Flags: was our Bill of Rights to deal with this?

This week’s publication of the UK Bill of Rights Commission advice was a timely reminder of the absence of our own Bill of Rights for Northern Ireland, the UK Commission being clear their work should no longer be used to delay or interfere in our process mandated by the Belfast/Good Friday Agreement.  Back locally flags continue to dominate the airwaves. The Human Rights Commission does have a briefing paper on human rights and flag flying which sets out the limited engagement of human rights standards with issues around public authority flag flying. However, it is worth reflecting that the Northern Ireland Bill of Rights was meant to at least provide a more substantive framework within which such issues could be addressed. One of the rights the Human Rights Commission was to specifically advise on was “the formulation of a general obligation on government and public bodies fully to respect, on the basis of equality of treatment, the identity and ethos of both communities in Northern Ireland”. The Human Rights Commission in its 2008 advice to Government recommended the incorporation of such a right in the Bill of Rights, adding a limitation clause in recognition of the rights of minority ethnic groups beyond the two communities.

The origins of such an ‘equality of treatment’ provision on national identity appear to be in a review of the equality law framework for tackling religious and political discrimination in 1990 by the Commissions predecessor body, the Standing Advisory Commission on Human Rights (SACHR). This Commission recommended a duty be placed on public authorities “to ensure that their functions are carried out in such a way to ensure that members of both main sections of the community are granted equality of treatment and esteem.” SACHR also singled out the treatment of the Irish language as a ‘touchstone’ measure of whether the existence of two traditions was being treated seriously.

In 1995 the Joint Declaration between the British and Irish Governments committed to principles that institutions should afford both communities satisfactory ‘political and symbolic expression’ and that future arrangements “…should respect the full and equal legitimacy and worth of the identity, sense of allegiance, aspiration and ethos of both the unionist and nationalist communities.” The controversial NIO response to the NIHRC 2008 Bill of Rights advice is more ambiguous. On the one hand the incorporation of an ‘equality of treatment for identity and ethos’ provision is one of the few rights Government then appeared to then be willing to consider in a Bill of Rights (see paragraphs 6.11-2 of 2009 consultation paper). On the other there are also indications that the NIO by then thought the separate general ‘equality of opportunity’ duties on public authorities had gone far enough.

The implications of the Belfast/Good Friday Agreement per se for flag flying were contested as indicated in debates on the flags regulations. Nationalists emphasised the Agreement’s provisions for equality of treatment and the ‘rigorous impartiality’ of the state arguing this could provide for no flags or two flags to represent both national identities (as in Scotland or Catalonia). Unionists emphasised the Agreement kept Northern Ireland within the UK and hence argued only the Union Flag should be flown to indicate the constitutional position of Northern Ireland. The Flags (Northern Ireland) Order 2000 and these flags regulations had been brought in to regulate flag flying on government departments (and did not cover local government). There was no preceding legal framework for this rather the Union Flag had been flown all year by custom and practice. The regulations, which were brought when Sinn Féin ministers declined to do so, obliged the flying of the Union Flag but limited it to 15 designated days. A Judicial Review decided that the Regulations were compatible with the Agreement, in part as Governments stated intention related to ‘achieving mutual respect for differing traditions by limiting the use of the flag.’

For those seeking a framework to resolve the present issues it may be worth recalling that a binding framework, based on an ‘equality of treatment’ duty on public authorities, had been intended within the long overdue the NI Bill of Rights. This does not necessarily mean a ‘two or no flags’ approach given there are other ways of representing a pluralistic approach over national identity. It is also worth noting in the context of shifting demographics the Bill of Rights provision was also framed to provide a long term framework regardless of which of the ‘two main communities’ is in the minority in the overall jurisdiction or in local government districts. The Bill of Rights provided for by the Agreement was never there to deal with issues in the abstract but rather to provide a real framework for present and future. In general far from everything being ‘sorted’ the unimplemented or regressed elements of the peace settlement, from the socioeconomic and cultural to dealing with the past, are not going to go away and unless addressed crisis will continue to arise periodically.