Statement by the RHI Inquiry Chairman, the Rt Hon Sir Patrick Coghlin, at the Preliminary Hearing on Monday 18 September 2017 in the Senate Chamber, Parliament Buildings, Stormont

18 September 2017

Introduction

Good afternoon and welcome to this, the third, preliminary hearing of the RHI Inquiry; and the final such hearing before the Inquiry commences its oral hearings. 

It has been some twelve weeks since we held our second preliminary hearing here in the Senate Chamber at Parliament Buildings.  At that time, I described the significant progress which the Inquiry had made in its investigations and gave a summary of significant developments in the work of the Inquiry.  Today, I wish to make a similar, although (you may be pleased to hear) considerably shorter, statement.  That is not because the Inquiry is making any less progress.  Quite the contrary is the case.  Indeed, the Inquiry intends shortly to commence its oral hearings and I will say something further about that in due course. In the public statements which I have previously made (which are available on the Inquiry’s website) I explained in considerable detail how the Inquiry is operating; and, for today’s purposes, I will assume that you are familiar with those processes. 

Further investigative progress

Firstly, I would like to say something about the further steps which have been taken by the Inquiry in order to investigate the matters set out in its Terms of Reference.  As you know, the primary means by which the Inquiry is conducting its investigations is through the issuing of statutory notices under the Inquiries Act 2005, known as ‘Section 21 Notices’, which compel the provision of documentation or evidence, including written evidence by way of witness statements.

The Inquiry has now served a total of over 470 such notices.  The result of these notices has been to allow the Inquiry to gather a huge amount of evidence – both in terms of documentation and witness statements – which is relevant to the issues we are required to address by our Terms of Reference which, as you are aware, are both comprehensive and very wide-ranging.  As I have previously explained, the first stage of the Inquiry’s investigative work was, broadly, the gathering of documentary evidence.  As of today, the documentary material provided to the Inquiry and processed into evidence bundles amounts to around 880,000 pages, with more documentation remaining to be processed and further evidence being received on a daily basis. 

Clearly, it is a mammoth task to review and assimilate this documentation.  This involves not only processing the documentation – putting it into evidence bundles, numbering it and making it ready for reference and use in the Inquiry’s ongoing work and at hearings – but also reviewing and assessing the substance of the documentation.  That work continues and the Inquiry’s legal team is working as hard as possible to extract the relevant information from the many documents, files, emails and communications which have been provided to us.  I will say something more about that in the context of the Inquiry’s timetable and oral hearings in just a moment.

As the Inquiry has gained a clearer picture of the issues which require investigation, we have also turned to individuals who were involved in some way with the RHI Scheme to require them to provide written evidence in the form of a witness statement.  The Inquiry has now obtained a considerable number of witness statements – some extremely lengthy and detailed – from persons from whom it has sought evidence.  Unsurprisingly, some of those witness statements raise many further questions, whether for the author of the statement or others; and the Inquiry is now also in the course of seeking supplementary evidence from a number of persons who have already provided a witness statement but whose evidence on a particular matter or matters requires to be probed further.  In addition, it is not uncommon for witness statements which have been received to identify other persons, to whom the Inquiry has not previously sent a notice requiring evidence, who then have to be addressed. In addition, such statements may, and often do, refer to annexes containing references and further documents which also need to be considered and assimilated.

In summary, the Inquiry is making extremely strong progress in working its way through the documents which have been provided to it and collecting evidence relevant to the matters which it must consider; but the size of this task, given the breadth of the Inquiry’s Terms of Reference, should not be underestimated.

Participatory rights

I previously explained publicly that the Inquiry has designated three organisations as core participants for the purposes of their interaction with the Inquiry.  Those are organisations which, in the Inquiry’s view, have had some continuing involvement with the RHI Scheme throughout all of its phases and across the full scope of the issues which the Inquiry is investigating, namely the Department for the Economy; the Department of Finance; and Ofgem, which administers the Scheme.

The Inquiry has recently received, from a number of civil servants who played important roles in relation to the Scheme at various points in time, applications for designation as core participants also.  I have determined that such a designation is not necessary or appropriate; and this determination, including the reasons for it, has recently been published on the Inquiry’s website.

In my previous public statements however, I also made clear that there may be those who ought – in fairness to them and/or in order to enhance the effectiveness of the Inquiry – to be provided with some enhanced participatory rights, over and above those afforded to someone who is simply providing evidence to the Inquiry as a witness, whether orally or in writing.  Consequently the Inquiry has designed and implemented such a process.  As I have consistently made clear, the Inquiry is determined to act fairly towards those with whom it interacts and to adopt flexible procedures to ensure that this is so.  The granting of enhanced participatory rights is one facet of these commitments.

Since the last preliminary hearing, the Inquiry has written to 23 individuals or organisations and granted them enhanced participatory rights.  In practical terms, the most significant feature of these rights for the moment is early and open access to the Inquiry’s witness statement bundle, although that is still in the process of being updated as further witness statements are received or are processed.  Enhanced participants will also have a right to be legally represented at hearings where I consider that this is appropriate and for their legal representative to engage with the Inquiry over possible lines of questioning which may be pursued with other witnesses, whose evidence is relevant to their position.  Depending upon the circumstances and, in particular, having regard to the duty to conduct the Inquiry in an efficient and cost-effective manner as well as fairly, the right to legal representation may be afforded to an individual or to a group of participants.  In due course other rights may also be made available to enhanced participants, such as the facility to make a written closing to the Inquiry.  Those granted such a status include the consultants who advised on the scheme design (Cambridge Economic Policy Associates); a range of civil servants who played significant roles in the creation or running of the Scheme or in the oversight of the Department of Enterprise, Trade and Investment; the two Ministers responsible for that Department during the key periods the Inquiry is considering; and a number of special advisers who were involved with, or are alleged to have been involved with, decisions relating to the Scheme.

Revised protocols

As a result of the approach which the Inquiry has adopted to the grant of participatory rights, the Inquiry has revised and updated its Procedural Protocol, which can be found on the Inquiry website.  The protocol now makes clear that there are those who have, or may be, granted enhanced participatory rights and more accurately reflects the different statuses open to those engaging with the Inquiry.

In addition, the Inquiry has updated its Redaction Protocol, which is also to be found on the website.  This is because I have recently made a further restriction order.  I spent some time at our last preliminary hearing outlining the Inquiry’s approach to the redaction of documents which have been made available to it.  In due course, when evidence provided to the Inquiry is made public, either through our public hearings or through more general disclosure at a later time, there will be some details which have to be withheld from publication, or ‘redacted’, in the public interest.  I have already described on a number of occasions my commitment to make sure that the Inquiry is as open and transparent as possible; and that remains the case.  The further restriction order which I have made relates to the non-publication of information which the Inquiry considers to be commercially sensitive, in circumstances where the public interest in maintaining that sensitivity outweighs the public interest in disclosure; and to the non-publication of certain information relating to investigations (such as investigations into matters such as fraud, misconduct or abuse of the RHI Scheme) where the disclosure of the information might in my view impede an on-going investigation or the investigative process more generally.  The Redaction Protocol has been updated to take account of this further restriction order; and the restriction order itself, Restriction Order No 4, is also available on the Inquiry’s website.

Timetable

As always, I anticipate that there may be most interest in what the Inquiry is now in a position to disclose about the timetable for its oral hearings.

In my last public statement I indicated that, during the month of August, we would endeavour to send letters to at least the first tranche of those whom we anticipate will be called as oral witnesses, indicating the general time period within which they will be expected to attend to give oral evidence.  When writing, in August, to a number of enhanced participants, we were in a position to indicate in each case, not only their designation as a person or organisation with enhanced participatory rights, but also that they will be called as an oral witness.  When doing so we were able to give each a broad, although necessarily provisional, indication of when that might be.  As a result, the majority of those who will be called to give oral evidence before the Inquiry have been informed of the approximate time period when they will be required to do so.  There will be a limited number of other individuals who are still to be informed that they will be called as oral witnesses and this is being kept under review by the Inquiry team as information and evidence continues to be gathered.

At the last public hearing I also indicated that we would like, and at that time intended, to commence oral hearings in the first two weeks of October.  I emphasized, however, that whether we could do so remained dependent upon the investigative progress made by the Inquiry generally and the outcome of our engagement with participants before the Inquiry.  Reluctantly, I have come to the conclusion that commencement in early October is just not possible, for reasons which I shall mention in a moment.  However, I can announce that the Inquiry now intends to commence its oral hearings, in this chamber, on Tuesday 7 November, commencing at 10.30 am. 

I will say some more in a moment about the content, shape and structure of the oral hearings to be held up until Christmas.  Before that, however, I want to make some further observations about the start date of the oral hearings and the alteration to the provisional intended timetable which I mentioned in June.

As I have made clear, the Inquiry is making considerable progress in working through the volume of documentation and evidence it has received which is relevant to its Terms of Reference.  On several occasions now, we have expanded the Inquiry’s legal team or recruited new administrative staff to deal with the increasing demands in these areas.  Staff continue to work extremely hard in order to conduct necessary preparatory work in advance of the oral hearings.  However, despite these steps, it has become clear that this work will not be complete in advance of any realistic start date for the oral hearings which I might set.  I make absolutely no apology for expressing once again my gratitude and admiration for the ability and application of the Inquiry support team. What I must do is balance the demands of progressing the Inquiry’s investigative work and analysis with the demand of moving the Inquiry forward within a reasonable time and meeting the public’s expectation for expedition, so far as is possible consistently with our Terms of Reference.

In addition to the Inquiry’s own preparation, I am conscious that we are making significant demands upon those with whom we are interacting.  Core participants, enhanced participants and witnesses will need time to consider materials we send to them, or make available to them, in advance of their giving evidence; and the Inquiry of course needs time to collate that material and provide it.  I mentioned in my last statement that many witnesses have sought extensions of time because of the exacting deadlines which we have imposed upon them for response.  Of necessity, a number of such applications have been a consequence of pre-booked summer holidays.  

A recent, and significant, further instance of further time being required arises in relation to supplementary corporate statements on the part of core participants which the Inquiry has invited them to submit.  Each core participant has provided the Inquiry with a lengthy and detailed statement on behalf of its organisation corporately.  Over the summer, the Inquiry has made available to the core participants large tranches of documentation which has been provided to it, as well as the then current form of the Inquiry’s witness statement bundle.  On 21 July each core participant was invited to provide a supplementary corporate statement or statements to the Inquiry clarifying or modifying its position, where necessary, now that it had access to information from the other core participants and others.  They were asked to submit any such further statements by 1 September.  A number of applications for an extension to this deadline, all for good reason, were made and granted.  However, as matters stand today, none of the core participants has been in a position to yet provide a further supplementary corporate statement.  This should not be seen as a criticism, as it is not; rather, it is a reflection of the very significant task required in reviewing the relevant documentation which the Inquiry has provided to them.

I make mention of this issue in order to explain and assist the public to understand the difficulties which are faced by a public inquiry, and those interacting with it, which is as document-heavy as this inquiry is transpiring to be.

In this regard, I should mention that, by and large, the Inquiry has been impressed by, and is grateful for, the cooperation which it has received from those who have been approached by it.  We acknowledge the efforts being made by those concerned in order to allow the Inquiry to proceed with its work and we are hopeful for, and expect, the same efficient cooperation all round as we progress to the public hearings phase of our work.  All those concerned have a duty to the public to ensure that the Inquiry can conduct its work efficiently, effectively and expeditiously.

In light of the factors I have mentioned, and taking into account the progress the Inquiry has made, the work which is still to be done, and the public interest in expedition, I have decided that Tuesday 7 November is an achievable date on which to commence our oral hearings.  Even then, the Inquiry will be commencing its hearings with a considerable amount of investigative and preparatory work remaining to be done as its oral hearings progress.  Necessarily, therefore, the precise timetable for the continuation of oral hearings will have to be kept under review.

Nonetheless, I can say something about what is intended in the first phase of oral hearings up to Christmas, commencing on 7 November.  The Inquiry still intends that its hearings schedule will be made up of a series of two-week segments of taking evidence, followed by a week in which the Inquiry will be concerned with considering the evidence given, taking any further steps which might need to be taken on foot of it, and preparing for the next two-week segment of taking evidence.  I described this ‘two weeks on, one week off’ rolling model in my last public statement; although I again make clear that the Inquiry will be continuing its work as vigorously as it is now, even when we are not sitting in this forum.  I also continue to intend that in hearing weeks we will sit on four days per week, Tuesday to Friday, for reasons I set out in my last public statement.

The first two weeks of the Inquiry’s hearings, therefore, will run from Tuesday 7 November to Friday 10 November; and from Tuesday 14 November to Friday 17 November.  The first week will largely consist of an opening of the Inquiry by Inquiry Counsel.  The purpose of this opening will be to explain to the Panel and for the benefit of the public both the Inquiry’s procedures and, more importantly, an overview of the evidence gathered and themes which the Inquiry will address in the course of its oral hearings and further investigative work.  I also intend to permit each of the three core participants to make a brief opening statement, if they so wish, on Friday 10 November.

The second week of hearings will also consist of presentations by Inquiry counsel.  In the first instance, we will examine a comparison between the RHI Scheme in Northern Ireland and the analogous scheme in Great Britain, since one of the central themes of the Inquiry’s investigation has been, and will be, the justification for divergences between the two schemes at various times.  Then, Inquiry counsel will open what I have previously referred to as Phase 1 of the matters we are required to investigate, namely the original design and implementation of the RHI Scheme in Northern Ireland.  As evidence progresses, it is intended that the various phases will be opened by Inquiry counsel – that is to say that they will provide a summary of the factual picture relating to that phase, refer to and explain the key documents and outline the important themes which the Inquiry Panel will have to consider, as well as identifying witnesses who will be called and any factual disputes which the Panel will have to resolve.  Such an opening is both a helpful reminder to the Panel of the task before it and of invaluable assistance to the public in informing them of the issues the Inquiry is addressing and in assisting them to follow and understand what is going on.

As I have previously said, written evidence and documentation gathered by the Inquiry and referred to at our oral hearings will also be released to the public as appropriate as the hearings progress.

Consistently with what I have said about our sitting schedule, after the first two weeks of hearing, the Inquiry will continue its work but not sit again until Tuesday 28 November.  In the sitting week commencing on 28 November, and the following week, witnesses who were involved in the design and creation of the Scheme will be called and examined.  These witnesses will include the consultants responsible for advising on the design of tariffs in the Scheme and a number of civil servants involved in the setting up of the Scheme, or dealing with funding for it, in various ways.  After those two weeks of hearing, the Inquiry will sit again on 19 December, for three days of that week, until 21 December.  Most of the evidence relating to Phase 1 should be complete at that time and, depending on progress, it is hoped that Phase 2 will have been opened.

We do not intend to call witnesses to give oral testimony when their evidence can appropriately be dealt with in writing.  Just because a witness is not called to give oral evidence does not imply anything about the significance or credibility of their evidence. 

We also generally intend, as a very broad approach, to try to adopt a chronological approach to the evidence being considered; but also to call more junior civil servants first, working up the line of responsibility, with those in the positions of most responsibility, such as Permanent Secretaries and Ministers giving evidence towards the end of the hearings.

Further, more specific details about hearing sessions will be published by the Inquiry intermittently on its website, at appropriate times, as the hearings progress.

Conclusion

Thank you again for your attendance today; and for your interest in the work of the RHI Inquiry.  I hope these remarks have been of some assistance in reassuring you about the significant progress which the Inquiry continues to make and of interest to you in terms of the next stages of our work.

I had previously indicated that there would be scope at today’s hearing for any applications or representations which might be made in relation to participatory rights but that I hoped these would be resolved in correspondence in advance of today.  I consider that that is the case and, despite having invited those who have been in contact with the Inquiry about the issue of participatory rights to advise me if they take a contrary view, have received no such indication.  That being so, today’s business is concluded and we will reconvene on 7 November for the opening of the Inquiry’s oral hearings.

Thank you.