Appendix 7: Relevant legislation

The Flags (Northern Ireland) Order 2000

The Flags (Northern Ireland) Order 2000 and the Flags Regulations (Northern Ireland) 2000 set out the specified days for flying the Union flag at government buildings and courthouses in Northern Ireland. In the 2022 calendar year, there are 15 designated days (appendix 1). 

However, council offices are not included in Schedule 1 of the Flags Order, which lists the specified government buildings covered by the Order. There is therefore no legal obligation placed on councils to fly the Union flag on specified days, and it is at the discretion of each council as to whether and when (or not) to fly the Union flag.

A judicial review of the Flags Regulations was conducted in 2001. In that judgement, it was ruled that the Regulations did not conflict with the Belfast/Good Friday Agreement. The judge stated that:

“The Union flag is the flag of the United Kingdom of which Northern Ireland is a part. It is the judgment of the Secretary of State that it should be flown on government buildings only on those days on which it is flown in Great Britain. By thus confining the days on which the flag is to appear, the Secretary of State sought to strike the correct balance between, on the one hand, acknowledging Northern Ireland’s constitutional position, and, on the other, not giving offence to those who oppose it. That approach seems to me to exemplify a proper regard for ‘partnership, equality and mutual respect’ and to 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’. I do not consider, therefore, that the Regulations have been shown to be in conflict with the Belfast Agreement.”

Fair Employment and Treatment Order 1998

The Fair Employment and Treatment Order makes it unlawful for an employer to discriminate against employees on the ground of religious belief or political opinion.  It includes the duty to promote a good and harmonious working environment in which no worker feels under threat or intimidated because of his or her religious belief or political opinion. 

The Equality Commission’s Fair Employment Code of Practice provides general guidance to employers with regard to good practice in the promotion of equality of opportunity. In relation to the working environment the code states that employers should:

“Promote a good and harmonious working environment and atmosphere in which no worker feels under threat or intimidated because of his religious belief or political opinion, e.g., prohibit the display of flags, emblems, posters, graffiti, or the circulation of materials, or the deliberate articulation of songs, which are likely to give offence or cause apprehension among particular groups of employees.”

Legal counsel sought by Belfast City Council in 2002 and 2011 in relation to its flags policy considered two relevant Fair Employment tribunals. The Johnston case (Johnston v Belfast City Council, 2000) dealt with emblems within the Belfast City Council’s Dunbar Depot and, in particular, the hanging of a portrait of the Queen following refurbishment.  The tribunal decided there was no justification for the display of a portrait of the Queen in a council cleansing depot because the Council had failed to explain or justify the presence of the portrait and there was therefore unlawful discrimination.

In the Brennan case (Brennan v Short Bros plc. 1995), the tribunal held that the applicant had suffered less favourable treatment on the grounds of his religious belief and political opinion by reason of his employer’s toleration of manifestations of sectarianism in the workplace and of victimisation of the applicant when he complained of these manifestations. Mr Brennan, a Roman Catholic, complained about a number of matters which he alleged constituted sectarian harassment including the display of Union flag stickers on a number of tool boxes, the painting of a tool box red, white and blue and the wearing of Glasgow Rangers football shirts and scarves, in such a way as to display the Union flag.  In upholding the complaint, the tribunal commented:

“Flags are prohibited because of the implications which they have in a workplace for the religious beliefs and/or political opinions of the workforce in that they tend, within Northern Ireland, to mark the ascendancy of one community over another.”

In January 2013 the Equality Commission for Northern issued advice to Councils in relation to the flying of the Union Flag. It considered that the Order:

“does not make any express reference to flags but makes discrimination on the grounds of religious belief and political opinion unlawful, both in the workplace and in the provision of goods, facilities and services. Also, in the workplace, it bans “harassment” on these grounds. In addition to the issue of discrimination and harassment, employers also have legal obligations which require them to promote fair participation in employment and associated responsibilities to promote a good and harmonious workplace.

“In the field of employment, the Fair Employment Code of Practice provides general guidance for employers on these matters. The Code has been cited with approval by the Fair Employment Tribunal when upholding complaints against employers in numerous discrimination cases. A small number of these concerned the display of flags and emblems. The relatively new statutory definition of harassment under FETO, first enacted in 2003, has not yet been explicitly considered by the Tribunal in any case dealing specifically with flags and emblems issues. However, the case law that preceded 2003 can, with a reasonable degree of confidence, be used to predict how the Tribunal would approach these questions if raised today. It is noted that the Tribunal has not considered a complaint relating solely to the official display of a Union Flag at a Council’s premises.”