Image shows the Stormont Parliamentary Building in Belfast with Union Jack flags being flown from the building.

On 3 November 2020, the House of Lords is due to debate the draft Flags (Northern Ireland) (Amendment) (No. 2) Regulations 2020. These regulations were laid under the draft affirmative procedure. This means they must be approved by both Houses before they can be brought into force.

Overview

In Northern Ireland, flag flying from government buildings is regulated by secondary legislation. In the rest of the UK, there are no legislative requirements on flag flying. Instead, the Department for Culture, Media and Sport (DCMS) annually issues a list of designated flag flying days.

When the devolved government in Northern Ireland was restored in January 2020, the agreement between the British and Irish Governments, entitled New Decade, New Approach (NDNA), contained a commitment to bring the list of designated flag flying days in Northern Ireland into line with those for the rest of the United Kingdom. These regulations implement this commitment.

Purpose and regulatory background

The instrument that provides the Secretary of State for Northern Ireland the power to make regulations on flag flying is the Flags (Northern Ireland) Order 2000. Government buildings are defined as those “wholly or mainly occupied by members of the Northern Ireland civil service and court-houses”.

The Flags Regulations (Northern Ireland) 2000, made under the 2000 order, specify that the Union flag must be flown at certain buildings on certain days, as set out in a schedule. In certain circumstances, the regulations also allow other flags to be flown; for example, the national flag of a visiting head of state.

Since coming into force, the Flags Regulations (Northern Ireland) 2000 have been amended on a number of occasions, often to remove the birthdays of deceased members of the royal family as flying days. Most recently, they were updated to remove Europe Day (9 May) as a flag flying day; this instrument was debated by the House of Lords on 25 March 2019.

The draft Flags (Northern Ireland) (Amendment) (No. 2) Regulations 2020 would further amend the 2000 regulations by:

  • adding the birthdays of the Duke and Duchess of Cambridge and the Duchess of Cornwall (21 June, 9 January and 17 July respectively) to the list of flying days; and
  • removing Churchill House, Belfast (now demolished) from the list of specified buildings, and adding Clare House and Causeway Exchange in Belfast, which have become the headquarters of Northern Ireland government departments.

Northern Ireland Assembly report

When the Government proposes to make regulations under the Flags (Northern Ireland) Order 2000, a draft must be laid before the Northern Ireland Assembly. The assembly must report its views to the Secretary of State. The Government must then consider this report, having regard to the Belfast Agreement, before laying the final draft regulations in the UK Parliament.

The Northern Ireland Assembly considered a draft of the proposed regulations on 14 September 2020. It submitted a report to the Secretary of State for Northern Ireland, Brandon Lewis, on the same day. The report consisted of the record of the debate on the draft.

The views expressed in the debate included:

  • For the Democratic Unionist Party, Keith Buchanan welcomed the additional days and buildings. However, he argued that the use of legislation for this purpose was “unwieldy and not fit for purpose”, and suggested “fundamental reform”.
  • For Sinn Féin, Emma Sheerin said that there should be “parity of esteem for British and Irish identities”, including in relation to flags and emblems. She argued that it was “bizarre” and “absurd” for the UK Government to be prioritising this issue above others in the NDNA agreement.
  • For the Social Democratic and Labour Party, Colin McGrath said that while the issue was not important to his party, he was happy to support the proposals in the context of implementing the NDNA. He also called for progress on other elements of the NDNA, such as health service reform.
  • For the Alliance Party, Kellie Armstrong suggested that the assembly accepted the legislation and moved on to other policy matters.
  • Summing up the debate, Robbie Butler (Ulster Unionist Party) noted the sensitivity around debates relating to flags in Northern Ireland, saying they have been “a cause of much angst and many sad debates”. He supported the proposal.

The wording of the statutory instrument has not changed from that in the proposed draft following the assembly’s report.

Parliamentary scrutiny

The regulations have been considered by the House of Lords Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments, with neither raising any concerns.

The House of Commons debated the regulations in a delegated legislation committee on 21 October 2020. The Minister of State for Northern Ireland, Robin Walker, said they were put forward in the spirit of community support and “accommodation”. He also confirmed that he was satisfied the regulations complied with the Belfast agreement, “by reflecting Northern Ireland’s constitutional position as part of the United Kingdom in a balanced and proportionate manner”.

The Shadow Minister for Northern Ireland, Karin Smyth, said that the Labour Party supported the regulations as part of NDNA. She called for the Government to outline the “sequencing” of other commitments in the agreement.

A date for formal approval in the House of Commons has not yet been scheduled.

Legality of the 2000 regulations

In 2019, the Northern Ireland Court of Appeal rejected an application that the Flags Regulations (Northern Ireland) 2000 were discriminatory under the Belfast Agreement, and were therefore unlawful. The appellant, Helen McMahon, said that she “recognised the Irish National flag as her national flag and that she expected it should be on display in the exact terms upon which the Union flag is displayed”.

The court said it was satisfied that the Secretary of State did have regard to the Belfast Agreement in making the 2000 Regulations, and that flying the Union Flag “should be regarded as a pragmatic reflection of the current reality of the constitutional position”.

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Image by Dom0803 on Wikimedia.