Fracking has not been banned - despite Scottish Government claims, says court

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Fracking has not been banned in Scotland despite “mistaken” statements from Nicola Sturgeon and her government suggesting it had been, the Court of Session has said.

A judge ruled that unconventional oil and gas extraction has not been outlawed in Scotland when considering a bid by petrochemical giants Ineos to start fracking in Scotland.

First Minister of Scotland Nicola Sturgeon during First Minister's Questions at the Scottish Parliament in Edinburgh. Picture: Jane Barlow/PA Wire

First Minister of Scotland Nicola Sturgeon during First Minister's Questions at the Scottish Parliament in Edinburgh. Picture: Jane Barlow/PA Wire

At the Court of Session, Lord Pentland rejected Ineos’s attempt to overturn the Scottish Government’s decision to outlaw fracking on the grounds that a ban wasn’t actually in place.

Lord Pentland’s judgement noted several references to a ban made by Scottish ministers including Ms Sturgeon, who in October last year told parliament: “Fracking is being banned in Scotland – end of story”.

Lord Pentland’s judgement noted that when the case was being heard in court Scottish Government lawyers had said such statements were “mistaken and did not accurately reflect the legal position”.

The judge said the government’s stance that there was “no legally enforceable prohibition” was “soundly based”.

He added: “There is indeed no prohibition against fracking in force at the present time.”

Rather than a ban, Lord Pentland said there was an “emerging and unfinalised planning policy” expressing no support on the part of the Scottish Government for the development or extraction of Unconventional Oil and Gas (UOG) in Scotland”.

Summing up his decision, he said: “I conclude that since there is no prohibition against fracking, the petitioners’ case is unfounded. Their application for judicial review of the alleged ban must accordingly fail.”

Tom Pickering , Operations Director INEOS Shale, said: “We are in the extraordinary position where a senior judge has effectively concluded that the Scottish Government did not know what it was doing. He has ruled that there is no fracking ban in Scotland. We are sure that this will be a surprise to all those who heard the First Minister and others repeatedly tell Holyrood the exact opposite. It is for MSPs to decide whether Parliament was misled deliberately or simply through incompetence.”

Scottish Conservative energy spokesman Alexander Burnett claimed the SNP had deliberately misled businesses and communities on fracking.

Mr Burnett said: “The SNP has spent the last year deliberately misleading not only businesses who want to invest millions in Scotland, but communities too.

“From the First Minister down it has claimed fracking is banned – no ifs, no buts.

“But now the SNP government has succeeded in a court case on precisely the opposite argument – that there is no ban in place.

“From a business perspective, the SNP has misled businesses who could contribute to an economic boom in Scotland, creating thousands of jobs and lowering energy bills for those who need it most.

“And in terms of the general public – whether people are in favour of fracking or deeply opposed to it – it is clear the SNP has taken them as fools.”

He added: “The sheer incompetency involved from the nationalist government is embarrassing for the country as a whole.”

But Energy minister Paul Wheelhouse welcomed the court’s decision to reject Ineos’s challenge.

Mr Wheelhouse, who, like Ms Sturgeon, had previously declared that a ban was in place, said that a “moratorium” on fracking was in place in Scotland meaning unconventional extraction could not take place.

Mr Wheelhouse said: “I welcome the Court of Session’s ruling on this important issue, which has been a cause of acute concern in communities across Scotland.

“This decision vindicates the extensive process of research and consultation which the Scottish Government has undertaken since 2015.

“As I set out in October, our preferred position is not to support Unconventional Oil and Gas extraction in Scotland, and that position remains unchanged.

“I have repeatedly set out to parliament that we would undertake a Strategic Environmental Assessment (SEA) ahead of finalising that position and that approach has been endorsed by the overwhelming majority of the Scottish Parliament.

“The work to complete the SEA and a Business and Regulatory Impact Assessment is currently underway and the findings will be carefully considered.

“In the meantime, a moratorium is in place which means no local authority can grant planning permission and Ministers would defer any decision on any planning application that did come forward until the policymaking process is completed. The practical effect of the current moratorium and the policymaking process which is underway to finalise our position is that no fracking can take place in Scotland at this time.”