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High Court of Justice in Northern Ireland Queen's Bench Division Decisions |
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You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Murphy, Re Application for Judicial Review [2001] NIQB 34 (04 October 2001) URL: http://www.bailii.org/nie/cases/NIHC/QB/2001/34.html Cite as: [2001] NIQB 34 |
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Neutral Citation no.[2001] NIQB 34
Ref:
KERF3506
Judgment: approved by the Court for handing down
Delivered:
04.10.2001
(subject to editorial corrections)
IN THE MATTER OF AN APPLICATION BY CONOR MURPHY FOR JUDICIAL REVIEW
KERR J
Introduction
This is an application by Conor Murphy, a member of the Legislative Assembly of Northern Ireland, for judicial review of various decisions taken by the Right Honourable Peter Mandelson MP while he was Secretary of State for Northern Ireland. The decisions relate principally to the introduction of the Flags (Northern Ireland) Order 2000 and the Flags Regulations (Northern Ireland) 2000.
Background
On 11 February 2000 the devolved institutions in Northern Ireland were suspended by the Secretary of State under powers conferred by the Northern Ireland Act 2000. During the period of suspension the Secretary of State was empowered by that Act to carry out the functions of the Assembly, including its law making function. The Assembly had power to make laws in relation to the flying of flags and that power also passed to the Secretary of State.
In an affidavit filed on behalf of the respondent, Mr Robert Crawford, a senior civil servant in the Northern Ireland Office, stated that it was the Secretary of State's view at that time that it would be right for future substantive policy on the flags issue to be determined by locallyelected representatives in Northern Ireland, if possible.
By 15 May 2000, however, no resolution of the flags issue had emerged from any of the discussions between locally elected representatives in Northern Ireland and on that date the Secretary of State wrote to the party leaders to explain how he proposed to handle the matter. While restoration of the devolved institutions was at this time expected, the Secretary of State had decided that a draft Flags (Northern Ireland) Order should be made but in his letter to the party leaders he made it clear that he preferred that the Executive Committee should agree on the basis for the flying of flags and that if it could reach agreement he would not envisage using the power to regulate the issue.
The Flags (Northern Ireland) Order 2000 was approved by both Houses of Parliament on 16 May 2000. On 30 May 2000 the devolved institutions in Northern Ireland became operative again. On 23 June 2000 the Executive Committee established a sub-committee to discuss the flags issue and report back to it. On 6 July 2000 the sub-committee reported to the Executive Committee that it could not reach agreement on the issue. In the absence of agreement, the Secretary of State wrote to the political parties on 10 July 2000 stating that he was considering making draft Regulations under the power conferred by the Flags (Northern Ireland) Order 2000 and seeking their views.
On 8 September 2000, following consideration of the views received in response to his letter of 10 July 2000, the Secretary of State sent to the Assembly a set of draft Regulations in compliance with the procedure set out in the Flags (Northern Ireland) Order 2000. The Secretary of State asked the Assembly to report its views on the Regulations to him by 20 October 2000. The Assembly reported to the Secretary of State on 18 October 2000. The report contained no agreed recommendations. The Secretary of State then laid the draft Regulations before Parliament on 23 October 2000.
The House of Commons debated the draft Regulations on 25 October 2000. In the course of this debate, the Secretary of State stated that agreement within the Assembly or the Executive Committee would have removed the need for him to make these Regulations but that such agreement had not been forthcoming. He also stated that in the absence of agreement it would be wrong to leave to individual Ministers the decision about whether or how the Union flag should be flown, with practice differing from building to building. The Secretary of State also emphasised that if the Executive Committee was able to agree a way forward in the coming weeks and months, he would happily seek the approval of Parliament to revoke the Regulations.
Following this debate, the Regulations were made by the Secretary of State on 8 November 2000 and came into effect on 11 November 2000. Regulation 2 provided: -
"2. - (1) The Union flag shall be flown at the government buildings specified in Part I of the Schedule to these Regulations on the days specified in Part II of the Schedule. (2) The Union flag shall be flown on the days specified in Part II of the Schedule at any other government building at which it was the practice to fly the Union flag on notified days in the period of 12 months ending with 30th November 1999. (3) In paragraph (2), "notified days" means days notified by the Department of Finance and Personnel to other NorthernIreland Departments as days for the flying of the Union flag at government buildings during the period of 12 months ending with 30th November 1999. (4) Where a government building specified in Part I of the Schedule has more than one flag pole, the European flag shall be flown in addition to the Union flag on Europe Day."
The case for the applicant
The applicant claims that the Secretary of State's letter of 10 July had only intimated an intention to initiate action about the making of regulations on the flying of flags on government buildings. It did not give any indication that he intended at that time to actually make the regulations. For reasons that will later appear, the applicant claims that the Secretary of State's letter was deliberately misleading on this point.
He also suggests that the Regulations were made on a misconceived basis, viz that the Executive Committee had not been able to reach agreement on the flags issue. In fact, according to the applicant, the Executive Committee had merely deferred a decision on the matter.
The applicant further submits that the real purpose of the Secretary of State in enacting the Flags Order and in subsequently making the Flags Regulations was to accommodate the Ulster Unionist party. Specifically, it is alleged that a covert arrangement was reached on the flags issue between Mr Mandelson and the Right Honourable David Trimble MP, the leader of the Ulster Unionists so as to enable the latter to persuade his party to return to the institutions of government after the suspension of those institutions. That agreement had been reached between Mr Mandelson and Mr Trimble in a meeting on 10 May 2000 and had been confirmed subsequently in correspondence, the applicant claims. From that time on, he says, the Secretary of State had determined to enact legislation that would facilitate the Unionist position. He suggests that it was for this reason that the Secretary of State misled the party leaders (other than Mr Trimble) in his letter of 10 July 2000.
The Secretary of State's decision to enact the Flags Order and the Flags Regulations was not in keeping with the Good Friday agreement, the applicant argued; it was contrary to advice given to the Secretary of State by the Equality Commission which advice he failed to take into account and it discriminated against those who were opposed to the flying of the Union flag.
Finally, the applicant claims that the Secretary of State did not have legal authority to enact the Flags Order or to make the Flags Regulations.
Was the Secretary of State's letter of 10 July 2000 misleading?
In his letter of 10 July 2000, the Secretary of State reminded the party leaders that, during the passage through Parliament of the Flags (Northern Ireland) Order 2000, he had indicated that, in the event of a failure to reach agreement on the flags issue, he would be willing to use the powers conferred on him by the Order to make regulations in relation to the flying of flags at government buildings. He then stated that, "as a first step" he would like to have their views on the content of any regulations. He suggested that regulations were unlikely to be made until after the summer recess.
In my view, this letter signalled clearly an intention to make regulations in the absence of any agreement on the flags issue by the Executive. No such agreement in fact occurred before the Regulations were made, nor has there been an agreement since. I do not consider therefore that the letter from the Secretary of State is in any way misleading.
The basis for the Regulations
The applicant's claim that the Regulations were made on a misconceived basis, viz that the Executive Committee had not been able to reach agreement on the flags issue, must be examined in light of the contemporary evidence. In his letter to the political leaders of 10 July 2000, the Secretary of State said: -
"I understand that at the most recent meeting of the Executive Committee there was a discussion of policy on the flying of flags at Government buildings, on the basis of a report from a sub-committee of the Executive. I gather it did not prove possible to reach agreement."
This statement is unexceptionable. In a letter of 23 June 2000, the First Minister and Deputy First Minister had informed Mr Mandelson that the Executive Committee had established a sub-committee to consider the question of flying flags on public buildings and that it had reported that it had been unable to reach agreement on the issue. In a further letter to the Secretary of State on 19 July 2000, the First Minister and the Deputy First Minister reminded him that the sub-committee's report "had been noted by the Executive Committee at its meeting on 6 July without prejudice to the matter coming before the Executive Committee at a future meeting for further discussion".
In his letter of 10 July 2000, the Secretary of State said: -
"I do not want my own actions to be a substitute for continuing dialogue between local parties and I hope that it still might be possible to promote a consensus on the issue. I believe that this is possible to achieve, with a willingness on all sides to arrive at a sensible way forward, and I would encourage everyone to continue to seek this."
In his reply to this letter, Gerry Adams MP, leader of Sinn Fein, stated that this issue was "a matter for ongoing discussions in the Executive". None of the replies from the other party leaders addressed directly the prospect of any agreement emerging from Executive Committee discussions. It was against this background that the Secretary of State moved the draft Regulations in Parliament on 25 October 2000. On the subject of the lack of agreement on the issue, he said: -
"The Executive could not reach agreement – nor could the multi-party Assembly ad hoc committee that was debated by the Assembly on 17 October. For that reason – and I regret it – it is not possible to draw up regulations which all the parties would welcome. However, the door remains open. If, in the coming weeks and months, the Executive is able to agree a way forward, I will happily revoke the regulations, with the approval of Parliament, to make way for a solution which enjoys the support of all parties."
Again, it appears to me that this statement cannot be criticised. While it is true that the Executive had reserved to itself the opportunity to revisit the issue, it had plainly not been able to reach agreement up to that point. The Secretary of State could not have been more explicit in saying that if the Executive found it possible to reach agreement in the future that he would seek to revoke the Regulations. I do not consider, therefore, that there is any substance in the claim that the Regulations were made on a misconceived basis.
The agreement between Mr Mandelson and Mr Trimble
The discussions between Mr Mandelson and various political leaders in Northern Ireland, including Mr Trimble, were described in an affidavit of William Jeffrey, political director of the Northern Ireland Office. By way of background, Mr Jeffrey explained that the flags issue had been a controversial one during the life of the Assembly before suspension and continued to exercise the political parties at the time that the restoration of the devolved institutions was anticipated. He dealt with the matter in the following paragraph of his affidavit: -
"2. During the first period of devolution, the flying of flags over government buildings became a matter of contention among the political parties. When devolution was suspended on 11 February 2000, the matter had not been resolved by the Executive. Several political parties had particular concerns they wished to see addressed before any return to devolution. The flags issue was one such concern for the Ulster Unionist Party. The Ulster Unionist Party contended that, before the institutions were restored, the Government should resolve the issue by legislating immediately to require the flying of the Union Flag, and no other flag, over designated government buildings on the relevant days."
Mr Jeffrey then explained the approach taken by the Secretary of State during the period that the Executive was suspended: -
"3. Mr Mandelson was conscious both of the significance of the issue for unionists and of the view which nationalists and republicans were likely to take of any legislation of the kind for which the Ulster Unionist Party were arguing. However, in April 2000 without reaching a decision on the flags issue he asked officials to identify options for the introduction of an Order in Council, and to include an approach under which he would take a reserve power, by Order, to regulate flag flying at a later date. The thinking behind Mr Mandelson's proposal for an Order with a reserve power was to give the Executive the further opportunity to reach consensus on the matter after devolution was restored. No arrangement was made with the Ulster Unionist Party."
Before the suspension ended there were meetings between the Secretary of State and representatives of the political parties. Mr Jeffrey described those meetings in this way: -
"4. There were general political talks at Hillsborough from 3-5 May 2000, involving several of the political parties in Northern Ireland and the British and Irish Governments, the purpose of which was to find an agreed basis on which devolved government could be restored. In the course of those talks, the concerns of all the parties represented were addressed. Robert Crawford and I were among the officials supporting the former Secretary of State during the Hillsborough talks, but I was present when the flags issue was discussed between Mr Mandelson and Mr Trimble. Mr Trimble identified the issue as one of a number which the Ulster Unionist Party would wish to see addressed before the Ulster Unionist Council took a decision on whether to participate in the devolved institutions. At that stage Mr Mandelson was indicating to Mr Trimble a willingness to introduce an Order in Council to deal with the flags issue without giving any other detail as to how that might be achieved.
5. In essence the instructions from Mr Mandelson of April 2000 involved the working up of two options, namely an Order in Council to provide for the flying of flags by its own terms or alternatively to give a reserve power to the Secretary of State to introduce Regulations at a later date. This exercise was not completed during the talks of 3-5 May 2000. On 9 May 2000 Mr Mandelson considered the options prepared by officials and his general decision on the flags issue was to proceed by way of Order in Council giving him power to make Regulations; the Regulation making power to be as general as possible; the Regulations to be made subject to consultation with the Assembly; the Order to come into effect if the Executive failed to reach agreement on the issue; to advise Northern Ireland political parties, the Irish Government, the authorities at Buckingham Palace and the Scottish and Welsh devolved administrations of the proposals. … "
On the suggestion that the Secretary of State had agreed covertly with Mr Trimble that there would be legislation on the flags issue to ease the Unionist position, Mr Jeffrey said this: -
"6. A meeting took place between Mr Mandelson and Mr Trimble on 10 May 2000 at which I was present. Mr Trimble was informed of Mr Mandelson's position on the flags issue as set out above. Mr Trimble wanted Mr Mandelson to go further, and legislate with direct effect to regulate flag flying before devolution was restored, but Mr Mandelson declined to do so, on the basis that the Executive should have more time to resolve the matter by consensus. It was understood that, if such consensus could not be reached, the regulation-making power would be used in order to regulate the flying of the Union Flag, but there was no specific understanding about when it would be used or with what detailed effect.
7. After that meeting of 10 May 2000 the letter of 15 May 2000 was sent to Mr Trimble. The relevant part read as follows:
'I know your concerns about flag flying from public buildings. I look to the Executive to address the issue. But if the Executive cannot reach consensus, I do not want this to become a running sore. Consequently, I will take the power by Order in Council to provide a proper legal basis for the regulation of the flying of flags, including on official flag days. I will, of course, consult fully with all parties before exercising it.'
The extent of Mr Mandelson's agreement with Mr Trimble is contained in this passage of the letter of 15 May 2000, which was published at the time.
8. Mr Mandelson did not agree to introduce the Flags Order for reasons of political expediency to accommodate Mr Trimble and the Ulster Unionist Party. In reaching the decision to introduce the Flags Order, Mr Mandelson was, of course, aware that by doing so he might make it easier for the Ulster Unionist Party to agree to rejoin the Executive. However Mr Mandelson took the decision to introduce the Order on the basis that in all the circumstances that was the appropriate means of addressing the flags issue which was having a destabilising effect on the political process. His principal concern was to find a means of resolving the issue, if the Executive did not succeed in resolving it itself, in a manner which did least damage to the political process. The phrase "I do not want this to become a running sore", which I can recall Mr Mandelson drafting himself, is, I believe, indicative of his thinking at the time. He did not consider that the action he took was inconsistent with the Good Friday Agreement or the provisions of the Human Rights Act 1998 or the Northern Ireland Act 1998. Had he done so, he would not have taken such action."
In advancing the case that the Secretary of State had reached a "pact" with the Ulster Unionist leader, Mr Treacy QC for the applicant relied heavily on an answer given by Mr Mandelson in Parliament during the debate on the draft Flags Order. In reply to Mr Eric Forth MP, the Secretary of State confirmed that he intended to exercise the powers contained in the draft Order to ensure that only the Union flag would fly over government buildings in Northern Ireland. This, Mr Treacy argued, was evidence of the agreement that Mr Mandelson had reached with Mr Trimble since this was the result that Mr Trimble had sought in his meeting with the Secretary of State and the result that he required in order to persuade his party to return to participation in the devolved institutions.
Mr Treacy also relied on the terms of Mr Trimble's letter in response to Mr Mandelson's of 10 July 2000. In his letter of 21 July 2000, Mr Trimble said: -
"As you are … aware, the resolution of [the flags] issue to our satisfaction was one of those matters which enabled me to recommend to my party that we re-enter the devolved institutions following suspension. I now look to you to maintain Her Majesty's Government's commitments to me in this regard…
As this issue was one of those issues that formed the basis of an agreement between my party and Her Majesty's Government I would be grateful for close and ongoing consultation on this issue."
The respondent's answer to these arguments is a direct one. It is accepted that there was an agreement between Mr Mandelson and Mr Trimble. The respondent claims that there has never been any secret about that. Indeed, as Mr Jeffrey pointed out, part of the text of Mr Mandelson's letter of 15 May 2000 to Mr Trimble was published by the latter at the time. There was nothing untoward about this agreement, the respondent says; it was the type of agreement that is reached frequently in political discussions and could not conceivably be used as a basis to invalidate the Order or the Regulations.
I accept the respondent's arguments on this point. It appears to me that the Secretary of State was entitled to disclose to Mr Trimble what his intentions were in relation to the flags issue. He would have been (as Mr Jeffrey has again made clear) aware that this might well ease Mr Trimble's position vis-à-vis his political colleagues, but this did not render any agreement between them unlawful. If Mr Trimble interpreted the exchange with Mr Mandelson as a commitment to him, again this does not invalidate the enactment of the subsequent legislation.
In light of Mr Jeffrey's averments on the subject, I accept that, in expressing his intentions to Mr Trimble, the Secretary of State did not do so "for reasons of political expediency to accommodate Mr Trimble and the Ulster Unionist party". Even if he had done so, however, his decision to introduce the Order and to make the Regulations could not be quashed on that account alone. Such a decision is the stuff of politics. It is not subject to judicial review.
Discrimination
The applicant claims that the requirement in the Regulations that the Union flag be flown on government buildings discriminates against those who are opposed to the flying of this flag. In particular, he claims that it is inconsistent with section 75 of the Northern Ireland Act 1998 in that it promotes inequality between persons of different political opinions and thereby places at an advantage those who favour the flying of the Union flag over those who oppose it. It is also claimed that the Flags Regulations are inconsistent with section 76 of the Act in that they discriminate against those with nationalist/republican political opinions.
Section 75 of the Northern Ireland Act 1998 provides: -
"75. – (1) A public authority shall in carrying out its functions relating to Northern Ireland have due regard to the need to promote equality of opportunity-
(a) between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation;
…
(2) Without prejudice to its obligations under subsection (1), a public authority shall in carrying out its functions relating to Northern Ireland have regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group.
(3) In this section "public authority" means-
(a) any department, corporation or body listed in Schedule 2 to the Parliamentary Commissioner Act 1967 (departments, corporations and bodies subject to investigation) and designated for the purposes of this section by order made by the Secretary of State;
(b) any body (other than the Equality Commission) listed in Schedule 2 to the Commissioner for Complaints (Northern Ireland) Order 1996 (bodies subject to investigation);
(c) any department or other authority listed in Schedule 2 to the Ombudsman (Northern Ireland) Order 1996 (departments and other authorities subject to investigation
(d) any other person designated for the purposes of this section by order made by the Secretary of State."
On behalf of the respondent, Mr Weatherup QC submitted that the Secretary of State was not a public authority for the purpose of section 75. The applicant countered this claim by arguing that, since, in exercising the power to make the Regulations, the Secretary of State was performing a function that would normally fall within the powers of the Assembly and since the Assembly was clearly a public authority under section 75, the Secretary of State must also be constituted a public authority for the purposes of that provision.
It is not strictly necessary for me to decide this point in order to reach a conclusion on the application of section 75 to the making of the Regulations but I am confident that the respondent's argument must prevail. Only those bodies or agencies specified in section 75 (3) of the Act are to be public authorities for the purpose of the section. The fact that the Secretary of State was performing a function that, in other circumstances, might have been carried out by the Assembly could not bring him within the provision. In this context it is worthy of note that section 76 (7) provides that a public authority shall include a Minister of the Crown. If it had been intended that the Secretary of State should be subject to section 75, that could have readily been made clear, as it has been in section 76.
In any event, I do not consider that, in making the Regulations, the Secretary of State acted in breach of section 75. As Mr Mandelson stated, in introducing the Flags Order to the House of Commons, the flying of the Union flag is not designed to favour one tradition over another; it merely reflects Northern Ireland's constitutional position as part of the United Kingdom. The matter was put thus by Mr Crawford in his first affidavit: -
"25. I have read the Applicant's Order 53 Statement and the affidavit of Conor Murphy sworn on 6 November 2000 and would respond in the following general terms. It is a misunderstanding of the Secretary of State's position on the flags issue to see it as supporting any side against the other. It is also misconceived to view equality as being about the elimination of that to which one objects. On the contrary, the Secretary of State's approach has been, in the absence of agreement within the Executive Committee, to promote, consistently with the constitutional status of Northern Ireland as confirmed at Section 1 of the Northern Ireland Act 1998, a recognition of the need for sensitivity in relation to the flying of flags and the need for respect for the rights and aspirations of others. A balance has been arrived at. The Union flag will fly on Government buildings in Northern Ireland on those days on when it is customarily flown in other parts of the United Kingdom. It will not, however, be flown on days when it is not flown in other parts of the United Kingdom. In recognising the constitutional position of Northern Ireland as in the rest of the United Kingdom, the Secretary of State also accepted that the Union flag should not be flown on more days in Northern Ireland than in the rest of the United Kingdom. In endorsing this approach the Secretary of State took the view that the Union flag should not be flown excessively or to provoke others. I refer to an extract from the House of Lords debate on the Regulations exhibited hereto marked RC8. On page 1195 of the debate Lord Falconer said:
'I believe that these Regulations are consistent both with the principles of the Belfast Agreement and with the wishes of the majority of the people of Northern Ireland, from both traditions, who wish to see flag flying handled in a sensitive, respectful and, above all, non-provocative way. The Regulations properly recognise Northern Ireland's place in the United Kingdom, while respecting the concerns of those who hold to a different identity and aspiration. What we are seeking to achieve is mutual respect, both for the flying of the Union flag - and other flags as provided in the Regulations - and for those who hold a different political aspiration by limiting the flying of the Union flag to reflect practice in the rest of the United Kingdom. The flying of the Union flag to provoke others shows no respect for that flag.'
In dealing with the issue of the flying of flags at Government buildings as in the rest of the United Kingdom, and reducing the number of flag flying days to bring Northern Ireland into line with this, the Regulations follow the principle that it is the inappropriate or excessive use of symbols, including flags, which should be eliminated, not their constitutional significance. The Regulations achieve a balance based on respect for diversity and tolerance of difference, in full accord with the principles and spirit of the Belfast Agreement. They do not threaten the interests of anyone in Northern Ireland."
These passages also provide an answer to the applicant's complaint that the making of the Regulations offended section 76 (1) of the Northern Ireland Act. It provides: -
"76. - (1)It shall be unlawful for a public authority carrying out functions relating to Northern Ireland to discriminate, or to aid or incite another person to discriminate, against a person or class of person on the ground of religious belief or political opinion."
The making of the Regulations and the requirement that the Union flag be flown on government buildings do not treat those who oppose this any less favourably. The purpose of the Regulations is, as I have said, to reflect Northern Ireland's constitutional position, not to discriminate against any section of its population.
The Equality Commission
The applicant claims that the Secretary of State failed to have regard to the recommendations of the Equality Commission. It had expressed grave reservations about the proposed Regulations when it was consulted about them by the Secretary of State. They expressed these concerns in evidence to the sub-committee of the Assembly and in a letter to the Secretary of State dated 18 October 2000.
Mr Crawford dealt with this matter in his second affidavit as follows: -
"6. The Secretary of State was made aware of the views of the Equality Commission on the Flags Regulations. Those views appeared in the minutes of the evidence given by the Equality Commission to the Assembly's Ad Hoc Committee on Flags and which was submitted to the Secretary of State on 18 October 2000 and considered by the Secretary of State. Further a separate report on the issue prepared by the Equality Commission was submitted to the Secretary of State on 18 October 2000 and considered by the Secretary of State."
In view of the unambiguous statement contained in this paragraph that the Secretary of State considered all the representations made by the Equality Commission, it is impossible to accept the claim that he failed to take these into account.
The Belfast Agreement
The applicant claims that the Regulations are inconsistent with the Good Friday Agreement in that they fail to have regard for "partnership, equality and mutual respect" between opposing political parties and are contrary to the undertakings given in the Agreement that the Government's jurisdiction in Northern Ireland "shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions " and that they fail to recognise the birthright of those who wish to be accepted as Irish.
Mr Crawford dealt with this claim in paragraph 25 of his first affidavit (quoted at pages 16 and 17 above). He also touched on the same theme in paragraphs 18 and 19 of the same affidavit as follows: -
"18. The Flags Regulations make no distinction between persons or classes of persons on the ground of religious belief or political opinion and do not discriminate against nationalists or republicans or promote unionism/loyalism. The Regulations are not a party political measure but rather are concerned with achieving mutual respect for differing traditions by limiting the use of the flag, which signifies the constitutional status of the State, in a way which strikes an appropriate balance between differing traditions and encourages tolerance.
19. The Secretary of State took into account and had regard to the Good Friday Agreement in the course of making the Regulations, as is noted hereinbefore. He denies that the Regulations are inconsistent with the Good Friday Agreement or that they have no regard for "partnership, equality and mutual respect" between opposing political opinions. … The Secretary of State is of the opinion that in making the Regulations he has acted with rigorous impartiality and he denies that the Regulations are in conflict with any of the matters referred to at paragraph 3(iv) of the amended Order 53 Statement. In the course of the decision-making process the Secretary of State considered the Agreement prior to the drafting of the Regulations as the effect of the Agreement upon the flags issue had been commented upon by a number of the political parties. After the draft Regulations were prepared, the Secretary of State also considered the Agreement in the context of comments made upon it in the Assembly Committee's report and in the Assembly's Ad Hoc Committee's report and in the debate in the Assembly itself."
These paragraphs set out the political considerations that informed the Secretary of State's approach to the Regulations. 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.
The power to make the Regulations
The applicant's claim that the Secretary of State did not have power to make the Regulations began with an analysis of the legislative powers conferred on the Assembly by the Northern Ireland Act 1998. The preamble to that Act is in the following terms: -
"An Act to make provision for the government of Northern Ireland for the purpose of implementing the agreement reached at multi-party talks on Northern Ireland set out in Command Paper 3883"
Part II of the Act, entitled "Legislative Powers" came into force on 2 December 1999. Section 5 (1) (which is included in Part II) provides: -
"5. – (1) Subject to sections 6 to 8, the Assembly may make laws, to be known as Acts."
Subsections (2) to (5) of section 5 provide for the procedure by which a measure of the Assembly becomes law and for the immunity of proceedings leading to the enactment of an Act of the Assembly from legal challenge. Section 5 (6) provides as follows: -
"5. – (6) This section does not affect the power of the Parliament of the United Kingdom to make laws for Northern Ireland, but an Act of the Assembly may modify any provision made by or under an Act of Parliament in so far as it is part of the law of Northern Ireland."
There is, therefore, the opportunity for overlapping in the legislation of the Assembly and the Parliament of the United Kingdom but only in so far as the latter's legislation deals with matters within the legislative competence of the Assembly. This is dealt with in section 6. It provides: -
"6. – (1) A provision of an Act is not law if it is outside the legislative competence of the Assembly.
(2) A provision is outside that competence if any of the following paragraphs apply –
(a) it would form part of the law of a country or territory other than Northern Ireland, or confer or remove functions exercisable otherwise than in or as regards Northern Ireland;
(b) it deals with an excepted matter and is not ancillary to other provisions (whether in the Act or previously enacted) dealing with reserved or transferred matters;
(c) it is incompatible with any of the Convention rights;
(d) it is incompatible with Community law;
(e) it discriminates against any person or class of person on the ground of religious belief or political opinion;
(f) it modifies an enactment in breach of section 7.
…
(4) Her Majesty may by Order in Council specify functions which are to be treated, for such purposes of this Act as may be specified, as being, or as not being, functions which are exercisable in or as regards Northern Ireland.
…"
Section 8 of the Act deals with certain cases in which the consent of the Secretary of State is required. It provides: -
"8 - The consent of the Secretary of State shall be required in relation to a Bill which contains—
(a) a provision which deals with an excepted matter and is ancillary to other provisions (whether in the Bill or previously enacted) dealing with reserved or transferred matters; or
(b) a provision which deals with a reserved matter."
Section 4 of the Act deals with excepted reserved and transferred matters. Subsection (1) provides: -
"4 -(1) In this Act—
"excepted matter" means any matter falling within a description specified in Schedule 2;
"reserved matter" means any matter falling within a description specified in Schedule 3;
"transferred matter" means any matter which is not an excepted or reserved matter. "
The excepted matters in Schedule 2 include: -
" The Crown, including the succession to the Crown and a regency, but not –
(a) functions of the First Minister and deputy First Minister, the Northern Ireland Ministers or the Northern Ireland departments, or functions in relation to Northern Ireland of any Minister of the Crown."
Paragraph 1 of Schedule 3 provides that reserved matters include the conferral of functions in relation to Northern Ireland on any Minister of the Crown.
The applicant submitted that the flying of flags was a transferred matter and that the Northern Ireland Assembly was exclusively competent to legislate on this subject before the suspension of the democratic institutions. That suspension was effected by the Northern Ireland Act 2000, section 1 of which provided: -
"1 –(1) While this section is in force, the Northern Ireland Assembly is suspended and the following provisions of this section have effect.
(2) No Act is to be passed by the Assembly."
This section came into force on 12 February 2000 by virtue of the Northern Ireland (Commencement) Order 2000. Paragraph 1(1) of the Schedule to the 2000 Act provides that while section 1 is in force, Her Majesty may by Order in Council make provision for any matter for which the 1998 Act authorises or requires provision to be made by Act of the Assembly. By paragraph 1 (2) of the Schedule a provision that would be outside the legislative competence of the Assembly may not be included in such an Order. Under paragraph 1 (3) if section 1 is in force for a period of more than six months, sub-paragraph (1) applies only during the first six months of that period.
For the applicant Mr Treacy argued that the legislative framework of the Schedule clearly signified that the opportunity for the Secretary of State to legislate in the place of the Assembly should arise only when the Assembly was suspended. The Flags (Northern Ireland) Order 2000 did not come into force until 8 September 2000 (by virtue of the Flags (2000 Order) (Commencement Order) (Northern Ireland) 2000). In the meantime, on 27 May 2000 the Northern Ireland Act 2000 (Restoration of Devolved Government) Order 2000 came into force on 27 May 2000. Mr Treacy submitted that upon the restoration of the Assembly the power to legislate in respect of flags reverted to the Assembly. The Secretary of State was, he claimed, legally incompetent to legislate on the matter of flags thereafter.
For the respondent Mr Weatherup pointed out that paragraph 2 (1) of the Schedule to the Northern Ireland Act 2000 provides that an Order in Council may not be made under paragraph 1(1) unless a draft of the Order has been approved by resolution of each House of Parliament. The Flags Order was made on 17 May 2000 while section 1 of the Act remained in force and was approved by resolution as required by the provisions of the Schedule. (The Northern Ireland Act 2000 (Restoration of Devolved Government) Order 2000 came into force on 30 May 2000 and section 1 of the Act of 2000 therefore ceased to have effect on that day). The Order contained provisions that could have been included in an Act of the Assembly viz the power of the Secretary of State to make a Commencement Order and the power to make regulations. Article 1 (2) of the Order gave the Secretary of State power to appoint a commencement date and by Article 3 (1) he was given power to make regulations.
The Northern Ireland Act 2000 (Modification) Order 2000 came into force on 30 May 2000 and added Section 3 (8), (9) and (10) to the 2000 Act. Section 3 (9) provides that no "instrument" made while Section 1 was in force shall be liable to annulment or revocation in pursuance of a "resolution, motion or address" of the Assembly. The applicant claimed that this provision had the effect of entrenching the Flags Order and made the flags issue an excepted matter. But, as Mr Weatherup submitted, "instrument" is to be contrasted with "enactment" and applies to rules or regulations. Section 8 (1) defines "enactment" as including: -
" (a) a provision of an Act (including this Act);
(b) a provision of, or of any instrument made under, Northern Ireland legislation; and
(c) a provision of subordinate legislation"
Section 3 (9) does not therefore prevent modification or revocation of the Flags Regulations (which is an instrument as defined in section 8 (1)) by an Act of the Assembly. As noted above, section 5 (6) of the 1998 Act recognised that while the United Kingdom Parliament may make laws for Northern Ireland, an Act of the Assembly may modify any provision of an Act of the United Kingdom Parliament in so far as it related to the law of Northern Ireland.
Section 3 (10) of the Modification Order provides that a "Restoration Order" shall not affect the operation of any Order in Council made under paragraph 1 (1) of the Schedule during any period when section 1 was in force. This does not prevent an Act of the Assembly revoking the Flags Order. It merely confirms that the Flags Order remains in force after restoration of the Assembly and that the "Restoration Order" does not itself have any impact on the Flags Order.
The power to order commencement of the Flags Order and the power to make regulations involved the conferral of functions on a Minister of the Crown. As such they involved reserved matters under paragraph 1 of Schedule 3 to the 1998 Act. This required the consent of the Secretary of State but, since he was himself the person who presented the Order in Council to Parliament, he is to be taken as having furnished the required consent.
By the Flags (2000 Order) (Commencement) Order (Northern Ireland) 2000 the Secretary of State appointed 7 September 2000 as the day for the commencement of the Flags Order. The Flags Regulations (Northern Ireland) 2000 were made by him on 11 November 2000. Nothing in the Act of 2000 or the Flags Order required that either power (under Article 1 (2) and Article 3 (1) of the Flags Order) should be exercised during the period of the suspension of the devolved institutions. I am satisfied, therefore, that the Secretary of State was legally competent to bring the Order into force and to make the Regulations. The application for judicial review must be dismissed.
IN THE MATTER OF AN APPLICATION BY CONOR MURPHY FOR JUDICIAL REVIEW
