RHI scandal: Companies on scheme can be named, says judge

The RHI scheme could cost the NI taxpayer up to �490m
The RHI scheme could cost the NI taxpayer up to �490m

Companies on the botched Renewable Heat Incentive scheme can be publicly named by a Stormont department, a High Court judge ruled today.

Mr Justice Deeny held there is an overriding public interest in Economy Minister Simon Hamilton releasing the details of corporate bodies signed up to a green energy initiative set to cost the taxpayer up to £490m.

But he banned Mr Hamilton from disclosing the names of individuals claiming under the scheme until any objections they have to being identified are properly considered.

It was also revealed that one company with seven boilers has received more than £300,000 since July 2015.

The verdict was delivered on the eve of Assembly elections called after the RHI scandal led to the collapse of the power-sharing institutions.

The judge confirmed that Mr Hamilton is now legally entitled to reveal the names of corporate recipients before he goes out of office.

More than 500 RHI non-domestic operators took legal action in a bid to stop disclosure of their details.

Members of the Renewable Heat Association of Northern Ireland claimed the move breaches privacy and data protection laws.

Disclosure would also create a media “feeding frenzy” and lead to a “witch-hunt” of individuals who have done nothing wrong, they argued.

However, Mr Justice Deeny found that the minister was not bound by any legal contract and could take the unilateral step of releasing details.

He also decided publication was justified under the stated aims of ensuring transparency about all beneficiaries.

“It seems clear that the economic well-being of the country is being damaged by excessive payments well beyond that contemplated by the European Union being made because of the way the scheme was operated in Northern Ireland,” he said.

The judge stressed that the planned disclosure was about recipients of grant aid.

Backing freedom of expression over privacy rights, he said: “It is not that one suffers from a disease or one’s marriage is in difficulties or one is carrying on an illicit relationship of a sexual kind.

“It is not disclosure of some piece of criminal folly from one’s youth.”

The RHI initiative was set up to encourage businesses to move from using fossil fuels to renewable heating systems.

But it has been engulfed in controversy and dubbed the ‘cash for ash scandal’ since it emerged that users could legitimately earn more cash the more fuel they burned.

A public inquiry into the whole process is to be chaired by retired appeal court judge Sir Patrick Coghlin.

Mr Hamilton was set to publish the names of RHI operators last month, but his plans were put on hold after the association launched judicial review proceedings.

Counsel for the group claimed in court they were being used as a political football.

He alleged that the minister wanted to release the list to embarrass others and divert attention from any ministerial and departmental responsibility.

Amid suggestions that DUP “cronies” benefited from the scheme, he contended that the intention was to have everybody else “tarred with the same brush”.

But the judge rejected his assessment of Mr Hamilton’s motives when he referred in the Assembly to supporters of other parties being revealed as RHI recipients.

“That does not permit the court to draw a conclusion that the minister was acting in bad faith or that he he did not desire transparency,” he pointed out.

Lawyers representing the department had argued that releasing details of those on the scheme was necessary due to its “seismic” impact on Nothern Ireland’s political arrangements.

Mr Justice Deeny agreed with their assessment of the potential fall-out.

“The respondent has established the test of reasonable necessity with ease,” he said.

“This matter is one of acute public interest.”

The judge noted a wide range of benefits among those on the scheme.

One well-known company with seven of the 99 kilowatt capacity boilers attracting the higher rate of subsidy have received £302,000 in funds since July 13, 2015.

Another firm has 10 of the 99kw boilers all at one postal code area.

“There may be reasons why some operators are content to have a large capacity boiler which then attracts a quite modest subsidy whereas others choose to have multiple 99kw boilers, but this can be explained to any inquiring journalist or member of the public,” Mr Justice Deeny continued.

Acknowledging submissions that “shining a light” on the scheme will ensure high standards, he cited an added potential benefit from the minister’s decision.

“Taxpayers’ money will be saved if abuses are discouraged by the disclosure of the identity of recipients of support payments,” he said.

“I find that the respondents have made out the case both in law and on the strikingly unusual facts of this case, by a wide margin, that there is, if required, an overriding public interest for achieving transparency here by disclosing the names of beneficiaries along with the other information which they had all agreed would be published under the privacy policy.

“The applicants therefore fail on the contract and legitimate expectation grounds.”

However, he held that the department had failed to properly consider any objections from individual recipients who felt disclosing their details was unwarranted.

He ordered that a proper process complying with the Data Protection Act must be carried out before these people can be named.