Sam McBride: Why is Sir Patrick Coghlin taking so long to finalise his RHI report?

Inquiry chairman Sir Patrick Coghlin, centre, alongside inquiry panel member Dame Una O'Brien and technical assessor Keith MacLean
Inquiry chairman Sir Patrick Coghlin, centre, alongside inquiry panel member Dame Una O'Brien and technical assessor Keith MacLean
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Is the RHI Inquiry report deliberately being withheld to protect the DUP? That’s the suggestion which for months has been circulating online, mostly but not exclusively from anonymous republican social media accounts.

But this week the idea was stated, albeit in carefully-phrased terms, by someone with a public profile, former Sinn Fein spin doctor Danny Morrison. Having asked on Twitter when the report was due and having received a reply from someone who said that it was being checked by lawyers, the senior republican said: “So, I’ve heard, but for how long can they procrastinate without being seen to wilfully delay its publication to suit the DUP’s election blushes?”

Mr Morrison was fairly explicit about his unsurprising interest in the report being published soon, hopeful that it will damage the DUP before a snap General Election.

But republicans almost certainly have a second, and more important, desire to see the report. If they are prepared to restore Stormont – as was the case last year until Arlene Foster’s inability to sell the proposed deal to her party blew the plan apart – it would be a huge risk to do so if the inquiry was to report weeks later and if it was to criticise Mrs Foster.

There would be pressure on Sinn Fein to either force Mrs Foster from office or again collapse the entire Stormont edifice, based on the precedent of Martin McGuinness in January 2017.

The government, desperate to get Stormont back, is also believed to be keen to see the inquiry report soon.

The fact that inquiry chairman Sir Patrick Coghlin has taken his time and continued to investigate elements of cash for ash despite the obvious desire of so many powerful people for a swift resolution is in many ways an indication of his robust belief in his complete independence. But, almost a year since inquiry hearings finished and with not only no report but no date for the report’s publication, what is the delay?

In an age when some people’s trust in authority has been strained to the point where they are more prepared to accept unfounded conspiratorial claims than boring evidence-based explanations, what seems like the slow pace of the inquiry and the lack of a substantive public explanation has perhaps inevitably led to some people articulating their own lurid theories.

When asked about the delay, a spokesman for the inquiry would only say: “The chairman is still working on his report. We cannot give a date for publication.”

That follows Sir Patrick’s consistent decision not to give even indicative dates for key elements of the inquiry process. Perhaps mindful of how other inquiries – most notably Lord Saville’s inquiry into Bloody Sunday – ran hopelessly beyond their anticipated timeframe, the former Court of Appeal judge has shrewdly simply said that the report will be published when it is ready.

If anything, Sir Patrick is the sort of forthright judge who may simply publish his report immediately it is ready – which could itself create unintended problems. If, for instance, the report was completed at the point where the UK was to leave the EU without a deal and it was simply published immediately regardless of wider events, it is almost inevitable that Sir Patrick’s findings would not receive the public scrutiny which they deserve.

But although the report is now largely written, it is not yet complete. In the months after the conclusion of public evidence sessions last October, the inquiry continued to investigate elements of the affair, one of which was exceptionally complex.

Having written 150,000 words for a book on the scandal (out next month, since you ask), I have considerable empathy for the task of the inquiry. This scandal is fiendishly complex and if Sir Patrick had been minded to expansively interpret the mandate given to him by Máirtín Ó Muilleoir who set up the inquiry, it could have gone on for a decade. The fact that Mr Ó Muilleoir thought the inquiry could report within six months is indicative not of tardiness by the inquiry but of naivety by Mr Ó Muilleoir.

Central to the length of time which the inquiry has taken has been the fact that much of the evidence has been hidden from view because it was kept off departmental systems – or not written down at all. That has required painstaking work to find and comb through private emails, text messages and other unofficial communication, mostly involving DUP and Sinn Féin figures, some of whom were not even known to have been involved in RHI.

For instance, in early 2017, as with all witnesses, the inquiry had written to Arlene Foster’s long-standing special adviser (spad) Andrew Crawford to serve on him the first of several formal notices issued under Section 21 of the Inquiries Act, compelling him to produce all documentation relevant to the inquiry’s work. But the inquiry became suspicious about some of Dr Crawford’s responses to its requests.

In September 2017 the inquiry wrote a stern letter to Dr Crawford after it had found an email from him to his friend Mark Anderson just before the scandal had erupted in December 2016.

The letter from inquiry solicitor Patrick Butler said that it seemed that the email was relevant to the inquiry’s work and added: “At the moment, it appears to the inquiry that there has been a prima facie breach of the requirements of [the order for disclosure].”

Dr Crawford told the inquiry that he had “no recollection” of the undisclosed email and said “it is apparent to me that this email must have been deleted as it did not appear when I performed a search”.

That was the second time that the inquiry had to write to Dr Crawford. Four months earlier it had similarly written to the DUP man’s solicitor “expressing concern about compliance with section 21 notices requiring the provision of documentation”, in particular text messages.

Dr Crawford had responded to that by saying that he would only have used his departmental BlackBerry device for text messages about RHI, and it was now in the custody of the department.

However, the inquiry then discovered that he had used a personal mobile phone to conduct text communications about RHI. In response, Dr Crawford told the inquiry that some messages may have been deleted but he had found 12 messages “of which I had no recollection” and belatedly submitted them.

Not all witnesses aroused the suspicions of the inquiry in that way, but the episode demonstrates two wider points – the forensic nature of the inquiry’s work and its willingness to be robust with witnesses.

Sir Patrick’s early decision to allow video of every moment of the inquiry’s hearings to be broadcast and to publish tens of thousands of pages of evidence was shrewd and it is now his bulwark against the sort of conspiratorial claims which perhaps inevitably attach themselves to anything of this nature.

Because of the inquiry’s open nature, the public was able to see how DUP witnesses were treated – not only when they appeared to be questioned – but in written correspondence which shows how the inquiry team probed and pressurised DUP figures in the same way as those from the Civil Service, Sinn Féin and multiple other organisations.

Two months ago the inquiry began writing to those who will be criticised in the report and has now done so for the vast majority of those who will be censured. The process allows individuals the chance to object or to point out factual errors, but the objections do not have to be accepted. Having done so over the holiday season, some witnesses have asked for more time, further delaying proceedings.

Sir Patrick is said to have been at his desk almost every day over the summer. His report may be a few weeks away, but far from that being due to a desire to cover anything up, the evidence points to it being due to the scale of its task and the meticulous nature of its work.