Annex C
SUBMISSIONS FROM
ORGANISATIONS AND INDIVIDUALS
AD HOC COMMITTEE ON DRAFT REGULATIONS PROPOSED
UNDER THE FLAGS (NORTHERN IRELAND) ORDER 2000
WRITTEN SUBMISSION BY:
Lady Sylvia Hermon
DAYS ON WHICH THE UNION FLAG IS TO BE FLOWN AT FULL MAST
20th January Birthday of the Countess
of Wessex
6th February Her Majesty's Accession
19th February Birthday of the Duke of York
A day in March Commonwealth Day
10th March Birthday of the Earl of Wessex
17th March St. Patrick's Day
21st April Birthday of Her Majesty The Queen
9th May Europe Day
A day in June The Queen's Official Birthday
2nd June Coronation Day
10th June Birthday of the Duke of Edinburgh
4th August Birthday of Her Majesty Queen Elizabeth The Queen Mother
15th August Birthday of The Princess Royal
21 August Birthday of The Princess Margaret
A Sunday in November Remembrance Day
14th November Birthday of The Prince of Wales
20th November Her Majesty The Queen's Wedding Day
Days on which it is proposed that the Union flag will
no longer be flown from Government Buildings
1st January New Year's Day
Easter Sunday
12th July Battle of the Boyne Anniversary
25th December Christmas Day
ANALYSIS of the draft FLAGS REGULATIONS (N.I.) 2000
"In Northern Ireland, symbols matter a lot ... symbols
represent the different identities and different traditions of those who live
in this part of the United Kingdom and, like other symbols, flags have historically
been a source of conflict that has driven people apart".
This was the Secretary of State, Peter Mandelson's, view
when he spoke in the House of Commons on 16th May this year during the debate
on the Flags (Northern Ireland) Order 2000. It is a fact that, until Peter Mandelson
introduced this Order in May, there had been no legislation requiring the Union
flag to be flown from government buildings.
This legal loophole only came to light, and very visibly
to public notice, 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 perogative,
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.
[Please see the back page for details.]
Since the Assembly and Executive failed to agree on flag-flying
procedures before the summer recess, the Secretary of State now proposes to
resolve this issue by making regulations under the earlier Flags (Northern Ireland)
Order 2000. For the first time in the history of Northern Ireland, there will
be specific legislation compelling the flying of the Union flag on government
buildings, rather than having to rely on custom and practice. Legislation -
in the form of these Flags Regulations - will prevail over the royal perogative
and so the previous legal loophole, exploited initially by Sinn Fein and latterly
by SDLP Ministers, should be filled. But is it?
This question can only be properly answered by close examination
of the draft Flags Regulations (Northern Ireland) 2000. When bringing them forward
on 8th September, Peter Mandelson described them as "a sensitive, common
sense way forward".
The preamble to these particular Regulations indicates
that, in their drafting, the Secretary of State had regard to the Belfast Agreement.
In it, 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,
the main statute implementing the Belfast Agreement.
The consent principle has to be reconciled with a subsequent
provision in the Agreement, which relates specifically to symbols and emblems.
Paragraph 5 of that part of the Agreement entitled "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."
The first obligation, to adhere to the consent principle,
and the second, to use symbols with sensitivity, have both to be honoured by
the new draft Flags Regulations.
Consequently, the SDLP's demand 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. As Peter Mandelson himself declared in the House of Commons on 16th
May this year:
"The principle of consent was a cornerstone of the
Good Friday Agreement. As such, it must receive more than lip service ..."
[Hansard, Col. 263.]
The flying of the Union flag from government buildings
is the clear expression of Northern Ireland's constitutional position.
Like that of the SDLP, 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 a neutral flag on government buildings, or for the
flying of both the Union flag and the tricolour together with equal status on
such buildings. Those who advocate the flying together of both these flags as
a necessary consequence of the term "parity of esteem" between the
minority and majority communities in Northern Ireland would do well to consider
the Framework Convention for the Protection of National Minorities.
This Convention drafted by the Council of Europe in 1995,
outlines the content and meaning of minority rights, including the word "identity".
This international treaty, which the United Kingdom has ratified, defines the
"identity" of a national minority in Article 5 as "their religion,
language, traditions and cultural heritage" Nothing in the Convention gives
a national minority any right to engage in any activity which is ... "contrary
to the fundamental principles of international law, and in particular of the
sovereign equality, territorial integrity and political independence of States".
[Article 21].
It follows that demands from Sinn Fein for the flying
of the tricolour along with the Union flag would contravene Article 21 of the
Convention in that it would not recognise the territorial integrity of Northern
Ireland and the independence of the United Kingdom as a whole.
The draft Flags Regulations do recognise the constitutional
position of Northern Ireland as part of the United Kingdom by making it a duty
- rather than a mere discretion - to fly the Union flag on certain designated
days at 7 designated government buildings, namely Adelaide House, Castle Buildings
at Stormont, Churchill House, Clarence Court, Dundonald House, Netherleigh House
and Rathgael House.
The careful use throughout these Flags Regulations of
the word "at", rather than "on" government buildings leaves
an unfortunate ambiguity as to the exact location of the Union flag. To avoid
future controversy over the positioning of the Union flag, this ambiguity needs
to be resolved now while the Regulations are still in draft form.
According to these draft Regulations, the Union flag must
be flown "at" these buildings on exactly the same 17 designated days
as in the rest of the United Kingdom. Prior to these Regulations, it had, as
already mentioned, been custom and practice in Northern Ireland - though routinely
ignored by Sinn Fein and latterly also by the SDLP - to fly the Union flag on
government buildings on 20 days in the year.
These days included the 15 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, on which the Union flag was flown in Ireland
prior to partition. These 4 were added in 1927, and only in 1933 did the Northern
Ireland Cabinet decide to add 12th July as a flag-flying day.
The logical consequence of the consent principle as enshrined
in the Agreement is that the Union flag should be flown in Northern Ireland
on government buildings on the same basis as in the rest of the United
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 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 cease
to be such in Northern Ireland. However, as 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 Union flag will continue to fly here
on St. Patrick's Day.
It should be noted 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-flying days in
Northern Ireland. [See the full list on the back page with * to indicate the
changes proposed by the Flags Regulations (N.I.) 2000.]
By accepting the 17 flag-flying days as specified by the
draft 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 unionist community
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 demonstrate total insensitivity
without a shred of "mutual respect". Nationalists and Republicans
would do well to remember that, in accordance with the Belfast Agreement, "showing
sensitivity" and "promoting mutual respect" are obligations on
all participants; it must be a two-way process with Unionists.
By permitting in the Flags Regulations the flying of the
national flag of the country of a visiting foreign Head of State, the British
Government has attempted to fulfil its obligations under the Belfast Agreement
to show sensitivity and mutual respect. Most regrettably, however, the Government
has at the same time failed to honour the fundamental principle of consent.
This failure is highlighted by regulation 8, which governs the positioning of
the foreign flag. It has to be read together with regulations 3(1) and 3(2).
It is regulation 3(1) which permits the Union flag to
be flown at a government building visited by a foreign Head of State. On such
occasions, it is a discretion, not a duty, to fly the Union flag. Regulation
3(2) further provides that only if the discretion to fly the Union flag is exercised
and only if the building has two flag poles may the national flag
of the country 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 also flown and only where there are two flagpoles.
Since the Republic of Ireland has abandoned the deeply-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.
The Flags Regulations must, however, avoid misrepresenting the constitutional
position of Northern Ireland by flying the tricolour as if it had the same status
as the Union flag. As presently drafted, this is precisely what the Flags Regulations
do.
Although regulation 5(1)(a) precludes a foreign flag
being flown "in a superior position to the Union flag", regulation
8 permits that foreign flag to "be flown in the same manner".
What an ambiguous phrase! Does "same manner" really mean "same
height"? If so, that would seriously misrepresent Northern Ireland's constitutional
position. Regulation 8 further compounds such a misrepresention by permitting
the foreign flag 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 regulation 8 is that, in the event
of a visit by the President of the Republic of Ireland to Rathgael House, we
could see a rash of tricolours at equal height alongside the Union flag at various
Department of Education buildings. Again, it is worth repeating that there is
no provision in the Belfast Agreement for joint sovereignty of Northern Ireland.
It is wholly unacceptable, therefore, to have the tricolour flown "in the
same manner" as the Union flag at government buildings . Consequently,
regulation 8 of the draft Flags Regulations simply cannot remain in its present
form. The international law doctrine of sovereign equality must be reconciled
with the consent principle, recognised by the British Government as "a
cornerstone of the Good Friday Agreement".
Not only must regulation 8 be amended, but so too must
regulation 2(2) of the Flag Regulations. This latter provision currently requires
the Union flag to be flown on the 17 designted 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 regulation 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 draft 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 "a building wholly or mainly occupied by members of the Northern
Ireland Civil Service".
The ludicrous and wholly unacceptable consequence of this
narrow definition is that it excludes the main seat of government in Northern
Ireland. Parliament Buildings at Stormont will not qualify as "government
buildings", because they are not "wholly or mainly occupied"
by Northern Ireland civil servants. So, even though 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 regulation
2 (2) for the simple, but obscure reason, that they do not come within the statutory
definition of "government buildings". As presently drafted, it is
offensive to Unionists that there is no duty under regulation 2 of the Flags
Regulations to fly the flag of the United Kingdom over the main seat of government
in Northern Ireland. This is certainly not a "sensitive commonsense way
forward".
The second serious flaw in regulation 2(2) relates to
future "government buildings". This particular regulation only
imposes a duty on "government buildings" to fly the Union flag where
it had been "the practice to fly the Union flag on notified days
in the period of 12 months ending with 30th November 1999".
It would inevitably follow from this regulation that,
if civil servants were to be moved from Rathgael House, for example, and into
buildings elsewhere, those new buildings would fall within the definition of
"government buildings". Nevertheless, they would still fall outside
the scope of regulation 2(2), because 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.
These two flaws in regulation 2(2) are only exacerbated
by regulation 9. The latter contains the short, but bold, statement that ...
"Except as provided by these Regulations, no flag shall be flown at any
government building at any time". So, what would happen if the main headquarters
of the Department of Education were moved from Rathgael House? As presently
drafted, regulation 9 ensures that there is no duty to fly the Union flag on
the new headquarters. Since the Union flag symbolises the constitutional status
of Northern Ireland within the United Kingdom, there should be an obligation
written into the Flags Regulations requiring it to be flown on the 17 designated
days on any new departmental headquarters.
Finally, the absence of sanctions from the draft 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"? As presently
drafted the Flags Regulations do not even mention the words "Minister"
or "duty". Again, to avoid any ambiguity, 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 Act 1998 came into force on 2nd October 2000. Included
amongst these rights is the right to freedom of expression: "This right
shall include freedom to hold opinions ... without interference by public authority".
[See Article 10]
The draft Flags Regulations should, therefore, carry the
statement that they comply with the United Kingdom's obligations under the European
Convention on Human Rights.
It should be remembered that, according to section 24
of the Northern Ireland Act 1998, no Minister or 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 Convention. By refusing to fly the Union flag on the
17 designated days from specified government buildings, Ministers and/or Departments
will not only be in breach of their statutory obligations under the Northern
Ireland Act 1998, but they will obviously also be at risk of a legal challenge
under the new Human Rights legislation.
Sylvia Hermon
4th October 2000.
AD HOC COMMITTEE ON DRAFT REGULATIONS PROPOSED
UNDER THE FLAGS (NORTHERN IRELAND) ORDER 2000
WRITTEN SUBMISSION BY:
Mr Austen Morgan
Introduction
1. This Opinion has been prepared as an independent
submission to the Northern Ireland Assembly Ad Hoc Committee ('the Committee')
on the Flags (Northern Ireland) Order 2000, SI 2000/1347, set up on 11 September
2000 (to report by 16 October 2000 on the draft Flags Regulations (Northern
Ireland) Order 2000, SR 2000/XXXX ['the draft Regulations']).
2. I am not aware of the Committee having any independent
legal advice on the draft Regulations. The purpose of this submission is to
query the legal view on which the Secretary of State ('SOS') appears to be relying,
and separately the advice seemingly given to the Minister of Health, Social
Services and Public Safety and the Minister of Education ('the Northern Ireland
Ministers').
3. It is my view, in summary, that, one, the Northern
Ireland Office ('NIO'), and the Northern Ireland Civil Service ('NICS'), have
not properly understood United Kingdom law on the flag of the state or national
flag ('the Union flag'). I am not convinced it is a transferred matter under
section 4(1) of the Northern Ireland Act ('NIA') 1998. Two, it is unclear whether
the Committee has the power to call for persons and papers (particularly NIO
and NICS legal advice). Three, the draft Order, while it appears
to be consistent with existing law, may well have no legal effect after approval
by Parliament. What is to stop the Northern Ireland Ministers continuing to
refuse to fly the Union flag? Four, it remains my opinion that the only resolution
of this problem lies with the judicial committee of the privy council, under
section 79 and schedule 10 of the NIA 1998.
The origin of the Union flag
4. While this dates from the union of the kingdoms
of England and Scotland in 1606 under James I/VI, the law in Northern Ireland
stems from 1801: the United Kingdom of Great Britain and Ireland.
5. Article first of the Act of Union (Ireland) 1800
united the kingdoms of Great Britain and Ireland. It went on to provide: 'the
royal stile and titles appertaining to the imperial crown of the said united
kingdom and its dependencies, and also the ensigns, armorial flags and banner
thereof, shall be such as His Majesty by his royal proclamation under the great
seal of the united kingdom shall be pleased to appoint.'
6. It is absolutely fundamental whether the law on
'ensigns, armorial flags and banners thereof' followed that on 'royal stile
and titles' in the nineteenth and twentieth centuries. The problem in United
Kingdom constitutional law is the relationship between parliament and the sovereign,
between statute law and the royal prerogative as part of the common law. Royal
stile and titles, I submit, has come to be governed by acts of parliament; not
so the ensigns, armorial flags and banners thereof (raising the question of
whether the Act of Union (Ireland) 1800 - not an act of the United Kingdom parliament
- simply recognized, rather than suspended, the royal prerogative).
7. There is no merit in the legal view that the Act
of Union (Ireland) 1800 was repealed by section 2 of the NIA 1998.
8. Under a royal proclamation of 1 January 1801, George
III determined that 'the Union flag [should] be azure, the crosses saltire of
St. Andrew and St. Patrick quarterly per saltire, counterchanged argent and
gules; the latter fimbriated of the second, surmounted by the cross of St. George,
of the third, fimbriated as the saltire;': SR&O, revised to 31 December
1948, p. 790.
The flying of the flag of the United Kingdom state
9. This, I submit, in the absence of statutory law,
is governed by the common law, in particular the royal prerogative. But is this
exercised by the crown, meaning the executive, or is it one of the personal
prerogatives within the sovereign's discretion? Given the non-availability of
official papers (if any should exist), I would infer that the flying of the
flag on designated days is a personal prerogative.
10. This is evidenced by Whitaker's Almanac 2000, published
by the Stationery Office, which states: 'It is the practice to fly the Union
flag daily on some customs houses. In all other cases, flags are flown on government
buildings by command of The Queen.' (p. 116) The procedure is: Buckingham Palace
notifies the United Kingdom Department of Culture, Arts and Leisure; this department
then communicates with all other government departments (including presumably
in the devolved administrations). Whitaker's lists 20 days in 2000, including
St. David's, St. George's and St. Andrew's, including two to do with parliament
in the greater London area. That leaves a core of 15 days common throughout
the United Kingdom. With the exceptions of Commonwealth day (13 March), Europe
day (9 May) and Remembrance Sunday (12 November), all have to do with the sovereign
and her family - including nine birthdays.
11. While parliament can, in constitutional theory,
decide what flies where for whatever reason, the above facts of the national
United Kingdom flag make ministerial advice in this matter most unlikely in
practice; if a minister did advise, it would most likely be the prime minister,
or the culture secretary in the United Kingdom government.
12. I make no comment on the practice of the Northern
Ireland government, between 1921 and 1972, of flying the Union flag on additional
days, seemingly all bank holidays. These included St. Patrick's day and also
12 July. I cannot see what legal basis there was for this. The principle
of the United Kingdom of Great Britain and Northern Ireland should be consistency,
although there are national days in Wales and Scotland, and London symbolizes
the opening and proroguing of parliament.
The law in Northern Ireland
13. This is now to be found in the NIA 1998. Schedule
2, which deals with excepted matters, lists first 'The Crown, including the
succession to the Crown and a regency.' (paragraph 1). That means that these
functions stay in London, even with devolution. However, paragraph 1 goes on
to specify three exceptions, the first of which is: '(a) functions of the First
Minister and deputy First Minister, the Northern Ireland Ministers or the Northern
Ireland departments, or functions in relation to Northern Ireland of any Minister
of the Crown;'.
14. Parliamentary counsel here followed the Northern
Ireland Constitution Act ('NICA') 1973, but not the Government of Ireland Act
('GOIA') 1920. The draftsman is usually careful not to abrogate the royal prerogative,
except expressly: Attorney-General v De Keyser's Royal Hotel [1920] AC
508. If this happens, the royal prerogative goes into abeyance - being potentially
restorable through statutory repeal.
15. The only relevant bit of paragraph 1(a) of schedule
2 of the NIA 1998 is: 'functions in relation to Northern Ireland of any Minister
of the Crown'. Minister of the Crown, here, under the Ministers of the Crown
Act 1975, means the prime minister, the culture secretary or conceivably the
SOS. The argument - seemingly of the NICS and, separately, of the NIO - must
be that Northern Ireland ministers, and/or departments, have had relevant powers
devolved to them from the SOS.
16. This, of course, begs the question: what powers
does, or did, the SOS have over the flying of the national flag in Northern
Ireland?
17. Nothing was said of this during the enactment of
the Northern Ireland Bill in 1998. However, the NIO's Notes on Clauses
(which is unlikely to be considered by the courts), prepared for MPs and peers,
listed as examples of excepted matters under paragraph 1: 'This includes
the monarchy, i.e. the role of the Crown in the Constitution; Royal Styles and
titles in the UK; the Royal Arms and Royal standards; the Royal family and titles
of its members.'. This list - which has no legislative authority - would appear,
by referring to royal styles (sic) and titles, and the royal arms and royal
standards, and assuming it is tracking article first of the Act of Union (Ireland)
1800, to exclude the Union flag.
18. However, it is not evident that this was the intention
of parliament when it enacted the NIA 1998. A contrast can be seen in the Scotland
Act 1998, which received the royal assent on 19 November 1998 (the same day
as the NIA 1998).
19. Schedule 5 of the Scotland Act 1998 deals with
reserved matters. Under 'The Constitution', the Scotland Act reserved in paragraph
1: '(a) the Crown, including succession to the Crown and a regency'. Paragraphs
2 to 5 went on to list exceptions. In paragraph 2(1)(b), these include: 'functions
exercisable by any person acting on behalf of the Crown'. Paragraph 3(3) states:
'Sub-paragraph (1) does not affect the reservation by paragraph 1 of - . (b)
the royal arms and standards'. The failure to expressly include here any reference
to the national flag (royal style and titles would appear to be included in
paragraph 1(a)), is suggestive that parliament transferred (some) responsibility
for the Union flag to, arguably, the Scottish executive.
20. The Scotland Act 1998 suggests that, even if the
NIO had intended to bring about the same position for Northern Ireland, this
was not clearly the intention of parliament in the NIA 1998.
21. The view that responsibility for the Union flag
was transferred is, I submit, wrong. Alternatively, the position is far from
being clear. Yet, the NICS, and separately the NIO, seem to have
started from this presumption.
The case of the NICS
22. The NIA 1998, adapting the GOIA 1920 and the NICA
1973, distinguishes, under 'Functions' of the 'Executive Authorities', statutory
functions (section 22) and prerogative and executive powers (section 23). Section
23(1) states: 'The executive power in Northern Ireland shall continue to be
vested in Her Majesty.' Subsection 2 reads: 'As regards transferred matters,
the prerogative and other executive powers of Her Majesty in relation to Northern
Ireland shall.be exercisable on Her Majesty's behalf by any Minister or Northern
Ireland department.'
23. Thus, if the NICS is correct, and the Northern
Ireland ministers had relevant legal powers, they used the royal prerogative
not to fly the Union flag. The improbability of this legal eventuality, given
what the sovereign is commanding, confirms my suspicion about the transferred-power
theory; the sovereign did not make special provision for Northern Ireland in
2000.
24. Even accepting this for a moment, it is unclear
why the NICS did not argue that the power lay with the department, and not with
the minister. For reasons dating back to 1921, and taking in direct rule in
1972, and again in 1974, and in particular the Departments (Northern Ireland)
Order 1999, SI 1999/283, a consolidation measure, Northern Ireland ministers
do not have powers. These lie with the departments. The departments are legally
bodies corporate. Ministers are not corporations sole (as they are in London,
and have been in Dublin since 1922).
25. This strange constitutional relationship was preserved
specifically to allow the NICS to control errant ministers. Yet, on the first
occasion of it being needed, the officials chose not to try and exercise the
powers they have over ministers.
26. The departments of education and health, social
services and public safety had the power, if not the obligation, to fly the
Union flag on the days commanded. This was not a responsibility of the two Northern
Ireland Ministers.
The case of the NIO
27. The presumption was evident in the way the SOS
moved, on 16 May 2000, before the restoration of devolution, to use paragraph
1(1) of the schedule of the Northern Ireland Act 2000 ('the suspension act'),
to put the Flags (Northern Ireland) Order 2000, SI 2000/1347 ('the Order') through
both houses of parliament in the one day - a strange case of Westminster using
a suspended, devolved power (before the restoration of the institutions), rather
than its parliamentary sovereignty: section 5(6) of the NIA 1998.
28. It is my view that responsibility lay with the
sovereign. If ministerial advice was necessary, this remained with the United
Kingdom government. In enacting the Order on 16 May 2000 - it was not brought
into operation immediately, or even subsequently - parliament was risking the
suspension of this royal prerogative power in Northern Ireland: what had been
a matter of common law promised to become a statutory legal issue, with the
SOS purporting to use devolution to give himself powers.
The correct legal approach
29. The NIA 1998 makes provision for what are called
devolution issues. These are disputes, or debates, between London and Belfast,
as to whether a matter is transferred, reserved or excepted: section 4(1). Section
79 refers to schedule 10. And paragraph 1, defining devolution issue, includes:
'any question arising under this Act about excepted or reserved matters.'
30. The NICS, and NIO, say it is a transferred matter.
I say it is excepted, or, at least, the issue is not clear.
31. Under paragraph 34 of schedule 10, either the attorney
general (Lord Williams of Mostyn), or the First Minister and deputy First Minister
acting jointly, may refer to the judicial committee of the privy council any
devolution issue which is not the subject of proceedings.
32. The questions for judicial determination would
be: one, what responsibility did the SOS have for the Union flag in Northern
Ireland before 2 December 1999?; two, were any such powers transferred under
the NIA 1998?; three, did, and do, the Northern Ireland Ministers have the power
not to fly the Union flag, regardless of the command of the sovereign?; and
four, does the Flags (Northern Ireland) Order 2000, SI 2000/1347, if and when
it is brought into operation, place the royal prerogative in abeyance, at least
as regards Northern Ireland?
33. Under paragraph 35 of schedule 10 of the NIA 1998,
dealing with 'the proposed exercise of a function by a Northern Ireland Minister
or department', the attorney general, or the First Minister and deputy First
Minister acting jointly, may effectively enjoin a minister or department. Subparagraph
(3) reads: 'No Northern Ireland Minister or department shall exercise the function
in the manner proposed during the period beginning with the receipt of the notification
under sub-paragraph (2) and ending with the reference being decided or otherwise
disposed of.'
34. Under subparagraph (4), the attorney general may
commence proceedings against any minister or department for effectively a breach
of the First Minister and deputy First Minister's executive order.
The Flags (Northern Ireland) Order 2000, SI 2000/1347
35. This is now the basis of the SOS's proposed draft
Regulations on which the Committee is required to report. Article 3(1) gives
him the power to 'make regulations regulating the flying of flags at government
buildings'.
36. Flags, not the Union flag, to allow for presumably
the European flag, other state flags on the occasion of a visit of another head
of state (including the Irish president) plus the royal standard. Flags here
does not cover any future Northern Ireland flag (or flag of St. Patrick), unlike
in Wales and Scotland.
37. Government buildings is defined in article 3(2)
as 'wholly or mainly occupied by members of the Northern Ireland Civil Service'.
This excludes Parliament Buildings at Stormont. Under section 40 of the NIA
1998, and the Northern Ireland Assembly Commission (Crown Status) Order 1999,
SI 1999/3145 (for various purposes), one might have thought the Union flag appropriate.
Under ISO 19 during the transition (1 July 1998 to 1 December 1999), all flags
were prohibited in the Assembly (but not on Parliament Buildings). This interim
standing order, however, was not carried over to the Standing Orders ordered
to be printed by the Assembly on 9 March 1999.
38. Article 3(2) also excludes all Royal Ulster Constabulary
buildings, which are held by the Police Authority of Northern Ireland: Police
(Northern Ireland) Act 1998 schedule 1 paragraph 1 (which came into force on
1 April 1999), defining the status of the Police Authority. While
under section 3(4), the Police Authority may make arrangements for civil servants
to provide administrative, secretTahoma or other assistance, section 4 permits
the SOS by regulations to transfer staff to the Police Authority.
39. There was little reporting of the parliamentary
debates on the Order on 16 May 2000. But the most interesting comment came from
Lord Falconer of Thoroton, when he asked rhetorically: 'Is it necessarily helpful
to require the flag to fly from every government building, wherever it is located
and however significant or insignificant it may be?. This was to
be developed in the draft Regulations.
40. It is important to point out that the Flags (Northern
Ireland) Order 2000, SI 2000/1347 is not - of today - in operation. The SOS
has the power, under article 1(2), to bring it into operation on such day or
days as he may by order appoint. Though the draft Regulations purport
that they are referred to the Assembly under article 4(1) of the Order, this
is not the position.
41. There is a remaining question as to whether the
Order is ultra vires the NIA 1998. The NIO says the power was transferred. A
number of MPs insisted on 16 May 2000 that it should have been a reserved power.
One (Andrew McKay) believed the Order made the power reserved (he may have meant
excepted).
42. Under section 4 of the NIA 1998, a transferred
power can only become a reserved one through amending schedule 3 by order in
council. The Order does not purport to do this. Further, a condition precedent
is a cross-community vote of the Assembly, under section 4(3). During suspension,
the Assembly was not able to meet. Even if this was waived, the SOS could only
have made the putative transferred power a reserved one by amending schedule
3 of the NIA 1998.
43. Paragraph 1(1) of the schedule to the Northern
Ireland Act ('NIA') 2000 allowed Westminster to legislate for Northern Ireland
by order in council in place of the Assembly. Could the Assembly, if it had
not been postponed, have legislated to give the SOS the power to make regulations
on flag flying? The answer lies in paragraph 1(2): 'A provision which would
be outside the legislative competence of the Assembly may not be included in
such an Order.' The Assembly cannot amend section 4 of the NIA 1998: paragraph
22 of schedule 2. It is a more difficult question whether section 6 (legislative
competence), read with section 4, allows the transfer of regulation-making powers
from the Assembly to the secretary of state.
44. There is here, if the SOS should bring the Order
into operation (which he will have to do if he wishes to proceed with the draft
Regulations) another devolution issue for the privy council to consider.
The Belfast Agreement
45. This agreement between the United Kingdom and Irish
states, creating mutual obligations in international law, has been cited as
transformative of the legal position - since 10 April 1998. However, the Agreement
did not enter into force until 2 December 1999. And an attempt to use it in
litigation to justify some new constitutional status for Northern Ireland has
been unsuccessful in the High Court: Treacy and Macdonald (Kerr J, unreported,
judgment 2 May 2000).
46. Article 1(v) of the British-Irish Agreement indicates
Northern Ireland as being under one sovereignty. This was accepted by the Irish
state on 10 April 1998, when the taoiseach and minister for foreign affairs
signed. The second paragraph 4 of the Strand Three section dealing with the
British-Irish intergovernmental conference states: 'There will be no derogation
from the sovereignty of either Government (sic).'
47. There is no basis for the contention that the Belfast
Agreement produced some new status for Northern Ireland, which requires - or
has produced - a change in the law on flags.
48. The only possible relevant provision in the Belfast
Agreement is - the inconclusive - paragraph 5 of the Economic, Social and Cultural
Issues subsection. This does not bite legally on either state, unlike paragraphs
1, 2 and 4 of that subsection, which impose obligations on the United Kingdom
state.
49. The term 'all participants', also used in paragraph
3, refers only to the Northern Ireland political parties. Participants originated
in The Ground Rules for Substantive All-Party Negotiations, Cm 3232, 16 April
1996. While it does include the United Kingdom and Irish governments there,
in the Belfast Agreement it invariably means only the political parties: see,
paragraphs 1 and 5 of the Declaration of Support; paragraphs 1 and 2 of Constitutional
Issues; the first paragraphs 1 and 11 to 13 of Rights, Safeguards and Equality
of Opportunity; paragraphs 1 to 3 of Decommissioning; paragraph 1 of Security;
paragraphs 1, 2, 4 and 7 of Policing and Justice.
50. This means the second paragraph five of Rights,
Safeguards and Equality of Opportunity has no legal effect in international
law. Given that, it can have no effect in Northern Ireland law.
51. It is essentially a political commitment between
parties. It did bear fruit, as a result of ISO 19, produced by the then SOS,
and the leadership of the then presiding officer, Lord Alderdice, in the form
of the blue linen plant motif. This, however, is only an internal Assembly symbol,
the property of the Assembly commission under section 40 of the NIA 1998. It
has a certain constitutional significance, but it is closer legally to a company
logo than the flag of the United Kingdom state.
52. There is an argument - vitiated by the fact that
the second paragraph 5 of Rights, Safeguards and Equality of Opportunity has
no legal effect - that the phrase 'symbols and emblems' (used twice) does not
even include the national flag. This is because, in Northern Ireland law, between
1954 and 1987, an emblem was described as including 'a flag of any kind other
than the Union flag': Flags and Emblems Display Act (Northern Ireland) 1954;
Public Order (Northern Ireland) Order 1987, SI 1987/473.
53. In conclusion, the Belfast Agreement - in whole
and in part - has no implications for the law on the national flag. The second
paragraph 5 of Rights, Safeguards and Equality of Opportunity is, at best, a
statement of political intent.
The logic of the streets
54. Flags, like parades, wall murals and painted kerbstones,
are popular markings of local communal segregation. In the United Kingdom, the
Union flag may be flown on land, but not sea, by nationals of the state.
In Northern Ireland, unionist parties used, and use, the national flag to symbolize
their wish to remain part of the United Kingdom. The Irish tricolour (stemming
in Irish law from article 7 of Bunreacht na hÉireann) has been used increasingly
to affirm an alternative identity associated with an all-Ireland state.
55. The Flags and Emblems (Display) Act (Northern Ireland)
1954 prohibited the flying of any emblems (defined to exclude the Union flag)
where it might occasion a breach of the peace. Following the 1985 Anglo-Irish
Agreement, this was repealed by Westminster: Public Order (Northern Ireland)
Order 1987, SI 1987/473.
56. From that point, the Irish tricolour joined the
Union flag as - not legally prohibited - rival sectarian symbols. Their use
competitively did not detract from the legal position: the former was the flag
of a neighbouring state, with no legal entitlement in Northern Ireland; the
latter, the national flag of the United Kingdom of Great Britain and Northern
Ireland.
57. However, it has been the logic of the streets,
not the law, which, in the wake of the Patten report on policing on 9 September
1999, has dominated debate. This was the logic followed by the two
relevant Northern Ireland Ministers (with or without NICS advice), and it remains
evident in the inconsistent demands of: no flags on government buildings, in
accord with a non-legal principle of neutralism; and the Irish tricolour
along side the Union flag, in accord with the principle of parity of esteem
(which does have a non-domestic-law existence in the Belfast Agreement).
The Flags Regulations (Northern Ireland) Order 2000, SR
2000/XXXX
58. I have the following comments:
- draft Regulations: the Order has not come into operation;
so what power has the SOS used in referring them to the Assembly?;
- preamble (a): is this to allow for the Assembly making
no report to the SOS in the specified time (by 20 October)?;
- article 1(1): the SOS has no discretion on when the
Regulations come into force;
- article 2(1): referring to part I of the schedule: the
specified government buildings appear to be the ten Northern Ireland departments
plus the office of the first minister and deputy first minister; is this list
complete?;
- article 2(1): referring to part II of the schedule:
this is consistent with Great Britain; the Countess of Wessex is a new entrant;
as is St. Patrick (disregarding the separate Northern Ireland days);
- article 2(2): this is perplexing, and is likely to give
rise to controversy; part I of the schedule should be deleted as inconsistent
with the Order; as should this paragraph; what is the significance of practice?;
why 12 months?; and why 30 November 1999 (St. Andrew's day)?;
- article 2(3): were the days notified by the department
of finance and personnel the same as those notified by the department of culture,
arts and leisure in London?;
- article 2(4): this is consistent with Great Britain;
however, it has to be read with article 5(1)(a);
- article 3: query whether this is consistent with Great
Britain?; who decides, the minister, the executive committee, the Assembly?;
this has to be read with article 5(1)(a);
- article 4: this is consistent with Great Britain; it
has to be read with article 5(1)(b) and (3);
- article 6: this is not consistent with Great Britain;
it does not cover: the death of the sovereign; special commands regarding members
of the royal family; funerals of foreign rulers, subject to special commands;
special commands regarding former and serving prime ministers; other special
commands;
- article 7: the discretion may give rise to controversy;
- article 8: query whether this is consistent with Great
Britain?
- article 9: this does not preclude flag flying on other
than official flag pole(s).
Conclusion
59. I conclude this Opinion with a series of questions,
on which I give the best advice available. I do not disregard other lawyers
being able to take the argument further:
- what is the significance of article the first of the
Act of Union (Ireland) Act 1800? This recognized the royal prerogative power
as regards ensigns, armorial flags and banners thereof, evident in the 1801
proclamation on the Union flag;
- how does the royal prerogative operate? In the absence
of statutory law putting it into abeyance, it remains available to the sovereign,
usually on the advice of ministers, but sometimes (as here) as a personal prerogative;
- what was the combined effect of section 23(2) and paragraph
1 of schedule 2 of the NIA 1998? I do not believe - the view of the NIO and
NICS - that the personal prerogative (dealing with the flying of the Union
flag) was transferred to the Northern Ireland Ministers;
- what of the Scotland Act 1998? Paragraphs 1 to 3 of
schedule 5 shows how parliament purported to transfer this power to Edinburgh;
- what about the Departments (Northern Ireland) Order
1999, SI 1999/283? It is extraordinary that the NICS did not attempt to argue
that the power lay with the departments;
- what about the Flags (Northern Ireland) Order 2000,
SI 2000/1347 (which has not been brought into operation)? It is interesting
that the SOS did not go for primary Westminster legislation. The Order may
be ultra vires the NIA 1998, this being a devolution issue for judicial determination.
If it is not, it contains a restrictive definition of government buildings;
- what is the significance of the Belfast Agreement of
10 April 1998 (generally, or the second paragraph 5 of the Rights, Safeguards
and Equality of Opportunity section)? Nothing in Northern Ireland law;
- what about the draft Regulations? They appear to be
consistent with Great Britain, but only appear;
- what should the Committee do? Regardless of powers,
it should ask the NIO and NICS for full legal justification.
Austen Morgan,
3 Temple Gardens,
Temple,
London EC4Y 9AU
3 October 2000
020 7353 0832
AD HOC COMMITTEE ON DRAFT REGULATIONS PROPOSED
UNDER THE FLAGS (NORTHERN IRELAND) ORDER 2000
WRITTEN SUBMISSION BY:
Mr Ivor Whitten
On behalf of the Newry and Armagh Branch of the Ulster
Young Unionist Council I wish to submit the views of the Branch regarding the
flying of flags on Government buildings.
The Branch welcomes the legislation, which in our view
is long overdue, and hopes the matter can be resolved quickly and without any
inflammatory actions or remarks by certain parties.
The Branch welcomes the 17 statutory days for the flying
of the flag on government buildings, though it is very obvious the 12th
of July and 13th of July have been ignored. It is regrettable that these two
important holidays have been overlooked while St Patricks Day has been
included. We hope this discrepancy will at some stage be rectified.
The Branch is glad that this issue is being dealt with
and wish to express fully that the issue is purely constitutional and not cultural,
as some have tried to paint it. The flying of the Union flag is in accordance
with the Belfast Agreement as it is the recognition by the 71%who voted for
the Agreement that Northern Ireland is an integral part of the UK. Therefore
the flying of the flag in Northern Ireland is in aconcordance with the flying
of the Union flag in England, Scotland and Wales.
As law abiding citizens of the United Kingdom of Great
Britain and Northern Ireland this branch denounces the non-recognition of this
part of the Belfast Agreement by certain parties who refuse to accept the status
of Northern Ireland and who still use violence as a means to coerce the people
of this province into a United Ireland. Their behaviour and the refusal of their
ministers to fly the Union flag on statutory days is blatantly against the spirit
and letter of the Belfast Agreement. They have refused to accept the democratic
mandate as set by the people who voted for the Belfast Agreement and we call
for their removal from office for failure to comply with the Pledge of Office
and the Ministerial Code of Conduct.
I hope the wishes of the Branch will be accepted as a
submission to the flags committee and the issues we raise will be taken on board.
Mr Ivor Whitten
Chairman
Ulster Young Unionist Council
Newry and Armagh Branch
3 Mallview Terrace
Armagh
BT61 9AN
TOP
ANNEX D
MINUTES OF EVIDENCE
Thursday 5 October 2000
Members present:
Mr Agnew (Chairperson)
Mr Ford (Deputy Chairperson)
Mr N Dodds
Mr Ian Paisley Jnr
Mr P Robinson
Ms Morrice
Ms Gildernew
Mr Maskey
Mr C Murphy
Mr Attwood
Ms Lewsley
Mr A Maginness
Mr Tierney
Mr Armstrong
Sir John Gorman
Mr K Robinson
Witnesses:
Ms J Harbison
Mr P Donaghy
Ms E Collins
Mr K Brown
Mr C Bradley
1. The Chairperson:
Thank you very much for coming along with some of your
colleagues, Ms Harbison. Could you introduce your colleagues to us before you
make your presentation?
2. Ms Harbison:
To my right is Paul Donaghy, who is a fellow commissioner
with me on the Equality Commission. He also chairs one of the Commission's committees
which deals with fair employment treatment. To my left is Evelyn Collins, who
is the Chief Executive of the Equality Commission. At the back is Keith Brown,
who is our Director of Advice and Information, and Ciaran Bradley, who is our
Senior Information Officer.
3. The Chairperson:
From our point of view it would be helpful if you were
to make the presentation, Ms Harbison, but any one of you may answer questions.
4. Ms Harbison:
There is a very wide range of experience in the Commission
- some of it of very long-standing - and I think it would be helpful to the
Committee if others as well as myself could respond to the questions.
The Equality Commission is pleased to be here and to make
this presentation to the Committee. As a Commission, we are very aware of the
sensitivities which surround this particular area. The display of flags in divided
societies such as Northern Ireland obviously presents very particular problems,
and this afternoon, I will tell you about the current relevant provisions within
the Commission's statutory remit and make some comments on the proposed flags
regulations.
The legislation relevant to our responsibility in this
regard includes the Fair Employment and Treatment (Northern Ireland) Order 1998
and article 75 of the Northern Ireland Act 1998. We are also aware that all
of our work is carried on in a broader context and, not least, this issue. The
Belfast Agreement acknowledges the particular sensitivity which surrounds the
use of symbols and emblems for public purposes- and in particular, the need
to ensure that such symbols and emblems are used in a manner which promotes
mutual respect rather than division. It is our hope that this spirit will guide
all the discussions and decisions taken on this issue.
I wish to emphasise that in the event of a complaint of
religious or political discrimination arising from the flying of the Union Flag,
it is for a fair employment tribunal or court to decide if discrimination has
occurred- and not the Equality Commission. That fair employment tribunal or
court will take into account all the circumstances and the specific facts that
will be placed before it.
Because of developments in legislation and decisions taken
at a tribunal or in court, this is an evolving area, which we, in the commission,
keep under constant review. In the case of Brennan versus Short Bros Plc, the
fair employment tribunal stated that anything which identifies community allegiance
in the workplace, needs justification. This view has since been endorsed in
a recent tribunal decision, in the case of Johnston versus Belfast City Council.
The Johnston case is the only case to date where a finding
of discrimination was based solely on the display of an emblem identifying community
allegiance - in this case a portrait of Her Majesty the Queen. The tribunal
found that the display of the portrait is capable, in our society, of causing
offence to certain sections of the workforce. It accepted that there are circumstances
where a display of the portrait is appropriate, for example, at certain ceremonial
functions. However, it did not consider that its display was appropriate in
an office in a cleansing depot in view of the religious and political make-up
of the workforce that existed there. It stated that there was no apparent reason
for the portrait to be displayed in that setting other than a purely historical
one.
In addition to the issue of discrimination, employers
have obligations under the Fair Employment and Treatment (Northern Ireland)
Order 1998 to provide fair participation in employment and determining reasonable
and appropriate affirmative action. Such affirmative action includes the need
to build good and harmonious working environments and to take action to minimise
chill factors as identified in the Fair Employment Code of Practice.
The Code of Practice recognises the importance of the
working environment for the promotion of equality of opportunity and fair participation
and states that employers should
"promote a good and harmonious working environment
and atmosphere in which no worker feels under threat or intimidated because
of his or her religious belief or political opinion, for example, prohibit the
display of flags, emblems, posters, graffiti, or the circulation of materials
or the deliberate articulation of slogans or songs which are likely to give
offence or cause apprehension among groups of employees".
The Commission has warned of the need to ensure that the
working environment does not carry the potential for messages - explicit or
implicit - being given to under-represented groups in workplaces that they are
unwelcome.
Since 1 January 2000 public authorities have been bound
by new statutory duties under section 75 of the Northern Ireland Act 1998, which
includes a statutory duty on all public bodies to promote good relations between
persons of different religious belief and political opinion in the workplace.
The display of flags has clear implications for good relations for public bodies
and for workplaces.
From our knowledge of the work and functions of public
bodies, there is often a difference between the employment and customer base
at the main headquarters of the organisation and that in more localised areas.
Consequently, the Equality Commission recognises that there are likely to be
particular problems from a good relations perspective if the organisation were
to decide to fly the Union flag at all local facilities. Likewise a policy that
allowed for the flying of the flag at some facilities and not others, based
on the community composition of the local area, would offend the idea of inclusivity,
which is important in the promotion of good relations.
Arising from this and the need to ensure fair participation
in employment, the organisation needs to guard against any perception that flags
were being used to mark out territory. Over the last 25 years, the practice
of a widespread display of flags and emblems associated wholly or mainly with
one community has greatly diminished. The Commission advised that it would be
unacceptable for unofficial displays of flags and bunting to be tolerated in
the workplace. The Commission has also advised that it is unacceptable for the
Union flag to be flown specifically during the July and August period.
There are many workplaces where such displays are no longer
found. This is the position preferred by the Equality Commission. The Commission
highlights the need to ensure that the Flags Regulations are consistent with
the provisions of the Northern Ireland Act 1998 including those relating to
human rights under section 69, the statutory duties on public authorities under
section 75 and the discrimination by public authorities under section 76. It
is the Commission's view that the regulations before enactment be human rights-proofed,
equality-proofed and good relations-proofed.
The ceremonial use of the Union flag on the main administrative
headquarters, as envisaged in the Flags Regulations (Northern Ireland) 2000,
may be capable of justification under fair employment legislation. However,
I emphasise again that it would be for a fair employment tribunal, and not the
Equality Commission, to decide on issues of discrimination relating to the flying
of flags.
By extension, the display of the Union flag - other than
in a ceremonial context - could, to varying degrees, involve an expression of
sectoral community allegiance. As such, this should be regarded as unacceptable.
We do have particular concerns about the display of the
Union flag, as envisaged in regulation 2 paragraph 2 and regulation 7. Our understanding
of the impact of regulation 2 paragraph 2 is that the Union flag would be required,
by law, to be flown on Government buildings, based on past practice. This practice
originally developed on the basis that the display of the flag would be acceptable
to the community in the area surrounding the building. For example, the Union
flag may have been flown on social security offices in predominately Protestant
areas, but not on those in predominately Catholic areas. These practices carry
with them the danger of giving formal Government recognition to the marking
out of territory. This has been an issue of public concern in the context of
the display of flags and emblems on streets and roads in particular areas across
Northern Ireland, and regulation 7 could result in a similar situation.
The paradox of the situation is that the Union flag could
be given official recognition as an emblem marking sectarian allegiance. This
runs contrary to the equality and good relations considerations outlined earlier.
In reaching decisions concerning main Government Departments, it is important
to be mindful of their significance in leading the public sector. It is necessary
to consider the human rights and statutory duty implications for the rest of
the public sector. In addition, we have very real concerns about any de facto
recognition that the flying of the flag should simply be based on an assessment
of the community composition, or on the political allegiance of a local area.
This would run counter to the legislative provisions on equality of opportunity,
good relations and the need to promote social inclusion.
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