Background

Introduction

Submissions from Party Groupings

Summary of Party views and propositions

- Status of the Union Flag

- Flags and the Belfast Agreement

- Positions on proposed Regulations under The Flags (NI) Order 2000

ANNEX A - PROCEEDINGS OF THE COMMITTEE RELATING TO THE REPORT

ANNEX B - SUBMISSIONS FROM PARTY GROUPINGS

Ulster Unionist Party
Social Democratic and Labour Party
Democratic Unionist Party
Sinn Fein
Alliance Party
United Unionist Assembly Party
Northern Ireland Women's Coalition
Progressive Unionist Party

ANNEX C - SUBMISSIONS FROM ORGANISATIONS AND INDIVIDUALS

Lady Sylvia Hermon
Mr Austen Morgan
Mr Ivor Whitten, Chairman of Newry and Armagh Branch of the Ulster Young Unionist Council

ANNEX D - MINUTES OF EVIDENCE (Thursday 5 October 2000)

Witnesses

Mrs Joan Harbison Chairperson, Equality Commission
Ms Evelyn Collins Chief Executive, Equality Commission
Mr Keith Brown Equality Commission
Mr Paul Donaghy Equality Commission
Mr Ciaran Bradley Equality Commission

1. The Committee was established on 11 September 2000 by the following resolution of the Northern Ireland Assembly in plenary session :-

"That this Assembly appoints an Ad Hoc Committee to consider the draft Regulations laid by the Secretary of State under the Flags (Northern Ireland) Order 2000 and to submit a report to the Assembly by 16 October 2000.

Composition:

Ulster Unionist Party 4
Social Democratic and Labour Party 4
Democratic Unionist Party 3
Sinn Fein 3
Alliance Party 1
Northern Ireland Unionist Party 1
United Unionist Assembly Party 1
Northern Ireland Women's Coalition 1
Progressive Unionist Party 1

Quorum: The quorum shall be eight

Procedure: The procedures of the Committee shall be such as the Committee shall determine."

2. The Membership of the Ad Hoc Committee was as follows:-

UUP B Armstrong; Dr E Birnie; D Hussey; K Robinson
SDLP A Attwood; J Dallat; A Maginness; E McGrady MP
DUP N Dodds; I Paisley Jnr; P Robinson MP
SF Ms M Gildernew; A Maskey; C Murphy
Alliance D Ford
NIUP No nomination
UUAP F Agnew
NIWC Ms J Morrice
PUP D Ervine

3. The Ad Hoc Committee held its first meeting on 19 September. Mr F Agnew was elected as Chairperson and Mr D Ford as Deputy Chairperson. It was also agreed that members could appoint deputies and that meetings would be held in public.

4. The Committee met on 6 occasions. The minutes of all of the meetings are contained in Annex A - Minutes of Proceedings.

5. At the meeting held on 25 September it was decided that the Committee's report should be based on a series of propositions reflecting the differing views within the Committee, together with an indication of the level of support for those views. The Party groupings on the Committee agreed to make written submissions which would form the basis of the report. (Annex B - Submissions from Party Groupings).

6. The Committee issued a press release inviting written submissions on the proposed Regulations from organisations and individuals. 3 submissions were received in response to this invitation. (Annex C - Submissions from Organisations and Individuals)

7. The Committee also issued invitations to the Secretary of State, Mr P Mandelson; the Head of the Northern Ireland Civil Service, Mr G Loughran and the Chairperson of the Equality Commission, Mrs J Harbison. The Secretary of State and the Head of the Northern Ireland Civil Service were unable to attend. The Committee heard evidence from the Equality Commission on Thursday 5 October 2000. (Annex D - Minutes of Evidence)

8. Submissions were received from the Ulster Unionist Party, Social Democratic and Labour Party, Democratic Unionist Party, Sinn Fein, Alliance Party, United Unionist Assembly Party, Northern Ireland Women's Coalition and Progressive Unionist Party. These submissions contained differing views and propositions on general issues in relation to the flying of flags and on specific issues relating to the regulations that the Secretary of State proposes to make under Article 3 of The Flags (Northern Ireland) Order. A summary of the differing views and propositions is set out below under the headings: -

• Status of the Union flag
• Flags and the Belfast Agreement
• Position on proposed Regulations under The Flags (Northern Ireland) Order

9. Status of the Union Flag

The constitutional status of Northern Ireland is not neutral. On the contrary, the constitutional status of Northern Ireland is unambiguously stated as being "in its entirety" part of the United Kingdom. The flying of the Union flag from government buildings is the clear expression of that constitutional position.

The present constitutional position of Northern Ireland does not in law or in practice legitimise the flying of the Union flag from government buildings. The legal context to determine the display of flags is:

The Union flag is a constitutional symbol recognised internationally. As an integral part of the United Kingdom the Union flag is therefore the constitutional symbol for Northern Ireland and should be accorded no less standing and acknowledgement than in any other part of the Kingdom.

The British flag, whatever political allegiance it may convey, has been used by unionism as a symbol of political dominance and a tool of sectarian coat trailing. Parity of esteem, equality, inclusivity and the promotion of mutual respect should underpin future decisions on the flying of flags at government and public buildings.

Any proposal for the flying of flags in Northern Ireland should take account of differing views within Northern Ireland society, as well as precedent in other parts of the UK. The Good Friday Agreement recognises that Northern Ireland is a deeply divided society, that mutual respect should guide this society's approach to the use of symbols and that symbols are not to be used to stress dominance and exclusion. The Agreement also entrenches the Principle of Consent: that Northern Ireland remains a part of the UK unless and until its people decide otherwise. While the Union flag gives formal recognition to Northern Ireland status as part of the UK, the use of shared symbols - such as the European and a new Northern Ireland flag - should be encouraged.

The flying of the Union flag is the most visible and outward expression of Northern Ireland's constitutional position within the United Kingdom.

The Good Friday Agreement, in affirming and assuring the status of Northern Ireland within the United Kingdom, also established institutions, in particular the Assembly, whereby power is shared between communities of different political allegiances. There is no doubt that Northern Ireland is very different from other parts of the UK and this difference should be reflected in the flags debate.

The Union flag is a both a national and international constitutional symbol that identifies its people and territory. As an integral part of the United Kingdom, we believe the Union flag should be flown here on the same designated days as the rest of the United Kingdom.

10. Flags and the Belfast Agreement

Both the consent principle and the need to use symbols with sensitivity as set out in the Belfast Agreement have to be honoured in the new flags Regulations.

The suggestion that a neutral flag should be agreed and flown on government buildings is wholly unacceptable in that it fails completely to honour the principle of consent as expressed in the opening paragraph of the Belfast Agreement. The constitutional status of Northern Ireland is not neutral. On the contrary, the constitutional status of Northern Ireland is unambiguously stated as being "in its entirety" part of the United Kingdom.

The demand that both the tricolour and the Union flag be flown together on Government buildings clearly breaches the Belfast Agreement. The Agreement neither agrees nor advocates joint sovereignty. Instead, the Agreement makes it abundantly clear that it is the United Kingdom and the United Kingdom alone, which has sovereignty over Northern Ireland unless and until a majority of its people consents otherwise. There is, therefore, no basis whatsoever in the Belfast Agreement for the flying of both the Union flag and the tricolour routinely on such buildings, or another flag other than the Union flag on all Government Buildings.

The Good Friday Agreement and sub paragraphs (i), (iii), (iv) and (vi), set out under the SDLP heading at paragraph 9 of this report, provide clear and compelling principles, which should inform and lead to a solution to the flags issue, a solution that respects the identity of each citizen and community.

This issue therefore requires to be determined "with rigorously impartiality on behalf of all the people in the diversity of the identities and traditions...founded on principles of full respect for and equality of civil, political, social and cultural rights, of freedom from discrimination for all citizens and of parity of esteem and of just and equal treatment for the identity, ethos and aspirations of both communities.. (recognise) the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British or both.

To reach the point whereby respective flags, symbols and emblems will be honoured, or that common flags, symbols and emblems can be agreed, can only be achieved within an environment created by full implementation of the Good Friday Agreement and the agreement between Governments.

The fact that the issue of flying the Union flag should ever arise is indicative of the folly of the Belfast Agreement. It is by virtue of the unaccountable authority vested in Ministers that this situation has been allowed to occur. The Union flag is the flag of the United Kingdom and should be accorded its place on Government Buildings.

Any approach to the issue of flags should be set firmly within the context of the Good Friday Agreement

The Good Friday Agreement recognises that Northern Ireland is not "as British as Finchley" and therefore the norms applied to the flying of flags at government buildings in Britain are not appropriate to the North of Ireland.

The Agreement is a contract between enemies and opponents who hold different allegiances. Parity of esteem, equality, inclusivity and the promotion of mutual respect should underpin future decisions on the flying of flags at government and public buildings

The Good Friday Agreement recognises that Northern Ireland is a deeply divided society, that mutual respect should guide this society's approach to the use of symbols and that symbols are not to be used to stress dominance and exclusion.

The Agreement also entrenches the Principle of Consent: that Northern Ireland remains a part of the United Kingdom unless and until its people decide otherwise.

Alliance believes that any Regulations for flying flags on government buildings should:

• recognise the Principle of Consent;
• minimise feelings of either dominance or exclusion; and
• promote pluralism and those symbols which unite the community.

The United Unionist Group in the Northern Ireland Assembly was opposed to the Belfast Agreement, and one of its principal concerns was the threat to the constitutional position of Northern Ireland within the United Kingdom.

It is claimed that the Belfast Agreement recognises the right of the majority of people in Northern Ireland to retain the link with the United Kingdom on the basis of the consent principle. The mere fact that the flying of the Union flag in Northern Ireland is an issue would imply that there are those who have signed up to the Belfast Agreement who do not recognise the Principle of Consent.

The Good Friday Agreement, in affirming and assuring the status of Northern Ireland within the United Kingdom, also established institutions, in particular the Assembly, whereby power is shared between communities of different political allegiances. There is no doubt that Northern Ireland is very different from other parts of the United Kingdom and this difference should be reflected in the flags debate.

The Agreement clearly establishes the constitutional status of Northern Ireland, but also recognises and allows for the different political and allegiances to be represented within that.

Unionists, nationalists and 'others', should be assured that the future, and how it will be represented symbolically, should be about 'us' and any new shared future will require new shared symbols - symbols that will be created and agreed together. We recognise, however, that this is a long-term aspiration that the Good Friday Agreement signposts.

The Progressive Unionist Party's view of the flags issue cannot be divorced from its vision for the future based on the Good Friday Agreement and the parameters therein.

The healing process, which the Agreement was meant to be, is seriously hampered by the continued resurrection of divisive issues - especially if those issues are hyped to one's own constituency as make or break.

Nationalists have accepted the will of the people that Northern Ireland is an integral part of the United Kingdom. It was therefore unnecessary to set up a committee to deal with the issue of flying the Union flag, the National flag, on the same designated days as the rest of the United Kingdom.

11. Position on proposed Regulations under The Flags (Northern Ireland) Order

The Ulster Unionist Party welcomes the Draft Regulations as a step towards closing loop holes with respect to flag flying. They attempt to place official flag flying in Northern Ireland on the same footing as the rest of the United Kingdom. The UUP has some concerns about the regulations as currently drafted and proposes the following amendments -

• Article 5 (1)(a) should be amended to ensure that a flag being flown in addition to the Union flag cannot be flown at the same or superior height or position to the Union flag. (DUP, PUP, UUAP⁾
• The Draft Regulations should be amended to ensure that the Union flag is required to be flown at Parliament Buildings. (DUP, PUP, UUAP)^*
• Article 2(2) should include a provision to ensure that buildings brought into the government estate in the future are covered by these regulations. (DUP, PUP, UUAP)^*
• The absence of sanctions from the regulations is unacceptable. The regulations should be amended to clarify the position of Ministers by reference to his/her pledge of office. (DUP, UUAP)*

The SDLP does not agree with the Draft Regulations that the Union flag should be displayed on government buildings. The option of flying both flags, further consideration of an agreed flag, or the flying of only the union flag or the tricolour only or both by agreement should be further considered. If the Secretary of State wishes to issue the Draft regulations , the following amendments should be made:

• The regulations should be time limited for one year in the first instance and reviewed thereafter. (NIWC, Alliance)*
• Draft Regulation 2(2) and 7 should be deleted in the light of the submission of the Equality Commission (Alliance)*.
• The flying of both the Union flag and the Irish tricolour should be permitted on buildings hosting meetings of the British-Irish Council, North-South Ministerial Council bodies and other British-Irish and North-South institutions established under the agreement.
• The Union flag should not be displayed on Departmental buildings but if such display should be permitted then that display should be on a restricted number of government buildings and that display should be on a restricted number of days

The DUP does not accept that the issue of flying of the Union flag from government buildings is an issue that should have to be regulated by law. The Union flag is a constitutional symbol recognised internationally. As an integral part of the United Kingdom the Union flag is therefore the constitutional symbol for Northern Ireland and should be accorded no less standing and acknowledgement than in any other part of the Kingdom. If the regulations are to be made, the following propositions should be incorporated.

• The Union flag shall be flown on all Government Buildings on the specified days. (UUP, PUP, UUAP⁾
• The specified days will be those days on which it was the practice to fly the Union flag in the period of the 12 months ending with 30th November 1999. (UUP, PUP, UUAP)^*
• No other State's flag, except with the express permission of the Assembly, shall be flown on Government Buildings. (UUP, PUP, UUAP)^*
• The Union flag shall be flown in the manner and style which was the practice in the period of the 12 months ending with 30th November 1999. (UUP, PUP, UUAP)^*
• Where the flag was not previously flown over a Government Building the flag should be flown in the manner it is flown at other Government Buildings. (UUP, PUP, UUAP)^*
• The Premises Officer shall be appointed to ensure the flag is flown in the manner and on the days required. This responsibility shall be a duty of his service. (UUP, PUP, UUAP, Alliance)^*
• The European flag shall not be flown, except with the express permission of the Assembly. (UUP, PUP, UUAP)^*
• There shall be no prohibition on the flying of the Union flag on Government Buildings at any time. (UUAP)^*
• The Union flag shall be flown at Parliament Buildings, Stormont on all plenary sitting days of the Assembly. (UUP, PUP, UUAP)*
• The Union flag shall be flown at half mast on all Government Buildings following the death of a member of the Royal Family, or of a serving or former Prime Minister of the United Kingdom on such days as notified in the Belfast Gazette. (UUP, PUP, UUAP)^*

Sinn Fein's view is that where British cultural symbols are involved in public life, equivalent Irish cultural and political symbols should be given equal prominence. If agreement or consensus cannot be found on this, then a reasonable alternative, which meets the required criteria, would be to suspend the flying of flags until agreement or consensus can be found.

The position on the flying of flags at government and public buildings should be based on either an equality or a neutrality scenario. The Secretary of State's draft Regulations do not address this in any constructive way and should be rejected.

The Alliance Party broadly welcomes the Draft Regulations referred to the Assembly by the Secretary of State. The decision not to include 12th July in Part II of the Schedule is welcomed as a means of reducing feelings of exclusion. The following amendments are suggested.

• Regulation 2 should be amended to include an additional regulation 2(5) to provide for the flying of St Patrick's Flag on 17 March, on the same basis as the European Flag on Europe Day.
• Suggested wording:

"Where a government building specified in Part I of the Schedule has more than one flag pole, St Patrick's Flag shall be flown in addition to the Union Flag on St Patrick's Day."

There is real concern within the Protestant and Unionist community that the issue of flying the Union flag necessitates any kind of discussion - the flying of the national flag should never merit negotiation at all. If the regulations are to be made the following amendments are suggested.

• The Regulations should provide for the Union flag should be flown on the 1^st July on the anniversary of the Battle of the Somme (UUP, DUP, PUP)^*
• The Union flag should also be flown at Stormont and preferably on all sitting days. (UUP, DUP, PUP)^*
• The regulations should contain a provision to deal with a situation where the regulations are not followed and include a specification as to how the offending Minister shall be reprimanded should his / her department not fly the flag. (UUP, DU^P)*
• The definition of 'Government Building' should be rectified to include Parliament Buildings and indeed any building where a Minister holds office. The term 'Government Building' should be inclusive of Local Government Offices and other Public Authorities, for example Education and Library Boards. (UUP, DUP)*
• No other flag, aside from the Royal Standard in the event of a visit by Her Majesty the Queen, should be flown at any government building except by the prior approval of the Northern Ireland Assembly. (DUP, PUP)*
• The Union flag should certainly be flown at least on all designated days; there should be no prohibition to its flying on Government Buildings at any time. (DUP)^*

The Women's Coalition recommends that the proposed regulations should only be regarded as a holding measure but also holds the view that perpetuating the status quo (i.e. flying one flag) is not a sustainable long-term option. More time must be allowed, particularly for the Assembly, to seek to reach a more generally acceptable outcome in the longer term. The following amendment is proposed.

• The regulations should be introduced as a holding measure for a twelve-month period only. (Alliance)^*

It is a matter of regret that it has proved necessary to introduce Regulations to ensure that the position in Northern Ireland is no different than the rest of the United Kingdom, in relation to flying the Union Flag.

• The Union flag should be flown at least in the same manner and on the same designated days as the rest of the United Kingdom. (UUP)^*

TOP

Present: Mr F Agnew (Chairman)
Mr D Hussey
Mr B Armstrong
Mr A Maginness
Mr A Attwood
Mr A Maskey
Dr E Birnie
Mr E McGrady
Mr J Dallat
Ms J Morrice
Mr N Dodds
Mr C Murphy
Mr D Ervine
Mr I Paisley Jnr
Mr D Ford (Deputy Chairman)
Mr K Robinson
Ms M Gildernew
Mr P Robinson

In Attendance: Mr M Rickard (Clerk to the Committee) Miss J Adair
Mrs G Ardis Miss L Tracey

The Clerk opened the meeting by introducing himself and the other Committee staff in attendance. Following agreement by the Committee, the Clerk conducted the election of the Chairman and Deputy Chairman in accordance with the relevant provisions contained within the Assembly's Standing Orders.

1.1. Mr P Robinson proposed Mr F Agnew for Chairman. This was seconded by Mr K Robinson. Mr E McGrady proposed Mr D Ford for Chairman. This was seconded by Ms J Morrice.

The members indicated their preference by a show of hands. The following votes were cast:-

Mr F Agnew 9 votes
Mr D Ford 8 votes

Mr F Agnew was elected as Chairman.

1.2. Mr B Armstrong proposed Mr D Hussey for Deputy Chairman. This was seconded by Mr F Agnew. Mr E McGrady proposed Mr D Ford for Deputy Chairman. This was seconded by Mr A Maskey.

The Members indicated their preference by a show of hands. The following votes were cast:-

Mr D Hussey 8 votes
Mr D Ford 9 votes

Mr D Ford was elected as Deputy Chairman.

The newly elected Chairman took the Chair.

Following a briefing from the Clerk, the Chairman asked for the Committee Members views on the following aspects of the Committee's procedures.

The Chairman reminded Members of the Committee's Terms of Reference. Members indicated that they would wish to make comment on the question of the Secretary of State's intention to make these Regulations.

2.1. It was proposed and agreed the meetings of the Committee should be held in public.

2.2. Following discussion on the question of the Committee's power to call witnesses it was agreed that the Clerk would clarify the position and report back at the next meeting.

2.3. The Committee agreed that in the unavoidable absence of Committee Members deputies may attend. However, given the tight time scale to which the Committee was working and so to avoid the rebriefings having to take place at Committee meetings members agreed that it is the responsibility of each party to brief its substitute Committee member.

2.3.1. Following discussion the Committee agreed that the Clerk should research and establish the voting practices of other Assembly Committees particularly in relation to the handling of reports.

Format of Report

2.4. This will be an issue for discussion at a future meeting.

On request from the Chairman the Clerk briefed the Committee on the possible time scale of the work programme.

Members noted that the time was very limited and the key milestones to be met if the Committee is to report by 16 October.

The work programme took account of these points and the availability of staff and accommodation.

Members indicated general discontent with the use of the Senate Chamber and suggested using other Committee Rooms.

It was agreed that the Clerk should explore the availability of other Committee Rooms in Parliament Buildings.

The next meeting of the Committee will be held on Monday 25 September 2000 at 4.00 pm. The Clerk will confirm the venue with Members as soon as possible.

Present: Mr F Agnew (Chairman) Mr B Hutchinson
Mr B Armstrong
Mr E McGrady
Mr A Attwood
Mr A Maginness
Dr E Birnie
Mr A Maskey
Mr J Dallat
Ms J Morrice
Mr N Dodds
Mr C Murphy
Mr D Ford (Deputy Chairman)
Mr I Paisley Jnr
Ms M Gildernew
Mr K Robinson
Mr D Hussey
Mr P Robinson

In Attendance: Mr M Rickard (Clerk to the Committee) Miss J Adair
Mrs G Ardis Miss L Tracey

The Chairman welcomed Mr Hutchinson who was substituting for Mr Ervine at the meeting.

The minutes of the meeting of 19 September 2000 were agreed.

3.1. The Chairman stated that the Assembly's legal adviser is available to provide advice and information on the content of the draft Regulations. The members were informed by the Clerk that the Committee did not have the power to call witnesses. However the NIO had indicated that it will consider any request from the Committee for further information on the draft Regulations.

After some further discussion it was agreed that the Committee would invite the Secretary of State, Head of the Northern Ireland Civil Service and the Chairman of the Equality Commission to give evidence to the Committee on the draft Regulations.

It was also agreed that the Chairman should issue a press release inviting written submissions from organisations or individuals on the proposed Regulations.

It was acknowledged that due to the very short time available it may not be possible to arrange for the attendance of those to give oral evidence.

The Chairman confirmed that there were no other suitable rooms available that would increase the number of dates and times available for meetings.

It was agreed that the Committee would follow Standing Orders. Decisions requiring a vote would be taken by a simple majority and indicated by a show of hands.

A wide ranging discussion took place on how the Committee would take its work forward.

It was proposed that each group within the Committee would set out a series of propositions to reflect their respective views on the draft Regulations. These could be amended if desired following the consideration of the oral and written evidence.

The series of propositions would then form the basis of the Committee's report. This proposal was subject to a vote with a show of hands indicating that 11 members were in support whilst 7 members were against.

The Committee therefore resolved that the Clerk would proceed to obtain the information in accordance with this decision.

The Committee agreed that the Chairman and Clerk would liase about the date of the next meeting as it would be dependent on the availability of those to be invited to give oral evidence.

Present: Mr F Agnew (Chairman) Mr D Ford (Deputy Chairman)
Mr B Armstrong
Ms M Gildernew
Mr A Attwood
Mr D Hussey
Dr E Birnie
Ms J Morrice
Mr J Dallat
Mr C Murphy
Mr N Dodds
Mr I Paisley Jnr
Mr A Doherty
Mr P Robinson
Mr D Ervine
Mr J Tierney

In Attendance: Mr M Rickard (Clerk to the Committee) Miss J Adair
Mrs G Ardis Miss L Tracey

The Chairman welcomed Mr Doherty and Mr Tierney who were substituting for Mr McGrady and Mr Maginness.

The minutes of the meeting of 25 September 2000 were agreed.

The Chairman reported that the Clerk had written on 26 September 2000 to the Secretary of State, Head of the Civil Service and the Chairperson of the Equality Commission inviting them to appear before the Committee.

The Secretary of State's Office had responded saying that due to pre-existing diary commitments he would be unable to attend.

This response had been copied to members.

To date no response to the invitation had been received from the Head of the Civil Service.

The Chairman added that Mrs Joan Harbison, Chairperson of the Equality Commission, had agreed to attend the meeting scheduled for Thursday 5 October. To aid the preparation for the meeting Mrs Harbison has asked that if members have any specific questions or issues they would wish to raise with the Equality Commission, it would be helpful to receive these in advance of the meeting. The Chairman asked members to pass these to the Clerk. However it was emphasised that members were free to ask any additional questions at Thursday's meeting.

Following discussion on the interpretation of the proposal supported by the majority of members at the Committee's previous meeting it was agreed that the Clerk would obtain a transcript of that meeting for clarification.

Unfortunately due to unforeseen circumstances the Assembly Legal Advisor was unable to attend the meeting.

Members had received a copy of the Press Release issued by the Chairman on 26 September seeking written submissions from organisations and individuals.

To date no submissions have been received.

It was acknowledged that the very short timescale precluded any further possible press coverage.

Only one submission had been received from groupings within the Committee from Mr Ford of the Alliance Party.

The Chairman stressed that these submissions are needed by end of business on Wednesday 4 October to enable an initial draft of the Committee's Report to be prepared to meet the deadline of 13 October. All groupings confirmed that they did intend to submit their views.

It was noted that the Secretary of State had offered in his response to consider any written questions the Committee may have but given the lack of time available it was not considered to be a worthwhile exercise.

However it was felt that the Head of the Civil Service should be again asked to ascertain if he was unavailable to attend the next meeting.

The next meeting of the Committee is to be held on Thursday 5 October at 2.30 pm in the Senate Chamber.

FRASER AGNEW
Committee Chairman

Present: Mr F Agnew (Chairman) Mr B McElduff
Mr B Armstrong
Mr A Maginness
Mr A Attwood
Ms J Morrice
Mr N Dodds
Mr C Murphy
Mr D Ford (Deputy Chairman)
Mr I Paisley Jnr
Ms M Gildernew
Mr K Robinson
Sir J Gorman
Mr P Robinson
Mr D Hussey
Mr J Tierney
Mrs P Lewsley

In Attendance: Mr M Rickard (Clerk to the Committee) Miss J Adair
Mrs G Ardis Miss L Tracey

The Chairman welcomed Mrs P Lewsley, Mr J Tierney and Sir John Gorman who were substituting for Mr J Dallat, Mr E McGrady and Dr E Birnie.

The minutes of the meeting of 2 October 2000 were agreed.

The Chairman welcomes Mrs Harbison, Chairperson of the Equality Commission, and her colleagues to the meeting.

Mrs Harbison began the presentation by introducing her colleagues who accompanied her. They were Chief Executive Ms Evelyn Collins, Mr Paul Donaghy, Mr Keith Brown and Mr Ciaran Bradley. Mrs Harbison went on to detail information on current relevant provisions within the Commission's statutory remit and make comment on the proposed Flags Regulations.

There then followed a question and answer session during which Mrs Harbison stated that copies of the Commission's address would be made available to Committee members at the end of the presentation.

At the conclusion of the question and answer session the Chairman thanked Mrs Harbison and her colleagues for their attendance.

The Chairman reported that a response had been received from Mr Loughran, Head of the Civil Service that he was unable to attend the Committee on the offered dates.

Following discussion on this issue Committee members expressed their strong dissatisfaction with Mr Loughran's decision not to attend and that some members of the media knew of this decision before the Committee did.

Members stated that if time had permitted the Committee would have sought the power to call witnesses.

The Chairman asked that Mr Robinson's comment regarding his request for the Committee to obtain a copy of the Rt Hon John Taylor's document on policing and flags be noted.

The Chairman asked the Clerk to clarify the proposal that was put to the meeting on 25 September.

The Clerk read from the initial verbatim version of the proceedings and following some discussion it was agreed that the report would set out a series of propositions reflecting the views within the Committee and the level of support for those views.

The Chairman confirmed that submissions had been received from all the groupings represented in the Committee.

Three external submissions were received in response to the Press Release.

Following discussion on the way forward the Clerk was instructed to prepare an initial draft of the Committee Report that draws out the various propositions contained within each grouping's submission.

The next meeting of the Committee is to be held on Monday, 9 October at 4.00 pm in the Senate Chamber.

FRASER AGNEW
Committee Chairman

9 October 2000

Present: Mr F Agnew (Chairman) Mr C Murphy
Mr A Attwood Mr I Paisley Jnr
Mr A Doherty Mr K Robinson
Mr D Ford (Deputy Chairman) Mr P Robinson
Mr J Kelly Mr J Shannon
Mr A Maginness

In Attendance: Mr M Rickard (Clerk to the Committee) Mrs C Darrah
Mrs G Ardis Miss L Tracey

The Chairman welcomed Mr A Doherty, Mr J Shannon and Mr J Kelly who were substituting for Mr J Dallat, Mr N Dodds and Ms M Gildernew.

The minutes of the meeting of 5 October 2000 were agreed.

The Chairman asked the members to note that the Press had reported on the Committee's dissatisfaction at the fact both the Secretary of State and Mr Loughran, Head of the Civil Service were unable to attend a meeting of the Committee.

The Chairman stated that the Clerk had, as agreed, at the last Committee Meeting, produced a draft report.

As the draft report had been circulated that morning it was agreed that members did not have enough time to fully consider its content.

The Chairman reminded members of the deadline for the production of the report.

It was agreed to adjourn the meeting until the following morning to allow for a fuller discussion of the draft report.

The next meeting of the Committee is to be held on Tuesday 10 October at 10.30 am in the Senate Chamber.

Present: Mr F Agnew (Chairman) Mr D McClarty
Mr B Armstrong Mr E McGrady
Dr E Birnie Ms J Morrice
Mr J Dallat Mr C Murphy
Mr N Dodds Mr M Murphy
Mr D Ervine Mr I Paisley Jnr
Mr D Ford (Deputy Chairman) Mr K Robinson
Mr J Kelly Mr P Robinson
Mr A Maginness Mr J Tierney
Mr A Maskey

In Attendance: Mr M Rickard (Clerk to the Committee) Mrs C Darrah
Mrs G Ardis Miss L Tracey

The Chairman welcomed Mr D McClarty and Mr M Murphy who were substituting for Mr Hussey and Ms Gildernew.

The minutes of the meeting of 9 October 2000 were agreed.

The Chairman opened the meeting by reminding members of the need to finalise the draft report at this meeting.

Discussion surrounding the draft Report's format noted that the sections relating to the "Status of the Union Flags" and "Flags and the Belfast Agreement" were in effect statements of the various groupings' positions.

The Chairman asked members to indicate if they wished to make any amendments to these two sections of the draft Report.

SDLP provided a paper as a replacement to the Party's views and propositions in the draft Report as a result of evidence heard from the Equality Commission.

Alliance, Sinn Fein and Women's Coalition provided minor amendments to their submissions.

The Committee then discussed the method of how the level of support for each of the Party Groupings' positions on the proposed regulations would be assessed.

The Committee was unable to reach a conclusion on this issue and the Chairman adjourned the meeting for a period of approximately 10 minutes to consider the best way forward.

A proposal by Mr D Ervine and seconded by Mr E McGrady that a Report based on the submissions to the Committee should be sent as a Report to the Assembly was defeated by 9 votes to 8.

The Chairman stated that he intended to test the level of support for each of the propositions at Section 11 of the draft Report. Sinn Fein and SDLP declared that they would not be participating in the procedure to test levels of support.

The other groupings in the Committee then proceeded to indicate those propositions at Section 11 which they were able to support.

The Chairman informed Committee members of the following motion that he intended to introduce to the Assembly in week commencing 16 October 2000.

"that this Assembly agrees that the Report of the Ad Hoc Committee set up to consider the draft Regulations laid by the Secretary of State under the Flags (Northern Ireland) Order should be submitted to the Secretary of State as a Report of the Northern Ireland Assembly"

The Committee agreed to proceed on that basis and that the draft Report should be amended to take account of changes discussed at the meeting.

The Chairman concluded the meeting by thanking members and the Committee staff for their assistance in enabling the Committee to arrive at this Report.

FRASER AGNEW
Committee Chairman

TOP

This submission provides the UUP view on the current state of legislation relating to flags and especially the draft Flags Regulations. Whilst we welcome the general spirit of these Regulations we have some concern as to details. These concerns are as follows:

• the national flag of a visiting Head of State,
• list of government buildings,
• definition of a "government building",
• standing of buildings brought into government use in the future,
• absence of sanctions.

How was it that two Sinn Fein Ministers reject proper requests to fly the Union Flag from their departmental buildings, and do so with impunity? How will the position be altered by the Flags Regulations (Northern Ireland) 2000 as proposed by Peter Mandelson recently on 8^th September? And, do these Regulations put an end to the flying of the tricolour, the flag of a foreign country, in nationalist and republican areas of Northern Ireland?

Finding the answers to such questions leads one into complexity. Consequently, it may be helpful to look at the legal position for three different sets of circumstances: -

1. Flags in public places

2. Flags from Government Buildings

3. The flying of flags by public authorities, and in particular District Councils

Consideration of each of these areas in turn should end much of the confusion and misunderstanding surrounding the flying of the Union flag.

The former Stormont Parliament in 1954 enacted the Flags and Emblems (Display) Act (Northern Ireland). It had two main purposes. First, it made it a criminal offence to interfere with the Union flag, and secondly it also made it an offence to display any provocative emblem, such as the tricolour.

This Act continued in force for 33 years, giving rise to the widespread belief amongst Unionists that it is still an offence to fly the tricolour. No matter how genuinely held this belief may be, it is nevertheless mistaken.

As long ago as 1987 - eleven years before the Belfast Agreement - the Flags and Emblems (Display) Act (Northern Ireland) was repealed in its entirety by Article 27 of new public order legislation here in Northern Ireland. Since then, the Public Order (N.I.) Order 1987 has made it an offence for

For the last thirteen years it has, therefore been an offence under our own public order legislation to display "anything" - including the Union flag itself - in a public place, if its display is intended or is likely to cause a breach of the peace or public disorder.

Although this legislation has been on the statute book for that length of time, its implications do not seem to be widely understood. It means that the tricolour can lawfully be flown in nationalist and republican areas, since it is obviously not "likely to cause a breach of the peace or public disorder" in those areas. The converse is also true in that the flying of the Union flag in such areas would be likely to cause a breach of the peace; a Union Jack cannot, therefore, be lawfully flown in nationalist or republican areas.

The legal position about the flag flying from government buildings is even less well understood. Until Peter Mandelson introduced the Flags (N.I.) Order in the House of Commons on 16^th May 2000, there had been no legislation requiring the Union flag to be flown from government buildings.

This legal loophole was revealed during the first term of devolved administration last autumn, when the two Sinn Fein Ministers were asked by civil servants if they wished the Union flag to be flown on the usual flag-flying days. As we know only too well, they refused to fly the flag. But how could they?

Quite simply, they could refuse to fly the Union flag over their departments, because there was no law compelling them to do so. Instead, it had been custom and practice, through the exercise of the royal prerogative, to fly the Union flag from government buildings on certain designated flag-flying days. In Northern Ireland, it has been the custom and practice over many years to fly the Union flag on 20 designated flag flying days, mostly royal birthdays.

With devolved government restored here in early June and with no less than three flag-flying days in that month, Unionists had once again to endure the repeated offence caused by the sign of bare flagpoles at both the Department of Education and the Department of Health.

The serious problems, raised by the refusal of the two Sinn Fein Ministers to fly the flag of the country, have now to be resolved by the Secretary of State making regulations under the Flags (N.I.) Order 2000, since the Assembly and Executive failed to on flag-flying procedures before the summer recess.

In bringing forward for consultation the Flags Regulations (Northern Ireland) 2000, Peter Mandelson described them as "a sensitive, common-sense way forward". Legislation - in the form of these Flags Regulations - will prevail over the royal prerogative, and so the previous legal loophole exploited by the two Sinn Fein Ministers should be filled. But is it?

Taking the Belfast Agreement as the foundation, two apparently conflicting provisions have to be reconciled. First, the Agreement makes it absolutely clear that

This fundamental principle of consent was subsequently enshrined in legislative form by section 1 of the Northern Ireland Act 1998, which implements the Belfast Agreement.

Secondly, it is also stated in the Agreement that

Both the consent principle and the need to use symbols with sensitivity have to be honoured in the new Flags Regulations.

Consequently, the SDLP's suggestion that a neutral flag should be agreed and flown on government buildings is wholly unacceptable in that it fails completely to honour the principle of consent as expressed in the opening paragraph of the Belfast Agreement. The constitutional status of Northern Ireland is not neutral. On the contrary, the constitutional status of Northern Ireland is unambiguously stated as being "in its entirety" part of the United Kingdom. The flying of the Union flag from government buildings is the clear expression of that constitutional position.

Likewise, Sinn Fein's demand that both the tricolour and the Union flag be flown together on Government buildings clearly breaches the Belfast Agreement. The Agreement neither agrees nor advocates joint sovereignty. Instead, the Agreement makes it abundantly clear that it is the United Kingdom and the United Kingdom alone, which has sovereignty over Northern Ireland unless and until a majority of its people consents otherwise.

There is, therefore, no basis whatsoever in the Belfast Agreement for the flying of both the Union flag and the tricolour routinely on such buildings, or another flag other than the Union flag on all Government Buildings.

The Flags Regulations (Northern Ireland) 2000 recognise the constitutional position of Northern Ireland as part of the United Kingdom by making it a duty - rather than a discretion - that the Union flag be flown on 7 designated buildings on exactly the same designated days as in the rest of the Kingdom.

Prior to these Regulations, it had been custom and practice in Northern Ireland - though not adhered to by Sinn Fein - to fly the Union flag on government buildings 20 days. These included the 15 days (mostly royal birthdays) as designated in the rest of the United Kingdom, plus the 4 so-called "Dublin Days" as well as 12^th July. The 4 "Dublin Days" were - Christmas Day, New Year's Day, Easter Sunday and St. Patrick's Day. These 4 days were added by the Stormont Cabinet in 1927, and only in 1933 was 12^th July also added as a flag-flying day.

The logical consequence of the consent principle is that the Union flag should be flown on government buildings on the same basis as in the rest of the Kingdom. This means, as the Flags Regulations make clear, that we shall lose 3 of the 4 additional "Dublin Days" and also lose 12^th of July.

Since the Union flag is flown on the relevant Saint's Day in the various parts of the Kingdom - (St. David's Day in Wales, St. Andrew's Day in Scotland etc) - the flag will continue to fly here on St. Patrick's Day. Christmas Day, New Year's Day, Easter Sunday and 12^{th July have never been flag-flying days in the rest of the United Kingdom; they} will, therefore, cease to be such in Northern Ireland. ( Note that with Prince Edward's marriage, his wife's birthday in January has now been added to the list of designated days. There will, therefore, be an overall net loss of 3 flag days.)

By accepting the 17 flag-flying days as specified by the Flags Regulations, the SDLP and Sinn Fein will be honouring their obligation in the Belfast Agreement to show "sensitivity" and "promote mutual respect rather than division". By seeking to deny the majority in Northern Ireland the legitimate expression of their British identity through the flying of the Union flag on government buildings on the same days as in the rest of the U.K., Sinn Fein and the SDLP have hitherto demonstrated total insensitivity without a shred of "mutual respect" are obligations on all participants; it must be a two-way process.

By comparison, Article 9 of the Flags Regulations shows the British Government's "sensitivity" in the use of symbols and "mutual respect" as required by the Agreement. Under Article 9 . "no flag shall be flown at any government building at any time", except as provided by these Regulations. Designating a maximum of 17 days out of 365 days in the year clearly indicates that, while upholding the constitutional position of Northern Ireland, the British Government has no intention of flaunting the Union flag.

In also allowing for the national flag of the country of a visiting Head of State to be flown, the British Government has again fulfilled its obligations under the Belfast Agreement by showing sensitivity and mutual respect.

Article 3(1) of the new Flags Regulations permits the Union flag to be flown at a government building visited by a foreign Head of State. On such occasions, it is discretion, not a duty, to fly the Union flag. Article 3(2) states clearly that only if that discretion is exercised to fly the Union Jack and only if the buildings has two flag poles may the national flag of the visiting Head of State also be flown.

The logical consequence of this provision is that, for example, in the event of a visit to a government building by the President of the Republic of Ireland, the tricolour may be flown . but only when the Union flag is flown and only where there are two flagpoles. Since the Republic of Ireland has abandoned the offensive Articles 2 and 3 of its Constitution laying claim to the territory of Northern Ireland, the Republic of Ireland may now be treated like any other foreign country.

At the same time, and crucially, to avoid the obvious perception on such occasions of joint sovereignty, which is contrary to the Belfast Agreement, it is essential that, as in the case of the European flag, the tricolour (and any other foreign flag) should be flown lower than the Union flag. It is imperative that the position of the foreign flag should be reconsidered, especially since Article 8 of the Flags Regulations permits the national flag of the visiting Head of State to . " be flown in the same manner on the same day at any other government building which has more than one flagpole, provided that the Union flag is also flown".

The possible outcome of this provision is that, in the event of a visit by President Mary McAleese to Rathgael House, we could see a rash of tricolours at equal height alongside the Union flag at various Department of Education buildings. Such an outcome would be completely at variance with Northern Ireland's constitutional status as laid down by the Belfast Agreement. Again, it is worth repeating that there is no joint sovereignty of Northern Ireland. It is wholly unacceptable, therefore, to have the tricolour flown "in the same manner" on a government building as the Union flag. This provision of the Flags Regulations must be amended.

So, too must Article 2(2) of the Flag Regulations. This provision requires the Union flag to be flown on the 17 designated days at "any other government building at which it was the practice to fly the Union flag . in the period of 12 months ending with 30^th November 1999".

The wording of this particular Article is deeply worrying because it contains two serious flaws. To identify the first of these, one must search for the definition of "government buildings". It is certainly not included in the Flags Regulations themselves. Instead, the definition of "government buildings" was laid down earlier this year on 18^{th May} by the Flags (Northern Ireland) Order 2000. In it, a "government building" is defined as "wholly or mainly occupied by members of the Northern Ireland civil service".

This narrow definition will exclude the main seat of government in Northern Ireland; Parliament Buildings at Stormont will not qualify as "government buildings", as they are not "wholly or mainly occupied" by civil servants. Although it had been the practice to fly the Union flag on Parliament Buildings in the 12 months ending with 30^th November 1999, these buildings will nevertheless fall through the gap in Article "(2) for the simple, but obscure reason, that they do not fall within the statutory definition of "government buildings". It is not acceptable to Unionists that there is no duty under the Flags Regulations to fly the flag of this country over the main seat of government.

The second serious flaw in Article 2(2) of the Flags Regulations relates to future "government buildings". This Article only imposes a duty on "government buildings" to fly the Union flag where it had been their practice to do so in the "12 months preceding 30^th November 1999". It would inevitably follow from this provision that, if civil servants were to be moved from, for example, Rathgael House and into buildings elsewhere, those new government buildings cannot have had a past practice of flying the Union flag in the 12 months prior to the end of November 1999, they will also fall through the gap in Article 2(2).

We note also the case of the Interpoint Centre (present headquarters of DCAL) which is omitted from the designated list.

As presently drafted, the Flags Regulations impose no obligation to fly the Union flag from future government buildings. Once again, Article 2(2) is unacceptable - the Union flag is the constitutional symbol of Northern Ireland's status within the United Kingdom, and as such it should be recognised visibly by the flying of the Union flag on the 17 designated days on all future government buildings.

Finally, the absence of sanctions from the Flags Regulations is unsatisfactory. What happens if a Government Minister fails to comply with the requirements of the Flags Regulations? Is it sufficient to rely upon each Minister's Pledge of Office whereby he/she undertakes . "to discharge in good faith all the duties of office"?

At present, the Flags Regulations do not even mention the words "Minister" or "duty". To avoid any misunderstanding, these Regulations should clarify the Minister's position by reference to his/her Pledge of Office.

Ministers and Government Departments should also take note that the Human Rights Acts 1998 comes into force on 2^nd October 2000. Included amongst the rights regarded as fundamental is the right to freedom of expression:

Neither a Minister nor a Northern Ireland department has any power "to do any act" in so far as that act is incompatible with any of the fundamental rights laid down by the Human Rights Act. (See section 24 of the Northern Ireland Act 1998). By refusing to fly the Union flag on the 17 designated days from the specified government buildings, Ministers and/or Departments run the risk of a legal challenge under the new Human Rights legislation.

"Public authorities" include a very wide range of bodies - Health and Social Service Boards, Health and Social Services Trusts, all District Councils, Education and Library Boards, N.I. Housing Executive and the Tourist Board are but a few examples.

Since the Flag Regulations only extend to "government buildings", which are buildings "wholly or mainly occupied by members of the Northern Ireland Civil Service", District Council offices cannot benefit directly from these Regulations. Given the absence of specific legislation on flag flying by District Councils, this may well become an area fraught with difficulty.

Consequently, in determining the appropriate days and locations for the flying of flags an emblems, District Councils must pay particular attention to their own statutory obligations under two very important pieces of legislation:

• Northern Ireland Act 1998, which implemented the Belfast Agreement, and
• The Fair Employment and Treatment (N.I.) Order 1998.

The UUP recognises these Draft Regulations as a step towards closing loopholes with respect to flag flying. They attempt to place official flag flying here on the same footing as the rest of the United Kingdom.

Notwithstanding these benefits there are still questions of detail and causes for concern.

1. The SDLP recognises that the issue of flags is a difficult and divisive one. The issue requires to be managed with sensitivity, is guided by principle and is in the best interests of all in a divided community. These are high objectives. The SDLP submits that a path can be charted to achieve them.

2. The SDLP submits that judgement on this issue should be informed by two texts. First, "The Belfast Agreement: and Agreement reached at the Multi-Party Talks on Northern Ireland" (commonly referred to as the "Good Friday Agreement" and hereinafter referred to as the "Agreement") provides clear and compelling principles which should inform and can lead to a solution to this issue, a solution which respects the identity of each citizen and community. Second, the SDLP would refer to the obligations placed on the Government and particularly on the British Government by the "between the Government of the United Kingdom, of Great Britain and Northern Ireland and the Government of Northern Ireland, (hereinafter referred to as the 'Agreement between Governments').

3. In the section of the Agreement which deals with "Constitutional Issues", a number of principles are endorsed. In the particular context of this consultation, this submission would refer to the principles outlined at paragraphs 1(iii), 1(v), and 1(vi), where the parties to the Agreement:

The SDLP would also refer to Article 1(iii), 1(v) and 1(vi) of the "Agreement between Goverments" which states:

4. It is submitted that in considering this issue the above principles should be upheld and reflected in the draft regulations. It is submitted that the Agreement between Governments has the standing of an international treaty binding in law with the legal and broader consequences of same.

5. It is argued that paragraphs 1(ii) of 'the Agreement' and the 'Agreement between Governments' respectively (hereinafter referred to as "the Agreements") above, which details the constitutional position of Northern Ireland and what is commonly referred to as "the principle of consent", means that the Union flag should fly from government buildings in Northern Ireland on designated days, as is the case in and to be generally consistent with practice in Scotland or England/Wales. The SDLP accepts paragraphs 1(iii) but submits that it is incorrect to interpret the Agreements in this way for a number of reasons.

6. First, Northern Ireland cannot be compared with England and Wales or Scotland:

(a) Northern Ireland is a divided society, emerging from many years of conflict. The division has been around issues of national identity, political aspiration and community treatment. In this context, to interpret the constitutional position and the principle of consent so as to enable the display of only the Union flag on government buildings on designated days suggests that one national identity, political aspiration and community requirement has a standing legally and practically, over those of others.

(b) The existence of the Agreements demonstrate that Northern Ireland is not comparable with England Scotland or Wales:

• Uniquely among regions, Northern Ireland has the guaranteed right in law to opt out of the Union should a majority desire this;
• Uniquely among regions, the constitutional arrangements for Northern Ireland were laid down in an international treaty between two sovereign governments and were approved by the people of Ireland, North and South, in a referendum.

7. Second, beyond the broad political and legal arguments outlined above, it is submitted that the approach of some, who invoke constitutional principles referred to in the Agreements to justify the display of the Union flag on government buildings is a misinterpretation of both.

8. Paragraph one of the Agreement on "Constitutional Issues" and Article 1 of the Agreement between Governments lays down a number of principles. It is submitted in determining this issue that those principles should be considered in their totality and that each principle should be considered no less important than the other. It is submitted as follows:

It is submitted that, for example, the display of the Union flag is clearly identified with the Unionist community, with the Union with Britain and with those who would refer to themselves as British. To display the Union flag - or for that matter the Irish Tricolour alone - is contrary to the above principle and good practice. It should be noted that this argument is not outlined so as to suggest that in the treatment of issues of identity - flag, language etc - there should always be the same treatment at all times and in all ways. This may not be appropriate in political terms , feasible in financial terms or practical in real terms. This submission elaborates on this perspective at paragraph (12) of this preliminary response.

(b) Moreover, to display the Union flag on government buildings only does not accord "just and equal treatment to the identity, ethos and aspirations" of the nationalist community. In addition, it is submitted that the display of the Union flag only on government buildings does not respect the right "to be accepted as Irish."

(c) Paragraph 5 of the Section of the Agreement on "Rights , Safeguards and Equality of Opportunity" provides that:

The flying of the flag to which one community in Northern Ireland identifies, but another does not, is not sensitive. Nor does it promote mutual respect rather than division. The above principles need to be fully addressed and implemented in determining this matter.

9. The SDLP has approached this issue with sensitivity, sought a consensus on the issue and not rushed precipitously into declining to fly the Union flag on government buildings on designated days. It is submitted that the approach adopted by the SDLP on this issue adds authority to the position proposed herein by the party. It should also be recorded that it is a matter of disappointment that it was decided, during suspension of the institutions, that the Secretary of State acquired the power to regulate the flying of flags. This was compounded by the fact that this was a matter which by right fell to the devolved administration - and it alone - to determine. This approach by the Secretary of State has not created the environment or, arguably, the will on the part of some to work to resolve the issue.

10. There are four options for addressing this issue, which it has been argued are consistent with the Agreements:

(a) flying of no flags on government buildings;
(b) flying both the Union flag and the Irish Tricolour;
(c) creating new consensual symbols with which both unionists and nationalists could identify;
(d) acknowledge that the principles of the Agreements may enable consideration of the display of the Union flag and Irish Tricolour together and, where appropriate, display of the Union flag or Irish Tricolour only on restricted days and on restricted buildings by agreement.

11. The SDLP is prepared to consider each of these options. It is recognised that the display of both flags would at this time be viewed by unionists as not sensitive to their concerns and that, also, in the current circumstances, it may be difficult to secure agreement on consensual symbols. However, the SDLP would wish to explore further these options in order to satisfactorily resolve this issue.

12. The SDLP remains committed to develop this issue in a creative and constructive manner. Therefore, and elaborating on 10(d) above, it has been argued that it is not necessarily valid that the same outcome is achieved on all aspects of expression of different identities in Northern Ireland. Indeed, it is argued by some that parity of esteem could allow for different, as well as the same circumstances, to apply in relation to issues of identity. In this context, a situation could arise where there would be different, as well as same circumstances, applying to the display of the Union flag and to the Irish Tricolour. If different as well as same circumstances, could apply to the display of flags, it would then be a matter of agreeing when and where they could be displayed, either together or separately, ensuring that there is no unreasonable differential between the occasions when , for example, the Union flag and the Irish Tricolour would be displayed separately. It would help inform this issue, if this option was to be explored further.

However, an environment to consider all options can best be developed if there is a determination arising from the present consultation consistent with paragraph 8(a), (b) and (c) respectively of this submission.

13. At the present, however, the SDLP favours, as an interim step, in the current environment and to act consistent with the Agreements the option of flying no flags. This is not a resolution to the issue. It reflects realities without closing down opportunities, treats both communities in Northern Ireland equally and is consistent, not only with the principle of just and equal treatment for the identity, ethos and aspirations of both communities, but also with the right of people in Northern Ireland to identify themselves and be accepted as Irish or British or both. The SDLP believes that this is the preferred method to proceed. However, the SDLP repeats that this is not a resolution of this issue and will continue to seek to explore methods of advancing the other options and addressing concerns.

14. At this time, it appears government will propose that the Union flag only should be displayed on government buildings. As previously outlined, the SDLP is not in favour of this proposal. If government is determined to pursue this issue, the SDLP believes that the Union flag should not be displayed on Departmental buildings, that display should be on a restricted number of other government buildings and that display should be on a restricted number of days.

15. In an attempt to address the issue in a constructive and creative way and as an example of the thinking which informs paragraph 10(d), the SDLP submits that it is appropriate that both the Union flag and Irish Tricolour should be displayed at appropriate British-Irish and North-South meetings respectively arising under the Good Friday Agreement.

The SDLP believes that to do so:

• is consistent with the principles outlined in the Agreements
• is a sensitive expression of identity in a way that should not cause undue anxiety to the community
• enables this issue to be developed in a constructive manner and create understanding and respectful relations.

The SDLP therefore proposes the display of both the Union flag and Irish Tricolour on buildings during the conduct of meetings of:

• the British-Irish Council
• the North-South Ministerial Council
• North-South Bodies
• and other meetings of the British-Irish and North-South institutions established under the Agreements.

16. The SDLP submits that the issue of display of flags should be kept under periodic review. Review is consistent with and a requirement of the Good Friday Agreement. Moreover, a more consensual approach to the display of flags on government buildings may emerge in time and periodic review of this issue may create some impetus in this regard. In addition, the SDLP submits that the proposed regulations should be time-limited, being for one year only in the first instance.

17. The SDLP notes that there have also been significant developments in terms of culture awareness and mutual tolerance in recent years. There are many images and headlines that suggest otherwise, but, in general, this assertion holds. It should be recognised that, as a society, we have not developed to the point of mutual acceptance or toleration of the flags, emblems and symbols that reflect and represent our different identities. The SDLP believes that our society will reach that level of awareness whereby respective flags, symbols and emblems will be honoured or that common flags , symbols and emblems will be agreed.

18. To do so requires an environment whereby the Agreements are and are seen to be upheld; that its principles are respected; that difficult judgements are made consistent with the intention of the Agreements; that each citizen and community knows that that which good government, the Agreements and a stable community requires will be implemented.

The fact that this issue should ever arise is indicative of the folly of the Belfast Agreement. It is by virtue of the unaccountable authority vested in Ministers that this situation has been allowed to occur. The Union Flag is the flag of the United Kingdom and should be accorded its place on Government Buildings.

The proposed regulations fail to fully respect the constitutional position of Northern Ireland within the United Kingdom. They prohibit the flying of the Union Flag on all but the specified days and leave various issues in the hands of unaccountable Government Ministers.

Below are listed a series of propositions, which are submitted for the purpose of consideration by the Assembly Committee with a view to being incorporated into the regulations.

• The Union Flag is a constitutional symbol recognised internationally. As an integral part of the United Kingdom the Union Flag is therefore the constitutional symbol for Northern Ireland and should be accorded no less standing and acknowledgement than in any other part of the Kingdom.
• The Union Flag shall be flown on all Government Buildings on the specified days.
• The specified days will be those days on which it was the practice to fly the Union Flag in the period of the 12 months ending with 30th November 1999.
• No other State's flag, except with the express permission of the Assembly, shall be flown on Government Buildings.
• The Union Flag shall be flown in the manner and style which was the practice in the period of the 12 months ending with 30th November.
• Where the flag was not previously flown over a Government Building the flag should be flown in the manner it is flown at other Government Buildings.
• The premises officer shall be appointed to ensure the flag is flown in the manner and on the days required. This responsibility shall be a duty of his service.
• The European Flag shall not be flown, except with the express permission of the Assembly.
• There shall be no prohibition on the flying of the Union Flag on Government Buildings at any time.
• The Union Flag shall be flown at Parliament Buildings, Stormont on all plenary sitting days of the Assembly.
• The Union Flag shall be flown at half mast on all Government Buildings following the death of a member of the Royal Family, or of a serving or former Prime Minister of the United Kingdom on such days as notified in the Belfast Gazette.

The recent announcement by the British Secretary of State of his intention to take upon himself - through an undemocratic 'Order in Council' - the role of arbiter in the dispute over the flying of flags is not acceptable. In no circumstance can Peter Mandelson put himself forward as a neutral referee in this case.

Mr Mandelson's announced intention is to create a mechanism that would in effect restrict the exercise of authority by Ministers on this matter subsequent to their appointment. This is very obviously bad faith on the part of the British government.

The British flag, whatever political allegiance to Britain it may convey, has been used by unionism as a symbol of political dominance and a tool of sectarian coat-trailing.

All of this was best summed up by the late, eminent human rights lawyer P J McGrory, who wrote about life for nationalists in the northern state. He wrote:

The norms applied to the flying of flags at government buildings in Britain are not appropriate to the north of Ireland.

The north of Ireland is not "as British as Finchley".

The unique nature of the Good Friday agreement and the circumstances and conditions which gave rise to its negotiations are testimony to that fact.

The Good Friday negotiations were about tackling all of this and more.

The principles and positions agreed between the parties and the two governments at Castle Buildings at Easter 1998 were about mapping out a framework which would ensure equality and respect from and for all citizens, as well as defending and protecting human rights and civil liberties.

Any approach to the issue of flags should be set firmly within the context of the Good Friday agreement.

Paragraph 1 of the Good Friday agreement's Declaration of Support reads:

With regard to the issue of symbols and emblems the agreement also embraced the sense of a new beginning.

Regrettably no formal monitoring arrangement was agreed or made.

The upshot of this was the Order in Council - Flags Order 2000, which gives the British secretary of state the powers to make regulations for "the flying of flags at Government Buildings".

The Secretary of State's draft Regulation also contradicts the Fair Employment Code of Practice (5.2.2), as applied in the 1995 case of Brennan v Short Brothers PLC, where the Tribunal stated ".employees do not have to tolerate reminders or suggestions that particular religious beliefs or political opinions have a special place in the ir workplace.It has to be emphasised as often as is necessary that anything which identifies community allegiance needs justification in the workplace."

This is reinforced by section 75(1) of the Northern Ireland Act which imposes a statutory duty on all public bodies to promote equality of opportunity and good relations.

The agreement should be the philosophy that informs any decisions taken on the issue of flags.

It is a contract between enemies and opponents who hold to different political allegiances. Parity of esteem, equality, inclusivity and the promotion of mutual respect should underpin future decisions on the flying of flags at government and public buildings.

Therefore, where British cultural symbols are involved in public life, equivalent Irish cultural and political symbols should be given equal prominence.

If agreement or consensus cannot be found on this, then a reasonable alternative, which fits the required criteria, is to suspend the flying of flags until such agreement or consensus can be found.

In summary, the position on the flying of flags at government buildings and public buildings should be an equality scenario, or a neutrality scenario. The Secretary of State's draft Regulations do not address this in any constructive way and should be rejected.

What is clearly required is a new beginning on this issue.

Any proposal for the flying of flags in Northern Ireland should take account of differing views within Northern Ireland society, as well as precedent in other parts of the UK. The following points appear relevant:

• The Good Friday Agreement recognises that Northern Ireland is a deeply divided society, that mutual respect should guide this society's approach to the use of symbols and that symbols are not to be used to stress dominance and exclusion. The Agreement also entrenches the Principle of Consent: that Northern Ireland remains a part of the UK unless and until its people decide otherwise.
• The Scottish Parliament flies both the Union Flag and the Saltire, while the National Assembly for Wales flies the Union Flag, the Welsh Flag and the European Flag every day of the year.
• There is, as yet, no agreed symbol for Northern Ireland comparable to the red dragon or the Saltire. The flag of the former government of Northern Ireland is not widely acceptable. However, the adoption of the flax flowers by the Assembly is a healthy precedent and attempts should continue to find a new symbol for the region which could gain broad acceptability.
• Within Northern Ireland, the Irish tricolour is not comparable to the Scottish or Welsh flags. Its regular use alongside the Union Flag would have two negative effects: first, it would imply that there was joint sovereignty and second, it would suggest that the Union Flag represented one section of the community while the tricolour represented another, entrenching divisions and harming the prospect of greater pluralism.

Alliance believes that any Regulations for flying flags on government buildings should:

• recognise the Principle of Consent;
• minimise feelings of either dominance or exclusion; and
• promote pluralism and those symbols which unite the community.

Alliance therefore broadly welcomes the Draft Regulations referred to the Assembly by the Secretary of State on 8 September. The following constitutes an initial response:

Regulation 2:

Provision could be made for the flying of St Patrick's Flag on 17 March, on the same basis as the European Flag on 9 May. Suggested wording:

2 (5) Where a government building specified in Part I of the Schedule has more than one flag pole, St Patrick's Flag shall be flown in addition to the Union Flag on St Patrick's Day.

Amending Regulation 2 would also affect 5 (1) (a).

Amend to read "where regulation 2(4), 2(5) or 3(2) .."

Regulation7:

The inclusion of a reference to Regulation 3 (1) appears unnecessary and divisive.

Regulation 8:

The inclusion of a reference to Regulation 3 (2) appears unnecessary and divisive, but 2(5) should be included.

Schedule Part II:

The removal of 12th July is welcome as a means of reducing feelings of exclusion.

The United Unionist Group in the Northern Ireland Assembly was opposed to the Belfast Agreement, and one of its principal concerns was the threat to the constitutional position of Northern Ireland within the United Kingdom. The vast majority of citizens in Northern Ireland wish to maintain that link and one of the most visible and outward expressions of their position is the flying of the Union Flag.

We are told that the Belfast Agreement recognises the right of the majority of people in Northern Ireland to retain the link with the United Kingdom on the basis of the consent principle. The mere fact that the flying of the Union Flag in Northern Ireland is an issue would imply that there are those who have signed up to the Belfast Agreement who do not recognise the Principle of Consent, and so, when the Union Flag ceases to fly over the Government Buildings, it sends out dangerous signals to the Unionist community.

In Wales and Scotland there is no difficulty in the flying of the Union Flag over their National Assembly and Parliament Buildings, yet powers have been devolved in exactly the same way.

While recognising that the Welsh and Scottish flags fly alongside the Union Flag, the Irish Tricolour, as the flag of a foreign nation, cannot be seen in a comparable way. We would also add that we fully acknowledge that the Union Flag and the Irish Tricolour have been flown and used in an offensive way.

Nevertheless, there is real concern within the Protestant and Unionist community that the issue necessitates any kind of discussion - the flying of the national flag should never merit negotiation at all. In a divided society like Northern Ireland, the symposium of the issue serves to underline the lack of confidence in a process that is increasingly perceived in our community as a course of action aimed at eroding the rights of the majority. The importance and symbolism in the flying of the Union Flag cannot be over emphasised.

Many Unionists already believe they are alienated and feel like 'strangers in our own land'. In a democracy there should be equal rights for all, but the rights and wishes of the majority cannot, and must not, continue to be eroded or destroyed in order to satisfy the needs of a vociferous minority.

This matter cannot be seen as an equality issue, neither can there be any argument about neutrality. These are bogus assertions which would ultimately, if given any credence, result in discrimination against the wishes of the majority.

There is a line of reasoning that the Union Flag and the Irish Tricolour are expressions of two cultures, however this argument should be separated from the constitutional one. In pure constitutional terms, if the consent principle in the Belfast Agreement is to mean anything, Northern Ireland is part of the United Kingdom and the flag of the UK is the Union Flag.

While we have no difficulty with the Union Flag flying on St. Patrick's day, it should be noted that one section of the community has 'hijacked' this day to promote its own culture and could be seen to contrast with the exclusion of the flying of the Union Flag on the 12th July.

We also believe that the Union Flag should be flown on the 1st July on the anniversary of the Battle of the Somme when soldiers from all over Ireland, both Protestant and Roman Catholic gave their lives in the Great War.

It is with disappointment that we note that Parliament Buildings is omitted from the list of specified Government Buildings, and in accordance with the Scottish and Welsh Assemblies, believe that the Union Flag should also be flown at Stormont and preferably on all sitting days.

It is also a matter of some concern that whilst the regulations stipulate occasions when the Union Flag 'shall be flown', we have in the past experienced an absence of the Union Flag on designated days at certain government buildings. Nowhere in the regulations is there provision to deal with such an incident or specification as to how the offending Minister shall be reprimanded should his / her department not fly the flag in accordance with a directive from the Minister personally. It is imperative that this omission is addressed and some kind of sanction imposed..

The definition of 'Government Building' should be rectified to include Parliament Buildings and indeed any building where a Minister holds office. The term Government Building should be inclusive of Local Government Offices and other Public Authorities, for example Education and Library Boards.

We would recommend that no other flag, aside from the Royal Standard in the event of a visit by Her Majesty the Queen, should be flown at any government building except by the prior approval of the Northern Ireland Assembly.

It is our belief that while the Union Flag should certainly be flown at least on all designated days, there should be no prohibition to its flying on Government Buildings at any time.

The NI Women's Coalition recognises that the question of culture and symbols in the Northern Ireland context is a difficult and highly emotive issue. We acknowledge at the outset that the debate over flags is not, in essence, about flags 'per se'. Rather it is a debate about the visible representation of who we are as a people and how our differing political and cultural allegiances are represented at an official level.

The Coalition understands that for many unionists in Northern Ireland, the past, and how it was represented symbolically, was very much about the unionist identity. We also understand the concern that many unionists have about the future and how it will be represented symbolically. We believe that unionists, nationalists and 'others', should be assured that the future, and how it will be represented symbolically, should be about 'us' and any new shared future will require new shared symbols - symbols that will be created and agreed together.

We recognise, however, that this is a long-term aspiration that the Good Friday Agreement signposts. Given the current political climate and reflecting on the fears that many have around this issue, the Coalition believes that it is not yet the time to have this debate. It is not useful to heighten tension in the communities which, we believe, this debate has the potential to do and we know that heightened tension had the capacity to spill over into public disorder.

The Good Friday Agreement, in affirming and assuring the status of Northern Ireland within the United Kingdom, also established institutions, in particular the Assembly, whereby power is shared. There is no doubt that Northern Ireland is very different from other parts of the UK and this difference should be reflected in the flags debate. The Agreement explicitly recognises that

"..the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions and shall be founded on the principles of full respect for, and equality of, civil, political, social and cultural rights, of freedom from discrimination for all citizens, and parity of esteem and of just and equal treatment for the identity, ethos and aspirations of both communities" and,

In other words, the Agreement clearly establishes the constitutional status of Northern Ireland, but also recognises and allows the different political and allegiances to be represented within that.

The Coalition believes that the debate we must embark on together is how to square this circle in terms of visible symbols. We believe that the four-week period allocated to the Ad Hoc Committee on Flags is too short to enable us to address these issues in the detail they deserve. The process by which we do this is important because it allows us to take time to listen and learn from a range of expertise and experience in order to achieve an acceptable outcome in the longer term.

In light of the above, the NIWC recommends that

• The draft regulations should be accepted as a holding measure for a twelve-month period only
• The timeframe of the Flags Committee of the Assembly be extended to match this twelve-month period
• The remit of the Committee should be widened to permit gathering of evidence from internal and external sources and consultations on the variety of options available to include
• Two Flags (Union Flag and Tricolour)
• No flags (moratorium on flags)
• A new flag (reflecting the governance of the new dispensation)
• Any combination of these options

While the Coalition has recommended the acceptance of the draft regulations as a holding position, we believe that perpetuating the status quo (i.e. flying one flag) is not a long-term option. Additionally we believe there would be merit in the following:

• Undertaking an examination of the number and purpose of the 'Official Days' on which flags are flown (examples from Scotland and Wales).
• Exploring the ramifications of official flag flying under the Human Rights Act
• Examining what constitutes a public building for flag flying purposes and what rights to consultation the users of any such building might have.

The Progressive Unionist Party's view of the flag's issue cannot be divorced from their vision for the future based upon the GFA and the parameters contained therein.

The healing process, which the GFA was meant to be, is seriously hampered by continued resurrection of divisive issues - especially if those issues are hyped to ones own constituency as make or break.

Northern Ireland is an integral part of the United Kingdom as per the will of the people. There is no requirement to all day every day ensure that that glaring fact is appreciated. However, obviously, the fact remains.

Those who created the GFA acknowledge

There can be little doubt that the flag of a nation is indeed a constitutional symbol. Not only is the flag of the nation a national constitutional symbol, it is also an internationally recognised constitutional symbol. The flag of a nation state identifies its people and territory.

The Nationalists have accepted the will of the people of Northern Ireland, and subsequent to that, also the territorial integrity of the United Kingdom. At least, that's according to their acceptance of the GFA!

It is the contention of this party that no committee was required to deal with the flag issue.

We believe that the Union Flag should be flown on the same designated days as the rest of the United Kingdom.

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

1st January New Year's Day
Easter Sunday
12th July Battle of the Boyne Anniversary
25th December Christmas Day

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

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:

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 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.

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.

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.

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 consistenc^y, although there are national days in Wales and Scotland, and London symbolizes the opening and proroguing of parliament.

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 Clause^s (which is unlikely to be considered by the courts), prepared for MPs and peers, listed as examples of excepted matter^s 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.

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.

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.

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.

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 199^9), 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.

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^.

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 199^9, 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 neutralis^m; 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 Agreemen^t).

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 complet^e?;
• 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 Britai^n; 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).

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

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 12^{th 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.

Chairman
Ulster Young Unionist Council
Newry and Armagh Branch
3 Mallview Terrace
Armagh
BT61 9AN

TOP

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.

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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