The lead judgment was by Moses LJ. This robustly sets out the legislative and regulatory framework of the FiTS scheme and it leaves, in my view, no room whatsoever for any doubt as to the proper way to consider the scheme.
The judgment makes clear that the “referral date” of 12 December 2011 could not lawfully be applied retrospectively by DECC as Greg Barker attempted to do through his announcement of 31 October 2011. It also deals very effectively indeed with DECC’s attempt to claim (which it first did in the High Court hearing in December last year), that the 2008 Energy Act provides the scope, particularly through s. 41, for the Secretary of State to alter FiTS payment rates at will depending on prevailing “circumstances” and the application of ordinary principles of public law (i.e. the requirement to introduce changes lawfully, with procedural fairness, “reasonably” etc.).
The Court of Appeal has refused DECC permission to appeal. However, this will not necessarily prevent DECC from seeking further permission in writing direct from the Supreme Court itself. Inevitably, this permission process is likely to take several weeks or even months to come to a conclusion.
DECC’s strategy appears to be designed: (i) to save face amongst ministers and their advisors; and (ii) to further perpetuate a sense of uncertainty amongst consumers and the PV industry.
I am confident that, if and when the matter is put forward for permission in the Supreme Court, this permission is likely to be refused. I also consider that, further down the line, DECC may well choose quietly to drop any application to appeal once the PR “heat” has gone out of the FiTS/PV story and the new payment rates have come into effect after 3 March 2012 (the new date announced by DECC and put before Parliament on 19 January 2012), after which new rates will apply.
In the meantime, and pending any permission to proceed to appeal to the Supreme Court resulting in the overturn of the findings of the Lords Justices, the implications of the Court of Appeal judgment are the same as the implications of the judgment from Mitting J in the High Court in December, namely: that PV installations registered after 12 December 2011 are entitled to receive FiTS payments at the current set levels not only until 3 March 2012 but for the full 25 year period.
The Court of Appeal has delivered a unanimous and highly robust judgment and DECC’s appeal against the Judicial Review success in December 2011 has been completely rejected. The correct approach to the Feed-in Tarriff scheme has been underlined. We urge DECC now to drop any thought of a further application to the Supreme Court. The legal position is as clear as day: DECC and Messrs. Barker and Huhne have slipped up very badly and any further appeal smacks of a face saving PR exercise risking considerable further public expense and with no prospect at all of succeeding. DECC claim they want certainty to return to the FiTS regime. If that is really the case they should climb down for the sake of consumers, the PV industry and the whole renewables sector.