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So what might happen with the FITS ?
The Court of Appeal has just confirmed that they have rejected the Government appeal to overturn the High Court ruling. The basis of the Court of Appeal ruling was that under the Energy Act 2008 the Government does not have the power to change the feed-in tariff rates retrospectively, and therefore any change must come after the process of consultation and then Parliamentary Procedure taking 40 days.
This is crucial as it means Government does not have the power to reduce FIT rates retrospectively, or in the middle of a consultation in the future – and was the whole reason behind the court case in the first place.
However, while the Appeal was rejected, the Government were awarded permission, on the grounds that this Judgement was slightly different to that of the High Court. This means they can seek a further Appeal at the Supreme Court – and they have asked the Court of Appeal for permission to appeal. We will know whether they receive it in the next few days.
What does this mean for tariff rates?
This does not affect the Government's proposal to cut rates for systems installed after 3rd March 2012, because that reduction has followed the correct procedure with regulations being tabled in Parliament already, and the cut coming after the 40 day period required by law.
There is still some uncertainty about rates paid on installations fitted between 12/12/2011 and 3/3/2012 because it is not yet clear whether the Government will allowed its appeal. However, the minimum tariff that people installing in this period will get is 21p, and if Government’s Appeal is unsuccessful or should they decide to withdraw it, then they would get the 43.3p rate (for a sub 4kW system).
There is still some uncertainty about rates paid on installations fitted between 12/12/2011 and 3/3/2012 because it is not yet clear whether the Government will allowed its appeal. However, the minimum tariff that people installing in this period will get is 21p, and if Government’s Appeal is unsuccessful or should they decide to withdraw it, then they would get the 43.3p rate (for a sub 4kW system).
A comment from your Chairman.
There is speculation that Government will appeal to prolong the uncertainty in the hope it will put some consumers off - but no doubt DECC will be setting that against the political damage done to them by yet another defeat and the image of a Government refusing to accept it has got it wrong and working to make amends.
The process going forward is that Government has formally asked the Appeal Court for permission to take this matter to the Supreme Court. This however does not necessarily mean Ministers have decided it will do so - at the moment they may simply be keeping the option open. The Appeal Court judges will make a decision on whether to grant permission in the next few days - if it is granted, the case can go to the Supreme Court. If permission is refused the Government would still have the fall back option of applying to the Supreme Court itself for permission to appeal. But this would add a further step in the process - and at each step the chances of success for Ministers recede a little further.
The process going forward is that Government has formally asked the Appeal Court for permission to take this matter to the Supreme Court. This however does not necessarily mean Ministers have decided it will do so - at the moment they may simply be keeping the option open. The Appeal Court judges will make a decision on whether to grant permission in the next few days - if it is granted, the case can go to the Supreme Court. If permission is refused the Government would still have the fall back option of applying to the Supreme Court itself for permission to appeal. But this would add a further step in the process - and at each step the chances of success for Ministers recede a little further.
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