Question
To ask the Chief Constable for the PSNI policy on the removal of flags, particularly paramilitary flags that have been erected without permission on public property.
Answer
Police Service guidance on flags is currently being reviewed by Legal Services Department and an updated document will be produced in the coming weeks. At present, the Police Service position can be broadly summarised as set out below.
The legislation governing flags is less defined than other legislation referring to community tensions (such as the parading legislation enshrined within the Public Processions (NI) Order). This often results in a confusing picture about the role of the police and our partners in resolving flag disputes.
Our position remains that responsibility for removal of flags rests primarily with the land / property owners. However, we will support them to carry out their statutory duties.
For many years contentious flags have been removed voluntarily through negotiation and mediation and this remains the most effective way of resolving these issues without conflict.
It is recognised that there are times when the Police Service is required to act, such as when negotiation fails and an immediate risk of disorder is likely. It is essential that we are able to demonstrate our commitment to proportionate, lawful, accountable and necessary action, if we are to rely on the support of our communities, politicians and partners.
The Executive Office (TEO) Commission on Flags, Identity, Culture and Tradition final report was published in December 2021 and sought to bring greater clarity on roles and responsibilities[1]. An Executive Office working group was to meet with a view to progressing the commission’s findings. While there is some consensus within the commission report, they were unable to agree on legislative changes or codes of practice.
The Flags Protocol[2], published in 2005 by the Office of the First and Deputy First Ministers, sought to bring some clarity to roles, responsibilities and the process of resolving flags disputes. Subsequent events demonstrated the need for a review of the content of this protocol, which has been underway for some time, but, as yet, there is no indication when the revised protocol will be published. This protocol has been under review since 2008.
Our actions to resolve a flags dispute (such as the physical cordon of a street or the enforced removal of flags) impact on fundamental human rights and will be measured against that standard. Action by police is likely to engage:
Article 9 (freedom of thought, conscience and religion)
Article 10 (expression)
Article 11 (assembly)
While these are not absolute rights, we will need to show the following:
That the law was being broken
That police action was necessary in a democratic society.
Some may interpret the 2005 Flags Protocol as in some way requiring police to act regarding flags, and inferring that we have an automatic power to do so.
The powers to deal with the erection of paramilitary flags are wider than those available to deal with national or commemorative flags, but there is no bespoke legislation which gives the police an arbitrary power to either prevent flags being erected or to remove them once they are flying. The following powers are the most relevant:
Terrorism Act 2000
Common Law (i.e. Breach of the Peace)
Public Order legislation (e.g. Provocative Conduct).
There may also be Offences under The Roads (NI) Order 1997 (e.g. Art. 73 and Art. 87).
In short, there is no such thing as an illegal flag, only the illegal intentions of the person possessing or erecting it. The fact that a flag is paramilitary in nature does not necessarily give rise to a provable criminal offence, nor does it provide an automatic right for the police or other agencies to remove it from public view.
Nuala McAllister - Alliance