Tell the Scottish Government: "Gie's a legal ban"

Members of the Broad Alliance and environmental campaigners will be lobbying the SNP’s Spring Conference on Saturday April 27 and Sunday April 28 from 9am to 11am at the Edinburgh International Conference Centre in Morrison Street. More details here - please come along.

We are there to support an emergency resolution put to the conference by SNP Members Against Unconventional Gas (SMAUG). It asks the Scottish government to change its position on unconventional gas, which they have now made clear is to continue the current moratorium rather than to introduce legislation to ban onshore fossil fuel developments.

Many people ask why we continue to seek a legal ban; for some reason they believe that a moratorium is less open to legal challenge from INEOS. In our view this is not correct, and in fact the opposite is the case. Friends of the Earth Scotland has commissioned legal advice which argues that a moratorium is more open to challenge because it is only an administrative measure; a law has greater status.

The legal opinion explains 

“as a matter of devolved politics, if there is a political consensus within the devolved institutions that there should be no unconventional oil and gas extraction in Scotland, then the surer way successfully to defeat any further legal challenges which might be brought by oil concerns aggrieved at this position, would be for a ban expressly to be enshrined in primary legislation from the Scottish Parliament, rather than simply left to the administrative or planning discretion of the Scottish Ministers.

“This is because the courts regard measures involving political, social and economic issues as falling centrally within the legislature’s discretionary area of judgment and would respect its decision as to what was in the public interest unless it were shown to be manifestly unreasonable. That is a higher test than the courts will set for a successful challenge to purely administrative action…”

The Scottish government’s “preferred position” is confused and confusing. It has been updated a number of times and is hedged around with phrases such as “a cautious, evidence-led approach”. This opens the door to future “evidence wars”, with INEOS proposing that the industry’s evidence should rule as it has the backing of the global oil and gas industry, the industry body UK Oil and Gas (UKPG) and of course the UK government. 

The Broad Alliance has been told that there is now to be another consultation on the definition of the “preferred position”, which may be the result of concerns of government lawyers. The Broad Alliance will respond to the consultation in good faith, of course, but will continue to demand a legal ban.

The “preferred position” will give rise to a clause in the National Planning Framework (NPF) with a presumption against giving planning permission for any onshore oil or gas venture. We are told that this will be enough to prevent fracking. But the National Planning Framework is not a statute, and can be changed by Ministers. The present government say they will not change it – but who knows what the future holds? We believe that Planning Bill currently going through the Scottish Parliament could be amended so that the NPF cannot be altered without the change being brought back to Parliament for decision.

Another issue that the industry’s could cite in its favour is that last year the Scottish government chose to use its newly-acquired powers over onshore licensing to renew the exploration and development licence for PEDL 162. And because they did that, they will have to renew the other PEDL 133 when it expires in June, because it would not be reasonable to renew one and not the other. How could they argue in court that they renewed the licences, but that they are not now going to allow the owners of the licences to exercise their rights to explore for gas.

If you would like to read the legal opinion in full you can find it here.