EDITORIAL: Sinn Fein’s flag motion is an absurd and legally illiterate stunt with little prospect of success
By Jamie Bryson– Editor@UnionistVoice.com
The motion passed on Monday night mandates Belfast City Council officials to take legal action to compel the removal of “paramilitary flags” and “British Army banners”. Therefore, when drafting their proposed legal action council officials will be constrained by the text of Sinn Fein’s own motion.
They face several hurdles with their ill-conceived and ludicrous legal action. The first is a question as to whether they have even locus standi to bring a court action. They are essentially trying to intervene in what amounts to a civil dispute between a third-party land owner and others; they got over the locus standi hurdle in relation to the Walkway bonfire because there was a perceived risk to their land- this is an entirely different matter whereby not only is there no risk to Belfast City Council property but there is no threat to life or property per se.
The council would then have to define “paramilitary flags”. The law does not deal in perception, but in fact. The fact is that there is no such thing as a paramilitary flag in of itself. The action of erecting a flag would become illegal if it were to be showing support for an organisation proscribed under the Terrorism Act.
However, it is well established in fact and law that commemorative and/or dated UVF flags are not illegal as they refer to the original UVF, rather than the current proscribed organisation. Dr John Kyle’s contribution on BBC Nolan in relation to the legal position around UVF commemorative flags is simply wrong in law.
Furthermore, and I have yet to hear the argument made, but I imagine some may also say that UDA flags actually refer to the organisation which was for a long period of time legal, rather than the modern proscribed UDA. This argument would likely be strengthened if going forward such flags were to specifically carry a 1971-1992 inscription on them in order to make clear that such flags are in relation to an organisation prior to the date of proscription.
As such, Sinn Fein’s legal action- even if successful on their dubious point- would not be able to seek the removal of the majority of UVF and UDA flags on display.
Then the applicants would have to explain to the court their methodology for only seeking the removal of some flags and banners, and not others. The whole basis for their action appears to be that the banners and flags were erected without permission; it is in this context somewhat of an absurd proposition to go to the court and ask for a order compelling the removal of only some of what they say are unlawfully erected flags.
If the asserted illegality in the application is erecting flags or banners without permission, then this test would have to apply across the board; instead Belfast City Council want to use the illegality point to have some items removed, but add a rider that others can stay. I am not sure what genius dreamt up that legally illiterate position, but it would be perhaps the most bizarre remedy ever sought in the High Court.
It is also a point of some note that even if the council were successful, getting a remedy would not be a given. There are all kinds of factors to be weighed, including whether a remedy is appropriate. I would surmise that the courts will be reluctant to become a political hired-gun for pan-nationalism.
The PSNI would also, you would imagine, not be particularly keen to start tearing down banners in support of veterans. There would be many former RUC officers appalled if such a situation were to transpire; many PSNI officers who served in the RUC would, if they had any morals about them, refuse to take part in such an action. It would fracture relationships between the unionist community and the PSNI to an irreparable point.
The motion brought by Sinn Fein, and supported as always by nationalist allies in the SDLP and Alliance, is self-evidently little more than a political stunt- albeit a poorly thought out one with little prospect of success. It has no legal basis and instead is an attempt to litigate political differences and to criminalise culture. It is a glimpse into the kind of ‘police state’ that would exist if the mythical ‘New Ireland’ ever came into being, whereby it would one rule for those who hold viewpoints nationalism agrees with, and another rule for the ‘deplorables’ who refuse to conform.
The SDLP have asserted the test they want applied is whether permission has been sought to alter or display any item on street furniture. They would like to see anyone who does not have permission criminalised. I have repeatedly asked them whether they want those who painted kerbstones on Union Street for gay pride prosecuted, but it appears the SDLP would not want to apply their own test in such circumstances, and thus the whole basis for their pontificating melts like the snow.
As for Sinn Fein’s useful idiots in the Alliance Party, they are even trying to out-green their republican allies. They want all flags torn down; this includes the union flag. It is key to their vision of a utopian society where no one disagrees on anything, everyone hugs, drinks skinny lattes and sings around the camp fire. It is the stuff of communist China.
The pan-nationalist movement on Belfast City Council should remember that the law they want applied against their enemies could very well be the precedent used against their friends.