14 May 2019
Court Refuses Flag Appeal
14 May 2019
COURT REFUSES FLAGS APPEAL
Summary of
Judgment
The Court of Appeal
today held that the Flags Regulations (Northern Ireland) 2000 were lawful and
said it was satisfied that the Secretary of State had regard to the Belfast
Agreement when making regulations about the flying of the Union flag at
prescribed buildings on prescribed days.
Helen McMahon (“the
appellant”) objected to the practice of flying of the Union flag at Omagh
Courthouse on the days prescribed by the Flags Regulations (Northern Ireland)
2000 (“the 2000 Regulations”). She said
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. In these proceedings,
the appellant appealed a decision of Mrs Justice Keegan on 2 October 2018 when
she refused to make a declaration that the 2000 Regulations are unlawful and in
breach of a guarantee of parity of esteem under the terms of the Belfast/Good
Friday Agreement (“the Agreement”). The
judge further refused to make a declaration that the Secretary of State for
Northern Ireland acted ultra vires when introducing the 2000 Regulations in
that he failed to have regard to the Agreement and, in particular, its
guarantee of parity of esteem. The
Court of Appeal noted that the same issue was brought before the courts in 2001
when Kerr J (as he then was) determined that the 2000 Regulations did not
offend the Agreement. The discrete
point at issue in these proceedings was whether the 2000 Regulations offend the
principle of “parity of esteem”.
Legislative Framework
The words “and courthouses”
were added to Article 3 of the Flags (Northern Ireland) Order 2000 (“the 2000
Order”) on 12 April 2010 upon the devolution of policing and justice to the
Northern Ireland Assembly. Regulation 2
of the 2000 Regulations provides that the Union flag shall be flown at the
government buildings listed in the Regulations and at all courthouses on
specified days. At present there are 15
such days each year and on all other days no flag is flown at Omagh
Courthouse.
The 2001 Decision
In 2001, Conor Murphy MLA, applied
for a judicial review of the decisions of the Secretary of State in relation to
the enactment of the 2000 Order and Regulations arguing that they discriminated
against those opposed to the flying of the Union flag and, in particular, that
the decision was inconsistent with sections 75 and 76 of the Northern Ireland
Act 1998. Kerr J disagreed and held
that the making of the 2000 Regulations and the requirement that the Union flag
be flown on government buildings was not designed to favour one tradition over
another – “it merely reflects Northern Ireland’s constitutional position as
part of the United Kingdom”.
Kerr J was also asked to
address the claim that the 2000 Regulations were inconsistent with the
Agreement as they failed to have regard for “partnership, equality and mutual
respect” between opposing political parties and were therefore contrary to the
undertakings given in the Agreement that the government’s jurisdiction in
Northern Ireland “shall be exercised with rigorous impartiality on behalf of
all of the people in the diversity of their identities and traditions” and that
they failed to recognise the birth right of those who wish to be accepted as
Irish. Kerr J concluded that the 2000
Regulations had not been shown to be in conflict with the Agreement. He said that by confining the days on which
the Union flag is to appear, the Secretary of State sought to strike the correct
balance between acknowledging Northern Ireland’s constitutional position and
not giving offence to those who oppose it.
He said the Secretary of State’s approach seemed to exemplify a proper
regard for “partnership, equality and mutual respect” and fulfil the
Government’s undertaking that its jurisdiction in Northern Ireland “shall be
exercised with rigorous impartiality on behalf of all the people in the
diversity of their identities and traditions”.
The 2018 Decision
In her decision, Mrs
Justice Keegan rejected the argument that the issue was res judicata given Kerr
J’s decision. She noted that the core
point made by the applicant in this case was that Article 1(v) of the Multi-Party
Agreement (one of the two inter-related documents contained in the Agreement)
should be separated into two distinct principles namely:
“(a) An obligation to exercise
with rigorous impartiality on behalf of all people in their diversity and
traditions; and
(b) That the power being
exercised shall be founded on the principles of full respect for, and equality
of, civil, political, society and cultural rights, of freedom from
discrimination for all citizens, and of parity of esteem and of just and equal
treatment for the identity, ethos and aspirations of both communities.”
Mrs Justice Keegan recorded
that the applicant made the case that the first of these applies to individual
citizens and the latter to communities. The applicant’s complaint was that the
decision in Murphy examined only one
aspect of Article 1(v), namely individual rights but did not address the wider
aspirations of both communities. Mrs
Justice Keegan said she was not convinced that Kerr J restricted his
consideration of this issue to individual rights and that it was artificial to
disaggregate parity of esteem as a separate consideration given it reads as one
paragraph and that in her view it was unhelpful to interpret it in any other
way. The judge concluded that it was
abundantly clear that the Secretary of State had fulfilled his obligation to
have regard to the principles contained in the Agreement in conducting a
balancing exercise and as such the Regulations could not be said to be
unlawful.
Discussion
The Court of Appeal noted
that Article 4(4) of the 2000 Order provides that in exercising his powers to
make Regulations on the flying of flags, the Secretary of State must “have
regard to the Belfast Agreement”. It
said it was clear from excerpts from Hansard that the Secretary of State did
have regard to the views of both communities without in any way affording one
community preferential treatment. 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 the decisions he took
were not intended to “disrespect” those members of the population who do not
consider the Union flag to reflect their identity and aspirations and that they
should not be perceived as such:
“Tolerance of the
presence of the Union flag is a practical demonstration of the principle of
consent which the majority of people on both sides of the Border have agreed to
adopt. Sensitivity in the display of the
symbols of one community viz a viz
another is an appropriate demonstration of the principle of parity of esteem
which implies as Lord Kerr noted in Re
Murphy that such flags should not be flown excessively “or to provoke
others”. In our view the display of the
Union flag on 15 days of the year over a courthouse which administers the laws
of the UK cannot be regarded as excessive or provocative. Rather it should be regarded as a pragmatic
reflection of the current reality of the constitutional position and actively
consented to in accordance with the spirit of the Agreement that Irish people,
North and South, signed up to.”
The Court of Appeal further
agreed with Mrs Justice Keegan’s conclusions about the disaggregation of
Article 1(v) and said that the concept of parity of esteem is not defined in
the Agreement but comes within the broad principles of equality, fairness and
respect as applied to the two communities in Northern Ireland:
“The flying of
flags on a small number of selected days over Omagh Courthouse does not
disrespect the applicant or her community or any part of her community or
provide additional respect to the Unionist community or its members. It prefers neither one community over
another, nor does it hold one individual in higher esteem than another. It is not discriminatory. It simply reflects the constitutional
position of Northern Ireland as part of the United Kingdom.”
Conclusion
The Court of Appeal refused
the application and dismissed the appeal.
NOTES TO EDITORS
1.
This summary should be read together with the
judgment and should not be read in isolation. Nothing said in this
summary adds to or amends the judgment. The full judgment will be
available on the Judiciary NI website (www.judiciary-ni.gov.uk).