THE
FLAGS WRANGLE
From BELFAST TELEGRAPH June 15th, 2000
By Austen Morgan
IMAGINE: the indeterminate British minority in the Republic chooses to fly
the Union flag; it then demands - because of imperatives of identity - that
its flag flies on Government buildings alongside the Irish Tricolour, contrary
to the constitution. That's analogous to the provocative - and possibly
illegal - stand taken by the two Sinn Féin (but not SDLP) Ministers in Northern
Ireland.
In United Kingdom law, the Union flag symbolises the state. It is part of
what lawyers call the royal prerogative.
The Act of Union of 1800 linked the sovereign's responsibility for 'royal
stile and titles' with 'the ensigns armorial, flags and banners thereof'.
And a royal proclamation of January 1, 1801 specified that the combined
crosses of Saints Andrew, Patrick and George should signify the new United
Kingdom.
Official flag days - there are 20 this year - are determined by the sovereign
(not necessarily all on the advice of ministers): a royal command is sent
to the Department of Culture, Media and Sports, which notifies other departments
including the Northern Ireland Office.
The Northern Ireland Act 1998, which deals with excepted matters under devolution,
lists first 'The Crown, including the succession to the Crown '. This remains
the responsibility of London. It then goes on - the Parliamentary draftsman
copying 1973 (but not 1920) legislation - to exempt 'functions (as regards
the crown) in relation to Northern Ireland of any Minister of the Crown'.
It is unclear whether Parliament intended to deprive the Secretary of State
of any responsibility for flying the national flag on Government buildings
in Northern Ireland. Nothing was said by ministers in 1998 (when it was
known Sinn Féin would be in the executive).
And the Notes on Clauses prepared for MPs and peers includes as excepted
matters: 'Royal Styles and titles in the UK; the Royal Arms and royal standards'.
The Scotland Act 1998, in contrast, makes clear that ministers in Edinburgh
have some responsibility for the Union flag. The NIA 1998 states, as respects
transferred matters, that the royal prerogative shall be exercisable by
Northern Ireland Ministers or departments.
Bairbre de Brún and Martin McGuinness, in refusing to fly the Union flag,
purport to exercise the royal prerogative 'on Her Majesty's behalf' (and
seek to fly the Irish Tricolour)! This view - that the Union flag is a transferred
matter - is, I submit, wrong. It was taken seemingly by the two Ministers'
civil service advisers last December.
But why did the Northern Ireland Civil Service not argue it was a matter
for the Northern Ireland departments? The view also appears to have been
accepted by the NIO (seemingly on the basis of past administrative practice
by previous Stormont governments).
The only legal resolution of this devolution issue, under the NIA 1998,
is proceedings instituted by the attorney general, Lord Williams of Mostyn,
before ideally the judicial committee of the House of Lords. Their lordships
would be asked to decide: what responsibility did the Secretary of State
have?; is this transferred under the NIA 1998?; and do Northern Ireland
Ministers have the power not to fly the union flag?
The First Minister and Deputy First Minister acting jointly could also do
this. The Sinn Féin ministers would be prohibited - with suitable sanctions
- from exercising the function in the manner proposed (i.e. no Union flag)
while the issue was being decided legally.
While David Trimble was fighting to restore the Executive, the Secretary
of State put the Flags (Northern Ireland) Order 2000 through Parliament
on May 16, 2000. This empowers Peter Mandelson to 'make regulations regulating
the flying of flags at Government buildings'. |
