The chairman of the public inquiry into the RHI scandal has expressed alarm at evidence which shows that the DUP routinely broke the law in how it appointed special advisors.
Yesterday Arlene Foster agreed that a key element of the evidence of former DUP minister Jonathan Bell and his former special adviser (Spad) Tim Cairns was correct – that the DUP centrally chose who would be Spads and they were then allocated to ministers.
The law says that Spads – hand-picked party loyalists who were given taxpayer-funded salaries of up to £92,000 – must be chosen by the minister who appoints them.
That is meant to ensure that the Spad was loyal to the minister who therefore could be held accountable for their conduct.
But the evidence of Mr Bell is that he signed a false letter saying that he had carefully chosen his Spad when in fact he was given him – against his wishes, he said – and he alleges that meant his advisor was open to taking instructions from others in the party who wanted to delay RHI cost controls because he knew that his job really was not dependent on his minister.
Mrs Foster admitted that the appointment of Spads in the DUP was “a matter for the party leader” but that she thought the minister would be able to feed into that process.
That was despite the fact that DUP MLAs had voted in the Assembly to pass into law the Civil Service (Special Advisers) Act (Northern Ireland) 2013 – which states that all Spad appointments “shall be subject to the terms of the code”, a document which set out a series of processes which the DUP breached.
Mrs Foster defended what had happened, claiming that the DUP “weren’t any different at all” to how the other parties operated, and she singled out Sinn Fein – which like the DUP is a highly centralised party – for allegedly operating in the same way.
However, the inquiry has not yet called any Sinn Fein witnesses so sworn evidence of whether that happened is not yet available.
Sir Patrick said that the essence of the code was the stipulation that it was for the minister to arrange a pool of candidates from which to choose the Spad who they felt was best qualified.
The retired Court of Appeal judge said: “We have heard enough evidence, I think, to firmly establish that that code by the DUP has not been observed in practice.
“Quite the reverse – we’ve heard about a ‘core’ of special advisors, and how you can be part of that core, as Mr [Peter] Robinson told Mr [Tim] Cairns, if you go to a particular minister, and it is not a question of a minister selecting an individual from a pool of appropriately qualified people, whether they be expert, whether they be political or both.
“And you have told us this morning, I think, something about Sinn Fein having a similar – maybe differently organised – system, [where] people are selected from a core base by individuals, not by the ministers to whom they are allocated.
“Knowing all of this, having experience of all of this, what steps did you take when you became first minister to put it right?”
Mrs Foster said that after the election in May 2016 – about four months after she became first minister – “we did have a more collegiate approach to appointing special advisors”.
She said that Simon Hamilton had told her that he wanted one of two named individuals as his Spad and that he ultimately was given one of those individuals – John Robinson, who now is the DUP’s chief spin doctor and will testify at the inquiry today.
She added, though: “But I’m not going to say that there’s no room for improvement ...”
Sir Patrick said he found it “very difficult to understand how the two main parties, having been made – like everyone else – the subject of an act and a mandatory code, completely ignored that code and letters were written that simply did not record what had happened ... if the Assembly as the democratic body that passes the act and the code is treated in that way, it seems to me to be a matter of some concern.”
Mrs Foster said: “It is a matter of some concern and there are huge learnings, not just from my party I have to say, Mr chairman ... this is something that occurs right across the piste.”
Sir Patrick accepted that it appeared to have been “a common approach” whereby “you have an act, and a code – but nobody really pays a great deal of attention to that; you write letters that say one thing, that doesn’t really happen”.
Mrs Foster then sought to blame the civil service for being part of the problem, saying that civil servants had gone along with it and were “dealing with it in that way as well”.
Sir Patrick said that if the process was improper it didn’t help Mrs Foster’s case to argue that two people were responsible for breaking the rules, something she then accepted.
Dame Una O’Brien said: “Two wrongs don’t make a right”, something Mrs Foster accepted.
In a significant change of stance from 2015 – when the DUP and Sinn Fein set aside their differences to join forces in order to vote down Jim Allister’s attempt to force more Spad transparency – Mrs Foster said that “there probably should” be more changes to bring more transparency to how Spads operate.
Dr Keith MacLean put it to Mrs Foster that before any change to codes or laws was required, the parties needed to abide by what was already the very clear law.
He asked: “So one of the – how did you describe it – the ‘huge learnings’ from this process might be just to stick to the code.”
Mrs Foster said: “Yes.”
Key DUP Spads will come before the inquiry over the rest of this week. Today it will hear from John Robinson and on Friday his brother-in-law Timothy Johnston will give evidence. Between those two, the inquiry will hear from former Spad and RHI claimant Stephen Brimstone.