Names of ​councillors behind overturned Union Flag motion still being withheld

On Friday, Ards and North Down council conceded defeat in its legal dispute with the loyalist campaigner Jamie Bryson, who had challenged its decision to halt a policy on flying the Union Flag on war memorials 365 days per year.

The original policy was overturned by an Alliance and SDLP ‘call-in’ motion – but the document has been shrouded in secrecy, as have the names of the councillors who sent it to the former chief executive of the council.

The motion was was only revealed as part of Mr Bryson’s legal case. He told the News Letter: “It was only via lodging High Court proceedings I obtained the document, which still can’t be shared with the public. The council continue to try and conceal it in those separate FOI proceedings.

“So the logic is that if I hadn’t lodged High Court proceedings, a call in which was unlawful and out of time would have nevertheless have continued to have effect and act as a barrier to flying the Union flag 365 times a year from War Memorials”.

The council has once again defended its decision to keep the information secret, saying it was “not a published document for public consumption”.

Mr Bryson’s legal action saw the call-in motion overturned and the original policy reinstated – having initially tried and failed to reveal details of the move under FOI laws.

The council’s refusal to name the councillors is despite a tribunal ruling on a similar case earlier this year. It said that Belfast City Council should release the details of a DUP call-in motion on Irish language signs, including legal advice sought by the council on the matter.

But the council says its elected representatives are entitled to “individual data rights protected by legislation”, which “is not waived by their position as elected members of a local government body”. It has also said those involved didn’t want their names disclosed.

TUV Strangford secretary Eddie Allen said there has been a lack of openness in relation to the matter. “Councillors are accountable to the public for their actions and the use - and indeed misuse - of public funds. The council should release the names of the councillors who sought, cack handedly, to defy democracy and if they fail to do that then there is an onus on the councillors responsible to front up for their actions and the no doubt hefty legal bill which ratepayers will have to pay because of them”, he said.

The level of secrecy around a democratic process has prompted criticism from varied quarters.

Martin Rosenbaum, an expert on Freedom of Information legislation has told the BBC’s ‘Nolan Show’ that the issue “goes to the heart of democratic decision making” and that information should be out in the open “so that they can be scrutinised and people can take part in discussions themselves in a well-informed way.”

Daniel Holder, director of the lobby group the Committee on the Administration of Justice, previously told the News Letter: “The legal threshold that has to be met for this type of ‘call-in’ is that a council policy decision would ‘disproportionately affect adversely’ a group in the council area – this essentially means the policy would have a serious discriminatory impact”.

He said these decisions “should not be determined in secret. There needs to be transparency regarding how this is argued and the reasoning for the decision needs to be made public.”

Call-in motions are often used by minority groups in councils, as they require the support of only 15% of councillors to have a policy paused and reconsidered – with a supermajority of 80% then required for a second vote.

They must be called on the basis that there was a procedural error – or that it would “disproportionately affect adversely” any section of the community.

A council spokesperson told the News Letter that the request for the release of the names of the councillors on the call-in notice was made under a Freedom of Information request – and it was denying the release of the names on the basis that:

- the Call requisition was sent directly to the Chief Executive and was not a published document for public consumption.

- the members who submitted the ‘Call In’ notice did not consent to its release when consulted as part of the FOI process. Concerning the identity of those elected members who signed the call-in notice, they retain individual data rights protected by legislation, and this is not waived by their position as elected members of a local government body.

- the Council has obtained legal advice to support its application of the exemption to the FOI request.