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Controversy about the legality of the white-bordered union jack

by Martin Grieve

Use of the white-bordered Union Jack
British "National Colours"

Use of the white-bordered Union Jack

The so-called "pilot jack" is the UK's civil jack (originally formally established 1864) and as such is 'by convention' only generally worn in harbour but there is no reason in law why it cannot be also flown at sea. The convention started due to a change in the design of headsails in the 18th Century, which prevented from ships wearing the jack when under way. Before then a jack was worn as part of the normal suite of flags (or could be worn in the case of the merchant marine).
Christopher Southworth, 3 September 2003

The Order in Council of 9 July 1864 stated, "The Red Ensign and Union Jack with a White Border continuing as at present the national colours for all British Ships, ...". The 'Union Jack with a White Border' was included as the signal for a pilot, not as a jack. Has the white-bordered Union Jack been formally established as the UK civil jack ?
David Prothero, 4 September 2003

As I understand it, the phrase "national colors" when applied to ships means "ensign and jack." So when the order in council says the red ensign and white-bordered Union Jack are already the national colors for all British [civilian] ships, doesn't that mean the white-bordered Union Jack is already, i.e., even before the order in council, the [civilian] jack?
Joe McMillan, 4 September 2003

I am not convinced that the white-bordered Union Jack has been formally established as a British civil jack. Perrin writing in "British Flags" page 132, 'From that date (1824) the red ensign alone has been the legal national colours of a British merchant vessel.' Wilson in "Flags at Sea" page 34, wrote, 'It (white-bordered Union Jack) is still a legally permitted jack for merchant ships.' 'Legally permitted' - weasel words.
David Prothero, 5 September 2003

" 'Legally permitted' - weasel words."? Not at all. That just says it's not legally required, but neither is it prohibited (as the Union Jack is). The US union jack as used by merchantmen is in the same category - permitted but not required, and not specifically authorized by statute.
Joe McMillan, 5 September 2003

In this matter I (also) must beg to disagree. Whilst the 1864 Order and 1894 (plus subsequent) Merchant Shipping Act(s) may not specifically designate the white-bordered Union Jack as the merchant jack, they allow for no other reasonable interpretation.
Christopher Southworth, 5 September 2003

The 1894 Merchant Shipping Act appears to confirm Perrin when it states that: "The Red Ensign usually worn by the merchant ships, without any defacement or modification whatever, is hereby declared to be the proper national colours for all ships or boats belonging to any British Subject". It goes on, however, and in the next Paragraph says: "If any distinctive national colours, except such Red Ensign or except the Union Jack with a white border etc"., which states directly that this latter is to be so considered as well.
Christopher Southworth, 5 September 2003

In the final analysis there is nothing in law to say that the white-bordered Union Jack is the civil jack, but there is equally nothing to say that it cannot be so used and considered.
Christopher Southworth, 7 September 2003

I say that the white-bordered Union Jack has been informally established as the British civil jack.
You say that the white-bordered Union Jack has been formally established as the British civil jack.

Is this because you think:
1. That the white-bordered Union Jack was given the status of a civil jack when the white-bordered Union Jack was created as the signal for a pilot in 1824? or,
2. That sometime between 1824 and 1864, a Warrant, or Order in Council, or Act of Parliament, made the white-bordered Union Jack a civil jack, as well as it being the signal for a pilot? or,
3. That the part of the Order in Council of 9 July 1864 which states that "the Red Ensign and Union Jack with a White Border continuing as at present the national colours for all British Ships", in itself, formally established the white-bordered Union Jack as a civil jack, even though there is no mention of "civil jack" or any phrase with similar meaning in any part of the Order ?

David Prothero, 7 September 2003

Number Three would have stated my position before our discussion began, however, after considering what you've had to say I have revised that opinion and would now state as follows: 'the 1864 Order in Council and subsequent Merchant Shipping Acts empower - or have permitted if you prefer - the British merchant marine to adopt the Union Jack with a white border as a civil jack'.
Christopher Southworth, 7 September 2003

This, in abbreviated form, is my opinion of the matter. I will try to justify or substantiate any items that are questionable:

The white-bordered Union Jack was created in 1823 to be used as a signal flag.
It was not intended to be a civil jack.
By 1855 it was being used as a substitute for the Union Jack, which merchant ships are not allowed to fly.
The first(?) official reference to it in the same sentence as the term 'national colours' is Section 105 of the 1854 Merchant Shipping Act.
This is also the first(?) official reference to the term 'national colours', which probably did not then have the meaning which it has since acquired.
A book explaining the Act was issued to British consuls in 1855. It states that the white-bordered Union Jack is the flag to be hoisted for a pilot.
The Order in Council of 9 July 1864 did not change merchant flags, but did make the Red Ensign exclusively merchant/civil. Making a distinction between the naval and civil ensigns removed the only arguable justification for preventing merchant ships from flying the Union Jack.
The Merchant Shipping (Colours) Act 1889 does not refer to the white-bordered Union Jack.
The Merchant Shipping Act 1894 does not refer to the white-bordered Union Jack in the section (73.1) that declares what is the 'proper national colours'.
The Act refers to the white-bordered Union Jack in 73.2; a section which announces the penalty for the offence of hoisting a colour worn by HM ships, or a colour resembling one.
Use of the white-bordered Union Jack is covered in Section 615 of the Act, and Order in Council 12 December 1889.
Some parts of the Acts and Orders were not very clear. This ambiguity was exploited by merchant captains who wanted to fly a jack, and were satisfied with the white-bordered Union Jack as such.
The Admiralty and Board of Trade did not interfere with this illegal practice because it was thought that making an issue of the matter would encourage demands that merchant ships should to be allowed to fly the Union Jack, a practice that the Admiralty opposed on purely arbitrary grounds.
In 1970 the white-bordered Union Jack ceased to be the signal for a pilot, but references to it as national colours were not removed from the current Merchant Shipping Act. It thus became a flag that could legally be flown on a civil ship, as a jack if desired. This status was confirmed by the Merchant Shipping (Registration, etc.) Act 1993.

David Prothero, 18 September 2003

I must amend an earlier comment that I made about Timothy Wilson's statement in Flags at Sea, that the white-bordered Union Jack, "... came to be worn as a jack. It is still a legally permitted jack for merchant ships." I suggested that "is permitted", or "is not illegal" would be more accurate.

As long as the white-bordered Union Jack was still a recognised signal for a pilot, it appeared in legislation about colours as a signal flag that was similar to the national flag. In 1970 the white-bordered Union Jack ceased to be a signal for a pilot, but the references to it in the current Merchant Shipping Act remained. At this point, as Barrie Kent wrote in 'Signal!', page 332, "It was only when the Pilot Jack, as it came to be known, ceased to be a signal for a pilot in 1970 that its use as a jack was no longer illegal."

David Prothero, 2 October 2003

British "National Colours"

On the matter of 'national colours', as in the 1864 Order in Council, "The Red Ensign and Union Jack with a White Border continuing as at present the national colours for all British Ships". The 1867 "Sailor's Word Book", written by Admiral W.H. Smyth, defined national colours as 'The flags or banners which distinguish ships of different nations.' A signal flag, which could be flown only by British ships was, by this contemporary definition, a national colour, since it distinguished any ship that hoisted it as British.
David Prothero, 5 September 2003

"A signal flag, which could be flown only by British ships was, by this contemporary definition, a national colour, since it distinguished any ship that hoisted it as British."?
The fact that a signal flag is unique to ships of one country does not make it part of the national colors. What Smyth is very clearly saying--in a definition that is as good today as it was in 1867--is that national colors are flags of national identification. You identify the nationality of a ship by its ensign and, when displayed, its jack, not by random bits of bunting hanging about the signal halyards. By saying that the white bordered Union Jack was part of the national colors, the 1864 order in council was saying it is a flag of national identification, albeit a secondary one.
Joe McMillan, 5 September 2003

The UK Merchant Shipping Act (1993) says:
"3.—(1) If any of the following colours, namely—
    (a) any distinctive national colours except-
        (i) the red ensign,
        (ii) the Union flag (commonly known as the Union Jack) with a white border, or
        (iii) any colours authorised or confirmed under paragraph 2(3)(b) above; or
    (b) any colours usually worn by Her Majesty's ships or resembling those of Her Majesty, or
    (c) the pendant usually carried by Her Majesty's ships or any pendant resembling that pendant,
are hoisted on board any British ship without warrant from Her Majesty or from the Secretary of State, the master of the ship, or the owner of the ship (if on board) and every other person hoisting them shall be guilty of an offence."

I deduce from article 3 that the white bordered UJ is considered a "national colour," since it is listed along with the red ensign and the various blue and red ensigns that can be authorized by warrant or order in council as among the "distinctive national colours" that can be worn by British merchant ships. If the white bordered UJ is a "national colour" for merchant ships, it would seem illogical to say that the UJ itself is not part of the national colours for a warship, wouldn't it?

Confirming David's take on the status of the commissioning pennant, note that the way the statute is framed suggests that the pennant (addressed in subparagraph (c)) is apparently not considered part of a warship's colors; if it were, it would be covered by subparagraph (b) and would not require separate mention.
Joe McMillan, 1 October 2003

In this respect I think that there is a difference between the Union Jack and the white-bordered Union Jack, in that the former is flown in a specified manner, while the use of the latter is unpredictable. However, for a different reason, I agree that both should be called national colours. By the definition in the Seamanship Manual,
(Colours is a general term describing any flag which is flown to denote the nationality of a ship, of a body of people, or of a place), house flags are colours; they denote a body of people, the owners of the company. If this is correct, any flags that denote nationality should be called national colours to distinguish them from house flags, or the like.

Should a definition of "national colours" in relation to ships, include some reference to intent? Is there a difference between a flag flown deliberately to denote nationality, and a flag flown that just happens to indicate nationality ?
David Prothero, 2 October 2003

I agree with almost everything David wrote--or at least with his conclusions. But I read "nationality of" in the above passage to apply to all the objects of the preposition "of": the nationality of a ship, the nationality of a body of people, or the nationality of a place. Thus "colo(u)rs" would apply to a flag of national identity carried by a body of troops (people) or a flag of national identity raised over a fortress or naval base or office building (place).

In my reading, it would not apply to a house flag, because that does not (unless in the form of a legally authorized ensign) denote the nationality of the company. It would apply to the ensign and jack of a warship, both of which are flags denoting the nationality of the ship, even though the jack is decidedly secondary to the ensign in serving that purpose. In my view, however, it would not apply to a foreign ensign flown as a courtesy flag by a merchant vessel or by a warship while firing a salute, because in neither of those cases is an expression of the nationality of the ship flying the flag. Nor would it apply to a commissioning pennant or flag officer's flag, which are intended to express the legal status of the ship but not (primarily) its nationality. Finally, it would not apply to a yacht club's burgee--although there
we get onto rocky ground since I think David or someone said yesterday that many British YCs do consider their colors to be ensign plus burgee, or did I misunderstand?
Joe McMillan, 2 October 2003

If a special ensign is flown, the club burgee should be flown. It is not a requirement, but is considered correct. A steam yacht could be mistaken for a government vessel if not flying its burgee. It is not specified in regulations due to occasions when it may not be appropriate, e.g.:
    1. The burgee is considered the personal flag of the owner and is hauled down if he is not on board, but if he is still in effective control, the ensign can properly be flown.
    2. Tenders may fly a special ensign but some yacht clubs prohibit tenders from flying a burgee.
    3. An owner entitled to a special ensign by membership of a British yacht club, should, while visiting the home port of a foreign yacht club of which he is also a member, replace the British club burgee with the burgee of the foreign club while in that port.
[From a letter, NL 4257/30 written 24 December 1930, by Head of Naval Law.
National Archives (PRO) ADM 1/8751/159]
David Prothero, 2 October 2003

British yacht clubs with special ensigns may only fly them at sea with the matching burgee, so the burgee must necessarily form part of the yacht club's colours. They can fly the burgee with a red ensign if they wish, but they may not fly the defaced ensign with anything other than the authorized burgee or rank flag (e.g., not another yacht club's burgee, but a commodore's rectangular flag would be OK)
Graham Bartram, 2 October 2003

The question is raised of what exactly was meant by the term "National Colours" in the Order in Council of 9 July 1864, which abolished squadron colours in the Royal Navy. "The Red Ensign and Union Jack, with a White border, continuing as at present the national colours for all British Ships, with such conditions in favour of Yachts and other vessels as we may from time to time authorise to bear distinguishing flags." Did this mean that the "Union Jack, with a White border", which was a Pilot Flag, was included in the term "National Colours", or did it imply that the white-bordered Union Jack was considered to be a merchant jack ?

The probable answer is that the Order in Council should not be read on its own. It was not a stand-alone document, but an amendment to a previous Order in Council of the 25 July 1861, which established Queen's Regulations of 1862. The amending Order in Council was not promulgated as such, but as Admiralty Circular No.35 of 5 Aug 1864, and Colonial Office Circular of 24 October 1864.

The relevant part of the Circular reads;

"Chapter 2, Section XII. Colours Not Navy. Article 1.
The Red Ensign and Union Jack with a white border are to continue (as prescribed by Article 1) the National Colours for all other British ships, with the exception of yachts and such other vessels as their Lordships may from time to time authorize to bear distinguishing flags."

Article 1 of the 1862 Queen's Regulations reads;
"All Ships and Vessels belonging to Her Majesty's subjects, shall wear a Red Ensign, with the Union in the Upper Canton next to the Staff; and shall use a British Union Jack, with a border of White, of one-fifth of the Jack, as a Pilot Flag, in all parts of the world; except such Yachts or other Vessels as may have Warrants from the Admiralty to display other Ensigns, Colours, or Pendants."

I think it then becomes clear that "National Colours" did include the Pilot Flag, but did not imply that the Pilot Flag was a jack.
David Prothero, 27 July 2005

I agree of course, but as I said before, there is nothing which says that it may not be so used, and (whatever may have been there Lordship's intention) nothing to prevent that use becoming general (as it is, indeed, now officially recognized).
Christopher Southworth, 27 July 2005