The solar power subsidies case : when can you judicially review a proposal?

29 December 2011 by

R (on the application of (1) Homesun Holdings (2) Solar Century Holdings (3) Friends of the Earth) v Secretary of State for Energy and Climate Change 

Admin. Ct, Mitting J, 21 December 2011, extempore judgment, so no transcript available

This successful challenge to a proposal to modify subsidies for solar power arose out of the decision by the climate change Department to amend the rules under which the subsidies were to be payable. The essential questions were whether DECC could do this whilst a statutory consultation period was running, and further whether judicial review lay against a proposal to change the system, as distinct from a challenge to the change itself.

The system of subsidies was administered via feed-in tariffs payable for electricity generated by solar panels. DECC introduced a scheme for small solar panel systems requiring licensed electricity suppliers to pay money to house owners for every kilowatt hour of electricity generated. DECC could modify the conditions of electricity licences granted by OFGEM, the electricity regulator, but was required, before making such a modification, to allow a consultation period in accordance with section 42 of the Energy Act 2008.

The proposal at issue in the case was to reduce the feed-in tariff payable under the existing scheme with the intention that the modifications would take effect prior to the expiry of the consultation end-date. The claimants also said that the proposal was to effect a modification to the feed-in tariff retrospectively, which would have a significant impact on the market.

Mitting J allowed the challenge to the proposal. Parliament could do what it wanted when enacting primary legislation, but where it was intended to give effect to a proposal by a statutory resolution or other similar procedure, the lawfulness of the proposal could be subject to judicial review, especially where, as here, the proposal had a significant impact on the market.  In construing the legislation it was doubtful whether DECC had a power to amend the feed-in tariff. OFGEM had been given the power to modify standard conditions, including those relating to feed-in tariffs, which was subject to a veto by DECC, not directions. There was a strong argument that Parliament had intended that, once the feed-in tariff scheme had been established, it was for OFGEM, not DECC, to make changes. Finally, on the assumption that DECC did have such a power, there was a strong presumption against retrospective legislation which might be overridden by express language or clear Parliamentary intention. In this case, Parliament had expressly provided in s.42 that DECC had to consult before making a modification. The whole tenor of the scheme was prospective, and in circumstances where the proposal had an adverse impact, such modifications could not be made before consultation. Therefore the proposal was unlawful and if, following it, such a modification were to be made, it would be unlawful.

As with a number of cases delivered just before Christmas, this judgment was delivered extempore  (just imagine the judge’s in-tray after the break if he did anything else), hence we cannot analyse anything other than a summary in this post. But it is a case to look out for when it is fully reported, on the main legal ground of importance – just when can you challenge a proposal. The courts have to draw a line between being too trigger-happy with governmental proposals before they have crystallised into a definitive decision, and being too deferential to an obviously unlawful governmental plan of action where efficient administration actually requires intervention from the courts before interested parties’ economic and other interests have been deleteriously affected.

Sign up to free human rights updates by email, Facebook, Twitter or RSS


  1. Mike says:

    Hi David Hart QC I like your blog

  2. Tim Willis says:

    In view of the losses sufferd by those who have stopped projects as a result of the flawed announcement is there any prospect of compensation for expenditure incurred or loss of feed in tarrif income if projects cannot now be concluded by whatever date becomes the cut -off ?

    Damages in this context are always less than straightforward but would Article 1 of the HRA apply in the context of legitimate expecation ?

  3. Tiff says:

    Thanks, this is wonderful stuff!

  4. You would have thought that the government would have been trying to encourage people to go solar with their (alleged) green policies and with people needing to save money – but then again, it is (in all but name) a Tory government after all.

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: