by Sam McBride
But even though it was by now clear to DETI that it had made a massive blunder, there continued to be a lack of candour by officials. In a ministerial submission on New Year’s Eve, Mills referred to a ‘change in [Treasury] policy’ whereby Stormont would have to pay for the entire overspend. Most readers would have assumed from his description of the situation that fault lay with the Treasury rather than closer to home. Mills later suggested he was referring to the gap between a 5% penalty and a 100% penalty. However, there had never been any formal agreement which the Treasury had broken. Mills still seemed incapable of or unwilling to face up to the enormity of their calamity – and the fact that much of it had been the fault of civil servants, even if he did not fully appreciate the unseen political chicanery.
Among those in DETI’s top brass, Mills seems to have consistently been the most optimistic – and therefore, the most naive – about RHI. As late as 27 January 2016, a month after the Treasury had made clear that Stormont would have to pay the full bill, he was still presenting RHI in positive terms.
Mills was irked by an email which McCormick had sent that day to David Sterling, Permanent Secretary of the Department of Finance, in which McCormick had said: ‘I also had to say to [Cairns] that a decision not to proceed [with closure] until after the election would mean throwing potentially large amounts of good money after bad.’ Mills, to whom the email had been copied, replied brusquely to his boss: ‘The RHI is “good” money, just too much of a good thing.’
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As the scandal which would devastate her reputation was developing unobserved by more than a handful of individuals in Stormont, Foster’s political career was ascending fresh heights. Having been promoted to Finance Minister in May 2015 and then acting First Minister during Robinson’s period of rolling ministerial resignations that autumn, Robinson’s decision to retire led to an immediate expectation that Foster would succeed him as First Minister.
Amid widespread speculation, much of it emanating from DUP sources, that the roles of DUP leader and First Minister would now be split, there was a belief that the capable North Belfast MP and deputy leader Nigel Dodds would become leader while Foster became First Minister. But on 7 December, there was a shock announcement. For reasons which are still not entirely clear, Dodds said that he would not be standing for the leadership. Both crowns would be Foster’s. There was still a lingering possibility that Sammy Wilson, the East Antrim MP and a grassroots favourite, would challenge for the top job. But that night Robinson intervened, tweeting to say that Foster’s nomination had the support of ‘over 75% of those entitled to vote in the electoral college’. The message was clear: Foster was the chosen one and the party did not want a leadership contest.
Ten days later, her coronation as DUP leader was complete and a month after that she formally took over as First Minister on 11 January 2016. Initially, Foster was an incredibly popular leader of unionism. Voters who were tired of Robinson and tired of a series of scandals involving the DUP wanted to believe that there had been fundamental change. Foster – the party’s first female leader and someone whose entire political career postdated the Troubles – was happy to accentuate the differences with her predecessor. On her first day in office she invited the News Letter and The Irish News – publications to which Robinson had latterly refused to speak – to interview her. BBC Spotlight, the investigative programme which had repeatedly infuriated Robinson, was invited to interview her and follow the new leader around for her first days in office.
But behind the carefully crafted public image of the new DUP leader, a crisis was unfolding and at its heart would be some of those who owed their positions to Foster. When she became leader, Foster had the power to conduct a ministerial reshuffle, but declined to do so.
In a revealing admission, she told the inquiry that she did not believe Bell was up to the job of running a government department but that she had kept him in post in case there had been a row which could have cost the DUP votes in the Assembly election, then three months hence. Foster said that Bell was ‘not a suitable candidate’ to be minister and it was ‘a great regret of mine that I didn’t remove him from the post’. For the DUP – a party which was brilliant at electoral politics – the election was more important than ensuring there was a competent individual in charge of a major government department.
Foster and Bell’s relationship was now under huge strain. She said that Bell ‘hero-worshipped’ Robinson and ‘never really accepted my leadership’ but that it was said to her by a colleague: ‘How much harm can he do in three months?’
At the inquiry, Bell’s barrister questioned that evidence, highlighting that Foster had repeatedly endorsed Bell in public. Ronan Lavery QC told how in spring 2015, just as RHI was running out of control, Foster had been a guest speaker at an election event for Bell, ‘extolling Jonathan Bell’s skills and abilities and detailing why he should be a Member of Parliament for South Belfast. This was in addition to undertaking door to door canvassing with him recommending Jonathan Bell to the electorate of South Belfast’.
Whatever Foster’s reasons, by deciding to keep Bell in DETI, it would now be he who would be legally responsible for winding down a scheme which it was now known had to be shut. That decision stood out because at the same time Foster decided not to bring with her Crawford – the man who had been by her side for her entire ministerial career. He was left behind in the Department of Finance and Foster continued with Timothy Johnston and Richard Bullick as her two key spads, along with Stephen Brimstone – even though there was a fourth unfilled spad slot which could have gone to Crawford.
In the ponderous world of Stormont, even though Wightman had in mid-November told his superiors that the scheme would have to be shut, it was only on 31 December that a submission to that effect came to Bell. The minister approved the recommendation and then on 19 January he was given another submission with a date for closure. Bell approved the submission but – in highly unusual circumstances which revealed the power of spads – his approval was overturned by a spad. This incident would add to Bell’s growing paranoia.
Cairns said that Johnston had issued an instruction (something Johnston denied) to Bell that nothing on RHI was to be cleared without his approval. However, on Friday the 22nd, neither Bell nor Cairns could contact Johnston, who Cairns said was ‘notoriously difficult to reach by telephone; he will often not return calls’. Therefore, he said that Bell had instructed him to email Johnston to say that if he did not reply by a certain time, then two submissions – one on NIRO and the other on RHI closure – were to be cleared. In fact, Johnston had responded before Bell’s deadline, but Cairns had not seen the email and so the submissions were approved.
Later that afternoon, Cairns realised that Johnston had replied – and his response was to say that they needed to wait until the following week to discuss the issues properly. Cairns now went back to Bell’s private secretary and at a quarter to five on Friday afternoon said: ‘Hold the subs on niro and RHI.’ Clearance had been rescinded.
The following week, under pressure from officials to take a decision, Cairns said to Stewart and McCormick:
The Niro and rhi subs are in the hands of DUP party officers and will be dealt with by them. I have recommended officials advice but party officers have requested time to deal with them. I have no idea if they will approve or not. Minister cleared and the subs were then pulled to DUP party officers on Friday afternoon.
In fact, it had not been the party officers, but rather Johnston to whom Cairns was referring. And it was largely a cock-up – if Cairns had seen the email in time, the submission would never have been cleared. But it showed the power of spads to issue instructions which overturned the decision of a government minister. The hugely experienced McCormick and Stewart were perplexed, having never before encountered such a situation.
Foster said she had ‘no knowledge of the recall’, while Johnston said that it had been partly due to coming on a Frid
ay afternoon when he did not have sufficient time to get Foster’s view and also part of a wider attempt to ensure that the scheme was closed rapidly – but in a way that Sinn Féin would support, a crucial consideration to pass legislation.
But although Johnston did not approve the submission that day, he immediately forwarded it to Foster and Crawford, along with Cairns’s email message. Even without opening the attached submission, just reading Cairns’s brief email would have alerted Foster to alarming facts about the scheme she had set up: ‘Keeping it open before Christmas has caused potentially a £27 million overspend … We need to consult and probably close.’ Foster later said that she did nothing for five days, until she had been separately told of the budgetary crisis by the Head of the Civil Service.
Cairns is clear that in this period there was no ulterior attempt by his fellow spads to delay closure. But he and everyone else in DETI were baffled. The confusion was exacerbated by the fact that he and Bell, along with McCormick, were flying to the US the following day for a trade mission lasting almost a week. Cairns said that it was ‘absolutely and utterly no criticism of Mr Bell in this that he was confused: we all were’.
Bell insisted to the inquiry that he had never been aware of the recall – and that bred in his mind the suspicion about what was going on behind his back. But within one minute of the recall, Cairns forwarded Johnston’s email to Bell’s personal email address, along with a message to say that he had told the minister’s private secretary to ‘hold the subs’.
Bell attempted to explain away the significance of that email, claiming that he never used private email accounts for departmental business. His evidence on this issue was so excruciatingly contorted that it defied rational explanation and undermined his credibility as a witness. Appearing before the inquiry, he said: ‘I didn’t use any form of communication outside the department whatsoever. I just used my official ministerial email address … I never used any communication device outside. I only used the ministerial email and the system.’ He went on to say that if his spad had ever used a private email account he would have told him to use the departmental account. Speaking categorically, Bell said: ‘It’s entirely unusual that it would have been sent to that account. That was just a private account I had, not a ministerial account, and all my ministerial business went through the ministerial account.’
But Bell had already told the inquiry in writing that the only email address which he used for communication about RHI was his Hotmail address. And when later asked in writing to explain the discrepancy he indicated that he did not even have a departmental email address. He told the inquiry: ‘My official email address when I was minister was [email protected].’ Self-evidently, that was the email address of someone else – his private secretary. The civil service said that it could find no record of Bell ever having a departmental email address.
The inquiry then turned up multiple pieces of evidence which prove that Bell had repeatedly used the email address [email protected], including emails to and from his permanent secretary, his private secretary and the First Minister. Referring to Bell’s Hotmail account, McCormick told the inquiry: ‘It was the only email that I ever used if I was sending things to him.’ Bell’s nonsensical evidence on this point suggested that, at the most benign reading, he was so unaware of the detail of what was going on within his department that he did not even know his own email address. This was the man in charge of the RHI scheme. What was about to happen in America was to raise further questions about whether Bell was the sort of person who ought to have been in charge of any government department – let alone one facing a vast financial crisis.
CHAPTER 15
GET IT SHUT
On the morning of Wednesday, 27 January, Arlene Foster was in her constituency office in Enniskillen. That in itself was unusual. The Stormont week was structured to keep MLAs free to be in their constituencies on Fridays. Wednesday was a day for Stormont business – especially for someone who just 16 days earlier had become First Minister.
Alongside her was the DUP’s most senior backroom figure, Timothy Johnston. That morning, Foster’s other key adviser, Richard Bullick, was in Stormont Castle as usual. At 10.40am, he said in an email to Johnston – copied to fellow spads Andrew Crawford and Stephen Brimstone – that the Head of the Civil Service, Sir Malcolm McKibbin, wanted to speak to Foster about RHI that day. Bullick said that Stormont’s top mandarin, who was also the permanent secretary of the Office of the First Minister and deputy First Minister (OFMdFM), ‘seems very concerned’ and observed that it was a ‘bit odd he had not been tipped off previously by DETI’. While McKibbin was perhaps only now realising the gravity of the situation, it is clear that those closest to Foster had known for weeks that there was a crisis in the scheme she had launched.
Eleven minutes later, Bullick said that McKibbin ‘seems very concerned about spending out of control’. He said that McKibbin ‘says [it] will be a huge audit issue and af [Foster] better not implicated’. McKibbin told the inquiry he was sure he did not use the word ‘implicated’ but would have said ‘involved’.
Twenty minutes later, Johnston replied from Enniskillen to say that Foster had now spoken to McKibbin and ‘this appears financially messy’. McKibbin had told Foster that he was alarmed about the budgetary problem and that he would be discussing it with DETI and the Department of Finance immediately. The very fact that he phoned her when she was not in Stormont was in itself indicative of the significance of the issue – it could not wait until the following morning.
Now there would unfold a development which was astonishing in its timing. Foster said that later that day a constituent who was well known to her, George Gallagher, arrived in her constituency office. Foster said that over time she had accumulated a ‘large file’ of constituency casework on behalf of the scrap metal merchant and he was someone who was ‘in and out of my office on many, many occasions’. On this occasion, however, she said that as he was leaving he gave her a typed note, ‘saying he would “leave it with me”.’
The one-page note was explosive. It had a simple title: ‘Facts about green energy and biomass in N.I.’ and six numbered points. Throughout, the note referred to ‘we’ – but without any explanation of who had written it.
It said that the scheme had been taken up by many businesses ‘but we also believe it is being seriously abused by many … the scheme is not being monitored … many people are availing of the scheme who have had no other means of heating previous to this’. The note went on to spell out what was happening:
Examples of this are large factories who have had no previous heating have installed three biomass boilers and intend to run them 24/7 all year round. With the intention of collection approx 1.5 million over the next 20 years, approx £1500 per week, paid every 3 months. Another example a local farmer who has no business or need for biomass boilers is aiming to collect 1 million ponds over the next 20 years heating an empty shed. We feel the legislation was never intended to be abused like this [sic].
Johnston – who no longer appears to have been with Foster at this point – said that she had phoned him to tell him about the note and he advised her to send it to McKibbin for investigation. Foster did so immediately and McKibbin then passed it to McCormick for DETI to investigate. Even if Cairns’s evidence about Johnston having been involved in delaying cost controls the previous year was wrong, Johnston would now have been deeply alarmed – doubly so if it was true that he had played some role in contributing to the overspend. He was among the shrewdest of Stormont’s big beasts, a towering power behind the throne of successive DUP ministers, and was adept at spotting both political opportunities and threats. If even McKibbin, who was not a politician and knew little about the scheme, could immediately see that Foster was best not involved in this, Johnston would have been ahead of him in realising the acute political peril now facing his boss.
In passing on the note, it was presented as coming from an anonymo
us whistleblower, and some in DETI believed that if they had been given Gallagher’s name they could have spoken to him to gather further useful information. That aside, the note meant that just at the point where Foster said it was becoming clear to her for the first time that RHI – a scheme she knew would raise questions about her ministerial career – was gravely flawed, there now was within Stormont’s system a record of her having acted correctly to pass on whistleblowing concerns as soon as they came to her.
Foster initially told the inquiry that she believed that it was on that day – the 27th – that she had been made aware for the first time of the scale of the RHI problem – even though Crawford had been aware of that a month earlier. When pressed around the issue, Foster then told the inquiry that she had looked at her diary and had seen a meeting with McKibbin on 26 January, and that he might have mentioned RHI at that meeting. For his part, McKibbin said that he believed the phone call to Foster’s constituency office had been on the 26th and the note was handed to him on the 27th.
The timing of Gallagher’s note was extraordinary. Of all the 108 MLAs, he had gone to Foster – the minister who had been more closely associated with the scheme than anyone else. Of all the times to do so, he gave her the note no more than about 24 hours after Foster said she had first been informed about the gravity of the situation. Gallagher was not called to testify before the inquiry. However, in answer to written questions from Sir Patrick Coghlin’s team, he said that he was not a member of the DUP. He said that he had typed the note after hearing rumours. Despite having been specific in the note about what was allegedly going on, Gallagher claimed not to have any specific knowledge of the scheme being abused. He said that he could not remember his conversation with Foster. Even with all that has subsequently emerged, the timing, contents and mystique around the note remain intriguing.
