(Updated 07 September 2020)
What is the RHI Inquiry about?
The RHI Inquiry has been established to investigate a particular government scheme – the non domestic renewable heat incentive scheme – which was set up to assist in complying with obligations imposed by the law of the European Union in the area of renewable energy. The Northern Ireland scheme, which has similarities to a scheme in Great Britain, was devised and implemented by the then Department of Enterprise, Trade and Investment (now the Department for the Economy).
The scheme’s purpose was to provide a financial incentive for businesses to move away from non-renewable sources of energy. However, 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. The RHI Inquiry will investigate the circumstances surrounding this scheme.
Who set up the RHI Inquiry?
The RHI Inquiry was set up in January 2017 by the Northern Ireland Minister of Finance. He made a statement to the Northern Ireland Assembly about the RHI Inquiry on 24 January 2017. This included publishing the Inquiry’s Terms of Reference.
Who is chairing the RHI Inquiry?
The RHI Inquiry is chaired by a recently retired judge of the Court of Appeal in Northern Ireland, the Right Honourable Sir Patrick Coghlin.
How was the Chair appointed?
This appointment was made by the Minister of Finance.
Who sits on the RHI Inquiry’s Panel?
The Inquiry Panel presently consists of the Rt Hon Sir Patrick Coghlin and Dame Una O’Brien. Dame Una was a former Permanent Secretary of the Department of Health in London. Consideration may be given in due course to the appointment of a third Panel member. The Inquiry has also appointed Dr. Keith MacLean OBE, someone with extensive experience in the energy industry, as an assessor. The Panel may also seek assistance from expert witnesses.
Who appointed the Inquiry’s Panel member?
The Panel Member was appointed by the Minister of Finance in consultation with the Chair of the Inquiry.
What legislation underpins the RHI Inquiry?
The RHI Inquiry has been set up under the Inquiries Act 2005 (referred to here as ‘the 2005 Act’). While that is a United Kingdom wide piece of legislation, it makes specific provision for public inquiries to be set up by Ministers of the devolved institutions, such as Northern Ireland Ministers.
Section 41 of the 2005 Act provides power for statutory rules to be made to assist the operation of public inquiries. While such rules have been made in other jurisdictions in the United Kingdom, specific Northern Ireland rules have not yet been made under the 2005 Act. However, this will not be an impediment to the RHI Inquiry because section 17 of the 2005 Act gives the Chairman the power to determine the procedure and conduct of the RHI Inquiry.
Why has the RHI Inquiry issued various protocols on its website?
Most inquiries will issue protocols to assist the public, and those involved before the inquiry, to understand how they will operate. They are guides that explain the procedures that the inquiry has adopted to conduct its work. They are subject to change.
The RHI Inquiry has so far published:
- A Procedural Protocol. This sets out a summary of the way in which the Inquiry intends to gather its evidence, conduct its oral hearings, and prepare its report.
- A Costs Protocol. This addresses how the Inquiry will deal with applications to it for public funds to be provided in respect of expenses and legal representation before the Inquiry. The Inquiry must pre-approve any use of public funds.
- A Disclosure Protocol. This addresses a particular requirement in the Terms of Reference and explains how the Inquiry will make its work as accessible as possible.
A Redaction, Anonymity and Restriction Orders Protocol. This provides general information and guidance as to how the Inquiry will deal with matters relating to redaction and anonymity and how a person may apply to the Inquiry for what is known under the 2005 Act as a “restriction order”.
What are Restriction Orders?
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 in the right way.
The Inquiry has published four Restriction Orders:
No 1 of 2017 – directs that personal information such as addresses, telephone numbers, fax numbers, email addresses, dates of birth and national insurance numbers shall be redacted in documents published by the Inquiry, unless directed otherwise by the Chairman.
No 2 of 2017 – directs that no one who receives documentation from the Inquiry shall publish it in any way without first obtaining the written consent of the Chairman.
No 3 of 2017 – directs that no one required to provide a witness statement to the Inquiry shall publish that witness statement in any way, save for its provision to the Inquiry.
No 4 of 2017 – directs that certain information which the Inquiry regards as being commercially sensitive or which relates to investigations by appropriate authorities shall be redacted.
For the full text of the Restriction Orders, follow the links below:
What are the RHI Inquiry’s Terms of Reference?
All public inquiries have Terms of Reference. The Terms of Reference set the parameters of what the inquiry must investigate. View the RHI Inquiry’s Terms of Reference.
A public inquiry has to carry out the tasks required by its Terms of Reference. It cannot go outside them, or beyond them. That being said, it is up to every public inquiry to interpret its own Terms of Reference, and then to explain to the public what the Inquiry considers is required of it.
However, it will be apparent that the Terms of Reference for this Inquiry are very widely drawn. The Ministerial Statement of 24 January 2017 explained that this was “in order to give latitude to the Inquiry Chair in his work”.
What are Core Participants?
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 some continuing involvement with the RHI Scheme through all its phases and across the full scope of the issues which the Inquiry is investigating. Core participants are entitled to certain participatory rights. These include the right to appropriate legal representation and to have the lawyer concerned designated as the core participant’s recognised legal representative. A core participant, together with any designated legal representative, will be entitled to be present at public hearings except on days considered by the Chair to be irrelevant to them. They can also seek leave to ask questions of a witness, though it is the Inquiry’s intention that all questioning, save in exceptional circumstances, will be conducted by Counsel to the Inquiry. Further details of the status and role of a core participant may be found in the Inquiry’s Procedural Protocol.
Who are the Core Participants?
The Department for the Economy, the Department of Finance, and Ofgem.
What are Enhanced Participatory Rights?
These are rights over and above those afforded to someone who is simply providing evidence to the Inquiry as a witness, whether orally or in writing. In practical terms, the most significant feature of these rights is access to the Inquiry’s witness statement bundle. Enhanced participants will also have a right to be legally represented at hearings where the Chairman considers that this is appropriate and their legal representatives may engage with the Inquiry over possible lines of questioning that may be pursued with other witnesses, whose evidence is relevant to their position. 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. Further details are again provided in the Inquiry’s Procedural Protocol.
Will the RHI Inquiry find anyone guilty?
The RHI Inquiry, like all public inquiries, is not a trial of any particular body or individual. Section 2 of the 2005 Act specifically says that: “An inquiry panel is not to rule on, and has no power to determine, any person's civil or criminal liability.”
The RHI Inquiry will establish the facts surrounding the scheme it has been tasked to investigate. It will do so in an inquisitorial way through obtaining documents, witness statements, and holding oral hearings. The oral hearings will be open to the public. Where the Inquiry feels it should criticise individuals or organisations, because of things they did or did not do, it will do so in its report.
If the RHI Inquiry discovers behaviour that it regards as potentially criminal in nature, then it will refer those matters to the Police Service of Northern Ireland, which has responsibility for the investigation of crime.
What undertaking has been given by the Director of Public Prosecutions?
The Director has given an 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.”
The full text of the Director’s letter can be viewed at https://www.rhiinquiry.org/sites/rhi/files/media-files/2017-05-26-letter-from-b-mcgrory-director-pps-re-undertaking.pdf
This undertaking was requested by the Inquiry to ensure that it has as much access as possible to evidence which, without the undertaking, witnesses may not be required to provide.
Will the Inquiry investigate all individual applications under the scheme?
No, the Inquiry’s Terms of Reference do not require it to seek to investigate individual applications for accreditation or payment under the scheme.
However, on 21 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. In total, 1058 individuals, either as personal recipients or the contact point for a company/organization, received a request.
Where the Inquiry considers that it is appropriate to consider an individual application to the scheme in the course of investigating other matters set out in its Terms of Reference, it will do so.
What is the timeframe for completion of the RHI Inquiry?
Public inquiries have a duty to carry out their work fairly and thoroughly, and to produce a reliable evidence-based report of their findings. Every public inquiry has a series of stages that must be gone through. They include:
- setting up the inquiry;
- gathering the relevant evidence;
- considering it;
- providing material to those who need to be asked questions about it;
- questioning the relevant individuals about the evidence gathered;
- giving relevant individuals an opportunity to explain relevant events and an appropriate opportunity to make representations where they may be subject to criticism;
- reflecting on all the evidence gathered, including evidence provided at oral hearings;
- drafting a report; and
- finally, publishing its report.
It will be obvious that a public inquiry therefore takes time. It is simply not possible to give a precise timescale as to how long it will take.
Where do the public hearings take place?
The RHI Inquiry holds its public hearings in the Senate Chamber of Parliament Buildings, Stormont.
The Inquiry looked at a series of available hearing venues and this was the most suitable, bearing in mind the Inquiry’s obligation to keep costs to a minimum. The Senate Chamber has been adapted to facilitate the layout required by the Inquiry. It has a substantial public gallery. It also has excellent media facilities already in place and can provide the necessary independent and private space for use by the Inquiry.
The Inquiry recognises that the Stormont Estate may be viewed as the seat of government, and therefore associated with many politicians and officials, some of whom are likely to fall within the ambit of the Inquiry’s investigation. The Inquiry does not consider this to be an impediment to it making use of the Senate Chamber by arrangement with the Assembly Commission. The Inquiry considers that this venue adds considerable efficiency to its work.
What form do the oral hearings take?
Following three preliminary statements by the Chairman (in April, June and September) the oral hearing began on 7 November 2017.
The oral hearings include four broad phases:
- 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.
When will a schedule of who is giving evidence be provided?
The RHI Inquiry regularly updates its timetable setting out who will be giving evidence in future weeks. A timetable for each week will be published on this website no later than one week in advance of the relevant hearing week.
The Chairman has indicated that the schedule of oral hearings will be made up of a series of two-week segments taking evidence, followed by a week in which the Inquiry will consider the evidence received and prepare for the next hearings.
Will the hearings be held in public or closed session?
It is intended that all of the RHI hearings will be held in public session. In exceptional circumstances the Chair may direct that a closed session be held where he considers that to be unavoidable.
What is a closed session?
Sometimes, for legal reasons, it may be necessary for evidence to be heard in a closed session. This means that only legal representatives and the Chair and Panel members may be present when a witness is giving evidence.
Are the hearings broadcast?
The oral hearings are streamed on the Inquiry's website (except in the case of a closed session)
Where can I view the broadcast?
A web-link is provided on the Inquiry’s website to enable the public to watch the broadcasts.
Can I make a request to the Inquiry under the Freedom of Information Act?
No. A public inquiry is exempt from the requirements of the Freedom of Information Act 2000 by virtue of section 32 of that Act. The Inquiry will seek, however, to conduct its business as openly and transparently as possible.
Who are the key staff?
Aside from the Chair of the Inquiry, the Panel member and the Assessor, the key staff are:
- David Scoffield QC, Senior Counsel to the Inquiry;
- Joseph Aiken and Donal Lunny, Junior Counsel to the Inquiry;
- Patrick Butler, Inquiry Solicitor; and
- Paula Dawson, Inquiry Secretary.
How many staff are there in the Inquiry team?
In addition to the chairman, panel, assessor and counsel, there are 28 administrative and legal posts in the Inquiry. This requirement is kept under review. The Inquiry also employs a press officer.
How many are in the RHI Inquiry legal team?
Senior Counsel is supported by two Junior Counsel and the Inquiry Solicitor. There are two deputy solicitors and posts for 11 legal support staff.
Who appointed the Inquiry’s legal team?
Counsel were appointed by the Chair of the Inquiry. He and the Departmental Solicitor’s Office were involved in appointing the Inquiry Solicitor, who is responsible, in consultation with the Chair, for other legal appointments to the Inquiry.
How were the secretariat staff selected?
Some administrative staff are on loan from the Northern Ireland Civil Service, selected on the basis of their experience of working in other public inquiries; others have been recruited on short-term contracts through recruitment agencies; and some are on loan from the Northern Ireland Assembly.
What are the Inquiry’s powers?
The RHI Inquiry has all the powers provided by the Inquiries Act 2005. The Chair of the Inquiry can, for instance, compel a person to provide evidence or produce documents. Failure to comply with the requirements of the Inquiry can amount to a criminal offence or a civil contempt of court.
Is the Inquiry independent of Government departments?
Yes. The Inquiry is completely independent of Government departments.
What process is the Inquiry using to gather evidence?
The Inquiry has served approximately 700 notices under section 21 of the Inquiries Act 2005, requiring the production of documents and witness statements. These have been served on a wide range of persons and organisations.
How much evidence has been received?
Evidence will continue to be received throughout the Inquiry process, but it is already in excess of one million pages.
What is the approximate total cost of the RHI Inquiry?
It is estimated that the Inquiry will cost in the region of £7m, but a number of variables may yet impact on the estimated budget. This figure relates to the direct costs of the Inquiry only. It does not include any other departmental costs incurred by the Northern Ireland Civil Service. Every effort is being made by the Inquiry to keep costs down, without compromising the work of the Inquiry. As is normal practice, all costs of the Inquiry will be disclosed and accounted for when the Inquiry concludes.
How can the media obtain information about the work of the Inquiry?
The RHI Inquiry recognises the intense public interest in its work. When the Inquiry has something to say, it will do so: either in the form of a press release, a publication on this website or a public statement at a convened oral hearing.
What support is available for witnesses who find it stressful engaging with the Inquiry?
The Inquiry recognises that giving oral evidence in public may be stressful for some. We have, therefore, engaged Inspire Workplaces to provide support to anyone involved with the Inquiry.
All witnesses will have access to Inspire Workplaces services, which include:
- Helpline - 24/7 access to professional counsellors. If you need support beyond the phone call, with further discussion of your concern, more in-depth support can be provided with a designated counsellor.
- Counselling – this will be on a one-to-one basis with a qualified counsellor, at a time and date to suit you, and may be face-to-face by Skype or over the phone. Inspire counselling is given in a supportive, caring and non-judgmental way. Your counsellor will support you to cope with whatever issues are causing you distress and disrupting your life.
To contact Inspire Workplace please call 0800 389 5362, or visit their website at: https://www.inspirewellbeing.org/workplaces
If you are a current Civil Servant, you also have access to the NICS Welfare Support Service. To avail of this service you can contact Welfare Support on 028 90251771 or e-mail firstname.lastname@example.org
Lifeline Crisis Response also offers a counselling service and can be contacted 24 hours a day, 7 days a week on 0808 808 8000. Calls are free from all UK landlines and mobiles.