Flags from Government Buildings
The legal position about the flag flying from government buildings is even
less well understood. Until Peter Mandelson introduced the Flags (N.I.) Order
in the House of Commons on 16th May 2000, there had been no
legislation requiring the Union flag to be flown from government buildings.
This legal loophole was revealed during the first term
of devolved administration last autumn, when the two Sinn Fein Ministers were
asked by civil servants if they wished the Union flag to be flown on the usual
flag-flying days. As we know only too well, they refused to fly the flag. But
how could they?
Quite simply, they could refuse to fly the Union flag
over their departments, because there was no law compelling them to do so. Instead,
it had been custom and practice, through the exercise of the royal prerogative,
to fly the Union flag from government buildings on certain designated flag-flying
days. In Northern Ireland, it has been the custom and practice over many years
to fly the Union flag on 20 designated flag flying days, mostly royal birthdays.
With devolved government restored here in early June and
with no less than three flag-flying days in that month, Unionists had once again
to endure the repeated offence caused by the sign of bare flagpoles at both
the Department of Education and the Department of Health.
The serious problems, raised by the refusal of the two Sinn Fein Ministers
to fly the flag of the country, have now to be resolved by the Secretary of
State making regulations under the Flags (N.I.) Order 2000, since the Assembly
and Executive failed to on flag-flying procedures before the summer recess.
In bringing forward for consultation the Flags Regulations (Northern
Ireland) 2000, Peter Mandelson described them as "a sensitive,
common-sense way forward". Legislation - in the form of these Flags
Regulations - will prevail over the royal prerogative, and so the previous
legal loophole exploited by the two Sinn Fein Ministers should be filled. But
is it?
Taking the Belfast Agreement as the foundation, two apparently
conflicting provisions have to be reconciled. First, the Agreement makes it
absolutely clear that
"Northern Ireland in its entirety remains part of
the United Kingdom and shall not cease to be so without the consent of a majority
of the people of Northern Ireland".
This fundamental principle of consent was subsequently
enshrined in legislative form by section 1 of the Northern Ireland Act 1998,
which implements the Belfast Agreement.
Secondly, it is also stated in the Agreement that
"All participants acknowledge the sensitivity of the use of symbols and
emblems for public purposes, and the need in particular in creating the new
institutions to ensure that such symbols and emblems are used in a manner which
promotes mutual respect rather than division." [See para. 5 of
"Rights, Safeguards and Equality of Opportunity", p. 20]
Both the consent principle and the need to use symbols
with sensitivity have to be honoured in the new Flags Regulations.
Consequently, the SDLP's suggestion that a neutral flag should be agreed and
flown on government buildings is wholly unacceptable in that it fails
completely to honour the principle of consent as expressed in the opening
paragraph of the Belfast Agreement. The constitutional status of Northern
Ireland is not neutral. On the contrary, the constitutional status of Northern
Ireland is unambiguously stated as being "in its entirety" part of
the United Kingdom. The flying of the Union flag from government buildings is
the clear expression of that constitutional position.
Likewise, Sinn Fein's demand that both the tricolour and
the Union flag be flown together on Government buildings clearly breaches the
Belfast Agreement. The Agreement neither agrees nor advocates joint sovereignty.
Instead, the Agreement makes it abundantly clear that it is the United Kingdom
and the United Kingdom alone, which has sovereignty over Northern Ireland unless
and until a majority of its people consents otherwise.
There is, therefore, no basis whatsoever in the Belfast
Agreement for the flying of both the Union flag and the tricolour routinely
on such buildings, or another flag other than the Union flag on all Government
Buildings.
The Flags Regulations (Northern Ireland) 2000 recognise
the constitutional position of Northern Ireland as part of the United Kingdom
by making it a duty - rather than a discretion - that the Union flag be flown
on 7 designated buildings on exactly the same designated days as in the rest
of the Kingdom.
Prior to these Regulations, it had been custom and practice in Northern
Ireland - though not adhered to by Sinn Fein - to fly the Union flag on
government buildings 20 days. These included the 15 days (mostly royal
birthdays) as designated in the rest of the United Kingdom, plus the 4
so-called "Dublin Days" as well as 12th July. The 4
"Dublin Days" were - Christmas Day, New Year's Day, Easter Sunday and
St. Patrick's Day. These 4 days were added by the Stormont Cabinet in 1927, and
only in 1933 was 12th July also added as a flag-flying day.
The logical consequence of the consent principle is that
the Union flag should be flown on government buildings on the same basis as
in the rest of the Kingdom. This means, as the Flags Regulations make clear,
that we shall lose 3 of the 4 additional "Dublin Days" and also lose
12th of July.
Since the Union flag is flown on the relevant Saint's
Day in the various parts of the Kingdom - (St. David's Day in Wales, St. Andrew's
Day in Scotland etc) - the flag will continue to fly here on St. Patrick's Day.
Christmas Day, New Year's Day, Easter Sunday and 12th July have never been
flag-flying days in the rest of the United Kingdom; they will, therefore,
cease to be such in Northern Ireland. ( Note that with Prince Edward's marriage,
his wife's birthday in January has now been added to the list of designated
days. There will, therefore, be an overall net loss of 3 flag days.)
By accepting the 17 flag-flying days as specified by the Flags Regulations,
the SDLP and Sinn Fein will be honouring their obligation in the Belfast
Agreement to show "sensitivity" and "promote mutual respect
rather than division". By seeking to deny the majority in Northern Ireland
the legitimate expression of their British identity through the flying of the
Union flag on government buildings on the same days as in the rest of the U.K.,
Sinn Fein and the SDLP have hitherto demonstrated total insensitivity without a
shred of "mutual respect" are obligations on all
participants; it must be a two-way process.
By comparison, Article 9 of the Flags Regulations shows
the British Government's "sensitivity" in the use of symbols and "mutual
respect" as required by the Agreement. Under Article 9 . "no flag
shall be flown at any government building at any time", except as provided
by these Regulations. Designating a maximum of 17 days out of 365 days in the
year clearly indicates that, while upholding the constitutional position of
Northern Ireland, the British Government has no intention of flaunting the Union
flag.
In also allowing for the national flag of the country
of a visiting Head of State to be flown, the British Government has again fulfilled
its obligations under the Belfast Agreement by showing sensitivity and mutual
respect.
Article 3(1) of the new Flags Regulations permits the
Union flag to be flown at a government building visited by a foreign Head of
State. On such occasions, it is discretion, not a duty, to fly the Union flag.
Article 3(2) states clearly that only if that discretion is exercised to fly
the Union Jack and only if the buildings has two flag poles may the national
flag of the visiting Head of State also be flown.
The logical consequence of this provision is that, for
example, in the event of a visit to a government building by the President of
the Republic of Ireland, the tricolour may be flown . but only when the Union
flag is flown and only where there are two flagpoles. Since the Republic of
Ireland has abandoned the offensive Articles 2 and 3 of its Constitution laying
claim to the territory of Northern Ireland, the Republic of Ireland may now
be treated like any other foreign country.
At the same time, and crucially, to avoid the obvious
perception on such occasions of joint sovereignty, which is contrary to the
Belfast Agreement, it is essential that, as in the case of the European flag,
the tricolour (and any other foreign flag) should be flown lower than the Union
flag. It is imperative that the position of the foreign flag should be reconsidered,
especially since Article 8 of the Flags Regulations permits the national flag
of the visiting Head of State to . " be flown in the same manner
on the same day at any other government building which has more than
one flagpole, provided that the Union flag is also flown".
The possible outcome of this provision is that, in the event of a visit by
President Mary McAleese to Rathgael House, we could see a rash of tricolours at
equal height alongside the Union flag at various Department of Education
buildings. Such an outcome would be completely at variance with Northern
Ireland's constitutional status as laid down by the Belfast Agreement. Again,
it is worth repeating that there is no joint sovereignty of Northern Ireland.
It is wholly unacceptable, therefore, to have the tricolour flown "in the
same manner" on a government building as the Union flag. This provision of
the Flags Regulations must be amended.
So, too must Article 2(2) of the Flag Regulations. This
provision requires the Union flag to be flown on the 17 designated days at "any
other government building at which it was the practice to fly the Union flag
. in the period of 12 months ending with 30th November 1999".
The wording of this particular Article is deeply worrying
because it contains two serious flaws. To identify the first of these, one must
search for the definition of "government buildings". It is certainly
not included in the Flags Regulations themselves. Instead, the definition of
"government buildings" was laid down earlier this year on 18th
May by the Flags (Northern Ireland) Order 2000. In it, a "government
building" is defined as "wholly or mainly occupied by members of the
Northern Ireland civil service".
This narrow definition will exclude the main seat of government in Northern
Ireland; Parliament Buildings at Stormont will not qualify as "government
buildings", as they are not "wholly or mainly occupied" by civil
servants. Although it had been the practice to fly the Union flag on Parliament
Buildings in the 12 months ending with 30th November 1999, these
buildings will nevertheless fall through the gap in Article "(2) for the
simple, but obscure reason, that they do not fall within the statutory
definition of "government buildings". It is not acceptable to
Unionists that there is no duty under the Flags Regulations to fly the flag of
this country over the main seat of government.
The second serious flaw in Article 2(2) of the Flags Regulations relates to future
"government buildings". This Article only imposes a duty on
"government buildings" to fly the Union flag where it had been their
practice to do so in the "12 months preceding 30th
November 1999". It would inevitably follow from this provision that, if
civil servants were to be moved from, for example, Rathgael House and into
buildings elsewhere, those new government buildings cannot have had a past practice
of flying the Union flag in the 12 months prior to the end of November
1999, they will also fall through the gap in Article 2(2).
We note also the case of the Interpoint Centre (present headquarters of DCAL)
which is omitted from the designated list.
As presently drafted, the Flags Regulations impose no
obligation to fly the Union flag from future government buildings. Once again,
Article 2(2) is unacceptable - the Union flag is the constitutional symbol of
Northern Ireland's status within the United Kingdom, and as such it should be
recognised visibly by the flying of the Union flag on the 17 designated days
on all future government buildings.
Finally, the absence of sanctions from the Flags Regulations
is unsatisfactory. What happens if a Government Minister fails to comply with
the requirements of the Flags Regulations? Is it sufficient to rely upon each
Minister's Pledge of Office whereby he/she undertakes . "to discharge in
good faith all the duties of office"?
At present, the Flags Regulations do not even mention
the words "Minister" or "duty". To avoid any misunderstanding,
these Regulations should clarify the Minister's position by reference to his/her
Pledge of Office.
Ministers and Government Departments should also take
note that the Human Rights Acts 1998 comes into force on 2nd October
2000. Included amongst the rights regarded as fundamental is the right to freedom
of expression:
"This right shall include freedom to hold opinions.
without interference by public authority..."
Neither a Minister nor a Northern Ireland department has
any power "to do any act" in so far as that act is incompatible with
any of the fundamental rights laid down by the Human Rights Act. (See section
24 of the Northern Ireland Act 1998). By refusing to fly the Union flag on the
17 designated days from the specified government buildings, Ministers and/or
Departments run the risk of a legal challenge under the new Human Rights legislation.
The flying of flags by Public Authorities, especially
District Councils
"Public authorities" include a very wide range
of bodies - Health and Social Service Boards, Health and Social Services Trusts,
all District Councils, Education and Library Boards, N.I. Housing Executive
and the Tourist Board are but a few examples.
Since the Flag Regulations only extend to "government
buildings", which are buildings "wholly or mainly occupied by members
of the Northern Ireland Civil Service", District Council offices cannot
benefit directly from these Regulations. Given the absence of specific legislation
on flag flying by District Councils, this may well become an area fraught with
difficulty.
Consequently, in determining the appropriate days and
locations for the flying of flags an emblems, District Councils must pay particular
attention to their own statutory obligations under two very important pieces
of legislation:
- Northern Ireland Act 1998, which implemented the Belfast
Agreement, and
- The Fair Employment and Treatment (N.I.) Order 1998.
Conclusion
The UUP recognises these Draft Regulations as a step towards
closing loopholes with respect to flag flying. They attempt to place official
flag flying here on the same footing as the rest of the United Kingdom.
"I believe that practice in Northern Ireland should
reflect practice elsewhere in the United Kingdom". (Lord Falconer of Thoroton,
Hansard, House of Lords, 5th series, vol.613, col.208, 16
May 2000).
Notwithstanding these benefits there are still questions
of detail and causes for concern.
AD HOC COMMITTEE ON DRAFT REGULATIONS PROPOSED
UNDER THE FLAGS (NORTHERN IRELAND) ORDER 2000
WRITTEN SUBMISSION BY:
Social Democratic and Labour Party
Introduction
1. The SDLP recognises that the issue of flags is
a difficult and divisive one. The issue requires to be managed with sensitivity,
is guided by principle and is in the best interests of all in a divided community.
These are high objectives. The SDLP submits that a path can be charted to achieve
them.
Implementation of the Good Friday Agreement.
2. The SDLP submits that judgement on this issue should
be informed by two texts. First, "The Belfast Agreement: and Agreement
reached at the Multi-Party Talks on Northern Ireland" (commonly referred
to as the "Good Friday Agreement" and hereinafter referred to as the
"Agreement") provides clear and compelling principles which should
inform and can lead to a solution to this issue, a solution which respects the
identity of each citizen and community. Second, the SDLP would refer to the
obligations placed on the Government and particularly on the British Government
by the "between the Government of the United Kingdom, of Great Britain
and Northern Ireland and the Government of Northern Ireland, (hereinafter referred
to as the 'Agreement between Governments').
3. In the section of the Agreement which deals with
"Constitutional Issues", a number of principles are endorsed. In the
particular context of this consultation, this submission would refer to the
principles outlined at paragraphs 1(iii), 1(v), and 1(vi), where the parties
to the Agreement:
"1(iii) acknowledge that while a substantial section
of the people in Northern Ireland share the legitimate wish of a majority of
the people of the island of Ireland for a united Ireland, the present wish of
a majority of the people of Northern Ireland , freely exercised and legitimate,
is to maintain the Union and, accordingly, that Northern Ireland's status as
part of the United Kingdom reflects and relies upon that wish; and that it would
be wrong to make any change in the status of Northern Ireland save with the
consent of the majority of its people;"
"1(iv) affirm that whatever choice is freely exercised
by a majority of the people of Northern Ireland, the power of the sovereign
government with jurisdiction there shall be exercised with rigorous impartiality
on behalf of all the people in the diversity of their identities and traditions
and shall be founded on the principles of full respect for, and equality of,
civil, political, social and cultural rights, of freedom from discrimination
for all citizens, and of parity of esteem and of just and equal treatment for
the identity, ethos and aspirations of both communities;"
"1(vi) recognise the birthright of all the people
of Northern Ireland to identify themselves as Irish or British, or both, as
they may so choose, and accordingly confirm that their right to hold both British
and Irish citizenship is accepted by both Governments and not be affected by
any future change in the status of Northern Ireland."
The SDLP would also refer to Article 1(iii), 1(v) and
1(vi) of the "Agreement between Goverments" which states:
"1(iii) acknowledge that while a substantial section
of the people in Northern Ireland share the legitimate wish of the majority
of people of the island of Ireland for a united Ireland, the present wish of
a majority of the people of Northern Ireland, freely exercised and legitimate,
is to maintain the Union and, accordingly, that Northern Ireland's status as
part of the United Kingdom reflects and relies upon that wish; and that it would
be wrong to make any change in the status of Northern Ireland save with the
consent of a majority of its people;"
"1(v) affirm that whatever choice is freely exercised
by a majority of the people of Northern Ireland, the power of the sovereign
government with jurisdiction there shall be exercised with rigorous impartiality
on behalf of all the people in the diversity of their identities and traditions
and shall be founded on the principles of full respect for, and equality of,
civil, political, social and cultural rights, of freedom from discrimination
for all citizens, and of parity of esteem and of just and equal treatment for
the identity, ethos and aspirations of both communities;"
"1(vi) recognise the birthright of all the people
of Northern Ireland to identify themselves and be accepted as Irish or British,
or both, as they may so choose, and accordingly confirm that their right to
hold both British and Irish citizenship is accepted by both Governments and
would not be affected by any future change in the status of Northern Ireland."
4. It is submitted that in considering this issue the
above principles should be upheld and reflected in the draft regulations. It
is submitted that the Agreement between Governments has the standing of an international
treaty binding in law with the legal and broader consequences of same.
5. It is argued that paragraphs 1(ii) of 'the Agreement'
and the 'Agreement between Governments' respectively (hereinafter referred to
as "the Agreements") above, which details the constitutional position
of Northern Ireland and what is commonly referred to as "the principle
of consent", means that the Union flag should fly from government buildings
in Northern Ireland on designated days, as is the case in and to be generally
consistent with practice in Scotland or England/Wales. The SDLP accepts paragraphs
1(iii) but submits that it is incorrect to interpret the Agreements in this
way for a number of reasons.
6. First, Northern Ireland cannot be compared with
England and Wales or Scotland:
(a) Northern Ireland is a divided society, emerging
from many years of conflict. The division has been around issues of national
identity, political aspiration and community treatment. In this context, to
interpret the constitutional position and the principle of consent so as to
enable the display of only the Union flag on government buildings on designated
days suggests that one national identity, political aspiration and community
requirement has a standing legally and practically, over those of others.
(b) The existence of the Agreements demonstrate that
Northern Ireland is not comparable with England Scotland or Wales:
- Uniquely among regions, Northern Ireland has the guaranteed
right in law to opt out of the Union should a majority desire this;
- Uniquely among regions, the constitutional arrangements
for Northern Ireland were laid down in an international treaty between two
sovereign governments and were approved by the people of Ireland, North and
South, in a referendum.
7. Second, beyond the broad political and legal arguments
outlined above, it is submitted that the approach of some, who invoke constitutional
principles referred to in the Agreements to justify the display of the Union
flag on government buildings is a misinterpretation of both.
8. Paragraph one of the Agreement on "Constitutional
Issues" and Article 1 of the Agreement between Governments lays down a
number of principles. It is submitted in determining this issue that those principles
should be considered in their totality and that each principle should be considered
no less important than the other. It is submitted as follows:
(a) The
relevant sections of the Agreements recognise the right:
" of all the people of Northern Ireland to identify
themselves and be accepted as Irish or British, or, both as they may so choose"
and " affirms that the power of the sovereign government shall be founded
on the principles of ...parity of esteem and of the just and equal treatment
for the identity, ethos and aspirations of both communities."
It is submitted that, for example, the display of the
Union flag is clearly identified with the Unionist community, with the Union
with Britain and with those who would refer to themselves as British. To display
the Union flag - or for that matter the Irish Tricolour alone - is contrary
to the above principle and good practice. It should be noted that this argument
is not outlined so as to suggest that in the treatment of issues of identity
- flag, language etc - there should always be the same treatment at all times
and in all ways. This may not be appropriate in political terms , feasible in
financial terms or practical in real terms. This submission elaborates on this
perspective at paragraph (12) of this preliminary response.
(b) Moreover, to display the Union flag on government
buildings only does not accord "just and equal treatment to the identity,
ethos and aspirations" of the nationalist community. In addition, it is
submitted that the display of the Union flag only on government buildings
does not respect the right "to be accepted as Irish."
(c) Paragraph 5 of the Section of the Agreement on
"Rights , Safeguards and Equality of Opportunity" provides that:
" All participants acknowledge the sensitivity of
the use of symbols and emblems for public purposes, and the need in particular
in creating the new institutions to ensure that such symbols and emblems are
used in a manner which promotes mutual respect rather than division. Arrangements
will be made to monitor this issue and consider what action might be required."
The flying of the flag to which one community in Northern
Ireland identifies, but another does not, is not sensitive. Nor does it promote
mutual respect rather than division. The above principles need to be fully addressed
and implemented in determining this matter.
Options on the Display of Flags
9. The SDLP has approached this issue with sensitivity,
sought a consensus on the issue and not rushed precipitously into declining
to fly the Union flag on government buildings on designated days. It is submitted
that the approach adopted by the SDLP on this issue adds authority to the position
proposed herein by the party. It should also be recorded that it is a matter
of disappointment that it was decided, during suspension of the institutions,
that the Secretary of State acquired the power to regulate the flying of flags.
This was compounded by the fact that this was a matter which by right fell to
the devolved administration - and it alone - to determine. This approach by
the Secretary of State has not created the environment or, arguably, the will
on the part of some to work to resolve the issue.
10. There are four options for addressing this issue,
which it has been argued are consistent with the Agreements:
(a) flying of no flags on government buildings;
(b) flying both the Union flag and the Irish Tricolour;
(c) creating new consensual symbols with which both unionists and nationalists
could identify;
(d) acknowledge that the principles of the Agreements may enable consideration
of the display of the Union flag and Irish Tricolour together and, where appropriate,
display of the Union flag or Irish Tricolour only on restricted days and on
restricted buildings by agreement.
11. The SDLP is prepared to consider each of these
options. It is recognised that the display of both flags would at this time
be viewed by unionists as not sensitive to their concerns and that, also, in
the current circumstances, it may be difficult to secure agreement on consensual
symbols. However, the SDLP would wish to explore further these options in order
to satisfactorily resolve this issue.
12. The SDLP remains committed to develop this issue
in a creative and constructive manner. Therefore, and elaborating on 10(d) above,
it has been argued that it is not necessarily valid that the same outcome is
achieved on all aspects of expression of different identities in Northern Ireland.
Indeed, it is argued by some that parity of esteem could allow for different,
as well as the same circumstances, to apply in relation to issues of identity.
In this context, a situation could arise where there would be different, as
well as same circumstances, applying to the display of the Union flag and to
the Irish Tricolour. If different as well as same circumstances, could apply
to the display of flags, it would then be a matter of agreeing when and where
they could be displayed, either together or separately, ensuring that there
is no unreasonable differential between the occasions when , for example, the
Union flag and the Irish Tricolour would be displayed separately. It would help
inform this issue, if this option was to be explored further.
However, an environment to consider all options can best
be developed if there is a determination arising from the present consultation
consistent with paragraph 8(a), (b) and (c) respectively of this submission.
13. At the present, however, the SDLP favours, as an
interim step, in the current environment and to act consistent with the Agreements
the option of flying no flags. This is not a resolution to the issue. It reflects
realities without closing down opportunities, treats both communities in Northern
Ireland equally and is consistent, not only with the principle of just and equal
treatment for the identity, ethos and aspirations of both communities, but also
with the right of people in Northern Ireland to identify themselves and be accepted
as Irish or British or both. The SDLP believes that this is the preferred method
to proceed. However, the SDLP repeats that this is not a resolution of this
issue and will continue to seek to explore methods of advancing the other options
and addressing concerns.
14. At this time, it appears government will propose
that the Union flag only should be displayed on government buildings. As previously
outlined, the SDLP is not in favour of this proposal. If government is determined
to pursue this issue, the SDLP believes that the Union flag should not be displayed
on Departmental buildings, that display should be on a restricted number of
other government buildings and that display should be on a restricted number
of days.
North-South/British-Irish Meeting
15. In an attempt to address the issue in a constructive
and creative way and as an example of the thinking which informs paragraph 10(d),
the SDLP submits that it is appropriate that both the Union flag and Irish Tricolour
should be displayed at appropriate British-Irish and North-South meetings respectively
arising under the Good Friday Agreement.
The SDLP believes that to do so:
- is consistent with the principles outlined in the Agreements
- is a sensitive expression of identity in a way that
should not cause undue anxiety to the community
- enables this issue to be developed in a constructive
manner and create understanding and respectful relations.
The SDLP therefore proposes the display of both the Union
flag and Irish Tricolour on buildings during the conduct of meetings of:
- the British-Irish Council
- the North-South Ministerial Council
- North-South Bodies
- and other meetings of the British-Irish and North-South
institutions established under the Agreements.
Review
16. The SDLP submits that the issue of display of flags
should be kept under periodic review. Review is consistent with and a requirement
of the Good Friday Agreement. Moreover, a more consensual approach to the display
of flags on government buildings may emerge in time and periodic review of this
issue may create some impetus in this regard. In addition, the SDLP submits
that the proposed regulations should be time-limited, being for one year only
in the first instance.
Conclusion
17. The SDLP notes that there have also been significant
developments in terms of culture awareness and mutual tolerance in recent years.
There are many images and headlines that suggest otherwise, but, in general,
this assertion holds. It should be recognised that, as a society, we have not
developed to the point of mutual acceptance or toleration of the flags, emblems
and symbols that reflect and represent our different identities. The SDLP believes
that our society will reach that level of awareness whereby respective flags,
symbols and emblems will be honoured or that common flags , symbols and emblems
will be agreed.
18. To do so requires an environment whereby the Agreements
are and are seen to be upheld; that its principles are respected; that difficult
judgements are made consistent with the intention of the Agreements; that each
citizen and community knows that that which good government, the Agreements
and a stable community requires will be implemented.
AD HOC COMMITTEE ON DRAFT REGULATIONS PROPOSED
UNDER THE FLAGS (NORTHERN IRELAND) ORDER 2000
WRITTEN SUBMISSION BY:
Democratic Unionist Party
Introduction
The fact that this issue should ever arise is indicative
of the folly of the Belfast Agreement. It is by virtue of the unaccountable
authority vested in Ministers that this situation has been allowed to occur.
The Union Flag is the flag of the United Kingdom and should be accorded its
place on Government Buildings.
The proposed regulations fail to fully respect the constitutional
position of Northern Ireland within the United Kingdom. They prohibit the flying
of the Union Flag on all but the specified days and leave various issues in
the hands of unaccountable Government Ministers.
Below are listed a series of propositions, which are submitted
for the purpose of consideration by the Assembly Committee with a view to being
incorporated into the regulations.
Propositions
- The Union Flag is a constitutional symbol recognised
internationally. As an integral part of the United Kingdom the Union Flag is
therefore the constitutional symbol for Northern Ireland and should be accorded
no less standing and acknowledgement than in any other part of the Kingdom.
- The Union Flag shall be flown on all Government Buildings
on the specified days.
- The specified days will be those days on which it was
the practice to fly the Union Flag in the period of the 12 months ending with
30th November 1999.
- No other State's flag, except with the express permission
of the Assembly, shall be flown on Government Buildings.
- The Union Flag shall be flown in the manner and style
which was the practice in the period of the 12 months ending with 30th November.
- Where the flag was not previously flown over a Government
Building the flag should be flown in the manner it is flown at other Government
Buildings.
- The premises officer shall be appointed to ensure the
flag is flown in the manner and on the days required. This responsibility shall
be a duty of his service.
- The European Flag shall not be flown, except with the
express permission of the Assembly.
- There shall be no prohibition on the flying of the Union
Flag on Government Buildings at any time.
- The Union Flag shall be flown at Parliament Buildings,
Stormont on all plenary sitting days of the Assembly.
- The Union Flag shall be flown at half mast on all Government
Buildings following the death of a member of the Royal Family, or of a serving
or former Prime Minister of the United Kingdom on such days as notified in
the Belfast Gazette.
AD HOC COMMITTEE ON DRAFT REGULATIONS PROPOSED
UNDER THE FLAGS (NORTHERN IRELAND) ORDER 2000
WRITTEN SUBMISSION BY:
Sinn Fein
The recent announcement by the British Secretary of State
of his intention to take upon himself - through an undemocratic 'Order in Council'
- the role of arbiter in the dispute over the flying of flags is not acceptable.
In no circumstance can Peter Mandelson put himself forward as a neutral referee
in this case.
Mr Mandelson's announced intention is to create a mechanism
that would in effect restrict the exercise of authority by Ministers on this
matter subsequent to their appointment. This is very obviously bad faith on
the part of the British government.
The British flag, whatever political allegiance to Britain
it may convey, has been used by unionism as a symbol of political dominance
and a tool of sectarian coat-trailing.
All of this was best summed up by the late, eminent human
rights lawyer P J McGrory, who wrote about life for nationalists in the northern
state. He wrote:
"A substantial component of the nationalist nightmare..is
the overwhelming feeling of living in an alien and hostile environment."
"All around them, nationalists, on a daily basis,
see the ordinary institutions of an ordered society proclaiming a loyalty and
an allegiance which they do not share, by which they feel oppressed, strangers
in their own land."
"The police force is 'royal', the law courts are
'royal', the mail is 'royal'."
"At public functions and entertainment open to all,
the British anthem is played, at public and even private functions organised
by societies or other bodies having substantial nationalist membership, a royal
toast is honoured."
"The flag over public buildings, and over nationalist
members, and over such diverse places as theatres, railway stations and hospitals,
is the union flag."
"By way of contrast.the Irish flag and anthem are,
in the main, viewed with public distaste, and police display a marked enthusiasm
for removing the flag from display, and prosecuting those who show it publicly
in all but very confined areas."
The norms applied to the flying of flags at government
buildings in Britain are not appropriate to the north of Ireland.
The north of Ireland is not "as British as Finchley".
The unique nature of the Good Friday agreement and the
circumstances and conditions which gave rise to its negotiations are testimony
to that fact.
The Good Friday negotiations were about tackling all of
this and more.
The principles and positions agreed between the parties
and the two governments at Castle Buildings at Easter 1998 were about mapping
out a framework which would ensure equality and respect from and for all citizens,
as well as defending and protecting human rights and civil liberties.
Any approach to the issue of flags should be set firmly
within the context of the Good Friday agreement.
Paragraph 1 of the Good Friday agreement's Declaration
of Support reads:
"We.believe that the agreement we have negotiated
offers a truly historic opportunity for a new beginning."
With regard to the issue of symbols and emblems the agreement
also embraced the sense of a new beginning.
"All participants acknowledge the sensitivity of
the use of symbols and emblems for public purposes and the need in particular
in creating the new institutions to ensure that such symbols and emblems are
used in a manner which promotes mutual respect rather than division."
"Arrangements will be made to monitor this issue
and consider what action might be required."
Regrettably no formal monitoring arrangement was agreed
or made.
The upshot of this was the Order in Council - Flags Order
2000, which gives the British secretary of state the powers to make regulations
for "the flying of flags at Government Buildings".
The Secretary of State's draft Regulation also contradicts
the Fair Employment Code of Practice (5.2.2), as applied in the 1995 case of
Brennan v Short Brothers PLC, where the Tribunal stated ".employees do
not have to tolerate reminders or suggestions that particular religious beliefs
or political opinions have a special place in the ir workplace.It has to be
emphasised as often as is necessary that anything which identifies community
allegiance needs justification in the workplace."
This is reinforced by section 75(1) of the Northern Ireland
Act which imposes a statutory duty on all public bodies to promote equality
of opportunity and good relations.
The agreement should be the philosophy that informs any
decisions taken on the issue of flags.
It is a contract between enemies and opponents who hold
to different political allegiances. Parity of esteem, equality, inclusivity
and the promotion of mutual respect should underpin future decisions on the
flying of flags at government and public buildings.
Therefore, where British cultural symbols are involved
in public life, equivalent Irish cultural and political symbols should be given
equal prominence.
If agreement or consensus cannot be found on this, then
a reasonable alternative, which fits the required criteria, is to suspend the
flying of flags until such agreement or consensus can be found.
In summary, the position on the flying of flags at government
buildings and public buildings should be an equality scenario, or a neutrality
scenario. The Secretary of State's draft Regulations do not address this in
any constructive way and should be rejected.
What is clearly required is a new beginning on this issue.
AD HOC COMMITTEE ON DRAFT REGULATIONS PROPOSED
UNDER THE FLAGS (NORTHERN IRELAND) ORDER 2000
WRITTEN SUBMISSION BY:
The Alliance Party of Northern Ireland
Background
Any proposal for the flying of flags in Northern Ireland
should take account of differing views within Northern Ireland society, as well
as precedent in other parts of the UK. The following points appear relevant:
- The Good Friday Agreement recognises that Northern Ireland
is a deeply divided society, that mutual respect should guide this society's
approach to the use of symbols and that symbols are not to be used to stress
dominance and exclusion. The Agreement also entrenches the Principle of Consent:
that Northern Ireland remains a part of the UK unless and until its people
decide otherwise.
- The Scottish Parliament flies both the Union Flag and
the Saltire, while the National Assembly for Wales flies the Union Flag, the
Welsh Flag and the European Flag every day of the year.
- There is, as yet, no agreed symbol for Northern Ireland
comparable to the red dragon or the Saltire. The flag of the former government
of Northern Ireland is not widely acceptable. However, the adoption of the
flax flowers by the Assembly is a healthy precedent and attempts should continue
to find a new symbol for the region which could gain broad acceptability.
- Within Northern Ireland, the Irish tricolour is not
comparable to the Scottish or Welsh flags. Its regular use alongside the Union
Flag would have two negative effects: first, it would imply that there was
joint sovereignty and second, it would suggest that the Union Flag represented
one section of the community while the tricolour represented another, entrenching
divisions and harming the prospect of greater pluralism.
Principles
Alliance believes that any Regulations for flying flags
on government buildings should:
- recognise the Principle of Consent;
- minimise feelings of either dominance or exclusion;
and
- promote pluralism and those symbols which unite the
community.
Draft Regulations
Alliance therefore broadly welcomes the Draft Regulations
referred to the Assembly by the Secretary of State on 8 September. The following
constitutes an initial response:
Regulation 2:
Provision could be made for the flying of St Patrick's
Flag on 17 March, on the same basis as the European Flag on 9 May. Suggested
wording:
2 (5) Where a government building specified in Part I
of the Schedule has more than one flag pole, St Patrick's Flag shall be flown
in addition to the Union Flag on St Patrick's Day.
Amending Regulation 2 would also affect 5 (1) (a).
Amend to read "where regulation 2(4), 2(5) or 3(2)
.."
Regulation7:
The inclusion of a reference to Regulation 3 (1) appears
unnecessary and divisive.
Regulation 8:
The inclusion of a reference to Regulation 3 (2) appears
unnecessary and divisive, but 2(5) should be included.
Schedule Part II:
The removal of 12th July is welcome as a means of reducing
feelings of exclusion.
AD HOC COMMITTEE ON DRAFT REGULATIONS PROPOSED
UNDER THE FLAGS (NORTHERN IRELAND) ORDER 2000
WRITTEN SUBMISSION BY:
UNITED UNIONIST ASSEMBLY PARTY
INTRODUCTION
The United Unionist Group in the Northern Ireland Assembly
was opposed to the Belfast Agreement, and one of its principal concerns was
the threat to the constitutional position of Northern Ireland within the United
Kingdom. The vast majority of citizens in Northern Ireland wish to maintain
that link and one of the most visible and outward expressions of their position
is the flying of the Union Flag.
We are told that the Belfast Agreement recognises the
right of the majority of people in Northern Ireland to retain the link with
the United Kingdom on the basis of the consent principle. The mere fact that
the flying of the Union Flag in Northern Ireland is an issue would imply that
there are those who have signed up to the Belfast Agreement who do not recognise
the Principle of Consent, and so, when the Union Flag ceases to fly over the
Government Buildings, it sends out dangerous signals to the Unionist community.
In Wales and Scotland there is no difficulty in the flying
of the Union Flag over their National Assembly and Parliament Buildings, yet
powers have been devolved in exactly the same way.
While recognising that the Welsh and Scottish flags fly
alongside the Union Flag, the Irish Tricolour, as the flag of a foreign nation,
cannot be seen in a comparable way. We would also add that we fully acknowledge
that the Union Flag and the Irish Tricolour have been flown and used in an offensive
way.
Nevertheless, there is real concern within the Protestant
and Unionist community that the issue necessitates any kind of discussion -
the flying of the national flag should never merit negotiation at all. In a
divided society like Northern Ireland, the symposium of the issue serves to
underline the lack of confidence in a process that is increasingly perceived
in our community as a course of action aimed at eroding the rights of the majority.
The importance and symbolism in the flying of the Union Flag cannot be over
emphasised.
Many Unionists already believe they are alienated and
feel like 'strangers in our own land'. In a democracy there should be equal
rights for all, but the rights and wishes of the majority cannot, and must not,
continue to be eroded or destroyed in order to satisfy the needs of a vociferous
minority.
This matter cannot be seen as an equality issue, neither
can there be any argument about neutrality. These are bogus assertions which
would ultimately, if given any credence, result in discrimination against the
wishes of the majority.
There is a line of reasoning that the Union Flag and the
Irish Tricolour are expressions of two cultures, however this argument should
be separated from the constitutional one. In pure constitutional terms, if the
consent principle in the Belfast Agreement is to mean anything, Northern Ireland
is part of the United Kingdom and the flag of the UK is the Union Flag.
REGULATIONS
While we have no difficulty with the Union Flag flying
on St. Patrick's day, it should be noted that one section of the community has
'hijacked' this day to promote its own culture and could be seen to contrast
with the exclusion of the flying of the Union Flag on the 12th July.
We also believe that the Union Flag should be flown on
the 1st July on the anniversary of the Battle of the Somme when soldiers from
all over Ireland, both Protestant and Roman Catholic gave their lives in the
Great War.
It is with disappointment that we note that Parliament
Buildings is omitted from the list of specified Government Buildings, and in
accordance with the Scottish and Welsh Assemblies, believe that the Union Flag
should also be flown at Stormont and preferably on all sitting days.
It is also a matter of some concern that whilst the regulations
stipulate occasions when the Union Flag 'shall be flown', we have in the past
experienced an absence of the Union Flag on designated days at certain government
buildings. Nowhere in the regulations is there provision to deal with such an
incident or specification as to how the offending Minister shall be reprimanded
should his / her department not fly the flag in accordance with a directive
from the Minister personally. It is imperative that this omission is addressed
and some kind of sanction imposed..
The definition of 'Government Building' should be rectified
to include Parliament Buildings and indeed any building where a Minister holds
office. The term Government Building should be inclusive of Local Government
Offices and other Public Authorities, for example Education and Library Boards.
We would recommend that no other flag, aside from the
Royal Standard in the event of a visit by Her Majesty the Queen, should be flown
at any government building except by the prior approval of the Northern Ireland
Assembly.
It is our belief that while the Union Flag should certainly
be flown at least on all designated days, there should be no prohibition to
its flying on Government Buildings at any time.
AD HOC COMMITTEE ON DRAFT REGULATIONS PROPOSED
UNDER THE FLAGS (NORTHERN IRELAND) ORDER 2000
WRITTEN SUBMISSION BY:
THE NORTHERN IRELAND WOMEN'S COALITION
Preamble
The NI Women's Coalition recognises that the question
of culture and symbols in the Northern Ireland context is a difficult and highly
emotive issue. We acknowledge at the outset that the debate over flags is not,
in essence, about flags 'per se'. Rather it is a debate about the visible representation
of who we are as a people and how our differing political and cultural allegiances
are represented at an official level.
The Coalition understands that for many unionists in Northern
Ireland, the past, and how it was represented symbolically, was very much about
the unionist identity. We also understand the concern that many unionists have
about the future and how it will be represented symbolically. We believe that
unionists, nationalists and 'others', should be assured that the future, and
how it will be represented symbolically, should be about 'us' and any new shared
future will require new shared symbols - symbols that will be created and agreed
together.
We recognise, however, that this is a long-term aspiration
that the Good Friday Agreement signposts. Given the current political climate
and reflecting on the fears that many have around this issue, the Coalition
believes that it is not yet the time to have this debate. It is not useful to
heighten tension in the communities which, we believe, this debate has the potential
to do and we know that heightened tension had the capacity to spill over into
public disorder.
Context
The Good Friday Agreement, in affirming and assuring the
status of Northern Ireland within the United Kingdom, also established institutions,
in particular the Assembly, whereby power is shared. There is no doubt that
Northern Ireland is very different from other parts of the UK and this difference
should be reflected in the flags debate. The Agreement explicitly recognises
that
"..the power of the sovereign government with
jurisdiction there shall be exercised with rigorous impartiality on behalf of
all the people in the diversity of their identities and traditions and shall
be founded on the principles of full respect for, and equality of, civil, political,
social and cultural rights, of freedom from discrimination for all citizens,
and parity of esteem and of just and equal treatment for the identity, ethos
and aspirations of both communities" and,
"..the birthright of all the people of Northern Ireland
to identify themselves and be accepted as Irish, or British or both, as they
may so choose, and accordingly confirm that their right to hold both British
and Irish citizenship is accepted by both Governments and would not be affected
by any future change in the status of Northern Ireland".
Constitutional Issues 1 (v & vi)
In other words, the Agreement clearly establishes the
constitutional status of Northern Ireland, but also recognises and allows the
different political and allegiances to be represented within that.
The Coalition believes that the debate we must embark
on together is how to square this circle in terms of visible symbols. We believe
that the four-week period allocated to the Ad Hoc Committee on Flags is too
short to enable us to address these issues in the detail they deserve. The process
by which we do this is important because it allows us to take time to listen
and learn from a range of expertise and experience in order to achieve an acceptable
outcome in the longer term.
Recommendations
In light of the above, the NIWC recommends that
- The draft regulations should be accepted as a holding
measure for a twelve-month period only
- The timeframe of the Flags Committee of the Assembly
be extended to match this twelve-month period
- The remit of the Committee should be widened to permit
gathering of evidence from internal and external sources and consultations
on the variety of options available to include
- Two Flags (Union Flag and Tricolour)
- No flags (moratorium on flags)
- A new flag (reflecting the governance of the new dispensation)
- Any combination of these options
Conclusion
While the Coalition has recommended the acceptance of
the draft regulations as a holding position, we believe that perpetuating the
status quo (i.e. flying one flag) is not a long-term option. Additionally we
believe there would be merit in the following:
- Undertaking an examination of the number and purpose
of the 'Official Days' on which flags are flown (examples from Scotland and
Wales).
- Exploring the ramifications of official flag flying
under the Human Rights Act
- Examining what constitutes a public building for flag
flying purposes and what rights to consultation the users of any such building
might have.
AD HOC COMMITTEE ON DRAFT REGULATIONS PROPOSED
UNDER THE FLAGS (NORTHERN IRELAND) ORDER 2000
WRITTEN SUBMISSION BY:
Progressive Unionist Party
The Progressive Unionist Party's view of the flag's issue
cannot be divorced from their vision for the future based upon the GFA and the
parameters contained therein.
The healing process, which the GFA was meant to be, is
seriously hampered by continued resurrection of divisive issues - especially
if those issues are hyped to ones own constituency as make or break.
Northern Ireland is an integral part of the United Kingdom
as per the will of the people. There is no requirement to all day every day
ensure that that glaring fact is appreciated. However, obviously, the fact remains.
Those who created the GFA acknowledge
'.the present wish of a majority of the people of Northern
Ireland, freely exercised and legitimate, is to maintain the Union and, accordingly,
that Northern Ireland's status as part of the United Kingdom reflects and relies
upon that wish; and that it would be wrong to make any change in the status
of Northern Ireland save with the consent of the majority o f its people.'
There can be little doubt that the flag of a nation is
indeed a constitutional symbol. Not only is the flag of the nation a national
constitutional symbol, it is also an internationally recognised constitutional
symbol. The flag of a nation state identifies its people and territory.
The Nationalists have accepted the will of the people
of Northern Ireland, and subsequent to that, also the territorial integrity
of the United Kingdom. At least, that's according to their acceptance of the
GFA!
It is the contention of this party that no committee was
required to deal with the flag issue.
We believe that the Union Flag should be flown on the same designated days
as the rest of the United Kingdom.
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