Jamie Bryson: NIO letter has failed to assure me that the supremacy of the Union flag on public buildings in Nothern Ireland is safe

In that letter (June 24) to him, I explained my belief that section 78F of the Language and Identity (NI) Bill would create a justiciable obligation for the Union Flag and the Irish Tricolour to be given equal prominence on public buildings as a matter of domestic law.

The government have written back to me, as can be seen below.

It is welcome that the government have confirmed in their correspondence to me that no flag other than the Union flag will fly from public buildings in Northern Ireland, thus ensuring this key nationalist demand will be, for the time being at least, thwarted.

However, the thrust of the government response demonstrates their worrying lack of understanding as to the effect of the ‘parity of esteem’ principle which they are to insert into domestic law as a due regard obligation on public authorities.

The government’s reliance on the fact such a concept is in the Belfast Agreement is wholly misplaced. The Belfast Agreement confers no justiciable rights as a matter of domestic law. It is part of an international treaty, and the relevant reference to parity of esteem is purely aspirational.

In their correspondence they refer to the Court of Appeal’s rejection of a challenge to the flying of the Union flag, which was brought on the basis of the parity of esteem concept in the Belfast Agreement.

They fail to grasp that this was because the concept of parity of esteem was purely aspiration within the Belfast Agreement, which in any event has no effect in domestic law.

What the government are now to do via section 78F of the Language and Identity (NI) Bill is to convert this broad and general aspiration in the Belfast Agreement into a justiciable obligation as a matter of domestic law.

Put simply; the government are about to turn parity of esteem into a justiciable obligation, whilst in doing so relying upon the fact the Court of Appeal dismissing a challenge based on parity of esteem as a means of allaying concerns.

They plainly don’t understand the basis of the rejection was that the concept had no status in domestic law- precisely the very status they now seek to afford it.

The government then say in their letter that NI’s constitutional status would have to be accounted for in any due regard consideration of the parity of esteem principle. This is bemusing given the government rejected an amendment from Baroness Hoey that would expressly make clear NI’s constitutional position must be considered in discharge of the due regard obligations.

Finally, I note the government reaffirm their commitment to the Union. It is hard to take this seriously whilst the Union-subjugating Protocol remains in place.

5 July 2022 Dear Mr Bryson,

Thank you for your correspondence dated 23 June to Lord Caine, relating to the national and cultural identity principles provided for in the Identity and Language (Northern Ireland) Bill, the expression of identity and the flying of the Union Flag.

He has asked the policy team responsible for the Bill to respond on his behalf.

The national and cultural identity principles provided for in the Bill are consistent with those referenced in New Decade, New Approach, which was a matter of talks between the Parties, including representatives of political unionism, and contained a commitment to these principles being implemented with a corresponding legal duty.

The Bill accordingly seeks for public authorities to have due regard to these principles in their programmes of work. The configuration of this duty to have ‘due regard’ would encompass a sense of proportion from public authorities as they consider how to implement them. You will be aware that the reference to parity of esteem made by the principles reflects the same, long-established commitment made in the Belfast Agreement.

You raised specific concerns about the Bill’s provision on parity of esteem in the context of flags and the flying of the Union Flag. Speaking during the Committee stage of the Bill, Lord Caine was clear that the Bill does not change the existing provision in law on the flying of flags from government buildings, court houses and police buildings.

The Union Flag, and the Union Flag alone, will continue to be flown in accordance with the law on the designated days. You may wish to note that, in making the Flags Regulations, the Secretary of State is already required to have regard to the Belfast Agreement, including its provisions on parity of esteem.

In 2019, the Court of Appeal upheld that the Flags Regulations were lawful in the case of McMahon, which had sought unsuccessfully to challenge the Regulations specifically on the grounds of parity of esteem. The Bill’s provision on parity of esteem would not appear to impact this clear legal precedent, either in respect of flags or any other aspect of the expression of national and cultural identity.

Northern Ireland’s clear constitutional status as part of the United Kingdom will remain a matter of fact that any public authority considering matters of parity of esteem ought to account for.

Your letter made a number of assertions in regards to the Government’s commitment to the Union. The Government is steadfastly committed to the Union and Northern Ireland’s place within it, as Lord Caine has set out on a number of times, and firmly believes that Northern Ireland’s rich diversity of identities, languages and cultures adds immeasurably to its strength.

The Identity and Language (Northern Ireland) Bill reflects this sincere belief, and the Government believes that by delivering on this important New Decade, New Approach commitment, we will further strengthen this Union of nations and peoples for the benefit of future generations.

Thank you for taking the time to write.

Yours sincerely,

Constitution and Rights Group, Northern Ireland Office, Horse Guards Road London SW1A