November 17th, 2014

In Solar Century Holdings Ltd v Secretary of State for Energy and Climate Change [2014] EWHC 3677 (Admin) the submissions made for the Claimant included that (1) certain pre-legislative statements were admissible and in effect bound the Government, according to the principles laid down by Lord Steyn in R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38 at paragraph 6, (2) certain statements made by the Government were “clear and unequivocal” representations which gave rise to a legitimate expectation, and (3) the expectation could not be trumped or thwarted by any of the policy considerations advanced by the Government.  Green J rejected all these submissions.  The case concerned renewable energy sources by way of large scale “solar farms”, governed by the Electricity Act 1989, as amended by the Energy Act 2013, and whether the Government was bound to maintain a particular scheme in place until 2017.  Clear and repeated representations had been made to that effect, but they had always been qualified.

As to (1) above, Green J said, at paragraph 48: “If … the language of the enactment is clear and unequivocal and inconsistent with the pre-legislative material, then a court cannot assume that Parliament necessarily intended to translate into statutory form the will of the Executive”.  At paragraph 52, Green J stated the principles as follows:-

“i)         When construing an enactment, including the exercise of power under an enactment, it is relevant to identify the intention or purpose of the measure, i.e. the mischief to which it is     directed.

ii)         In all cases (save with regard to consolidating enactments) the purpose or mischief may be identified by the posing of questions …  such as: If the legislation has changed, what has changed? If there is a problem which had to be resolved, what was the problem? If there was a blemish in the legislation, what was that blemish? If there was an improvement which was sought to be achieved, what was that improvement?

iii)         To identify the purpose or mischief and to answer these questions it is permissible to examine Explanatory Notes, White and Green Papers, Ministerial statements … and Law Commission Reports, all of which may be admissible forms of evidence.

iv)         However, not all such admissible sources are of equal weight. Those sources (such as Explanatory Notes) whose “shape” was closely connected to the “shape of the proposed legislation” may be more informative as guides (Westminster City Council) than other sources which are more remote from the final language selected by Parliament.

v)          In addition, a court may draw inferences from the statutory words actually used in the scheme of the legislation as a whole and from any case law on the underlying subject matter and a court might ask whether it may be inferred that Parliament intended to act consistently with the standard set out in case law … .

vi)         Material that is admissible will reflect the views of their authors. And the views of authors, including the Government of the day, do not necessarily reflect the will of Parliament (Westminster City Council). If there is an inconsistency between the statutory language and the pre-legislative, admissible, material it cannot, without more, therefore be assumed that the statutory purpose must reflect the purpose set out in pre-existing admissible material.

vii)        However, if there is a collision between a literal interpretation of an enactment and the contextual material with the consequence that the literal interpretation “is manifestly contrary to the intention which one may readily impute to Parliament, when having regard to the historical context and the mischief…“, then the enactment should be construed in the light of the purpose as evident from the historical context and mischief…”.

As to (2) above, Green J said, at paragraph 72-76:-

“72.      When what is objected to is the abrogation of a policy or a change of policy the starting point is that once a policy is promulgated and said to be settled there needs to be a rational ground for terminating it … But there is no presumption that policy cannot change; on the contrary it plainly can do so and frequently does. So the issue become whether there can be identified a representation of sufficient certitude that the policy will not be changed regardless of surrounding circumstances. As to this a representation that a policy will continue until a specified date is not the same as a promise that it will never be changed even if circumstances change. If it were otherwise then an intention to pursue a policy for a fixed period would become set in stone and permanently unyielding to changes in relevant circumstances however compelling they might be.

73.       And even if a sufficiently certain promise or representation has been made that a policy will continue in force and not be changed until a fixed date there is always a balance still to be struck between the retention of that policy and the strength of the (ex hypothesi) rational grounds which have arisen and which now are said by the Government to necessitate a frustration of that prior representation or promise. The test laid down by the Courts is whether the change of policy and the concomitant thwarting of the prior expectation amount to an abuse of power….”

“76.      …recognising that policy can change there is still a duty on the decision maker to weigh up the competing interests. There is no unfettered right to change policy (even for good reason) without putting those good reasons into the melting pot with the other countervailing reasons favouring retention of the policy and forming a rounded assessment of where the balance lies: …”

As to (3) above, Green J said, at paragraph 90:-

“… I consider that even if there were a legitimate expectation which arose it was amply offset by the powerful public interest considerations on the other side of the equation and the frustration of that expectation is not, nor comes close to being, an abuse of power.”

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