THE
FLAGS WRANGLE
From BELFAST TELEGRAPH June 15th, 2000
A number of points escaped comment:
1. The Secretary of State has not made the order that the Order shall come
into operation;
2. He has to refer any draft regulations to the Assembly;
3. The regulations have to be approved by each House of Parliament;
4. Lord Falconer of Thoroton (in a newsworthy comment) put a different connotation
on the regulations in the House of Lords: 'Is it necessarily helpful to
require the flag to fly from every Government building ?';
5. There is an argument that the Order - not primary legislation - is ultra
vires the NIA 1998, based on the inability of the Assembly to transfer a
devolved power other than with cross-community support (this is another
possible devolution issue for the House of Lords).
When it comes to the law on flags, it is important to distinguish people
and state. In the United Kingdom, the national flag may be flown on land
(not sea) by British citizens. The Flags and Emblems (Display) Act (Northern
Ireland) 1954 prohibited the flying of any emblem (mainly the Irish Tricolour)
that might occasion a breach of the peace.
This was repealed in 1987 by Westminster, as a result of Irish pressure
through the inter-governmental conference. From that point, the Tricolour
joined the Union flag as legal rival sectarian symbols - a popular marking
of communal segregation, along with wall murals and painted kerbstones.
The Union flag and Tricolour are also party flags. It is the logic of the
streets that Sinn Féin has now imported into public office - its attempt
to replace United Kingdom sovereignty with a united Ireland being reflected,
somewhat inconsistently, in invocations of the principles of neutralism
(no flags) and parity of esteem (if the Union flag, then the Tricolour also).
What about the Tricolour on its own?
The Belfast Agreement is invariably cited in justification. This treaty,
which binds the United Kingdom and Irish states in international law, says
nothing of the sort about the national flag of the state. The British-Irish
Agreement indicates Northern Ireland as being under one sovereignty. And
the Strand Three sub-section dealing with the British-Irish inter-governmental
conference states 'There will be no derogation from the sovereignty of either
Government (sic).' The only possible relevant provision is the inconclusive
Economic, Social and Cultural Issues subsection.
This does not bite legally on either state, 'participants' referring only
to the Northern Ireland political parties. It is about the Assembly, where
there has been 'sensitivity' in the use of, for example, the blue linen
plant motif. It is also about politics. There is an argument that the phrase
'symbols and emblems' (used twice) does not even include the national flag:
between 1954 and 1987, in Northern Ireland law, an emblem was described
as including 'a flag of any kind other than the Union flag'. The origin
of Sinn Féin's opportunism lies in the report of the Independent Commission
on Policing.
There, Chris Patten, having declined to disband the RUC, engaged in compensating
symbolic liquidationism: the abolition of the name; replacement of the force's
badge and symbols; the end of the flying of the Union flag from police buildings
- 'free from association with the British or Irish states'. The Patten report
is not part of the Belfast Agreement but it explains why Sinn Féin, back
in office with inspection replacing decommissioning, is gunning for the
Union flag and (with nationalists) is trying to uphold Patten against the
Secretary of State's plan announced to Parliament on January 19, 2000. Sinn
Féin returned to office on Tuesday, May 30, 2000.
Two days later, David Trimble talked about the DUP's post-Waterfront opportunism
as having legal and political ramifications. The following day, the Sinn
Féin ministers refused to fly the Union flag. There were no immediate legal
ramifications, either from the First Minister and deputy First Minister,
or the Secretary of State.
There is one more flag day in June - this Saturday. There follow three in
August, and four in November. The expectation must be - in the absence of
the First Minister and Deputy First Minister acting jointly (and the political
parties agreeing to leave national flags alone) - that republicanism's cultural
war will continue. |
