Submission by Jim Allister QC MLA in response to the Department of Economy Consultation Document on the Non-Domestic RHI Scheme.
1. RHI was a scandal of the Executive’s making; government, not the participants, made the fatal decision to construct a scheme without tiering. It was the Economy Minister who promised the grandfathering that drew in so many applicants. Now, many of those who responded face not just broken promises but severe financial losses. Decent and honest participants have been hung out to dry by the Stormont Executive. Now, the current proposal is the final coup de grace.
2. For me probably the most telling sentence in the consultation is found at 5.42, “… it is not clear how full public confidence in the workings of Government could be restored while the Scheme is in existence in any form.” What a blatant affirmation that Stormont and its “reputation” matters above all else! It’s not the plight of failing poultry farmers or others who put their faith in government that matters, but restoring the reputation of those who spawned the scheme. This, it seems, is what this consultation is really all about! That is simply wrong and disreputable.
3. As Lord Mackay of Clashfern said in the House of Lords: “the principle is that when a member of the public makes an investment in a government scheme, that member of the public is entitled to trust the terms on which the scheme was launched. Therefore there can be no doubt that those who invested in the scheme, relying on the Government’s statement of what was involved, are entitled to be protected by the Government from any failure on their part to meet the terms on which the scheme was set up.” This was the important principle respected in the closure of the national non-domestic scheme, so why here is the department intent on extinguishing the property rights of participants?
4. While many government consultations are suspect in terms of holding any potential to change the planned course of action, this one is particularly dubious because it emanates from a government which only exists because its constituent parts signed up to an ill-considered and precipitate pledge in ‘New Decade, New Approach’ to close the RHI scheme – a pledge which was made with no thought or reference to ‘consultation’. Indeed in 2018 a consultation had rejected closure and buy out, but NDNA simply bulldozed it out of the way.
5. With such provenance it is hard to take this consultation seriously or as something which meets the ex parte Gunning test. Nor, is its credibility helped by the suspicion that it is timed to try and out manoeuvre ongoing legal challenges. Even the narrative relied upon has expunged such critical milestones as the grandfathering pledge! Thus the important matter of “legitimate expectation” is dodged.
6. Among the deficiencies of this consultation is the fact that though there is AME funding to sustain the scheme at a manageable level, there is no proposal to do that – indeed, of late, the department has been failing to spend all the available funding.
7. Likewise, the supposed 12% return, which was even approved at the relevant time by the EU, seems no longer to be in the reckoning. Instead at page 13 all that is considered is operating the scheme below the AME limit. Why?
8. Why, within this consultation, is there not the option of adopting and replicating the scheme as now operated in GB? The NIAC recommended review having regard to GB rates, but even that is obliterated.
9. Buglass spoke of ‘fair and equitable’ treatment – where is it? Certainly not in these proposals, nor in the doubtful fuel comparison figures which rendered earlier departmental commissioned reports suspect (not to mention the recently exposed editing requirements sought in the Exeter University report)!
10. There should be an option of staying in the scheme but at proper GB-style tariffs. And, if this was a proper consultation, looking at all the options, there would be.
11. Not only do I find scant regard in this consultation document to the economic consequences of termination of the scheme, but even less reference to the environmental impact. The inevitable outcome of closure is resort to fossil fuel reliance – surely, the very thing RHI was designed to challenge! So, where is the joined up thinking in claiming to move towards zero carbon emissions while at the same time driving RHI users back to oil?
12. Thus, I must conclude that this consultation is as flawed as it is farcical.