Official Report: Minutes of Evidence
Committee for Social Development, meeting on Thursday, 13 November 2014
Members present for all or part of the proceedings:
Mr Alex Maskey (Chairperson)
Mr M Brady (Deputy Chairperson)
Mr Jim Allister KC
Ms Paula Bradley
Mr G Campbell
Mr Stewart Dickson
Mrs Dolores Kelly
Mr Fra McCann
Mr S Wilson
Witnesses:
Mr Stephen Brimstone, Department for Communities
Inquiry into Allegations Arising from a BBC NI ‘Spotlight’ Programme aired on 3 July 2013 of Impropriety or Irregularity Relating to NIHE-managed Contracts and Consideration of any Resulting Actions: Mr Stephen Brimstone
The Chairperson (Mr Maskey): We have Stephen Brimstone here to continue his session from 16 October, which was interrupted. We are now resuming business. On that basis, I again ask any members to declare any interest relevant to today's business. As no one has anything to declare, we can move on.
As you aware, Mr Brimstone provided a written submission, which is on page 186 of your pack. Members have also been provided with a cover note from officials, as is normal, which is at page 179. I want to pick up where we left off. Jim Allister was just finishing a line of questioning, and I had indicated that we were going to move to the next member to speak, Gregory Campbell, and then move back around to the members who had indicated. Jim, you have questions that you want to return to later.
Mr Campbell: I have no idea what I was speaking on; it was that long ago, Chairman. That is the point I made.
Mr Campbell: I will maybe start afresh.
Mr Brimstone, just as a matter of interest, how many times have you been before the Committee?
Mr Stephen Brimstone: This is my fourth.
Mr Campbell: My question is similar to one that I posed to former Minister McCausland. There is serious concentration on the Red Sky contract, for understandable reasons, but not exclusively so. Therefore, when Councillor Palmer was in front of the Committee, I asked her about Rinmore, and she said:
"I would prefer not to talk about Rinmore."
Did you have any knowledge of this Rinmore contract?
Mr Brimstone: I am not so sure that it is around the Rinmore contract, but issues appeared to emerge around how the Rinmore issue had been dealt with. From my recollection, it was some time after the Red Sky issue. I understand that allegations were made both within the Housing Executive about officials within the Department. I understand that the permanent secretary, on the back of that, instigated some sort of review, report or investigation. On the back of that and the concerns raised on the back of that, with the former chairman having taken up a new position as chair of the Civil Service Commissioners, the permanent secretary wrote a letter to —
Mr Campbell: Sorry, but, by "former chairman", do you mean Mr Rowntree?
Mr Brimstone: Yes.
The permanent secretary wrote a letter to the then director general of the Northern Ireland Office. I think that reference was made in the 'Spotlight' programme to a courtesy call that the permanent secretary made to the former chairman Mr Rowntree in relation to the letter that he had sent, or was about to send, to the then director general of the Northern Ireland Office.
Mr Campbell: This is in relation to the Rinmore — whatever it was, whether it was contract, scenario or whatever it was. Was there any direct relevance to that Rinmore situation during your time as special adviser (SpAd) in the Department?
Mr Brimstone: No, the Rinmore issue had been dealt with. In fact, the Minister went to see the completed project in Rinmore in Londonderry shortly after entering office.
Mr Campbell: But you did not have any direct knowledge of it. Fair enough. OK.
Mr Brady: I have a couple of questions. Jenny Palmer gave evidence, which seemed to be very clear, about the conversation that you had. In your last evidence session, you said that you could not really recall the specifics. She said that, at a subsequent meeting with, I think, Mr Robinson, she was with Jeffrey Donaldson and that you were there. She said that you agreed that what she was saying was said was accurate. In your last evidence session, you said that you would not have used that phraseology. You cannot necessarily remember the details of the original conversation on 1 July, but you could remember what was not said when you gave evidence here the last time. It seems that there is a bit of a dichotomy there somewhere.
Mr Brimstone: Just so that we are clear, I think that we are talking about a number of different conversations. We are using the remarks I made at the last appearance, which were in regard to my telephone conversation with Councillor Palmer. I do not think that I made any comment around the conversation, although I stand to be corrected on that.
Mr Brimstone: Could we look at that? Could you point it out?
Mr Allister: Page 5. It is in the middle of the page of the transcript.
"I did not at that meeting".
I take it that it is the meeting where Jenny Palmer says she was accompanied by Jeffrey Donaldson. She said that it was attended by a number of others, including Peter Robinson. Is that what you are asking about, Mickey?
"I did not at that meeting acknowledge that her account was accurate."
Mr Brady: You could not remember the details of the specific conversation that you had with Jenny Palmer when you originally rang her, but, in the evidence you gave, you were sure that you did not acknowledge that her account was accurate. You had a recall of one but not necessarily of the other. That seems to be a bit of a contradiction.
Mr Brimstone: If we go to page 3 of that same Hansard, you will see that I outlined as clearly as I could my recollections of the phone conversation.
Mr Brady: The point that I am making is that Jenny Palmer, in her evidence, said that, in the telephone call on 1 July, you demanded that she vote against the termination of the Red Sky contract and that she should ask for an extension. You also said, "The party comes first; you do what you are told". You are saying that you would not have used that phraseology. In fact, I think she used the word "aggressive". You are sure that her version is not accurate. You can recall that, but you cannot recall the specifics of the original conversation.
Mr Brimstone: What I said was that I did not accept her version of the conversation. On page 5 of Hansard, you will see that I was clear to the Committee that I did not, at that meeting, acknowledge that her account was accurate. So, I was not accepting her recollection of the internal party meeting where I accepted that her recollection of the conversation was accurate.
Mr Brady: In phase 1 of the inquiry, you said:
"I have no powers to give instructions in the Department. I have no powers at all to give instructions to anyone."
In relation to the email that was sent on 5 July 2011, did you instruct Michael Sands, under the authority of the Minister, to send an email?
Mr Brimstone: I referred to that in my written submission to the Committee. If you give me a second, I will turn it up here. According to the official record, Mr Sands sent an email to the chairman stating that the Minister's SpAd thought that six months was too long a time frame for continuation by the Red Sky administrator. There is further detail of the Central Procurement Directorate (CPD) advice on the time that we required to prepare a contract. The chairman was asked, not instructed, whether the question could be put to the administrator to ascertain whether it would be able to continue with response maintenance service. I did not issue any instructions.
Mr Brady: So, Mr Sands did that of his own volition. He is an official in DSD dealing specifically with housing, as far as I am aware, and has been for a long time. Would he have taken that initiative himself to send an email to the chair of the Housing Executive about something like that without having prior instructions from you or the Minister?
Mr Brimstone: I cannot recall the conversation with Mr Sands, but looking at the evidence that is here in front of me about what the official record states, it is clear that I had a conversation with Mr Sands. The outcome of that conversation was that he would send an email to the chairman asking whether certain things were possible.
Mr Brady: My last question is this: did you have any conversation with Mr Sands about the phone call to Jenny Palmer at any stage? Was that ever discussed?
Mr Brimstone: I do not recall having any conversations with Mr Sands about the telephone conversation with Mrs Palmer.
Mr Allister: Mr Brimstone, when we were interrupted, the point that I was giving you an opportunity to comment on was this: it could be thought that you would have a motive to deny Jenny Palmer's evidence as to the content of the phone call, because, to admit it, would put you in obvious breach of your code of conduct. Do you want to comment on the point that that could be a motive for you denying the content of Mrs Palmer's evidence?
Mr Brimstone: Following on from the last evidence session, I cannot answer questions of opinion. I am here to answer questions of fact. Members asking my opinion on a matter to do with conditions of employment —
Mr Allister: I am really just giving you an opportunity to comment and disabuse us, or otherwise, if some of us thought that that could be a motive.
Mr Brimstone: I am here to answer questions of fact.
Mr Allister: Dealing with questions of fact, in your evidence the last day — I want to be as fair to you as I can — you said to us six times in relation to the content of that phone call that you cannot recollect saying that or using that phraseology. You will appreciate that that is different from denying saying something. Do you want to rest your evidence on that, that you simply cannot recollect saying the things that Mrs Palmer alleges were said in that phone call? Is that your position?
Mr Brimstone: I go back to the previous evidence, at the bottom of page 4, when you asked almost the same question. You asked:
"Could you have used it?"
In essence, it is the same question, and I answered:
"No, I do not believe so, in the context of the call and what we were actually looking."
Mr Allister: That is the point I am trying to get you to clarify. Do you want the Committee to believe that you did not use any of the language? When I talk about the language, I am talking about the pertinent matters that I recited with you. You know what they are: "The party comes first; you do what you're told" etc. Do you want the Committee to believe that you did not say any of that? Are you quite positive and clear about that, or is your evidence, as appeared to be the burden of it the last day, that you have no recollection of saying any of that?
Mr Brimstone: Neither have I any recollection, and I do not believe that I said any of that.
Mr Allister: "Believe". Where that leaves the Committee is that we have Mrs Palmer very emphatic and clear that that is what you said, and you telling us, "I don't recollect and don't believe that's what I said". That is the situation we are at.
Mr Brimstone: Well, the basis of my recollection of the phone call is on whatever notes I took of the phone call subsequent to the phone call. I can only operate on the basis of that.
Mr Brimstone: When I became aware that there was an issue around the phone call and that the BBC 'Spotlight' team was looking at the phone call in particular.
Mr Brimstone: We became aware of it before then because they had started to ask questions.
Mr Allister: Yes, I think they started to ask questions in the latter part of 2012, is that right?
Mr Allister: So, a year-plus later, you started to make some notes about a conversation.
Mr Brimstone: I provided those — the outworking of those — in the evidence that I gave in the previous session.
Mr Allister: Presumably, that is not the format they were in. You have extracted from other notes.
Mr Brimstone: No, that is the note of my —
Mr Allister: That is the note you made at that time. When was that?
Mr Brimstone: Whatever date it was when the BBC started looking around the phone conversation.
Mr Brimstone: Specifically, as in —
Mr Brimstone: I assume that I was in my office at the Department.
Mr Brimstone: No, I do not.
Mr Brimstone: Again, I assume that I was on my own.
Mr Allister: How soon did you make it after agreeing with the Minister that it would be made?
Mr Brimstone: Again, I think we looked at that the last time. My answer to the Committee at the last session was that I believed that we had a conversation earlier in that week, so I assume that it was days.
Mr Allister: "Days". And then on the Friday — if I remember correctly — you made the phone call. You cannot remember where and you do not think there was anyone with you.
Mr Brimstone: No, I said I assume that I was in my Department —
Mr Brimstone: It was over three and a half years ago, Mr Allister.
Mr Allister: Yes, but it is a matter that has been of some controversy ever since.
Mr Brimstone: It is still a matter of three and a half years ago as to where I was.
Mr Allister: Did you report back to the Minister on the phone call?
Mr Brimstone: Yes, I believe that I did.
Mr Brimstone: I can only assume that it was shortly after the phone conversation itself.
Mr Allister: Things were moving at quite a fast pace at that point, because the Housing Executive board was meeting on the Tuesday. That was the Friday. Your intervention was to try to steer Mrs Palmer in a certain direction, and she was not being cooperative, so presumably you reported that back quite quickly.
Mr Brimstone: No, my phone conversation with Mrs Palmer was to inform her fully of what the Minister's concerns were at that time and to ask that she inform the rest of the board, accurately and fully, of what the Minister's concerns were at that time.
Mr Allister: And she was making it plain that she was not happy doing what you were asking her to do.
Mr Allister: And she, of course, has a very different account of what you were asking her to do. The common denominator is that she was not cooperating in being willing to do what you were asking her to do.
Mr Allister: She says that that was because you were asking her to go against the board decision, the probity of which and the reasons for which she was satisfied with, and that you were directing her to do that in a quite heavy-handed way.
Mr Brimstone: That is what she says.
Mr Allister: At the subsequent meetings with Mr Robinson etc, did you say anything by nature of apology whatsoever?
Mr Brimstone: I want to be careful that I do not get into the internal workings of the party or discussions within the party, but I am quite content to make it clear that I never set out, in anything that I do or say, to cause anyone any offence or any sort of discomfort. Watching the programme that was broadcast on the BBC, it was clear that, for whatever reason — I do not accept the reasons that were put forward — Councillor Palmer felt upset or aggrieved at her recollection of the phone conversation. I made it clear that I never set out to cause any distress, and I apologise for any distress that was caused.
Mr Allister: Let us be clear: at that meeting, she was emphatic and clear in saying what the content of the phone call was, according to her. She said that you had said things like, "the party comes first", etc.
Mr Brimstone: I am not getting into the detail of the conversation at that internal party meeting.
Mr Allister: I am not sure you have that luxury. Is it fair to say —
The Chairperson (Mr Maskey): Sorry, Jim, just a wee second. We need to be clear, because the issue is, perhaps, not necessarily about where the comments were made. You are being asked about the accuracy, for want of a better way of putting it, of the remarks that Jenny Palmer attributed to you. That is the substance of the issue.
Mr Allister: I was going to put it this way: is it being fair to Jenny Palmer to say that what she alleged you had said in the phone call, when she was making those allegations at the internal party investigation, was consistent and compatible with what she has told this Committee you said?
Mr Brimstone: Again, I cannot comment on internal party discussions.
Mr Allister: You can comment on whether, as a fact, she was making the same allegations about what you had said as she made to the Committee. Why could you not say that?
Mr Brimstone: I cannot comment on internal party decisions.
Mr Allister: Sorry, that is some sort of refuge you are trying to take.
Mr Campbell: Chairman, now we are going down the same route again.
Mr Campbell: Three times he has tried this. Badgering a witness.
The Chairperson (Mr Maskey): Gregory, that includes you. Everybody, wait a moment. We are doing well; we had a professionally handled briefing this morning.
The Chairperson (Mr Maskey): We are doing well, relatively speaking. That includes everybody. Let us just ask one question at a time. The witness is not compelled to answer any question, because the Committee cannot compel anybody to answer a question. That will set the record straight. However, we expect witnesses to be as cooperative as possible. We can work around the parameters of all of that. Please ask one question at a time and allow the witness to respond.
Mr Allister: I am giving you the opportunity, Mr Brimstone, to say if, at the review meeting within the party, Mrs Palmer repeated the allegations as she repeated them to the Committee.
Mr Brimstone: I am not prepared to discuss internal party discussions.
Mr Campbell: That is the fourth time, Chairman, that that question has been asked.
Mr Campbell: I hope so. Five was his record the last time, and he is coming close to it this time.
The Chairperson (Mr Maskey): The question has been dealt with by me. Jim, I remind you that you have asked the question, and the witness is refusing to answer it.
Mr Allister: I note that he has refused to answer.
Flowing from that meeting or meetings — in fact, I have forgotten whether there were one or two meetings of internal review.
Mr Brimstone: I am not aware of any comment on the number of meetings of internal —
Mr Allister: I am asking you whether there were one or two meetings.
Mr Brimstone: As I said before, I am not prepared to discuss internal party discussions.
Mr Allister: As a consequence of those encounters, Mrs Palmer told us that there then was a flurry of draft apologies passing between the parties or between her and the party. Is that correct?
Mr Brimstone: Again, Chair, I am not prepared to discuss internal party matters.
Mr Campbell: That is five now, Chairman. One more to beat the record.
Mr Campbell: Then you are objecting to your own line of questioning.
The Chairperson (Mr Maskey): Gregory Campbell, please be quiet a moment. We are dealing with this, in my opinion, in a measured way, so let us keep it that way. Jim, you are aware that the witness is not going to answer any questions, as he already indicated very clearly and repeatedly, about the internal discussions within the DUP. On that basis, I am directing you to move on to another —
Mr Allister: Can I ask this question? I wanted to ask him whether he contributed to draft apologies.
Mr Brimstone: Again, Chair, with respect, I am not prepared to comment on internal party discussions or workings.
Mr Allister: Mrs Palmer said that you did, so you are leaving us only with the evidence of Mrs Palmer on that issue.
Mr Brimstone: Chair, my position is clear on the matter, I hope.
Mr Allister: Tell me this: in the DFP investigation, what was the timeline on that? When were you interviewed?
Mr Brimstone: I cannot recall. Chair, I am very uncomfortable answering matters relating to personnel-related investigations and inquiries.
Mr Allister: This was a fact-finding investigation. You were interviewed. Yes?
Mr Brimstone: Again, Chair, I am very uncomfortable answering —
The Chairperson (Mr Maskey): All right, Stephen, but, in fairness, it is a fair question. You are not being asked to comment on whether it was personnel or otherwise. You are simply being asked whether or when you contributed to a fact-finding exercise. Whatever the substance or the deliberation of that was, you are not in a position to give that answer, but it is a fair question to be asked and for you to answer whether or when you took part in an interview on a fact-finding exercise.
Mr Brimstone: OK. Yes, I did partake. I cannot recall at this point when exactly that happened.
Mr Allister: Were you interviewed on one occasion or more than one occasion?
Mr Brimstone: I am not getting into the detail of the fact-finding exercise.
Mr Allister: Again, Chair, I think that that is a question of fact.
The Chairperson (Mr Maskey): I accept that, but the witness is making it clear that he is not going to deal with it. I will ask him: are you prepared to give any information in relation to the fact-finding exercise in terms of your participation?
Mr Brimstone: No. I do not believe —
Mr Allister: I think that it is important, Chairman, for the probity of the inquiry, that we get on the record the type of questions that the witness is refusing to answer. Therefore, he needs to be given the opportunity to answer them. If he wishes to compound the situation by refusing to answer them, then I think that the record needs to show that.
The Chairperson (Mr Maskey): I am not disputing that at all, which is why I put the question directly to the witness myself. I am simply reminding ourselves that we cannot compel a witness to give a response. Members will, perhaps, infer or make their own judgement. At the end of the day, this is an inquiry that is taking place over a period of time, there is a range of witnesses, and there is evidence and documentation. Ultimately, the members of the Committee have to make their judgements in the round of all of the evidence that they read, hear and see.
Mr Wilson: But, Chairman, this is only a circuitous route by which to try to get an answer on an issue. The former Minister has already indicated that he was advised by the Attorney General that this was a personnel issue which he was unable to reveal.
The Chairperson (Mr Maskey): I made it clear earlier that the matter is now subject to engagement between the Committee and the new Minister. It will resurface as a substantive item in this inquiry.
Mr Allister: Chairman, I want to have the opportunity to put on the record questions to see whether this witness will answer them. If he does not answer them, I have to accept that, but I believe that I am entitled to have the opportunity to put those questions on the record.
The Chairperson (Mr Maskey): You have put a number of questions of that nature. I have obviously quite clearly permitted you to do that and will continue to do so, but there will come a point when the same questions will have been asked. Clearly, if the witness chooses not to answer them, we have to move on to the next question. We have other members.
Mr Allister: Well, I will ask a different question.
When you were interviewed in the fact-finding exercise, were you asked about the sending of the email of 5 July 2011?
Mr Brimstone: Again, Chair, I do not feel comfortable answering questions that relate to the personnel matter.
Mr Allister: With regard to the fact-finding investigation, did you see the report that was produced?
Mr Brimstone: Again, Chairman, I do not feel comfortable answering any questions that relate to the fact-finding exercise.
Mr Allister: You do not wish to deny that you may have read it.
Mr Brimstone: Chair, I will revert to my earlier answer.
Mr Wilson: Chairman, since all of these question are about a personnel report —
The Chairperson (Mr Maskey): Hold on a second. Sorry, Sammy, I will conclude on this. Jim, I take your point. I share your view and concern on it, but the matter has been exhausted. The questions have been put. The witness has given his responses. That has been very clearly made. Members will have to draw their own conclusions from that.
Mr Allister: I want to ask one final question, because it is relevant to what Jenny Palmer told us about how she was treated on this matter. I want to ask whether Mr Brimstone was told the outcome of the fact-finding investigation.
Mr Brimstone: I revert to my earlier answer, Chair.
Mr Allister: I might have something to say later about the obstruction of this Committee.
The Chairperson (Mr Maskey): Obviously, again, everybody will have their opportunity to deal with all of these issues in the round. I remind you that we will discuss the evidence thus far at the meeting on 27 November. I imagine that it will be a full and fulsome occasion for us to look at all of this.
Mr Wilson: Mrs Palmer also made a number of other allegations about you and conversations that you had with members of the Department. Will you just tell us, first of all, Stephen, about you and Michael Sands? He works in the Department. He is obviously in fairly regular contact with the Minister. What would your relationship with him have been?
Mr Brimstone: I would like to think that, as with all officials in the Department, I have a good working relationship with each of them.
Mr Wilson: Are you on friendly, "palsy-walsy" terms with each other?
Mr Brimstone: Did we socialise together? No.
Mr Brimstone: No. I do not.
Mr Wilson: Is he the kind of person to whom you would go and have a conversation? Would you tell him all about a telephone conversation that you had the other day with one of our councillors?
Mr Wilson: Did you ever talk to him about the telephone conversation that you had with Jenny Palmer?
Mr Brimstone: No. I do not believe that I did.
Mr Wilson: Jenny Palmer says that he recounted that conversation in great detail.
Mr Brimstone: She does, yes.
Mr Wilson: But you are saying that you did not have the conversation with him at any stage.
Mr Brimstone: That is correct. I do not believe that I ever discussed it with him, no.
Mr Wilson: The other allegation was that Michael Sands argued that you were in a bit of a flap about this email that was sent early one morning. Did you go searching for an email that had been sent about the termination of the contract or about extending the contract?
Mr Brimstone: I cannot recall getting in a flap around anything, to be honest, or running around like mad — I think that was the phrase that was used. There are occasions when you query things and you might get the private office to get you an email or whatever.
Mr Wilson: I was going to ask you that. Can you retrieve the emails yourself from the system?
Mr Brimstone: I do not generally do that, but I probably could if I wanted to, yes.
Mr Wilson: So you have access to all the departmental emails. If an email was sent, you can do whatever you do on a computer.
Mr Brimstone: I have never used it.
Mr Wilson: So, if an email was required that you wanted to have a record of, how would you have got it? Who would you have asked for?
Mr Brimstone: I likely would have gone through the Minister's private secretary to get me a copy of the email or ask for a copy of the email.
Mr Wilson: Would there be any reason why you would have to, especially if it was an embarrassing email, run around frantically asking somebody to do that for you?
Mr Brimstone: No, and there was nothing embarrassing that I can read in it anyway. No.
Mr Dickson: Thank you, Stephen, for coming to us this morning. On the day that Jenny Palmer received the phone call, she did not receive it directly. Why was that?
Mr Brimstone: I refer back to my earlier remarks. As I said on page 2 of the Hansard report from my earlier visit, I contacted Councillor Allan Ewart with the initial intention to enquire as to whether I could get Councillor Palmer's phone number as he sat on the Lisburn City Council with Councillor Palmer. It so happened that he was at an event that Councillor Palmer was at as well.
Mr Dickson: So, even though it was your intention to speak directly to Councillor Palmer, which you did, you had not prepared to check with DUP headquarters or the Minister's private contacts or whatever for that individual's phone number.
Mr Brimstone: I was going through internal party contacts.
Mr Dickson: It was just to ring another councillor and ask him.
Mr Dickson: Allan Ewart took the call from you and, on the basis of what Jenny Palmer told us, he passed the phone to her, you had that conversation and she then handed him his phone back. She says that she was in distress at that stage, certainly on the verge of if not actually in tears, and it was sufficient for Allan Ewart to pick those signals up immediately from the conversation. Do you believe that you had driven her to tears in that conversation?
Mr Brimstone: Absolutely not.
Mr Dickson: Do you believe that you had driven her to the point of resignation from the conversation that you had?
Mr Brimstone: Absolutely not.
Mr Dickson: Why then do you believe that her reaction to that phone call would be to tell Allan Ewart, "I need to resign", in a very emotional or tearful manner?
Mr Brimstone: With respect, Chair, I can only answer questions of fact. I cannot surmise or —
Mr Dickson: I appreciate that you were not present and did not see her at the time of phone call. Nevertheless, were you not in a position to pick up how she felt, what her voice was like and what she said to you in that conversation? Do you think that it was a fairly reasonable conversation and certainly one that should not have distressed her or driven her to the point of resignation?
Mr Brimstone: Absolutely not. I was perfectly aware that Councillor Palmer was in disagreement with me. She took a completely different view, and she made that point very clear to me. But in no way did I pick up that she was on the verge of tears, on the verge of resigning or any of that, no.
Mr Dickson: Moving further on to the reconciliation moves between you and Councillor Palmer, was Mr Gavin Robinson your legal representative in those discussions?
Mr Brimstone: Again, Chair, with respect, those were internal party discussions and I do not wish to comment further on them. I am sorry.
Mr Dickson: You at no stage appointed a legal representative.
Mr Dickson: These proceedings — in order to represent yourself on any of those matters.
Mr Brimstone: Just in relation to my responses to the BBC. My legal adviser responded to the BBC on my behalf.
Mr Dickson: OK. That was the only legal representation you had?
Mr Campbell: It is not really a question to the witness; it is a query about what you said earlier. If people put questions to Mr Brimstone, the Minister or whoever and, for whatever reason, the witnesses say that they do not want to comment on internal matters of the party, people can then draw whatever conclusion or outcome they want from that. I assume that that is equally the case for those who, unlike Mr Brimstone, have not come here once, never mind four times. In other words, we are asking a certain series of questions of the BBC, Mr Rowntree and Mr Hayes, none of whom have come. In fact, some of them — all of them, I think — have taken legal action to ensure that they do anything but come in front of the Committee. Are we entitled to draw the same inferential conclusion from their non-appearance as we are from a witness who has come voluntarily, not just once but four times, to subject themselves to badgering?
The Chairperson (Mr Maskey): I made it very clear that, at all times, from the outset — I repeat it again — this Committee is bound to make decisions or judgements on the basis of evidence. I also made it very clear a couple of minutes ago that people have to make their judgements in the round. That includes what they have heard. I am not sure how you factor in what you do not hear, but people will make their judgements in the round on the evidence presented to them — written, email, oral and so on. It is the entitlement of all of the members to do that.
Stephen, you said that Ms Palmer disagreed with you on the telephone call. Will you tell us what she disagreed with? What was the disagreement about?
Mr Brimstone: I am going on the transcript of the 'Spotlight' programme of that night. There was clearly a difference in opinion, as there was in her evidence to this Committee, as to what was or was not said during that phone conversation, and the tone of the conversation.
The Chairperson (Mr Maskey): I understand that. That is not what I am asking. A moment ago in your response you said, in answer to Stewart's question, that, yes, she disagreed with you. Stewart asked — I am not using his words — if you were aware of any distress, upset or emotion in her voice when you spoke to her on the phone. You did say that she disagreed with you, but you did not detect any of that. Can you give us any indication of what she disagreed with? What you are saying you asked her to do was make the board aware of the Minister's concerns, so what would she have disagreed with? I am just trying to elicit some substance of the conversation. You are saying that she disagreed, so it would be helpful if we understood what the disagreement was about.
Mr Brimstone: I refer back to page 4 of the report of my earlier visit to the Committee, when I went into detail on that — the second paragraph on page 4. I do not think I can add anything further to that.
The Chairperson (Mr Maskey): I will bring you in in a wee second, Gregory.
I understand in reading that, but I am not quite sure whether that addresses the issue in my mind. As I said, it is of what the actual disagreement was about. You make the case that you wanted to get her, on behalf of the Minister, to advise the board of his concerns. Did she disagree with putting those concerns to the board or with the substance of the Minister's concerns?
Mr Brimstone: Just as I outlined there, my recollection of the call was that she became very defensive, particularly about the chairman. I could not quite get to the bottom of that. She strongly contested any suggestion that he was not carrying out his duties appropriately. She did not accept my remarks around Leeway Maintain and the concerns that we had become aware of that related back to 2010 with regard to the same issues pertaining to another contract in a different area. She would not accept that either.
Mr Dickson: Going back to my earlier question, I appreciate Stephen's answer in respect of the internal party matters. He has acknowledged that Gavin Robinson was involved in that. Have you, Stephen, received any advice or guidance on what might happen in similar circumstances if you as a special adviser were asked to represent or act as a friend to another special adviser by way of disciplinary or other matters?
Mr Brimstone: I am not sure where I actually confirmed who was or was not at the meeting.
Mr Dickson: Mrs Palmer told us who was there. We will take a hypothetical question, then, if you are not indicating your involvement —
Mr Brimstone: Can I just get guidance from the Chairman on hypothetical questions?
Mr Dickson: Well, it is not a hypothetical question. Have you received any guidance on how you would act if you were asked to act in the role of a friend to another special adviser?
Mr Brimstone: In the role of a friend?
Mr Dickson: Yes, in any interdepartmental matters, for example, disciplinary or otherwise. Is there anything contained in the guidance to you as a special adviser on how you should act in those circumstances?
Mr Brimstone: No, I do not think that the —
Mr Dickson: So you would feel free to act as a friend to somebody who was being disciplined or act as someone who would go along as a witness.
Mr Brimstone: I am not sure that I can answer that question, Chair, with all due respect.
Mr Brimstone: Sorry, Stewart.
Mr Campbell: The issue occurred to me after I asked the last question. When Councillor Palmer was here, I asked her about the 'Spotlight' programme turning up unannounced, and the tenor of it was that she was quite shocked and did not know who they were when they arrived at her house etc. I seem to recall from the programme that there was a piece with a reporter at a car park somewhere. I do not whether that was at the Department or where it was. The reporter approached you. Was that a prearranged event, or how did that come about?
Mr Brimstone: Most definitely not.
Mr Brimstone: They came out from behind a hedge, from what I can recall.
Mr Campbell: Was that how they conducted their attempt to have a discussion with you — an interview?
Mr Brimstone: Clearly it was not a discussion, and clearly it was not an attempt. It was clearly an action to get a piece of television footage.
Mr Allister: You were running away from questions that day too.
Mr Campbell: The point that I am trying to make, despite the attempted interruption, is that Mrs Palmer was fairly clear that this was an out-of-the-blue arrival by the BBC, unannounced, in her home. There is no disparity here — none whatever. The two of them appear to be saying the exact same thing. The people who have created our 17-month hiatus refuse to come here every single time. They want to have a correspondence course with us, which seems to be the in-vogue response now by a number of people. Mr Brimstone is confirming that he was approached, if you can call it that, by the BBC in an unannounced fashion.
Councillor Palmer said likewise. That is the nature of the programme that we are left with. That is the only question that I have.
Mr Wilson: Maybe we should hide behind a bush and jump out on Chris Thornton.
Mrs D Kelly: Thank you for your evidence, Stephen. I have just a couple of points to make. I noted that you were in the Public Gallery when the Minister gave evidence, for part of the time if not all of it. You heard the Minister say that it was unlikely that you would have made that phone call, or made those interventions, with the Housing Executive and others without his knowledge and instruction. Is that fair comment?
Mr Brimstone: I am sorry. What is the question?
Mrs D Kelly: Given Mr McCausland's evidence to the Committee this morning, is it fair comment that it is unlikely that you would have made the phone call to Mrs Palmer and made the interventions with the Housing Executive and others without explicit instruction from the Minister?
Mr Brimstone: You use the word "instruction". The Minister would have been aware of it. He would have been consulted, and it would have been discussed. I cannot get into whether it was an instruction. I have no recollection of being told to do that.
Mrs D Kelly: It is just that, in some of the evidence and the board minutes, there is deemed to be political interference from you, as special adviser, that was believed to be inappropriate. I am trying to ascertain whether you were acting on behalf of the Minister on those occasions.
Mr Brimstone: If you look at that particular occasion, there was no instruction and no interference. A question was raised, and that was it. I am unclear as to how that can be perceived as political interference on a contractual matter.
Mrs D Kelly: The board minutes reflect the Minister's concerns, which you were then asked to, and felt compelled to, raise in a phone call to Mrs Palmer. According to the board minutes, those concerns had already been outlined to the board membership, and it did not concur with and, indeed, refuted the matters raised by the Minister. Is that not the case?
Mr Brimstone: Forgive me. I am unclear as to what you are getting at.
Mrs D Kelly: Maybe you do not understand. What I am getting at is this: you made a phone call to Jenny Palmer, or had to make it — whatever. There were concerns as to whether the Minister's fears around Red Sky and other contractors would not be properly articulated in the board's decision-making. He had been asked, by email but not by letter, I think from you, to raise that at the board. The board minutes reflect that concerns were raised about the Minister's comments about the termination by the chair of the Red Sky contract.
Mr Brimstone: Those related to letters that were sent from the Minister to the board and to discussions that he had with chairman.
Mr Brimstone: Where the board accused the "political adviser" — I think that that is the term that the minutes used — refers to the email from Mr Sands. Again, I would be grateful if someone could point out to me whether there is an instruction or an implied instruction in that email. Queries were raised as to what was and was not possible.
Mrs D Kelly: This morning, the Minister told us, I believe, that it is unlikely that you would have made those contacts without him having requested you to do so.
Mrs D Kelly: You do not ring up councillors, willy-nilly, and say that you need them to vote this way or that, I presume?
Mrs D Kelly: You are there to advise the Minister and check correspondence. You are there to perform that interface role, if you like.
Mrs D Kelly: All that I am trying to say is that you would concur with the Minister that it is unlikely that you would have made such interventions without his prior knowledge or instruction.
Mr Brimstone: I would not call it an "intervention", but I do not want to get hung up on that word. Yes, the Minister should have been aware of the issues around that time.
Mrs D Kelly: Otherwise, you would have been the de facto Minister, would you not? Some people might say so.
Maybe it is more appropriate to ask at the end of the meeting for guidance on what constitutes internal party matters and what is pertinent evidence to the inquiry. Mrs Palmer indicated that four draft apologies were submitted to her, which may or may not indicate the version of the phone call that was accepted. You have said on a number of occasions that there was no intent to cause her any distress, and I accept that, but distress was caused, and some form of wording had been agreed as a consequence of your internal party discussions. I believe that those matters are pertinent.
The other bit is on the issue around Leeway Maintain. Why would those concerns have meant that the Minister would have sought to stall the very appropriate actions that were to be taken on Red Sky? Can you shed any light on that?
Mr Brimstone: The Minister had concerns that the potential existed, if the issues pertaining to Red Sky were procedural system issues in the Housing Executive — in part, in whole or on the contractor side — for those same issues to pertain to other response maintenance contractors operating across Northern Ireland. As June progressed, we became aware that the Housing Executive had been aware of issues of a similar nature from 2010, which is before our time in the Department. Therefore, a suspicion that he had at that point that those issues potentially existed had been confirmed. Here was another contractor operating in a different Housing Executive district but with similar issues emerging. Therefore, the conclusion was that if issues existed in not one but two different areas, the potential existed at least for the same issues to be happening elsewhere.
Mrs D Kelly: I am a bit puzzled as to why you just would not stop the contract with Red Sky, halt the Leeway Maintain one and then look at others. Why would you make a decision to try to seek to extend a contract based on the evidence before you that the contract was not serving the public well.
Mr Brimstone: I can give answers only to questions that relate to decisions or actions that I undertook. Those are questions that should be addressed to the Minister, and I believe were.
The Chairperson (Mr Maskey): I have a couple of points. In your evidence a few minutes ago, you referred to the TRIM system and to the fact that you have access to it.
Mr Brimstone: I do not have access to the TRIM system. I have access to the knowledge network system, but what is on it, I do not know.
The Chairperson (Mr Maskey): The point that I was going to make was that, in previous evidence in an earlier session, you were emphatic that you did not have access to the TRIM system.
Jenny Palmer is making certain allegations attributed to you about the conversation that you had. Did you ask Jenny Palmer to vote in any particular way if the matter went to a vote on the board?
Mr Brimstone: I do not believe that I did, Chair.
Mr F McCann: I will try to be as brief as possible, which will be a surprise to some people. We established this morning that it was former Minister McCausland who asked you to contact Mrs Palmer about the board meeting that was about to take place. In fact, I think that she was a bit shocked to hear that a board meeting was taking place, because it was off-schedule. How long did the phone conversation take? There seems to be a lot in it. Was it two minutes? Three minutes? Five minutes?
Mr Brimstone: In my evidence to the Committee on the previous occasion, I think that I said five or six minutes. I could be wrong.
Mr F McCann: It seems strange that it was a five-minute conversation yet your recollection of what took place in the phone call is completely at odds with Mrs Palmer's. I cannot get my head around why she would said what she said when she seemed so shocked at getting the phone call in the first place. What would her motive be?
Mr Brimstone: With respect, Fra, I cannot answer a question about what is in someone else's mind.
Mr F McCann: Fair point. I have one other point to raise. Mrs Palmer said that she had had a conversation with the councillor from Lisburn and that she was quite shocked, was close to tears and felt as though she was being intimidated. Would it be worthwhile asking Councillor Ewart to come before the Committee?
Mr Allister: Did you go to Michael Sands's office at around 7.30 am on 5 July 2011?
Mr Brimstone: No. I am trying to think when I was ever in the Department at 7.30 am. I can think of one such occasion. It was the morning after the 'Spotlight' programme, and the Minister was being briefed prior to his appearance at the Committee.
Mr Allister: Do you challenge Mr Sands's evidence to the Committee that he was in from about 7.10 am and that you came to his office at about 7.30 am and asked for an email to be sent?
Mr Brimstone: I have no idea about the time or anything else. I am afraid that I have no recollection, Chair.
Mr Allister: Let us be clear: did you go to his office at any time that morning for the purpose of ensuring that that email was sent?
Mr Brimstone: I cannot recall going to his office. That is not to say that it did not happen, but I cannot recall going to his office.
Mr Brimstone: At 7.30 am or at any other time on that day or any other day.
Mr Allister: We know at what time the email was sent. I am trying to recall whether it was 7.38 am or 7.58 am.
Mr Allister: Yes, so whatever instruction or equivalent of that word was given, it was obviously given before 7.40 am. You are saying that you would not have even been in the office by then.
Mr Brimstone: I genuinely cannot recall being in the office at that time of the morning.
Mr Allister: What time do you normally come into the office?
Mr Brimstone: Any time from 8.00 am or 8.15 am onwards.
Mr Allister: We are left with the puzzle of why Mr Sands would tell us that. You are disputing whether that is likely to be true.
Mr Brimstone: As to what time I was in the office —
Mr Allister: As to you going to the office as early that morning.
Mr Brimstone: I cannot recall going to his office that early in the morning.
Mr Allister: Do you recall giving instructions or making requests about the sending of that email?
Mr Brimstone: I do not, no.
Mr Allister: Yet the email refers to something that you wanted done.
Mr Brimstone: Clearly, yes.
Mr Allister: It is hard to imagine that you had no involvement in the genesis of that email.
Mr Brimstone: I never disputed that.
Mr Allister: Tell us what your involvement was in the genesis of that email.
Mr Brimstone: Just so that I am clear, I thought that I had already answered that. I do not recall.
Mr Brimstone: I do not recall.
Mr Allister: You do not recall. Therefore, we have an email that, on the face of it, appears to involve an instruction from you, and you cannot help the Committee, because you cannot recall how it came about. Is that it, Mr Brimstone?
Mr Brimstone: I am not sure how else I can answer that.
The Chairperson (Mr Maskey): Maybe I can come in. You are being asked about an email that was sent at 7.40 am. Michael Sands said that he sent that email at your behest.
The Chairperson (Mr Maskey): You were asked at what time you were in the office, and you said that you could not recall. You were then asked whether you were in the office, and you said that you could not recall. Can you give us any information about how you engaged with Michael Sands to elicit that email?
Mr Brimstone: No, I cannot.
Mr Allister: You cannot help us at all on that. Very well.
The email should form part of the system of records at the Department. Is that right?
Mr Brimstone: I would imagine so, yes.
Mr Allister: Can you shed any light on why it seems for a long period not to have been?
Mr Brimstone: I cannot, no.
Mr Allister: Are you aware that the paper trail to the Committee indicates that, when the BBC asked the Department, under a freedom of information (FOI) request, for all emails from that date, there was no disclosure of that email and that there was an affirmation on the review that anything that was there had been provided? Are you aware of that?
Mr Brimstone: I am aware — sorry, I am not aware that that email was not disclosed, why it was not disclosed or —
Mr Allister: As late as 12 August 2013 — this is on page 279 of the pack.
Mr Brimstone: I am afraid that I do not have the pack.
Mr Allister: I am sure that you can be given it.
That appears to be the letter from the Department as a result of the review that was requested by the BBC on the discovery by FOI of, including other things, all email correspondence of 4 July and 5 July. In that letter, the Department confirmed that there is nothing left to give. Were you aware of that FOI exercise?
Mr Brimstone: I am sure that I was, but I have no involvement in the —
Mr Brimstone: Sorry. If I might clarify, I have no involvement in the discovery of information around FOIs. If that is what the Department said, I am sure that that is what it believed at that point.
Mr Allister: The significance of that point is that, according to Mrs Palmer, a month later, after the Department had affirmed that it had no such email, you were going mad looking for it. You see the point. If the record of the Department does not contain the email, you might well be going mad looking for it if you had been asked about it during the fact-finding investigation.
Mr Brimstone: Is there a question, Chair?
Mr Allister: The question is how it could be that the email was not within the DSD system. If it were not in the DSD system, it would not be there for you to look up. Therefore, you might well be going mad looking for it.
Mr Brimstone: I have already said how I would go about getting a copy of an email. It would not be a case of me looking up an internal system. It would most likely involve me going to the private office and asking it to go to the individual who had sent the email and for it to get me a copy.
Mr Allister: Presumably, the Department had done all that in pursuit of honourably dealing with the FOI request and went formally on the record to say that, effectively, there was no such email.
Mr Brimstone: That is a question that you need to put to the Department.
Mr Allister: You are more than familiar with the departmental processes. I am just painting the factual picture.
Mr Brimstone: I am not familiar with the processes that are used when an FOI request comes in.
Mr Allister: Except for these purposes, which are that we can put total trust in what the Department said to the BBC on 12 August. The effect of that is that we did not have an email from 5 July 2011 from Mr Sands to the chairman of the board of the Housing Executive.
In September 2011, there was a fact-finding exercise, and, when Mrs Palmer told the fact-finders about that email, you started to look for it. It was not in the system. Hence the credence to the suggestion that you were going mad looking for it.
Mr Brimstone: I can only assume that the first time that I became aware of the email was when the board minutes of the Housing Executive meeting became available and that point was made in those minutes. It was definitely nothing to do with any fact-finding exercise.
Mr Allister: Can you shed any light on why that email would not be in the system?
Mr Brimstone: I am afraid that I cannot.
Mr Allister: Do you know enough about the system to know that matters can be expunged, removed and edited — I think that we had some evidence about that during the first phase of the inquiry. Do you know about that?
Mr Allister: The mystery, Mr Brimstone — shed some light on it if you can — is that, when the Department came to provide information to the Committee, it provided the email that it had denied to the BBC existed. Do you have any explanation for that conundrum?
Mr Brimstone: I do not. The permanent secretary was before the Committee some weeks ago. You would need to put that question to him.
Mr Allister: If the factual situation was that, in August or September 2013, there was no trace of the email, it lends credence to the suggestion that someone might be going mad looking for it.
The Chairperson (Mr Maskey): Just because that is in your mind, Jim, it does not necessarily follow that it is anybody else's. I am just making that point for the record.
Mr Allister: I want to ask you one other thing. You had had a conversation with Jenny Palmer —
Mr Brimstone: May I say one thing? On the one hand, there is an implicit allegation that somehow I was involved in some sort of expungement of an email that I was not aware of —
Mr Brimstone: That is OK.
Mr Allister: I am saying that it was not there. Hence, if you had an interest in it and could not find it, you would be going mad looking for it. That is what I am suggesting. I am not suggesting that you had a hand in expunging it.
Mr Brimstone: Going mad looking for it when?
Mr Allister: In September 2013, after it was raised with you in the fact-finding investigation.
Mr Allister: You had the conversation with Jenny Palmer on the phone and had initiated it by going through Allan Ewart. In fact, it took place on his phone. Did you speak to Allan Ewart after about the conversation?
Mr Brimstone: I have no recollection of that.
Mr Allister: Remind us of what you said about when you spoke to the Minister about it.
Mr Brimstone: All that I said was that I assumed that it would have been that afternoon or shortly after the phone conversation.
Mr Allister: If you did not say anything untoward, why would you be apologising at all?
Mr Brimstone: I do not know, but I was brought up a certain way, Mr Allister. I do not know whether you were, but I was. If a woman — indeed, especially a female — appears to be broken on national television, or at all, and it appears that she is broken because of an action that I had supposedly taken, all that I can do is apologise. That is the case even though I did not believe that I had done anything wrong and had no recollection of having done anything wrong. I can only apologise for leaving her in that state.
Mr Allister: She is very clear about why and how you left her in that state. Was that what you were apologising for?
Mr Allister: The BBC allegations in the programme laid out matters pertaining to you. You then had your solicitor write to the BBC to threaten legal proceedings because of alleged untruthful, unfounded, defamatory allegations. How did those legal proceedings turn out?
Mr Brimstone: There was a response sent to the BBC. That was it.
Mr Brimstone: No, I did not.
Mr Allister: This is a programme that you tell us made unfounded and untruthful allegations about you by repeating what Jenny Palmer said, and you did nothing about it.
Mr Brimstone: That is correct.
Mr Wilson: I have a couple of questions. On the last point, we have heard contradictory evidence. Mrs Palmer said that you said certain things to her, and you say that you did not. Mrs Palmer said that Mr Sands said certain things to her, and he said he did not. Mr Palmer said that certain assurances were given to her by party officers but has not been able to produce any evidence of those assurances. Given that there is quite a lot of hearsay involved, would there be any point in pursuing legal proceedings?
Mr Brimstone: I operate under advice at all times.
Mr Wilson: The advice was that, given that there was hearsay on both sides, it would be difficult, just as the Committee would find it difficult, to establish what the facts of the issue were.
Mr Allister: With respect, it was not hearsay. One party who was there — Mrs Palmer — very expressively and explicitly said what was said, and Mr Brimstone took the view that that was defamatory of him but did nothing about it.
Mr Wilson: No. Mrs Palmer, it appears, had been quite happy to make allegations about conversations that she had with other people, who then denied that such conversations took place. She has a record for that, has she not?
The Chairperson (Mr Maskey): All those matters will be discussed by members but not in the presence of the witness or, indeed, any other witness.
Stephen, do you have any other remarks that you want to make before we conclude this session? You know the routine: the Committee may want to come back to you. It is open to you whether you want to come back. For the record, it has been the practice thus far when we get conflicting evidence to bring people back without judging the accuracy of any comments attributed to any of the witnesses. The Committee will return to that in due course.
Stephen, you seem to be happy enough to leave it for now. Thank you for being here.