Appendix 9 (EQIA - The Flying of the Union Flag) | Causeway Coast & Glens Borough Council

Appendix 9: Other relevant policies and research

Department for Digital, Culture, Media and Sport

The flying of flags is not the subject of statute law in England, Wales or Scotland, but the Department for Culture, Media and Sport has responsibility for issuing guidance on the days designated for flying of the Union flag.

On 21 May 2021 the Department for Digital, Culture, Media and Sport changed its guidance advising that the Union flag be flown on UK government buildings from 20 designated days (see appendix 2) to 365 days a year. It further states that “This guidance is aimed at UK government buildings. However, we would encourage local authorities and other local organisations to follow suit where they wish to fly flags.” However, “In Northern Ireland, designated flag flying for Northern Ireland government buildings is governed by legislation rather than this guidance [emphasis as published]”.

Therefore, it is not anticipated that this guidance should extend to Northern Ireland.

Northern Ireland Assembly Commission Review of the Policy on the Flying of the Union flag at Parliament Buildings

In 2014 the Northern Ireland Assembly Commission completed an EQIA on their policy on the flying of the Union flag at Parliament Buildings (Stormont). There are there are no statutory obligations in relation to the flying of the Union flag at Parliament Buildings; previously it had adhered to the designated days as set down in the Flags Regulations schedule.

During the consultation on the review, the Commission found that “people from the Nationalist community might experience a ‘chill factor’ in their dealings with the Council as a result of the flying of the Union flag”:

“Comments were made regarding the current impact of the flying of the Union flag on designated days; it was suggested that there is a chill factor for those of a Nationalist or Republican community which makes the building less welcoming on such days, and it was reported that visitors had regularly commented likewise. Some consultees said that, on designated days, issues of identity were raised in consciousness and there was greater sensitivity to such matters […] A number of interviewees felt that the flying of the Union flag was not in keeping with the spirit of the Good Friday / Belfast Agreement, and was not likely to encourage mutual respect, nor did it help present the building as a shared space for all communities.

The final decision of the Commission on the matter was to adopt the recommendations in the EQIA report that the existing policy on the flying of the Union flag at Parliament Buildings on designated days should continue but that the designated days observed be based on 18 days designated by the Department of Culture, Media and Sport.[1]

Northern Ireland Human Rights Commission

The Northern Ireland Human Rights Commission’s 2013 report The Display of Flags, Symbols and Emblems in Northern Ireland[2] notes that:

“The display of flags, symbols or emblems in a public space may act as a territorial marker or a method of harassment, irrespective of the intention behind its erection. The ECt.HR has noted that expression, which is not, on its face, offensive, can be offensive in certain circumstances. Consequently, when public authorities make decisions pertaining to the erection or removal of a flag, symbol or emblem, a broader discussion of the rights of those who live in the vicinity and those who travel in or through the area for purposes of accessing services is required. The existence of such displays may have an impact on individuals from other communities, acting as a form of intimidation which creates an access barrier to the area. This may have consequences for individuals accessing health care services and for children in accessing public recreational spaces, both of which are protected by international human rights law.”

Together: Building a United Community

In 2013 the NI Executive launched the Together: Building a United Community (T:BUC) strategy. Its vision is:

“a united community, based on equality of opportunity, the desirability of good relations and reconciliation – one which is strengthened by its diversity, where cultural expression is celebrated and embraced and where everyone can live, learn, work and socialise together, free from prejudice, hate and intolerance.”

It established an all-party group to consider contentious issues including flags and emblems.

Equality Commission

The Equality Commission for Northern Ireland was contacted by Causeway Coast and Glens Council in 2015 for their views on the proposed flags policy. The Commission advised that the Council should follow their approved Equality Scheme commitments in regard to undertaking screening of any policy proposals and consideration of an EQIA.

Advice to other councils

The Equality Commission has commented directly to councils on the issue of the display of flags in the past. This includes advice to Limavady Borough Council, a Causeway Coast and Glens legacy council, in 2003.

“We believe that a complainant may find it difficult to convince a Tribunal or court that a practice of flag flying by a Council would be unlawfully discriminatory if it strictly adheres to that which is permitted on designated government buildings by the Flags (NI) Regulations 2000. Conversely however, the Commission believes that a practice of not displaying the Union Flag is also likely to be within a range of acceptable practices”.

In 2002 Fermanagh District Council reviewed its policy on the flying of flags. In a letter to the Chief Executive, the Equality Commission stated:

“The Commission seeks to promote a spirit of inclusivity and mutual respect and urges the avoidance of contentious displays which act as a badge for community or political allegiance and promote division in the workplace. […] Where an employer is seeking to provide or maintain fair participation, or to ensure that all of its services are widely utilised by all sections of the community, the Commission recommends particular sensitivity concerning displays which are wholly or mainly associated with one section of the community.”

In its final report on its investigation into an alleged failure by Lisburn City Council to comply with its Equality Scheme in June 2006, the Commission found that the council had failed to comply with its Equality Scheme in adopting a position requiring the flying of the Union flag at various council locations on a daily basis. It stated:

“generally, the preferred position of the Equality Commission is that the Council should abide by the Department of Environment recommendation in respect of the 17 designated days for the Union Flag as previously advised to the Council and should not add additional days to the calendar”

In a letter dated 29 September 2011 to Belfast City Council from the Equality Commission in relation to their flag flying policy, the Commission considered:

“The Commission recognises that for local Councils there would be a difference between the customer base at the headquarters and that in more localised areas. Thus, for example, while it is acceptable and appropriate, in the Commission’s view for a local council to fly the Union Flag at its Civic Headquarters, this rationale would not extend to every Council location.”

It continues:

“To comply with Section 75(2) you need to ensure that, when the Council is formulating its Union flag policy, and considering the various options, account is taken of the desirability of promoting good relations. That goal must be given proper weight; i.e. the weight that is appropriate in the circumstances [...] Furthermore, you should not limit your consideration of the Section 75(2) goal to the immediate circumstances around flying the Union flag itself. The duty is continuous and wide and requires the Council to consider the broader and longer-term picture and to consider adopting other strategies that may mitigate the immediate effects of a particular policy.”

In 2012 in response to Belfast City Council’s EQIA on proposed changes to its flag policy, the Commission commented:

“While it is acknowledged that this EQIA deals with the flying of the Union Flag on specific Council buildings, consideration should be given to ensuring that the Council’s final policy covers displays of other flags where similar principles and context may apply. To this end, it may serve the Council to further develop the Aims of the policy and ensure that there is a policy framework in which to consider, in a consistent manner, the flying of other flags. Such considerations would include the duration and extent of displays of flags which may be more closely associated with one community background in Northern Ireland, or indeed associated with neither of the two main community backgrounds.”

Advice on flying the Union flag in Councils

In 2013, the Commission published its Advice on Flying the Union flag in Councils.[3] It states that “It is for each local Council to determine their own policies on the display of the Union flag, taking account of the full context in which, they operate.”

It further considers that flying of the Union flag must be viewed within the context in which it is flown or displayed and factors affecting this context include “the purpose, manner, location and frequency within which flags are flown”. They are also of the view that, “while it is appropriate for a local Council to fly the Union flag at its Civic Headquarters, the rationale for its display at every Council location, facility and leisure centre would be questionable.”

The Commission also stated that the final council policy should reflect the Council’s legitimate policy aims and “not cause unlawful discrimination or harassment, unintentionally or indirectly through its likely effects or impacts.” [4]

In addition, the Equality Commission has issued guidance on promoting a good and harmonious working environment which states that:

“A good and harmonious working environment is one where all workers are treated with dignity and respect and where no worker is subjected to harassment by conduct that is related to religious belief or political opinion….This of course does not mean that working environments must always be devoid of anything that happens to be more closely associated with one or other of the two main communities in Northern Ireland….In other words an ‘harmonious’ working environment does not necessarily mean a ‘neutral’ one.”[5]

The guidance includes the following advice on the issue of workplace emblems:

“the Commission recommends that where an employer is seeking to provide or maintain fair participation, or to ensure that all services and facilities are widely utilised by all sections of the community, there is sensitivity concerning displays wholly or mainly associated with one section of the community.”

The guidance also includes the following advice specifically on the flying of the Union flag:

“The flying of the Union flag must be viewed within the context in which it is flown or displayed. Factors affecting the context include the manner, location and frequency with which flags are flown. The Union flag is the national flag of the United Kingdom and, arising therefrom, has a particular status symbolising the constitutional position of Northern Ireland. On the other hand, the Union flag is often used to mark sectional community allegiance. There is a world of difference between these two approaches. Thus, for example, while it is acceptable and appropriate, in the Commission’s view, for a local Council to fly the Union flag at its Civic Headquarters, the rationale for its display at every Council location, facility and leisure centre would be questionable.”

Commission on Flags, Identity, Culture and Tradition

The Commission on Flags, Identity, Culture and Tradition published their final report in December 2021. It found “no meeting point” between the:

“two diametrically opposed political and public positions relating to the official flying of flags on public buildings – that either the Union Flag only, should fly on public buildings, or; that the Union Flag and the Irish National Flag should both fly on public buildings together, or there should be no flags flown at all”

In relation to council buildings, it stated:

“The flying of flags by local government is left to the discretion of each local authority. In developing or reviewing a policy on the flying of the Union Flag a Council is required to consider the policy aims, objectives, rationale and must not cause unlawful discrimination or harassment, unintentionally or indirectly through the effects or impacts of the policy. While the policy aims and objectives must be legitimate, ultimately the policy is a matter for each Council to decide for itself. In reaching an outcome on any review of its policy, a Council must comply with its Section 75 duties, namely to ‘have due regard to the need to promote equality of opportunity and have regard to the desirability of promoting good relations’.”

Policies of other Councils in Northern Ireland

Other councils in Northern Ireland have adopted a range of policies on the flying of the Union flag. These range from the flying of no flags at all (Mid Ulster District Council and Newry, Mourne and Down District Council); to flying only the council flag (Fermanagh and Omagh District Council); to flying the Union flag on the basis of the principles in the Flags Regulations (Belfast City Council); to flying the Union flag on a permanent basis at Council buildings (Ards and North Down Council). Other councils, such as Derry City and Strabane District Council, do not have a flags policy or have adopted the policies of their legacy councils.

Ards and North Down Council

In September 2021, a Notice of Motion proposing a new policy on flying the Union flag was deferred subject to an equality screening.

The current policy sees the Union flag flown permanently at seven designated sites including buildings and war memorials. It is also flown on days designated under the Flags Regulations at one site.

The new policy proposes flying the Union flag on all council buildings and war memorials daily. The proposed change aims to bring the policy in line with the revised Department for Digital, Culture, Media and Sport guidance.

An equality screening was previously carried out on the flags policy in 2020. It notes that:

“This policy will adversely affect some individuals. However, the buildings and flag poles are owned and managed by the council which is a place of local political democracy within the local council area. There is a recognition that the majority of councillors and residents are from the community background that supports the symbolism of the Union flag. At identified places of work the Union flag will only be flown on designated days to recognise the promotion of good and harmonious working relationships and at war memorials to recognise the significance of the period.”

It was screened out (that is, deemed not having substantial equality impact to require an EQIA) as having “a minor impact as it is to maintain the status quo of the two legacy councils and embed the practice followed from 2015”. However, the policy is to be “reviewed annually to be cognisant of the comments and complaints received about this practice and any proposed changes to it”.

Belfast City Council

In 2012 Belfast City Council carried out an EQIA on proposed changes to its flags policy, which was then flown on City Hall 365 days a year and other council buildings (the Ulster Hall, a cultural venue, and the Duncrue Complex, a depot open to staff only) on designated days, some bank holidays and ad hoc occasions.

Legal opinion

Legal opinion provided at this time by David A. Scoffield QC agreed with earlier legal opinion[6] in that:

“It is difficult to see how the flying of the Union flag on the exterior of Council buildings would be likely to have an intimidatory or chilling effect on persons working within the buildings”.

He did not agree, however, with previous counsel that flying the flag on a daily basis (or not at all) would be in breach of good relations duties under Section 75(2) of the Northern Ireland Act 1998 “provided that the decision was taken after full consideration of the possible effects on the promotion of good relations”. This was further challenged by legal advice obtained by Sinn Féin from Eugene McKenna BL, which found “strong authority for the proposition that the flying of the Union flag on days other than in accordance with the Flags Regulations (NI) 2000 would be in contravention of the duties of the council under s.75”.

Overall, Scoffield QC found that “The striking of such a balance” as is set down for central government buildings in the Flags Regulations “seems to me to be a laudable aim”. Furthermore, it “is likely to be legally ‘safer’ than the present policy and very unlikely to give rise to a successful discrimination and less at risk of a successful legal challenge”.

Public opinion

The EQIA further pointed to evidence that some people from a Catholic and/or Nationalist community background regarded the flying of the Union flag as offensive and possibly intimidating, but that ceasing to fly the Union flag would be equally offensive to some people from a Protestant and/or Unionist community background. This included the results of a survey at City Hall which found that

Protestant visitors were more likely to say they felt pleased/ proud (50 per cent) and comfortable (22 per cent) about the Union Flag flying. One percent said that they felt uncomfortable, with a further 1 per cent feeling offended by the Union flag flying;
In contrast, 4 per cent of Catholic visitors said they felt pleased and proud, 8 per cent comfortable with 56 per cent saying they had no particular feelings. Twenty percent said they felt uncomfortable with the Union flag flying, with a further 12 per cent saying they felt offended;
72 per cent of protestant visitors believed that the Council should always fly the Union Flag compared with 16 per cent of Catholic visitors.

Consultation responses to the EQIA report confirmed these positions.

Staff survey

Staff from a Protestant background were more likely to say they felt pleased/proud (78 per cent) and comfortable (14 per cent) about the Union Flag flying. One percent said that they felt uncomfortable, with a further 0.5 per cent feeling offended by the Union flag flying;
In contrast, 4 per cent of Catholic visitors said they felt pleased and proud, 14 per cent comfortable with 18 per cent saying they had no particular feelings. Thirty two percent said they felt uncomfortable with the Union flag flying, with a further 41 per cent saying they felt offended.

Conclusions

The Belfast City Council EQIA report concluded that:

“… it would appear that the policy options which best promote good relations are – in descending order of effectiveness:

Designated flag days only
Designated flag days plus specified additional days
No flag or a neutral flag
Two flags”

The final decision of Belfast City Council in December 2012 in relation to their flags policy was to fly the Union flag at its civic headquarters, City Hall, on designated days; and not to fly the flag at all at its other buildings.

This decision was followed by extended civil unrest, which, according to the Northern Ireland Assembly Commission, “gives a strong indication of the likely adverse impact on good relations of any change in policy where one or more communities may feel disadvantaged by that change”.

Banbridge District Council 2009

In 2009 Banbridge council carried out an EQIA on its existing policy of flying the Union flag at its civic headquarters and other buildings all year round. The vast majority of respondents (91 per cent) to the public consultation favoured the current policy.

In deciding to adopt the option of flying the Union Flag at its civic headquarters only throughout the year, the Council took account of the view that this reflected the constitutional status of Northern Ireland; that not to fly the Union Flag would cause offence to a large number of people; that the current presence of the Union flag had not deterred the Council from recruiting and retaining a workforce that was broadly in line with expected rates for the local Protestant and Catholic communities; and, in particular, noted the advice of the Equality Commission that, “this would be an option that would be within the general context of a policy which symbolises the constitutional position of Northern Ireland”.

Craigavon Borough Council 2005

Craigavon Borough Council conducted an EQIA in 2005 of its policy on flying the Union flag on civic occasions. This EQIA raised the question of adding additional days to those designated under the Flags Regulations, such as 1 and 12 July. The Borough Solicitor advised at that time that the Equality Commission would probably not view these additions as sustainable due to political significance and commemoration could be divisive.

Limavady Borough Council 2004

Limavady is a Causeway Coast and Glens legacy council.

In 2004 it conducted an EQIA on the adoption of a no-flags policy. The Council had previously flown the Union flag at its main headquarters building on designated flag days.

The EQIA considered that there was a possibility that the policy on flags may have a differential impact upon people as to whether they feel free to fully access the public services available to them. It suggested that there was a possibility that people may experience a “chill factor” in their dealings with Council or visits to the Council offices. This “chill factor” may not prevent people from entering a building or accessing a service but may detract from their ability to participate and benefit fully.

The EQIA also recognised that some employees may experience a “chill factor” when working in a building displaying a flag which would lead them to associate the building with a different political identity. Also, that some employees may experience a “chill factor” when working in a building where their political identity was not recognised in the flag flying practice.

Having considered the findings of the EQIA and the consultation responses, the Council adopted the no-flags policy, noting that the stated intent behind the policy, “in the interests of creating a neutral environment”, was reflective of the Council’s own policies in relation to promoting equal opportunities and combating harassment.

Armagh City and District Council

In 2004 Armagh City and District Council conducted an EQIA of a composite policy which included the flying of the Union flag at its civic headquarters on designated days. The Council reported that strong opinions were voiced by the Unionist and/or Protestant community who generally felt that the Union flag was often singled out for causing offence. There was a “genuine sense of hurt” that 1 and 12 July were not included in the designated days and that this indicated a lack of recognition for Unionist and/or Protestant traditions. There was not the same depth of feeling expressed by the Nationalist and/or Catholic community.

As a result of the EQIA the Council decided to continue to fly the Union flag on designated days. It was acknowledged that both main communities might feel that the policy created an adverse impact for them, but the Council considered that the policy best suited its corporate aim of “creating an inclusive place”.

Newtownabbey Borough Council 2003

In 2003 Newtownabbey Borough Council undertook an EQIA of its existing policy that the Union flag should be flown at all times on its administrative buildings and leisure centres.

In carrying out the EQIA the Council acknowledged that there were alternative policies that would reduce the perceived barrier to Nationalists or Republicans and challenge the stereotype that Newtownabbey was a Unionist-controlled Council which did not take account of the views of other traditions. It was recognised that if the Council did not adopt an alternative policy then those from a Nationalist or Republican tradition would continue to perceive the Council facilities as being unwelcoming. However, the Council determined that the existing policy should be retained on the basis that:

the policy was lawful;
although an adverse impact had been identified, the greater number of respondents had indicated that they would not wish to see a change in the policy; and
altering the policy would have an adverse impact on a greater number of people.

Complaints

There have been no formal complaints regarding the current arrangements for flying the union flag during the lifespan of Causeway Coast and Glens Borough Council.

[1] Review of the Policy on the Flying of the Union flag at Parliament Buildings (niassembly.gov.uk)

[2] https://nihrc.org/publication/...

[3] <a href="http://www.equalityni.org/ECNI/media/ECNI/Publications/Employers%20and%20Service%20Providers/Public%20Authorities/AdviceflyingtheUnionflagincouncils2013.pdf?ext=.pdf

[4" class="redactor-autoparser-object">www.equalityni.org/ECNI/media/...] Advice on Flying the Union flag in Councils, <a href="http://www.equalityni.org/ECNI/media/ECNI/Publications/Employers%20and%20Service%20Providers/Public%20Authorities/AdviceflyingtheUnionflagincouncils2013.pdf?ext=.pdf

[5" class="redactor-autoparser-object">www.equalityni.org/ECNI/media/...] “Promoting a Good and Harmonious Working Environment, A Guide for Employers and Employees”, Equality Commission for Northern Ireland, October 2009

[6] Mr Nicolas Hanna QC, 2002