homas Curson Hansard — whose name survives as the title of the official record of what is said in Parliament — began publishing records of House of Commons debates at a time when it was risky to reveal parliamentary proceedings; other publishers used disguises such as ‘Debates of the Senate of Magna Lilliputia’ to convey to the public what MPs were saying in the secretive parliamentary world.
Remarkably and alarmingly, in 2022 the Assembly is refusing to release words which were said by a senior MLA in a Stormont debate, claiming that to do so would breach data protection laws.
The instinctive secrecy which this case reveals is emblematic of a deeper reluctance within the institutions of government to allow the public to see how their representatives operate.
Six months ago, I stumbled upon a declassified government file in which it emerged that after the first sitting of the shadow Assembly after the Good Friday Agreement, the then DUP deputy leader had threatened to sue the Assembly over something said about him by Sinn Féin’s Martin McGuinness.
This libel threat was taken seriously, even though it only ever appears to have been made verbally to the then Speaker, Lord Alderdice, and does not seem to have even got to the stage of a solicitor’s letter.
The shadow Assembly had been given ‘qualified privilege’ from defamation claims — a robust form of legal protection from libel actions which is afforded to media reports of parliamentary debates. However, in certain circumstances — such as where there is malice — a libel action can still proceed even if qualified privilege is involved.
Incredibly, the mere threat of defamation proceedings over something said in public in a historically-significant sitting of MLAs was enough to persuade the Assembly to remove a section of Mr McGuinness’s words from Hansard’s official report of what is said in Stormont.
In an urgent September 2, 1998 memo to Secretary of State Mo Mowlam, senior civil servant Tony McCusker told her: “On hearing of Mr Robinson’s intention, the presiding officer decided not to issue further copies of the first day’s business until legal advice could be taken. The Official Report was also withheld from the Assembly’s website...”
He said that Assembly officials had taken internal legal advice which had advised that “further copies of the report could now be issued with the offending sections omitted but instead inserting the words ‘Remarks made at this point may be subject to legal proceedings and have therefore been omitted’.” Lord Alderdice asked the Government to give the shadow Assembly full privilege and that ultimately happened. However, to this day the Hansard of the July 1, 1998 Assembly does not contain the removed words.
In January, I asked the Assembly if it would tell me what Mr McGuinness had said. It refused, and so I made that request under the Freedom of Information Act. It refused again — or rather, partly refused. In so doing, this is not simply about an historic decision but is a choice which today’s Assembly authorities have made.
The Assembly said that “some of the information…relates to personal data as defined by the Data Protection Act 2018 and the United Kingdom General Data Protection Regulation (GDPR)” which involves “one or more identifiable living individuals” and so the Assembly Commission — the body of MLAs who oversee the Assembly building and staff — “considers this information to be exempt from disclosure…”
However, GDPR states that “the legitimate interests of a controller [here the Assembly], including those of a controller to which the personal data may be disclosed, or of a third party, may provide a legal basis for processing…taking into consideration the reasonable expectations of data subjects based on their relationship with the controller”.
The expectation of MLAs would have been that everything said in the shadow Assembly would be recorded and published, but the Assembly has offered no evidence that it even considered this. The Assembly has no idea whether even Mr Robinson now objects to this being released because it hasn’t asked him. When contacted by the Belfast Telegraph, Mr Robinson said: “I have had no contact of any kind from the Assembly directly or indirectly about this issue. I can’t remember what was said. I assume it was not a compliment.”
However, the Assembly has taken its own decision to release a small portion of what Mr McGuinness said, allowing the Belfast Telegraph to watch a 90-second video which contains some material not recorded in Hansard but from which a section has been bleeped out.
We were allowed to take notes of the video — which could only be viewed in Parliament Buildings — but were not allowed to record audio or to take a copy of the video. Bizarrely, even a still image from the proceedings was prohibited.
In the video, Mr McGuinness said: “Mr Paisley also has to recognise that we are on the road to change and that he has a responsibility…”. Here the Assembly authorities interrupted the recording and the audio has been bleeped out for the next 18 seconds. Nigel Dodds and Ian Paisley Jr were seen heckling Mr McGuinness as he spoke.
After the expunged section, Mr McGuinness went on to say: “We all remember the Silent Valley reservoir; we all remember Bombay Street; we know all about it. The question for you people is that [from here on was recorded in Hansard] Sinn Féin are here in this building — we have arrived, and you have been compelled by the votes of the people to come here. And in coming here, even in opposition, you will be part of the change which…”
As he spoke, Mr Robinson — who would in time form a strong working relationship with the Sinn Féin man — appeared to say: “What about your Semtex and your armaments?” Mr Robinson is seen smiling for much of the clip, while Dr Paisley sat in his chair looking ahead rather than looking at Mr McGuinness, the man with whom he would go on to form a highly unlikely friendship.
The Assembly’s decisions here show that the same mindset which in the 19th century thought the public should not be able to hear all their representatives’ words in the legislature lives on in today’s Stormont. When asked why it is not prepared to release the words Mr McGuinness said and why it will not even release a still image, the Assembly said: “The information is personal data because it relates to one or more identifiable living individuals. The Assembly Commission considers this information to be exempt from disclosure. Further, the Assembly Commission does not hold the information in the format requested.”
The Canadian transparency campaigner Darrell Evans once remarked that “bureaucracy always seeks the path of least disclosure”. Freedom of Information was meant to transform that, to make disclosure the default position unless there were overwhelming reasons not to do so. In most public bodies, that has not happened. Secrecy is the default. Generally, the Assembly authorities have been more open than the Executive, but that seems to be regressing. If they will not even release words a dead politician spoke in the Assembly, what far more embarrassing material are they withholding from us?
