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RHI concerns raised by Ofgem legal adviser 'watered down' in minutes of meeting

Marcus Porter, a legal adviser at Ofgem, which was administering the RHI scheme, said his objections were "watered down" in the minutes of a meeting with DETI
John Monaghan

A LEGAL adviser to the regulator administering the botched RHI green energy scheme raised concerns before its launch which were ignored, with his objections "watered down" in minutes of meetings with the Department of Enterprise, Trade and Investment (Deti).

The RHI inquiry at Stormont yesterday heard from Marcus Porter, a lawyer in E-serve, part of the Office of Gas and Electricity Markets (Ofgem), which was brought in to assist in creating the scheme in 2012.

So concerned was Mr Porter about potential problems that he urged his organisation to defer involvement in the Northern Ireland plans.

The most recent estimate has put the projected overspend of the botched scheme at around £700m over 20 years unless measures to control the cost are introduced.

Offering advice on Deti's draft regulations and developing guidance documents for applicants, Mr Porter said that there was a lot of work to be done to meet the launch deadline of autumn 2012, meaning he had to "hurtle through" preparations.

Mr Porter rejected the claim that the relationship between Deti and Ofgem was "dysfunctional" but said that it did deteriorate and described it as "unsatisfactory".

He had questioned Deti's decision not to include amendments being made at the time to the scheme in Britain, which had been launched a year earlier.

Amongst the changes in Britain were the introduction of cost controls and a temporary suspension option which would be activated in the event of an overspend.

In an email, Deti's Peter Hutchinson said the department wished to follow the existing regulations and "then make necessary amendments in the future".

Mr Porter warned that "taking the easy course now may lead to problems later", writing that while Deti appears to be "happy to take unnecessary legal risks", there was no need for Ofgem and its governing body, the Gas and Electricity Markets Authority (Gema), to follow suit.

His legal view was that the RHI scheme should be postponed until the amendments in Britain were applied to Northern Ireland.

However, unaware to Mr Porter, his advice was removed from a report provided to members of Gema who were considering the scheme.

At a meeting between Deti and Ofgem officials in June 2012, Deti personnel dismissed concerns, stating that there was a "commitment to the minister" - then Arlene Foster - and a risk that funding for the scheme could fall through if it was delayed.

Mr Porter contested the minutes of that meeting and submitted an amendment, saying they were "certainly softened.....I don't know what the motivation was but it was watered down".

He said: "It was hammered home at the meeting but not entirely satisfactorily in the written record. The written record didn't convey the sense of importance and urgency that I was trying to get across.

"I thought they (Deti were skating on thin ice, but I thought there is nothing more that we can say that will change things.

"The circumstances in which we found ourselves were that, both verbally and in writing.......Deti's position on the matter was final."

Asked by junior counsel Joseph Aiken if his impression was that Deti "didn't want to discuss the details of what you were raising", Mr Porter replied "yes".

At the end of yesterday's hearing, inquiry chair Sir Patrick Coghlin told Mr Porter that he would have to return at another date to conclude his evidence.

The RHI inquiry hearings will resume on Wednesday January 24.

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