When is a ban not a ban? Day 2 of Ineos legal challenge over fracking in Scotland – DRILL OR DROP?

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Scottish fracking ban

Paul Wheelhouse announcing the instruction to local authorities not to support fracking, 3 October 2017.

The Scottish Government created an unlawful policy to prevent fracking in Scotland, the lawyer for two gas companies told the Court of Sessions in Edinburgh today.

Gerry Moynihan, QC for Ineos Shale and Reach Coal Seam Gas, said the Scottish Government had, through its public statements, introduced a ban on fracking.

Mr Moynihan was presenting the companies’ case on the second day of their judicial review of the government’s instruction to local authorities not to support fracking planning applications.

Yesterday, James Mure QC, for the Scottish Government, urged the court the reject the challenge. He said:

“The concept of an effective ban is a gloss. It is the language of a press statement”.

The government had not yet adopted a position, he said. This would finalised after an environmental and strategic assessment, expected in October 2018. The Scottish Government had continued the existing moratorium, he said.

But Mr Moynihan said today:

“The Scottish Ministers have acted unlawfully. If one looks at the statements which have been made one thing is clear – there is a ban on fracking in place.

“The practical issue is that unless the field is cleared these decisions will wallow like a black cloud over matters.

“It was said that it was a gloss. We are dancing around handbags – what does a gloss even mean?”

Mr Moynihan said the Scottish Government’s decision had implications for the companies. There was no point in them proceeding with applications for planning and environmental permissions, he said. There had been no consideration about the financial impacts on them.

“Misleading statements”

The debate about a bans or moratoriums spilled out of the court room into Scottish politicians today.

The Scottish Conservative energy spokesperson, Alexander Burnett, said yesterday’s hearing had been “beyond humiliating” for the SNP. He said:

“People will be stunned that a QC representing the SNP government in court could so spectacularly contradict the claims and parliamentary statements of Nicola Sturgeon and Paul Wheelhouse

“Both should explain to parliament as a matter of urgency why these seemingly misleading statements were made.”

Scottish Labour’s spokesperson, Claudia Beamish, said:

“Nicola Sturgeon and her ministers told MSPs – and more importantly campaigners and communities – that Scottish towns and villages were no longer at risk from fracking and the environmental damage it can cause because they had banned it.

“Now the government’s lawyer is saying the opposite, saying it is the language of a press release.

“SNP ministers need to explain this fast. It isn’t sustainable for the SNP to be saying one thing on their leaflets, website and in press releases and something else entirely in a courtroom.”

Mark Ruskell“Desperate attempt”

Mark Ruskell, for the Scottish Greens, described the Ineos court action as “a desperate attempt by a mega-rich multinational that knows it’s lost the argument, while pretending to ignore the democratic will of the Scottish Parliament.”

He said:

“We’ve argued for a long time that the extension of the government’s planning moratorium wasn’t a real ban, which is why Greens strengthened it in October 2017, with a majority at Holyrood supporting our call to prevent a future government overturning the policy on a whim.

“As a result of Green campaigning, the ban is now included in the Energy Strategy and will soon become part of the National Planning Framework. We continue to monitor the Scottish Government’s work on this.”

“Evidence-led approach”

The SNP rejected suggestions that it had misled parliament. A spokesperson for the party said:

“These claims defy all logic. If the Tories are right – and they’re not – why has Ineos taken its case against a ban to the Court of Session?

“There is no fracking in Scotland and there can be no fracking n Scotland. That’s because the SNP has taken decisive action, which builds on our existing moratorium

“And let’s not forget: the Scottish Government’s plans won the support of the Scottish Parliament

“The SNP has taken a cautious, evidence-led approach and is implementing a ban in line with the views of the vast majority of Scottish people, who cited concerns for the environment, their communities, and the impact on public health.”


More than 14,000 people have signed a 38 Degrees petition calling for the “ban” to stay in place, 2,000 of them in the past 10 hours.

  • The case is expected to end tomorrow (10 May 2018).

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