The High Court ruled late this afternoon that the cuts to the feed in tariff proposed by the Department of Energy and Climate Change were unlawful. Therefore anyone install solar PV after the proposed 12 December cut-off date is still eligible for the full 43p feed in tariff for a period of 25 years. Those in the village who feared they had missed the current feed-in tariff rates can breathe a sigh of relief. However, they are encouraged to act quickly if they wish to purchase a PV system at the current high FiT rates.
DECC Minister Greg Barker said they would appeal the decision. However, Mr Justice Mitting who made the decision said he did not expect it to be overturned.
The HI Courier sat through the 2 days of legal wrangling at the High Court. The decision handed down made it clear that the government had caused an immediate and significant economic impact on the solar industry by specifying a cut off date within its proposal. He said that DECC’s Secretary of State had no authority in law to modify the feed in tariff. That power was explicitly reserved for OFGEM which administers the feed in tariff under law. It did say that the Secretary of State does have the power to veto OFGEM rate changes but that it cannot do so under his own authority. Further, Justice Mitting said that decision about both the amount and date of eligibility for qualifying for the feed in tariff payments could not be made before the the consltation ended. Such action undermines the legislation and attempts to retroactively change primary law – the Act of Parliament – with secondary law or regulations.
The proper procedure is to: 1. conduct a consultation; 2. give full consideration to all of the responses made during the consultation; 3. draft a modification; 4. lay it before Parliament for 40 days to give it that chance to make changes or amendments. Only then can an effective date be set.
At this point it means the new cut-off date for the current feed in tariff is likely to be somewhere between 15 February and 15 March. However, we understand that the Court of Appeals could change that to 31st March by following Justice Mitting’s ruling that only OFGEM can impliment changes. The law clearly says that can only happen after 1 April.
A full written ruling will be available in a few days. The date for filing for an appeal is 4pm on the 4th of January 2012 with the advice that the case be heard as a matter of urgency. The likely date for that appeal is 9 January.
The solar industry may pursue additional legal remedies because of the losses it incurred. For now it appear that the jobs of some 25,000 solar workers are guaranteed – a very nice Christmas present for their families indeed.
