Doran's (Michael) Application
| Jurisdiction | Northern Ireland |
| Judge | Deeny J |
| Judgment Date | 01 March 2017 |
| Neutral Citation | [2017] NIQB 24 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 01 March 2017 |
1
Neutral Citation No: [2017] NIQB 24 Ref:
DEE10227
Judgment: approved by the Court for handing down
Delivered:
01/03/17
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
2017 No. 6543-01
IN THE MATTER OF AN APPLICATION BY MICHAEL DORAN AND
ANOTHER FOR JUDICIAL REVIEW
AND IN THE MATTER OF A DECISION OF THE DEPARTMENT FOR THE
ECONOMY AND THE MINISTER FOR THE ECONOMY IN CONNECTION
WITH THE RENEWABLE HEAT INCENTIVE SCHEME
(NO. 2)
_________
DEENY J
[1] This is an application by Michael Doran and D.A. for judicial review of the
decision of the Minister for the Economy and his Department (“the Department”)to
release into the public domain the names and other personal data of or information
concerning recipients of funding under the non-domestic Renewal Heat Incentive
Scheme in Northern Ireland. The applicants seek an order of certiorari to quash that
decision, a declaration that the decision is unlawful and an injunction prohibiting
release of the information.
[2] On 27 January 2017, following an initial application before me on 24 January
2017, I granted the applicants leave to bring the proceedings on a number of grounds
arising from their Order 53 statement. The grounds are overlapping. The applicants
claim the benefit of Article 8 of the European Convention on Human Rights
(“ECHR”), the Data Processing Act 1998, a privacy policy attached to the application
form for the Northern Ireland Renewable Heat Incentive (“RHI”) Scheme, an
argument of substantive legitimate expectation and an argument that there has been
procedural unfairness in arriving at the decision in that the Minister has failed to
take into account relevant considerations. An interim injunction was granted.
[3] The first applicant is the Chairman of the Renewable Heat Association of
Northern Ireland and represents a number of owners or operators of accredited RHI
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installations. The second applicant is one of those operators who, he avers in his
affidavit, has spent some £300,000 in installing boilers on his premises to burn wood
pellets and receive in turn the financial support provided by Government under this
scheme. He was granted anonymization as D.A. at the initial hearing until further
Order.
[4] As Mr Doran himself is not a recipient of funds he is an applicant here only
on behalf of his Association.
[5] At the hearing before me on 22 and 23 February 2017 it emerged that a
number of persons who had applied for accreditation under the scheme and
obtained accreditation had, nevertheless, not in fact received any grant aid from the
Department. As it was the Minister’s intention in a decision to disclose the names of
recipients of grant aid it seems to me that clearly those who have not received any
grant aid should not have personal data released. This would include BW, a person
accredited under the scheme who brought separate proceedings of a similar kind to
those brought by Mr Doran. Mr Michael Humphreys QC appeared with Ms Anna
Rowan for BW. In the circumstances it was not necessary to call on them although
they were present for the hearing on 22nd and 23rd. That application was adjourned
by me. [Authorial underlining throughout].
[6] At that judicial review hearing Mr Gerald Simpson QC appeared with
Mr Richard Shields for the applicants Mr Doran and DA and Dr Tony McGleenan
QC appeared with Mr Philip McAteer for the respondents. That hearing was
arranged at the earliest possible date to allow an exchange of affidavits and skeleton
arguments. The urgency arises from the fact that the Minister will cease to hold
office on 2 March, the day of the elections to the Northern Ireland Assembly. As
Dr McGleenan pointed out that election was in fact triggered by the controversy
about this scheme. It would be to unfairly deprive the Minister of his role if a
decision on this application was not delivered prior to that date. I have undertaken
to deliver a decision and, if possible, a judgment by that date, which I now do.
[7] Inevitably in the circumstances this judgment will be less refined than would
otherwise be the case.
[8] In particular I would propose to recite some of counsels’ arguments in the
course of my consideration of the different grounds for challenging the decision
rather than setting them out in sequence in extenso. I have nevertheless taken them
all into account. I am grateful to counsel for their able written and oral arguments.
[9] The scheme itself operates under the Renewable Heat Incentive Scheme
Regulations (NI) 2012. These Regulations to which I will turn in a moment were
made under Section 113 of the Energy Act 2011 (UK). That Act in turn was
prompted by EU Directive 2009/28/EC – Energy from Renewable Sources. Recital
19 of that Directive established that there should be mandatory national targets for
energy from renewable sources. The European Union target was to be 20% by 2020
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(Recital 8). Support schemes were permitted which would be an exception to state
aid prohibitions so that they would allow approximately a 12% return on capital
invested. One of the reasons for controversy is, as counsel for the respondents said,
that many recipients are in fact achieving a 100% return or more on investment.
[10] By paragraph L/140/46 of the Directive the UK target of 15% from renewable
sources by 2020 was set. On foot of that the Act was passed and Regulations were
implemented here.
[11] As is now perhaps notorious the Regulations in Northern Ireland closely
followed the equivalent Regulations in England and Wales in most respects but
departed from them in a number of key regards. In particular no cap was provided
on the amount of kilowatt hours a recipient of grant aid could claim for in the course
of any year.
[12] It is important, for the purposes of this hearing and the entitlement or
otherwise of the Minister to disclose the names of recipients of payments to look at
certain aspects of the Regulations. Regulation 3 reads as follows:
“Renewable Heat Incentive Scheme
3.-(1) These Regulations establish an incentive
scheme to facilitate and encourage the renewable
generation of heat and make provision regarding its
administration.
(2) Subject to Part VII at Regulation 24, the
Department must pay participants who are owners of
accredited RHI installations payments referred to in
these Regulations as ‘periodic support payments’, for
generating heat that is used in a building for any of
the following purposes –
(a) heating a space;
(b) heating liquid;
(c) for carrying out a process.”
It is relevant for these purposes to note the statutory obligation on the Department to
pay the owners of the installations in accordance with Part VII in Regulation 24.
This is relevant to the issue as to whether is one dealing here with a binding contract
between the parties or with a public law claim, subject to public law principles.
[13] By Regulation 22 an owner of an eligible installation may apply for that
installation to be accredited. That is to be done in writing. The Department is
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