Burned

by Sam McBride

  He later told the inquiry that he had not wanted to return as a spad after the May 2016 election and only reluctantly was ‘talked into’ continuing in the well-paid job for a ‘short period’.

  Because of the fact he was choosing to resign, rather than being made redundant by his minister, Brimstone did not get the lucrative golden handshake common for Stormont spads who lost their jobs. Since that point Brimstone has been working as a self-employed IT consultant.

  Like Brimstone, Foster insisted that there had been no link between RHI and her spad’s departure. But although Brimstone did not ultimately feature in the Spotlight programme, rumours about him and the impending Spotlight had been swirling around Belfast for weeks.

  On 14 October 2016, the PSNI also got involved. Having been passed the allegations by Allister, police asked Ofgem to assist its investigation. Three days later, Ofgem’s Samantha Turnbull emailed Ofgem’s head of counter fraud and Clifton to ask: ‘Given the political sensitivities [sic] how would [sic] like us to proceed with the DC Adams?’

  Turnbull wanted to show police the auditor’s report into Brimstone’s boiler. However, others in Ofgem were less keen for that to happen. Turnbull was given legal advice from an Ofgem lawyer that ‘whilst we should strive to assist them [the police] with their investigation, we should only do so if we are convinced that they have good reasons to be investigating him’.

  Rather than sharing the audit report, she was instead advised to confirm that Ofgem had investigated the issue and ‘concluded there isn’t any cause for concern’. Detective Constable Adams subsequently agreed there did not seem to be any criminal issue and the case was closed.

  ***********

  On 23 January 2017, seven weeks after the Spotlight exposé which had turned RHI into a huge political scandal, Allister got to his feet in the Assembly.

  By that stage, it was clear that Stormont was collapsing and there was an air of chaos. It was the penultimate sitting of the Assembly before dissolution and an election. MLAs did not know it at the time, but the Assembly would not sit for debates of any sort for more than two years.

  Allister, a formidable criminal QC, was loathed and feared by many in the DUP. As he got to his feet from his customary seat by the main doors of the chamber, the TUV leader began with a joke at his own expense, assuring the Speaker that he would be ‘much easier to control’ than the last contributor, veteran socialist Eamonn McCann. The Assembly laughed, but Allister was there on serious business. The Assembly was debating emergency legislation to retrospectively slash RHI payments.

  More than half an hour into his speech, Allister – in whose North Antrim constituency Brimstone lived – turned to the former spad. Speaking under Assembly privilege, meaning that Brimstone could not sue him for defamation, Allister told the story of a farmer who had come to him in distress the previous week. He told the MLAs: ‘Interestingly enough, this farmer was introduced to the scheme by the then DUP special adviser Stephen Brimstone, no less.’

  Allister said that the farmer, who had invested heavily in RHI boilers based on the cast-iron guarantees given to him, had been audited and found to be bona fide. ‘When that person asks “What’s going to happen to the fact that I am relying on this promised return to pay off my bank? What am I to say to my bank manager, Mr Allister?” I do not have an answer for him.’

  Allister then turned to ‘others’ who ‘saw this as a quick buck … or as a means to heat their house’. Knowing what was likely to come, the DUP minister Simon Hamilton nervously twiddled with a paperclip as he listened from his front bench seat.

  Allister then brought into the public domain that Brimstone was claiming to heat his home under the non-domestic scheme. ‘Did he claim that he had a few sheep and was a sheep farmer? Does he have sheep?’ Lowering his voice, he said gravely: ‘One thing is for sure: he is heating his own house. Is that right? Is that how things should be under this scheme?’

  Allister said that what he was doing was ‘scandalous’ and a ‘rip-off’, telling MLAs that Brimstone had taken out a relatively young boiler in order to enter RHI.

  Although the story immediately led to front-page coverage in Northern Ireland’s daily newspapers, Brimstone reacted to Allister’s allegations with silence. The DUP was evasive about someone who had been one of its most powerful Stormont figures until just a couple of months earlier. When faced with questions about Brimstone, the party refused to say if he was even a member and then said it was ‘not privy’ to details of his situation, as he was now a ‘private citizen’.

  ***********

  Unknown to the public, Ofgem had already decided to conduct a second – and this time unannounced – inspection of Brimstone’s boiler. On the morning of 30 March 2017 Brimstone found an investigator sent by Ofgem standing at the gated entrance to his home.

  Inside the ‘agricultural shed’, the auditor found a vintage tractor which was part of a restoration project, a large pile of logs for Brimstone’s home, children’s toys, a workshop area and – perhaps because this time, unlike the earlier inspection, it was lambing season – some soiled wood shavings.

  As with the initial inspection, Ofgem asked Brimstone follow-up questions. On 4 July 2017 – seven months after the Spotlight programme – Ofgem’s chief operating officer, Sarah Cox, met senior colleagues to discuss Brimstone’s case. They were there to finally decide on what should be done about Brimstone, and Cox’s presence reflected how significant this case had become.

  During the discussion she challenged the view of Clifton and Ofgem’s internal lawyers that Brimstone was acting within the law, pressing them about the value for money of what was happening and whether Ofgem was protecting taxpayers’ money. In response, they admitted that the former spad’s arrangement may not have been within the spirit of the law but said that he was acting within the letter of the regulations and therefore there was nothing they could do.

  At the conclusion of the meeting, even the presence of Ofgem’s chief operating officer was insufficient for a decision to be taken and instead she took the issue to the very top – to chief executive Dermot Nolan. Whatever the nature of their discussions, the case was settled in Brimstone’s favour and his payments kept flowing.

  After more than two years of internal debate and investigation, Ofgem ultimately came to give Brimstone a completely clean bill of health. He had not broken the rules in any way, Ofgem said, and that view was endorsed by the public inquiry which conducted its own substantial investigation into his situation. That concluded with inquiry counsel Joseph Aiken stating that not only was Brimstone in compliance with the law but the evidence of how he was using the boiler was in keeping with the average heat use for a house, with the boiler running for an average of about four hours a day.

  But the case exposed yet another glaring loophole in the regulations which Foster had put to the Assembly. Ultimately, Ofgem came to logically interpret the rules in a fairly remarkable way. Aiken set out how Ofgem effectively believed that under the rules if in a hypothetical situation Brimstone had allowed a local farmer to bring his sheep to Brimstone’s shed for one day in the year and that was its only non-domestic use, even though it was carried out by a third party, it would still be entirely acceptable for him to claim for heating his home for the rest of the year.

  Under that interpretation, it is likely that many of those who applied to the less lucrative domestic scheme could have found creative ways of getting on to the 20-year non-domestic RHI – and, in the eyes of Ofgem, acted entirely legally.

  Although the inquiry and Ofgem both agreed that Brimstone did nothing to break the letter of the law, that did not save him from rigorous questioning. He insisted that he had not thought it odd that he was able to claim a non-domestic subsidy to heat his home. Dame Una O’Brien put it to him that ‘the clue is in the name – it’s a non-domestic Renewable Heat Incentive scheme’.

  She asked him: ‘When it became apparent to you that it was possible to do thi
s – you know, admittedly, within the rules – did it never occur to you to say ‘Hmm, I wonder if this was really ever intended … Did it occur to you to say ‘This is a bit odd’?’

  Mr Brimstone paused before saying: ‘It didn’t, and probably my understanding of the scheme – limited as it was … was that up until July 2015, mid-July 2015, I wasn’t aware that there was a differentiation for example on the tariff between the GB scheme and the Northern Ireland [burn to earn] scheme.’

  CHAPTER 19

  THINGS FALL APART

  From the night of 6 December 2016 when Spotlight seared RHI into the public consciousness, events began to move faster than Stormont veterans had ever experienced or anticipated. Relentless coverage of the scandal on BBC Radio Ulster’s biggest programme – The Nolan Show – involved two damaging elements. Investigative reporting, with the hidden help of Jonathan Bell and others, was daily revealing new elements of the scandal while the programme’s phone-in gave voice to the public’s anger.

  It was Nolan who had first broadcast an interview with Janette O’Hagan – then known simply as ‘the whistleblower’ – two days after Spotlight. Attempting to undermine that story, the DUP had the following week released what it said was the sole correspondence between O’Hagan and Foster, an email which did not raise concern about RHI. In a statement, DUP deputy leader Nigel Dodds ‘called on opposition parties and sections of the media to retract allegations against First Minister Arlene Foster’. He said that the email ‘nails the myth that Mrs Foster as DETI minister failed to follow up on “whistleblower” concerns about RHI’ and said that Foster was ‘now owed an apology’.

  There were two problems with that. Firstly, the email was not the only contact with Foster – there had been a second explicit warning of abuse. Bizarrely, Foster had already conceded this to BBC Spotlight. Secondly, in releasing the email the DUP had blacked out O’Hagan’s name and email address. But it was quickly possible to piece together her identity based on other information in the email – which quickly happened online.

  It was a disastrous attempt to quash the story. The DUP had not been sufficiently brave to approach O’Hagan directly but had got senior civil servant Brendan McCann to acquire the email. The businesswoman, who was seeking to protect both her young family and her business from being embroiled in a political argument, emailed McCann in dismay to remind him that ‘at no point did you ask for my consent nor did anyone from the DUP and it is really unfair to say publicly that you/they did’. She said that what the party had done ‘makes me out as a liar and I can tell you that I have not and will never lie about what happened’.

  Pressed at the inquiry about how her party had so shabbily treated O’Hagan, Foster distanced herself from the incident, saying that she did not think that she was involved in discussions about releasing the email. However, Andrew McCormick told the inquiry that there had been a discussion in Stormont Castle with Foster, his own minister Simon Hamilton and the DUP spads in which ‘the First Minister wanted to release the email publicly’.

  McCormick insisted that the civil service had operated on ‘a factual and apolitical basis’ but said he appreciated how to O’Hagan the distinction between officials and the DUP would ‘appear at best to be blurred’.

  The incident appears to have been down to DUP and civil service desperation and sloppiness rather than a deliberate attempt to unmask a whistleblower – there was no benefit to them in saying what they did unless they believed it to be correct. But it added to the public perception that the DUP was attempting to hide what had gone on.

  The DUP faced a second difficulty in that the News Letter, the editorially pro-Union newspaper read by many of its rural supporters, devoted significant resources to the story. The paper had once been very close to the DUP, and there was a time when the DUP hierarchy could phone the then editor to have uncomfortable stories pulled or altered with the threat that government newspaper advertising controlled by DUP ministers might otherwise be pulled. But those days had long gone by the time the scandal broke and the newspaper now ran front page after front page revealing more and more of the scale of what had gone on – while editorials argued for a public inquiry.

  There was an immediate and unique public appetite for the story, which grew with every emerging morsel of information. The News Letter was receiving reports that it had sold out in republican parts of Northern Ireland and website records were being broken. Those stories were replicated across the media landscape. By 20 December, the BBC NI website’s main RHI article – an online report of a vote of no-confidence in Foster over the scandal – was read 870,000 times, a staggering figure, given that Northern Ireland’s population is just 1.8 million and there is generally limited interest in Stormont politics outside Northern Ireland.

  Four days after Spotlight, it emerged that a Free Presbyterian Church – the denomination closely tied to the DUP – had an RHI boiler. Hebron Free Presbyterian Church in Ballymoney was in line to receive £270,000 from the subsidy. One of the church’s elders was DUP MLA Mervyn Storey, who had been the DUP Finance Minister when the boiler was installed. Storey said he had ‘nothing to do with it’ and ‘didn’t even give [a fellow elder] any advice in relation to it’.

  It later emerged that the church, a building which many of the public would expect only to be heated for services, had in fact installed two RHI boilers – one of them during the October spike in applications before the scheme was made less lucrative – for which it had been receiving huge payments. The boilers had between them brought it almost £60,000 in less than two years.

  That same day, the front page of The Irish News revealed that Andrew Crawford’s brother was on the scheme. Crawford did not volunteer that between them his relatives had 11 RHI boilers. But even without that full transparency, the story added to a public perception that those close to the DUP had got into the scheme.

  Within ten days of Spotlight, what prior to the programme would have seemed preposterous – that Foster, a popular and politically secure leader, could be out of office within months – had become plausible. The DUP denounced the BBC’s coverage, shooting the messenger by claiming that the corporation was biased against unionism – while not legally challenging the facts which were being reported.

  DUP MP Gregory Campbell went further. Appearing on The Nolan Show January, he warned Nolan on air – as the presenter was stating that he was ‘digging’ into the RHI scandal – that ‘digging works both ways’. When pressed on the comment, he denied that it was a threat. Two years later, Campbell revealed that he had made a series of complaints about the BBC – and Nolan’s production company in particular – to the National Audit Office. As a result of Nolan’s RHI coverage, the DUP would begin a boycott of his programme which at the time of writing has been going on for more than two and a half years.

  It was more difficult for the DUP to accuse the unionist News Letter of bias. Several DUP spads heavily involved in RHI were among the senior party figures to privately acknowledge to the paper that its coverage was fair. But some of their colleagues had other ideas.

  On 31 December, the News Letter front page revealed that just seven months into the scheme, Foster’s department had been warned about buildings being needlessly heated, with windows opened, to collect subsidies. Brian Haslett, a DUP employee in Foster’s constituency office, tweeted approvingly of that day’s Belfast Telegraph front page – which had no mention of RHI at all, describing it as ‘a front page with REAL issues. Rather than the bias tripe from Newsletter’s [sic] @SJAMcBride’. He then added: ‘#Boycott’. Mr Haslett’s message was ‘liked’ by ex-DUP MLA Ian McCrea, then DUP MLAs Phillip Logan and Gary Middleton, and DUP Mid and East Antrim councillor Paul Reid.

  But, rather than become a more pliant organ, the News Letter reported the boycott threat and drew support from readers and DUP members. The party said that Haslett’s views ‘do not reflect the party’s position’.

  Inadvertently, the boycott call drew a
ttention to the paper’s coverage and suggested that if some of those close to Mrs Foster wanted the story suppressed, then it must be worth reading.

  But there was also a cottage industry of rumour – much of it wildly inaccurate. Some of the accurate stories read like April Fools’ Day efforts. The wife of former Ulster Unionist MLA Neil Somerville was using an RHI boiler for a ‘horse solarium’, the party confirmed – adding that her claims were entirely legitimate.

  In January a source told the News Letter that police had become suspicious of a building in South Armagh because during a frosty spell the building’s roof remained unfrozen while ice covered surrounding structures. Officers, who suspected that it was a cannabis factory, reported their suspicions to their superiors, who requested and obtained a search warrant to inspect the premises. However, when police entered the shed they found that it was almost entirely empty – but that the heating was running, with the owner admitting that he was making money from it.

  In the early hours of 6 January, there was a major fire at a shed in the countryside near Enniskillen. Inside the 20m x 12m building, eight biomass boilers had been drying woodchip for a company, Corby Biomass Systems.

  Even at this stage, there was more bungling from the department. As late as early January – almost a year after RHI had been shut – it was continuing to use public money to advertise the scheme on Google. Later that month, it sent letters to all RHI recipients to warn them that they were going to be named, prominently advising them to phone a helpline number which did not work.

  ***********

  When the RHI crisis struck Stormont’s Executive, it was more united than any power-sharing administration which had preceded it. In Assembly elections seven months earlier, the DUP and Sinn Féin had confirmed their dominant positions within unionism and nationalism respectively. In response, the smaller parties – the Ulster Unionists, the SDLP and the Alliance Party – chose not to re-enter government but to instead form Stormont’s first official opposition since 1972.