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.