RHI law drafted before policy even decided


Officials in Arlene Foster’s department took the “strange” decision to commission a legal firm to draft the text of the RHI regulations more than a year before the department had even formally decided that there should be an RHI scheme, the inquiry was told.

David Scoffield QC said that on June 9, 2011 – more than a year before the final decision to set up the RHI scheme had been taken – DETI had instructed Arthur Cox, a leading firm of solicitors, to draft the actual text of the secondary legislation which would be the law under which the scheme would operate.

Mr Scoffield said: “Now, it may seem strange that Arthur Cox was commissioned to produce a draft of the regulations before CEPA [the consultants] had even completed its first report and long before the department’s proposal for an RHI scheme had been cleared by its own casework committee.”

In May, the News Letter revealed Arthur Cox’s role in drafting the regulations. The department made clear, however, that the firm was acting on instructions from civil servants and that Arthur Cox did not in any way decide to remove the cost controls.

Yesterday Mr Scoffield also said that consultants CEPA, who made a critical error in recommending a tariff higher than the cost of fuel, had given evidence to the inquiry which “represents something of a retreat from what Mr [Mark] Coburn said to [Stormont’s] PAC”, when he had admitted to failures by his company.

Mr Scoffield said that CEPA had now emphasised the “limited” work it was asked to undertake and contended that “DETI was a highly informed client and should itself have spotted the tariff had crept above the cost of fuel and/or should have recognised the need itself for tiering, given that CEPA had raised the issue previously.

CEPA said that “at the end of the day, this was DETI’s scheme, not CEPA’s”.

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