Points of View 27th February 2020

Light and Shadows: The RHI Scandal and the Temptations of Secrecy

by Ben Worthy

Ben Worthy is the IRM for the Open Government Partnership and a Lecturer in Politics at Birkbeck College.

This article was originally published in The Political Quarterly on 20 January 2020.

Marilyn Stathern, in her famous article on the ‘Tyranny of transparency’, asked: ‘what does visibility conceal’?  While openness can shed light on some areas, it can also create shadows and shade to hide in. One of the biggest fears for transparency campaigners is that openness will create an opposite and equal reaction. Instead of letting in the light, could freedom of information laws, open meetings or open data lead to officials and politicians trying to hide from them, or even fight them? Could it create what’s called a ‘chilling effect’, whereby officials and politicians bury their decisions elsewhere?

Finding any firm evidence for resistance, avoidance or concealment is notoriously difficult. It could take place in numerous ways, whether avoiding questions or requests, keeping records and decisions off paper, or using non-official emails or networks like WhatsApp. It’s hard to prove a negative, that something isn’t happening and, if it’s done well, it should stay hidden. Only the most incompetent or inept are likely to be caught.

A few concrete examples have surfaced. We have had flashes of an apparent ‘chilling’ in the Trump White House and closer to home with Michael Gove using a private email address for public business in 2012 (as urged by his then advisor Dominic Cummings). More worrying was the evidence in Scotland in 2018 that some parts of government were engaged in “deliberate delaying tactics and requests being blocked or refused for tenuous reasons”. But are these isolated cases or the tip of an iceberg of systematic resistance? Studies have come to varying conclusions and a Select Committee in 2012 concluded there was no firm evidence.

However, it now looks as though transparency campaigners’ worst nightmare has come to pass in Northern Ireland’s RHI scandal, as detailed in Sam Macbride’s new book Burned. The RHI scandal, as the later Inquiry FAQ explains, concerns “the non-domestic renewable heat incentive… a financial incentive for businesses to move away from non-renewable sources of energy”. However, the FAQ goes on, “how the scheme came about in the form in which it was adopted, how it has been operated and the possible financial consequences of the scheme have become the source of considerable public concern”. You can see the background here and a timeline.

Put simply, the ‘tiering’ system, controls and review in place in the Westminster version of the RHI law were removed when it was applied to Northern Ireland in 2012. This helped create a system of perverse incentives whereby fuel cost less than the subsidy.

What was trumpeted as a popular policy was actually one running out of control, based on some very questionable assumptions as to who would pay. Though by no means all those signed up gamed the system, non-domestic properties could potentially do so and there was a rush to sign up. The cost could be around an estimated £700m over 20 years. Rumours spread of biomass boilers being run 24 hours day in hotels, and poultry farms with windows and doors open. The policy was allowed to run for far too long, despite whistleblowers trying in vain to warn all who would listen and growing evidence of its unintended and exorbitant consequences. It was then thrown into reverse in a panic before being partially (and poorly) covered up. In 2018 the scandal was subject to a 111 day inquiry. The final report is due soon.

Sam McBride’s new book reveals a complicated web of conspiracy, dysfunction and secrecy. The major concern is how bare the official record is. Official meetings were simply not recorded, with key meetings left purposely unminuted by both Sinn Fein and the DUP. In March 2018, giving evidence to the RHI Inquiry, the Head of Northern Ireland’s Civil Service admitted that “the practice of taking minutes had “lapsed” after devolution”. The BBC quoted him as saying:

Ministers liked to have a safe space where they could think the unthinkable and not necessarily have it all recorded [and] the DUP and Sinn Féin were sensitive to criticism and in that context, senior civil servants had “got into the habit” of not recording all meetings.

He said this was done on the basis that it was sometimes “safer” not to have a record which might be released under Freedom of Information. Arlene Foster denied this happened.

Not only were there few official records, but a hidden, parallel decision-making system appeared to exist. Key decisions were made outside of official channels, via mobile texts and private or party emails (with a later refusal to give them up). Contacts with key stakeholders outside of government went either unrecorded or took place in very odd places, with one SPAD meeting, seemingly accidentally, one businessman who he spotted in a neighbouring field.  One advisor to Arlene Foster ‘had a system whereby he passed “political” messages to Mrs Foster on Post-It notes which were immediately binned and thus could not be released under FoI’. Because of this void where the record should be, we still can’t answer the central question: why were the checks and monitoring cut out of the legislation?

At the same time, there was also an extraordinary attitude to the circulation of what documents there were. One SPAD emailed confidential documents to their relatives. Anonymous tip off emails were sent to the press designed to put them off the scent. One Minister did not know his own official email address and, when asked to give it, gave one of his advisor’s unofficial party accounts.

As with most scandals, the cover-up then exacerbated the crime. Even when the policy was thrown into reverse, the internal investigation was done on the telephone, also seemingly to avoid a formal record. There was a long battle to release the list of RHI beneficiaries, finally released as a pdf.  A full, wide ranging inquiry was also fought against.

It’s not clear to what extent all of this behaviour was habit, sheer dysfunction or active conspiracy, and the truth, as the book shows, lies somewhere in-between. The ‘Spadocracy’ at Stormont had already led to advisors trying to block FOI requests.

Perhaps the key question is what good did it do? From one perspective the secrecy has given some politicians’ a plausible deniability, or at least a very thin veneer of it. There’s enough confusion and opacity not to be sure about exactly who did what, when and where.

If it was intended to provide full proof protection, it clearly hasn’t. The inquiry painstakingly pieced together witness statements, email trails (across different accounts) and messages. What has emerge so far has meant, as one analysis put it ‘RHI turning into a bonfire of the DUP’s reputation to do basic government.’

Nor could it be repeated under the new Stormont deal of January 2020. Page 12 of the deal commits to a raft of changes that include publishing details of Ministers’ meetings with external organisations, details of gifts and hospitality received by special advisers, and so on.

Alongside this, there will be a “robust, independent enforcement mechanism to deal with breaches of the Ministerial Code and related documents’ and ‘a dedicated sub-committee which will consider the findings of the RHI inquiry and propose further reforms”.

What’s more, the secrecy has also been deeply counter-productive. In our 2010 study of FOI in the UK, we found that officials generally feared the consequences of not having a record rather than having one. In Northern Ireland the record ‘void’ has left room for doubt and suspicion. While the lack of a record means politicians have been given some deniability, they can’t clear themselves either. If they can’t be found with a smoking gun, neither can they be truly exonerated.