High Court rules on reviewability of self-regulatory bodies in microgeneration sector

01/12/21

The High Court has today held that decisions concerning membership of self-regulatory organisations regulating consumer protection in the microgeneration sector are not amenable to judicial review.

The Claimant was an established installer of microgeneration systems which had been declined membership of one of three self-regulatory bodies operating in this industry, the Renewable Energy Consumer Code – or “RECC”, which is operated by the First Defendant to the claim. The Claimant then appealed this decision to an independent panel (the Second to Fifth Defendants) which reached the same conclusion after considering the matter afresh, and directed that no further application for membership be considered for twelve months.

The Claimant’s case was that the regulatory scheme was such that membership of a code such as RECC was a de facto requirement to operate as an installer of domestic microgeneration systems. This is because the Secretary of State for Business, Energy and Industrial Strategy offers a number of incentives to those who operate microgeneration systems. The Secretary of State is also required by statute to maintain a regulatory certification scheme for installers of domestic small-scale renewable energy generation systems; this obligation is discharged by means of the Microgeneration Certifications Scheme (“MCS”). If an installer is not certified by the MCS, Government incentives are not available. The MCS has, in turn, decided that installers must be members of a self-regulatory consumer code approved by the Chartered Trading Standards Institute as part of its self-regulation initiative, the Consumer Codes Approval Scheme. At present there are three such consumer codes (including RECC), although from March 2022 there will only be two.

After reviewing the authorities concerning when a self-regulatory body will be subject to the Court’s review, the Court concluded that the decision to refuse the Claimant membership of RECC was not amenable to review by the Court. The Court noted that it was an important consideration that there was no requirement in the underlying legislation to establish a consumer protection mechanism such as that offered by RECC. The Court also placed emphasis on the fact that RECC was not the only consumer code available to installers, and that the Claimant had voluntarily elected to refer the matter to an independent panel.

The Court went on to explain why, even if the Defendants’ decisions were amenable to review, the substantive claim for judicial review would in any event fall to be dismissed.

The Judgment is here.