The Court Of Appeals has rejected the appeal to overturn the High Court ruling which found the Feed-in-Tariff (FiT) reduction unlawful. The tariff remains at 43p for all solar PV installed before 3 March 2012. [note that's the THIRD of March]  Had the government won the appeal it would have had a major impact on many laws outside the scope of the Feed in Tariff (see below)

ON 31 October the government said it would cut the FiT from 43p to 21p for any installation completed on or after the 12th of December.  The High Court ruled on 21 December that the Secretary of State for Energy and Climate Change (DECC) did not have the authority to cut the FiT RETROSPECTIVELY.  DECC was unhappy with that ruling and took the case to the Court of Appeals.  The Appeal was heard on Friday 13th January before a three judge panel.

Today Lord Justice Moses speaking for the panel of three Lord Justices rejected the government’s request for an appeal and also denied permission to a further appeal to the Supreme Court. The 14 page decision made it very clear that the Secretary of State for Energy and Climate Change had no authority to make modifications retrospectively.

The significance of this decision cannot be underestimated.  Had the government succeeded then it could have changed the FiT rates retrospectively at any time – even for those who had existing installations.  For example, homeowners who had already installed PV on their roofs and were entitled to receive 25 years of the FiT at the rate designated in their contracts could have found both the length and amounts lowered at any time at the whim of the Secretary of State.  The Justices had put that proposition to the government’s counsel during the Friday 13th hearing.  The government responded in the affirmative that they could exercise their retrospective power at any time for whatever reason without any further need to consult Parliament.  That response raised the eyebrows of each of the three justices!

“Vested Rights” is a term that was used throughout the original Appeals hearing.  These are rights that are given or earned with the expectation that they cannot be removed or altered at any time.  This raised the question of whether the government was using this FiT case as a precedent to alter or eliminate other “vested rights” or “entitlements” guaranteed by law.  Fortunately today’s ruling went against the government and will make it harder for them to argue they have powers beyond that which legislation gives them.

It should be remembered that Minister of State for Energy Greg Barker has been bragging to audiences in the United States that his government was making sweeping cuts that Margaret Thatcher could have only dreamed about. The implication was that he and ‘his government’ would continue to do so (with glee).  Barker appears to fancy himself as future Prime Minister material and seems to have decided to make his mark by cutting the feed in tariff.  If you watch the news tonight you will see he is a very unhappy bunny but still full of bravado in defeat.

The next step in this saga occurs on 9 February when the government will lay before Parliament modification for the next FiT year 2012-13.  That will set a new tariff for all of those wishing to install solar PV on their roofs after 1 April 2012. (It will have no effect on those who have already installed PV prior to that date).  Our own Village Energy Project is encouraging anyone wanting to install PV to act quickly.  Contact them at solar@hicourier.co.uk for advice or to arrange for a survey of your roof and a quotation.  Remember, the 43p FiT ends on the third of March 2012 so you must complete your PV installation before that date.

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We look forward to seeing you there !

This afternoon Energy and Climate Change Secretary Chris Huhne tabled a written ministerial statement.

“We are  laying before Parliament today some draft licence modifications which, subject to the Parliamentary process set out in the Energy Act 2008,  makes provision for a reduced tariff rate (from 1 April 2012 onwards) for new PV installations with an eligibility date on or after 3 March 2012.”

“If the Court finds in favour of the Government’s appeal, we intend to stand by all our consultation proposals, including an earlier (December) reference date, subject to the Parliamentary procedure and consideration of consultation responses.”

We are awaiting a ruling from The Court of Appeals due no sooner than tomorrow. There is some speculation that the decision may take at least another week.

Huhne’s statement continues: “”We are intending to announce the outcome of the consultation by 9 February 2012, in time for any resulting legislative changes to come into effect from 1 April 2012. Our aim is that this announcement will be accompanied by a set of reform proposals for the next phase of the comprehensive review of the FITs scheme, which will be the subject of a further consultation.”

Seb Berry, head of public affairs at Solarcentury, one of the successful plaintiffs at the High Court’s Judicial Review, urged the government to reconsider the spending cap for the feed-in tariff scheme: “The elephant in the room for all FIT technologies, not just PV, remains the Government’s decision to impose an unrealistic cap on the FIT scheme in 2010. Until that fundamental issue is addressed by the “greenest Government ever” what we have today is no more than a temporary albeit welcome step forwards.”

What does it all mean for us in the village? Well, the waters are only slightly less muddy than they were yesterday.

At this point, the 43p Feed-in-tariff is available until 3 March PROVIDING the Court of Appeals does not overturn the High Court decision.  If that should happen then a 21p rate will apply for all solar PV installation 4 kW or less. If you want to purchase solar PV then this is an excellent time to do so.  You can be sure of getting at least 21p and most likely 43p if you can install panels before 3 March.  If you act quickly you can take advantage of the excellent prices that are available at the moment. From an economics standpoint, your payback period will be similar to those who installed PV during the first year of the feed in tariff.

We are continuing to talk to those investors who are hoping to provide our FREE PV programme.  But for the moment there is still some uncertainty until the Court of Appeals ruling ends this sorry saga. Until that is resolved we cannot move forward to provide FREE PV panels. We will keep you informed as developments occur.

For those wanting new quotes to purchase Solar PV systems, please contact me soonest at 07402 674585 or solar@hicourier.co.uk

London, Friday 13 January 2012:

The Court of Appeals heard the government’s appeal to overturn to High Court decision which ruled the Feed-in-Tariff cuts unlawful.
After five hours the three justices conferred and announced they would issue their decision no sooner than this Friday 20th January. The delay is no help to the solar industry which is faced with making 30,000 redundancies beginning in one week.

The High Court’s ruling on the 21st December means that anyone installing solar PV on their roof between 1 April 2011 and 31 March 2012 is entitled to receive a payment of 43p per kWh generated for the next 25 years, adjusted for inflation (RPI) and tax free.  However, the  government’s appeal means there is still uncertainly.  If it succeeds then all solar PV installed from 12 December 2011 will receive only 21p per kWh from 1 April 2012.  And while most consider it unlikely that the government will succeed, the delays are accomplishing what the High Court ruled unlawful – the killing off of the entire solar industry.

The government argued that the Secretary of State for Energy and Climate Change has the power to alter the Feed-in-Tariff at any time. Mr. Swift, counsel for DECC, seemed to be making a favourable impression on the three judge Appeal Court panel during his 2 hours of pleadings. The solar industry countered with the argument that such a power was not conveyed to the Secretary of State in the enacting legislation, the Energy Act of 2008.  The Counsel for the solar industry, Mr. Grodenski, led the court step by step through the Energy Act making it clear to all present in the courtroom that DECC’s actions were indeed unlawful. 

The three judges asked pointed questions throughout the hearing in an attempt to draw facts from both sides. Several of those questions involved the granting of ‘vested rights’ – those entitlements that are guaranteed to someone by law.  In the case of the Feed in Tariffs, once a homeowner had met all of the requirements, they are deemed to have a vested right to the agreed upon feed in tariff as soon as they apply for it.  That cannot constitutionally be withdrawn from them. The government arbitrarily removed the vested rights to a 43p tariff from anyone applying after 12 December. The Energy Act clearly states that the Feed-in-Tariff can only be changed after 31 March 2012.

What will be the outcome?  The Court of Appeals will almost certainly rule against the government and uphold the High Court ruling that the government has acted unlawfully. DECC will issue a new schedule of Feed-in-Tariffs to become effective on 31 March. It is uncertain what that rate will be. It had been scheduled to drop to 39p from 43p before the 31 October announcement which reduced it to 21p.

Will we have another chance to secure a 43p tariff?  Maybe.  The next step for the government may be the Supreme Court – another delaying tactic.  It is possible that the Court of Appeals will prevent such a move in their ruling. We simply will not know until the decision is handed down.  In the meanwhile, some homeowners are moving ahead with their installations. One of them told me: “We are going ahead for two reasons. First, we need to do something to cut our CO2 emissions. Second, with energy prices set to rise over the next few years, I want to have my own reliable source of electric power so I am not held hostage by the big French and German energy companies.”

However, those in attendance left the court understanding that there is a much larger game afoot – a hidden agenda. Should the government win the argument that vested rights conveyed by law can be revoked at any time it could send the country into a constitutional crisis.  Would it be possible, for example, for pensions (which are vested rights) to be reduced, or even eliminated, by government whim?   What about other vested rights? Minimum wage? Health Care?

If you think that’s far fetched, remember Conservative Energy Minister Greg Barker’s smug statement to an American audience last year when he proudly described the great progress his government had made during it’s first few months in power: ‘We’ve been able to make cuts that Margaret Thatcher could only dream about.’  Barker has been a major force behind the Feed-in-Tariff cuts.

More as it happens …

Ken

Photo-by-Cristian-Bortes

Update on Academy Status followed by Full Governing Body Meeting

Tuesday 10 January 2012 at 7pm
(Gropius Hall, IVC)

Staff, students, parents and members of the wider community including future parents are most welcome to hear an update on the key priorities for the development of the College and its progress towards conversion to Academy Status. This will be followed by a meeting of the Full Governing Body at which final ratification of conversion will be taken.