLE OF ENGLISH LAW IN CORNWALL

1. The government of the United Kingdom, in its second report of 2006, unamended by its third report of 2009 on the Framework Convention for the Protection of National Minorities, (from which the Cornish national minority have been excluded since 1998), has informed the Council of Europe that:  “The term “national minority” has no legal meaning in the UK and so there is no mechanism under any of the UK’s legal jurisdictions to grant ‘national minority status’ to any particular group nor is it proposed to introduce any such mechanism”.

This decision was not an Act of Parliament but an ‘Act of Officialdom’.

2.  “A national minority” is included in the list of possible victims of discrimination at Article 14 of the European Convention on Human Rights,  Consequently, the government is actually claiming that  “a national minority” in the Human Rights Act 2000 has “no legal meaning”. Such assumptions to promote an undeclared objective calls into question the integrity of the permanent English majority in the UK government in its methodology of interpretation and application of the Human Rights Act. “No legal meaning”, therefore, appears to reveal that those in power apply rules incompatible with most modern written constitutions guaranteeing the rights of the individual and declaring the enforceable responsibilities of those in power.    “No legal meaning” does not, apparently, apply in English law, to a national majority.

3. Its simple, there can be: “no legal meaning” where there are no legal principles such as:  equality before the law.   “There is no statutory guarantee of equality before the law”, (in respect of English law). (Professor Francesca Klug, Research Fellow, London School of Economics, 6th July 2006).  This basic international human and democratic right of equality has been given an enforceable legal mechanism by the United Nations Universal Declaration of Human Rights 1948, at article 7, “All are equal before the law and are entitled without any discrimination to equal protection of the law.  All are entitled to equal protection against any discrimination and against any incitement to such discrimination”.  The UN comments: “The principle of equality before the law is especially important for groups that are in the minority…..”     This is not available in English law.

4. An official United Kingdom policy of “no legal meaning” for a national minority is tantamount to incitement to racial hatred.  Such dictatorial measures appear to have evolved from the Crown immunity that even the Bill of Rights 1688 was intended to abolish.   Article 1 provides: “That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal”. There has been a failure to prevent the use of the prerogative in English law to execute power on a grace and favour basis, good for some but not for Cornwall.

5. A House of Commons Committee has recently described the royal prerogative as; “It remains impossible to define the exact limits of the prerogative”. The most serious conclusion from this definition is that it is impossible to define the exact limitations of the prerogative in English law.   “The Queen can do no wrong”, and “unaccountable prerogative powers” and “it is not possible to give a comprehensive catalogue of prerogative powers”.  Such is the stated position of:  The House of Commons Public Administration Select Committee in its publication: “PASC 19” of 13th November 2009.  The all party committee did not include the Prerogative in tenure (land holding) in its list of prerogatives, although: ”The Crown is the only absolute owner of land”.  (Land Registration Act 2002, Notes No.4).

6. The standard self-interest opt-out of: “no legal meaning for a national minority” of, by and for the national majority is not an isolated example of the abuse of power in English law.   Professor McAuslan, of the London School of Economics, observes:  “The judgements in this case (The Northumbrian Police Authority, [1989]  1 QB 26 {CA}) seem to be saying that if ministers find that they do not have power under a statute to take a certain action, they can nonetheless take that action and justify it by reference to the Royal prerogative.

7. If they can in addition claim that the action is necessary in the national interest then they will be free of any effective scrutiny”.   (The Independent of 27th January 1998).

8. Even a Constitutional expert confirms the selectivity nature of the use of:  “no legal meaning” in English law:-    “The Human Rights Act, section 21 protects the prerogative by raising the status of Orders in Council made under the prerogative to that of primary legislation”. “As a result, although the courts may make a declaration that an action is incompatible with the convention rights, the Orders in Council cannot be annulled by the courts and will remain valid in the same way as Acts of Parliament”. (Constitutional and Administrative Law, Hilaire Barnett, Cavendish Publishing, 2004, page 157).

9. The suspicion of: “the abuse of power” by claiming: “no legal meaning” may extend to the: “Memorandum of Understanding” for the Monarchy as revealed to the House of Commons on 9th July 2002, by the Paymaster General. (Hansard, Columns 220WH to 225WH).    The Minister revealed: “The basis for the “Memorandum of Understanding” is the long standing rule of statutory construction that statutes do not bind the Crown, including the Queen in her private capacity, unless they are expressly enabled to do so by necessary implication”. The apparently innocent reference to: “The Queen in her private capacity”  includes the Duke of Cornwall but not the Duchy of Cornwall. (Crown Proceedings Act 1947, s.38(3)).    English law for the Duchy of Cornwall, covers the whole of Cornwall on account of its prerogative rights, in Cornwall only, to: royal minerals, base minerals, treasure trove, foreshore, intestate estates, bona vacantia, castles and the appointment of the Sheriff.

10. HM Treasury in its response of 26th July 2006 claims “The Duchy of Cornwall remains private because it has never been taken into public ownership by purchase, under statute or otherwise”.    The Duke of Cornwall as Heir to the Throne is exempt from the Freedom of Information Acts.  Under English law, Duchy of Cornwall lands have also been made exempt whereas, Crown Estate lands are not exempt from the Freedom of Information Acts.

11. It all adds up to: “the abuse of power” as hinted at by the Royal Commission on the Constitution 1973, where it is observed at page 329:  “The Duchy of Cornwall may have been a mark of English over-lordship”.  This appears to accept an early form of racism.

12. The House of Commons standing orders reveal that there is an injunction and a requirement for a substantive motion in the House in order to control questions covering the Duchy of Cornwall.  (Letter to Andrew George M.P. from the Library of the House of Commons of 16th June 1997).  The system, therefore, denies Members the unlimited right to freedom of speech won by the Bill of Rights in 1688Article 9 of the Bill of Rights affirms: “Freedom of Speech” – “That the freedom of speech or debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. This means that English prerogative law can ignore the Bill of Rights.

13. “No mechanism” to change: “no legal meaning” in English law also applies to the legal opinion that:  “certain statutes do not bind the Crown and the Duke of Cornwall”, (National Archives L03/467, Law Officers of the Crown, 1913).  This means that: official racism can be sanctioned by the failure to provide an effective remedy against it. Protocol 12 of the European Convention of Human Rights guarantees: “No one shall be discriminated against by any public authority”.    Protocol 12 has not been incorporated into English law.

14.   The European Court of Human Rights has ruled:  “Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law”.  (Pretty v. UK, 2000, ECHR, para.77).   This should mean the end of exemptions in English law for the Duchy of Cornwall and the end of Cornwall’s exemption from the Framework Convention for National Minorities.

15. Clearly, English law intends to prevent a Cornish minority claim against the institutionalised racial discrimination posed by the three Charters and prerogatives of the Duke of Cornwall in Cornwall and by the exclusion of Crown Estate benefits from Cornwall.

16. Not only does the government of the United Kingdom refuse to provide a one-stop British Constitution, international observers note:  “Institutional racism can only be challenged by the expensive and risky approach of judicial review”. (Laws of the Member States of the European Union, Raxen 4, re, UK Law, Vienna 2004, para.3.2.4.).   Institutional racism in English law extends to renaming pre-England Celtic culture and traditions as English. Although Roman roads, baths and walls are correctly attributed to their originators this is not the case for Tintagel of Arthurian legend which has been handed by the duke of Cornwall to English Heritage.  The date of the transfer would not be divulged by the duchy on the grounds of exemption under the Freedom of Information Act .  (Duchy letter 22nd February 2005).

17. Everything in the Duchy of Cornwall Charters is granted “for ever”, including Tintagel castle.  Consequently, this transfer of property by the Duchy to English Heritage has been made without the authority of an Act of Parliament representing a further case of English prerogative law acting in the execution of laws contrary to the Bill of Rights 1688.

18. ‘The legal meaning’ for “Crown lands” is: “The lands which the Sovereign enjoys in her political capacity in right of the Crown”.   (Halsbury’s Constitutional Law 4.Ed: Vol.8: para.1416).   The Crown Estate Act 1961 authorises social benefits and marine stewardship funds throughout the United Kingdom except Cornwall. In 2005 the Crown Estate affirmed: “The analogous landowner in Cornwall is the Duchy of Cornwall”.  The Duchy does not provide a similar Crown Estate service in Cornwall.  “No legal meaning” in English law  may help to hide the exclusion of Cornwall from Crown Estate support.

19. Crown lands are defined by: “Domesday Book of 1086 is evidence of what land belonged to the Crown”.  (Halsbury’s Laws, Vol. 8, Constitutional Law, para.1418).   There is no entry in the Cornish Domesday in relation to tin or mining.   “What land belonged to the Crown” is in conflict with: “The Crown is the absolute owner of land” according to the Land Registration Act 2002, which at section 84 provides for the: “Disapplication of requirements relating to Duchy land”.  And yet, the: “Assets of the Duchies of Lancaster and Cornwall do not belong to the Queen or the Prince of Wales and are not theirs to dispose of”.  (Paymaster General, Hansard, Columns 220WH to 225WH, 9th July 2002) .  The Duchy estates revert to the Crown when there is no Duke.     There are then; assets that do not belong to the political owner of all land and there is a Duchy private estate which does not belong to the Duke of Cornwall.

20. The provision of Duchy of Cornwall exemption from the registration of its land along with exemption from compulsory purchase, (Planning and Compulsory Purchase Act 2004, s.84; schedule 3(3)) has enabled the duchy to sell unregistered Cornish assets and to relocate them by purchase and registration outside Cornwall.  It helps to conceal the legal meaning of ownership and the part it played in Cornwall’s downfall from nation to county in English law under the Duchy of Cornwall’s “government” of Cornwall. (para.30).

21. From the very beginning the Duchy of Cornwall was of obscure or :  “no legal meaning”, since,  the first Duchy of Cornwall Charter, of 17th March 1337, created “a mode of descent unknown to the common law”. (Halsbury’s Ed.4 Vol.8, Constitutional Law, para.1560). The Charter claimed the pre-England Cornish mining organisation as: “Our Stannaries” and a coinage or tax was levied on the Celtic Cornish at twice the rate applicable to Anglo-Saxon Devon up to 1838. (Coke.4.Inst.33).  Clearly, a racially motivated decision with no redress procedures and no Parliamentary authority. The First Duchy of Cornwall Charter (11.Edw.3) was printed by Her Majesty’s Stationery Office in 1978 as “Statutes in Force”, Constitutional Law: 10.    Thirty years later HM Treasury claims it is a private estate.

22. In 1688 the Royal Mines Act declared:  “no tin or copper shall be taken as a royal mine”.   English law has permitted the Duchy of Cornwall to ignore this Act of Parliament in Cornwall.   Halsbury’s Laws, 4th Ed., Vol.8, Constitutional Law, para. 920, reveals:-  “At common law the Crown is not entitled by virtue of the royal prerogative to take possession of a subject’s property for reasons of state without paying compensation”.

23. The compensation required is honesty in English law through recognition of Cornwall’s Celtic identity and national minority status.

24. On the 17th March 1337 English law supported three charters to acquire the mining assets of Celtic Cornwall to provide an income for the heir to the throne and, thereby, relieve the English population of the duty to pay for the Heir to the Throne through taxation.

25. Halsbury’s laws makes no reference to the second, or next day, (18th March 1337) or the third of Duchy of Cornwall Charter of 3rd January 1338 which grant: “The King’s Writ and Summons of Exchequer and Attachments throughout Cornwall” for the Duke of Cornwall. Literally, dictatorial powers “throughout Cornwall”. That is, the “King’s writ” and “official acts” exercised by the Duke were intended to reinforce and consolidate Duchy claims to properties in Cornwall only,  but not for those to the East of the River Tamar.

26. The Duchy of Cornwall privileges, prerogatives and exemptions from the Freedom of Information Acts 2000/2010 in respect of its properties in Cornwall, have the effect of declaring important aspects of Cornwall and its history to be a state secret.   English people may not wish to be reminded that in the middle ages they and their M.P.s were disinclined to pay for the upkeep of the Heir to the Throne (by claiming that the King should live of his own) and were glad that the Duke of Cornwall was given official and legislative backing in English law to exploit Cornwall and its assets so that they could avoid their national majority duty of paying any additional taxes for the royal family.

27. “The legal background to the Duchy (of Cornwall) makes it clear that it belongs to the Crown.   What is invidious about the position of the Duchy is its compromising of the original principle of English constitutional law, that the Monarch should be dependent on Parliament for finance”. (Who Owns Britain, Kevin Cahill, Canongate, Edinburgh, 2002, page 91).  The House of Commons Public Accounts Committee asked in 2005: “Is it not in trust for the nation” and the Secretary to the Duchy of Cornwall replied: “It is a private estate”. “The Duchy of Cornwall remains a private estate because it has never been taken into pubic ownership by purchase, under statute or otherwise”. (HM Treasury, 26.03.2006).   English law, therefore, is at odds with English constitutional law.

28. The original principle of English constitutional law was that Parliament would raise the necessary taxes to provide an income for the heir to the throne. As an exception to this constitutional rule, the Celtic country of Cornwall, its tin, land and archaeological assets, were chosen to relieve English people of their constitutional duty of paying taxes for the upkeep of the heir to the throne.   If the Duchy exercised the power of the state as a private estate in secret by virtue of its second and third charters, then English laws were disregarded to enable Cornwall, a separate country, to be exploited without an effective remedy.

29. There is an historical precedent for the administration of the Duchy of Cornwall as a separate country to provide an apprenticeship for Kingship in the case of Charles the First.  A former high ranking official of the Duchy has observed in respect of Charles the First as Duke of Cornwall:-   “The Prince may have become the victim of his own success, believing that he could govern the realm as he had the Duchy”. (The Estates of the English Crown 1558 – 1640, (Ed. R.W.Hoyle), Graham Haslam, Cambridge University 1992, p.296).

30. In the Foreshore dispute between the Duchy of Cornwall and the Crown, 1854-58, the duchy re-asserted its charter rights to: “the government of Cornwall. (National Archives CRES 58/741).  The reference to such powers and prerogatives obviously reflect a secret agreement between the various arms of the state to protect Duchy of Cornwall interests without defining the legal meaning.   In effect, “no legal meaning” or “beyond the rule of law” is an Act of Officialdom used to facilitate the continuation of Duchy exploitation in Cornwall granted by English law with secrecy consolidated by the denial of the European Convention rights of the Cornish national minority of pre-England origins.

31. “HM Treasury shall have regard to the interests of present and future Dukes”. (Duchy of Cornwall Management Act 1982, section 8).  This appears to give HM Treasury authority to promote: “statutes that do not bind the Crown” (para. 9 and 14) and exert pressure on other departments of state.     This “Treasury regard”, undefined in English law, may extend to Duchy exemption from the Equality Act 2010, under section 149 to 156 in respect of a “Public sector equality duty” in Cornwall.  The Supreme Court Act 1981, section 120, covers the exemption from sureties in the administration of bankruptcies and freedom from liabilities, for: “a consular officer of a foreign state and the Duke of Cornwall, etc.

32.  There is a reference to the Duchy of Cornwall as: “the largest mineral lord in the South West” in the documents submitted to UNESCO which secured for Cornwall the Cornish Mining World Heritage award.  A great deal of information on Cornwall’s history and culture is recorded in the World Heritage document now on line at www.cornish-mining.org.uk

33. Clearly, although certain limited public duties are officially admitted, the public powers of the Duke are being kept secret.  The Duke also has the right to intervene in or control legal proceedings affecting his constitutional: “rights, property and profits” under the Crown Proceedings Act 1947, section 40 (2g).    If legal proceedings were undertaken for a racial discrimination case involving the Cornish national minority the central proof of identity would involve English law in the 670 years of Duchy of Cornwall history in Cornwall.   If, in such a case, the Duchy were to intervene to claim that such facts on legal record might compromise its: “rights, property or profits” in Cornwall the Cornish must assume automatic failure while the dice is so heavily loaded against them. This arouses the suspicion that the Duchy of Cornwall has exemption from the restrictions in the Bill of Rights on: “the suspending of laws and the execution of laws” applicable to Cornwall.

34. A way forward may be inspired by the hopes of HM The Queen expressed on the occasion of Her visit to Ireland:  “With the benefit of historical hindsight we can all see things we would wish had been done differently or not at all”.  (The Sunday Times, 27th May 2011).

35. The outstanding case of recognition of the Cornish for inclusion within the provisions of the Framework Convention for the Protection of National Minorities needs to be grasped and solved in order to demonstrate the integrity of English law. Definitions are long overdue for the legal meaning of the term:  “an indigenous Cornish Celtic national minority of pre-England origins in Britainas well as:  an English national majority of Anglo-Saxon and Norman origins and, not least of all, the legal meaning of the term: Duchy of Cornwall.

36.  Conclusion:- It is now time for English people to admit the truth about English law in Cornwall.  There is also an urgent need to enforce the Bill of Rights and introduce equality before the law as the guiding principle of English law in its legislative and executive decision making processes.

Colin Murley

© Save Cornwall 2011

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