Rapid Arlene Foster U-turn over jail time for RHI-type behaviour

The sudden change of stance was revealed today by the head of the Civil Service, David Sterling, who told the Assembly’s Finance Committee that he had been told “recently” by Mrs Foster that she did not want the bill being proposed by TUV leader Jim Allister to become law.

The Functioning of Government (Miscellaneous Provisions) Bill would make it a criminal offence for any minister, civil servant or special advisor (spad) to electronically communicate government business using personal email accounts – something which hides government business by keeping it off the grid.

It would also make it a criminal offence for a minister or special advisor to pass on confidential government information, something which happened when Arlene Foster’s then spad, Andrew Crawford, sent to family members ministerial papers setting out how cash for ash was soon going to be brought to an end.

Sinn Fein has made clear that it will oppose the bill, arguing that a backbench MLA should not bring forward such a bill.

But as recently as March, Mrs Foster’s spokesman on the issue, Paul Frew, told the Assembly on behalf of the party: “We support the core principles of the bill.

“In light of the findings of the RHI inquiry, every party and every department has a responsibility to pursue reforms that rebuild public confidence in the governance of Northern Ireland.”

He said that parties had “nothing to fear and much to gain from a better system of government, with a transparent challenge function and an accountable Executive” and “we can never ever go back to business as usual”.

But today Mr Sterling told MLAs that “the first minister’s, and the deputy first minister’s, view is that it is more appropriate to address standards of behaviour for ministers through codes of conduct and guidance.

“That is generally how these matters are handled in our neighbouring jurisdictions and it is common across equivalent jurisdictions around the world.”

He added: “The disadvantage, in the view of my ministers, in legislating in this area is that some discretion is needed. Standards must be open to interpretation, recognising that there is a difference between deliberate wrongdoing and carelessness or accidental breaches.”

Later, under robust questioning from former DUP minister Jim Wells, Mr Sterling was asked if Mrs Foster and Ms O’Neill “do not want a bill”.

He said: “Their preference is that there would be codes of conduct rather than legislation.”

Mr Frew gave no indication in his questioning that he also now opposes the legislation. He asked Mr Sterling if it was not better to have in law clear protections to protect his civil service staff “from unscrupulous politicians and spads”.

Although declining to directly answer the question, Mr Sterling appeared to disagree, saying that the most important thing was to have “mutual trust and respect” between officials, ministers and spads.

Mr Allister, who wrote the bill, said: “Mr Sterling, you tell us that we should rely on codes. Of course, what RHI threw up was that though we had codes that for example required confidentiality, that required integrity, that required honesty, there were flagrant breaches of those codes demonstrated in RHI. Isn’t that correct?”

Mr Sterling replied that the RHI Inquiry “certainly did identify quite a number of issues” which ministers and civil servants “are keen don’t occur again”.

Mr Allister said: “So, the code didn’t serve us well in the past, hence my belief...that we need more than codes.”

The North Antrim MLA said that his bill sought to prevent anyone circumventing the law, as Sinn Féin had done with its appointment of a ‘super spad’ who was legally barred from being a spad. He asked: “Is that a bad thing?”

Mr Sterling replied: “I don’t think it’s for me to comment on whether it’s a good or a bad thing. It will obviously be for this Assembly to decide whether it wishes to support this particular piece of legislation.”

Mr Allister asked Mr Sterling about Aidan McAtteer, who in the last Executive had been made a ‘super spad’ by Sinn Féin, sitting above the other advisers in a way which circumvented a law banning those such as him who had serious criminal convictions from holding such positions.

Mr Allister asked: “Is Mr McAteer still on the scene?” Mr Sterling said: “I’m not aware of it.”

Mr Allister asked: “Is there anyone in Stormont Castle who has the use of the facilities of Stormont Castle who can act as if he were a special adviser, even though he’s not a special adviser?”

Mr Sterling replied: “The only people who have access to Stormont Castle are people who are authorised to be there.”

The top civil servant said he was not aware of anyone having access to the castle who is not a minister, official or spad.

Former DUP minister Jim Wells – who is now estranged from the party leadership – asked Mr Sterling if he accepted that “behaviour of spads from all parties in the last administration was utterly appalling”.

Mr Sterling declined to answer, saying: “I prefer to look forward”.

Mr Wells asked him what authority he had to come and oppose a bill which sought to end a “failed system”.

The civil service chief replied that he was expressing the views of Mrs Foster and Ms O’Neill.

Mr Wells questioned how that could be the case when “members of the First Minister’s party spoke enthusiastically in favour of Mr Allister’s bill” but Mr Sterling said that Mrs Foster had communicated her views to him “recently”.

Mr Wells also quizzed Mr Sterling about Sinn Féin’s system whereby unseen advisers played a significant role in how its ministers acted.

He said: “You know what was going on, and you were permanent secretary for part of the time. You know that de facto there was a second tier of spads operating from an office in west Belfast.

“Can you give us, this committee, on the record, a categorical assurance that that is not continuing at the moment in Stormont Castle?”

Mr Sterling replied: “I have seen nothing of the nature of what you have described”.

Mr Wells asked: “Did you see it when it was going on?”

Mr Sterling said: “I didn’t work in the old Office of the First Minister and deputy First Minister”.

Mr Wells continued to press the point, asking him: “Were you aware it was going on?”

Mr Sterling replied: “I didn’t work in that department”, prompting Mr Wells to repeat his question.

At that point, the committee chairman, Steve Aiken, intervened to curtail the questioning but Mr Wells interjected to say: “He doesn’t want to answer...he’s hiding”.

SDLP MLA Pat Catneyt asked Mr Sterling how he could defend the need for eight spads in Stormont Castle alone when as a businessman he would think that one person each for the DUP and Sinn Féin could do the job.

Mr Sterling said that although Mrs Foster and Ms O’Neill were allowed eight spads between them they had chosen to only have six at present.

How would the legislation change Stormont?

The two most significant elements of Jim Allister’s bill would create new criminal offences for some of the conduct which featured during the RHI scandal – but would not apply retrospectively for what happened during that episode.

Mr Allister’s legislation would make it a criminal offence for any minister, civil servant or spad to electronically communicate government business using personal email or other accounts – something which hides government business by keeping it off the grid.

The widespread use of private email systems, private phones and other electronic communications by many DUP and Sinn Fein ministers and spads added to the cost of the RHI Inquiry, making it time-consuming and in some cases impossible to piece together what had gone on within government.

That information should all have been held centrally within the department and accessible to an inquiry or a court if necessary.

The bill would make it a defence for anyone charged with such an offence to show that they had “reasonable excuse” for the failure to use official systems.

However, if they were convicted by a court the offence would carry a prison sentence of up to two years.

Mr Allister’s bill would also make it a criminal offence for a minister or special adviser to communicate confidential government information to a third party, something which happened on multiple occasions during the RHI scandal, including when Arlene Foster’s then spad, Andrew Crawford, sent to family members confidential ministerial papers setting out how cash for ash was soon going to be brought to an end.

With the threat of a five-year prison term, the bill would make it a criminal conviction for any minister, spad or civil servant “to communicate, directly or indirectly, confidential and/or commercially sensitive information to any natural person or legal entity for the financial or other potential benefit of any natural person, legal entity, minister, special adviser or civil servant”.

The legislation would also retain a spad in each Executive department but would end the current situation whereby there are allowed to be eight spads in The Executive Office – four each for the DUP and Sinn Fein, although at present the parties have only three each in that department.

Mr Allister’s bill would halve the total number to two for each party.

Even if the bill was passed into law, it would not apply retrospectively to any of those involved in the RHI scandal.

The bill would also attempt to:

• Prevent Sinn Féin’s use of unofficial spads, facilitated by the civil service, to get around past legislation which barred those with serious criminal convictions from acting as government advisers;

• Make spads subject to the processes and procedures of the civil service disciplinary code;

• Slash the upper level of spad pay to bring it into line with that of a senior civil servant at assistant secretary (grade five) level;

• Allow the Assembly’s Commissioner for Standards to investigate complaints against ministers;

• Place a duty on the civil service to “make and keep an accurate written record of every meeting attended by a minister in departmental service, recording, in particular, those present, date and time, topics discussed, each ministerial indication of intent and every decision and action point”.

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