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

Wednesday 3rd April 2019 Lords Chamber

Motion to Approve

17:33

Moved by

[Lord Duncan of Springbank]

That the draft Regulations laid before the House on 25 February be approved.

Relevant document: 20th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B). Debated in Grand Committee on 25 March.

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, the purpose of this instrument is to remove the legal requirement for Northern Ireland government and court buildings to fly the union flag to mark Europe Day after we leave the EU. While in Wales, Scotland and England the designated flag-flying days for government buildings are covered by guidance issued by the UK Department for Digital, Culture, Media and Sport, in Northern Ireland the rules concerning such flag flying are set in statute; namely, the Flags Regulations (Northern Ireland) 2000. The power to amend this regulation is contained in the EU withdrawal Act and, subject to the will of Parliament, it will be made only after the UK has left the EU.

In considering this order, a number of issues need to be borne in mind. The order relates primarily to the flying of the union flag, not the EU flag. Only where a building has two flagpoles is the EU flag flown. For information, none of the principal government or court buildings in Northern Ireland has two flagpoles. That includes headquarters buildings, such as Stormont Castle and Dundonald House, as well as the Royal Courts of Justice. Since our discussion in Grand Committee, my department has undertaken an investigation to determine how many relevant buildings have two flagpoles. Thus far, fewer than half a dozen have been identified. The withdrawal Act confers no powers to add to or adjust any other parts of the Flags Regulations (Northern Ireland) 2000. On that basis, I beg to move.

Amendment to the Motion

Moved by

[Lord Bruce of Bennachie]

At the end insert “but this House regrets that the draft Regulations are unnecessary as there is no value in prohibiting the flying of flags in Northern Ireland on Europe Day, which celebrates peace and prosperity in Europe.”

[Lord Bruce of Bennachie (LD)]

My Lords, I thank the Minister for his introduction and for the update after the debate we had in Grand Committee last week. He said then that he thought there were only a small number of relevant buildings.

There are two important points behind this. The first is about the flying of a flag to mark Europe Day and the specifics of when that flag should be the Europe flag. This statutory instrument removes permission to fly the Europe flag, even on those five or six buildings, apparently on the grounds that it would cause offence. I do not know whether that is the implication.

The second and serious point behind this is that there seems to be an assumption that because the UK may be about to leave the European Union, if we leave before 8 May—if we do leave—it would be illegal to fly the Europe flag on a public building in Northern Ireland. This seems to be unnecessary legislation with which to detain the House at all, as well as undesirable.

I will develop the arguments that I put in Grand Committee last week. I completely understand that the flying of flags in Northern Ireland is highly sensitive and contentious. We saw how contentious it was when the flying of the union flag in Belfast was limited. It led to riots and the destruction of the office of our sister party, the Alliance Party, so of course I understand the sensitivity of the flying of flags, although I have not heard that flying the Europe flag has caused that kind of reaction in Northern Ireland.

The history of the flag is that it is the Europe flag. Is it is the flag of the European Union, but it is not only the flag of the European Union; it is also the flag of the Council of Europe. Much more to the point, it was originally designed as the flag of the Council of Europe. It was commissioned and brought into use in 1955, a year before the European Community came into existence. That being the case, I point out to the House that there is a serious issue here because Britain was a founder member of the Council of Europe and Britain is not leaving the Council of Europe. The flag is the flag of the Council of Europe, and on that basis there is every good reason why we should show how European we are by flying the flag on Europe Day.

There is an issue about when Europe Day is. The EU designates Europe Day as 9 May, whereas the Council of Europe designates it as 5 May: 5 May was the date of the foundation of the Council of Europe in 1949 and 9 May was the day in 1949 when Schuman made his declaration to commemorate peace in Europe.

There is something fundamentally disturbing about the Government actively wanting to remove any consideration that there might be a flag flying somewhere in the UK, certainly in Northern Ireland, that gives the impression that we have not left the European Union—assuming that we have left—and I would like to turn that on its head.

The reason I have brought my amendment to the Chamber, as well as introducing it in Grand Committee, is that, as the Minister himself said, the guidelines issued by the Department for Digital, Culture, Media and Sport for the rest of Great Britain follow the same pattern, the difference being that in the rest of the UK they are just guidelines, whereas in Northern Ireland it is a matter of law. Nevertheless, the recommendation is that the Europe flag should cease to be flown in the UK, should we leave the EU. I think that I have articulated why this flag, as a Europe flag, should continue to be encouraged, and allowed, to be flown. It is to prove a point that Ministers repeatedly make—that we might be leaving the European Union but we are not leaving Europe. Of course, the Minister has also acknowledged that if we have not left the European Union by 9 May—in other words, if the date of 22 May comes into effect—the flags can fly this year. That also suggests to me that this legislation is not urgent in that context.

Therefore, I ask the Government to reconsider the basic thinking behind the idea that the Europe flag should disappear from public buildings in the UK if we leave the EU. My contention is that the Europe flag still has a place in the UK. I would not mind if the date were changed to coincide with the Council of Europe’s Europe Day to make the point. I gather that there is some difficulty in changing the date but I am sure that, if the will were there, it could be done.

Finally, what is the point of Europe Day in the first place? I think that there is an underlying misbelief that it is a day to celebrate the creation and extension of the European Union. However, it is not and never was. It is a day to celebrate peace in Europe and the continuation of that peace. I would like to think that the British people would want to continue to celebrate the fact that we achieved peace in Europe and that we want to continue to promote peace in Europe, regardless of our detailed relationship with our European partners. Let us remember that there are 47 member states of the Council of Europe, against what will be the 27 member states of the European Union.

Let us also remember, in case of misunderstanding, the design of the flag. As I said, it pre-dated the creation of the European Economic Community. People seem to think that the 12 stars represent the member states—which would be an odd choice because there were originally six—but the 12 stars have nothing to do with the number of member states. They are supposed to be a symbol of perfection. They commemorate the 12 tribes of Israel, the 12 apostles, the 12 labours of Hercules and the 12 months of the year. They are supposed to be a symbol of universal perfection and the flag is supposed to be a symbol of peace in Europe. I find it extremely disturbing that the Government are taking time to pass a law saying that we should no longer fly a flag that marks peace in Europe and Britain’s continuing commitment to the people of Europe. For that reason, I believe that we should not accept the spirit behind this statutory instrument.

[Lord Deben (Con)]

My Lords, I was present in the original debate in the other House when we agreed on the rules for Northern Ireland. Therefore, I hope that nobody will suggest that I am not extremely sympathetic to the concerns about flags in the north of Ireland. There is no doubt that the union flag was being used as a sectarian flag rather than a union flag, and therefore we passed regulations saying that the flag could be used only on certain dates. We also passed an arrangement that enabled us to change that. It is a very clear arrangement which means that a change can be made only with all-community agreement.

That is my first problem with this proposal. When we discussed it with the Minister, he said that we cannot change the date when the flag is flown to the 5th in order to make it clear that it is for the Council of Europe because that would need the agreement of all the communities—but we can stop the flying of the flag without the agreement of all the communities. That seems to be a very odd decision. He will say, of course —and he has—that that is what we said in the withdrawal Act. Well, we can make mistakes. I do not think that anybody in debating the withdrawal Act thought that the Government would specifically bring forward a Motion that does not have the proper assurance of all the communities in the north of Ireland.

17:45

My first point, therefore, is that it is entirely unsuitable for the Government to take it upon themselves to suggest that Parliament should support a fundamentally divisive decision, which takes from the due course the right to make the list of days on which the union flag may be flown. I perfectly well accept the Minister’s statement that only five flagpoles are affected by the flag of Europe. I am rather pleased that the noble Lord raised this and brought it back to the House, otherwise we would never have made that calculation. The Government seem to think that this is a perfectly reasonable thing to pass and does not really need a discussion.

Of course, we are not talking about a large number of occasions, or a large number of flagpoles—but we are talking about a fundamental issue. We fought for that decision in the teeth of opposition of many Unionist Members of the House of Commons. We fought for it, we were called all sorts of names, but we thought it right because it was important for all the communities to make those decisions. We are now overriding that.

I admit that this was passed by a Labour Government —in fact, it was brilliantly introduced by the noble Lord, Lord Mandelson. It was one of the best speeches I have ever heard him make and he carried the House in a most remarkable way. It was passed, and passed in a way that seems to me to be affronted by this proposition, which means that we—unilaterally, without the agreement of the community—are going to make the change.

My second point is that, in the north of Ireland, the community obviously thought rather differently from people in other parts of the United Kingdom. They voted to remain within the European Union—leave alone supporting Europe in general or the European Council. So it seems particularly important that all the communities should be consulted. It is not good enough for the Minister to tell us—as no doubt he will—that this is very difficult because there is no Northern Ireland Assembly. It may be difficult, but it is one of the things you just have to live with.

This is not a controversial issue in any real sense, unless we invent a real sense—the Minister has that look, but it is pretty difficult to make a controversy about allowing something to continue as it was. This is pretty uncontroversial, particularly as we are not even forcing them to do it; we are merely saying that this is a day on which it would be proper to do it. I doubt whether anyone will be prosecuted if they do not fly the flag on that day. The real issue is that they would be prosecuted if they were to fly a flag on a different day. So it would have been perfectly possible for the Government not to have brought this forward and, even now, they could decide that it is not worth having the argument.

The next important thing is that it is extremely likely that we will be flying the flag, because it is extremely likely that we will—happily—still be in the European Union when this occasion happens. So the Government have more than a year to think about this issue. It would be much better for them to say, “We understand; we think this ought to be decided by the whole community and, as a gesture towards the whole community, we will remove this because we do not think it is necessary”—and it is very hard to believe that it would be necessary. So why can we not be a bit generous?

That brings me to a point that I feel very strongly about. All over the island of Ireland there are memories of the lack of generosity of the British Parliament, and particularly of this House. We have a very sad history in the way in which we have treated people of all sorts in Ireland. We therefore have to be particularly careful about being generous about even the smallest things. I say to my noble friend that this is even more important for Conservatives, because our history is significantly worse. We have behaved appallingly on many occasions on this subject. We have a tiny opportunity just to say that we are not going to be pushed into this and will in fact withdraw it.

Lastly, perhaps the Minister will do this for me. He might just say to the Department for Digital, Culture, Media and Sport that that bit of advice might have been thought through rather more carefully. If we are trying to reunite a divided nation, we need to remember the 48% as well as the 52%, particularly as that 48% may well now be nearly 60%. Let us just remember that. Let us remember, too, that there is a very much higher proportion among the young people in whose hands our future as a nation lies. In those circumstances, we are choosing not to celebrate peace in Europe but to put two fingers up to what has been, in both the Council of Europe and the European Union, the great achievement of the last 50 or 60 years—that we have no longer had the civil wars that were part and parcel of our history. We are saying simply and blithely, without any real consideration, that because we think we might be leaving the European Union we are going to do these petty, silly, stupid, tiny things, instead of trying to seize the opportunity to make a difference.

Why has DCMS not put out guidelines that in future we will fly the European flag on 5 May? It would not need legislation but it would require a generous and understanding heart. The fact that it has not done so shows the level to which we have now descended. We seem totally unable to understand what you do to bring communities together. We would do much better in the north of Ireland we did not make this particular regulation but left it and thought about how to discuss this with all the communities in the system that is laid down, and we would do much better in the rest of the United Kingdom if we recognised that a willingness to celebrate peace on our continent would be much better than a miserable little guideline like this.

[Lord Touhig (Lab)]

My Lords, tomorrow is a very important day: we are going to celebrate and commemorate 70 years since the founding of NATO. NATO has helped to keep the peace, helped to deter and helped to make us enjoy a better life here in Europe. This year also happens to be the 70th anniversary of the founding of the Council of Europe, another organisation that has helped to keep the peace and kept us working together on this continent. I declare an interest because I am a member of the Parliamentary Assembly of the Council of Europe. Noble Lords will be busy doing something else next week but I shall be in Strasbourg with colleagues, dealing with matters there.

That forum offers us the opportunity to continue partnership, dialogue and friendship with people right across our continent. What I find objectionable is that the flag that we are talking about—the European flag, as mentioned in the regulations—is in fact the flag of the Council of Europe. Here we are, at a time of celebration of the peace of NATO and of the foundation of the Council of Europe, deciding that we want to be offensive as far as the issue of flying this European flag is concerned.

I think the Government have made a big mistake here and have not really thought it through. When I talk to colleagues in Strasbourg next week, we will be working together and looking for ways to find common benefits for all the people living on our continent. However, here we are, debating these petty little regulations.

Of course, I recognise the importance and sensitivity of flags in Northern Ireland. When we debated this in Grand Committee, Members were overwhelmingly opposed to this statutory instrument, with the exception of the noble Lord, Lord Browne of Belmont. It was right that he made that point, because he lives in Northern Ireland; it was right that we heard the point of view of someone from the Province.

I am very sorry that we are having this debate and that the Government have brought this forward. I have only one question for the Minister. When these regulations were first conceived, did the Government realise that this is the flag of the Council of Europe, not necessarily the flag of the European Union? We are not leaving the Council of Europe. Was the work done? If it was not, it should have been. If it was known that this is the flag of the Council of Europe, why did we want to insult colleagues from 46 other countries across Europe by saying that this flag should not be flown at certain times?

I really cannot believe that we have this daft and stupid statutory instrument before us. It is rather shameful that, when we are celebrating the 70th anniversary of NATO and the 70th anniversary of working in the Council of Europe, we are debating this matter in this Parliament.

[Lord Alderdice (LD)]

My Lords, I listen with interest to colleagues speaking about the importance of the statutory instrument and the difficulty of it for people here, saying that there might be people in Northern Ireland who are pressing for this. I want to bring the contrary view that this could in fact create real problems in Northern Ireland.

The Minister mentioned the number of flagpoles, which is a lot less important than the placing of them. There is one rather important building that has two flagpoles: the Parliament Buildings at Stormont. I know that rather well because, when I was Speaker there, I had to negotiate the question of flags, particularly whenever Her Majesty was coming. I was able to make the point to republicans and nationalists that, if they wanted recognition when a Head of State came from the Republic of Ireland, they had to be prepared to give recognition when the Head of State from the United Kingdom came.

What does this flag mean to people in Northern Ireland? Of all the absurd and nonsensical things I have heard in the last little while coming out of the Northern Ireland Office, this is one of the worst. The Explanatory Memorandum says:

“Consultation is not considered necessary, as the instrument is making a minor, technical change resulting from the United Kingdom’s withdrawal from the European Union”.


Only the Northern Ireland Office could regard the question of flags in Northern Ireland as a minor, technical question. It shows how utterly out of touch it is with pretty much everything going on in the Province. However, it is at one with a number of the statements from the Minister’s right honourable friend in another place.

When—I assume it is “when”—the United Kingdom leaves the European Union, Ireland will still be a member. One of the decisions that was emphasised in the Good Friday agreement and subsequently was that those of us who live in and come from Northern Ireland have a right to both an Irish and a British passport. I have an Irish and a British passport, as do my wife, my children and all my grandchildren. What does that mean? It means that for those people who have that passport, and therefore remain part of the European Union, any sense of their European identity will be wiped out by this silly piece of nonsense.

However, it gets worse. Many have been prepared to set the question of the flags to one side for the moment—people from the nationalist and republican communities, and many who support the Alliance Party, too. We are saying to them: not only can you not have the flag of the nation state you identify with but you cannot have the European flag, despite the fact that all of us have emphasised that the Good Friday agreement comes out of a process informed by the European project, encouraged by the European Union and inspired by the developments that have taken place in Europe. How many times have we heard John Hume talking about the French still being French and the Germans still German, but them being able to be Europeans together? All that gets blithely pushed to the side. By the way, we do not worry too much about dates in Northern Ireland. The Battle of the Boyne took place on 1 July, but we celebrate it on 12 July, and also have a mini 12 July on 1 July. We do not worry too much about the dates, as long as people do not stop folk celebrating the things that matter to them—and I think this does matter.

18:00

Does the Minister have any reason to believe that if this question were to come to a reformed Northern Ireland Assembly, it would get majority support and be passed? I can tell him, with a fair degree of certainty, that it would not be passed. One of the difficulties about this being passed now is that if it was passed and taken up in the Northern Ireland Assembly, I have absolutely no doubt that some colleagues—even those represented in this House—would put down a petition of concern to block it from being returned to the place where it currently is.

This is not just some minor technical question. Flags are a matter of huge symbolic importance. One may not be able to eat a flag or even keep warm with a flag, but there are people prepared to fight and die for a flag. This must be an extremely difficult debate for the Minister, because he is a Scotsman. He understands entirely the importance of symbolism north of the border, and understands very well, I have no doubt, the symbolism of flags north of the border in Ireland too.

I seriously ask him whether he will not take on board what my noble friend Lord Bruce of Bennachie has said. This is damaging. It is not just petty, it is not just foolish, it is not just misplaced, it is not just mistimed —we do not need to do anything about it until this time next year at the earliest. We need to think seriously about whether Her Majesty’s Government might be wise not to create even more problems. There is an old saying: when you are in a hole, stop digging. I do not think there is anybody in this House who thinks that the Government are not in a hole, but please, do not dig it deeper in respect of Northern Ireland. We got through many difficulties over flags when we had the devolved Assembly—when it went into suspension there were issues about flags. It was really only one flagpole on Belfast City Hall that created the trouble. Please, can we pull this back, and pull ourselves back from a very foolish initiative by the Government?

[Lord Cormack (Con)]

My Lords, my noble friend the Minister is a big man in every way, and he has shown that many times in debates in this House. He is a man who listens and he is sensitive. If he is going to live up to his well-deserved reputation, he really must listen to the eloquent pleas of the noble Lord, Lord Alderdice, my noble friend Lord Deben and the noble Lord, Lord Touhig. They are absolutely right.

This is a small, irritating, unnecessary, bureaucratic measure which does nothing for this House, shouldered with the burden because of the inability of the people in Northern Ireland to come together in their Assembly. In debates on Northern Ireland in recent months, I have often talked about the desirability of calling the Assembly, even if there is not an Executive. I know that is something which the noble Lord, Lord Alderdice, agrees with, as do many other colleagues in all parts of the House. Why can the Minister not just take this away? It is not worthy of him. It is not worthy of us. It is a good reason to summon an Assembly and let it make the decision. I have little doubt what it would be.

At the time of possibly the greatest national crisis this country has ever had, the answer to “What did you do in the war, Daddy? What did you do on the eve of the cataclysm?” is that we decided a particular flag could not be flown on one day in May in Northern Ireland. What a nonsense. I really beg my noble friend to heed the words that have been uttered in your Lordships’ House today, take this silly little measure away and not trouble himself or us with it again.

[Lord Dykes (CB)]

My Lords, I am following five scintillating speeches which call into question the nonsense of these regulations. I thank the noble Lord, Lord Bruce, for his ingenious amendment, which is fair in dealing with the technical points but also had a historical background. We have had messages from all parts of the House asking the Minister, with his excellent Scottish credentials, to think again and withdraw this instrument now before it is too late.

I was not able to take part in the Grand Committee at the end of March on this subject because of other duties, but I very much followed it and agree with what has been said today. I particularly thank the noble Lord, Lord Deben, for reminding us of the historical background, too, and the painful history of this country’s relationship with and attitudes towards the Republic of Ireland—the Irish Free State, as it was initially after independence.

There was a famous Irish ambassador in London a few years ago called Joe Small, who was a friend of mine. He was rather small. I once had occasion to phone him and ask, “Joe, can you tell me when you think that the note of condescension disappeared from English and British voices when they talk to Irish people?” He said, “I tell you what, I’ll put that in my computer and come back to you in 10 minutes”. He did that and said, “It was five years ago, when incomes per capita in the Republic of Ireland overtook those in Britain”. That was a pretty good example of things getting back to normal after the painful history that we have had.

The noble Lord, Lord Deben, referred to the nonsense in the details of these regulations in some detail. I will not go into that now but conclude with a few remarks relating not to the flag as it is—it was originally the Council of Europe flag, as the noble Lord, Lord Touhig, said —but to the flag of the European Union, which is now our precious asset in emotional and practical terms. I suggest that the noble Lord, Lord Bruce, has today, maybe unwittingly, found reason number 293 for us staying in the European Union and not leaving after all. It is a very good one so perhaps it should be higher than 293 and closer to the top, since flags are so important.

On the wider background of the UK I have always found it very painful that, as a member state of the Union for a long time, this country was one of the larger ones that routinely never flew the European flag on government buildings. That is why I introduced my rather tedious and boring EU information Bill when I first came into the House of Lords; it included a clause about the flying of the European flag on government buildings. It is really painful to see this daft anti-European sentiment growing in Britain, particularly in the last few years. The European flag has never been flown on government buildings; on hotels, yes, and of course on embassies of other countries in the European Union—and sometimes on others as well. Aspirant countries such as Albania are applying to join. When I went there last spring, it was full of European flags. Albania is very enthusiastic about being a member of the European Union.

By the way, although it is not strictly relevant to the subject, the flag of the European Union is a precious asset and I pay tribute once again to the activities of the flag wavers outside, who have now been there for well over two years. Now they are there from 10 am until 8 pm, or later; they now have European flags with lights on them so they can show them at night. Their poles are getting taller and they have had tremendous publicity. Last Friday, we had the pleasure of honouring Steve Bray, the chief flag waver, at a function at the National Liberal Club when we said thank you to him and all his colleagues for staying there in bitterly cold weather and never deviating. The only day they stayed away, wisely and sensibly, was when the antis came on 29 March to register that they were leavers—with some high-temperature elements, I think. It was a sensible idea for them to stay away that day to avoid any trouble.

My EU information Bill is still on the list for a Committee of the Whole House in due course. It is not making much progress but does not now include flag-waving, which would have sounded illogical in view of the attitude in this country. I would love to be able to put that provision back in later on, if only we could. The Minister could give us all a psychological boost by withdrawing these regulations in view of the excellent speeches already made today.

[Lord Empey (UUP)]

My Lords, I never thought I would see the day when we would be having a debate on flags in this context. I must correct slightly the noble Lord, Lord Deben. There was another reason for the decision of the noble Lord, Lord Mandelson, to introduce this legislation: it was discovered that nationalist Sinn Féin Ministers did not want to fly the union flag on their ministry headquarters. One of the inputs to the decision was that factor.

The practicalities of it are that nobody sees the European Union flag on government buildings for the simple reason that, by and large, there are none where they are available; the one or two buildings where it is flown, are, if I remember correctly, probably not open to the general public anyway because of where they are physically located. To some extent, it is much ado about nothing in that regard.

However, there is a psychological point, because, as with everything else, once you are told you cannot have something, everybody wants it. Here we are again, with people suddenly saying, “We want this flag”, even though they did not even know that it flew. If you had a vox pop in any town in Northern Ireland and asked people what day is Europe Day or what day is Council of Europe day, I doubt you would trouble your arithmetical capabilities to figure out how many. The fact is that, by and large, nobody knows.

However, there is a wider point, which the noble Lord, Lord Alderdice, touched on: you have to be sensitive about these things. Let us remember that this is primarily about the flying of the union flag on all such buildings—not the European flag—because all the courthouses, departmental buildings, jobcentres and government offices around the country will fly the union flag. In the majority of cases, this measure will remove the union flag. That is the irony of it all.

I see where the Minister is coming from and I am looking at it just on the practicalities; namely, what would be the rationale for celebrating Europe Day if we were no longer in the European Union? I accept and understand that logic. While there may not be a way around the regulations, there is perhaps a solution. The fundamental, bedrock legislation for the regulations is out of date, because of deaths of members of the Royal Family, marriages that have taken place and various other things that need to be tidied up. I could not see any objection to amending that legislation in due course to include Council of Europe Day—this would come into effect only if we left the European Union—and to replace one with the other. Therefore, celebration of Europe in the wider scope of some 47 countries would be done, but it would be in the context of something of which we remained a member. Therefore, the Europe flag would, or could, still be flown.

It is up to local authorities what flags they fly, because they control their own buildings. It is up to the Assembly Commission in Parliament Buildings in Stormont what flags it flies. It is has been traditional to fly the European flag. St Patrick’s flag has been flown alongside the union flag on St Patrick’s Day. That happened in local council buildings, City Hall used to do it, and so on.

There are solutions to all these things and I think we are reading too much into this measure, which is designed simply to reflect the fact that we are not actually celebrating or commemorating our membership of the European Union on that day. There is no reason —indeed, I think there is a practical rationale for this —why the Minister could not say to his colleagues in the Northern Ireland Office that the flags order itself needs updating, and I see no reason for any objection to including Council of Europe day in that. If you asked people in the country, “What is the flag of the Council of Europe?” many would say, “We didn’t know it had a flag”. That is the reality. Because of the activity outside this building and others, people now see that flag as part of another dispute, and that is something we do not need more of: we have enough of them as it is.

18:15

So I suggest to the Minister that, while I am perfectly content with the SI and understand the reasoning for it, he could take back to his right honourable friend in the other place—if indeed anybody in the other place is listening to anything at the moment—that the resolution to this would be to change the flags order to include Council of Europe day. That would mean that, while the date might change by a few days, that will be commemorated. As the noble Lord, Lord Touhig, said, there was a debate about NATO and other things. That could be commemorated with Council of Europe day, the union flag would fly as well and it would be a national celebration. Indeed, the sensible thing would be for the Department for Digital, Culture, Media and Sport to introduce the same advice at the same time.

That solution would resolve the problem neatly throughout the United Kingdom: we would bring the order of the noble Lord, Lord Mandelson, up to date and include the Council of Europe in it. It would not in any way prevent the Minister pursuing his SI today but I like to think it would be an excellent solution. It means that people who identify themselves in a European context will still be able to do so and get official commemoration right across the United Kingdom if the Department for Digital, Culture, Media and Sport were minded to do it. The Minister might also speak to his right honourable friend the relevant Minister there. It would be good to have a cross-departmental solution happening simultaneously and I hope that would avoid any disputes.

[Lord Browne of Belmont (DUP)]

My Lords, my remarks shall be rather brief. I welcome this having been a serious debate on the flying of flags in Northern Ireland and I am pleased that it is taking place in these peaceful surroundings. However, I still find it a little bizarre that we would continue to fly the flag of an organisation that we will, eventually, have left. I point out that the general public in Northern Ireland can, if they so desire, continue to fly and display the European flag, just as we have regularly witnessed the display of many European flags outside this building. Also, local councils in Northern Ireland, if they agree the policy, can fly the European flag on their civic buildings on 9 May.

People in Northern Ireland often point out, when discussing the flying of flags, that there is one arrangement whereby, for example, City Hall and Parliament buildings fly a flag but a different arrangement exists for the flying of flags on government buildings and, indeed, the Royal Courts of Justice. They are governed by quite different provisions. Does the Minister accept that this can often lead to a degree of confusion over why a certain flag is flying on a particular building but not on another? Does he agree that, for this reason, in future we may need a more uniform approach?

Finally, I once again regret that there is no functioning and workable Northern Ireland Assembly to consult on these matters. I hope that will not be the case for much longer and remain optimistic that, with political will on all sides, talks about reforming, workable institutions in Northern Ireland can resume soon. I am happy to support this statutory instrument and I concur with the decision made by the other House.

[Lord Murphy of Torfaen (Lab)]

My Lords, it is estimated that 3 million to 4 million people are currently watching BBC Parliament. I rather fancy that today their attention will be drawn to the other place, and that they will have to listen to our proceedings, as they generally do, at about 2 or 3 am. If those insomniacs—who occasionally include myself—switch on, they would I suppose be bewildered that we are discussing flags in the Chamber of the House of Lords while the whole world is collapsing around us because of what is happening on Brexit.

They would of course be mistaken, because flags are a hugely sensitive issue in Northern Ireland. The unfortunate author of the Explanatory Memorandum, which says that this is a “minor, technical change”, would have to listen to only the last hour in this Chamber to realise that it is a lot more than that. I recall thinking about a quarter of a century ago, when I first started going to Northern Ireland as a shadow Minister, that only the union flag and the Irish tricolour were flags of general interest and controversy in Northern Ireland. That was until I happened to see on one occasion the Israeli flag and the Palestinian flag also flying in parts of Belfast. I had no idea what the relationship was, but apparently unionist or loyalist areas would fly the Israeli flag and nationalist or republican areas would fly the Palestinian flag.

It is a huge matter, and my noble friend Lord Mandelson, when he was Secretary of State, introduced—as the noble Lord, Lord Deben, has told us—this important piece of legislation. I wonder—and the noble Lord, Lord Deben, referred to this also—whether sufficient consultation has occurred on this matter. Again, the Explanatory Memorandum says that:

“Consultation is not considered necessary”,


because this is a minor technical matter. It is necessary, because people have different views on flags. I am told by some that the last time the negotiators in Belfast talked about flags the discussions went on for 11 weeks just on that issue. Flags symbolise things in a very special way in Northern Ireland. They go to the heart of the issue of identity. They go to the heart of the problems that the other place is discussing today—the Northern Ireland/Ireland border and the issue of the backstop. All that is about identity, and flags symbolise it. It is an important issue.

These particular regulations of course refer to the union flag no longer flying on government buildings on the day commemorating the European Union. However, the noble Lord, Lord Bruce, and my noble friend Lord Touhig have eloquently told us that the flag is not simply that of the European Union—it is the flag of the Council of Europe as well, a much earlier institution. If we are trying to wipe the importance of Europe in the peace process from the public memory of Northern Ireland, we should remember that it brought much-needed funding through Objective 1 status and other schemes, and that the common membership of the European Union of the Republic of Ireland and the United Kingdom meant that we were able to be successful over 20 years in that peace process. We have been reminded tonight that a majority of people in Northern Ireland—in any event 56%—voted to remain in the European Union. If we think that taking away the right to fly the flag on 8 May also takes away the public memory of the benefits of being Europeans, we are gravely mistaken. No—the Government should think again. We have been given some interesting ideas. The noble Lord, Lord Empey, tells us, quite rightly, that we ought to think in terms of the whole of the legislation affecting flags in Northern Ireland in a fresh way, which would include the Council of Europe flag being flown. The noble Lord, Lord Alderdice, told us the same thing.

Cannot the Minister therefore just withdraw this Motion for the time being? It does not matter about this year, because it is extremely likely that on 8 May we will still be members of the European Union. The Northern Ireland Assembly and Executive should be deciding these matters—I hope, please God, that by this time next year, those bodies will be up and running and will be able to discuss this. Rightly and properly, it is for them to decide what happens on public buildings in Northern Ireland, and how important Europe is to them.

Therefore, there should be a rethink. People should understand the significance of the symbolism of flags and should remember what Europe, both in the form of the Council of Europe and the European Union, has done to make peace in that part of the world.

[Lord Duncan of Springbank]

My Lords, I will take your Lordships back a little further, to 21 March 1943; I suspect that many noble Lords were not here then. Sir Winston Churchill gave a speech on the radio and talked about peering,

“through the mists of the future to the end of the war”.

He spoke of the need for there to be a great council of Europe and said that it would be “a stupendous business”. He recognised its value. He saw the future not as one where we marshalled armies across the continent but where we marshalled arguments across a debating chamber. He recognised the value that came from discussions and was instrumental in founding the Council of Europe—indeed, its building is named after him.

Since its foundation, the Council of Europe has continued its important role, and it has, sometimes to its own frustration, been confused from time to time with the European Union. I have spoken with a number of members of the Parliamentary Assembly of the Council of Europe who are sometimes a little critical, saying, “No, no—we are different”. It is important to remember that they have different roles but common values, and the values of the Council of Europe and the European Union are important to us.

I spent several years as a member of the European Parliament, and, to be frank, I was always disappointed that on Europe Day it was hard to get anybody in the United Kingdom to notice. The fact that flags were flown on public buildings was not the reason why they noticed that there was a Europe Day to be celebrated at all. Noble Lords who have spoken of Europe Day as a symbol of peace and of recognition of what we have done and achieved are absolutely right—that is an important achievement. However, I am very conscious that we are now more aware of Europe Day because of where we are than we ever were during our membership either of the Council of Europe or of the European Union. That is a great sadness to me but it is a truth, and we need to reflect upon it carefully.

Across Europe, 9 May is an important day, because it is a recognition of what the EU has achieved. However, it is also important to recognise that this debate is not perhaps on its widest basis about Europe alone. It is, rather, about a situation in Northern Ireland, where, as we are fully aware, flags have made a difference and created a problem.

I will go through some of the issues which have been raised today. I will be able, I imagine, to critique them, to try to refute them and to do all those things, but that is not what matters today. What matters is perhaps the point raised by the noble Lord, Lord Empey, and my noble friend Lord Deben: a recognition again that in Northern Ireland, and across the whole of the UK, there may be a need in the future for us to recognise how important is our membership of the Council of Europe. It may well be that we should have a wider discussion on that point, and that in this House and in the other place we will do that very thing. I would not be in any way averse to that being a proper discussion, but that is for a future time when I hope we can do that and recognise the achievements of the Council of Europe; to be frank, sometimes they are not given due recognition. I am aware that a number of Members of this place are members of the Parliamentary Assembly of the Council of Europe and do sterling work. Therefore that point may come, but that is not what is before us this afternoon.

18:30

It would not take more than a small stroll outside this building to be awash with European flags: of that there is no doubt. There is no question but that people may continue to fly the European flag as they see fit and when they wish to do so. That is not what the Bill is about; nor is it about the notion of flags flying on public buildings because, in truth, this does not concern all public buildings. It concerns only government buildings and court buildings in Northern Ireland. We should be conscious of that.

Several Members have spoken about the importance of the situation in Northern Ireland. I was curious about this, so I went back to the records to find the last time this was discussed and exactly what the conclusion was. Perhaps I may explain to your Lordships why this remains a contentious issue. In 2015, the Assembly Commission, which was the body tasked by the Northern Ireland Assembly, amended its flag-flying policy from one that followed the 2000 regulations to one that instead observed the DCMS list of designated dates. In coming to this decision, the commission split—unsurprisingly, perhaps—along party lines. The DUP proposed instead flying the union flag every day of the year. Sinn Féin wanted both flags—the union flag and the Irish tricolour—to be flown or none at all. The Alliance Party backed following the DCMS list of designated days as a reasonable compromise. Ultimately, when put to a vote in the commission, the DUP and the UUP also backed the DCMS approach.

Flags remain a challenge in Northern Ireland, and it is important to recognise that when these matters are discussed, compromise is often how they are resolved. The notion in that instance was to adopt the guidance used by the DCMS. There is much discussion about its role in this, but it is important that where the parties wanted to be at the beginning of the discussion and where they ended up was quite different.

The noble Lord, Lord Empey, is correct to note that the current list of designated flag-flying days is not up to date. The last time it was amended was when the Queen Mother and Princess Margaret passed away and their dates were removed from the flag-flying days. But there have been happier times for the Royal Family, and there are now days that would be added were this to be discussed. Noble Lords, especially those who sat through the discussion in the Moses Room, will be aware that to do that involves a sitting Northern Ireland Assembly, whose participation in that process allows there to be additions to the existing list. It is important, as a number of noble Lords have said, that we get to the stage where there is an Assembly which can take these matters forward. We do not have it.

Another important issue was raised when the matter was previously discussed on the Floor of this House. There is no doubt, as the noble Lord, Lord Empey, reminded us, that the noble Lord, Lord Mandelson, looked at this very carefully to try to find a compromise which would allow all in Northern Ireland to broadly agree. It was not an easy challenge, and a number of noble Lords have made the point that this was perhaps one of his greatest achievements. When it was discussed here the last time, back in November 2000, the noble and learned Lord, Lord Falconer of Thoroton, said:

“It is entirely consistent with the principle of consent that the Union flag be flown at government buildings in Northern Ireland, as it is flown at government buildings throughout the rest of the United Kingdom … The regulations, therefore, go no further than is necessary to reflect practice in the rest of the United Kingdom”.—[Official Report, 2/11/00; col. 1193.]

Your Lordships might argue that that is a sophist’s argument—that we have already changed that by changing the guidance—but there is a notion and understanding that the flag policy in Northern Ireland needs broadly to reflect the flag policy in the rest of the United Kingdom.

I have no doubt that there will be adjustments to the wider flag policy. It is important to note, to cite the same debate, that the flags regulation has been largely successful in neutralising any controversy over the flying of flags at government and court buildings. Neutralising any controversy is important here. Let us move away from what might be controversial.

I come to the point made by the noble Lord, Lord Alderdice. He always brings in a very different perspective and is right in this instance. We need to be cautious about how we move this matter forward, because the risk is that this is not simply a minor, technical matter—my noble friend Lord Deben made this point too: how dare we treat this as a technical matter? I am conscious that it is very easy as a Government to cast these issues aside as if they are technicalities and need not be discussed.

I am reminded that the House of Commons European Statutory Instruments Committee, which examined this, said that,

“as a matter of policy, there is nothing contentious in the amendments proposed by this instrument”.

The issue here is that it is easy to see why it can quickly become contentious. In truth it does so because we are engaged in a great debate not only about flags in Northern Ireland but about the future of our country and our purpose; where we are heading. This is perhaps emblematic of that discussion and we need to treat it with care and caution. That is why I will take back to my right honourable friends in the other place the very points which have been raised in this debate. We need to recognise our contribution to the Council of Europe and that we should have an opportunity to find a time when we can celebrate our European achievements. We are not leaving the continent of Europe and we are not resigning our membership of the Council of Europe. Those things will be important.

My noble friend Lord Deben was right about the notion of generosity and I will take away his words in that spirit. We need to recognise where we are as a member of the continent of Europe and the shared values that we have and will continue to have after we depart from the European Union. I do not know what the date for that will be; indeed, depending on what happens in the other place, I have no great understanding of when we might know ourselves. We may not be in any way involved with this issue this year but the point remains that, once we have exited the European Union, we need to reflect carefully on what we are and who we are as a people, and on our European heritage. We have been a noble and constructive participant in building that heritage.

My noble friend was also right to reflect on our own history as a party in Northern Ireland and perhaps our history as a House in Northern Ireland. On that basis I look to the House of Commons, which has passed this instrument, which is why it has arrived here. Again, the democratic House has examined it and has reached a particular conclusion. It is not easy, as we consider the issue, to try to divorce it from what is going on in the wider context, but that is what I am seeking to do today: to bring it back to the issue of Northern Ireland. It would be easy for me to say that it involves only five flagpoles, so what is the problem? But that would miss the point. The flags are about identity. They are about the bigger picture. They are about how people wish to see themselves and how they wish to be seen. That is why I do not doubt that in the cities of Northern Ireland and more widely, flags will continue to be flown which represent a whole wealth and breadth of passion and of identity. Within that identity will be a European identity. Whether that is in celebration of the Council of Europe or indeed of the European Union, we may never know, because whenever we see the flag we will not know which one it is that people seek to celebrate. As we go forward, we must find a way of making sure that Northern Ireland is treated with respect. That is why I hope, when we consider the future flags policy, that we will do so as observers, not as participants. This will be taken forward by the Assembly in Northern Ireland where it must and should be done. Only by doing that can we truly observe the addition of those flags which would reflect Council of Europe day, should there be a desire to do so.

I do not know if in these remarks I have done justice to the points which have been made. I will note certain points in a brief commentary—I do not seek to critique anyone because the passions which have come out today are important and we need to reflect on them. The noble Lord, Lord Touhig, asked whether we have reflected on the fact that the flags play different roles. Yes, of course that was done. There is a recognition that the day itself is what we are talking about because it is a designated flag-flying day. To all intents and purposes, on 9 May the flag that is flown is the flag of the EU. That is not because it is a different flag but because the day on which it is flown is in essence Europe Day as defined by the European Union and established in 1985. It is not an attempt to try to conflate the two. I know that some countries do so but that is on the understanding, as I have said before, that the Council of Europe and the institutions of the European Union are so similarly named that there can be far too great a degree of confusion.

I hope that my noble friend Lord Deben appreciates that I am not trying in any way to undermine anything he has said. His passion is clear and his advocacy is correct. I hope he will appreciate that I will take his remarks away to my honourable and right honourable friends in the other place and do all I can to ensure that they reflect on the importance of the Council of Europe as something that is worthy of celebration. I hope that we can do that.

I note that I have written under the name of the noble Lord, Lord Alderdice, “When you are in a hole, stop digging”. I guess that I am getting close to that point. Let me say again, in reflection of noble Lords who come from Northern Ireland, that they will know better than anyone the importance of flags in terms of what they represent and their symbolism. It is therefore important to ensure that we are not simply seen as using Northern Ireland and its people as a surrogate for other arguments we wish to make. I am conscious that sometimes that is indeed what we do. As we step outside the House later tonight, I do not doubt that we will continue to see the area awash with European flags. They will be flown around this building for as long as these issues detain us and for as long as we are involved in a serious discussion about them.

Northern Ireland is a special place and it has needs that need to be reflected upon just now. If noble Lords are content that I will take away to my right honourable friends the need to reflect on our future flag-flying policy and our understanding of the Council of Europe and its significance, I believe we can make some progress. I hope that would enable us to move forward. On that basis, I hope I can move this forward this evening.

[Lord Bruce of Bennachie]

My Lords, I thank the Minister for his reply, which, as always, was thoughtful and courteous and took full account of the arguments. He was constructive in his response to the suggestions from the noble Lord, Lord Empey.

I think this problem did not start in Northern Ireland —it started in the Department for Digital, Culture, Media and Sport, which took a decision with maybe less thought and less consideration; we are now stuck with the view that, because DCMS has issued guidelines, we have to change the law in Northern Ireland. That is the fundamental problem and the fundamental flaw.

I am glad there are noble Lords here who are not particularly focused on Northern Ireland but who focus on the UK Government and the guidelines for the flying of flags across the whole of the UK. I completely agree that the Europe flag has not normally inspired passion, but it certainly does across the street now and maybe it will in future for those reasons. I accept that the flying of the Europe flag in Northern Ireland is not the fundamental here, but the thinking behind this is fundamental.

The problem I have with what the Minister said—which is extremely constructive and, I am quite sure, genuinely sincere—is that it is on the basis that we pass this instrument tonight. The noble Lord, Lord Alderdice, made an important point: this decision should have been made by the Northern Ireland Assembly but that is not functioning. The noble Lord, Lord Deben, made the point that it required complete consensus across Northern Ireland; we do not know whether that exists. The point from the noble Lord, Lord Alderdice, is that if and when there were an attempt to reverse the decision, somebody would raise a petition of concern that would make it impossible to reverse it. So the problem confronting us is effectively a direct-rule statutory instrument that I think has been inspired by thinking outside Northern Ireland. Passing it tonight would create a problem that will not easily be resolved and would create further difficulties in Northern Ireland.

I understand the Minister’s concern—to say I have sympathy would be patronising—because I have a feeling that if he were the Secretary of State he might well withdraw this statutory instrument now and say, “I will go away and consult with DCMS”. It is not urgent—we are really all hoping, in any case, that we will be in the EU at least until 22 May, if not beyond, which means the flag can still be flown—so we could forget about this statutory instrument, rethink it and bring it back in a few months. I wish that were possible. I think the Minister has got as close as he could to saying that, but I feel it is not close enough. With double regret—as it is a regret amendment—I wish to test the opinion of the House.

18:42

Division 1

Ayes: 55

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Liberal Democrat: 31
Labour: 16
Crossbench: 6
Conservative: 2

Noes: 115

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Conservative: 100
Crossbench: 8
Ulster Unionist Party: 2
Independent: 2
Democratic Unionist Party: 1
Labour: 1

Motion agreed.