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Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2019

Volume 796: debated on Monday 25 March 2019

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2019.

Relevant document: 20th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B).

My Lords, the purpose of this instrument is to remove the legal requirement for Northern Ireland government buildings and court buildings to observe Europe Day—9 May—as a designated flag-flying day after the UK has left the European Union.

Flag-flying from government buildings and court buildings in Northern Ireland is regulated by the Flags Regulations (Northern Ireland) 2000. These regulations provide that on certain designated days the union flag—and, in certain circumstances, other flags—may be flown on government buildings. For the purposes of these regulations, a Northern Ireland government building is defined as a building that is wholly or mainly occupied by members of the Northern Ireland Civil Service. In 2002, the flag-flying requirements in the 2000 regulations were extended to court buildings in Northern Ireland.

The instrument is being made under Section 8(1) of the European Union (Withdrawal) Act 2018, which makes provisions to deal with arrangements no longer appropriate after the UK leaves the EU. It is worth noting that Europe Day will cease to be a designated flag-flying day across England, Scotland and Wales following the UK’s exit from the EU. The Department for Digital, Culture, Media and Sport has already amended its guidance to that effect.

When this instrument was first laid, the Secondary Legislation Scrutiny Committee recommended that it should be upgraded to the “made affirmative” procedure so that it could be debated carefully. This is why we are here this evening. I also stress that the power to make these amending regulations under the EU withdrawal Act does not come into force until after exit day. Therefore, subject to the will of Parliament, these regulations will not be made until after exit day has passed. There is every possibility that Europe Day will be marked this year. I beg to move.

My Lords, the Minister may be disappointed and surprised to learn that we do not support this statutory instrument. We think it undesirable and unnecessary. None of us can deny that flags in Northern Ireland are a very sensitive issue. Our sister party in Northern Ireland suffered the consequences of the dispute in Belfast in 2012 when its offices were burned out.

This is about a specific flag—the Europe flag—and a specific day. I am very concerned that DCMS has issued guidance—which I presume is not legally enforceable—that, if we leave the European Union, we should no longer fly the Europe flag on Europe Day. This seems a total denial of where this flag came from and what it is supposed to celebrate, which is not the European Union. The flag is in fact much older than the European Union, or even the Common Market: it was, in fact, created in 1955 as the flag of the Council of Europe. It remains the flag of the Council of Europe and the UK will continue to be a member of the Council—for ever, I hope—although the Prime Minister gives the impression that she would like to leave that organisation as well. I would absolutely deplore, as that was one organisation of which we were a founder member.

It is also interesting to note, as a matter of design, that the design of the flag—12 stars against a sky background —represents symbols of perfection. It represents the 12 apostles, the 12 tribes of Israel, the 12 labours of Hercules and the 12 months of the year. It is a symbol of peace in Europe and Europe Day represents peace in Europe, originally foreshadowed by the Schuman declaration. I am pleased that the Minister said that, at least this year, the European flag may continue to fly; at least I think that is what he said, because this year is the 70th anniversary of the foundation of the Council of Europe and it would seem very regrettable then to remove the flag from public buildings in Northern Ireland or anywhere else in the United Kingdom.

I put two questions to the Minister. There is no need whatever for this to be passed, is there not? I am minded—indeed, I intend—to table a Motion to the effect that this statutory instrument should be abandoned and that any such decision as to which flags are flown should be left to the relevant authorities in Northern Ireland as and when they are able to do so. I would also like clarification of what the DCMS guidance means for public buildings in the rest of the United Kingdom where, it seems to me, the Europe flag should fly on Europe Day and other organisations should be allowed to make their own decisions. The only minor detail is whether you fly it on 5 May or 9 May. The European Union chooses to fly it on 9 May, while the Council of Europe flies it on 5 May because that was the date of the foundation of the Council in 1949.

I speak with some passion on this, having been privileged to have been a member of the Parliamentary Assembly of the Council of Europe for six years. I am a passionate believer that the Council of Europe has contributed hugely to the development of, and the sustaining of peace and democracy in, Europe and that the United Kingdom, which Ministers have consistently said may be leaving the European Union—I say may be—is not leaving Europe. I suggest to the Minister that this is a completely inappropriate statutory instrument, that the DCMS guidelines are also completely inappropriate and that the United Kingdom should continue proudly to fly the flag of Europe, not the European Union, on Europe Day.

My Lords, I was present in the debate when we discussed the flags issue in the first place. In the House of Commons at that time, we sought to ensure that the union flag was not used as a badge of sectarian difference. I was not only present but spoke in favour of the Government’s move, against the united opposition of the Ulster Unionists at that time: they did not want those restrictions. The purpose was to promote peace and harmony and to recognise the union flag as the flag of all who lived in the north of Ireland and not just of one part. Therefore, this is a very important issue and nothing that I say is meant to suggest that we should not have this rather different regulation for the north of Ireland, because this is about the history of the misuse of the union flag for sectarian purposes.

I take that very seriously, but I also take very seriously what seems to me to be a cheap and nasty statutory instrument. We have had to put up with all sorts of statutory instruments that we would have to have if we were to leave the European Union without a deal, but this one is not necessary. There is no reason for it at all, except a nasty little smack at the European Union and at Europe as a whole.

If the Government were trying to be helpful and to include people who are so deeply upset by all the Brexit shenanigans, they would merely have changed the date from 9 May to 5 May. We would merely have flown this flag on the day of the Council of Europe; that is the day when the council flies it. So there was a perfectly reasonable way in which the Government could have done that and in which DCMS could have provided its guidance. The truth is that this is unnecessary in any case. It is just mean to treat people in this way, particularly in the north of Ireland where there was a significant vote in favour of remaining within the European Union, and among those voters were large numbers of unionists.

I know my noble friend well enough to know that he will no doubt defend the Government’s position, but deep down in his heart he knows perfectly well that there is no need for this measure. It has been brought forward in, if I may say so, an insulting way. A very large number in the country—I believe it is over 5 million—have already signed saying that we should remain within the European Union, and there were 1 million people on the streets. These are not people who should be overlooked in this case. I imagine that the Government feel that they have to do something for the Jacob Rees-Moggs of this world. But if they have to ensure that they are in some way insistent about those who have such unpleasant views of Europe, they should change the date to 5 May. Then we would feel that there was some attempt to bring together the sections of the community who feel so deeply and differently.

I speak thus because I really do not want the Government to think that those of us who take a different view from them are in some way light-hearted about it. We are deeply distressed by the fact that this country is becoming narrower, less open and less willing to accept a range of views, determined all the time to rub people’s faces in the fact that on a day three years ago, a majority of people who were voting voted to leave the European Union. Can we please have a bit of respect for those who take a different view? We should therefore ask the Minister to go back and insist that we fly the flag on one day or the other, not that we are not going to celebrate the fact that Europe has come together in different ways to try to ensure that we do not fall apart, as we did in two World Wars.

The issue cannot just be treated like this; it is much more serious. It is unworthy of the Government to have brought the measure forward as if it were necessary, when it is not. It is merely an attempt to make a point on one side of a very divisive argument. Let us not be as small and petty as that. Let us at least decide to fly it on one day. If the Government wanted to change the day, I am sure we would support that.

My Lords, my noble friend Lord Murphy will speak shortly from these Benches. I am reminded as I listen to this debate of the words of his predecessor, Leo Abse, MP for Pontypool and then Torfaen for 30 years and responsible for more social legislation than any individual MP. When he announced his retirement, he said: “I do not know who will succeed me. My only advice is: tolerate everyone, tolerate everything, but never ever tolerate the intolerant”.

This provision is a crass act of intolerance. It is not just silly. Those of us who have served in both Houses—a number of us in the Committee today have served in the Commons and in this House—know that at times Parliament has done some silly things, but this is a stupid and offensive thing. I have the honour to serve on the Council of Europe. Together with parliamentarians from both Houses, I will be going there on 7 April for the next full session of its parliamentary assembly.

This is the 70th anniversary of the Council of Europe —we were its co-founders—which predates the European Union. We have heard Ministers and members of the Government saying time and again, “We are leaving the EU, not leaving Europe”. That point was made earlier in the debate. This is a symbol of us all in Europe. The Council of Europe is larger, older and more united than the European Union. This is the barmiest thing to do, and it is offensive. A leading Conservative, Sir Roger Gale, leads Britain’s representatives in the Council of Europe. He does it with pride and does a good job. Please do not think this is blowing our own trumpet, but I can tell the Committee that the British delegation to the Council of Europe makes a huge contribution. We take part in most of the debates; some very powerful arguments and good ideas are put forward. We are listened to and benefit from being part of this greater, wider assembly.

The symbol of the Council of Europe, of us all within Europe, should be retained. We should use it, we should fly it and—as the noble Lord, Lord Deben, has just said—if we have an issue about the date we should move it to 5 May, the date on which the Council of Europe was set up. The Government really ought to think again. As I say, this is not just silly; it is stupid and offensive.

My Lords, Northern Ireland is the only part of the United Kingdom where under the current legislation there are 18 designated days for flying the flag on government buildings. Usually these discussions are highly contentious back in Northern Ireland; as we have heard, in extreme cases—I am thinking of Belfast City Hall—unfortunately they can lead to civil unrest. This is a delicate matter and has to be discussed in a reasonable fashion.

I take a different point of view. I think it would no longer be appropriate to fly the flag, especially if we leave Europe through Brexit, so I support the instrument before us. On a slightly wider issue, as part of the fresh start agreement negotiated by the Stormont parties in November 2015, a 15-person commission was set up to study a range of long-standing, complex and challenging areas in relation to the expression of mutual and cultural identity in Northern Ireland. One of the issues which was to be addressed in that was the unofficial flying of flags in outdoor spaces such as on lamp-posts and so on. Has that draft report been completed? If so, can its findings be published in the absence of a sitting Executive? Maybe this committee, if it is still sitting, could take up the issue. I support the flag not being flown if indeed we leave Europe.

My Lords, I think I support the noble Lord, Lord Browne of Belmont, on the situation in Northern Ireland itself. I assume the Government consulted on this issue with the Northern Ireland parties—at least, I hope so. If they did not, or indeed if they did, it has to be seen in the context of a very sensitive issue in Northern Ireland, as the Minister and others will know.

Today we have a specific issue in front of us about the European flag. I suspect that this instrument is both spiteful and flawed. The noble Lords, Lord Deben and Lord Bruce, and my noble friend Lord Touhig have given powerful reasons why it is spiteful, but I do not think the Government have actually thought of the implications of the flag also being the flag of the Council of Europe. There is no indication in the literature we have or in the debate held in the other place. It seems to me that the Government believed this was entirely about the European Union and completely forgot the issue of the Council of Europe and the fact that there are in Europe two separate days to celebrate Europe. Clearly 9 May, the European Union day, will no longer be celebrated in the way it has in the past, but 5 May still would be. Both Ireland and the United Kingdom remain strong members of the Council of Europe.

The other issue affecting the position of Northern Ireland in Europe is equally sensitive Some 56% of the people of Northern Ireland wanted to remain. I was European Minister for two years in Northern Ireland. I actually went to the Council of Europe to explain the Good Friday agreement to all the members and they played a big role, as indeed did the EU itself, not just with the peace money; the support that came to Northern Ireland during that period was immense.

We cannot go back over the issues affecting why it is that we are leaving Europe and the effect on Northern Ireland save to say that while our being members of the EU meant that the border on the island of Ireland was blurred and there was constant contact between Irish and British officials and Ministers because of our joint membership of the same club. Europe has played an enormous part in changing the way that Northern Ireland has operated over the past 20 years, and indeed in the Good Friday agreement. We cannot suddenly wipe away all that history in a few seconds, but this particular instrument seems to be trying to do precisely that. Symbolically, it is trying to say: “The European Union, the Council of Europe and indeed everything European had nothing at all to do with the development of Northern Ireland over the last 20 or 30 years”, when the contrary is the case. That is why it is spiteful.

It seems to me that it is up to the local authorities and the other public bodies in Northern Ireland if they wish to fly the Council of Europe flag on Council of Europe Day. What is wrong with that? No, this is a nasty little statutory instrument. It ignores the past, it forgets about the Council of Europe, and it should really be consigned to a dustbin.

My Lords, this is a more controversial issue than might have been anticipated by those who do not know Northern Ireland well or indeed the passions of noble Lords here gathered; I think that is important to recognise. I shall try to explain why we are where we are, and then the Committee must reflect upon whether that is adequate to address the issues I have raised.

The first issue to stress relates to the point made by the noble Lord, Lord Bruce of Bennachie about the notion of what the flag represents—indeed, being the shared flag of the Council of Europe. This is primarily about flying the union flag in Northern Ireland. If there are two flagpoles then the second flagpole may fly the additional EU flag at a lower level, but if there is only one then it will fly the union flag. It is important to stress again, and the noble Lord many wish to inquire further into this, how many government buildings in Northern Ireland have two flagpoles. The answer is precious few. We are talking here about the flying of the union flag in almost every case.

Would that therefore mean that the union flag could not be flown on 5 May, which is Council of Europe Day, as opposed to 9 May, which is European Union Day?

The noble Lord has pre-empted the question that I was about to answer, so I shall come straight on to that. Under this particular legislation, which of course follows on from the European Union (Withdrawal) Act, we are able to adjust the legislation to remove 9 May from being a flag-flying day. If we wish to switch the day to 5 May, though, we are precluded from doing so under this legislation. That is not available to us under this legislation. Therefore, in order for us to move forward, we have to go back to the original regulation, the Act dating back to the year 2000. In order for us to make any changes to that Act, noble Lords will be aware that there is a three-part process that wholly involves the Assembly in Northern Ireland. The Northern Ireland Assembly is consulted, it reports to the Secretary of State and, on that basis, changes can be made. In the absence of an Assembly there can be no adjustment from 9 May to 5 May, or to any other day, in that regard.

I am wondering why we do not just leave it on 9 May. If you cannot change it—which I understand—we should leave it on 9 May and announce that this is a reference to our membership of the Council of Europe. If it is the union flag, or the two flags, then that is perfectly all right. Why do we have to take it away? It is much better to leave it. Otherwise, it says something different.

The noble Lord makes a point which he has made on many occasions—I do not doubt it. Earlier in his remarks, he said that we could do it on 9 May, but it would be better to do it on 5 May because the Council of Europe has a day that we could celebrate as well. He is now reverting back to 9 May, thereby reversing the points that he made in his earlier speech, and I will therefore set them aisde.

Importantly, we are recognising that in Northern Ireland—as anywhere else in the UK—flags are a sensitive issue. They are heavily regulated. Failure to do so has led not only to mistrust but to civil unrest. We must treat the reality in Northern Ireland with caution. This is why the adjustment to flying the flags on different days, or recognising—as we have not been able to do in Northern Ireland—the additional members of the Royal Family who are entitled to certain flag flying days, cannot happen without the express involvement of the Northern Ireland Assembly. It is absolutely appropriate, given how sensitive this matter is.

We are conflating two issues: Europe and Northern Ireland. When we look back to the period 1998 to 2000 in Northern Ireland, we begin to recognise that the flags issue was not only live, but dangerous. Therefore, we have always tried to move this forward inside Northern Ireland with permission. In this instance, we are making a correction and ensuring that the whole United Kingdom is treated in the same manner.

This brings me to the point raised by the noble Lord, Lord Bruce of Bennachie. Guidance issued by one of the Whitehall departments is different because it is not bound by regulation, as these regulations apply to Northern Ireland. They are not needed here because they are not as controversial. There will be no restriction on the flying of the flag of Europe in many places at council level, wherever they wish to do so. The actual designation of official flag flying days is heavily regulated in Northern Ireland. We are only correcting for the reality that Europe Day will not be celebrated in Northern Ireland because it is the flag of membership of the EU and that will not be true thereafter.

I am not clear from the Minister’s initial remarks whether he is saying that the flag may be flown this year. First of all, if the longer departure date occurs, we will still be a member of the European Union on 5 or 9 May. I had the impression he said that, in any case, they could fly this year. If that is true, we can forget about this for another year anyway, by which time we can address all the other issues.

I fear that the noble Lord has misunderstood my points. If I may, I will restate and re-emphasise them. I said that this regulation will come in only after we have exited the European Union. As the noble Lord will be aware, the point at which we exit the European Union is not yet clear. If that date is after 9 May, then the flag will fly this year because that regulation will not be amendable. This order amends it only after the point of exit. That is why for this year—I am being very frank—it is unclear whether the flag will fly as per the regulations within the amended 2000 order. Up until that point, I cannot give any greater clarity. We are doing this now because we are able to do it under the existing legislation in order to correct the situation following the European Union (Withdrawal) Act.

There may come a time when those in Northern Ireland wish to reflect on which flags they fly and when they wish to fly them—I have little doubt about that—but until the Assembly comes together to determine that, it will be unable to that matter forward. I note how important this matter has been and I state again, as carefully as I can, that Northern Ireland is the only part of this kingdom in which we have had to regulate the flying of flags. Nowhere else have we had to do so. Nowhere else at council level would we anticipate anything other than the flying of flags which people wish to fly, whether they be a union flag, a European Union flag or flags for other particular purposes. This will no doubt continue. Here we are talking about a very strict and specific piece of legislation which affects only Northern Ireland.

I am sorry to interrupt my noble friend. If we changed this, we would have to go through a whole system. I understand that. It was a little unfair of him to complain that I was prepared to say that if he found that difficult, we might do it in a different way. It seems very odd that that we are removing this without going through that system. We have not asked all the people who have to be asked if we going to put something else in but we are unilaterally deciding to take this day out. I find that difficult.

I started off by saying that I have been through those debates and I know them perfectly well. I got into a lot of trouble with my unionist friends because I fought for what the Government wanted. I am perfectly aware of the difficulty in the north of Ireland, but is it acceptable to remove something without that process, when it is not acceptable to add or change something about that process? It seems unacceptable to do this unilaterally.

The noble Lord, sitting as he does in a legislature, will appreciate the difference between making law and interpreting how you fly flags. At present, the difficulty he speaks of is not just a difficulty but an illegality: that we would not be able to move forward by adjusting the dates in Northern Ireland because of the restrictions of the law. What we might wish to do beyond that may be described as a difficulty, but what we seek to do here is to be legally correct in this instance. I am aware that the noble Lord has been passionate in his defence of the union flag and the union flag in Northern Ireland. I am also aware of how controversial that flag has been in Northern Ireland, for many different reasons.

The European Union flag we have flown on the ninth, which is flown across Europe, is primarily a flag of membership of the EU. We do not fly it in recognition of our membership of the Council of Europe because, most of the time—if I am being frank as a former Member of the European Parliament—people were rarely aware of the distinction between the Council of Europe and the European Council and the fact that one preceded the other by several decades. Even today, very few people marching on these streets will necessarily draw that distinction.

One of the great sins, I suspect, of this country—indeed, perhaps of our media—is how often we have been unable to explain in clear terms how the EU works, how our responsibilities within the Council of Europe work and the difference between the European Court of Justice and the European Court of Human Rights. We conflate these things constantly and I am fully aware that people right now will probably be unaware that the Council of Europe and in the EU, one heavily predating the other, have the same flag and, indeed, a shared anthem—and have had for some time, albeit that in the EU it is an unofficial anthem. All these things become conflated. The reality we face is simple: under the EU withdrawal agreement that we moved forward last year, this piece of legislation is uncontentious. It is important to stress that the European statutory instruments committee of this House said that, as a matter of policy, there is nothing contentious in the amendments proposed by this instrument.

It may be, and the noble Lord may wish to bring that up with that committee. It may well be that he wishes, on this occasion, to determine what flags shall be flown in Northern Ireland, to take that decision and move this in a particular direction. I would counsel against that for many different reasons, not least that, as we have said before, this issue is much more sensitive in Northern Ireland and we must be careful as we look at it in Northern Ireland, particularly as it primarily concerns the union flag. I stress again that it affects the union flag more than the flag nobly described by the noble Lord, Lord Bruce of Bennachie.

The challenges we face are straightforward. We may take this order and move it forward. The noble Lord may decide that is not something he wishes to do and he may wish to debate it further. If we are to debate this further, I suggest that we make sure that there are a number of Members in that debate who hail from Northern Ireland and are able to give their experience on the issue of flags because this is not primarily an issue about European flags but an issue about what flags represent in Northern Ireland. I suspect that he is not liking what I am saying but I fear I am going to have to move forward on that basis.

I seek guidance from the Chair. I have indicated that I am not happy and I do not wish this to be accepted. I know we cannot vote but I think it should be debated in the Chamber. We have a problem with the Chamber: I am sure that the Irish Members will turn up but we do not have a balanced representation in the Chamber. The second point I want to make is that Europe Day is about peace in Europe, not the European Union.

I am very clear about what Europe Day represents, having been a Member of the European Parliament. I have spent a great deal of my life—10 years—in Europe representing the Scottish Parliament in Europe. I am fully aware of what Europe Day represents. I am also a Minister in the Northern Ireland Office, so I know what flags mean in Northern Ireland and I do not think we should be conflating the two in the manner the noble Lord suggests, but if he is minded to do so that is his prerogative and his right. I remind him only that this is a matter primarily about the union flag, not the European flag.

I clarify for the noble Lord that although we do not vote in Grand Committee, I will take the voices. The Question is that the Grand Committee do consider the Flags (Northern Ireland) (Amendment) (EU Exit) Regulations 2019.

I must remind the Grand Committee that a single call of “Not content” has the effect of negativing the Motion. With that in mind, I put the Question again.

Motion negatived.

Committee adjourned at 7.39 pm.