RHI scandal: News that attorney general John Larkin may challenge RHI is a bizarre twist, says Mike Nesbitt
Lawyers questions if scheme should have been put to entire Executive as boilers owners challenge cut in payments
Ulster Unionist leader Mike Nesbitt has described news that attorney general John Larkin is considering legal action against the Department for the Economy over RHI scheme as 'another bizarre twist' in the saga.
Northern Ireland's top law officer is considering mounting a challenge to the legality of the entire scheme, he has revealed.
As a group of boiler owners cleared the first stage in their High Court battle to ensure payments for the next 20 years, Attorney General John Larkin QC made his own dramatic intervention.
He told a judge that he is reflecting on whether to bring litigation against the Department of the Economy over a failure to put the non-domestic scheme before the full Executive before it was introduced in 2012.
Were he to pursue a case and ultimately succeed, it could result in the RHI programme being declared unlawful.
Mr Justice Deeny put it to him that he was contemplating a potential challenge to the regulations of an administration where he serves as the attorney general.
Mr Larkin replied: "My primary responsibility is as guardian of the rule of law.
"If it's an issue about public money and a claim being made against the government founded on the 2012 regulations I may be the only person able to put a hand up."
Mike Nesbitt said: "Just when you think the Renewable Heat Incentive fiasco could not get any stranger, we have the bizarre twist that, in effect, the Executive through its top legal advisor is suing itself. This is dysfunctionality on an unprecedented scale.
"The attorney general’s court intervention comparing the lack of Executive sign off on the recent statutory rule attempting a one-year mitigation of RHI overspend to the similar lack of Executive sign off on the original 2012 RHI scheme adds yet another layer to this fiasco.
"How could it get to this stage before the Attorney General came up with this left field intervention? Surely the legal team in the Department of Finance and Personnel would have checked the legality of the regulations on RHI which were produced by the old Department for Enterprise, Trade and Investment in the period 2012 to 2016?
"We will await the outcome of the two-day court hearing next month with interest, but it is already clear that any suggestion that the Minister for the Economy has produced a legally sound solution to the massive overspend on RHI, even in the short term, looks increasingly fanciful. All the signs are that the whole Renewable Heat Incentive is being tied up in legal knots."
The development came as more than 500 members of the Renewable Heat Association NI Ltd were granted leave to seek a judicial review of Economy Minister Simon Hamilton's plan to cut tariff payments.
The botched RHI scheme was set up to encourage businesses and other non-domestic users to move from using fossil fuels to renewable heating systems.
The total RHI spend in Northern Ireland is estimated at over £1 billion over the next 20 years.
The Treasury is set to cover £660 million of that, with Stormont landed with the remaining £490 million.
Last month Mr Hamilton set out revised 2017 Renewable Heat Incentive Regulations in a bid to in a bid to cut costs and ease the financial burden.
Lawyers for the association are set to claim this was an illegal step against boiler owners with 20 year contracts.
Part of their case is that 2017 regulations are rendered unlawful because they were not discussed and agreed on by the Executive.
Mr Larkin will definitely now feature in that case after an issue of devolution was raised.
"The 2012 regulations never came before he Executive to be discussed and agreed," he told the court.
"So the point that is made against the 2017 regulations it seems to me can equally be made against the 2012 regulations."
Proceedings have been brought by the Association and a boiler owner granted anonymity in a separate action against Mr Hamilton's plans to publish the identities of those on the scheme.
According to the Attorney General there remains an issue of candour about that unnamed operator.
"We have got a good deal of information about the bank debts of the second applicant, but nothing so far as I can see about his income, far less his profit," he added.
"That relates both to the period he became a member of this scheme and is income and profit as a result of this scheme."
Tony McGleenan QC, for the Department, said it was accepted that the Association's legal challenge raised issues of substance to be considered.
On that basis, and a push to have cost control measures in place by April, leave to seek a judicial review was not opposed.
Mr Justice Deeny agreed to list the case for a full, two-day hearing next month.
Any confirmed separate challenge by the Attorney General will also be heard at that stage.