Official Report: Minutes of Evidence
Committee for Social Development, meeting on Thursday, 15 January 2015
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): Just for the record, then, for Mr Brimstone, the Committee considered an application from the Department for a legal adviser to attend the evidence session with Mr Brimstone in an advisory capacity. The Committee informed the Department that it had rejected that request on the basis that a witness giving evidence voluntarily, whether under oath or affirmation or not, may refuse to answer any question, including answering questions that might expose him or her to civil, disciplinary or criminal proceedings. I just wanted to remind formally Mr Brimstone that that option of course remains open today.
Furthermore, I just want to further advise the Department that we did advise the Department in a letter on 18 December that it is the Committee's view that this is a matter upon which the witnesses, if they attend voluntarily, can, if they so choose, seek their own legal advice before attending the meeting and answer or decline to answer questions accordingly within their legal framework. It is the Committee's view that the witness has had ample time to seek such legal advice and prepare accordingly for today's evidence session.
I would just, then, just remind the Committee and advise the Committee formally that Mr Brimstone has, of course, agreed to give evidence today under affirmation, and, on that basis, Stephen, if you wish to come forward and, if you are satisfied with that outline that I have just provided and you are confirming that you are taking an affirmation, I ask the Clerk to bring you round a copy of that, which you will read into the record.
Mr Stephen Brimstone: I, Stephen Brimstone, do solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be truthful and honest and that I will give the Committee all such information and assistance as I can to enable it to discharge its responsibilities.
The Chairperson (Mr Maskey): Thank you, Stephen. As is customary in these situations, Stephen — you have been here on a number of occasions, and you're aware of the procedure. Is there any opening statement that you wish to make? I think you've received all of the kind of evidence and the paperwork that we're obliged to provide to you. OK, can I just remind members, then, you need to have the cover note on page 3 of the tabled items? Other material to this inquiry this morning are on page 37 of your main pack. OK — Mickey Brady.
Mr Brady: Good morning, Stephen. Thanks for coming. It was just to clarify a few issues that there appears to be some conflicting evidence around.
Mr Brady: Sorry, just to go back to the phone call, in evidence on 16 October, in answer to questions from Mr Allister, you were asked who decided that you would make contact with Jenny Palmer on 1 July 2011. That time, you said your:
"recollection of events at that time was that it had been discussed with the Minister as an appropriate next step. He wanted to ensure that the board was adequately informed of his position ... He felt it appropriate to make contact with Councillor Palmer."
Then, Mr Allister asked you:
"it was you and the Minister together, and no one else, who decided that Mrs Palmer would be contacted?"
You answered, "Yes." In an interview the day after the 'Spotlight' programme, the Minister was asked by Mark Carruthers:
"Did you know he was going to make that phone call?"
And Nelson McCausland answered, "No".
"Should you not have known he was going to make that phone call?"
And Mr McCausland added that that was a "bizarre and ludicrous question". So, basically, on the one hand, you gave us evidence to the effect that the Minister and yourself had discussed this, so he would have obviously been aware that Mrs Palmer was going to be contacted, but he then, subsequently — or previously, in terms of the programme — stated very clearly, his answer was a definitive "no". So, I am just wondering, can you give us some insight maybe into why that would have —
The Chairperson (Mr Maskey): Sorry, just for the record, it was 'The View' programme that interview was conducted about the 'Spotlight' programme.
Mr Brady: Yes, 'The View' programme, and it was the day after, I think, the 'Spotlight' programme.
Mr Brimstone: If I can recall right, the Minister, when he gave evidence to the Committee, had a different view, if that's right.
Mr Brady: So, he changed his recollection, presumably, then, on that.
Mr Brimstone: Well, when he gave his evidence, he had a different recollection.
Mr Brady: Although he was very definite on the programme. His answer was a definitive "no". He didn't elaborate. He didn't give any other detail. He simply said "no". It would assume you, as a special adviser, could not, off your own bat, have made that phone call.
Mr Brady: So, there would have had to be some discussion, presumably, between yourself and the Minister in relation to Mrs Palmer being contacted at all.
Mr Brimstone: Yes, and if I go back to my evidence on 16 October, on page 2, the bottom of page 2, I give the background to that.
"It was discussed and the Minister felt that it would be useful for me to contact Councillor Palmer to ensure that she was fully aware of his concerns ... I undertook to contact Councillor Palmer."
Very clearly, from that, it's your understanding that the Minister was very much aware that Councillor Palmer was going to be contacted, yet he stated definitively "no" about the phone call.
Mr Brimstone: I think the Minister, when he came to this Committee and he gave evidence to this Committee, was clear that he assumed that a conversation had been had about —
Mr Brady: Sorry, you can see that there was a conflict, if you take an overview of the evidence, that there is a conflict.
Mr Brimstone: I can't answer for a conflict in someone else's evidence, if that's there. Are you saying there's a conflict in my evidence?
Mr Brady: Well, there's a conflict in the round in the evidence, because, on the one hand, you're saying that the Minister knew about the conversation. The Minister said that he didn't.
Mr Brimstone: At the Committee or on the programme?
Mr Brimstone: But at the Committee what did he say?
Mr Brady: Well, obviously, his evidence to the Committee was different from the evidence or the answer that he gave to the programme. So, again, there's conflict.
Mr Brimstone: But the conflict is with the former Minister's evidence, potentially, if —
Mr Brady: Well, that's what, you know, I'm really asking the question to try and discover the nature of the conflict and the reason, possibly, for the conflict.
Mr Brimstone: I can't answer to that, I'm afraid.
Mr Brady: Just, in moving on, in your evidence, again on 16 October, you had said that you had spoken to Councillor Palmer, obviously, about Red Sky, but you also said that you had asked about Leeway Maintain, so there are other issues in that conversation. But, in documents that we've received, some of which are redacted, it states very clearly that, and this is from Peter Robinson:
"Both were agreed that the only issue"
— and this is yourself and Minister Palmer, presumably. Yes, both.
"discussed during the conversation was the board's consideration of the contractor, Red Sky."
There's no mention of any other.
Mr Brimstone: In all of the drafts?
Mr Brady: Well, in four of them, certainly. Councillor Palmer did give evidence that the fifth draft was different from the previous four.
Mr Brimstone: Again, this is a party statement put together. I can't comment on that. The words were the words of the First Minister, potentially, in a draft statement.
Mr Brady: But you can see where I'm coming from, that surely the First Minister, not having been personally involved in the conversation, could only issue a statement based on the evidence that he received.
The Chairperson (Mr Maskey): We should — first of all, I just want to make it clear — there's two things. We can't determine what was in the mind of the First Minister or whether the First Minister was acting as a First Minister or a party leader. Our evidence to date was that this was a party discussion, that the apology, which was referred to in the documentation — the drafts that we've received, which, as Mickey Brady said, were redacted — that, in all the drafts that I've read, that there is a clear argument that there was one item for discussion during the telephone conversation. So, first of all, I just don't want people to try to be speculating on behalf of the First Minister: it's not our role to do that. But, secondly, and more importantly, I'm not aware, as the Chair of this inquiry, of any legal basis upon which he would say that, "That's internal party business, so I can't discuss that." I'm just advising you of that. There's no indication of any legal basis for that. You still have your legal rights as to whether or not you want to answer questions. I just want to remind you that it's not my understanding that you have any reliance, legally, on the issue that it's party business. So, you need to understand, when you're giving your evidence to the Committee, the Committee will draw its conclusions on the basis of the evidence that it hears in the round and in its totality, by omission or by inclusion. I just want to remind you of that formally. OK.
Mr Brady: But, I think that the point I was making, Chair, was that it would be a reasonable assumption that Mr Robinson would issue a statement based on evidence that was available to him. I presume that would've been the case in any statement that he would issue: that it would be based, particularly in relation to something like this, because it was a meeting, which involved yourself, I think, and Jenny Palmer. Jeffrey Donaldson was there, Gavin Robinson, I think, was taking notes. So, it would have been a situation where, having listened to the evidence, then Mr Robinson would have issued a statement based on that evidence.
Mr Brimstone: And I can only imagine that's why there are a number of drafts, as that was further clarified.
Mr Brimstone: But the fifth draft does not make mention of the fact there's only one issue mentioned. Is that right?
Mr Brady: Well, I suppose the question — That begs the question, then, "Why were there five drafts?". Not an unreasonable question in the circumstances.
The Chairperson (Mr Maskey): So, I mean, your — that's twice you've drawn, you've actually suggested that the draft changed, and I need to point out on the record that that's not true. Do you accept that?
Mr Brimstone: If I could have the drafts, that'd be useful, if that was possible.
Mr Brimstone: Yeah. Yesterday, they were emailed to me, but, if you had a hard copy, I'd appreciate it.
Mr Brimstone: Yes. Yesterday, when I got them.
The Chairperson (Mr Maskey): OK. So, you've said twice here that — you basically suggested there on two occasions this morning already that the drafts changed. I'm asking you now if you accept that that's not the case.
Mr Brimstone: And if you — again, this is a party draft release, and, if you look at that line, I mean, I can't tell you what the rest of that line says on the fifth, on the fifth draft:
"Both were agreed that the only issue discussed during the conversation was the board's consideration of their contract to Red Sky."
It doesn't show what follows on on the rest of that line.
The Chairperson (Mr Maskey): Sorry. But you can confirm what's in those — what is in it. Do you accept for the record that what is in it states clearly that there's one item for discussion.
Mr Campbell: Chairman, these were internal draft exchanges between a number of parties that, as yet, haven't reached a conclusion.
The Chairperson (Mr Maskey): I'm aware of that. I am aware of that, and I've advised Mr Brimstone that I am not aware of any legal basis upon which he can say that, "That's internal party business and therefore I can't discuss it." Having advised him of that, he's still within his rights not to answer any question. He's aware of that, but I can't accept people giving inaccurate evidence to the Committee either, as you would expect me not to do so. So, I'm simply, for the record, trying to have Mr Brimstone establish that what is in the document states very clearly —
Mr Campbell: But, Chairman, these are a series. These are a series of documents that have not reached a conclusion as yet.
The Chairperson (Mr Maskey): I'm only drawing attention, and I'm formally, for the record, making sure that people accept and understand that what's in all of those is exactly the same.
Mr Brimstone: You will accept, Chair, that that line in the fifth draft — I think it's the fifth draft, is it? We can't see — it's been redacted — the final part of the fifth line.
The Chairperson (Mr Maskey): But it's up to you. I mean, you're, on the one — You see, you're telling us that you don't want to discuss internal party business. Your opportunity to reject what is there in front of us or explain it, that's entirely down to you whether you want to take that option. It's up to you. I'm simply saying that there's no legal basis upon which you can stand behind the fact that it's party business, but you can answer or not answer as you decide.
Mr Brimstone: Yes, but I was going to answer the question around the document in front of me and how it was different from the previous drafts.
The Chairperson (Mr Maskey): Yeah. I'm just advising you of that because the Committee has to, as I've said to you earlier on, Stephen, the Committee has to deliberate on this in due course, and, if you're saying you can't discuss it, then, if I am reading that evidence, I have to read what I see in front of me.
Mr Brimstone: Yeah, and you can recognise — I know that part of that line has been redacted.
Mr Brimstone: Yeah, but you can see there is a final part.
The Chairperson (Mr Maskey): There's nothing which contradicts the wording in that series of drafts. That's the only point I'm making, and I'm not going to labour it any further. So, Mickey Brady, you were —
Mr Allister: So, what are your objections to the content of the 'Spotlight' programme?
Mr Brimstone: Is this a point of a conflicting evidence or clarity around conflicting evidence —
Mr Brimstone: — at a previous evidence session that I gave?
Mr Allister: A very straightforward question. What are your points of objection to the content of the 'Spotlight' programme? If you have any, tell us what they are.
Mr Brimstone: I'm sure I had. Whether I can give a definitive list to this Committee here today or not —
Mr Brimstone: I think, through my answers, I have given where I —
Mr Allister: You are now giving evidence under affirmation. I am asking you to tell us what your objections are to the content of the 'Spotlight' programme.
Mr Brimstone: And I am not in a position to give that today in its entirety. If I was aware of such a question was going to come, I would've prepared along those lines Under affirmation, I can't give a definitive
Mr Allister: Can you tell us anything you object to in the programme?
Mr Brimstone: Well, I think it's clear that I object to Councillor Palmer's recollection of the phone conversation.
Mr Allister: You telling her, "Party comes first", "Do what you're told", "This is what we require you to do" et cetera.
Mr Brimstone: Well, I think that was the main point regarding myself at this point.
Mr Brimstone: I'm not a legal adviser. I've no qualifications in that regard, so I can't answer that question.
Mr Allister: Well, you certainly threatened legal proceedings. Isn't that right?
Mr Brimstone: Potential proceedings, yes.
Mr Brimstone: No, I — if we go back to the previous evidence session that we had, I made that point clear.
Mr Allister: So, whatever your objections were to the content of the programme, they weren't such that it motivated you to initiate any legal proceedings. Is that fair?
Mr Brimstone: Well, I haven't initiated any legal proceedings.
Mr Allister: Yes. And is that because what Mrs Palmer was saying was true and you knew it to be true?
Mr Allister: Then why would a man sit back and let himself be lied about and do nothing about it?
Mr Brimstone: Well, I act under advice at all times. I have tried to give a defence at this Committee. I gave a defence to the 'Spotlight' programme. That is my defence.
Mr Allister: And your defence was such that you didn't have the confidence of launching into legal proceedings to challenge that which you say or seem to suggest is untrue.
Mr Brimstone: As I said before, I act under advice.
Mr Allister: I'm suggesting to you that there's a fairly clear indication of you knowing in your heart of hearts that what the lady said was true.
Mr Brimstone: No, I don't accept that.
Mr Allister: You are aware that she, on evidence under oath, continues to be very clear about the content of that phone call.
Mr Allister: And we now know that she told the same account not just to 'Spotlight' but to the DFP inquiry.
Mr Brimstone: So it appears, yes.
Mr Allister: Are you prepared to share what you told the DFP inquiry?
Mr Brimstone: No, I'm afraid — apologies to the Committee — it's a matter of personnel and a fact-finding exercise, and I'm not in a position to comment on that.
Mr Allister: The ultimate outcome might be a personnel matter, but I suggest to you the collection of facts is exactly that: a fact-finding matter touching wholly upon the facts that this Committee is seeking to get to the bottom of. But you don't wish to share that with us.
Mr Brimstone: I am not in a position to share details pertaining to the fact-finding exercise to this Committee.
Mr Allister: You are in a position if you wish. You don't wish: isn't that correct?
Mr Brimstone: I reiterate my previous answer, Chair. Apologies.
Mr Allister: Now, on this point that Mr Brady asked you about — about the Minister having told 'The View', first of all, that you didn't make the phone call at his behest and, then, that he didn't know you'd made the phone call — you knew the Minister had told 'The View' that.
Mr Allister: Yes. So, before the Minister came to give evidence to this Committee, knowing what you knew, what your evidence was going to be, did you have a discussion with the Minister: how are we going to handle the fact that you told 'The View' that it wasn't made at my behest — at his behest — and he didn't even know about it?
Mr Brimstone: I'm clear on my actions throughout all of this, and I've given that as best as I can. The Minister clearly felt that he had, in hindsight after the programme, been in part of the discussions before the phone call and was aware of it after it as well.
Mr Allister: Yes, but I was asking you had you any discussion with the Minister before you came to give evidence about how to handle this conflict.
Mr Brimstone: I can't recall any particular discussion regarding —
Mr Allister: "Any particular discussion": what does that mean?
Mr Brimstone: Chair, I don't know —
Mr Brimstone: That's not clear. I'm trying to answer as best I can. I don't recall any particular discussion.
Mr Allister: So, can you offer — you might well say, "Well, ask Mr McCausland", but have you any light to shed on how the Minister came to tell 'The View' one thing and this Committee another?
Mr Brimstone: No. That would be a matter for Mr McCausland.
Mr Allister: And you've had no discussions that would shed any light on that.
Mr Brimstone: As I previously answered, yes.
Mr Allister: You would agree they're entirely contradictory.
Mr Brimstone: That's a matter for this Committee.
Mr Allister: Now, in terms of the draft apologies that you were asked about and this salient point that in all of those we've seen, there is this unambiguous statement that both — that's you and Mrs Palmer —
"were agreed the only issue discussed during the conversation was the board's consideration of the contractor Red Sky."
Mr Brimstone: I'm not getting into matters relating to the internal party discussion.
Mr Brimstone: I'm not sure I have to answer that question, Chair. I've said —
Mr Campbell: But having said that he didn't want to, Chairman.
The Chairperson (Mr Maskey): Just a wee second. I mean, the witness, at all times, is within his rights not to answer any question, but that's not to suggest that he's not obliged to hear some questions, and he might decide to answer them whatever way he decides to do that.
Mr Wilson: He's not obliged to hear the same question six times, Chairman.
The Chairperson (Mr Maskey): And I will allow that on a number of occasions. I will not allow that to be overstated. I have done that repeatedly. I have stopped people asking the same question on a number of occasions, but I think it's fair that the questions are put. The witness is obliged to hear questions. He'll answer them whatever way he chooses, and the Committee will draw its conclusions on the basis of that.
Mr Allister: Mr Brimstone, do you remember, 20 minutes ago, taking an affirmation at the start of your evidence?
Mr Allister: Do you remember uttering the words as part of that affirmation:
"I will give the Committee all such information and assistance as I can"?
Mr Allister: And here we are, 20 minutes later, you're refusing to give the Committee information on this matter. How do you square that with your affirmation?
Mr Brimstone: I don't believe that I can share matters —
Mr Brimstone: — on an internal party matter.
Mr Allister: Why not? You can tell us; you're choosing not to tell us. Your affirmation was:
"I will give the Committee all such information and assistance as I can".
Mr Brimstone: And I don't believe I'm in a position to share internal party matters with this Committee.
Mr Wilson: He has made it quite clear, and you've pointed out he is entitled to decide if he is going to answer a particular question or he is not. Now, this bullying —
Sammy, just hold on a second. We're not going to allow this to degenerate. As I've said here before, I won't accept the kind of disruption we're likely to get here today. Hopefully, that will not happen and won't happen again. If it does happen, you know what the result will likely be, but that will not —
Mr Campbell: No, let us not go down that route. No, it will not go down that route, and, if it does, Chairman, go down this route, as I have said before, there will be very serious consequences —
Mr Campbell: — for the future investigation by this Committee into the inquiry.
Mr Campbell: No, it's not. It's not. This is the fifth time this witness has been before the Committee.
The Chairperson (Mr Maskey): Excuse me, gentlemen. Just hold on a second, Mr Campbell. You are subject, like the rest of us around this table, to the procedures which govern the conduct of this Committee —
The Chairperson (Mr Maskey): You will. So, therefore, I make it very clear: I want this to be conducted on a professional and orderly basis. If it's not and people want to disrupt it, we have the option ultimately to suspend. I will have no hesitation in doing that, but I want to make it also very clear that will not allow time for anybody to avoid dealing with questions. People may wish to not answer a question or they'll answer them in a way in which they are legally entitled to do, but they will still face the questions. That's what will happen. Whether we —
Mr Campbell: There should be no admission of failure by any Chair —
Mr Campbell: — by adjourning the discussions. That is an admission of failure.
Mr Campbell: Whether Mr Allister would like to prolong this even further —
If it continues, it will happen. Sorry, Fra.
The Chairperson (Mr Maskey): — at the moment till we get this back on track again. OK. So, I'm just making it very clear, if push comes to shove and there is further disruption, I will suspend the business of the Committee and the inquiry.
The Chairperson (Mr Maskey): And that consequence is a lack of public confidence in the conduct of members of this Committee and the failure of this inquiry to do its business in an expeditious time.
Mr Campbell: There will be a lack of confidence in your chairmanship ability.
The Chairperson (Mr Maskey): And I think they've decided already. Fra, please, no more, no further interventions.
I want to move back on to the evidence. I've said from day one I'm allowing members to pose a number of questions. If other members want to ask questions, indicate to me that they wish to do so, and I'll bring them in on a timely fashion. At this moment in time, Jim Allister has the floor. Jim. Just again, I'm reminding people that I will allow people to pose questions. Witnesses may decide not to answer a question, but they are obliged to hear the questions. I will allow a number of questions put on a number of occasions, but I'll not allow them to be made repeatedly when it's quite clear that the witness has made his position, but I'll remind the witness that the Committee will make its judgement on the basis of the evidence it hears from the witness and other witnesses, so, you know, this is your opportunity to clarify issues which clearly, in terms of the evidence presented to this Committee, are quite contradictory and quite starkly so. So, I'm allowing members to ask questions and will stop members asking a question repeatedly if it goes on for too long. Jim.
Mr Allister: Mr Brimstone, you've had five minutes, courtesy of that interruption, to reflect upon the affirmation you took that you would:
"give the Committee all such information and assistance"
as you can. Having had that opportunity to reflect, do you wish to help this Committee by telling us if that repeated declaration in the five drafts, that both were agreed the only issue discussed during the conversation was the board's consideration of the contractor Red Sky? Do you wish to take the opportunity to tell us if that's the truth?
Mr Brimstone: I am not prepared to answer internal party-related matters — questions relating to internal party-related matters
Mr Brimstone: I have answered the question, Chair.
Mr Allister: Mrs Palmer told us that the genesis of this attempted apology went through five drafts, which was mutually provided to you and to her. Is that correct?
Mr Brimstone: I am not prepared to answer questions relating to internal party matters.
Mr Allister: And that you had the opportunity on each of those occasions to amend and to change that which appeared in the respective drafts. Is that correct?
Mr Brimstone: Again, I refer to my previous answer.
Mr Allister: And that you significantly failed to take that opportunity to write out, to take out, the affirmation that both were agreed that the only issue discussed was the contractor Red Sky. Is that correct? Five times you failed to take it out.
Mr Brimstone: And I refer to my previous answer.
Mr Allister: And five times you failed to take it out, I suggest to you, because it is the truth. Is that right?
Mr Brimstone: Sorry, I refer to my previous answer.
Mr Allister: And that there wasn't discussion, such as you previously told us, about Leeway Maintain or anything else; it was about Red Sky.
Mr Brimstone: I've give my outline of the phone conversation in my evidence on 16 October, page 3. That is my recollection of the phone conversation, and I stand by that.
Mr Allister: If that was correct, why wouldn't you then take the fivefold opportunity to change the draft to put that in?
Mr Brimstone: I refer to my previous answer.
The Chairperson (Mr Maskey): — and I have already made a ruling on that. The witness can answer or not, and he has given his answers. The Committee will duly note the answers and take cognisance of the weight of the answers against the evidence presented.
Mr Campbell: And they'll note the questions as well, I hope.
Mr Allister: You say, Mr Brimstone, you said to Mr Brady that there are parts of this redacted; you don't know what's there. You have the original drafts that were sent to you, do you not?
Mr Brimstone: I am not prepared to comment on internal party matters.
Mr Allister: But you are prepared to suggest to this Committee, oh, mystery of mysteries, there's matters redacted. This Committee knows from evidence already given under oath that you, like Mrs Palmer, were sent these very documents in their unredacted form. So, you do know what has been redacted.
Mr Brimstone: I'm not prepared to answer questions related to internal party matters.
The Chairperson (Mr Maskey): I did suggest to you earlier on, Stephen, just for the record again, I did suggest to you earlier on, that when you did suggest, which is why I intervened, that when you did suggest, that, by way of redaction, that the assertion made by Mrs Palmer was actually inaccurate —
Mr Brimstone: I was just —
The Chairperson (Mr Maskey): — that is why I drew to your attention that, in all of the copies, the same assertions are in black and white. I'm just drawing that to your attention.
Mr Brimstone: I was just making the point, Chair, with regard to your assertion.
The Chairperson (Mr Maskey): The point I am making is you were straying into what I would suggest giving an explanation about the draft document. But, otherwise, from that one intervention, you've been saying you're not prepared to discuss it. I am just making that point.
Mr Brimstone: If I can clarify that, Chair. I'm just clarifying the point, Chair, that the line you referred to in the fifth version of this draft is clearly redacted, and we can't read what the remainder of that line says. That was the point I was making at the start.
The Chairperson (Mr Maskey): But you are not in a position to give an explanation to the inquiry to contradict the words that we have in front of us. That's all I'm saying to you. You need to understand that.
Mr Brimstone: Yes, the partial sentence that you have in front of you, yes.
The Chairperson (Mr Maskey): But what's there is there in front of us. There's nothing by way of what you have said to contradict that document.
Mr Brimstone: That's correct.
Mr Allister: And I am suggesting to you, you know full well what has been redacted. Some of them are your handiwork.
Mr Brimstone: Again, Chair, I'm not in a position to answer questions of an internal party matter.
Mr Campbell: I think hearing aids should be supplied, Chair.
Mr Allister: I think Mr Campbell only lets himself down with comments like that.
Mr Allister: There are a lot of people — this Committee knows it full well, dealing with people with great disabilities — afflicted with hearing loss and to have a trite comment made like that by Mr Campbell reflects very poorly on him.
Mr Campbell, I am speaking —
Mr Campbell, I am speaking from the position of the Chair. OK. No further interventions at this stage of the game. So, I am making it very clear that this is in public session. The general public will have made their mind up, or will make their mind up, on the conduct and behaviour of members, so I would advise members to remind themselves of that. There already has been a fair amount of public commentary around the nature of this inquiry on more than one occasion, and that is not something that I think does this Committee or any member around this table a service. So, let us stick to what our statutory obligations are in a responsible and professional manner. So, Jim.
Mr Allister: Mr Brimstone, do you — have you yet been able to remember where you were when you made the phone call to Mrs Palmer?
Mr Brimstone: No. I wasn't in a position to answer that question clearly on 13 November and I am not today. I cannot recall exactly where I was when I made the phone call.
Mr Brimstone: No. I assumed I was on my own but —
Mr Allister: Can you recall going back and discussing it with the Minister?
Mr Brimstone: Yes, that was the general course of events for such a phone call. Yes.
Mr Brimstone: It would likely have been shortly after the phone call, as I stated on 13 November; on page 6 of the evidence.
Mr Allister: Can you recall if the Minister was awaiting the outcome of that phone call?
Mr Brimstone: I am not sure that question was asked to me before —
Mr Allister: It may not, but I am asking it now. Do you recall if the Minister was awaiting for you to come back to him about the outcome of the phone call?
Mr Brimstone: No. I am assuming at some point he would have expected the phone call to have taken place and for him to be given a readout on the phone conversation.
Mr Brimstone: Not that I can recall, no.
Mr Allister: In terms of the email that was sent on 5 July, Mr Sands has been very emphatic to this Committee that that came about by you coming to his room at 7.30 on the morning of 5 July 2011 and asking him to send it. Your evidence previously has been, well — it has been somewhat varied between you cannot recall or that you didn't go to his room. In light of what Mr Sands has told us under oath or under affirmation, what do you now say about how it came about that that email was sent when it was sent?
Mr Brimstone: I go back to my earlier evidence, and still I cannot recall the precise conversation with Mr Sands. I still hold the view that I can only remember on one occasion being in the Lighthouse Building at that time of the morning, and it was not on that occasion.
Mr Allister: So, are you saying to us under affirmation that you did not go to his room that morning?
Mr Brimstone: No, that is not what I said; I said that I cannot recall a conversation with Mr Sands and I cannot recall any other occasion, except one, when I was in the Lighthouse Building at that time of the morning.
Mr Allister: Well, you are not suggesting to us, I take it, that Mr Sands, of his own volition, sent this email.
Mr Brimstone: I never suggested that.
Mr Allister: No. You are accepting, I take it, that the genesis of the email is an instruction or a request from you.
Mr Brimstone: Well, let us just read the email, just for clarity here. If you do not mind, Chair, I will read it onto the record. So, it is from Michael Sands, sent on 5 July at 7.40 am to a Maria McLaughlin, cc'd to Stewart Cuddy, the acting chief executive of the Housing Executive, and Jim Wilkinson, the director of housing in the Department for Social Development. It reads:
"Brian,
Minister's SPad thinks that six months is too long a time frame for continuation by the Red Sky Administrator. Our advice from CPD is 91 days (Ie under the EU limit) to complete the tender exercise once all paperwork is prepared so if we allowed to the end of the month for paperwork, say 1 month + 3 for the tender exercise = 4 months in total. Could the question re 4 months be put to BDO as below rather than 6?
Regards
Michael."
Mr Brimstone: My conversation with Mr Sands, looking at this email, was around the fact that I felt that six months was too long a time frame taking into consideration the CPD advice around the 91 days. I cannot see any instruction there at all.
Mr Allister: When I said "instruction", I used it in the context of the instruction to send the email.
Mr Brimstone: I do not believe — I do not know whether there was a — how I can give an instruction, I am unclear. There — I well could understand a conversation taking place, and I accept that a conversation took place that instigated this email, but whether that is an instruction or whether it is a follow on from the discussion —
Mr Allister: OK, let us take the word "instruction" out of it if you do not like that. Do you accept that this email was sent not by Mr Sands of his own volition but upon request from you?
Mr Brimstone: No. I do not think that we can read that into this email at all.
Mr Allister: Never mind what we can read into the email. Giving your evidence from your memory, was this email sent at your request?
Mr Brimstone: I can't answer that question. All I can say reading the email here is that it was clear that we had a discussion around the fact that I, as special adviser, felt that the six months time frame was too long, and that was clearly in around some discussion that had been had around the Central Procurement Directorate advice of 91 days.
Mr Allister: Are you suggesting to this Committee that Mr Sands, of his own volition, then decided at 7.30 in the morning, "Oh, I better email the Housing Executive and tell them the latest thinking, that I picked up from somewhere, of Mr Brimstone"?
Mr Brimstone: Well, no, he emailed the Housing Executive asking if a question could be put to the administrator —
Mr Brimstone: — of a reduction.
Mr Brimstone: You can read that into it. I don't read that into it.
Mr Allister: Well, that is very clear by the evidence to this Committee from Mr Sands: at your request, with you standing in his room.
Mr Brimstone: Well, I am reading the email. As I said, I can't recall the conversation three and a half —
Mr Allister: You take great refuge in not being able to recall things.
Mr Brimstone: It is three and a half years ago, Mr Allister.
Mr Allister: It is three and a half years ago about incidents which have been hardly out of your mind, I would suggest, in those three and a half years, given the notoriety that is attached to this matter.
Mr Brimstone: I've give my answer as best as I can.
Mr Allister: So what are we to conclude? You didn't know the email was going? You did know the email was going? What are we to conclude on that?
Mr Brimstone: I think it is safe to conclude that I would have been aware that the Housing Executive would be asked —
Mr Brimstone: Well, further of my request or following a discussion and mutual understanding or a mutual agreement, this was the appropriate way forward that the Housing Executive would be asked if, based on the CPD advice, it would be more appropriate to look for four months as opposed to six months.
Mr Allister: So, are you or are you not accepting that that email went at your request?
Mr Brimstone: No, I can't, on the basis of that email, accept that.
Mr Allister: So, does that drive us to conclude it went from Mr Sands at his own volition?
Mr Brimstone: No, people can have a conversation —
Mr Brimstone: The middle ground is that people can have a conversation, and it may not have been just Mr Sands and myself. I can't answer that question. People can have a conversation and the outcome of that conversation, which may well have been instigated — the conversation may well have been instigated by myself. The outcome of that is an agreed way forward.
Mr Allister: So, you are leaving the Committee in limbo with the very clear, affirmed evidence of Mr Sands that it is a request from you standing in his room to send this email — and the very email cites you — that evidence; and you, as so often, saying, "I can't really recall".
Mr Brimstone: So, if we look at the first line, Mr Allister, it cites myself.
Mr Brimstone: OK. The second line starts with the word "Our"; OK. Not the SpAd's advice; it is "Our advice". Now, I put the question to you as who do you think the "Our" includes?
Mr Allister: Well, I think, Mr Brimstone, since you are the Minister's adviser and this, I assume, is the product — and I will come back to that — of discussion with the Minister, because I think you told us you wouldn't have done this on your own, that the "Our" referred to is either the Department or the Minister or both.
Mr Brimstone: And who is the email from?
Mr Brimstone: Who is saying "Our advice".
Mr Brimstone: Yes. Thank you.
Mr Allister: And isn't that because you didn't require — or did you require? — this email to go without the knowledge of the Minister?
Mr Brimstone: How are you reading that into —
Mr Allister: Well, I'm asking you. Was the Minister aware that this email was going to be sent —
Mr Brimstone: I would imagine —
Mr Allister: — at 7.30 in the morning? He may not have known the time, but it was going to be sent to the Housing Executive board.
Mr Brimstone: Well, the Minister may not have known a particular email was going to be sent. The Minister, I would have assumed, would have been aware that the Housing Executive would have been asked was four months a more appropriate time frame, based on the CPD advice as opposed to the six months, as had been in his original letter.
Mr Allister: And he would have known that on foot of your discussions with the Minister and giving advice to the Minister as to the fact well maybe six months, which you had asked for, having previously asked for six weeks, maybe, in fact, the right figure is four months. You must have had that discussion at some point with the Minister.
Mr Brimstone: I am sure that it was more than just myself. I am sure —
Mr Brimstone: — officials were involved in that discussion as well.
Mr Allister: Yes. Yes. And, on foot of that, an email is then sent to the Housing Executive.
Mr Brimstone: Yeah. My opinion, yes.
Mr Allister: And I want to suggest to you: all that points very emphatically, in accordance with Mr Sands's evidence, to you issuing the request that it go with the knowledge of the Minister, I assume.
Mr Brimstone: That the particular email goes or that a request is made.
Mr Allister: That request be conveyed before the board meets.
Mr Brimstone: Yeah, I'm assuming the Minister would've been aware that a request was going to be put to the Housing Executive or to the administrator.
Mr Allister: And you were the messenger to send that email to Mr Sands. To send that email.
Mr Brimstone: I don't accept, because I can't recall where I was when this conversation took place, nor can I recall who else was in the room when the conversation took place that instigated this email.
Mr Allister: This email, of course, raised its head again. Isn't that right?
Mr Brimstone: Yes, in the board minutes of July 2011.
Mr Allister: Yes. Yes. And, more than that, when Mrs Palmer gave evidence to the DFP fact-finding investigation, she made very express reference to the existence of this email. Isn't that right?
Mr Brimstone: I have a recollection it came up, yes, from the evidence I seen earlier on in the week, yes.
Mr Allister: Yes. And that would have been put to you as part of the fact-finding exercise. What did you say about that?
Mr Brimstone: I think I've been clear to the Committee around any answers to questions relating to the fact-finding exercise. And, again, I state, Chair, I am, unfortunately, not in a position to answer such questions.
Mr Allister: You're refusing to answer that question as well, despite your affirmation.
Mr Brimstone: I am not in a position to answer questions relating —
Mr Allister: So, you are happy to leave the Committee in the position that the only evidence we have on that is from Mrs Palmer.
Mr Brimstone: Evidence relating to what?
Mr Allister: The fact that that was raised in the fact-finding inquiry, the issue of that email. You are not confirming or denying whether it was raised with you.
Mr Allister: I'm suggesting to you, if it was a proper fact-finding inquiry, that having been an allegation of Mrs Palmer, it inevitably was raised with you.
Mr Brimstone: And what's the allegation?
Mr Allister: That you were involved in the sending of an email on the morning of the board meeting on 5 July, giving instructions.
Mr Brimstone: Where is the instruction in the email?
Mr Allister: Yes, you want to quibble again over that. That you were involved in the sending —
Mr Brimstone: No, no, no —
Mr Brimstone: No. I'm quibbling the fact of where is the instruction.
Mr Brimstone: Could you point it out to me, Mr Allister?
Mr Allister: Conveying to the board on your — at your request that they wanted the board to consider an adjustment to what they'd previously been asked for in correspondence.
Mr Brimstone: So, where is the instruction?
Mr Allister: Well, obviously, the request, rather than instruction.
Mr Brimstone: I'm — you argued that I was instructing the Housing Executive to do something, so where is the instruction in that email?
Mr Allister: Well, I think the import is that you're asking the Housing Executive to consider an alternative approach, including this four-month extension. Now, if you quibble with that being an instruction, so be it. I'll accept if you wish that that is not an instruction.
The issue is the sending of the email and how the email came to be sent, and, in the fact-finding inquiry, it had been drawn to the attention of the fact-finders that it had been sent. Mrs Palmer drew it to their attention. I am suggesting that, inevitably, then, you were asked about it in the fact-finding inquiry. Were you not?
Mr Brimstone: I have said that I'm not prepared to answer —
Mr Brimstone: — any questions relating to the fact-finding exercise.
Mr Allister: And then, with that knowledge that somewhere out there there was this email, you then set about looking for it. Is that not correct?
Mr Brimstone: Well, I first became aware of the email over a year — two years — before the fact-finding exercise. So I first became aware of the email in July if not August of 2011, not 2012 or 2013 — 2011.
Mr Allister: See, I want to suggest to you that, from the fact-finding exercise, you discovered about the email and then wanted to see this email. In the words of what Mrs Palmer says Michael Sands said to her, you were going mad looking for it.
Mr Brimstone: What's Michael Sands's evidence relating to those words?
Mr Brimstone: Some dispute.
Mr Allister: But let's be very clear — let's be very clear — the initial explanation by you and Mr Sands was "Why would I be going mad looking for it? Sure it's on the system". And now we know it's not on the system.
Mr Wilson: Chairman, see before we go on from this —
Mr Wilson: Would you make it quite clear to anybody who's asking questions that they cannot, should not and must not, in order to try and twist questions, misrepresent? Mr Sands did not have some dispute or some query of this: Mr Sands denied — full stop, outright, unequivocally — that what Mrs Palmer said was not true. In fact, it was a lie.
Mr Wilson: He made that quite clear, so don't let Mr Sands's words be misrepresented in any question.
Mr Wilson: Mrs Palmer, as far as he was concerned, lied on this issue.
The Chairperson (Mr Maskey): That's OK. That was in respect of another particular piece of evidence provided by Mrs Palmer, so nobody should be misrepresenting or misrepresenting ourselves in the questions that we pose as well. So Jim, I'm going to let you finish that question and move on to another member. I want to just tease out a couple of — I will come back to you again.
Mr Allister: OK, sure. So, contrary to earlier evidence that this email would have been in the system and, therefore, no one would need to be going mad looking for it, do you now accept that, at that material time, it was not in the system?
Mr Brimstone: Which system?
Mr Allister: Which system do you think I might be referring to?
Mr Brimstone: There's the email system, there's the TRIM system, there's a knowledge network system. With relation to the FOI, which I'm assuming you're getting around to, they searched the TRIM system for the particular email. That email would have been available from Mr Sands at any time from his sent items in his own personal email.
Mr Brimstone: Well, anybody — I'm sure in your own inbox —
Mr Brimstone: Well, I'm assuming you have sent items —
Mr Brimstone: Well, no. I'm assuming —
Mr Allister: Which couldn't be found for FOI and then suddenly, in April of last year, was found for this Committee. Is that where it was found?
Mr Brimstone: I would argue that the email — I was aware of the email in July if not August of 2011.
Mr Allister: Yes, but Mr Sands told us he didn't know how the email was found. Are you suggesting it was found in his sent box?
Mr Brimstone: I can only assume. It wasn't in the TRIM system. I think that was the evidence that was given.
Mr Allister: It wasn't in any system that was searched for those two years.
Mr Brimstone: I'm not involved in that, so I don't know the process. But what I'm saying is the email was clearly there, because the email was able to be pulled out here.
Mr Allister: No, sorry, with respect, the email was not clearly there, because what this Committee has been told is that a hard copy was eventually found, not that it was found on a system, unless you're suggesting to us that the Department has misled us on how this email was found.
Mr Brimstone: Well, no, I'm not —
The Chairperson (Mr Maskey): For the record — just for the record — we were advised that the email was deleted after 90 days, or it would have been deleted after 90 days, but there was subsequently a hard copy. But in your evidence there, you're just saying you were aware of the email or seen the email some time before that, so —
Mr Brimstone: In the month after it was sent.
Mr Allister: Where did you see it the month after it was sent?
Mr Brimstone: Well, I'm assuming, after reading the minutes of the board minute — the board minute of the Housing Executive, where this email was referred to —
Mr Brimstone: — that I may have asked — and I don't recall ever doing this, by the way — but I may have asked to have seen it. It would have followed on naturally —
Mr Brimstone: Because the chairman had made an accusation about an instruction given by the political adviser — I think was how he referred to me — in the board minutes.
Mr Brimstone: Well, the board minutes are available in the Department.
Mr Allister: No. Did you get a copy of the email at that point?
Mr Brimstone: I can't recall if I actually — whether it was a hard copy or an electronic copy or whatever — but —
Mr Allister: Was it your hard copy that was eventually found and handed over to this Committee, Mr Brimstone?
Mr Brimstone: No, it wasn't.
Mr Allister: It having been expunged from the record. Is that the case?
Mr Brimstone: No, it's not, and I think you know that fine well.
Mr Brimstone: I think you do.
Mr Allister: How would I? All this Committee knows is it wasn't on the records in email form, and suddenly, mysteriously, a hard copy is whipped out and produced. Was that your hard copy?
Mr Brimstone: No, it wasn't.
Mr Brimstone: I don't know. You can ask the Department whose hard copy it was, but it wasn't mine.
Mr Allister: But you would have us believe that you saw this email on the system a month after it was sent.
Mr Brimstone: Whether it was on the system or whether it was a hard copy or what, but I would've been —
Mr Allister: Oh, so you want to change your evidence on that.
Mr Brimstone: No, I don't think so.
Mr Brimstone: Well, I said at the start that it may well have been a hard copy.
Mr Allister: No, no. You were talking about it on the system and I said, "Did you get it printed out to make it a hard copy?".
Mr Brimstone: No, I don't think —
Mr Allister: And you said, "I can't recall". So the discussion was very much on the basis of it being within the system.
Mr Brimstone: Well, we'll have to wait till Hansard comes out.
Mr Wilson: I think Hansard will show that that question wasn't asked.
The Chairperson (Mr Maskey): OK, well, I mean, I'm going to refer to Hansard in a moment or two, because I'm going to draw attention to some remarks made a few minutes ago. So, Jim, I'm going to move on.
The Chairperson (Mr Maskey): Before I bring in Dolores, I want to just, Stephen, to tease out a couple of points there, because, in your evidence in respect of the email sent by Michael Sands — he was very clear in his evidence to the Committee that in no way would he have issued that email on his own volition — that the email was issued by himself following a conversation with you in his office at 7.30-ish in the morning. In your presentation of that, you're saying, in the first instance, you don't recall being in the office. There was certainly no instruction by yourself to Mr Sands to issue the email. I'm drawing to your attention a couple of things here. Michael Sands is adamant that there's no way would he have sent that unless he'd been advised or directed —
Mr Brimstone: And I'm not arguing that.
The Chairperson (Mr Maskey): Well, I'm just making a point, because I think, if you look back on your remarks around that, I would suggest — I mean, if I was not aware of other things that I read here, it would almost appear to be a neutral intervention by yourself, so —
Mr Brimstone: Well, no, I don't — Sorry, if that's the case, then that's incorrect, and it's my failure if that is the case. I mean, clearly, there was a conversation that was had. Clearly, I had a view that this potentially — Six months was too long. There clearly had been some discussion around the fact that CPD had given advice around the 91 days, and this is where this email eventually came out of, but it was after a discussion. Where that discussion took place, at what time, even on what day, I can't answer.
The Chairperson (Mr Maskey): But — And that's fair enough. Thank you for that. And further to that, in terms of who was the "our", I would draw your attention to the evidence presented to the inquiry by Will Haire, who, in his evidence, said that the key point for him is that, quotation:
"I did not understand why the request had gone in in the process".
— that is the request around the four months And then I would draw to your attention evidence from Michael Jennings, the administrator — on behalf of the administrator — who had said that you had made a phone call to them looking for, essentially, a comfort letter. That would be in —
Mr Brimstone: What — could you just read the words that Michael Jennings actually used?
The Chairperson (Mr Maskey): I'll get that in a second. Because what I'm actually suggesting to yourself, Stephen, is that there was a lot more proactivity on your behalf than what may have been suggested by your evidence earlier on.
Mr Brimstone: In relation to this email.
Mr Brimstone: But the email and Michael Jennings are two separate issues.
The Chairperson (Mr Maskey): Because, remember, we're — It might be two separate issues, but it's on 28 June, which is just a number of days in advance of the email. So I'm making the point that the evidence that we would have received would show that there wasn't the casual — but in a way you've partly addressed that a moment ago. I'm saying is that, if I was not aware of all of this, listening to you earlier on, it would almost have come across as it was a neutral intervention.
The Chairperson (Mr Maskey): But you've made it clear it's not. So you did instigate the discussion which resulted in an email to the Housing Executive.
Mr Brimstone: But if it was just with him, I can't be certain. But, clearly, I had a view, and he was articulating that view. And, on the back of that view, CPD, whether on the back of that view or on the back of my query, CPD advice had been sought — I don't know. But, clearly, CPD advice was sought and provided.
Mr Brimstone: Without that conversation — Who all was in that conversation, I don't know, but without that conversation, I accept Michael likely wouldn't have issued that email.
Mr Brimstone: Chair, you can accept if I can't recall the conversation, I can't recall the conversation. And that's not arguing against Michael, but if I can't recall the conversation, I can't come to this Committee and say —
The Chairperson (Mr Maskey): But again, I'm just reminding you that, you know, whenever I have to come to looking at any — Like every other member around this table, I have to come to assess evidence, I have to give due weight to what somebody tells me very clearly and what somebody else doesn't contradict by way of saying they can't recall. So I'm reminding you repeatedly that that's the upshot of this. Dolores.
Mrs D Kelly: Thanks, Chair. It is just a couple of points of clarification. On more than one instance, Mr Brimstone, you've relied upon "internal party matter" and, therefore, are unable to answer some of the questions that were put to you. Can I ask: are you under instruction from anyone else within your party to give that, or is this something you have taken upon yourself as an interpretation of how you should respond to the inquiry's questions?
Mr Brimstone: I can't comment on any internal party matter.
Mrs D Kelly: So you're not even going to tell me whether you've been instructed to do this or not.
Mr Brimstone: Well, in my view, that'd be commenting on an internal party matter.
Mrs D Kelly: OK. Thank you.
And then the other one, in terms of the latter bit, in essence, in relation to the alleged meeting at 7.30 am between yourself and Mr Sands in his office, you're really saying that you're neither confirming nor denying, that simply you have no recollection.
Mr Brimstone: It's more than that actually, Dolores. What I said in the previous evidence was I genuinely can recall only one instance when I was in the office at that time of the morning. I don't live in Belfast. So for me to be in the office at 7.30 am or before that, as I'm assuming it would've taken Michael some time to write up the email, short and all as it is, but it just likely didn't happen — I can only recall one instance when I was in the office between 7.00 am and 7.20 am or 7.30 am, and that's one instance separate to this.
Mrs D Kelly: So, therefore, a 7.30 am meeting, it was and is a rare occasion, and I think it would be safe to assume that, if there was such a meeting at 7.30 am, people would remember why they were there.
Mr Brimstone: Well, I know Michael is in early in the morning. I mean, there's some people in the office who are in early, but that's the way they choose to work. I mean, I don't think he said it was a meeting that took place. There was a — He says it was a conversation. But I'm just giving you my best recollection. I cannot recall any other instance other than the one that I gave at the last evidence session when I was in at that time of the morning.
Mrs D Kelly: OK. Can I then ask: given that, in previous testimony to the Committee as part of the overall inquiry, the Minister has changed some of the evidence, really about whether or not he had asked you to phone Jenny Palmer. You know that — So, what I'm trying to ask now is: if you had the conversation with Mr Sands to issue that email — and you have already said in previous evidence that you had no powers to instruct a civil servant — were you then acting, or would you have been acting only on behalf of the Minister with his full support and, indeed, his instruction to do so?
Mr Brimstone: Quite often, in my role as special adviser within a Department, it's seeking information, and I don't go to the Minister every time I seek information. Part of the role is delving for information and asking questions, and that can be directed to an individual or having a discussion with officials and, on the back of that, further questions are asked. So I don't know if that answers your question or not, but I mean —
Mrs D Kelly: So sometimes you would be acting of your own volition.
Mr Brimstone: Seeking information, yes.
Mrs D Kelly: Yes. But given that the board of the Housing Executive had some concerns at the proposed extension of the contract, maybe outside current legal processes, would you have had any conversation with anyone as to whether or not the request and the content of the email was outside of legal processes, and had you sought any legal advice in relation to this particular methodology in relation to the Red Sky contract?
Mr Brimstone: So was the Housing — and I'm just putting this back because I need to get clarification — was the Housing Executive's concern around potential legal issues around the content of that email or about wider issues?
Mrs D Kelly: Probably both. But, I mean, that's up to the Housing Executive.
Mr Brimstone: Yes, but I'm just reading —
Mrs D Kelly: In this particular instance, I think it is the current legal process, that this request or instruction contained within the email was actually outside of a legal process.
Mr Brimstone: So if we again go back to the email itself. And I'm looking for the — The only request there is — and it's not even a request; it's asking could the question be put to the administrator about four months as opposed to six months.
Mr Brimstone: That may well have been an answer back from the Housing Executive saying, "No, that question can't be put", so I'm unsure as to how it's a breach of any legal —
Mrs D Kelly: Well, the Housing Executive obviously had concerns that there'd be any legal process. So before any instruction was given or requests made to send this email, was there any legal advice sought by you or the Minister as to whether or not the proposed course of action was legal?
Mr Brimstone: Just — you can see there — the advice from the Central Procurement Directorate, who deal with all that sort of thing for the Civil Service, had been around the 91 days.
Mrs D Kelly: But would you have sought personally any legal advice or advice from the central procurement unit in relation to this course of action?
Mr Brimstone: The Department would've done that.
Mr Brimstone: No. Well, in reading that email, it was our advice, so it was from Michael, so it must've —
Mr Brimstone: — been the Department.
The Chairperson (Mr Maskey): Well, sorry, but again, Stephen, for the record, I mean, the issue that Will Haire, in his evidence, made it clear that he was — I'll get the right wording. I mean, I'll just quote to you Will Haire just saying:
"Sorry. At some time, I heard about the issue"
"whether it was that day or after the board met. I do not know when I heard it. I do not think that I was there at 7.30 am."
— this is Will Haire saying he wasn't at the meeting —
"However, the key point for me is that I did not understand why this request"
— that we've just referred to again —
"had gone in in the process, but the key issue was the letter from the Minister. As I say, you would need to ask"
— and then it stopped at that point. So it was quite clear that Will Haire, in his evidence, said it wasn't — It would not have been the Department which made that request to extend the time for any number of months.
Mr Brimstone: No, I'm talking about the advice from CPD. And —
Mr Brimstone: — Dolores had asked me about —
Mr Brimstone: Yes, but the "our" —
The Chairperson (Mr Maskey): What I'm saying is the permanent secretary's making it clear in his evidence that it wouldn't have been the Department. It's just —
Mr Brimstone: But the "our" isn't relating to the request to ask the question; the "our" is relating to the advice from CPD around a technical matter of procurement.
The Chairperson (Mr Maskey): But you've just said, in an answer to Dolores there, and you said earlier on there, that the "our" would've been perhaps the Department.
Mr Brimstone: Yes, in relation to —
Mr Brimstone: — the CPD advice.
Mr Brimstone: In relation to the CPD advice.
Mrs D Kelly: Because that then would suggest that the Department — I mean, Will Haire's suggesting that the Department knew nothing about the email and therefore who would would've sought the advice from CPD. So maybe nobody sought the advice —
The Chairperson (Mr Maskey): Will Haire's argument was that the Minister had made a request on six months, and this new request went in for four months. And I'm making the point that — And you read the evidence, and Will Haire's making it clear that the Department did not initiate the email to — which was sent by Michael Sands.
Mr Brimstone: But I've never argued that.
Mr Brimstone: No, no. I argued the point that the advice — our advice from CPD — is departmental advice from CPD.
The Chairperson (Mr Maskey): Well, OK. Well, sure, we'll reflect on that, but I'm drawing attention to what's the evidence presented by the permanent secretary.
Mr Brimstone: And I think actually my written statement on 16 October — point 7 — makes reference to that as well.
Mrs D Kelly: Could — sorry, then, could I ask, then — Obviously, there is conflicting evidence being given by Councillor Palmer and Michael Sands in relation to the email and the — I just wondered, in relation to any ongoing conversations you'd had with Mr Sands either at the time or subsequent, say even in September 2013, did you have any conversations with Mr Sands in relation to the email outside of the requests by the FOI from the BBC?
Mr Brimstone: No. I don't believe I did, no.
Mrs D Kelly: No. And the — How can you explain the different evidence and different understanding by Mr Sands, yourself and, indeed, the ultimate recipients of the Housing Executive in relation to the authority and the sender of the email?
Mr Brimstone: Correct me if I'm wrong here, but I believe the only difference between myself and Mr Sands is around a time and location of a conversation, and it's more he's adamant it happened at a certain time, and I've no recollection. And I go further than that: I don't think I was in the Department at that time because I don't believe I was ever in the Department, except for one other occasion, at that time. So that's the only difference between myself and Mr Sands —
Mr Brimstone: — with the email. But I can't understand — and it's a question you need to put to the Housing Executive — I can't understand their interpretation of the email or the chairman's interpretation of the email.
Mrs D Kelly: Because you had no concerns that what you were requesting them to do fell outside of any legal process.
Mr Brimstone: Well, I wasn't even requesting them to do anything. I was — The question that was coming in Mr Sands's email was:
— this is to the Housing Executive —
" — re 4 months be put to BDO as below rather than 6?"
So that would've been perfectly within the Housing Executive's rights to come back and say, "No, the question couldn't be put".
Mrs D Kelly: And you would've accepted that, or the Minister would've accepted that.
Mr Brimstone: I'm — I can't answer that question because it's hypothetical.
Mrs D Kelly: Just finally, Chair, the telephone call to Michael Jennings, can you shed any light on in relation to the letter of comfort? Who instructed you or asked you to make that call to Michael Jennings, and what would your expectations of a letter of comfort look like or contain?
Mr Brimstone: And again, I haven't got —
Mr Brimstone: Mr Jennings. Yes, sorry. Thank you.
Mr Brimstone: I don't have his — But from what I can recall of his —
The Chairperson (Mr Maskey): We'll give you — We'll get you the reference to that now. Just hold on till you get the reference in front of you.
Mr Brimstone: Yes. In all of this, it would've been key, so the Minister was seeking a certain course of events — sorry, can I just — one second, if that's all right. The Minister was looking to extend the Red Sky contact beyond the time period of which the Housing Executive were wanting to terminate it to allow a piece of work to be conducted. But in all of that, Red Sky would be now under administration, the administrators being BDO. In all of that, none of this would've been possible if — And I can't recall the conversation with Mr Jennings, but I'm assuming that the conversation with Mr Jennings was to ascertain, if necessary, could a letter of comfort be issued to meet the terms of the company NIHE contracts up to 14 July 2011, because if they weren't in a position to be able to issue a letter of comfort to say, "As administrators, we are not able to run this company up until this date", then what the Minister was seeking just wasn't going be doable.
Mrs D Kelly: And on whose behalf did you make the phone call?
Mr Brimstone: Listen, I — I can't recall. It may have been off my own bat. I can't recall. I mean, he wasn't actually asked to do anything; he was asked if something was possible.
Mrs D Kelly: But the letter of comfort would've assisted the Minister in terms of the time frame.
Mr Brimstone: He was asked — going on his evidence here — whether the administrators would be able to issue a letter of comfort, not to issue a letter of comfort; it was more a clarification of would they be in a position. There may have been some conversation with the Housing Executive saying, "We would require a letter of comfort from the administrator if this was going to happen". I can't recall that; I'm just trying to be as —
Mrs D Kelly: And what would you have liked to have seen as the outcome of this letter of comfort? What would it have meant in relation to the resolution of the difference of opinion between the Housing Executive board and the Minister?
Mr Brimstone: And this is not related in any way to this email.
Mr Brimstone: OK. So, in essence, this would've been to clarify whether the administrator were able to provide comfort to the Housing Executive that, if the Housing Executive were going to extend the contract up until 14 July, because there must've been some query as to whether they were even able to do it up until 14 July, whether the administrator was in the position to run the company up until that date. Otherwise, it would've been a fruitless exercise looking to keep a contract going to 14 July if the company weren't in the position or the administrator weren't in the position to keep the company operational.
The Chairperson (Mr Maskey): OK. Before we move on to Gregory, Stephen, would you — I mean, would you accept that this is all in the context of very clear advice and arguments, from the Housing Executive in particular but also officials, that people were straying into contractual matters — legal and contractual matters — which were outwith anyone else's responsibility with the exception of the Housing Executive? Do you accept that, because there was a flurry of activity?
These — I mean, the point I tried to make earlier on, whether it's a conversation with Michael Jennings, whether it's an email, whether it's other discussion around that period, there was a flurry of activity in and around that period when it was being made very clear from officials that they wanted to be allowed to deal with that in a contractual manner within the law, which would have been a matter for the Housing Executive.
Mr Brimstone: I am trying to find —
Mr Brimstone: Yes. I am trying to find — there was a — I do not have it to hand at the moment. If you go to the briefing of the meeting that was had between yourself and the Minister, I think it was early July 2011, that briefing from officials to the Minister clearly outlines the rationale and the reasoning and their views on all of this, and I do not have it to hand, unfortunately, Chair. I had it, but I can't put my hand on it now.
What I'm getting at, I think this clearly points that the Minister wasn't acting beyond his remit at all.
Mr Brimstone: Yeah. The lines to take at annex A of that.
Mr Campbell: Thanks. Mr Brimstone, there is obviously a very significant concentration today on the email trail, but maybe just to try and bring us back to the, and I would argue, very relevant issue of the overall context here. The programme appeared to infer that there was some sort of relationship between Red Sky and either the Minister or there was some form of discussions, debate, secret meetings going on with Red Sky. Had you any meetings or discussions with directors of Red Sky prior to the events that were contained in the programme?
Mr Brimstone: No, and the only meeting that I had had or was involved with that had the former directors of Red Sky was the meeting that the Minister had with his officials with the east Belfast DUP MLAs. That was the only meeting I had with anyone relating to Red Sky.
Mr Campbell: Right. Because, at the time there was the meeting that you've alluded to, which was with DUP MLAs for East Belfast, there was a letter from the Alliance MP for East Belfast, and the common thread there appeared to be the concern for jobs —
Mr Campbell: — as well as the contractual work that Red Sky was carrying out in the area.
Mr Campbell: To your knowledge, did anybody make any accusation of unsavoury approaches or dealings between either you or someone on your behalf in Red Sky?
Mr Brimstone: No. The only — I remember the Chairman of the Committee at one point raising an issue around that, the start of July, that he was uncomfortable with the way this was perceived to be working out. That's the only — Obviously, there was the furore of all the street protests and the blockades and that sort of thing around city hall and Executive meetings up here by the Red Sky employees, but —
Mr Campbell: But you see, the nub of this, Mr Brimstone, is that, for a long time now, there has been this sort of inference and insinuation that there is more to this than meets the eye. I've said in this Committee before, and I'll say it again today, nobody seems to be prepared to indicate what that might be. Now, you're saying you've had no approach, we haven't heard from anybody else about any approach, other than what has been stated in the meeting between DUP MLAs and in the letter by the Alliance MP for the area. You've said there's nothing in terms of what you've done. Well, how many times have you been before this Committee now, Mr Brimstone?
Mr Brimstone: This is my fifth.
Mr Campbell: Now, it's just there was some reference publicly to your non-appearance. I think it was last week.
Mr Brimstone: I wasn't available; it was unfortunate, but I just wasn't. I apologise to the Committee for that.
Mr Campbell: Yes. Yes. I think you sent that apology in, didn't you?
Mr Brimstone: Yeah, on the Monday of that week, yeah.
Mr Campbell: Yeah. Are you aware of a tweet by a member of this Committee about your absence last week?
Mr Brimstone: Someone made me aware of that tweet, yes.
Mr Brimstone: Reference to on-the-runs and making some jocular reference to on-the-runs.
"OTR Brimstone: Stephen Brimstone has pulled out of his evidence session under oath before DSD committee on Thursday. Now not available!"
That would have been your fifth occasion here if you had been able to come.
Mr Campbell: Most of the OTRs were murderers and terrorists, Mr Brimstone.
Mr Campbell: How do you feel about being likened by Mr Allister to a murderer and a terrorist?
Mr Allister: There was no such likening. Someone who was on the run.
Mr Brimstone: By someone who defended murderers and terrorists over the years, I don't take it very kindly.
The Chairperson (Mr Maskey): OK, folks. Sorry, just a wee second. Just a second. OK. If you could make a point, Gregory, relevant to what we're doing here this morning because —
The Chairperson (Mr Maskey): — because, I mean, you will appreciate that members around this table will occasionally make a number of statements, some of which we may agree with, some of which we may believe to be outlandish. So, if we want to go down the road of checking what everybody has tweeted or said publicly, even within the room, then we need to be careful because we could be spending an awful lot longer on this inquiry than what we might want to intend to do. So —
Mr Campbell: Yeah. I'll bear that in mind, Chairman. So, you, I take it, you weren't overly happy about Mr Allister likening you to a murderer or a terrorist.
Mr Allister: I did not liken him to a murderer or a terrorist.
Mr Campbell: Chairman, the tweet's here: "OTR Brimstone". Unless —
The Chairperson (Mr Maskey): I'm sorry gentlemen. Just stick to the questions. Jim, you've made it clear on the record you didn't refer to it in that context. So, let's take it back —
Mr Allister: Yes I was, briefly. The issue about the sending of the email and the permanent secretary's evidence to this Committee when he said in relation to the email:
"What I did not understand was why the request was made. The Minister's letter said six months. That was what the board was looking at, and I could not understand it."
I infer from that the permanent secretary hadn't been told that the six months in the letter was going to be changed or being explored if it could be changed to four months, courtesy of the email. Is that fair? The permanent secretary was kept in the dark about this.
Mr Brimstone: Well, the permanent secretary says he wasn't aware of it.
Mr Allister: Yes. Would there be an expectation that an adjustment of policy of that nature on such a controversial issue would be that the permanent secretary would be kept in the loop?
Mr Brimstone: I'm surprised that he wasn't, to be honest.
Mr Brimstone: No, but if you look at that email, that email, not only was Michael Sands the sender of the email aware of it, Jim Wilkinson, the director of housing, was there.
Mr Allister: But at what point did you tell the permanent secretary about that email?
Mr Brimstone: I don't believe I'd ever any role to tell him about the email.
Mr Brimstone: Likely not.
Mr Allister: All right. OK. And, as you were asked, that was a follow-up to the inquiries you had been spearheading with the administrators of 28 June.
Mr Brimstone: One phone call. I think he referred to it as one brief phone call.
Mr Allister: Yes, and who did you say asked you to make that call?
Mr Brimstone: I didn't. I couldn't recall, and I said —
Mr Allister: Couldn't recall. But do you think you did it of your own volition?
Mr Brimstone: Well, potentially. I was seeking information.
Mr Brimstone: As to whether the administrator was able to run the company Red Sky under administration until 14 July or not.
Mr Allister: Yes, and, of course, you and the Minister were interested, in fact, in a longer period than that.
Mr Brimstone: I do not know why 14 July was in the conversation, but, yes, we were — the Minister wanted a period in time in which the proper procurement exercise could be carried out at the same time an investigation into the issues pertaining to Red Sky could be carried out in regard to wider in the system.
Mr Allister: So, in terms of extending the period and the procurement and all of that —
Mr Brimstone: Reducing it.
Mr Allister: Well, extending it initially by six months and then talk about four, that was an extension in the sense of beyond 14 July. It was beyond that period. Do you understand?
Mr Brimstone: I think, though, that the contract — I am not sure; was it 5 July the Housing Executive were looking to terminate the contract?
Mr Allister: No, no, I think the 14th was the termination date. So, the departmental — or the Minister's position was initially six months, then adjust it down to four months. And the advantage in that would be, of course, in part, not exclusively, to the new company that the Minister spoke of in the 27 June meeting that extra time would give the proposed new company time to progress matters. So, that is where this all ties together, isn't it?
Mr Allister: The Minister had an anxiety that the proposed new company might be able to progress matters. To buy time, Mr Brimstone explores with BDO how long they can carry on for —
Mr Allister: Mr Brimstone advises the Housing Executive to look favourably or explores the possibility of this four-month extension.
Mr Brimstone: I think my exploration with BDO was around 14 July, no further.
Mr Allister: But is that not the framework within which we are operating, that all of this was motivated by this urge to buy more time for the successors to Red Sky?
Mr Allister: That never entered your head, Mr Brimstone, or can you not recall?
Mr Brimstone: No, I am perfectly clear as to what the motivation —
Mr Brimstone: If I can answer the question —
Mr Brimstone: Can I answer the question, Chair?
Mr Brimstone: Can I answer the question?
Mr Brimstone: No, I am quite clear as to what the motivation around all of this was. The Minister had concerns that have been backed up now by numerous reports as to the fact that the issues pertaining to Red Sky were more widely spread within the Housing Executive. The Minister was proved right in that. The Minister wanted a period of time in which we could, a, put in place the proper procurement exercise and, at the same time, explore the issues which have now come to light that they are much wider spread within the Housing Executive and the contractors associated with response maintenance.
Mr Allister: Do you deny that the Minister wanted more time, in the words of this minute, so that:
"the proposed new company might also be able to progress matters"?
Mr Brimstone: I'm not aware of that.
Mr Allister: What do you think that means, other than giving the successor to Red Sky time to get their act together?
Mr Brimstone: You asked me a question, and I answered it.
The Chairperson (Mr Maskey): OK. I mean, just for the record there, it is just, I mean, obviously, members around the table, including witnesses, may make statements, at times assertions. They are opinions. It does not necessarily mean it is fact. So, to suggest that subsequent reports, in the way in which you said there, back up whatever, that is not necessarily the case. So, I am just making that point. That is your view, and you may well very, very well hold that —
Mr Brimstone: Is there an argument around that, Chair?
The Chairperson (Mr Maskey): No, I am not making an argument. All I am saying is that you make a statement, it is your statement. It does not necessarily reflect the actual facts at the end of the day. I am not suggesting otherwise. I am making the point that other members, including witnesses, may make statements from time to time, so, again, just for the record, that does not necessarily mean that they are true or that they reflect the divine wisdom. That is all I am making the point.
Mr Campbell: It can happen with questioners as well, Chairman.
The Chairperson (Mr Maskey): Of course, and I made that point. So, I have made it, and I repeated it there again.
I just want to go back to a point earlier on there again. This is just again because it has come up in this evidence session, and it is happening two weeks in a row. It is in relation to remarks Sammy Wilson made earlier on and made them last week. When you characterised — Sammy, when you characterised Michael Sands last week, and we will check the Hansard report because I think some of these matters are beginning to get serious. I mean, Michael Sands made it clear that he didn't accept your suggestion or your words around Jenny Palmer's remarks. In fact, he did — Mr Sands went on to say he:
"can't say it's untrue", and he talked about recollections. Equally, I didn't hear him saying at any point that Jenny Palmer was lying, so I'm just asking people to reflect on — when they're making statements, giving evidence, or questioning witnesses, or making statements or assertions, because we can't have people round this table quoting someone else as suggesting that somebody was telling lies, because these are serious statements. Again, I'm just trying to remind ourselves to be professional and be able to stand over what we say, whilst at the same token being very robust and challenging of any witness, or, indeed, ourselves. That's what we're here to do, so I'm just asking people, and I will be reflecting on the Hansard remarks of this meeting to see the words that were actually used. I think they may well have been unfortunate and regrettable, but we'll check that and we'll come back. We will return to that on reading.
Mr Wilson: Chairman, I mean, what Michael Sands said — and this is what I quoted — first of all, he did not have such information that anybody was "going mad" looking for an email. There was no reason why anybody should be like that. Secondly, that he did not engage in such a conversation with Mrs Palmer. Thirdly, that he never ever said the words. My conclusion, then, is, if Mr Sands was so adamant — and he was not ambiguous. Hansard will show that he was not ambiguous. I didn't actually say that he said it. I put it to him and he didn't wish to make comment, but, if he didn't say the words, if he had no such conversation, if he, indeed, did not even remember anybody looking, or going mad looking, for an email, then what Mrs Palmer said was untrue, so she must be lying.
Mr Wilson: I didn't say that he said she was lying, but I'm saying that —
Mr Wilson: — clearly, she is not telling the truth, because we've had one witness who's given a totally different —.
The Chairperson (Mr Maskey): All I'm drawing attention to is that, in the context of — Sammy, you raised it in the context of people misrepresenting other people's remarks or comments or evidence to the Committee. I'm just making a point that Michael Sands didn't use any words about lying or untruths.
The Chairperson (Mr Maskey): He actually said he couldn't say it was untrue. I'm only making that point. I remind people we're still in an inquiry. We still have witnesses, perhaps, to come here. We certainly have to deliberate on what we're saying, so I'm just asking people to be professional and mindful of the remarks that they make, and not attribute them to other people. Dolores, you wanted a last point on that.
Mrs D Kelly: Chair, it was just, I think, it is interesting how one member seeks to actually come to the conclusion that one person is not telling the truth and the other one is. I think that underscores the lack of objectivity amongst some members.
The Chairperson (Mr Maskey): Well, people will make their own minds up on all that in due course. Stephen, there's no one else has indicated to ask any questions at this moment in time. Are you happy enough? Is there any final remarks you want to make this morning?
The Chairperson (Mr Maskey): You do fully understand that, if you so wish, you can come back to this Committee in the very near future. Hopefully we will be wrapping up the inquiry sooner rather than later, and, obviously, it will be within the decision of the Committee if we so wish to pursue anything else with yourself. OK, so thank you.
Mr Campbell: He'll be coming back for a sixth time then, Chairman, if you did that.