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 accorda