FRACKING has not been banned in Scotland, despite numerous “mistaken” statements by SNP ministers to the contrary, the country’s highest court has ruled.
Rejecting a bid to overturn the ‘ban’, the Court of Session ruled there was no prohibition against the controversial gas extraction technique, merely an evolving planning policy.
Lord Pentland said statements by ministers, including Nicola Sturgeon, that there was a ban “did not accurately express the legal effect of the decisions” involved.
READ MORE: Angela Haggerty- How the Scottish Government just made a fool out of big boys Ineos
Indeed, “the Lord Advocate, on behalf of the Scottish Ministers, made it clear to the court that such statements were mistaken and did not accurately reflect the legal position”.
Lord Pentland concluded that “as a matter of law, there is no prohibition against fracking in Scotland”.
The ruling followed the SNP government telling parliament in October that fracking had effectively been banned through the use of planning powers.
READ MORE: Letter - Analysis of fracking situation was based on incorrect information
Energy minister Paul Wheelhouse told MSPs “fracking cannot and will not take place in Scotland”, while Nicola Sturgeon said “fracking is being banned in Scotland - end of story”.
At the SNP conference, transport minister Humza Yousaf also mocked Scottish Labour for “bizarrely claiming it isn’t a ban – It is.”
However last month, when petrochemical companies Ineos Upstream Ltd and Reach CSG sought a judicial review of the effective ban, the government changed its tune.
READ MORE: Angela Haggerty- How the Scottish Government just made a fool out of big boys Ineos
Government lawyer James Mure QC argued the action was premature as SNP ministers had “not yet adopted a position” after all, merely announced a preference for a ban.
He said: “The concept of an effective ban is a gloss. It is the language of a press statement.”
In a judgment issued on Tuesday, Lord Pentland agreed with the government and rejected Ineos and Reach CSG's case.
After the judgment was released, the SNP rewrote the environment section of its website, deleting the words "The Scottish Government has put in place a ban on fracking in Scotland".
READ MORE: Letter - Analysis of fracking situation was based on incorrect information
Fracking involves water and chemicals being pumped at high pressure into underground shale beds to release methane gas.
Critics say it is a threat to public health and worsens climate change, while advocates say it offers the potential to boost the Scottish economy and create jobs.
Ineos, which runs the Grangemouth refinery and already imports US shale gas as a precursor for petrochemical works, would like to frack gas in the Central Belt.
It has previously accused the government of an “Alice in Wonderland” position on fracking.
Ineos said it now expected all planning applications for fracking to be considered on merit, not "prejudice and political expediency" and ministers of wasting public money by not being clearer earlier.
READ MORE: Angela Haggerty- How the Scottish Government just made a fool out of big boys Ineos
Mr Wheelhouse, who told MSPs there was a ban, welcomed the Court saying there wasn’t.
He said: “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.
READ MORE: Angela Haggerty- How the Scottish Government just made a fool out of big boys Ineos
“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.”
Lord Pentland quoted Ms Sturgeon and Mr Wheelhouse’s statements in parliament about there being a ban, but said their accuracy was not the core issue.
He said: “The legal question is not whether ministers have accurately described or commented on their understanding of the legal effect of the various steps they have taken or authorised to be taken under the planning system, but the fundamentally different question of what the legal effect of those steps really is.
READ MORE: Letter - Analysis of fracking situation was based on incorrect information
He added: “The ministerial comments reflecting the opinion that there was an effective ban on fracking are (a) irrelevant to the legal question before the court; (b) not binding on the court; (c) in any event, not determinative of the question of construction that the court has to address; and (d) to the extent that they did not accurately express the legal effect of the decisions taken must be left out of account when it comes to answering the legal question.”
“To the extent that some sections of the ministerial statements made to the Scottish Parliament were capable of being read as suggesting that the policy would amount to a ban on fracking, Mr Mure QC accepted on behalf of the Lord Advocate that such statements did not accurately reflect the legal position; they were to that extent mistaken.”
Tory MSP Alexander 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.
READ MORE: Fracking not banned after all, SNP government tells court
"But now the SNP government has succeeded in a court case on precisely the opposite argument – that there is no ban in place.
"The sheer incompetency involved from the nationalist government is embarrassing for the country as a whole."
Mary Church of Friends of the Earth Scotland, which was also a party to the action, said it was “delighted” that Ineos has lost its challenge
She said: “Today's ruling will come as a huge relief to the thousands of people who have fought to stop fracking in Scotland, particularly those faced with the prospect of living near this dirty, damaging industry.
“Ineos should listen to the people and parliament of Scotland who have made it clear that there is no support for fracking, and give up on its plans to trash the central belt and climate.
READ MORE: Angela Haggerty- How the Scottish Government just made a fool out of big boys Ineos
"We urge the Scottish Government to move forward with its decision making process on fracking as swiftly as possible and use the powers now available to them to legislate for a full ban, and draw a line under the issue of unconventional oil and gas extraction for good.”
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."
He added: "It is astonishing how the government could have got this so wrong.
READ MORE: Angela Haggerty- How the Scottish Government just made a fool out of big boys Ineos
"If Scotland wants to be considered as a serious place to do business then it is imperative that Government ministers can be taken at their word. We cannot have a situation where we need to go to court to find out what government policy is.
"Business needs a transparent environment that will encourage investment in Scotland for the long-term.”
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