Boundary Commission third consultation - Reasons why any changes to the border of Cornwall are illegal

Reasons why any changes to the border of Cornwall are illegal

PLEASE can ALL KMTU MEMBERS work through the following and COMMUNICATE OBJECTIONS to the Boundaries Commission who are seeking public views for a third occasion.

information@boundarycommissionengland.gov.uk

The evidenced facts below will provide plenty of material for objections as well as containing direct references to the law and treaties and conventions at the end.

The Boundary Commission (BCE) can be contacted on:

information@boundarycommissionengland.gov.uk

THE CASE AGAINST THE PROPOSED CROSS-BORDER “BIDEFORD, BUDE AND LAUNCESTON” PARLIAMENTARY CONSTITUENCY

Two established and essential legal points to remember:

“The whole territorial interest and dominion of the Crown in and over the entirety of Cornwall is vested in the Duke of Cornwall”, confirming that Cornwall has a separate Head of State from the remainder of the UK. This was upheld in the High Court in 1855, during the Duchy v Crown Foreshore dispute, and again as recently as 2011.

“Although Cornwall is de facto administered by England, a formal de jure joinder of Cornwall and England has never taken place.” (G.D Flather, Queen’s Counsel attached to the Boundary Commission 1988).

These remain undisputed at law.

THE BORDER

Formed almost 1,100 years ago, Cornwall’s border at the River Tamar is one of the very oldest consistent and surviving borders in the world.

Accepted to have been fixed at mean high water mark on the left (east) bank of the River Tamar by King Aethelstan c.930 AD, to form the southwestern boundary of his new kingdom of England, preserving an autonomous Celtic kingdom of Cornwall, apparently by treaty with King Huwal of Cornwall.

The same border was observed in Cornwall’s exemption from the tripartite English legislature introduced by Cnut in 1015, an exemption observed by William I and written into the Leges Henrici of Henry I until at least 1135, and throughout the Earldom of Cornwall. Had the border not been viewed as sacrosanct, Cornwall would have been included in ‘Wessexlaw’ from the outset, but it was not.

The same border was written into the Duchy of Cornwall Charters of 1337-38, in perpetuity, as confirmed in the wording of (for example) the Tamar Bridge Act of 1998. This border is therefore enshrined at law today and in perpetuity. A breach of this border is therefore unlawful.

CONSTITUTIONAL DIFFERENCES BETWEEN CORNWALL & DEVONSHIRE

Cornwall’s de jure Head of State is the Duke of Cornwall. Devon’s is the Monarch.

Cornwall’s High Sheriff is (uniquely) an appointment of the Duke of Cornwall. Devon’s High Sheriff is an appointment, as elsewhere in the UK, of the Monarch. This presents an immediate difficulty:

The High Sheriff acts as Returning Officer (RO) for parliamentary elections in “county constituencies”, but normally delegates the task to Acting Returning Officers (ARO). Which of the High Sheriffs shall be selected as Returning Officer in the proposed constituency? If Cornwall’s is selected, then that effectively and unlawfully intrudes part of the Monarch’s realm into that of the Duchy, and vice-versa should Devon’s be chosen. This could well lead to a further Duchy v Crown legal dispute, the most famous of which – the Foreshore Dispute of the 1850s - dragged on for 4 years (the Duchy being the successful party).

Cornwall is subject to peculiar sui generis laws that do not apply to Devon or the remainder of the UK. Including such items as bona vacantia, right of wreck, ownership of the foreshore and many more, these largely relate to the Duchy Charters and to Stannary Law, and all remain unassailably intact at law. How will these differences be adequately represented or understood by a single Member of Parliament?

The “owner absolute” of the soil in Cornwall is the Duke of Cornwall. The “owner absolute” of the soil in Devon and the remainder of the UK is the Crown.

Devon is a shire county. Cornwall is not. It is a Duchy (Royal Commission on the Constitution 1973), and indeed formerly contained shires of its own as noted by Simeon of Durham c.1105. Learned legal opinions have concluded that Cornwall’s constitutional status resembles both a County Palatine and a Crown Dependency, but conforms to neither one. Its status is considered “unique” and “in a category of its own”. (Dr John Kirkhope, Notary Public, Weston-super-Mare).

Cornwall is the confirmed territory inhabited by a formally recognised National Minority people: the Cornish. Devon is not. The importance of historical and cultural territorial integrity is written into the Council of Europe’s Framework Convention for the Protection of National Minorities (FCPNM), and is legally binding upon its signatories, of which the UK Government is one.

The FCPNM was not in place for the Cornish national minority at the time of the Parliamentary Voting System and Constituencies Act 2011 (‘the Act”), but took effect on 24th April 2014. At that time, the Communities Minister assured the Cornish national minority that it would henceforth enjoy the same status and rights as a national entity that the Welsh and the Scots possess, and whose borders are to remain inviolate. The Government and the Boundaries Commission have utterly failed to take this legally binding Framework Convention into account. Therefore, an immediate amendment to the Act must now take place to take full account of this Framework Convention and, indeed, all other Acts and Charters which render this border legally inviolate.

The territory of Cornwall is also home to a legally recognised and protected minority language, Cornish, under the Council of Europe’s Charter for Regional and Minority Languages. Devon is not part of this territory.

FURTHER POINTS

The Government and the Boundary Commission are in serious error by basing the proposed constituencies on the number of voters give in the electoral roll at the time of the 2015 general election. They have taken no heed of the 52,500 houses to be built in Cornwall before 2030, most of them unaffordable to local purchasers, and which imply an influx into Cornwall of up to 150,000 additional people or perhaps another 100,000 to be added to the electoral roll within the next 14 years. Basing numbers on the 2015 electoral roll is not only short-sighted, but wholly unrealistic, and would defeat the stated aims of the parliamentary constituencies review.

On the strength of the verifiable evidence given above, it is my firm belief that Cllr, John Pollard, then Leader of Cornwall Council and re elected, is absolutely correct in calling the proposal for this cross-border Bideford, Bude and Launceston constituency “unlawful”, and that a Judicial Review should be sought accordingly.

Alternatively, an immediate Amendment to the Parliamentary Voting System and Constituencies Act 2011 should be sought in order to declare Cornwall a “special case”, as has already been applied to other areas of the UK. In this, the criteria currently in use to determine the revised constituencies may be relaxed in order to fully respect and protect Cornwall’s historic and constitutional border by ensuring that no new constituency crosses it to include territory on both sides and which fall under differing jurisdictions of Crown and Duchy.

TWO DOZEN REASONS WHY WE STAND AGAINST THE UNLAWFUL IMPOSITION OF ‘DEVONWALL’

1. Areas with the lowest levels of registration are often those that already have the least voice in politics. Young people, some ethnic minority groups and those in the private rented sector are all less likely to register to vote than others. That makes many of them effectively cut out of the new political map when those areas get less representation than other areas. Everyone deserves representation, not just those on the register.

2. The review is being undertaken on the basis of a register that’s nearly a year out of date - excluding over two million people who signed up between December and June. That means some regions are two seats short of what they are owed. It would be much fairer – and would make more sense - to draw boundaries based on eligible population rather than an incomplete electoral register. In Cornwall alone, 52,500 homes are to be built in these coming years meaning a massive increase in population.

3. Addressing the carving up of communities themselves, the rigid 5% threshold – the maximum difference in size between constituencies – means that some communities will be split up, while others will be merged and dragged into others.

4. On top of that, the strict 5% difference limit poses the prospect of huge disruption every five years through sparking a boundary review for every election. Do we really want to spend infinite hours arguing about seat borders in the run up to every Westminster vote?

5. Of course, this is all happening alongside a reduction in the number of MPs – something that has a bizarre rationale when one thinks about it. Because the government argue shrinking the Commons will ‘cut the cost of politics’.

6. There a growing unelected House of Lords - and a shrinking elected one. The House of Lords is a super-sized second chamber – second only to China – and shockingly poor value for money. Surely it would be more democratic to address the crisis in the House of Lords than to cut the number of elected MPs? The last Prime Minister appointed 205 Peers over the past six years, at a cost of £13m already. If one wants to reduce the cost of politics, one could do worse than starting there and cutting down our bloated upper house.

7. Cutting the number of elected Parliamentarians does have one effect though – and sadly it’s not a good one. If one reduces the number of MPs in Parliament without reducing the number of ministers, one increases the power of the executive and make it more difficult to challenge the government. And that in turn will reduce the ability for Parliament to do its job of holding the Government to account.

8. The Government talks about the need to 'make every vote count' through these changes. Yet the best way to do that is to give one and all a proportional and fair voting system.

9. We see that with the deeply unpopular ‘Devonwall’ seat that spans Cornwall and Devon – distinct areas with very distinctive identities and needs. Fair political boundaries are crucial to ensuring people are properly represented in Parliament: Westminster and its unelected quangos shouldn’t tear apart close-knit areas in a rush to ‘equalise’ numbers.

10. The Cornish language was recognised officially in 2003 under the European Charter for Regional or Minority Languages and was initially supported by the UK government. This minimal funding was withdrawn during 2016 and has caused many to feel extremely bitter towards the Westminster Government. How many more insults and lies are we expected to endure?

11. In April 2014, the Coalition Government finally recognised the people who spoke that language, the Cornish people, through inclusion in the Framework Convention for the Protection of National Minorities. The official governmental press release stated that “the decision to recognise the unique identity of the Cornish, now affords them the same status … as the UK’s other Celtic people, the Scots, the Welsh and the Irish.”

This landmark recognition came after many years of campaigning and, as a consequence, was greeted with publicly expressed joy across all of Cornwall’s communities as well as by Cornish people the world over.

Sadly, two years on, there is a growing frustration that central government is failing to act on the various articles within the Framework Convention. The Cornish are being again treated as second class citizens.

12. The UK Government passed the Parliamentary Voting System and Constituencies Act, which stated that the number of seats in the UK parliament should be reduced to 600 and – unless specified in the legislation – the electorates for seats should be within 5% of the various averages for England, Northern Ireland, Scotland and Wales.

That Act does not recognise the territorial integrity of Cornwall and it's 1,000 year old boundary, and, as the legislation stands, the outcome of Boundary Review (based on the provisions within the Act and the present electorate of Cornwall) would inevitably include the creation of a cross-Tamar ‘Devonwall’ constituency taking in Bude and Launceston in Cornwall and Bideford in Devon.

13.It is since the Act was agreed, that the UK Government agreed the Cornish are covered by the auspices of the Framework Convention and our organisation contends that developing a cross Tamar parliamentary constituency would contravene the following constituent articles of the Framework Convention:

ARTICLE 3 – PARAGRAPH 2: “Persons belonging to National Minorities may exercise the rights and enjoy the freedoms flowing from the principles enshrined in the present Framework Convention individually as well as in community with others.”

ARTICLE 5 – PARAGRAPH 2: “Parties shall refrain from policies or practices aimed at assimilation of persons belonging to National Minorities against their will and shall protect these persons from any action aimed at such assimilation.”

Under these circumstances it would therefore appear that the legislation which guides the Boundary Review is in conflict with the Framework Convention which, as well as protecting the culture and identity of national minorities, also seeks to protect the political integrity of territories associated with such groups.

14. In the Parliamentary Voting System and Constituencies Act, the territories of other national minorities within the United Kingdom (namely the Scots, the Welsh and Northern Irish) are safeguarded and no seats can be proposed which would cross the land borders between England and Scotland or Wales.

Once again, a campaign is growing in Cornwall in defence of the border which was set over a thousand years ago in 936AD when King Athelstan set the boundary between English and Cornish at the high water mark of the eastern bank of the River Tamar.

15. It is difficult for people living elsewhere to understand the mind-set of the Cornish people and indeed, of many of the people of Cornwall, but as with Scotland and Wales, there is a strong and emotional attachment to the land and Cornwall’s time honoured boundary.

16. Dr. Merv Davey, The Grand Bard of the widely respected Cornish Gorseth, our College of Bards recently remarked: “Any recommendation that parts of Cornwall are placed within Devon constituencies would be a disaster for Cornish democracy, heritage, culture and our national identity.”

17. Cornwall Council unanimously opposes the imposition of a Cross Border Constituency and it's Leader, Cllr. (Ind) John Pollard has even called the 'Devonwall' proposal unlawful. (Cornwall Council Media Release 28/09/2016) Other too believe this Cross Border Constituency breaks the law.

18. Cornwall has a unique legal place within the constitution as recognised by such scholars as Dr John Kirkhope. Cornwall is different legally from Devon and indeed, most other places

19. An open public opinion poll run in Cornwall by commercial broadcaster Pirate FM returned results on 15th September, 2016 which indicated 94% of people in Cornwall are opposed to 'Devonwall'. A similar poll run by the Daily Mirror indicates 89% are opposed to the changes.

20. Cornwall should be given an exemption similar to the ones given to the Orkney Islands and the Isle of Wight, both of which were allowed to deviate from the '5% of average' size rule.

An analysis of the Boundary Commissions statement and calculations has been made by Professor (of Electronic Engineering and Applied Physics) Gareth Parry, who says:

“If considered alone, the electorate of the County of Cornwall (including the electorate of the Isles of Scilly), at nearly 394,000, would result in an allocation of 5.27 constituencies to the county.

While we are sensitive to the strength of feeling about the Cornish border, with its single land border, it is simply not possible to develop a proposal under which five whole constituencies, each with electorates within 5% of the electoral quota, are contained within the county boundary.”

(Prof Parry says the following:) Whilst mathematically correct, the analysis below demonstrates that this is far from the clear cut case suggested. In fact the Commission case is based on the tiniest of margins. It would be scandalous if Cornwall was broken up on the basis such small margins.

The 5% rule implies that the electorate in the constituencies should be between 71,031 and 78, 507.

The electorate of Cornwall is 392,223 and that of the Isle of Scilly is 1,651. A total of 393,874.

The Commission’s figure of 5.27 is based on the assumption that there are 74,739 electors in each constituency. However, we are permitted under the rules specified to have up to 78,507 electors in each constituency. If that were the case the allocation would be 5.02, which is very close to the target of 5.0 constituencies.

So suppose we do have 5 constituencies of 78,507 electors.

The total number of electors permitted would be 392,535. The actual number of electors is 393,874 which is only 1,339 more or 269 more per constituency or 0.3% above the target number.

If this extremely small additional number were permitted, Cornwall would remain whole with 5 constituencies. Or, to put it another way, the boundary commission are imposing Devonwall on the basis of just 269 electors in a constituency of 78,507!

We can look at this another way. Consider Cornwall on its own (without the Isles of Scilly). The electorate is 392,223. This is less than the 392,535 which the Commission state is within acceptable limits. And 5 constituencies would have 78,445 electors, 62 less than the maximum allowed under the Commission rules. Cornwall alone with 5 constituencies satisfies the Commission’s rules.

The fact that the tiny population of the Isles of Scilly is sufficient for the Commission to argue that the historic Cornwall-Devon boundary be moved highlights the weakness of the Commission’s case. It would be perfectly reasonable to make the case that one Cornish constituency should be permitted to exceed the maximum to include the Isle of Scilly.

All 4 other constituencies would be less than the maximum permitted.”

21. Cornwall has devolved Local Government through the Devolution Deal, recently agreed with HM Government and our democracy will be seriously inhibited if this does not coincide with Parliamentary Constituency boundaries.

22. Parliament is less respected now than it ever has been and the imposition of 'Devonwall' would compound that growing mistrust. Our Westminster politicians scratch their heads and wonder why so few now bother to vote. The answer is obvious!

23. Whoever elected the Boundary Commission? How many more undemocratic quangos are there dabbling with Cornwall and whoever in Cornwall asked them to?

24. Some people from England like to draw lines on maps. We recall the actions of English diplomat, Mark Sykes and the Frenchman François Georges-Picot who drew lines on a map of the Middle East in 1916. The world is still suffering the consequences of that particular boundary review a hundred years on. It really is time to leave the Cornish and their homeland alone.

PROTECTIONS UNDER THE EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES

Cornish is officially recognised as a minority language by the UK government under the European Charter for Regional or Minority Languages, a status it has held since 2002.

Of that Charter, the Westminster Government ratified that Cornish held a lesser status than that ratified in respect of some other Celtic languages and that accordingly Article 2, Part II only (Article 7) applied.

This article states:

Part II – Objectives and principles pursued in accordance with Article 2, paragraph 1

Article 7 – Objectives and principles

1 In respect of regional or minority languages, within the territories in which such languages are used and according to the situation of each language, the Parties shall base their policies, legislation and practice on the following objectives and principles:

a the recognition of the regional or minority languages as an expression of cultural wealth;

b the respect of the geographical area of each regional or minority language in order to ensure that existing or new administrative divisions do not constitute an obstacle to the promotion of the regional or minority language in question;

c the need for resolute action to promote regional or minority languages in order to safeguard them;

d the facilitation and/or encouragement of the use of regional or minority languages, in speech and writing, in public and private life;

e the maintenance and development of links, in the fields covered by this Charter, between groups using a regional or minority language and other groups in the State employing a language used in identical or similar form, as well as the establishment of cultural relations with other groups in the State using different languages;

f the provision of appropriate forms and means for the teaching and study of regional or minority languages at all appropriate stages;

g the provision of facilities enabling non-speakers of a regional or minority language living in the area where it is used to learn it if they so desire;

h the promotion of study and research on regional or minority languages at universities or equivalent institutions;

i the promotion of appropriate types of transnational exchanges, in the fields covered by this Charter, for regional or minority languages used in identical or similar form in two or more States.

Note 7 – 1 – b : the respect of the geographical area of each regional or minority language in order to ensure that existing or new administrative divisions do not constitute an obstacle to the promotion of the regional or minority language in question;

The Westminster Government ratified this Charter. This ratification cannot be devolved.

PROTECTIONS OFFERED UNDER THE FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES

The Cornish themselves were recognised as a National Minority in 2014 by the Westminster Government which incorporated them equally with other National Minorities into the Framework Convention for the Protection of National Minorities (FCPNM).

Article 5 of FCPNM states:

1 The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage.

2 Without prejudice to measures taken in pursuance of their general integration policy, the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation.

Article 16 of FCPNM states:

The Parties shall refrain from measures which alter the proportions of the population in areas inhabited by persons belonging to national minorities and are aimed at restricting the rights and freedoms flowing from the principles enshrined in the present framework Convention.

In admitting the Cornish National Minority into the FCPNM, the Westminster Government undertakes to comply with these articles.

CORNWALL COUNCIL

Unlike the Boundary Commission, which is a distant, unelected and expensive quango, Cornwall Council is elected by the people of Cornwall and is democratically accountable.

Cornwall Council has declared the Boundary Commission proposals unlawful.

The then Leader of Cornwall Council, Councillor John Pollard said the following in September 2016:

“We believe there is a serious legal and constitutional conflict between the provisions of the Parliamentary Voting System and Constituencies Act 2011 (‘the Act’) , which requires MP’s to represent the same number of electors, and the Framework Convention for the Protection of National Minorities,”

“The government’s recognition of the Cornish as a national minority under the Framework Convention in 2014 came after the Act came into force and we are arguing that the Act needs amending to address this conflict.”

References:

European Charter for Regional or Minority Languages

https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/0900001680695175

Official Westminster Govt Media Release - Cornish granted minority status within the UK

https://www.gov.uk/government/news/cornish-granted-minority-status-within-the-uk

Framework Convention for the Protection of National Minorities

https://rm.coe.int/16800c10cf

Cornwall Council opposes constituency boundary changes

https://www.governmentbusiness.co.uk/news/14092016/cornwall-council-opposes-constituency-boundary-changes

We need to fight Devonwall. The majority of political parties are against it. It has been declared gerrymandering by Labour. There are even some Conservatives who are against it but if it should come to the Westminster Parliament, MPs are known for doing as their party whips say!

Devonwall, just like the proposals to reduce our Cornwall Councillors is a scheme to impose Conservative rule on us in perpetuity!

Please email the Boundary Commission with your objections. Better five MPs in Cornwall than a disregard of our border, albeit an unlawful one.

PLEASE can ALL KMTU MEMBERS work through the following and COMMUNICATE OBJECTIONS to the Boundaries Commission who are seeking public views for a third occasion.

information@boundarycommissionengland.gov.uk

Kernow bys vyken!