RHI Inquiry verdict: No corruption involved in cash for ash scandal, but senior DUP and civil service figures criticised

The cash for ash scandal did not happen because of corrupt or malicious activity by civil servants, ministers or special advisers, Sir Patrick Coghlin’s public inquiry into RHI has found.
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The report of the inquiry into the Renewable Heat Incentive (RHI) has also absolved First Minister Arlene Foster, the minister who established the scheme, of blame in relation to some of the most damaging allegations which had been levelled at her by her successor as Energy Minister, Jonathan Bell.

However, the inquiry has severely criticised many civil servants and has also criticised a series of senior political figures for their actions – including Mrs Foster.

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Sir Patrick’s report – which is in three volumes and runs to more than 650 pages – uses language which is often restrained.

The chairman of the Renewable Heat Incentive Inquiry, the Right Honourable Sir Patrick Coghlin pictured with the inquiry panel member Dame Una O'Brien, left, and technical expert Dr Keith MacLean OBE, right, in September 2017, at the outset of the hearings. The inquiry reported today, Friday March 13 2020. 
Pic Colm Lenaghan/PacemakerThe chairman of the Renewable Heat Incentive Inquiry, the Right Honourable Sir Patrick Coghlin pictured with the inquiry panel member Dame Una O'Brien, left, and technical expert Dr Keith MacLean OBE, right, in September 2017, at the outset of the hearings. The inquiry reported today, Friday March 13 2020. 
Pic Colm Lenaghan/Pacemaker
The chairman of the Renewable Heat Incentive Inquiry, the Right Honourable Sir Patrick Coghlin pictured with the inquiry panel member Dame Una O'Brien, left, and technical expert Dr Keith MacLean OBE, right, in September 2017, at the outset of the hearings. The inquiry reported today, Friday March 13 2020. Pic Colm Lenaghan/Pacemaker

In summing up the issue, the report says: “Corrupt or malicious activity on the part of officials, ministers or special advisers was not the cause of what went wrong with the NI RHI scheme (albeit the inquiry has identified some instances where behaviour was unacceptable).

“Rather, the vast majority of what went wrong was due to an accumulation of errors and omissions over time and a failure of attention, on the part of all those involved in their differing roles, to identify the existence, significance or implications of those errors and omissions.”
It added: “There is no guarantee that the weaknesses shown in governance, staffing and leadership revealed by the inquiry’s investigation of the NI RHI scheme could not combine again to undermine some future initiative.”

Arlene Foster – who had been minister in the Department for Enterprise, Trade and Investment (DETI) – admitted to the inquiry that she had not bothered to read the RHI regulations – the legislation under which the scheme was established.

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Sir Patrick’s report said: “The inquiry considers that the minister, in presenting the regulations to the Assembly and asking for their approval, should have read them herself, not least because in the inquiry’s view to do so is a core part of a minister’s job.

“If she and/or her spad had read the regulations, this might well have made no difference to the outcome; but if they had done so, or taken a more active interest in the development of the regulations, this would have provided an opportunity for each of them to see that, particularly with regard to the submission that she had received on 16 March 2012, there were no reviews ‘built-in’ to the regulations....there was no definition of ‘useful heat’, and no form of budget control had been included.”

Although Mrs Foster and her special adviser, Andrew Crawford, were given misleading and incomplete information by officials, the inquiry said that at least one of them “should have asked more questions and sought further reassurance in relation to at least some of the matters identified in the submission of 12 March 2012...Mrs Foster should not have signed a Regulatory Impact Assessment document in which she was declaring that the benefits justified the costs without being provided with or seeking all of the necessary information about the lifetime costs”.

It found that a decision by Dr Crawford, Economy Minsiter Simon Hamilton, his then spad John Robinson and the First Minister’s special adviser Richard Bullick to leak emails in an attempt to shift the focus of criticism from the DUP to civil servants was “unacceptable”.

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That decision, at the height of the political crisis in January 2017 was, the inquiry said, “a quite extraordinary and unacceptable step for an executive minister to also acquiesce”.

The inquiry said it was clear that the DUP and Sinn Féin broke the spirit – and perhaps the letter – of the law in their appointment of spads.

It said: “It is clear from the evidence received by the inquiry that both of the two main parties in the Executive, the DUP and Sinn Féin, breached the spirit and/or provisions of the 2013 Act...and the mandatory codes issued by DFP in accordance with sections 7 and 8 of that Act in one way or another”.

Some of the inquiry’s strongest criticisms of political figures centre on the man who was Arlene Foster’s hand-picked special adviser for most of her ministerial career, Andrew Crawford.

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The inquiry said that after Dr Crawford was alerted to the likelihood of a “massive spike” in applications to RHI in the summer of 2015, he wrongly did not pass that on to his minister, Finance Minister Arlene Foster.

It said: “The inquiry finds this unacceptable considering the potential financial impacts that would very clearly be of interest to Ms Foster as Minister for DFP.”

The inquiry found that “Dr Crawford’s suggestions [for dealing with the budget overrun] ...were aimed at benefiting poultry farmers and, indirectly, Moy Park an organisation  that dominated the industry in Northern Ireland, an industry in which Dr Crawford’s family were clearly involved”.

However, the inquiry found that “ultimately, Dr Crawford did not deliberately delay the introduction of cost controls. This finding holds notwithstanding the inquiry’s criticism of Dr Crawford for his suggested amendment to the proposals.”

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The inquiry went to criticise Dr Crawford, saying that it was “totally unacceptable that Dr Crawford provided confidential information to external parties, including his family”.

It also found that when he came to remove from a ministerial submission an accurate statement about the poultry industry’s role in driving the spike in RHI applications, he should have declared in writing that he had family members who were poultry farmers and RHI claimants.

It said that “in view of the conflict of interest that Dr Crawford had, which had not been formally declared, he should not have been involved in advising on DETI’s Urgent Procedure  document relating to RHI [closure]” and he should not have removed the poultry reference.

Significantly, the inquiry did not accept that evidence of the DUP’s most powerful backroom figure, former spad and current party chief executive Timothy Johnston, was likely correct when he said that he had no role in telling another spad – Tim Cairns – to delay cost controls when the scheme was out of control.

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The report said: “The inquiry has given careful consideration to the conflict of evidence between Mr Cairns and Mr Johnston as to whether Mr Johnston had expressed a view that tariff controls would not be introduced.”

On balance, taking into account the oral evidence given by both individuals and the email of 17 August 2015 from Mr Cairns to Mr Johnston, the inquiry prefers the account given by Mr Cairns and finds that Mr Johnston was much more involved in the RHI scheme discussions, including on tariff controls, than Mr Johnston’s evidence to the inquiry would suggest.”

Relating to Jonathan Bell’s claims, the inquiry found “no objective evidence to support Mr Bell’s allegation that Mr Cairns had intervened to keep RHI matters ‘off the agenda’ at meetings”.It also rejected several of his claims in his dramatic December 2016 interview with Stephen Nolan, saying that it was incorrect for him to claim that senior official Chris Stewart had come to him as “a whistleblower” and that both he and his spad share responsibility for not asking for more information on RHI in the summer of 2015.

As RHI was running out of control in early and mid-2015, the inquiry said that “there was a significant lack of effective leadership within DETI in the early weeks of June 2015” and that as the summer wore on “decision making lacked management grip by Dr [Andrew] McCormick, Mr [Chris] Stewart and Mr [John] Mills...the process was allowed to drift.”

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The inquiry found that Mr Bell was “fully aware of the agreement for Mr Cairns to liaise with Dr Crawford”.

Some of the inquiry’s severest criticism of civil servants was levelled at Fiona Hepper – one of several officials to have since been promoted and who is now one of the most senior officials in the Department of Education, responsible for Northern Ireland’s schools system.

The inquiry found that on several occasions she had been involved in misleading documentation going to Mrs Foster.

The inquiry found it was unlikely that Ms Hepper, DETI’s head of energy, had told Mrs Foster that the scheme was not being wholly funded by the Treasury prior to its launch, something the inquiry said was “of very considerable importance”.

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The inquiry also found a series of failures by Ms Hepper, her deputy Joanne McCutcheon and her subordinate Peter Hutchinson in alerting the minister to aspects of the scheme.
Sir Patrick found that one of Ms Hepper and Mr Hutchinson’s assertions to Mrs Foster – that a Northern Ireland RHI would produce the most heat at the best value – was “a serious omission likely to mislead any reader”.

The inquiry rejected Ms Hepper’s claim that several months before RHI was launched she had verbally warned Arlene Foster in explicit terms that Ofgem had told civil servants that RHI was vulnerable from the outset because it was being launched without cost controls.

It said: “If the conversation between Ms Hepper and the minister did take place, the inquiry finds that the warning was not highlighted as Ms Hepper maintained.

“It is the view of the inquiry that if such a warning were being raised with the minister it should have been the subject of a careful minute or record setting out the advice that Ms Hepper had provided to the minister and the minister’s response thereto.”

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Sir Patrick said that the Assembly committee which scrutinised DETI “was not provided with sufficient/adequate information to permit [it] to effectively discharge its scrutiny function”.

The inquiry said that DETI allocated “inadequate” resources to the creation of RHI and that it should never have embarked on the scheme, given its complexity and the department’s lack of resources.

It said that once the scheme was up and running the decision to allow almost all of those with any responsibility for RHI to leave DETI within the space of a few months from about a year after the scheme was established “should not have been allowed to happen....the level of turnover should have been escalated to top management within DETI and failure to do so clearly suggested a lack of leadership.”
It added: “The inquiry found it difficult to understand how this significant changeover of senior and junior staff was permitted to occur....”

The inquiry found that briefing of industry which alerted certain businesses that RHI was to be reined in was “wholly inappropriate” on the part of civil servants and “it was particularly unacceptable that external parties were being informed of plans before they had been seen or approved by the minister”.

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It also found that “the selective nature of the officials’ contacts was capable of producing significant market distortion by providing commercially sensitive information to some parties and not to others”.

The inquiry criticised officials in the then Sinn Féin Agriculture Minister Michelle O’Neill’s department for not passing on to DETI their knowledge of the likely demand for RHI from farmers - and huge heat demand among Moy Park’s poultry farmers.

It said: “The inquiry considers that the remarks of Agriculture Minister O’Neill in her written evidence to the inquiry quoted in this chapter, that it was not for her to scrutinse the work of another minister, do not seem to deal with the need for basic departmental cooperation in the interest of avoiding excessive expenditure of public funds.”

It said that agriculture officials present at events where RHI was being openly marketed as “free heat” and “cash for ash” should have appreciated “the potential for the scheme to provide excessively generous rewards.

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“Effective departmental cooperation would have required making those facts known to DETI.”

The inquiry also praised businesswoman Janette O’Hagan, who from just a few months into RHI attempted to warn Arlene Foster personally about the scheme’s fundamental flaw, and who then repeatedly tried to get Mrs Foster’s officials to believe her.

Sir Patrick’s report said: “The inquiry considered Ms O’Hagan to be an impressive witness and it was not difficult to sympathise with her sense of frustration at the apparent inaction of a government department for some two years, even failing to carry out any investigation into the evidence that she had provided with regard to the perverse incentive to waste public funds.”
It went on: “Regardless of what official guidelines said on whistleblowing, any member of the public bringing forward a serious concern was entitled to have those concerns taken seriously.

“The treatment of both Ms O’Hagan and her attempts at communicating her concerns fell well below the standard that she was entitled to expect from the department.”

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The response of Mrs Foster’s officials to Ms O’Hagan when they met her was “completely inadequate”.

It said that Ms O’Hagan’s evidence that when told of abuse the officials had said “people wouldn’t do that” was something which shows “a culture which allows such blinkered belief in the correctness of their approach is of significant concern to the inquiry and must not be allowed to continue if such a situation is to be avoided in the future”.

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