Burned

by Sam McBride

  It would be wrong for me to say that in this situation because I never seen [sic] any minutes from any meeting in any department so in this particular case, should [the private secretary] have came [sic] to me … and said ‘Andrew, I need a minute of that meeting’, bearing in mind that I didn’t do it before, it would be wrong for me to have said I should have done it in this case.

  Crawford and Foster both defended the department’s appalling record keeping by saying that officials always appeared to be scribbling down notes during meetings. It had to be pointed out to them that a series of jotted thoughts in the notebooks of multiple civil servants is not an agreed minute of a meeting, something which members of churches, golf clubs or residents’ associations would immediately comprehend. At a basic level, Foster, her private secretary or her spad needed to see the minutes of meetings in which she was present to ensure that they were accurate. Otherwise, if a set of minutes did exist – which might be released under FoI or emerge in court proceedings – the minister was being left vulnerable by a spad who was in this area failing to be her eyes and ears within the department.

  The power of the holder of government minutes is so obviously significant that it has been a subject satirised in political comedy, most memorably in Yes, Prime Minister. Famously, when a dispute arose in cabinet about something raised at the preceding cabinet meeting, the wily Cabinet Secretary, Sir Humphrey Appleby, drew to the cabinet’s attention that the minutes of the last meeting did not record such a discussion. After protests from the minister, who knew that he had raised the issue, Sir Humphrey embarked upon a breathless explanation of the importance of minutes in government:

  It is characteristic of all committee discussions and decisions that every member has a vivid recollection of them and that every member’s recollection of them differs violently from every other member’s recollection. Consequently, we accept the convention that the official decisions are those and only those which have been officially recorded in the minutes by the officials … so in this particular case, if the decision had been officially reached it would have been officially recorded in the minutes by the officials, and it isn’t, so it wasn’t.

  As would later become apparent, Crawford was not some wide-eyed innocent who lacked Sir Humphrey’s guile, and he would surely have appreciated the elemental importance of what was recorded. Indeed, it is instructive in this regard to observe that rather than using his government email address Crawford chose to use his own personal Hotmail email account for government business, meaning that the contents could not be searched by departmental officials and would not emerge under FoI unless Crawford decided to hand over emails.

  When during his evidence to the inquiry Crawford was pressed about the absence of minutes, he sought to blame civil servants, saying: ‘I cannot answer how, if neither [official] was doing their responsibility or duty, I don’t know where that happened or where that originated or where that started.’ But it is not just an absence of minutes which hampers a full understanding of what Foster and Crawford were getting up to in this period. The DUP pair developed a second system, which for them had the happy benefit of ensuring that the public would never get to see the most sensitive messages passed between them.

  Foster and her spad developed a system of making political comments on Post-it notes, which were immediately destroyed – something which had begun in their days together at the Department of the Environment. In what RHI Inquiry barrister Joseph Aiken described as ‘politics by Post-it’, the inquiry uncovered a practice that means we now cannot know if some messages about the RHI scheme were immediately destroyed. The secretive system also meant that the messages were never able to be evaluated for release under FoI – despite the law stating that significant government decisions, even if they are written on a napkin or a paper plate, ought to be retained.

  It was a beautiful system for a party which hated scrutiny. Crawford acknowledged that these notes ‘wouldn’t have been formally recorded in the system’ and ‘there would be no record of it’. But, after news reports about the Post-it note communication following its emergence at the inquiry, Foster sought to play down the scale of the practice. Foster said usually what was written on notes was ‘things like “speak to me about this” … it may have been something that he wanted to raise with me about the submission orally, rather than write it down, that perhaps wouldn’t have been appropriate to put on a submission’. When asked why that would be, she said: ‘I don’t think it’s appropriate to put on a submission that’s going back into the civil service “speak to me”.’ Foster then suggested that there was not much room to write comments on ministerial submissions. Describing the notes system as ‘a very innocuous thing to do’, she added: ‘There was nothing on any Post-it notes, from my memory, that would have caused any concern.’

  The advantage of that system is that Foster and Crawford are now the sole arbiters of what ‘would have caused any concern’. Inquiry chairman Sir Patrick Coghlin described it as ‘a sophistication of the lack of a record system because although you have a record here, you have another tier that is a removable record – it’s a removable record if it is about politics.’ There did, however, come a point when Foster suddenly took a keen interest in what had been recorded about RHI. After the scandal began to emerge, Foster contacted her former private secretary, Glynis Aiken, in person and asked her to check whether she had any recollection of discussions about cost controls. Aiken said that she advised Foster that in her personal notebooks she did not find ‘anything that was considered important’ – and then dumped the notebooks.

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  In late May, just a fortnight after Bell’s arrival at the department, its most senior civil servant, Andrew McCormick, met DECC. On 28 May, just after meeting the Whitehall officials, he emailed the new minister’s spad, Timothy Cairns, Mills and others, to inform them of what had transpired. DECC, he said, felt that Stormont should not be limited by the Barnett Formula – the mechanism whereby Northern Ireland gets a population-based share of public spending in GB. Rather, he said, DECC’s view was that ‘the key was to give HMT early warning of the increased demand’. This message, which implied that the funding might be open-ended after all, confused what ought otherwise to have been a clear picture by this stage.

  There was however a huge caveat, which McCormick did not mention. DECC was not in a position to decide on what funding Stormont would get. That job was for the Treasury alone and it was precisely this sort of confusion which meant that Stormont officials were meant to channel all their funding queries through the Department of Finance. However, in McCormick’s defence, the Department of Finance had broken its own protocols by telling DETI that it should engage directly with DECC to ascertain the funding position. Rules were now being jettisoned with gay abandon. Wightman – who by this stage had on several occasions seen the 2011 Treasury email making clear that the funding was not standard AME – does not seem to have informed McCormick of this critical detail.

  Although it was now clear to DETI’s top brass that RHI was far beyond its budget and there was at best uncertainty about how that spending would be paid for, there is little evidence of any panic. Certainly within Energy Division the issue was viewed as a budgetary problem – they needed to persuade London to give the scheme more money – rather than a more fundamental deficiency in the entire scheme. Shane Murphy, DETI’s head of analytical services, remembered that in this period Energy Division were defensive and did not accept that the problem was a ‘financial crisis’ but rather a ‘function of policy success’. Chris Stewart, the second in command in DETI’s hierarchy of mandarins, said that Energy Division ‘thought well it’s not a great problem – you know it’s AME, we’ll just ask for more money, we’ll get more money and that’ll be that. They weren’t hugely worried at that stage. They ought to have been’. But there were at least two senior DETI figures who were uneasy about that approach.

  The day after travelling to London, McC
ormick was back in Belfast for the fortnightly stocktake meeting of DETI senior management. Unusually, it was to be an explosive affair. Trevor Cooper, DETI’s forthright and experienced director of finance, clashed bitterly with Mills, the similarly frank energy director. The meeting – attended by about a dozen senior officials – descended into a ‘shouting match’ between the two men, McCormick later recalled. Mills, a veteran official with grey hair and a sonorous English voice, asserted that Finance Division was not doing enough to secure additional budget. Cooper retorted that the scheme was already over budget and that there were more significant issues with it than simply getting more money. He was alarmed that his colleagues’ projected figures were moving around wildly in a short space of time, something that suggested they had limited understanding of how it was operating. McCormick, a diplomatic and consensual figure, closed down the discussion to allow for a specific meeting on RHI. But before that meeting could take place, it became clear that the department was now facing a second huge problem. Not only was expenditure beyond budget, but officials had missed the need to seek formal re-approval for RHI from the Department of Finance in April – a condition that department had set when it approved the scheme at the outset. It now meant that as claimants continued to sign up to RHI all of the new expenditure was irregular – the gravest situation within public sector accounting because it meant that there was no democratic authorisation for the spending of public money.

  The situation was not just an administrative error. Had DETI gone back to the Department of Finance in late 2014 to begin the process of seeking re-approval, it would have entailed a review of RHI which probably would have led to at least some of the fundamental issues in RHI being spotted. However, given the dysfunctionality and incompetence, it is impossible to say with certainty that this would have prevented the looming disaster. When multiple explicit warnings had already been missed or ignored, it is possible that such a review would also have led to the scheme continuing on its way with little change. At about 4.30pm on 3 June, five days after the ‘shouting match’, five senior DETI officials gathered in Netherleigh House. Cooper informed those present that the previous day he had reviewed the scheme paperwork and realised its approval had expired two months earlier and all increased spending was now irregular. The hole was deepening.

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  Amidst this bureaucratic bedlam sits a remarkable allegation: civil servants in one Stormont department consciously set out to mislead their colleagues in another department. Confronted at the 3 June meeting by news of the deepening RHI difficulties, senior figures were informed of one means of mitigation. Cooper, a heavy-set official with an unembellished manner, told the inquiry that the tone of the meeting was that ‘we’re not in a great place here, you know – we need to put our best foot forward’. He said Wightman suggested that although the Department of Finance approval made clear that there had to be a thorough review of the scheme – and although no such review had been conducted – they could pass off another lesser piece of work as having been the review.

  During a captivating afternoon of evidence to the public inquiry, Cooper spoke frankly about what he said was a plan from which not one of DETI’s senior figures present at the meeting – including McCormick – demurred. The finance director’s claim had particular weight because he was in the room and was one of those who on his own evidence did not raise their voices against the attempt to mislead fellow civil servants.

  Inquiry barrister Joseph Aiken put it to Cooper that a briefing note prepared after the meeting suggested he tell the Department of Finance that a review of RHI had been conducted in 2013 ‘when everyone knows that’s just not what happened’. The civil servant replied: ‘Correct.’ Cooper recalled: ‘This fig leaf was raised at the 3rd of June meeting. We hadn’t done a review. So, you know, “Could it — could it be [said we did the review]?” Stuart [said] ‘look, we haven’t done a review, but we have done this, etc. etc.’ Inquiry panel member Dame Una O’Brien asked: ‘But nobody said: “You can’t do that because that’s not a review?”’ Cooper replied: ‘No, including me … everyone knew that there hadn’t been a review done.’ Grasping the significance of what the witness was saying, Aiken asked: ‘What was going on with the culture in DETI … that meant communications that are inaccurate seem to be acceptable?’ Cooper paused for a long time before eventually saying: ‘I’m not sure what the answer to that question actually is. It’s a very difficult one to answer, because there’s actually no defence.’ When asked if it was a human mistake or a cultural problem within the civil service, Cooper said: ‘It’s potentially cultural.’

  The day after the meeting, Wightman gave effect to the ‘fig leaf’ plan and drafted a document, which masked the full gory picture of what had happened. A week later he had a five-page briefing note to inform Cooper’s discussions with the Department of Finance. It misleadingly said: ‘In October 2013, DETI commenced a Phase 2 review of the domestic and non-domestic RHI schemes.’ Wightman’s rosy presentation of the situation extended to presenting DETI as having done more than it said it would do, implying that the review had been conducted even earlier than necessary. Then, showing either extreme naivety about the scheme he was running or else immense confidence in his powers of persuasion, Wightman actually claimed credit for the vast overspend, writing in the document that ‘despite the drop in oil prices over the winter months, we have successfully increased uptake of the Non-domestic RHI scheme over the last 12 months.’ He also claimed that a second review – this time of the tariffs – was ‘ongoing’. But the truth was that there was nothing that could be characterised in civil service terms as a review – an in-depth analysis of the tariffs – at that point. Had there been such a project, it would almost certainly have uncovered the perverse incentive.

  Cooper said he was ‘not defending’ what had happened. Aiken put it to him that even though some people at the ‘fig leaf’ meeting may not have fully understood the implications of what they were discussing, as the summer progressed ‘these type of characterisations are known to be untrue’ – but kept being used. O’Brien observed: ‘Things might have turned out differently if you had been honest with each other at the time.’

  Stormont’s culture of departments, often operating as ministerial fiefdoms rather than as part of a coherent government, may have contributed to the culture whereby civil servants sought to protect their department rather than the wider public interest. Ministers were wary of problems being communicated outside the department for fear that it would end up with ministers from rival parties who might leak the news. In this case, however, it is difficult to see what happened as anything other than an example of the human temptation to shift the blame. That is because not only was the finance ministry, like DETI, in DUP hands, but it was headed up by one Arlene Foster who had no motive whatsoever to draw attention to calamity in a scheme of her making.

  One of the alarming elements of Cooper’s evidence was that he said that he went along with the plan – despite it being clear that he was often a voice of challenge within the department and was known for asking difficult questions of colleagues. The senior DETI official’s evidence suggested a department that was more focussed on protecting itself from criticism than on presenting the full truth – even to other civil servants.

  Wightman did not deny that he had suggested the ‘fig leaf’, telling the inquiry that he had ‘very little recollection at all’ of the 3 June meeting. He admitted that the documentation indicated that he had wrongly suggested a review had already taken place, but insisted: ‘I would not have set out to mislead other officials’.

  McCormick told the inquiry in writing: ‘I have no recollection of anyone making the point that Trevor Cooper has highlighted, and if there had been an explicit suggestion that we should misrepresent the position to [the Department of Finance] I am sure that I would remember that.’ He added: ‘In summary, I was not in any way aware of, or party to, a decision to seek to pretend … that the
2013 consultation had been in fulfilment of the condition of approval in 2012.’

  The significance of what happened after the 3 June meeting was that the language then adopted carried through into multiple other documents, misrepresenting the position to more and more civil servants.

  But Cooper himself was aware of something else which should not have happened in this period – but which suited him because it removed a criticism of his division. In May, Mills had been highly critical of Cooper’s team. In an internal ‘assurance statement’ – a document meant to provide the permanent secretary and the department’s audit committee with assurance that all was well across DETI – Mills had recorded that ‘despite the repeated requests for information from the finance division and [the Department of Finance], the division has yet to receive any clarity around the maximum available RHI budget going forward … Without this clarification, both schemes may need to be closed to prevent overspends.’ At the inquiry, Cooper accepted that the criticism had been a fairly accurate portrayal of the situation. However, when the final version of the document was circulated to members of the departmental board, references to the RHI situation were far more anodyne and criticism of the finance division was removed altogether. Cooper said that there had been a series of internal conversations with senior officials about the issue before the changes were made. He conceded: ‘It looks bad. I totally accept that.’ Mills told the inquiry that within the civil service ‘it’s not done to say things like that [criticisms of colleagues in formal documents]’. The incident was a demonstration of how mechanisms to prevent problems arising could be circumvented with the knowledge of multiple senior civil servants.

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  Alarmed at what was going on, Cooper sent an email to fellow senior official Shane Murphy which tore apart Energy Division’s proposals to address the RHI problems. The 12 June message noted that there was ‘nothing on how they’re going to constrain spend’. Cooper said that he felt there was ‘a fair bit of naivety’ on the part of Wightman and his division, with them having ‘glossed over’ the issue of reviews. Getting to the kernel of the soaring RHI bill, he said: ‘There’s no self-awareness that the reason they may be delivering greater renewables than GB counterparts is the simple fact that we may be overcompensating – so it’s not actually over-performing; indeed, potentially quite the contrary.’ While O’Hagan had been trying to raise the alarm from without, Cooper was now trying to raise the alarm from within. In Murphy he had an ally who was sceptical about Energy Division’s increasingly far-fetched claims about the success of RHI. But their attempts at forcing critical thinking on Mills, Wightman and Hughes would be undermined by what was to happen five days later.