About this case:

• Court:
  High Court
• Judge:
  Mrs Justice Keegan

Finding that in introducing the Regulations, the Secretary of State for Northern Ireland had fulfilled his obligations in having regard to the GFA, Mrs Justice Siobhan Keegan rejected the woman’s argument that the Regulations offended the principle of “parity of esteem”.

Background

Helen McMahon contended that, as a member of the nationalist community in Northern Ireland, she does not recognise the union flag as her national flag, and does not believe it represents her beliefs or the beliefs of the nationalist community generally. 

She brought proceedings challenging the Flags (Northern Ireland) Regulations 2000, arguing that they were unlawful and in breach of a guarantee of parity of esteem within the terms of the Good Friday Agreement 1998. Ms McMahon said that the Secretary of State for Northern Ireland acted ultra vires by introducing the 2000 Regulations. 

The discrete point at issue in the proceedings was whether the 2000 Regulations offended the principle of “parity of esteem”.

In a similar challenge brought in 2001, it was argued that the requirement in the Flags (Northern Ireland) Regulations 2000 that the union flag be flown on government buildings discriminated against those opposed to it. In particular, it was claimed that this was inconsistent with s.75 of the Northern Ireland Act 1998 in that it promoted inequality and placed those who favoured flying the union flag at an advantage.

Finding that the 2000 Regulations did not offend the GFA, Mr Justice Kerr (as he then was) concluded that the flying of the flag merely reflected Northern Ireland’s constitutional position as part of the United Kingdom.   

Considering the present challenge, Mrs Justice Keegan said there was substantial merit in the argument that the issue raised in Ms McMahon’s case is res judicata given the examination of it in 2001.

Obligations to individual citizens and communities

Ms McMahon argued that the 2001 decision only examined one aspect of Article 1(v) of the GFA – namely individual rights, and that it failed to address the wider aspirations of both communities. In this regard, Ms McMahon argued that Article 1(v) should be separated into two distinct principles:

• (a) an obligation to exercise “with rigorous impartiality on behalf of all people in their diversity and traditions”; (applying to individual citizens)
• (b) that the power being exercised shall be founded on the principles of “full respect for, and equality of, civil, political, social and cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity, ethos and aspirations of both communities.” (applying to communities)

Justice Keegan rejected the argument that the 2001 decision was restricted to individual rights, said she was not attracted to Ms McMahon’s arguments because:

• It was artificial to disaggregate parity of esteem as a separate consideration or principle from the overriding objective contained in Article 1(v) – which reads as one paragraph, and it was unhelpful to interpret it in any other way. 
• The principles contained in the GFA ensure that there must be proper regard for “partnership, equality and mutual respect” of “all of the people and the diversity of their identities and traditions” – encompassing the rights of individuals and communities.
• The concept of parity of esteem is not defined in the Agreement itself, nor is there any reference to it in the Northern Ireland Act 1998. Justice Keegan favoured the analysis that parity of esteem comes within the broad principles of equality, fairness and respect as applied to the two communities in NI. 
• The commitment to equality must be framed by virtue of the fact that Northern Ireland would remain part of the United Kingdom pending a decision by the people in relation to this.  There has been no change to this constitutional position.  This part of the Agreement is enacted in Section 1 of the Northern Ireland Act 1998
• The requirement in the Flags (Northern Ireland) Order 2000 in Article 4(4) is to have regard to the GFA when making regulations – allowing the Secretary of State discretion as to how this is fulfilled. 
• Evidence provided by the Secretary of State made it clear that the general principles of the GFA were taken into account, including parity of esteem. Justice Keegan said that no new facts had emerged since the 2001 case, and that it was ‘abundantly clear’ that the Secretary of State fulfilled his obligations in having regard to the GFA.

Finding that the Regulations were not unlawful, Mrs Justice Keegan dismissed the application.

• by Seosamh Gráinséir for Irish Legal News