First Minister Nicola Sturgeon stated before the Scottish parliament in October 2017 that she welcomed the fact that “fracking in Scotland is banned.”
Yet, it appears that the Scottish courts disagree.
The background
Ineos holds two onshore petroleum exploration and development licences in the Central Belt which are thought to have potential for the extraction of unconventional oil and gas (“UOG”) or “fracking”.
Any plans Ineos had for UOG extraction in Scotland were shelved in 2015, when the Scottish Government imposed a temporary moratorium on fracking by way of a planning direction.
In October 2017, following an extensive consultation, the Scottish Government stated that it would not support the development of UOG in Scotland and that the 2015 planning direction was going to be kept indefinitely.
Ineos and others challenged this “ban” with a range of arguments ranging from legitimate expectations to human rights.
An emerging policy
Lord Pentland came to the conclusion that there was, from a legal standpoint, no fracking ban in effect.
The Scottish Government’s process of developing and adopting a planning policy for UOG development was not yet complete.
Key stages of finalising such a policy still had to be completed. This includes a strategic environmental assessment (under the Environmental Assessment (Scotland) Act 2005) and a business and regulatory impact assessment. Until these assessments were complete, it was merely an emerging policy.
It was not appropriate for the court to interfere in these procedures, particularly given that Ineos still had an opportunity to fully contribute to and participate in them.
A policy, not a prohibition
Even if you discounted the fact that the emerging policy was not complete, in its current form it is still not a ban: it merely states that the Scottish Government will not support UOG activities. This statement of policy is not an attempt to lay down any concrete, legally enforceable rule prohibiting such activities.
Planning policies in Scotland are not hard and fast rules. They are what they profess to be: policies. A decision maker is not legally bound to follow a policy and is entitled to depart from it where the circumstances suggest that is necessary. The Scottish Government’s fracking policy was merely something to consider in light of all the facts surrounding an application concerning UOG activities. There is no requirement for the Scottish Government to expressly state this in the policy itself, which can be expressed in “broad, unqualified, and indeed robust terms”.
The planning direction from 2015 was procedural and had had nothing to do with the "content, meaning or effect of any planning policy”. Thus, it could not be considered to be a ban in of itself.
Political statements
It was noted that the statements made by politicians, including the First Minister, on the consequences or merit of the emerging policy were irrelevant when assessing its legal standing. These were non-binding political interpretations of the emerging policy, not factual assertions as to its legal grounding.
Other lines of argument
Although the conclusion that there was no ban effectively decided the case, Lord Pentland made some interesting comments when he ran through the remainder of Ineos' arguments.
Firstly, he noted that the unfinalised nature of the ban also meant there could be no human rights implications under A1P1, although his Lordship reserved judgment on whether such A1P1 implications could even apply to petroleum explorations and development licences.
Despite the fact oil and gas exploration is a reserved matter under the Scotland Act 1998, Lord Pentland was of the opinion that, even if there was an actual ban, this would not fall to be a reserved matter as it concerned the devolved matters of planning policy and environment.
The judgment is available in full here.
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