Jim Allister
North Antrim · Traditional Unionist Voice · Northern Ireland
“<BR /> <BR />Last week, a 'News Letter' editorial rightly drew attention to the fact that there is a chorus of demand that it is up to the British Government to pay for that, but no pressure whatsoever on the GAA — the primary beneficiary — which still persists that its contribution will be a miserly £15 million.”
“Public money, we are constantly told, is in short supply and scarce. I am sure that it is, and will continue to be so. Yet, while many in the House pay lip service to the need to prioritise health, there seems to be a majority here who would prioritise public spending on a sporting facility, namely Casement Park.”
“That editorial stated that the DUP "should make clear" its view on the Casement Park costs. Yet, yesterday, we had the launch of the DUP manifesto and not a mention of Casement Park. We have a Minister — Minister Lyons — who has ruled out clawback for non-GAA use of that stadium.”
“Therefore, the Minister comes to the House with a proposal that, effectively, has been written in Brussels, because it tells us how much we can give to our fishing industry in Northern Ireland.”
“The Minister told us that this is a scheme under the Fisheries Act, which it is, whereby all the devolved regions and England and Wales can make their own provision.”
“Rather than removing the green lane, the introduction of the new customs border arrangements will further advance the development of the green lane, thereby helping to make the Irish Sea border and our alienation from the rest of the UK more firmly established.”
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“I understand entirely the point that is being made about the courts' attitude to bail undermining the PSNI, but is there also not, sadly, in the instant case, an indication that the PSNI undermined itself by not checking for over a month why someone who was meant to be signing five days a week had not signed and where they were? Is there not a big burden on the PSNI, when there are bail terms, to make sure that they are imposed?”
“On a point of order, Mr Speaker. First of all, I join in thanking the staff, as you properly did, and associate myself with those remarks. <BR /> <BR />However, on a point of order, as Members of this House we are, as I understand it, under an obligation to declare all relevant interests. As Speaker, you, too, have oversight of the Committees of this House. What are the ramifications of Ms Carla Lockhart, as a member of the Public Accounts Committee, failing to declare a family link to the renewable heat incentive (RHI) scheme at a time when that same Committee was investigating the RHI scheme?”
“Has the Member not put his finger on part of the malfunction and something that will never function properly in the Belfast Agreement, namely that, in fact, by virtue of the system that it has created, it entrenches sectarianism? It entrenches one block to play off against the other, which defeats what is supposed to be its purpose.”
“I do not disagree with the Minister that it is reasonable to anticipate that there will be approval in respect of state aid. However, did he not tell the House earlier that you cannot even seek it or obtain it without Department of Finance approval for the scheme? Therefore, it could fall at the first hurdle. Without Department of Finance approval tonight, is he content to ask the House to approve the regulations? If they proceed without Department of Finance approval, whatever the politics of it, has he any concerns about what that does to undermine the probity of the regulations?”
“This is a scheme that, in a collective sense, covers the House with shame, because it brings the entirety of the process into disrepute. It is quite shocking that this squander, made not by some distant, uncaring, disconnected direct rule Minister but made in Stormont, has inflicted upon us this mammoth potential financial loss — and then to pretend that it is nobody's fault to the point that anyone should pay with their job.”
“He put in a new non-domestic scheme boiler under the scheme in order to qualify. That is the sort of rip-off that brings disrepute to all of the scheme and, sadly, causes great injury to the bona fide users.”
“It is scandalous that someone can purport to qualify for the non-domestic renewable heat scheme and devote the greater bulk of the heat that they produce to heating their own house, and to do it with considerable forethought. Mr Brimstone built a new house some years ago. He had a biomass boiler in it, but he took it out to qualify for this scheme, because you had to have a new boiler.”
“How ridiculous it is. That is the scheme that our Ministers approved and signed off, and that is the scheme that Mr Stephen Brimstone is benefiting under — heating his house on the non-domestic boiler scheme. Did he claim that he had a few sheep and was a sheep farmer? Does he have sheep? One thing is for sure: he is heating his own house. Is that right? Is that how things should be under this scheme? Was this scheme so lax and so perforated that that was an OK thing to do? Even if the individual thought it morally the right thing to do, does this scheme permit that? If it does, is that not one of the loopholes that the Minister should have addressed in these regulations?”
“By the time you get to the end of the cycle, the heat use is significantly less than what it is in the first week, thus confirming that he is a bona fide user of the scheme. When that person asks me, "What about us?", I do not have an answer for him. 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. That is replicated many, many times across this country. <BR /> <BR />There are others, of course, who saw this as a way of making a quick buck or as a means to heat their house. One of the flaws in this scheme is that there is a right to use the heat, it seems, for what should be an ancillary purpose of heating your home —”
“This farmer — a genuine, large-scale farmer in the poultry industry in the north Antrim area — applied in the early days of the scheme, made his commitment, spent tens of thousands of pounds and, assured that he had a 20-year return, used the collateral of that with his bank to increase his investment in his farm. Now, he finds that the rug has been pulled from under him, yet his scheme is a perfect operation of this. He goes through the seven- or eight-week cycle of rearing day-old chicks through to the broiler stage. The audit shows that in the first week, when the heat is needed the most, his use is at its highest, and it begins to dwindle as the chickens need less and less.”
“I have no interest in any rip-off merchant who abuses the scheme, but there are genuine people who did no more than become aware of a Government scheme and applied for it in good faith. Now, Government is about to say, "Never mind all our platitudes, undertakings and promises, we are about to pull that rug from under you, in the public interest". Some of those people are at their wits' end. I had one of those farmers with me last week. Interestingly enough, this farmer was introduced to the scheme by the then DUP special adviser Stephen Brimstone, no less. I will come back to Mr Brimstone.”
“<BR />I fear that the regulations will be rigorously tested, and I do not have the confidence of some that they will pass that test. It might be said that they are only for one year, so we will invite the court to ignore, as it were, our failings, breach of property rights etc. It will be interesting to see whether the court is prepared to go down that road. They have all the signs of draft regulations that may not deliver. I said at the outset that I hope that they do because this situation needs to be resolved, but I have severe doubts as to whether they will. <BR /> <BR />The one group of people whom the regulations will greatly affect are bona fide applicants to the scheme.”
“It is very disappointing that the Finance Minister, who has a critical role of having an input to this, has ignored the House on the issue. I read on Twitter today that he is still not happy with these proposals. Why are we not being told that in the House? The Economy Minister can tell us, when he comes to respond to this debate, whether he has received clearance or approval from the Department of Finance. We really should have been hearing it, I would have thought, in these circumstances from the Minister. The Minister who is here needs to tell us that. <BR /> <BR />Another potential weakness in the process of the regulations is the fact that there was no consultation. The stakeholders have a common law right to be consulted before their circumstances are changed, yet there has been no consultation whatsoever with them.”
“There is nothing whatsoever in the explanatory and financial memorandum that deals with financial implications, something that, according to 'Managing Public Money', is required to be there.”
“Just let me finish this point. Let us go to the explanatory memorandum that has been issued with these draft regulations. Under "Financial Implications", the very thing that 'Managing Public Money' says must be articulated — "explained" is the word — in the proposals, it says:”
“<BR /> <BR />This also arises where it says, within that same paragraph of 'Managing Public Money', that you must prepare, consult and get DFP agreement on an explanatory and financial memorandum. They have not done that either.”
“These regulations, whether it is positive or negative, have financial implications. Certainly, they have financial implications for the beneficiaries. They fly in the face of the requirements of 'Managing Public Money', which requires that in their preparation the Department of Finance must have been consulted and must have agreed. Perhaps it was consulted, but it does not seem to have agreed. We have a flagrant breach of 'Managing Public Money' arise. Where that is relevant is that, when it comes to a legal challenge to these regulations, the court will be entitled to look behind how they were made and at whether they were adequately and properly made.”
“We will see what happens to them, but I would be fearful about their probity, because they so directly negate the rights that come from the protocol to the European Convention — it is just not there. We will see what happens. <BR /> <BR />I fear that the regulations are further at risk because of the process that has been deployed to get us to this point. We know in this House — I raised it — that we have essentially bypassed Standing Order 43, in large measure. We know, and the Minister certainly knows, that there is a document that governs these matters. The Minister will be familiar with it from his time in the Department of Finance, if not before. It is the document, 'Managing Public Money Northern Ireland'. It is quite a volume that sets out the requirements including for when you are changing the law. At A.2.2.1, it says:”
“No one's land can be vested without compensation. Indeed, you bring me on almost to the second point. Where you are not satisfied with what is offered to you in the vesting, you have the right of appeal to the Lands Tribunal. <BR /> <BR />The second thing, I remind you, that was in the SpAd Bill, was not just that there had to be compensation for anyone removed but that anyone so removed had a right of appeal for what they had lost to the arrangements set up by the Bill. Again, there is no right of appeal within these regulations for anyone, on hardship or other grounds, such as Dr Capper has suggested, in consequence. <BR /> <BR />So, it does seem to me that these regulations are very likely to be challenged, and they are not obviously judge-proof.”
“Indeed, the Attorney General gave evidence during the hearing of that Bill in the Finance and Personnel Committee that it would be unlawful to remove possession rights without compensating. Unlawful; that was the evidence of the Attorney General. That is because of article 1 of protocol 1 of the European Convention.Yet, these regulations have no compensation within them.”
“That introduced a radical change and constraint on the right of Parliament to do what it liked with regard to dealing with the property and possessions of individuals. It is indisputable that the rights and possessions that people have under the RHI scheme qualify as property rights in the law. <BR /> <BR />I remind the House that, back in 2013, I brought a special advisers Bill to the House to remove some people from office. The House will recall that, of necessity, within that Bill, were two safeguard provisions. One guaranteed compensation to anyone who was removed. Why? They were having removed from them property or possession rights, so they had to be compensated.”
“Article 1 of protocol 1 came in, which indicates:”
“Not only have we got letters of offer and regulation 3, which says that the Government must pay, we have the very Minister promoting the scheme by lauding it to the highest and underscoring the certainty of the guarantee of payments. It is indisputable that legitimate expectation has been created in respect of the beneficiaries of the scheme. <BR /> <BR />Yes, it used to be the case that, in the law, Parliament could do what it liked, so to speak, and, yes, if you go back to some of the older legal authorities, you will find, for example, quite a well-known statement by a legal scholar called Greenberg, which says that no person has a right to demand compensation for something that was done by or under the authority of statute. That is how it used to be, but then we signed up to the European Convention on Human Rights.”
“"Regardless of future reviews" — guaranteed. In the letter's penultimate paragraph, she states:”
“That has created contractual rights and legitimate expectations, which were of course underscored by Mrs Foster's letter to the banks. In her letter to the banks, Mrs Foster went out of her way to highlight just how guaranteed these schemes were. She stated:”
“<BR /> <BR />What is involved here is the state seeking to derogate from something that it has granted to members of the public. There is a legitimate expectation created with the beneficiaries of the scheme that they are tied into a scheme upon which there is commitment to deliver: if they fulfil their side of the bargain, the Government will fulfil their side of the bargain. Indeed, article 3 of the original 2012 regulations expressly says that the Government must — must — make these payments. So not only do you have a contractual-type situation created in the acceptance of the letters of offer, but you have, in the statute, a solemn obligation on the Government that they must make these payments.”
“Well, it is, and the public knows that, in government, the buck stops with the Minister or, at least, it should, but there have been such contortions in this to avoid the buck stopping with the Minister that, frankly, it is embarrassing that, as politicians, there cannot be a facing up with the public on this issue. <BR /> <BR />I asked whether this was a fig leaf because of the genesis of it and how it was delayed. I also wanted to ask whether it was a fig leaf because of the dubious legal nature of it. Never mind being a fig leaf, these regulations, in the heat of litigation, could turn into a chocolate fireguard; they could melt very quickly because they defy a number of principles ensconced in this area of law.”
“I think that regression was another missed opportunity, and that has compounded the situation. There was also the missed opportunity that when DFP originally signed off on the scheme and approved the business case, it declared that it needed to be reapproved by 1 April 2015. It did not happen because DETI did not send it back to DFP, and DFP did not ask for it. It only came back belatedly to DFP in the autumn of 2015 and was then, amazingly, signed off for a second time at the height of the spike in October 2015, by which stage Mrs Foster was then the Minister of Finance. <BR /> <BR />There were repeated failures in this, and that is what has led us here. Yet, to listen to some, it is no one's fault. It is certainly not a Minister's fault. We could not have that. It is no one's fault.”
“Yes, although I will have to stop doing this.”
“Yes. The whole aspect of the whistle-blower and, particularly, the second email to the Minister's personal or political office account — whichever it was — the failure to convey that to the Department. I would have thought that was something that might have struck the permanent secretary as a failure which put the Minister at fault in failing to do that. That robbed the Department of the opportunity to waken up to this issue and to get proactive with it. Yet, that email, which seems to have been fairly explicit about the fault lines in the scheme, never made it out of the Minister's inbox. Surely, that is a significant failure.”
“I think the Member puts it accurately; that is correct. A Minister's job is not just to sign off whatever is set in front of them. They are there as guardians to interrogate the issue, to make sure that the right decision has been taken and to ask the hard questions. My goodness, if you have a situation where the tiering is being taken out of the tariffs and the hard question is not asked as to why we would want to do that and not keep a safety net, then that is a failing by a Minister. In my book, it is, and that is what has led to this sorry pass that we are in today.”
“I am grateful for that. I could not actually, on my feet, remember the exact word, but I knew that it was not "honourable".”
“I do not think the word was "honourably". I do not think that was what was in the scripted questions that were asked of the permanent secretary. I noticed his rather hesitant reply but, yes, he agreed that there was nothing untoward. I must say that I beg to differ with the permanent secretary. Unless the whole Civil Service is in such an embarrassment about this that they do not want to put the finger on anyone, I do not understand how a permanent secretary, as accounting officer for his Department, could say, "It was OK; it was not a fault and it was not a failing to sign off a scheme which had this huge massive flaw in it". By anyone's book, that is a fault.”
“Surely, as a Minister, she knew that once you tamper with a national scheme to make it more expensive regionally, you pay the difference. There is no such thing as free money in those circumstances. Surely she did not fall for that, or did she?”
“If she had been across her brief at all and was asking questions at all and was not just thinking of the next photo opportunity but was thinking about what the job was about, she would have been interrogating the issue of why we were doing this. Surely, she did not fall, as was the contention that was made somewhere, I think to the PAC, for the juvenile belief that there was that this was free money.”
“There are two points there. On Mrs Foster's culpability, the reality, indisputably, is that the GB scheme that was first produced had within it tiering in the tariffs. The Northern Ireland scheme, based on that template, is almost identical in every dimension save the tiering in the tariffs. Therefore, a conscious decision was taken in Northern Ireland to remove from the template that they had from GB the tiering in the tariffs. The one person, the one Minister, the only Minister who is accountable for that is the Minister who signed off the scheme. The Minister who signed off the scheme is Arlene Foster. There is no hiding place for her on this. That is indisputable, and it is no excuse to say, "No civil servant told me that I should not sign off a scheme that had taken out the tariffs".”
“I think that it is gone and, hopefully, it will never have a resurrection. I do not want to offend Mrs Pengelly, and she did indicate that she wanted me to give way.”
“In a moment. <BR /> <BR />Is it not amazing that, in all of this, not a single civil servant, if they failed, not a single consultant, if they failed and certainly not a single Minister has paid any price whatsoever? What a contemptuous approach to this scandal towards the public, who are expected to pay the price.”
“Yes. Incompetence now seems to be a refuge, and is it not amazing —”
“Not only did the Economy Minister fail on the most fundamental component of this scheme, but it seems that the Department of Finance also failed by approving this scheme through its Supply division.”
“Why would we want to over-incentivise the scheme in such a way?" What sort of a Minister would not ask that question? It would have to be one asleep at the wheel. Even if some dim-witted civil servant advised that we need not bother with tariff tiering, a Minister with any wit would have known to interrogate the issue and not to let it rest there, and, if she did not, the Finance Department would, because this scheme, before it ever got off the ground, had to be approved by the Supply officers in DFP. The Supply officers in DFP had to consult their economists and ask this question: is this scheme value for money? That question has to be answered.”
“In a moment. <BR /> <BR />They put in what was in the GB regulations, which was tiering in the tariff. That is the essence of the regulations now before us: to put in retrospectively, with impact for one year and one year only, for now, that tiering. Of course, that is the most crucial thing that gave rise to this scandal: the taking out of tiering in the first place. We are told by some, "Well, that was not the Minister's fault. That's how she was advised". If it is how she was advised, what sort of a Minister is it who, when given advice that you do not have to bother with the tariffs that are in the GB scheme and that you can run it at the top-tier tariff in perpetuity, does not ask, "Why would we want to do that? Why would we not want a safety net in case this scheme runs away with itself?”
“Belated beyond description, they seek to put into the Renewable Heat Incentive Scheme Regulations (Northern Ireland) 2012 the very thing that Arlene Foster, when she was Enterprise Minister, took out of the GB template. The regulations put in what should have been in there in the first place. They put in what was in —”
“It is only now, however, in the teeth of an election, that a proposal — any proposal — has come forward to attempt to ameliorate it. Indeed, if we had not had the BBC 'Spotlight' programme, would we be having this debate? I suspect not. If we had not had the vigorous, persistent, necessary, worthwhile investigative journalism of Sam McBride, Stephen Nolan, Conor Spackman, Allison Morris and others, would this matter have continued to be swept under the carpet because it was too embarrassing to deal with? I suspect so. <BR /> <BR />The fact that the regulations come at the time that they come at suggests to me that they are indeed more of a fig leaf to get us beyond 2 March, but fig leaf or not, the regulations contain a mammoth embarrassment for the DUP.”
“You are very welcome. <BR /> <BR />Are the regulations a fig leaf, or are they a solution, even an interim solution? I hope that they are the latter, but I fear that they are the former. They show many signs of being a fig leaf for the DUP to get it through the election arising from, in the terminology of one of its members, the "omnishambles" of RHI and to create the aura and impression of something being done about it: "It is sorted. Nothing to see here. Move on". The suspicion that it may indeed be a fig leaf comes from two sources: the timing and the dubious nature legally of what is being tried. <BR /> <BR />The problem has been known about for months upon months upon months in the Department and maybe even longer than that.”
“Mr Speaker, I am sure that you will be relieved to have a Member who is much easier to control than the last.”
“Why does the Member think he is being obstructed, if that is what has happened? Does that include the important period pertaining to 1 October and the delays relating thereto?”
“Yes, sorry for my slip of the tongue. <BR /> <BR />The Member says that this has not crept up on us suddenly. Why then it is that, at the last gasp of this Assembly, this is the first time that we have seen a proposal to put tiering into the tariffs? The second point, if I may, is that I do not think that it is too pejorative to say that this is but a sticking plaster, because the regulations run out after one year. What is the vision for thereafter? Will there be a scheme continuing the tariffs but with compensation to those affected? Is there some other grand plan, or do we just not know what will happen then?”
“The Member may recall that her party colleague William McCrea used to sing a little song called 'Excuses'. Does that not sum up exactly her speech and that of Mr Dunne this morning, which have tried to spread the blame to everyone else and run away from the reality that it was Arlene Foster — Arlene Foster alone was the Minister — who signed off this scheme without the cost controls? No matter who else you might try to smear, that is the irreducible realty.”
“There should be no bail for anyone charged with an offence such as this.”