RHI inquiry: manager at regulator '˜watered down' minute

Keith Avis suggested that he had removed words showing the strength of a legal warning given to the civil servants out of a fear that it might offend the Department of Energy and Climate Change (DECC) – which was a major client of Ofgem – because the warning was an implicit criticism of that department’s “deficient” legislation.

Mr Avis said that he was “nervous” that stating in minutes that there were problems in the GB regulations could “compromise our relationship” with DECC.

Sir Patrick Coghlin, who is chairing the RHI inquiry, told Mr Avis that it seemed that he was taking something which was “clear legal opinion and converting that into much less strong language ... so as to preserve your contractual, financial relationship with another government department. How can that be justified, particularly if you are a regulator ... and you are responsible for upholding standards?”

The minute related to a teleconference with DETI officials in mid-2012 during the design of Stormont’s RHI scheme where Ofgem warned DETI about the problems with pressing ahead without cost controls and other difficulties.

Marcus Porter, an Ofgem lawyer who was at the meeting, suggested that the minutes should say that if DETI pressed ahead it had been told that it “would be doing this in the knowledge that it would be replicating all the various legal risks and administrative difficulties that have arisen from the deficiencies with the GB regs”.

But Mr Avis was “nervous” about including that line because he was “sensitive about including explicit criticism of the regulation drafted by DECC [the GB department] in a formal minute”, he told the inquiry.

Ultimately, with his superior’s approval, he changed the minutes to refer to “issues” rather than “deficiencies” and changed Mr Porter’s warning about legal risks to “logistical and presentational issues”.