5. Mr Paisley Jnr:
Do you believe that legally Northern Ireland is part of
the United Kingdom of Great Britain and Northern Ireland?
6. Ms Harbison:
Yes.
7. Mr Paisley Jnr:
Do you believe that the flag of the United Kingdom of
Great Britain and Northern Ireland is the flag commonly known as the Union Jack?
8. Ms Harbison:
Yes.
9. Mr Paisley Jnr:
Is the Union Jack a religious symbol?
10. Ms Harbison:
It is not a religious symbol, but it can be identified
with part of our divided society.
11. Mr Paisley Jnr:
It is not a religious symbol. Is the Union Jack a party
political symbol?
12. Ms Harbison:
That is not for the Equality Commission to decide.
13. Mr Paisley Jnr:
It either is or it is not a party political symbol. As
with the question on religion, the answer must be "yes" or "no".
14. Ms Harbison:
The situation is not that simple. In the particular circumstances
that exist in Northern Ireland there are political issues and political questions
surrounding this matter. However, this falls outside the remit of the Equality
Commission.
15. Mr Paisley Jnr:
If it is not an issue for your Commission, fair enough.
You said that flags can be used for marking territory. Do you believe that the
Government buildings in Northern Ireland in general - and this it is referred
to in the Regulations - are, in fact, Government property and are therefore
Government territory?
16. Ms Harbison:
If you put it like that, the answer is probably "yes",
but these things have to be treated in their particular contexts.
17. Mr Armstrong:
When we were part of the Commonwealth, the flag of that
area was the Union Jack. Is that true?
18.
Ms Harbison: Again, I think you are discussing
areas that lie outside the Equality Commission's remit.
19. Mr Armstrong:
I am merely trying to confirm what the flag was when we
were in the Commonwealth.
20. Ms Harbison:
As far as I know, the Commonwealth still exists.
21. Ms Morrice:
I am interested in what you said about the Fair Employment
Commission and the fact that any question of discrimination would be brought
before it. I want to make sure I understand this. Surely that only refers to
the workplace. Am I right in assuming that? Can discrimination that happens
in the street, or anywhere else, be brought before the commission?
22. Ms Harbison:
Aspects of the legislation, and advice provided by the
Fair Employment Commission in the 25 years it existed was, in fact, in relation
to the workplace, but with the Fair Employment and Treatment (Northern Ireland)
Order 1998, the Equality Commission remit has been extended to the delivery
of goods, facilities and services. We are building up to the situation that
organisations from which those services are delivered could be such that people
might feel unwelcome or uncomfortable dealing with them and there would not
be a good or harmonious environment for people to access the services.
23. Ms Morrice:
Let us suppose that someone is walking along the street,
sees a flag, and feels they have been discriminated against because that flag
was flying, have they got the legal right to go to the Fair Employment Commission
with a complaint?
24.Ms Harbison:
I will ask Ciaran Bradley to speak on that one, but I
think there is a good relations aspect with that, which I may come back on.
25. Mr Bradley:
The Fair Employment and Treatment (Northern Ireland) Order
1998, as Ms Harbison said, now deals with goods, facilities and services provided
by bodies private and public, as well as with employment situations. Any action
founded on the supply of goods, facilities or services or the manner in which
they are supplied which could possibly refer to the use of flags or emblems
would go to the County Court, although it would go there only if the complainant
felt that the service provider - someone selling him goods or providing facilities
- had discriminated against him. It would not be a valid case if, for example,
someone took offence at his general environment. There may be other pieces of
legislation or channels for complaint, but unless he is dealing with a service
provider, or a provider of goods and facilities, he would not have an action
under that particular section of the Fair Employment and Treatment (Northern
Ireland) Order 1998.
26. Mr K Robinson:
Could the absence of a flag - a Union flag in this case
- from a Government building on a specified day reinforce the notion of marking
out territory, albeit in a negative manner?
27. Mr Donaghy:
I doubt it, but that may well have to be tested. I was
on the Fair Employment Agency from 1984 to 1990 before it became the Fair Employment
Commission. In those days, individual cases went before the Agency rather than
a fair employment tribunal. One of the first cases that I adjudicated involved
a factory in Portadown. Half of the workforce refused to work in the factory
if the Union flag were flying, and the other half refused to work there if it
were not. In the end, the factory closed, despite a number of attempts to reach
some accommodation. It closed, and everybody was put out of work. I come from
a trade union background, so I would have particular concerns about that. That
is a good example of the sensitive nature of the flying of flags in this divided
society where there is no agreement on this.
28. Mr K Robinson:
I did say a "Government building". Do you have
any comments or views on that?
29. Mr Donaghy:
Ultimately it would be a decision for the courts or a
fair employment tribunal to determine. On the basis of our experience in the
Fair Employment Commission, now the Equality Commission, it would be unlikely
that the courts would take that view.
30. Mr Attwood:
As our first witnesses and, the way things are going,
maybe our only witnesses, you are very welcome.
Your comments were very considered, and it would be helpful
to the Committee if you could leave a copy of your statement. It was densely
packed and carefully worded, and we would like to examine it to see what it
all means.
31. Ms Harbison:
We have copies for you.
32. Mr Attwood:
In relation to the draft regulations as they currently
exist, did the Secretary of State consult with the Equality Commission on the
drafting? If so, could you indicate the extent of that consultation?
33. Ms Harbison:
We will be providing him with advice but have not done
so yet.
34. Mr Attwood:
Did the Secretary of State, at any time, invite or ask
you to comment on how he might act in relation to the Flags Order, prior to
the issue of the draft regulations?
35. Ms Harbison:
No.
36. Mr Attwood:
You said that in your view, because of the obligations
that exist under the Northern Ireland Act 1998, in particular sections 69, 75
and 76, it was very important that various matters were proofed against human
rights, equality and good relations. Given that you were not consulted by the
Secretary of State prior to the issue of the draft regulations, is it your view
that those draft regulations, as far as the Equality Commission has input, have
not been so proofed?
37. Ms Harbison:
Not as yet, but it is our view that as the policy of the
enactment of those regulations is being developed, they would have to be equality-proofed
under section 75.
38. Mr Attwood:
The draft regulations have been issued and given to the
Assembly for consideration, but have they been forwarded to your office for
your consideration?
39. Ms Harbison:
No, there was no requirement on the Secretary of State
to do so. We will be commenting and giving him advice, as is our duty.
40. Mr Attwood:
In your opening comments you outlined that there were
a number of standards - legislative and others - that informed the Commission
when it came to assess these matters. You mentioned the Fair Employment and
Treatment (Northern Ireland) Order 1998, section 75 of the Northern Ireland
Act 1998, and then you referred to broader context, in particular, the fact
that the Good Friday Agreement refers to the issue of the display of symbols
and similar matters, and the need for mutual respect, not division. Is it not
the case that the Commission, in making a judgement in these matters, would
have to have regard for the broader context of the Good Friday Agreement? The
section on constitutional issues states explicitly at paragraphs 1(v) and (vi)
the requirement for parity of esteem and just and equal treatment for the identity,
ethos and aspirations of both communities and that the right of all the people
of Northern Ireland to identify themselves and be accepted as Irish or British,
or both be recognised. Does the Equality Commission make their judgements in
the context those principles?
41. Ms Harbison:
The Equality Commission will always have to make its decisions
and judgements on the basis of the context in which we are living, and in the
context of the changing environment, if you like. We do have to be very mindful,
however, of the fact that we are a society coming out of conflict and going
into peace, and there are particular sensitivities associated with that.
The agreement described those sensitivities and problems
in some detail. We do try to set what we do in the context of the developing
debates and whatever happens in the future, whatever the outcome of the debate
that you will be having over the next few weeks and how that is taken forward
by the Secretary of State will inform how we behave and what we do, because,
as you well know, our remit is based in statute.
42. Mr Attwood:
Arising from the Good Friday Agreement, the British and
Irish Governments entered into an international treaty - and this is not fully
recognised - there was a Good Friday Agreement, but there was also an international
treaty, entered into by the respective Governments. That treaty explicitly refers
to what is known as the principal of consent, and it also refers to the requirement
for just and equal treatment between identities, the need for parity of esteem,
and people's right to recognise themselves as British, Irish or both. It is
an international treaty between the respective Governments, which is binding
in law.
When you come to make an assessment of the matters in
hand - the regulations - will you, as the Equality Commission, the statutory
agency responsible for these matters, be making a judgement in the context of
that international treaty, which is binding on the two Governments, bearing
in mind that the Parliament of one of these Governments, the British Government,
has passed the Flags Order and its Secretary of State has issued draft regulations
arising from that Flags Order? Is it your view that the Commission and the Government,
should make their judgements based on their obligations under international
law, in view of the fact that an international treaty arose from the Good Friday
Agreement?
43. Ms Harbison:
I think you are asking me to make an assessment and a
judgement that goes far beyond our statutory remit, and I think the question
you have asked is very much one for you, as Members of the Assembly, to decide
and to tell us, as the Equality Commission, how you want us to interpret what
we do, and how we do it. We will try to be as objective and as sensitive as
we possibly can in the creation of a just and equal society and in the promotion
of equal opportunity and fair participation. Under the Northern Ireland Act
1998 we have a duty to promote good relations, and we have, in all that we have
done, and in all that we are doing, taken our statutory remit under that legislation
and under the Fair Employment and Treatment (Northern Ireland) Order 1998. Those
are the instruments we use to make our decisions.
44. Mr Brown:
On a point of clarification, the Equality Commission is
not in the same position as, for example, the Human Rights Commission, which
has various powers with regard to local government legislation. Our decisions
are based very much on the advice we give on how tribunals will actually interpret
the laws in their fuller context. I understand that the Secretary of State is
in a very different position. I thought that when it came to regulations he
had to have regard to the Belfast Agreement.
45. Mr Attwood:
You previously mentioned the case of Brennan versus Short
Brothers plc, and you mentioned the more recent case of Johnson versus Belfast
City Council. In that judgement the Fair Employment tribunal explicitly said
"It has to be emphasised that anything which identifies
community allegiance needs justification in the workplace".
Given that case law - and previous case law - can you
indicate the Equality Commission's view on the displaying of flags on Government
buildings other than the seven main departmental buildings explicitly named
in the draft regulations.
46. Ms Harbison:
I said earlier that if there were a complaint of discrimination,
it would not be for the Equality Commission to make a decision, it would be
for the fair employment tribunal or the court. It is also true that we do not
have a body of case law from the tribunal and certainly not from the courts
that would help us make definitive decisions, however these are indicative decisions,
which are useful in developing our thinking.
47. Ms Collins:
I would like to reinforce the point that the guidance
we have given over the years has been that emblems or displays associated with
community conflict over the last thirty years have the potential to cause disruption
and to be divisive and thus are best avoided. However, as the Johnston decision
pointed out, and as we recognise, there are wider issues concerning ceremonial
purposes, and a fair employment tribunal might make distinctions about such
displays depending on the circumstances. Headquarters are more likely to fall
into that different circumstances category than local area offices, for example.
48. Mr Attwood:
That is helpful. Quite apart from the fact that we in
the SDLP differ with the proposed regulations - and quite apart from the basis
on which we differ - we are suggesting to Government that the regulations should
be time-limited on one hand, and subject to review on the other. We have suggested
that the time limit should be one year in the first instance, and it should
be reviewed thereafter, because as you indicated earlier, context changes, and
by that time, context may or may not have changed. Is it your view that the
regulation should be time-limited and that there should be a review?
49. Ms Harbison:
It is important that we review everything we do and make
recommendations to either the Secretary of State or to the Assembly, as appropriate,
about things we do and about what we are doing and changes that we would like
to see in the legislation. It is very much up to you and the Assembly to recommend
to the Secretary of State what he does in terms of time limits and reviews.
The Equality Commission would not have any real difficulty with time limits
and reviews, since that is something we all live with now, and it is very important
to review what we do.
I spoke earlier about the importance of the changing context
in which we are working. We hope we will move completely away from conflict
and into a peaceful and normal situation in which there is full participation
by all sections of the community and equality of opportunity for all. We also
hope that there will be an inclusive society. I stressed the importance of the
good relations aspect of what we do, and if we promote good relations, we will
bring about an inclusive society.
50. Mr Donaghy:
In the Fair Employment Commission and the Equality Commission
our experience is that employers and public bodies would like clarity on these
issues. Clarity is very difficult when there is no consensus, when we are dealing
with sensitive and divisive issues. Tribunal decisions will help to clarify
the law on these issues, and that is why the cases of Johnson versus Belfast
City Council, and Brennan versus Short Brothers plc are so important. It is
important that there be clarity from the Equality Commission.
The preferred option would be that Union flags, if they
are to fly, should fly only on the seven headquarters buildings. We see a difference
between an administrative headquarters and other Government service provision
facilities. It should also be clear that that is happening for specific reasons
- that there is a context within which those flags are flying. That context
is ceremonial occasions, and those ceremonial occasions are listed.
51. Mr P Robinson:
Although I find a lot of what you say unacceptable, you
and your colleagues are very welcome to the Committee. We will have an opportunity
at a later stage to put some questions to the Secretary of State, and there
is one issue that you have raised that I would like you to clarify further.
You seem to be saying that if the Union flag were to be erected, it would be
possible for someone employed in a Government office to take a case successfully
on fair employment grounds, because they might consider that not to be a neutral
environment.
52. Ms Harbison:
What I said was that there are issues around the creation
of good and harmonious working environments. If someone felt that that did not
create a good and harmonious working environment for them, they would have the
right to take a case claiming discrimination, but, as I have already stressed,
it would be for a fair employment tribunal to determine that. We do not have
sufficient case law yet about how those things would be interpreted. What we
have at the moment are two important cases, as Mr Donaghy has said, but they
are indicative cases rather than a body of case law.
53.Mr P Robinson:
Could I put it to you that they are not really indicative
and that this would be a very different set of circumstances? The flag would
have been erected on the basis of law that had been enacted at Westminster and
regulations that had grown out of that.
54. Ms Harbison:
If it were on the basis of regulations and a law that
had been established, then I do not think that there would be grounds for a
case to be taken.
55. Mr P Robinson:
The case might be taken, but there would be no grounds
for it's being successful if someone were acting completely within a law that
was passed long after the fair employment legislation?
56. Ms Harbison:
Yes.
57. Mr K Robinson:
If that law had been in operation, and if the flag should
have been flown but had not been flown, and someone felt offence at that, would
they have some recompense through the Commission?
58. Mr Brown:
They may not have rights under fair employment legislation,
but they might have other ways of seeking redress in the form of judicial reviews
or through some other avenue.
59. Mr A Maginness:
Given that case law is continuously developing and guiding
you in your views, would it not be desirable to build a review process into
the regulations?
60. Ms Harbison:
I said earlier that the Equality Commission would not
have any difficulty with that. However, I do not think that it is for us to
decide.
61.> Mr A Maginness:
I understood that. Is it desirable that a review be built
into the regulations?
62. Ms Harbison:
That lies outside the remit of the Equality Commission.
63. Mr A Maginness:
What is the Commission's preferred option as regards giving
advice to employers on the issue of flags in the workplace? Would you prefer
that there were no flags in the workplace?
64. Ms Harbison:
Absolutely.
65. Ms Collins:
Ms Harbison made it clear in her introduction that that
is the Commission's preferred option, based on considerable experience over
the years. There has been a great decrease in the number of workplaces in which
there is any display of flags or emblems.
We recognise that we are live and work in an evolving
context. The question about a review is an interesting one, as the Secretary
of State will soon receive advice from the Human Rights Commission on a Bill
of Rights for Northern Ireland. I am sure that many of the issues that you are
working on in the context of these regulations will also be considered in the
context of that Bill of Rights. Consequently, within the next period there might
be greater clarity and certainty about some of the broader policy questions
raised today.
66. Mr A Maginness:
You are clearly unhappy with draft regulation 2(2). Did
you mention draft regulation 7 also? Why are you unhappy with that regulation?
67. Mr Bradley:
Regulation 7 would appear to allow discretion as to when
the Union flag would be flown on Government buildings other than those designated.
That again raises the question about the diversity of buildings outside those
that are designated.
The decisions would reflect the political allegiance of
those making them; whether it be the Minister or a person at a lower level.
It would reflect that allegiance in the same way that the geographical distribution
of flags reflects the community allegiance of the area in which an office is
sited. The flying of the flag would not be a ceremonial function, but the product
of a particular community allegiance. In Northern Ireland, that would be divisive
and, in terms of equality legislation, it would fall into quite a different
category. It raises a particularly damaging prospect in terms of flag flying
on Government buildings, and we would like to see that addressed as the regulations
are considered.
68. Mr A Maginness:
In effect, it is similar to your unease.
69.Mr Bradley:
It is exactly the same. The decision would be at the discretion
of those in power. In this case the Ministers. The decision on flying flags
would reflect the political allegiance of the Ministers concerned, creating
a situation in which the flag is used as a badge of political allegiance rather
than as a ceremonial recognition of Government.
70. Mr C Murphy:
The case of Brennan versus Short Brothers showed that
employees do not have to tolerate reminders or suggestions of religious beliefs
or political opinions in their workplace. Is it not unfair to suggest that someone
who works for Government Department in its headquarters, should have to accept
the flying of a Union flag, or any other flag, from the building on specific
days, although someone who happens to be posted at a regional office of the
same Department should not? Is that not discriminating between two people who
find themselves employed in different buildings, but in the same Department?
71. Mr Donaghy:
The context within which the Union flag flies must be
seen to be acceptable. There is a clear distinction to be made between the headquarters
of government and the local offices of government. That is the background against
which the Union flag would fly. The flag would be flown as a ceremonial recognition
that a building is the headquarters of a Department. That is a distinction that
a fair employment tribunal or the courts would be likely to make.
72. Mr C Murphy:
Is it fair to make a differentiation between a person
employed in one building, and a person employed in another building, if that
building happens to be departmental headquarters?
73. Mr Donaghy:
A case could be made. The tribunal would have to take
into consideration the context within which the flag was flying and the location.
Our experience suggests that that would apply to a headquarters building and
that the flag would be flying on ceremonial occasions. Those would be the determining
factors in any judgement by the tribunal or the court. These are areas that
may be contested in the courts at a future date.
74. Mr C Murphy:
You say that the Secretary of State did not consult the
Equality Commission before these regulations were drafted or, indeed, since.
Was the Equality Unit consulted in the drafting of these regulations?
75. Ms Harbison:
I have no idea.
76. Mr Ford:
You appear to be saying in regulation 2(1) that the ceremonial
aspect may override any fair employment concerns about the flying of the Union
flag.
77. Ms Collins:
There may be justification for it.
78. Ms Harbison:
I agree.
79. Mr Ford:
You have expressed concerns about 2.2 and regulation 7.
You have not commented on regulation 3 regarding the flying of the Union flag
on the visit of a foreign Head of State, possibly accompanied by the flag of
that State. Might this case also be covered by the same kind of ceremonial justification?
80. Ms Harbison:
Yes.
81. Mr Ford:
I presume you also have concerns about regulation 8 which
appears to allow similar proliferation of flags on other unrelated buildings?
82. Mr Donaghy:
Yes.
83. Mr Ford:
Would a headquarters building or a building which is being
visited be considered as different from buildings generally?
84. Ms Harbison:
That could provide justification, yes.
85. Mr K Robinson:
What about regulation 9, which relates to buildings that
may become Government headquarters buildings?
86. Ms Harbison:
We realise that there is a lot of sensitivity about the
flying of flags. The experience of 25 years has been that, where flags are not
flown, there has been a more harmonious and equitable environment. For that
reason I do not think there is a problem with regulation 9; the flag should
not be flown except on specified ceremonial occasions.
87. Mr K Robinson:
Perhaps I phrased the question badly. Certain buildings
are designated buildings. What happens in the case of a new departmental headquarters?
It would seem, from your colleague's comments, that you do not want discretionary
situations to arise, you want hard and fast rules. This potential situation
is not covered by regulation 9.
88. Ms Harbison:
That may well be true and, perhaps, you should draw attention
to that.
89. Mr Dodds:
I would like to check out the position in relation to
the right of the Commission to be consulted on such issues. You said that the
Secretary of State was not under any duty to consult you or send you the Regulations.
Do you have a duty to make your views known in the specific context of statute?
90. Ms Harbison:
In the specific context of statute in relation to all
the different pieces of legislation and anti-discrimination legislation for
which the Equality Commission has responsibility, one of our statutory duties
is the duty to make recommendations to the Secretary of State about equality
and anti-discrimination legislation. There is no duty on the Secretary of State
to consult us prior to taking any decision. He has the right of Government behind
him; he is an elected representative; he is part of the Government and he makes
a political decision. If he does consult us, we will certainly give the advice
that we believe to be right. We will comment on this issue, but he is not required
to consult us.
91. Mr Donaghy:
We also have a statutory duty to assist in policing provisions
contained in section 75 of the Northern Ireland Act 1998. Part of that duty
is the promotion of good relations between persons of different religious and
political opinions. In a divided society, that includes the flags issue.
92. Mr Dodds:
I am interested in the case of people who feel discriminated
against if a flag is flown. A flag either flies or it does not fly. Someone
cited the case in Portadown; some people were offended when the flag was not
flown, and some were equally offended when it was.
Is it not the case that people could feel offended if
the Union flag were not flown from buildings, headquarters or otherwise?
93. Mr Donaghy:
It would have to be tested, but I feel it would be much
more difficult to base a case on the absence of a flag than on its presence.
With a sensitive issue like this, a fair employment tribunal or court would
have to decide what side the law would come down on. Our experience suggests
that a case would be likely at least to proceed if a flag were flown. I do not
prejudge the outcome, but refer only to whether the case would be processed.
If a flag were flown, the tribunal or court might well find the case justified.
However, if the flag were not flown, I suspect that the court or tribunal would
be more likely to decide that the case was more difficult to justify.
94. Mr Dodds: Do you accept that the offence caused
to the complainant might be just as great?
95. Mr Donaghy:
I mentioned the case in Portadown, where people from both
communities seemed to be more content to be out of work than to be in an environment
where the flag either flew or did not. This shows the sensitivity and strength
of feeling on the issue. That is why our whole approach is founded on trying
to build mutual understanding and good relations between two communities.
96. Mr P Robinson:
It is not. Your approach is not to arbitrate on the issue
and come up with a mutually agreeable solution, but to say that the flag shall
not fly.
97. Mr Donaghy:
A mutually agreeable solution may be something that you,
as politicians, may be able to find. Our job is to enforce the statutes for
which we have responsibility and give advice on legislation. The considered
view of the Equality Commission has been set out here on the basis of past tribunal
decisions relating to the legislation. It is not a matter of half and half,
but of our statutory remit and the advice that we should give.
98. Mr Hussey:
You seem to suggest that, in the absence of a flag, there
is less likelihood of a successful case. However, surely to goodness, if it
has been the custom for a flag to fly, its absence would justify a case.
99. Ms Harbison:
That might well be the case.
100. Mr Brown:
Let us put the issue in the context of employment practice.
For example, let us say that there was a recruiting practice which was to the
advantage of an organisation's existing staff. Imagine that, for equal opportunities
reasons, the company decided that there was a possibility that the continuation
of that practice might result in an allegation of discrimination that they could
not defend. If they then changed that practice, affecting those people who previously
benefited, those individuals would have the right to make a complaint. However,
but I do not think that a fair employment tribunal would find in their favour.
The flying of flags might be an analogous situation. If an employer felt that
he was doing it for the promotion of a more harmonious or neutral working environment,
a tribunal would weigh that very strongly and decide that the complainants did
not have a reasonable case.
101. Mr Hussey:
You seem to be talking about workplaces that are not Government
buildings. It is the constitutional considerations relating to Government buildings
that are at issue.
102. Mr Bradley:
We are raising again the possibility of what a tribunal
may or may not find. The crucial factor is the context in which the flag is
being flown or not flown. It is not so much whether it is a changed situation
- there was no flag there before or there was a flag that has been removed -
but the context in which it is being displayed. That would include the legislative
context and the purpose for which the flag is flown. We have made our own points
regarding that and the difference between what we see as the ceremonial function
of the flag and its use in another context, perhaps to mark territory or to
reflect political allegiance. Context would be crucial rather than arguments
about whether the circumstances have now changed. The tribunal would probably
be entitled to the view that the circumstances had changed. That might cause
disruption on either side, depending what way the decision went, but it would
be the context rather than the change that would be crucial.
103. Mr Paisley Jnr:
Initially, there appeared to be a reluctance to ask questions,
but we are on a roll now. Some of the answers have been helpful.
Do you accept, especially given the last three or four
answers, that there is a perception that the system is very one-sided? If someone
takes offence at a flag being removed, there appears to be very little course
of action that that person can take in order to get some sort of justice. Mr
Donaghy said that he was looking for a half and half situation, but the reality
is that a half and half situation is a 100% removal of the flag.
104. Mr Donaghy:
I said I was not looking for half and half; we are not
the arbitrators. We give advice in the context of our statutory duties.
105. Mr Paisley Jnr:
In FEC rulings, is a distinction drawn between a flag
displayed inside a building and a flag displayed on a building? I recall a case
involving Short Brothers where both circumstances were considered, and the subsequent
ruling was that Short's were able to fly the flag on the building.
106. Ms Harbison:
I am not aware of that.
107. Mr Bradley:
I am not aware of such a case. Certainly, when we have
given advice to private employers, we have discussed with them the options for
workplaces in Northern Ireland. Those options ranged from situations - mostly
in the past - where there was widespread display of flags and other emblems
in workplaces, through more limited options where a flag was perhaps flown on
the outside of a building or on a pole nearby, to an option where flags were
not flown.
We have always made it clear that our preferred option
is that no flags be flown in a workplace. In Northern Ireland, flags are a divisive
issue, so it is not simply a case of saying that there is recourse on one side
but none on the other if a flag goes up or a flag comes down. The crucial question
is "Is there a cause of conflict?" We give our advice on that. If
the cause of conflict were removed, if agreement were reached on flags, then
our consideration would change, but, in the past and in the meantime, we look
at the overall context. In the past, the Fair Employment Commission and the
Agency have regarded a widespread display of flags in the workplace as more
objectionable than a single flag outside a factory. It is a matter of degree.
It was a matter of degree at a time when it was common for workplaces to be
widely bedecked with flags and emblems. That has largely changed now. We look
at the situation as it exists and deal with the changes.
108. Mr Paisley Jnr:
Your answer reinforces the comments that I made earlier.
Your preferred option is very one-sided: a person who likes to have the flag
flying and does not take offence at it will be offended by its removal. It is
your preferred option to offend that type of person. That is why I said that
the view in the Unionist community is that the process is weighted against it.
Looking specifically at clause 9 and schedule 1, you accept
the Government's prohibition on the flying of the flag except on the dates and
buildings specified. The buildings where the flag can be flown are Adelaide
House, Castle Buildings, Churchill House, Clarence Court, Dundonald House, Netherleigh
House and Rathgael House. You are content with that. Do you not see any obvious
omissions from that list?
109. Ms Harbison:
As I said before, that lies outside our remit. In the
advice that we give, we try to be objective and consistent. We try to avoid
association with any political agenda. Some of what we have said has been interpreted
in a political way. It is important to recognise that we are coming out of a
conflict situation into what I hope will be a peaceful situation. It has been
hard to avoid the association of flags with particular community allegiances
in our society. We are moving towards equality and the promotion of good relations,
and we have been consistently looking at this issue in that context.
110. Mr Paisley Jnr:
You are content with the schedule of specified Government
buildings?
111. Ms Harbison:
It is up to the Assembly to decide which are the appropriate
buildings.
112. Mr Paisley Jnr:
So it is not up to the Secretary of State?
113. Ms Harbison:
It is up to the Secretary of State, but presumably you
are going to give him advice. The whole point is that the regulations have to
come before the Assembly. This Committee has been set up, and presumably you
will make your views known to him.
114. Mr Donaghy:
The Commission's preferred position is that flags of any
description should not fly. We went on to say that there are cases where it
may, on occasion, be justifiable, or a tribunal may see it as being justifiable.
115. Mr Paisley Jnr:
You are saying that you are content with the administrative
headquarters, these seven buildings.
116. Mr Donaghy:
Those are the ones that are listed in the schedule.
117. Mr Paisley Jnr:
I want to know why you are content with those seven buildings
as administrative headquarters.
118. Ms Harbison:
It is not for us to say.
119. Mr Donaghy:
Those are the ones that are set out as the administrative
headquarters. We are saying that the issue of flying the flag on those seven
administrative headquarters buildings may well be justifiable.
120. Mr Paisley Jnr:
I am glad that it is justifiable to have the flag on Clarence
Court, which is in the middle of the Markets. I am glad that you take that position.
You know the geography and politics of Belfast. Do you not feel, however, that
there are obvious omissions from the list, such as this very building, for instance?
Is it not strange that the Government does not want to see the flag flying on
the political and administrative headquarters of Northern Ireland?
121. Mr Donaghy:
That is an issue for the Secretary of State.
122. Mr Paisley Jnr:
You might have a view on it. You have a view on everything
else.
123. Mr Brown:
My understanding is that this building is not covered
by the regulations. It is not a Government building as defined in the Flags
Order.
124. Mr Paisley Jnr:
That is the point I was making.
125. Ms Harbison:
That lies way outside of our remit.
126. Ms Morrice:
On the subject of what your remit is, I am interested
in your statutory role. Going back to what you suggested about equality proofing
under section 75 of the Northern Ireland Act 1998 and equality legislation,
you equality proof these -
127. Ms Harbison:
No, we do not.
128. Ms Morrice:
Well, the regulations will need to be equality proofed.
Does your verdict enter into the consideration, and, if so, are you involved
in an advisory role or can you insist on changes if they do not match the equality
requirements?
129. Ms Harbison:
The role of the Equality Commission, at one level, is
a purely advisory role as far as advice to the Secretary of State on interpretation
goes. There may be other issues in relation to how some of these regulations
might be implemented, which might need further equality proofing in line with
section 75 of the Northern Ireland Act 1998, but that remains to be seen when
the regulations are at the point of being enacted. Under section 75 of the Northern
Ireland Act 1998 we give advice on the policies emanating from the regulations,
which come from various Departments.
130. Ms Morrice:
If these regulations do not pass the equality proof test,
whatever that is, are they stopped, amended or can nothing be done?
131. Ms Harbison:
We have no power to stop the Secretary of State and the
Government from making legislation.
132. Ms Morrice:
No matter what the results of the equality proof?
133. Ms Harbison:
No, absolutely not.
134. The Chairperson:
I see a couple of hands in the air. Perhaps Mr Dodds can
speak and then we shall close with a contribution from Sir John Gorman.
135. Mr Attwood:
May I ask one question further to the last question asked
by Mr Paisley Jnr when he made his best point of the afternoon. Can I take it
from what you have said that it may be justified to fly the Union flag on administrative
headquarters on ceremonial occasions?
Given what Mr Paisley Jnr asked about the premises at
Clarence Court in Adelaide Street, which, by his own admission, is in the Markets
area of Belfast - and given the issues that arise therein in respect of geographical
location, local circumstances, public perception, the nature of the local and
wider community, et cetera - is it the case, given the possible contention that
he outlined, that flying the Union flag on ceremonial occasions on buildings
designated as administrative headquarters may be justified, but also the case,
as in the case of Clarence Court, that it may be potentially unjustified?
136. Ms Harbison:
The consistency of approach is questionable. We began
by talking about sensitivities in this area. That is why we have been discussing
the use of flags ceremonially and in specific situations. Your advice to the
Secretary of State is political advice. Political decisions are required which
take account of sensitivities and the issue of location.
137. Mr Dodds:
You talk about sensitivity, and I assume Mr Donaghy is
speaking on behalf of the Commission when he says it is preferable that no flags
should fly. That is clearly the view -
138. Ms Harbison:
No flags?
139. Mr Dodds:
No flags should fly - that is the view of one section
of the community. However, it is also the view of a substantial section of the
community, probably the greater number of people, that the Union flag should
fly. I find it hard to reconcile your preferred view with the fact that you
are an Equality Commission. What you have just said will cause great offence
to the majority community in Northern Ireland and shows no sensitivity whatsoever
to its views although you do concede certain circumstances in deference to it.
You are coming down on the side of those who want to tear down the Union flag.
I find your views remarkable in the light of your title and in the light of
the views held by a substantial number of people in Northern Ireland.
140. Mr Paisley Jnr:
I would like to ask a question on the back of that. Alex
Attwood, whether he intended to or not, managed to extract skilfully from you
the view that consistency is important. Under Part 1 of the schedule, and if
we are to be consistent, if the Union flag is to fly on one Government building,
it should fly on all Government buildings. That should be your position, rather
than the half position that it should fly on some of them only. If consistency
is important, it should fly on all of them.
141. Ms Harbison:
Consistency does not have to mean all or nothing -
142. Mr Paisley Jnr:
But your preference is for nothing.
143. Ms Harbison:
Pardon?
144. Mr Paisley Jnr:
Your preference is nothing. Mr Donaghy's preference is
to rip the flag down and that is it.
145. Ms Harbison:
No, we do not rip the flag down.
146. Mr Paisley Jnr.
You certainly do not display it, and you insult the majority
of people in Northern Ireland. That is an all-out position. The opposite position
is to fly it on all Government buildings.
147. Ms Harbison:
What we have been trying to say is that it is not an either/or
situation. We want to promote mutual respect rather than division.
148. Mr Paisley Jnr:
Where is the respect when you rip the flag down?
149. Ms Harbison:
We are not ripping it down.
150. Mr Paisley Jnr:
But your preference is to rip it down.
151. The Chairperson:
It is almost four o'clock. People need to get away, and
I want to draw the meeting to a close. Sir John Gorman has been trying to get
in for the past half-hour so I want to give him the last word.
152. Sir John Gorman:
I am wearing the badge of the Order of Malta - I am not
getting away from the subject - and you will see that above the Christian cross
is the symbol of monarchy. The order goes back to the twelfth century and has
been very strong in Ireland, particularly in Northern Ireland, and in Great
Britain.
That was the badge of the crusaders who fought for the
faith against Islam back then. They fought under a flag. Flags represent the
sovereignty of the country in which you live. The sovereignty of this country
is enshrined in Article 1 of the Agreement. Therefore what is all this about?
When serving in the Second World War, many of my soldiers
in the Irish Guards - a predominantly Roman Catholic regiment - died in Normandy.
One was Patrick Harbinson, whom I buried with the Union Jack over him. He did
not feel ashamed of that; in fact he called it the Union flag.
Recently I reminded people of my time in Quebec, where
I spent six years. During that time, a British diplomat was captured by the
Front de Libération du Quebec. Some motives of the FLQ may be considered
similar to the motives of my friends opposite. For 60 days he was interrogated
by his captives. They could not understand how a man who was an Irishman from
Tipperary could be a servant of the British Government, serving in an office
which had a Union flag above it.
He so astonished them by his reply that they did not kill
him, which was their intention. They found it surprising that, for religion,
you do not have to accept the predominant view. You do not have to join the
crowd to say "I am a Catholic, I must have the tricolour" or "I
am a Protestant, I must have the Union flag".
I spoke in favour of the depoliticisation of the RUC and
was very angry to see the Union flag on the table at which the speakers had
formed. That appeared to put the RUC in a position where it had a political
posture. I beg of everyone not to take for granted that because people go to
mass on a Sunday, they have to accept that their flag is the tricolour, neither
that those going to a Protestant church on a Sunday have to accept that their
flag must be the Union flag.
That is a choice individuals make. That is where their
faith and their loyalty demonstrate their belief and what they are prepared
to fight for.
153. The Chairperson:
Thank you, Ms Harbison, to you and your colleagues for
coming here today and facing this barrage of questions from Members.
154. Ms Harbison:
What we have said has no political agenda. It is based
on 25 years experience of the working of fair employment legislation. It is
based on the view of our remit and solely on the statutory powers we are given.
We hope that we have, in some way, furthered the debate.
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