The DUP election leaflet which claims to go behind all the spin

Opposition parties have reacted with incredulity to the leaflet and the News Letter asked the party for evidence to support each of the statements. It did not respond.

When asked about the leaflet yesterday on the Nolan Show, DUP MP Sammy Wilson denied that it was misleading and described it as “an attempt to put some balance into the whole issue”.

Here, we examine each of the claims (in quotes) and whether they stand up to scrutiny.

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Arlene Foster and Jonathan Bell were the DUP ministers in charge of setting up and then closing down the disastrous RHI scheme

1) “Costs have been capped – no future overspend”.

This claim is seriously inaccurate. Emergency cost control legislation was only passed a week ago, as a direct result of the public outcry since the BBC Spotlight programme (despite the fact that the DUP has known about the RHI mess for more than a year and a half and Sinn Fein has known about it for a year). But that emergency cost control legislation will not take effect until April, meaning that costs are rising at £85,000 a day so there remains a “future overspend” even during this election campaign.

Just over a week ago, DUP Economy Minister Simon Hamilton told MLAs that even with his emergency cost controls there will be an overspend, describing it as a “comparatively small deficit of around £2 million” in the next year.

On top of that, the retrospective cost controls are legally unorthodox. Some claimants have said they will challenge them in the courts. And those cost controls only apply for one year – costs have not been capped for the remainder of the scheme (until about 2035) and although the DUP now says that it wants to do this, there is no guarantee that it will be possible.

Arlene Foster and Jonathan Bell were the DUP ministers in charge of setting up and then closing down the disastrous RHI scheme

2) “A public inquiry is being set up”.

This is correct. After the BBC Spotlight programme, the DUP supported some form of inquiry into the RHI debacle. However, it was only the day before Martin McGuinness resigned as deputy first minister earlier this month that Arlene Foster said she would accept a full public inquiry (which has powers to compel witnesses and documents and take evidence under oath). Sinn Fein held out against a public inquiry up until January 19 when it did a U-turn and said it would establish a public inquiry under the Inquiries Act 2005.

3) “A full inspection of all sites to be carried out”.

This is correct. Under the initial RHI scheme, only a handful of the 2,000 RHI claimants were inspected each year. But Simon Hamilton’s Department for the Economy has now made the decision to audit every boiler and is to tender for a company to undertake the inspections.

4) “All RHI recipients will be named”.

This cannot be stated as fact. There is no guarantee that “all RHI recipients will be named”. Initially, Mr Hamilton said that he did not believe he could name every recipient due to the Data Protection Act – even though the act does not apply to businesses, which form the vast bulk of claims under the non-domestic RHI. He has since said that he wants to name every recipient, but that has been legally challenged and an interim court injunction currently prevents him naming about 400 claimants.

5) “Arlene Foster has been vindicated by an independent senior civil servant”.

This is misleading. The claim relates to the evidence of Dr Andrew McCormick, the most senior official in Mr Hamilton’s department, at the Public Accounts Committee (PAC) a fortnight ago. He said that Mrs Foster had followed civil service advice throughout the scheme. However, Dr McCormick is not in a position to “vindicate” Mrs Foster in relation to all the criticisms she faces. He made the comments in passing at a committee in response to a DUP MLA’s question – not formally after any sort of investigation. And he explicitly said that he was in no position to comment on the competence of ministers.

6) “All parties in the Assembly voted for the flawed scheme”.

This is correct – but not the whole story. The candour of DUP ministers in giving the Assembly all the necessary information is in question. As late as February 2016 – as Jonathan Bell was moving to shut the scheme entirely because he knew that it was financially disastrous – Mr Bell claimed the scheme was “very successful”. The other parties face more questions over why they did not spot the fundamental flaw in the regulations when they first came before the Assembly in 2012.

7) “At all times Arlene Foster followed Civil Service advice, including that there was no need for cost controls called ‘tiering’.”

Based on the evidence of Dr McCormick at the PAC, this is correct. Dr McCormick was contrite on behalf of the Civil Service, telling MLAs that “ministers have the right to expect that civil servants will get this sort of thing right”. The opposition highlights that it is not simply the role of a minister to rubber-stamp officials’ advice and we know that a whistleblower personally contacted Mrs Foster in 2013.

8) “There was no overspend or warning of an overspend during Arlene Foster’s time as minister”.

This is correct. In 2014-15, Mrs Foster’s final year at DETI, there was an underspend of £4 million. The overspend came months after she left during the massive ‘spike’ in applications. However, the spike was only possible because of the removal of cost controls while Mrs Foster was minister. Another key fact which is omitted is that Dr McCormick has said that a DUP Spad – inexplicably, and against civil servants’ advice – delayed introducing cost controls just before the spike.

9) “Arlene Foster took ministerial responsibility and apologised for what went wrong from the start”.

Mrs Foster has repeatedly blamed her officials for the debacle – although her tone has gradually changed.

The day after the December 6 BBC Spotlight, Mrs Foster gave her first reaction to UTV’s Tracey Magee. She did not accept any responsibility and said: “There really isn’t anything more with hindsight that I could have done, given the advice that was given to me at the time.” A few days later, she was interviewed by the BBC’s political editor, Mark Devenport. Afterwards, he summed up her mood as “pretty determined and unapologetic”.

However, by December 19, when Mrs Foster addressed the Assembly, she said: “As minister, I accept responsibility for the work of the department during my time at DETI. Once again, for the avoidance of doubt, I believe that it is right and proper that I answer to the Assembly for my role in the RHI scheme, and not for one moment do I seek to shirk or avoid that responsibility.”

Even though aspects of the DUP leaflet are inaccurate, political advertising is exempt from the regulations which govern commercial advertising. The Advertising Standards Authority (ASA) says that this is in order to protect freedom of speech and that it would be “inappropriate for a body like the ASA to intervene in the democratic process”.

Ironically, the leaflet claims for itself the noble endeavour of getting “behind all the spin” and establishing “facts”.

Actually, parts of the flyer are true, parts of it are economical with the truth and parts of its are unquestionably wrong.

Taken as a whole, this is a leaflet which contains seriously misleading claims.