Statement by the RHI Inquiry Chairman, the Rt Hon Sir Patrick Coghlin, at the Preliminary Hearing on Monday 26 June 2017 in the Senate Chamber, Parliament Buildings, Stormont

26 June 2017

Introduction

Good morning and welcome to this, the second, preliminary hearing of the RHI Inquiry. While it is only eight weeks since we held the first preliminary hearing of the Inquiry, in the Long Gallery here in Parliament Buildings, on 27 April 2017, I wanted to hold this further hearing at this point in order to update you on the significant progress the Inquiry has made since that time.

Venue

You will see that today’s hearing is taking place in the Senate Chamber at Stormont. This will be the venue for the Inquiry’s oral hearings, which will commence in the autumn and about which I shall say some more in due course.

I want to acknowledge the time and effort expended by the Assembly Commission and its staff and contractors in swiftly preparing this venue to hold this public inquiry, and for having it ready so that we could conduct our second preliminary hearing in this location. That work is a good example of just one of the many significant and generally unseen tasks which have to be undertaken so that a public inquiry can take place.

For forty years, from 1932 to 1972, this room was the chamber for the Senate of the Parliament of Northern Ireland. Interrupted only by a period during the Second World War, when it served as an operations room for the Royal Air Force, it has been a centre of debate and discussion on all aspects of life in this society. After the Belfast Agreement and the Northern Ireland Act 1998 heralded the return of devolved government here, the statutory committees of the Northern Ireland Assembly have examined and considered a wide range of topical issues within these walls.

It is fitting therefore that we should now hold public hearings here to investigate the matters identified by our Terms of Reference. Those of you who are familiar with how this chamber used to be arranged will note that a number of changes have been made to accommodate the work of the Inquiry. The podium has been re-modelled to facilitate the work of an inquiry panel. The back benches have been removed to create space for legal representatives, to include appropriate IT facilities. Significant work which is hidden from view has also been undertaken to provide the necessary technological facilities which the Inquiry requires. As I have previously outlined, the facilities here will allow the Inquiry conveniently to broadcast its oral hearings over the internet.

Work has also been carried out to facilitate not only the attendance of the public at the forthcoming oral hearings, but also, by the installation of numerous television screens, an ability for the public to see and consider the documents the Inquiry is examining with individual witnesses.

Section 21 notices

I want now to say something about the evidence gathering in which the Inquiry has been engaged since our last hearing.
At the first preliminary hearing I explained that the Inquiry had served around 125 notices requiring the production of documents and witness statements. These are notices issued in accordance with the provisions of section 21 of the Inquiries Act 2005 (‘the 2005 Act’) which enable me, as Chairman, to require the production of evidence to the Inquiry. Individuals and organisations must comply with them. Serious consequences may follow any failure to do so.

125 notices was a very significant number; but I can say that, as of today, the Inquiry has now served in excess of 320 such notices compelling the production of documents or witness statements. Many of these are in very detailed terms, for example, setting out a series of specific questions in respect of which comprehensive answers are required.

Notices have been served on a wide range of persons and organizations. This includes civil servants and Northern Ireland government departments; Ofgem; politicians, including former Ministers; political parties and special advisers; consultants involved in the creation of the Scheme; persons or organisations involved in the renewable heat sector, along with representative bodies; legal advisers; some claimants under the Scheme; and others. We have also sought, or are in the process of seeking, information and assistance from some departments of the United Kingdom Government and from the European Commission.

It is perhaps important that I say a little more about what can or cannot be concluded from what I have said about the notices the Inquiry has served. In this important investigative stage of the Inquiry’s work, it is not appropriate to go into great detail about the precise steps the Inquiry is undertaking. There is, of course, legitimate public interest in this; but there may also be a temptation to speculate about what can be drawn from the summary the Inquiry is giving today.

I do not want anyone to be misled into thinking that more than 300 notices having been served means that 300 different individuals or organisations have received them; much less that this means the Inquiry intends to call 300 witnesses. In many cases an individual or organization will receive two or more notices dealing with different matters with which the Inquiry requires them to assist with; and it is common for a person or organisation to receive one notice seeking written evidence and another seeking all of the relevant documentation they may hold, which is a matter I will return to in a moment.

While it is vital that the Inquiry is comprehensive, and leaves no stone unturned, nonetheless is also very important that the Inquiry remains within reasonable and proportionate bounds, particularly in terms of time and cost. However, with that caveat in mind, it is still the case that a very significant amount of work has already been undertaken by the Inquiry legal team and other support staff in what is, in real terms, a very short space of time for this type of work.

When the Inquiry serves its section 21 notices it generally provides a short window within which recipients must comply. This is one of the ways in which the Inquiry tries to move as expeditiously as it can. I appreciate that these tight turnaround times can place very considerable burdens upon those with whom the Inquiry must interact. It is clear to the Inquiry team that considerable effort has been made by many to assist it with the provision of material and witness statements as part of the Inquiry’s investigation. Some witness statements received by the Inquiry are in excess of 100 pages each, which indicates just how seriously many of those involved are treating their engagement with the Inquiry.

However, it is also the case that on occasion the exacting deadlines set by the Inquiry simply cannot be met by individuals or organisations. This can be for a variety of reasons, including ill health, but also because the Inquiry has asked very searching questions which take a considerable amount of time and effort to answer, or which require the provision of very significant amounts of documentation. If someone does require more time than the Inquiry has allotted, then they must apply to me for an extension of time to comply with the notice, setting out detailed reasons as to why they say further time is necessary. I only grant extension applications when I am satisfied that there is a compelling reason to do so, because the longer it takes for the investigation to be concluded the longer it will take for the Inquiry to report.

To date, approximately 70 extensions have been granted, to approximately 50 individuals or organisations. The classes of persons who have requested and been granted extensions include civil servants, politicians, organisations and businesses involved in the renewable heat industry, and some Scheme claimants. In most cases extensions have been granted only for a short period, ranging from a few days to two or three weeks, and usually to facilitate the collation of large volumes of documents.

The deadline for compliance with the balance of the section 21 notices issued has not yet passed and it is vital that individuals and organisations comply with those notices both because there is a need for the Inquiry to complete its work as quickly
as possible, but also because (as I have said) there are very serious consequences which may flow from not complying.

Inquiry letter to applicants to the Scheme

Separate from the service of section 21 notices, the Inquiry also considered it important to reach out to applicants to the RHI Scheme and beneficiaries of the Scheme, in order to give them an opportunity to bring relevant information they may have to the attention of the Inquiry.

On 12 May 2017, the Solicitor to the Inquiry sent out a request for information to all applicants to the Scheme, giving them the opportunity to bring to the attention of the Inquiry any information of which they thought the Inquiry ought to be aware, and to provide any documents they believed that the Inquiry ought to consider. Issues covered in the request included: how the participants became aware of the Scheme and what, if any, advice or encouragement they received to join the Scheme; whether they had had any contact with politicians, special advisers, or civil servants in relation to the Scheme; and whether anyone lobbied on their behalf or if they were aware of any lobbying in relation to the Scheme. It was made clear in the request that recipients were under no legal obligation to reply to the letter, but that their co-operation would be very much appreciated.

In total 1058 individuals, either as a personal recipient or the contact point for a company/organisation, received the request from the Inquiry by email. The deadline for replies passed on 26 May 2017. To date the Inquiry has received approximately 80 responses, mostly via email, with a few being received by post.

Some of the responses received to date have provided the Inquiry with useful information, which has enabled it to take further investigatory steps. For example, the Inquiry has been alerted to a number of potentially important issues which require further investigation and it has issued several detailed section 21 notices to persons identified in the responses.

It is anticipated that some further responses will continue to be received. It is important that anyone with relevant information or documents provides them to the Inquiry as a matter of urgency. This is because if the material is not provided soon it will not be possible for the Inquiry to investigate it without causing delay to the Inquiry’s intended timetable, which will in turn delay the provision of the Inquiry’s report: something which the Inquiry is obviously very anxious to avoid.

Volume of documents received

I want to say something now about the volume of documentary material received to date by the Inquiry. One of the reasons for so doing is to try to give you some definition as to the scale of the Inquiry’s task.

As at 20 June 2017 approximately 320,000 pages of documents have been processed by the Inquiry’s IT and administrative teams into evidence bundles. This is the equivalent of approximately 1,000 full lever arch files of material.

It will be immediately obvious that this is a very significant amount of material, and it is often of a detailed technical nature. Much of the material consists of electronic communications, and those familiar with emails, email chains, and attachments will understand when I say that while emails can be quick to send they can be very complicated and time consuming to assimilate afterwards into an intelligible order.

Of course this approximately third of a million pages is the material which the Inquiry has moved to evidence bundles to date; it is not the total volume of material the Inquiry has received. At this point the Inquiry has in fact received documentation which equates to over 13 gigabytes of computer memory. Those technical amongst us will realise just how large that volume is.

It will be some further time before the Inquiry is able to say what the total volume of documents is which are relevant to the RHI Scheme, and thus being considered by the Inquiry. The Inquiry is continuing to receive significant amounts of information on a daily basis from a variety of sources. All of this information needs to be recorded and processed; and then read, assimilated and acted upon further, where necessary.

I want to acknowledge the very significant work already undertaken by the Inquiry team working in these areas; and this work will continue over the summer months.

Staffing

In order to complete the large volume of work summarised briefly above as quickly as is reasonably possible, the Inquiry Panel is now being assisted by a team of thirty staff, both legal and administrative. This includes some staff who are on secondment from the Northern Ireland Assembly and there is a significant costs saving to the Inquiry as a result of this.

It is the case that the Inquiry team, including the Inquiry legal team, will be working throughout the summer to continue the Inquiry’s investigation and prepare for the forthcoming oral hearings in the autumn. The Inquiry is committed to getting the job done just as quickly as possible.

Support for witnesses

The Inquiry recognises that the giving of oral evidence to an Inquiry such as this - even as part of an inquisitorial, rather than adversarial, process - may well prove to be a stressful experience for some persons.

With this in mind, the Inquiry is currently taking steps to ensure that appropriate counselling support is available to those involved with the Inquiry who may require it. Further details of this service shall be placed on the Inquiry website in due course.

Departmental funding for the costs of some witnesses

Another form of support which may be appropriate or required for some of those involved with the Inquiry is legal assistance. In this context, I want to address one matter which arose following the first preliminary hearing.

Following the hearing on 27 April 2017, concerns were expressed in the media about the terms upon which legal assistance was being provided to certain persons (including civil servants, former Ministers and special advisers) by a number of Northern Ireland government departments, in circumstances where their involvement with the RHI Scheme arose through their work in that department. The concerns related specifically to whether the terms on which such assistance was provided by the Northern Ireland Civil Service might have the effect of restricting or inhibiting an assisted person’s ability or willingness to provide full and frank disclosure to the Inquiry.

Having been made aware of this concern, the Inquiry addressed the matter with the relevant government departments. It appears that there may have been some misunderstanding about what the terms of departmental funding were or how they might operate, as the Inquiry was assured that the departments’ only interest is ensuring that the Inquiry is told the unvarnished truth about events in order to permit it to do its work in the public interest; and that that was what the terms of the funding were designed to ensure.

However, in discussion with the relevant departments the Inquiry secured the amendment of the funding terms to make the following matters abundantly clear: that it is in the interests of the relevant department that the Inquiry uncovers the truth about the RHI Scheme without fear or favour; and that nothing in those terms should in any way inhibit anyone from giving the fullest co-operation to the Inquiry and providing full and honest evidence to it.

Redaction

I want to now say something about how the Inquiry will publish material which it gathers as part of its investigations.

One issue which has been repeatedly raised by those who are providing material to the Inquiry is the fear that personal information, other than the person’s name, will enter the public domain and that this could cause them difficulty in some way.

This was an issue to which the Inquiry was already alive and which it was working to manage. The Inquiry prepared, and has now published on the Inquiry’s website, a Protocol dealing with Redaction, Anonymity and Restriction Orders (‘the Redaction Protocol’). This Redaction Protocol now sits alongside our Procedural, Disclosure and Costs Protocols. As with our other protocols it is intended as a guide and must always be read subject to the Inquiries Act 2005.

I have also made three limited restriction orders pursuant to the powers given to me by section 19 of the 2005 Act. They can also be found on the Inquiry website. They are the out-working of the policy underlying the Redaction Protocol and are designed to ensure that the Inquiry can run as efficiently as possible. I am going to explain briefly why those orders are necessary.

During the course of the last public hearing I placed considerable emphasis upon the fact that, in accordance with the provisions of the 2005 Act, this is a public inquiry. It is carried out in the public interest, on behalf of the public, and for the purpose of addressing and allaying public concern. It is therefore important that, as far as possible and practicable, the public should have access to the Inquiry; that its proceedings should be conducted in an atmosphere of openness and transparency; and that the public should see, through publication by the Inquiry, the evidence which the Inquiry has gathered during its work.

It is for these reasons that the Inquiry has made arrangements to provide the public in due course with the ability:

  • to attend its oral hearings;
  • to watch the proceedings on the internet via the Inquiry’s website; and
  • to have access, again via the Inquiry website, to the published transcripts of the evidence the Inquiry has taken, together with copies of the relevant documents examined by the Inquiry during the hearings.

However, the Inquiry also has to bear in mind the importance of ensuring that those who contribute information to it and participate in the inquiry process may do so confident in the knowledge that their rights will also be respected, that they will not be subjected to unnecessary pressure or intimidation, and that their material will be handled carefully by the Inquiry.

Section 19 of the 2005 Act provides me, as Chairman, with the power to make restriction orders in certain limited circumstances. Restriction orders are a means given to a public inquiry to assist it to carry out its work properly and ensure that material an Inquiry gathers is published at the right time and in the right way.

The power to make restriction orders may be exercised in different ways; perhaps to limit attendance at the Inquiry or to stop, or limit, the publication of information given to the Inquiry. Such restrictions may be required by statutory provision, by an enforceable EU obligation or by some other rule of law. Alternatively I may simply consider such a step to be conducive to the Inquiry complying with its Terms of Reference or necessary in the public interest, bearing in mind certain important considerations.

I made clear during the first public hearing that this public inquiry would be carried out transparently and would publish the maximum amount of documentation that we reasonably can. In order to observe that commitment I have made only three limited restriction orders to deal with particular issues which I consider to be very important to ensure the smooth running of the Inquiry.

The first Restriction Order I have made (No 1 of 2017) ensures that personal information (such as addresses, telephone numbers, email addresses - but not names) will be redacted in documents published by the Inquiry. Therefore when you see a published Inquiry document it will have black boxes wherever it is necessary to cover someone’s personal information. This will be the case except where I decide that the particular personal information is of sufficient evidential value to warrant publication in the circumstances.

This limited restriction is simply to protect the personal information of individuals which it is not necessary to place in the public domain. The restriction does not apply to the names of individuals, which will appear in documents which the Inquiry publishes, save in very exceptional circumstances, and I will say something more about that shortly.

The same restriction order also covers the redaction of irrelevant material from documents which otherwise contain relevant material. The reason for this limited restriction is because there is generally no justification for putting into the public domain material which has no relevance to what the Inquiry is investigating but which merely happens to be contained in a document which also contains material which is so relevant.

The second restriction order I have made (No 2 of 2017) prohibits anyone who receives documentation from the Inquiry from publishing that documentation without first obtaining my consent in writing. The purpose of that order is to ensure that those who receive documentation from the Inquiry handle that material in the appropriate way. They are not at liberty to publish it on the internet or on social media. The Inquiry will publish the material it has gathered in a proper and orderly fashion. This order does not, of course, apply to an individual or organisation’s own documents, with which they will be at liberty to deal in the normal way.

The third restriction order (No 3 of 2017) prohibits anyone who is required to provide a witness statement to the Inquiry from publishing that witness statement, beyond its provision to the Inquiry. The Inquiry must be free to conduct its investigations in the manner it considers best suited to completing the tasks set out in the Terms of Reference, including publishing evidence when the time and circumstances establish that it is right to do so. It is not, for instance, acceptable for someone to provide their Inquiry witness statement to other people or to upload it to the internet.

As each of the restriction orders makes clear, any breach of a restriction order is a very serious matter with potentially serious consequences for the person responsible. It is for this reason that the Inquiry is publishing its restriction orders on its website and that I am speaking publicly about them today. This is in advance of the Inquiry sending out its material to core participants and witnesses, so that everyone is well warned in advance of the potential consequences of failing to comply with the Inquiry’s procedures.

While I have only made three limited restriction orders, the Redaction Protocol also provides for the conditions under which an individual or organisation might apply for a restriction order and gives examples of the sort of reasons why that might be considered appropriate.

I want to say something now about anonymity; that is, a situation where someone’s name would be kept back from the public by the Inquiry. The Inquiry is most reluctant to see this happening, but I recognise that there might be circumstances in which, as a matter of law, an individual might be entitled to protection of their identity before the Inquiry.

However, the public are, in general, entitled to know the identity of those who give evidence before the Inquiry and applications for such protection by way of anonymity are likely to be granted only in the most exceptional circumstances.

Undertaking from the Director of Public Prosecutions for Northern Ireland

As I indicated at our last public hearing, section 2 of the Inquiries Act 2005 specifically prohibits the Inquiry from ruling on “any person’s civil or criminal liability.” To date the Inquiry has not been made aware of any criminal investigations by the PSNI or criminal proceedings with any relevance to the matters to be investigated by the Inquiry. However, the Inquiry remains alive to the possibility that, during the course of its investigations and oral hearings, something of relevance to potential criminal investigations or proceedings might emerge.

The privilege against self-incrimination applies to the proceedings of the Inquiry and section 22 of the 2005 Act provides that a person may not be required to give, produce or provide any evidence or document if he could not be required to do so in civil proceedings in the United Kingdom.

Our duty is to the public, which requires us to be as meticulous and thorough as possible in our fact-finding procedures. Therefore, after some reflection, and bearing in mind section 2 of the 2005 Act, I decided to seek a relevant undertaking from the Director of Public Prosecutions so that the possibility or suggestion of potential criminal prosecution could not be used by anyone as a reason for not fully assisting the Inquiry.

I am grateful to the Director for providing his undertaking that: “No evidence a person may give before the Inquiry will be used in evidence against that person in any criminal proceedings or be relied upon for the purpose of deciding whether to bring such proceedings against that person.” That undertaking has now been posted upon the website and will enable us to proceed in an open, transparent and efficient manner.

It is clear that the undertaking does not, and will not, apply to anyone who gives false evidence to the Inquiry or conspires with or procures others to do so or to anyone who commits an offence contrary to section 35 of the 2005 Act which involves interference with the ability of the Inquiry to have the benefit of relevant evidence.

Timetable

I want now to turn to the issue of the Inquiry’s timetable for oral hearings. I appreciate that this will be a subject of particular interest to many of you here today.

As I have indicated earlier, we have now amassed a great deal more evidence as a consequence of our investigations since the last preliminary hearing. In general, we have moved from the phase of researching and collecting documents to that of requiring the provision of substantive witness statements.

However, there have also been a significant number of requests for extensions of time. In some cases no doubt, at least in part, this is a consequence of demands made by the recent national election campaigns and the ongoing Stormont talks. It is also anticipated that many individuals approached by the Inquiry will have pre-existing holiday arrangements at some time over the next number of months, which may also prompt requests for further time.

In the context of our experience to date, it seems to me that the following represents our current expectations (but which, by necessity in an investigation as fast-moving and constantly developing as that conducted by a public inquiry, must be subject to change):

  1. During the month of August we shall 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. This correspondence will also afford an opportunity for representations to be made on behalf of witnesses who may be seeking enhanced participatory rights in accordance with the provisions of the Inquiry’s Procedural and other Protocols.
  2. In a letter to a witness indicating that he or she is likely to be called as an oral witness, the Inquiry will give some indication of the level of participation above that of mere witness, if any, which I am minded to consider appropriate to that witness or, if appropriate, a particular group of witnesses. Any representations in relation to that can then be addressed to the Inquiry in writing.
  3. We will then aim to hold a further Preliminary Hearing, hopefully some time during the first two weeks in September, to which any legal representatives of core participants and relevant witnesses will be invited to attend and make any further relevant representations and/or applications, if that is necessary.
  4. We would like, and currently intend, to commence oral hearings during the first two weeks of October of this year, although this remains dependent upon the outcome of the above process and the investigative progress made by the Inquiry more generally.
  5. At present we envisage that the Inquiry’s oral 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, any further steps which might need to be taken on foot of it, and preparing for the next two-week segment of taking evidence. In short, the oral hearings are presently intended to operate on a ‘two weeks on, one week off’ rolling basis; although I make clear that the Inquiry will be continuing its work on each working day, even when we are not sitting in this forum.
  6. It is also presently intended that in hearing weeks we will sit on four days per week. This is to allow us time each hearing week to also deal with administrative matters that inevitably arise while we are at hearing, some limited time for review and further preparation for forthcoming hearings, and also to facilitate necessary travel for those who are coming from outside the jurisdiction.
  7. The hearings will consist of a combination of oral evidence from witnesses and the presentation of written and documentary evidence by the Inquiry Counsel team.
  8. In broad terms, the sequence of the hearings will follow that of the four broad phases I described in my statement at the last preliminary hearing. That is to say, as far as we are able to do so efficiently and fairly, the evidence will be addressed in the following general order:
  • First, the original design and implementation of the RHI Scheme in Northern Ireland;
  • Second, the initial operation of the Scheme, including its administration, promotion and supervision;
  • Third, the circumstances relating to the imposition of costs controls in the Scheme in late 2015; and
  • Fourth, the circumstances relating to the suspension of the Scheme to new applicants in early 2016.

However, I must again emphasise the importance of retaining flexibility and that, consequently, this timetable may well require revision to take account of future developments. I have previously made clear that no one will thank us for rushing to finish this work and, as a consequence of so doing, producing a piece of work which is less than the public expects or requires.

Conclusion

Thank you again for your attendance today; for your interest in the work of the RHI Inquiry; and for your patience in listening to this detailed summary of our progress, which I hope has been of benefit.