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Renewable Heat Incentive Scheme (Amendment) Regulations (Northern Ireland) 2017

Part of Executive Committee Business – in the Northern Ireland Assembly at 6:45 pm on 23rd January 2017.

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Photo of Jim Allister Jim Allister Traditional Unionist Voice 6:45 pm, 23rd January 2017

I think that regression was another missed opportunity, and that has compounded the situation. There was also the missed opportunity that when DFP originally signed off on the scheme and approved the business case, it declared that it needed to be reapproved by 1 April 2015. It did not happen because DETI did not send it back to DFP, and DFP did not ask for it. It only came back belatedly to DFP in the autumn of 2015 and was then, amazingly, signed off for a second time at the height of the spike in October 2015, by which stage Mrs Foster was then the Minister of Finance.

There were repeated failures in this, and that is what has led us here. Yet, to listen to some, it is no one's fault. It is certainly not a Minister's fault. We could not have that. It is no one's fault. Well, it is, and the public knows that, in government, the buck stops with the Minister or, at least, it should, but there have been such contortions in this to avoid the buck stopping with the Minister that, frankly, it is embarrassing that, as politicians, there cannot be a facing up with the public on this issue.

I asked whether this was a fig leaf because of the genesis of it and how it was delayed. I also wanted to ask whether it was a fig leaf because of the dubious legal nature of it. Never mind being a fig leaf, these regulations, in the heat of litigation, could turn into a chocolate fireguard; they could melt very quickly because they defy a number of principles ensconced in this area of law.

What is involved here is the state seeking to derogate from something that it has granted to members of the public. There is a legitimate expectation created with the beneficiaries of the scheme that they are tied into a scheme upon which there is commitment to deliver: if they fulfil their side of the bargain, the Government will fulfil their side of the bargain. Indeed, article 3 of the original 2012 regulations expressly says that the Government must — must — make these payments. So not only do you have a contractual-type situation created in the acceptance of the letters of offer, but you have, in the statute, a solemn obligation on the Government that they must make these payments.

That has created contractual rights and legitimate expectations, which were of course underscored by Mrs Foster's letter to the banks. In her letter to the banks, Mrs Foster went out of her way to highlight just how guaranteed these schemes were. She stated:

"Tariffs are 'grandfathered' providing certainty for investors by setting a guaranteed support level for projects for their lifetime in a scheme, regardless of future reviews."

"Regardless of future reviews" — guaranteed. In the letter's penultimate paragraph, she states:

"The government support, on offer through the incentive schemes, is reliable, long term and offers a good return on investment."

Not only have we got letters of offer and regulation 3, which says that the Government must pay, we have the very Minister promoting the scheme by lauding it to the highest and underscoring the certainty of the guarantee of payments. It is indisputable that legitimate expectation has been created in respect of the beneficiaries of the scheme.

Yes, it used to be the case that, in the law, Parliament could do what it liked, so to speak, and, yes, if you go back to some of the older legal authorities, you will find, for example, quite a well-known statement by a legal scholar called Greenberg, which says that no person has a right to demand compensation for something that was done by or under the authority of statute. That is how it used to be, but then we signed up to the European Convention on Human Rights. Article 1 of protocol 1 came in, which indicates:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."

That introduced a radical change and constraint on the right of Parliament to do what it liked with regard to dealing with the property and possessions of individuals. It is indisputable that the rights and possessions that people have under the RHI scheme qualify as property rights in the law.

I remind the House that, back in 2013, I brought a special advisers Bill to the House to remove some people from office. The House will recall that, of necessity, within that Bill, were two safeguard provisions. One guaranteed compensation to anyone who was removed. Why? They were having removed from them property or possession rights, so they had to be compensated. Indeed, the Attorney General gave evidence during the hearing of that Bill in the Finance and Personnel Committee that it would be unlawful to remove possession rights without compensating. Unlawful; that was the evidence of the Attorney General. That is because of article 1 of protocol 1 of the European Convention.Yet, these regulations have no compensation within them.