FITs cut “unlawful” says Judge

In a dramatic judgement yesterday at the High Court, Mr Justice Mitting found Government Ministers had acted unlawfully in cutting feed-in tariffs from the 12th December.  After a two day hearing closely examining the law, he decided that Ministers were not following the correct legal process, and were wrong to reduce tariff rates without first laying regulations before Parliament.

Mr Justice Mittings finding was so emphatic that he went on to refuse the Government the right to appeal, saying they stood little chance of overturning it.  This does not stop the Government asking the Appeal Court to hear their case – but in an unusual move Mr Justice Mitting even reduced the time available for them to make this request, saying they must file legal arguments with the Appeal Court by 4th January.

As things now stand therefore, the “eligibility date” of 12th December is unlawful, and Government will have to table new proposals.  A new date is likely to be around the end of February – this would give time for the 40 day period of consideration the law requires which Ministers ignored this time around.  However if the Government do appeal the finding – as they have said they will – and successfully overturn it, they will be able to re-impose the 12th December date.  This means that while there is a good chance of a later eligibility date, it will not be possible to guarantee the higher rates to customers until the legal process has finished.

Clearly this adds to the uncertainty for the next few weeks – but the longer-term effect of holding the Government to account and insisting on due process ought to reinforce the demands that Government must never again throw the solar industry – or indeed any part of the new environmental industries – into the kind of turmoil solar has faced in the last couple of months.  The finding is also intensely embarassing for Ministers, as it once again throws the spotlight on their botched handling of the entire policy.

What is now needed is for Ministers to take the criticism on the chin, and start afresh from here, drawing up a sensible path forward that takes solar from current levels of subsidy to grid parity in a predictable way that allows the industry to develop.  It is time for Ministers to recognise that the fact solar prices have fallen faster than expected is a good news story, not a reason to shrink the industry.  It is disappointing that despite the Judge warning they are unlikely to succeed, Ministers are still proposing to drag the process out further – but it is worth keeping fingers crossed that a break over Christmas, and some fresh legal advice will cause them to think again.  They can be assured that if they take the sensible path, the solar industry will be with them.

Joint Select Committee report slams Government handling of FITs

Two cross-party committees of MPs have added to the bad news for Ministers, publishing a damning report into the handling of FITs the morning after the court found their actions were unlawful.  The Environmental Audit Committee and Energy and Climate Change Committees came together to hold joint hearings into the FITs proposals shortly after Ministers announced them.  Their report is available here

The report says Ministers should have seen problems coming much earlier, and made more timely, and less dramatic cuts.  It accuses Minister of being “panicky” and “clumsy” and says the actions undermine confidence in energy policy across the board – not just in the solar sector.  The report also makes powerful recommendations that over-zealously linking solar installation to energy efficiency requirements could prove “fatal” to the industry by making it impossible for many homes to fit solar at all.

It will be extremely important for these findings to be widely distributed to MPs.  It is arguable whether it is best to send them to your MP now (when they are probably just about to pack up for Christmas) or first thing in the New Year – but please make sure you send a letter to them pointing out the strength of the finding and asking what your MP can do to persuade Ministers to think again.

Final chance for consultation responses

Amongst all the excitement, it would be easy to forget the consultation is still open – the closing day for submissions is tomorrow.  If you have not submitted a form yet, the page with links to documents and the online response form is here.

Happy Christmas

Finally, I wanted to say a big thank you to all of you who have helped with the lobbying effort.  Whether it was writing to MPs, visiting Parliament, holding banners for your local papers or any of the the many, many other things you have done in the last six weeks, you have been unstinting in your support.  That you have managed to all that while also installing record volumes of solar panels is little short of incredible.

But it was absolutely essential – however good the arguments for solar are, MPs only really notice them when they are coming from their constituencies and voters – not from pressure groups and industry bodies.

The fight must of course go on in the New Year, but there is no question that we have transformed the way in which the solar industry has been seen in the last few months, and put ourselves in a position where it is taken much more seriously as a creator of jobs and generators of zero carbon power.

So pat yourselves on the back, enjoy a seasonal glass of whatever you most prefer, and have a very good holiday.  We’ll be back in the New Year.

Martyn Williams
Our Solar Future

Full hearing into FITs decision granted in court

At the end of last week, Solar Century, HomeSun and environmental group Friends of the Earth won permission to seek a ruling in the High Court that the decision to slash FITs payments was unlawful.

Mr Justice Mitting recognised the “economic risk” that solar companies face as a result of the sudden cuts announced, and allowed the three claimants a full hearing on Tuesday and Wednesday this week.

The hearing will consider two points raised by the claimants – asking whether the “eligibility date” of 12th December (11 days before the end of the consultation period) means the change is retrospective and if so, whether a retrospective change is legal.  He will also examine whether the changes breach property rights under the European Charter of Human Rights.

The three claimants had also argued that the changes were disproprotionate, and that the consultation was unlawful because Ministers had effectively decided the outcome before the consultation was completed.  The judge did not rule out future challenges on these points, but told the court that gathering the necessary evidence to hear these claims would mean delaying any hearing until some time in the New Year.

The court room was pretty full to hear the case – though a few more people could have squeezed in.  If you are interested in watching the full hearing at the Royal Courts of Justice on the Strand, the hearing on Tuesday will run from 10.30am to 4.30pm, and on Wednesday from 10.30-1pm at the latest.  The court number is not yet allocated, but ask at the information desk when you arrive, or email and I will pass on details as soon as I have them.  As before, I will let you know of any last minute changes to the timing of the case, and also keep a running tally to warn you if the room is looking massively over-subscribed.

Certainty on selling at 21p?

There remains confusion over whether or not the 21p rate proposed in the consultation for domestic installations between 12th December and April could change as a result of the ongoing consultation.  Fears have been raised about what would happen if an installations was sold with income projections using the 21p figure, only to find the Government reduce the rate still further at the end of the consultation.

The result from Government has been more fudge – heavy hints that this is a minimum, with talk of a “high chance of certainty” that the figure would not go down.  Minister Greg Barker even took to twitter to try and clarify matters – but still left them ambiguous.

It has even been suggested that Ministers would have made the date certain, but decided not to as a result of the court case mentioned above being given the go ahead.  This is despite the hearing making any legal challenge on predetermination less likely, not more likely.

It is worth telling your MP the further problems this is causing for you – the more MPs realise what a mess has been made of this process the better.

Joint Select Committee report due later this week

Finally, later this week a Joint Select Committee report will be published on the reductions to FITs tariffs.  It important to ensure that your MPs see the key conclusions – so keep an eye open here for details and make sure you send them on to your MP early in the New Year.  By raising the matter with them, they are much more likely to be aware of the findings of the cross-party Committees.