Taxpayers will fund virtually every lawyer at the RHI public inquiry at rates of up to £200 an hour, the News Letter can reveal.
It was always known that the inquiry’s own legal team would be funded by taxpayers as part of the inquiry costs, which have been estimated at more than £4 million for the next year.
But it has now been confirmed that virtually all of the major witnesses – including former ministers, former special advisers (Spads) and current or former officials – will have their legal costs funded by taxpayers via another route.
One of the clauses in the terms under which that funding is being allocated has raised concerns, in that it threatens witnesses that the money could be recouped in certain circumstances.
The written warning does not state that the department will seek to recover the money if the witness acts contrary to the public interest but rather if they “act against the interests of the department”.
Given that it is already clear that there was serious incompetence within what was the Department for Enterprise, Trade and Investment (DETI), now known as the Department for the Economy, that stipulation would appear to leave witnesses who may testify against senior departmental officials in a precarious position where they are dependent on how the department then interprets the concept of “the interests of the department”.
TUV leader and QC Jim Allister expressed alarm at the potential for that to “gag” witnesses.
Witnesses appearing before the inquiry are able to avail of public funding via two potential routes.
They can either request legal funding from the inquiry itself, something which requires them to declare their income and assets, or – if the witness is a current or former minister, Spad or official – they can avail of funding from their department, which provides them with legal support even after they have left if the situation relates to their past work for the department.
It is understood that the latter avenue is being favoured by the vast majority of witnesses.
The inquiry said that no one had yet been granted legal representation from its funds.
And Stormont’s Department of Finance – which is handling the bids for departmental funding through the Departmental Solicitor’s Office – say that granting legal representation to former ministers and Spads was “at an early stage”.
However, it is understood that the vast majority of witnesses – if not all of those who will be called to testify – are seeking to avail of the departmental-funded legal support.
When asked if there was any aspect of the legal cover which prevents individuals from criticising the Civil Service or civil servants, the department said: “The terms of application/appointment are provided to potential applicants when making their initial enquiry and includes the following: ‘If a former Minister, former Spad or former official has his/her legal costs met by a department and the Inquiry finds they have acted inappropriately against the department, that the Department may seek to recover these costs.
“‘Costs may be recovered if the former minister, former Spad or former official acts against the interests of the Department in the course of the Inquiry hearings.’”
Mr Allister said that “it sounds as if the departments are seeking to gag the ministers and Spads on the pain of facing their own costs if they criticise the department.
“That seems to me to be totally in conflict with the basis of the inquiry which is supposed to be getting to the truth. It’s not about protecting the department – if the truth involves criticism of the department from wherever that comes it should be totally unfettered.”
In response to a request from the News Letter, the department has released details of how much the lawyers will be paid. The hourly rates – which are understood to be the same as for lawyers working on the recent Historical Institutional Abuse Inquiry in Banbridge – will see senior counsel paid £200 an hour, junior counsel or a solicitor advocate paid £100 an hour, a solicitor (partner) paid £146 an hour, a solicitor (assistant) paid £130 an hour and a paralegal or trainee solicitor paid £65 an hour.
Prominent solicitor John McBurney, who is representing 10 senior DUP figures, said that he would not be paid multiple times for his work once the public hearings begin in the autumn.
He said: “My understanding of the position is that on a hearing day if I’m there representing the 10 individuals that I’m advising I will be paid the normal rate similar to any other lawyer there who happens to be representing only one individual.”
Mr McBurney is representing four former DUP ministers – Arlene Foster, Simon Hamilton, Mervyn Storey and Sammy Wilson – the party chairman, Lord Morrow, and five former Spads – Timothy Johnston, Richard Bullick, John Robinson, Andrew Crawford and Stephen Brimstone.
Only one of those clients, Lord Morrow, would not qualify for the departmental legal cover.
The Department of Finance said that legal representation for departments, officials and ex-officials will be provided by the Departmental Solicitor’s Office “as part of the ordinary work of servicing the legal needs of departments”.
The department said that publicly-funded solicitors could engage publicly-funded barristers or QCs “if included in the application made to departments and will only be approved if considered appropriate, in line with the Inquiry Cost Protocol”.
Two Stormont departments and the publicly-funded Ofgem have already been granted ‘core participant’ status by the inquiry chairman, retired judge Sir Patrick Coghlin, meaning that they will have significant legal teams of their own at the inquiry.
The way in which the then Finance Minister Máirtín Ó Muilleoir set up the inquiry means that it has no time limit and no cost cap.
When asked if there was any cap on the costs which lawyers can claim for their work on the inquiry, the department said that “the maximum number of hours that will be funded for any legal representation, will be determined on the merits of each application, in line with the Inquiry cost protocols and the following conditions attached to the grant of legal representation at public cost: The size and composition of legal representation that will be funded, the hourly rates that will be paid, the nature and scope of the work that is to be funded, the limit on the number of hours for which funding will be paid, the hours allocated to each member of the legal team that have been approved and the form in which, and the frequency with which, bills must be submitted.”