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

Lord Deben Excerpts

Monday 25th March 2019 Grand Committee

[Lord Bruce of Bennachie (LD)]

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.

[Lord Deben (Con)]

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.

--- Later in debate ---

[Lord Deben]

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.

[Lord Duncan of Springbank]

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.

[Lord Duncan of Springbank]

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.

[Lord Deben]

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.

[Lord Duncan of Springbank]

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.