A lawyer asked to advise the council confirmed the decision was not equality screened in advance, and did not recognise the obligations of workplace regulations.
The Palestinian flag will not fly at Belfast City Hall this weekend, after a successful legal “call-in” was made by local unionist politicians.
Elected members at Belfast City Council will be asked to “reconsider” their decision to erect the flag next Monday at a special council meeting, after the call-in was considered by legal counsel to have merit on procedural grounds but not on community impact grounds.
A lawyer asked to advise the council confirmed the decision was not equality screened in advance, and did not recognise the obligations of workplace regulations.
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At Monday’s meeting council members will have to reconsider their decision and “determine whether there is a disproportionate adverse impact on a section of inhabitants of the district, having regard to the legal opinion received and any other relevant considerations.”
Since the call-in has been successful, the original proposal will face another vote. It is not clear yet whether the original proposal will have to face a vote by simple majority or qualified majority, that is, whether it will have to pass a 50 percent threshold or higher.
Earlier this month at a meeting of the full Belfast City Council, a majority of elected representatives approved a Sinn Féin proposal to erect the national flag of Palestine above City Hall this Saturday November 29, the International Day for Solidarity with the People of Palestine.
A vote on the proposal saw 41 in favour from Sinn Féin, Alliance, the SDLP, the Green Party and People Before Profit, and 15 against from the DUP, the UUP and the TUV. The proposal was carried.
This decision was subsequently called in by 12 unionists from the chamber, from 10 DUP councillors, one UUP councillor and one TUV councillor.
According to local government law, only 15 percent of a council is required to call-in a decision, setting off independent legal examination, a potential an equality impact assessment, then a redetermination of the decision.
If the call-in is seen as competent, it will go back to the full council, where the original proposal might then have to pass anything up to an 80 percent threshold of the vote to be successful.
The 15 percent may ask for a decision to be called-in on two grounds: firstly, that the decision was not arrived at after a proper consideration of the relevant facts and issues; ie, procedural grounds, and/or secondly that the decision would disproportionately affect adversely any section of the inhabitants of the district, ie community impact grounds. The unionist call-in requisition referred to both grounds.
Legal counsel considered that the call-in had merit on procedural grounds. The council report for next Monday’s meeting states: “This is due to the decision not being screened in advance and also that, given City Hall is also a work place, the council did not have regard to its obligations under the Fair Employment and Treatment (NI) Order 1998. Counsel did not consider the call-in on community impact grounds to be made out.”
The call-in requisition form states: “There has not been a full EQIA carried out in respect of this issue, which, given the context, is plainly divisive and controversial. The Israeli-Palestine conflict generates strong viewpoints in Northern Ireland, with significant community division in respect of who is “right” or “wrong.”
“There is further a strong Jewish community in Northern Ireland, and in the Belfast City Council area in particular. The decision to fly the flag of Palestine plainly represents Belfast City Council taking a side in a divisive international conflict, and thus alienates the Jewish community of the district who will be left feeling fearful and abandoned by their local council.
“The decision damages good relations between the Jewish community and others in the council area, and also between the unionist and nationalist traditions, given the generally strong divisive lines that exist between the two main political traditions on this issue.”
It adds: “Those (council) employees who are of a jewish background, or supportive of Israel as a general political opinion, will feel intimidated and harassed by Belfast City Council taking a side, by hoisting the flag of those who have openly declared their intention to murder and ethnically cleanse the Jewish community from their homeland.”
Denise Kiley KC, of the Bar Library, who gave legal counsel on the matter, wrote: “I do not consider that the decision has an adverse impact on the Jewish community as asserted by the requisitioners.”
She wrote: “I do not conclude that the flying of the flag constitutes the Ccouncil “taking a side” in the conflict between Israel and Palestine. The evidence does not support a conclusion that the decision will “send a message which is overtly hostile to the Jewish community”. The evidence from the UN on the purpose and aim of the International Day of Solidarity with Palestine People (set out above) does not support such a proposition.”
She added: “The Fair Employment and Treatment (Northern Ireland) Order 1998 governs an employer’s duty to its employees. Equality Commission guidance on the duties focuses on the concept of a “harmonious” working environment. Since City Hall is a workplace, it is necessary to consider the effect which symbols, emblems and flags have on the working environment. The draft equality screening document is also relevant to this ground.”
She said: “It is evident … that the crux of this ground is the suggestion that advice as to the implications of the legal obligations under FETO arising from the decision were not considered by the committee. Thus, this is a classic allegation that relevant information was not taken into account when making the decision.”
The council report on the upcoming meeting states: “In the interim, and for the avoidance of doubt, council is advised that the legal opinion cannot be treated as determinative. It is for the council itself to determine whether there is merit in the community impact ground; i.e., that the original decision would have a disproportionate adverse impact upon a section of inhabitants in the district, having regard to the appended documents and any other relevant considerations.
“Should the council decide there is merit in the community impact ground relied upon, that decision will dictate the voting mechanism then to be undertaken on the reconsideration of the original decision. If it is determined that there is no merit in the ground, then the decision should be taken by simple majority. If it is determined that there is merit in the ground, then the decision should be taken by a qualified majority.”
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