A Message From Abroad

I’m extremely lucky to have friends all over the world. Many of whom I’ve met in what we call ‘real life’.

Others sadly are not in a position to meet up and hang out.

This is because they don’t live in what is termed, the ‘civilised’ West.

Thanks to the internet, social media and a shed load of tools, we can now meet people from countries and cultures, that have been until very recently an exotic mystery to us. And I’m sure us to them.

It turns out we’re really very much the same. No matter what our respective governments and (most) main stream media would like us to think.

What is different is the systems we live under. Do we call them governments or regimes? It depends on the country we’re talking about and who is doing the talking.

Here in the increasingly authoritarian UK we tend to hear talk of democracy and the ‘Mother of Parliaments’.

How very ironic. The ‘Mother of Parliaments’ has managed to get into such a state that we are now trying to reverse a two child cap on tax credits and the hideous ‘rape clause’. A clause we are told is there to ‘protect’ mothers who conceive by rape. The ‘Mother of all Parliaments’ is indeed out-doing any wicked step mother that fiction has ever conjured up.

I told one of my friends, Milad, in one of those mysterious exotic countries about this latest ‘progress’. He lives in a country our UK Government would not refer to as a free and fair democracy (mind you, nor would he), Iran.

His response floored me “What the fuck? Gearing up to be another Afghanistan?”

I suggested that on May 4th (the local council elections in Scotland), I should stand outside the polling station (at a respectable distance), with a printed version of the form women will need to fill out for a third or subsequent child in order to clam tax credits for said child.

His response came through the web as a warning to us all.

“I like the way ya can print stuff and distribute them and not get arrested. Take care and nurture that democracy.”

 

 

Britain is not the UK

I am so sick sore and very bloody tired of this confusion.

This will be a very very short post.

BRITAIN IS NOT THE UK.

Britain is a land mass.

The UK is a union (hahaha) of member states. Namely Scotland and England.

Wales (god help them is an add on) are they even on the map? You might want to check they’re still there, seems like British Labour In Wales have been let loose with the crayons again..

wales

And Northern Ireland doesn’t even get a look in at the Olympics. Team GB tosses them out in the cold.

So, can we do our very very best to unpick the annoying Britain = UK (+ a whispered NI)

One of the most confused articles I saw on this recently was to do with the railroads, now there’s irony for ye. Look at this article. Oh hell, I only just noticed it’s from @OwenJones84 I assume it’s that Owen Jones.

It may seem trite it may seem over egged. But language is very very important. Without having a sodding framework we can’t communicate. So every time you see Great Britain / Britain / UK mixed up. Ask yersel, what the hell are they meaning?

 

 

A Peculiar Train of Thought

This has been bothering me since yesterday. For the life of me I can’t get my head round the thinking behind it.

There was a piece in BuzzFeed news about the upcoming election of the new rector at Glasgow University. A petition has garnered nearly 2000 signatures demanding that two people be removed from the list of candidates.

All fine and good. People express opinions and demand action via petitions all the time.

What I can’t understand is the stance the University of Glasgow’s feminist society has decided to take. Which is, they will NOT VOTE unless the list is altered and the two candidates are removed.

I know it’s a well worn and maybe at this point almost threadbare point to make, but do we still remember all those who went before us, who fought long and hard struggles to gain the right to vote?

In what alternative world do feminists not use their vote to amplify their voices, to push back against that with which they do not agree?

They have stated that they will boycott the election.

I’m seeing some confused thinking here. Boycotting and voting are two quite different actions.

Where we don’t have the luxury of a vote we can sometimes turn to boycotting. Don’t like a companies behaviour? Boycott them. Don’t like a particular candidate? Vote for someone else who does stand for what you believe in.

What happens if by not voting they inadvertently allow in one of the candidates they want removed. What if it happens by a tiny number, like 1, when their votes could stop it?

I wonder what the women of the world who are still fighting for the right to vote would make of this.

To boycot your own vote is to me, nothing more than silencing your own voice.

One thing usually leads to another

Especially if you ask a question on Twitter.

It’s Sunday, my day of reading. It always starts out with a quick check in on Twitter followed by the Sunday Herald. We have a bit of a tradition in our house where I read some of the articles to the other half while he makes breakfast and if he can bare it, after we’ve had breakfast too. We both still miss the great Ian Bell very very much.

In today’s Sunday Herald  was an article “Robin Hood” land reform revolution. Land reform campaigners highlighting a long forgotten 1919 Land Settlement (Scotland) Act as a possible way of giving the state powers to purchase land against the owners will and rent it to ordinary folk.

An interesting read with (to me) an admirable purpose. And that was that, I put the paper down and popped back to Twitter just in time to spot @PeatWorrier raising questions about the legislation and, as I tend to, I asked him a question in response. Andrew has a wonderful habit of not answering a straight question, but tends to respond with something additional. He could have said “yes” or “no” instead I got:

“We can’t evade the thorny A1P1 property rights issues.”

What did we do before Google?

A quick search led me to The Council of Europe handbook on The Right To Property: A guide to the implementation of Article 1 of Protocol No. 1 to the European Convention on Human Rights. Dry reading you might think, maybe I’m odd, but I found it fascinating.

Then I wondered, where are we at with the Tory plan of scrapping the human rights act, it all seems to have gotten very quiet around this subject.

The most recent article I could find is from February 25th this year, so it’s not gone away.

“Scrapping the Human Rights Act will help protect human rights, the Attorney General has argued.”

And back to Google I went. What I found was a series of handbooks covering 14 areas.

“Written by experts in the field, each handbook deals with one aspect of the European Convention on Human Rights or its protocols. The handbooks are intended as a very practical guide to how particular articles of the European Convention on Human Rights have been applied and interpreted by the European Court of Human Rights in Strasbourg. They were written with legal practitioners, and particularly judges, in mind, but are accessible also to other interested readers.”

If you are interested in reading them they are over here

I think that will be the only question I ask on Twitter for today.

 

SNP Abstention on IPBill

And my knee jerk moment.

Having been out all afternoon, I got back to the interwebs to an avalanche of Tweets about the SNP doing that thing we most abhor. They were getting ready to ABSTAIN and ABSTAIN they did.

Calming myself down a notch or ten I went and read Joanna Cherry’s (QC MP) speech in full, twice.

It’s long but worth it. It’s over here . Scroll down till you find her and keep scrolling, she took a number of interventions.

What I picked up from her speech, which might be seen in print easier than by listening to it, was that there appears to be a wish on the SNP’s behalf to overhaul the legislation massively and by that I mean the current legislation and more obviously they want quite a number of amendments to the draft bill. Looking backwards and forward simultaneously if you will.

I’m no political pundit or lawyer, but it seems to me that by abstaining they are giving the chance for the bill to move to the Public Committee stage and showing full willing in shaping that legislation. The optimist in me thinks, oh, we might end up with something better than we have now. The realist in me says the amendments won’t make it through and the SNP will simply vote against at the next stage (which she explicitly stated).

This I think is important given that at Public Committee stage these things happen:

Evidence-taking powers

Public Bill Committees have the power to receive written evidence from outside organisations and members of the public, and to take oral evidence from interested parties, in the same way as Select Committees do, as part of their consideration of the Bill.

Written evidence

Anyone can submit written evidence to a Public Bill Committee. The written evidence that the Committee decides to publish will be available on the internet as soon as possible after the Committee has started sitting, and will also be printed in hard copy at the end of the Committee’s deliberations.

Oral evidence

Public Bill Committees normally take oral evidence at the start of proceedings, starting with evidence from the relevant Minister or Ministers and Departmental officials.

Further witnesses may also be called, in a programme which will be agreed by the Committee at its first meeting. These are likely to include related agencies, interested non-governmental organisations and lobby groups and even individuals with an interest.

I may be naive I may be wrong (it’s known to happen), but isn’t opening up this debate to the public in public a good idea? I think it is. By the way, if you want to have a say, pop over here and you can find out how.

Before you go, have a read of some extracts from Joanna’s speech and see if you read the same things into it as I did.

Joanna Cherry

Joanna Cherry 2

Joanne Cherry 3

Did you?

Two more thoughts. Then I’ll stop I promise.

  1. The letter in the Guardian from 200 top lawyers stated:

If the law is not fit for purpose, unnecessary and expensive litigation will follow, and further reform will be required. We urge members of the Commons and the Lords to ensure that the future investigatory powers legislation meets these international standards. Such a law could lead the world.

Full piece here

2. @CostainMcCade  Tweeted at me to say

“Without Tory rebels Bill cannot be defeated – wasn’t going to happen at this stage.”

The question now is, can we get over the idea of the SNP abstaining if it is to try and improve on the legislation that’s both behind and in front of them?

My own answer is yes.

It’s Not Easy Being Green, Part Two: Along Came A Lawyer

So, my first ever blog post took me completely by surprise last week. Instead of the expected crickets and tumbleweed, I ended up with a veritable avalanche of views, blog comments and Tweets. All in all it was a hell of an interesting experience and also brought to the surface the war of words and confusion that seems to be swirling round the subject of UGE (Unconventional Gas Extraction).

The most interesting (to me), thing being, that it appeared we all agree we don’t want UGE in Scotland, we just have different ideas about how it can and should be stopped. Massive amounts of conviction and scarce understanding of the law and mechanisms available to reach our common goal, seemed to be the gist of it.

Then low and behold a lawyer turned up in the post’s comment section. A lawyer specialising in environmental law. I emailed him to thank him for his detailed comments and the idea of a guest post emerged. We decided that the best way to approach it would be a Q&A system. It’s a long and detailed read, 30 questions and answers in total.I’d like to extend a massive thanks to Ian for his time, patience and ability in making the detail so accessible.  Please, grab a coffee / tea and some biscuits…

Without further ado let me introduce you to Ian Cowan.

Guest post for Talking Mince, by Ian Cowan, Highland Environmental Law

  1. The Scottish Government has placed a moratorium on unconventional gas extraction (UGE). A lot of people would like to see a ban in place. What is the difference between a moratorium and a ban? Is there a legal difference or is it simply confusion over language being used?

Some words, in a particular legal context, do have a particular meaning.  But ‘ban’ and ‘moratorium’ are words with no special legal meaning.  I don’t think of either of them as a legal concept, but you might. Confusion certainly can arise because of how you and I might use words in different ways, but I think most people would agree that a ban suggests something permanent, while a moratorium is temporary.  Now if you had said ‘prohibition’ instead of ‘ban’, I would think you might be talking about something legal, because (as we all know) lawyers won’t use a single syllable when four will do.

 

  1. So is the moratorium a temporary prohibition?

Before I answer that, I’m going to do something else lawyers like doing, which I honestly believe everyone could usefully do to avoid some of the confusion over language, except it would take too long, so it’s just not going to happen… I’m going to define my terms. I’ve realised that in my first answer I used the word ‘legal’ 3 times, and luckily it meant the same thing in each case: “to do with law” or “relating to law”. But often it can mean “permitted” or “within the law”. So, in order to be as clear as I can, I am going to use the word ‘legal’ in the same way throughout; and I will use the word ‘lawful’ to mean “within the law”.  To be consistent, I will say ‘unlawful’ instead of ‘illegal’ (which I shouldn’t need to use again).

 

  1. Great. Can you answer my question now?

Sorry.  In effect, yes, a moratorium is a temporary prohibition, but it’s not a prohibition in the legal sense.  Legally, a ‘prohibition’ is making something that was lawful (i.e. within the law) unlawful, or ‘outlawing’ it, and that generally means making it a criminal offence.  But the law has been used to make the moratorium happen, to make it something more than just a word or, as we lawyers like to say, to ‘give it legal effect’.

 

  1. Where exactly are you going with this?

I know, it takes a while to explain, and I need to digress again.  There’s been a lot of talk in Scotland recently about powers: what powers Scottish Ministers have, and what powers they don’t have.  In parliamentary democracies like the UK, new powers are only ever granted by the parliament.  All the powers of Scottish Ministers were granted by the UK Parliament through the Scotland Act 1998 (and the Scotland Act 2012). Some of the powers Scottish Ministers don’t have are powers that were ‘reserved’ to UK Ministers by the 1998 Act.  But other powers they don’t have because, in a democracy, no parliament should grant politicians those powers: for instance, the power to lock someone up indefinitely without trial, or to torture them. Sometimes people refer to these as ‘arbitrary’ powers. Another example of an arbitrary power is the power to prohibit things at short notice with the force of law. In the UK, the only way for a politician to properly prohibit a thing (i.e. make it an offence) is to propose a new law and try to get it through the relevant parliament – in other words legislation, which takes a lot of time, thought and effort.

 

  1. So how has the law been used to give effect to the moratorium?

Imagine you are a Scottish Minister. (“Scottish Ministers” is the formal legal title for the Scottish Government, by the way.) You go to your officials and say “I want to stop all UGE in Scotland until we have done more research and had a public consultation.  What can I do to make that happen? Can I just say it’s banned until I say it’s not?”  Your officials will say: “You are asking us what powers you have to make it happen”. They will then inform you (as you do not appear to know) that, as you are not a dictator in a one-party state (despite what some careless commentators keep crowing), you cannot simply (or ‘arbitrarily’ – more syllables) say “it’s banned until I say it’s not”.  In fact the only existing power you really have (they will then say) is the power to delay UGE.

 

  1. But isn’t UGE a reserved matter under the Scotland Act?

Kind of, but not completely.  Schedule 5 to the Scotland Act is where all the reserved matters are listed.  It covers “Oil and gas, including—(a) the ownership of, exploration for and exploitation of deposits of oil and natural gas…”, so you are partly right.  To drill for and produce gas in or around the UK, you need a licence under the Petroleum Act 1998 – known as a ‘petroleum exploration and development licence’ or ‘PEDL’ (because ‘petroleum’ is defined as including “natural gas existing in its natural condition in strata”) – and at the moment, you can only get a PEDL from a UK body (until recently the Department of Energy and Climate Change, or DECC, but now the Oil & Gas Authority, but that’s not important).

 

  1. What do you mean ‘at the moment’?

Well, Clause 44 of the Scotland Bill currently going through the UK Parliament would devolve to Scottish Ministers “the granting and regulation of licences to search and bore for and get petroleum that, at the time of the grant of the licence, is within the Scottish onshore area, except for any consideration payable for such licences.”   (“Consideration” is another fine example of a lawyerly word, in this case, for ‘payment’ – so you will see that although Scottish Ministers will be able to grant and regulate PEDLs in Scotland, payment for them will still go to the Crown – a subject for another blog-post maybe. And because the provision only covers “the Scottish onshore area”, Scottish Ministers will not be getting the power to grant PEDLs for offshore oil and gas development.)

 

  1. Okay, so in what way is UGE not a reserved matter at the moment?

In order to drill for and produce gas onshore (as opposed to offshore), you need other permissions or licences, in particular planning permission and an environmental licence.  Planning and environmental regulation are not listed in Schedule 5 to the Scotland Act, which means they are devolved matters, and, as it happens, both Scottish planning legislation and Scottish environmental legislation give Scottish Ministers significant powers.

 

  1. But don’t local councils make planning decisions?

Yes, they do, in their role as planning authorities, and environmental licences are granted by the Scottish Environment Protection Agency (or SEPA). But in both cases, Scottish Ministers have supervisory powers.  For example, if a developer wants to appeal against a decision (or a non-decision) by a planning authority or SEPA, they can appeal to the Scottish Ministers.  Dart Energy appealed to Ministers when Falkirk Council had failed to determine their planning application for coal bed methane production at Airth within the permitted time-scales (referred to legally as a ‘deemed refusal’, in other words a non-decision that the applicant could treat as a refusal). The Scottish Ministers can also ‘call in’ planning applications or environmental licence applications, and make the decision themselves. (Who can forget Donald Trump’s golf course application?)

 

  1. So how does that work?

 Ok, you asked for it, but I’ll try to make it clear. Section 46, subsection (1), of the Town and Country Planning (Scotland) Act 1997 says that the Scottish Ministers “may give directions requiring [planning applications] to be referred to them instead of being dealt with by planning authorities”.  (When you see the word “may” in a legal provision, you are looking at a power. If you see the word “shall”, it is a duty.) A ‘direction’ is a formal letter to another authority, literally directing (or ordering) them to do something. (It’s a good example of an ordinary English word that in this context has a special meaning.)  Subsection (2) says: “A direction under this section may be given either to a particular planning authority or to planning authorities generally, and may relate either to a particular application or to applications of a class specified in the direction.”  And planning authorities have a duty to comply with a ‘direction’, because subsection (3) says: “Any application in respect of which a direction under this section has effect shall be referred to the Secretary of State.

 

  1. So the Trump golf course application was “a particular application”?

Yes, and in that case the ‘direction’ was given to Aberdeenshire Council.  In order to give effect to the moratorium – you’ll be pleased to hear we are finally getting to the point now –the Scottish Ministers could have used their power under section 46 of the 1997 Act to issue a general ‘direction’ to all planning authorities, calling in all applications that related to UGE.

 

  1. Did you say ‘could have’?

Yes. They could have, and they might still have to, but local councils don’t much like being ordered around by Ministers, because they are supposed to be accountable to their own voters, so officials would have recommended that you (as a Minister) use another existing power which wouldn’t ruffle so many feathers.  That power is set out not in the primary legislation (the 1997 Act), but in secondary legislation, namely The Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013.

 

  1. Give me a break.

I’ve only just started. These Regulations, as the name suggests, govern the procedure for ‘development management’, which is jargon for ‘dealing with planning applications’. Regulations 31 and 32 allow Ministers to intervene in the normal process for dealing with planning applications by issuing ‘directions’ of two other types. They can direct planning authorities to pass on certain information about planning applications, and they can “restrict the grant of planning permission by a planning authority, either indefinitely or during such period as may be specified in the direction”.  So that’s what they did.

 

  1. They ‘restricted the grant of planning permission indefinitely’?

Good guess, but no. They issued The Town and Country Planning (Notification of Applications) (Unconventional Oil and Gas) (Scotland) Direction 2015 (which I will refer to as “the Direction” hereinafter – sorry, couldn’t resist it). This instructed local councils to do three things if they receive a UGE-related planning application.

 

  1. Stop right there. I thought there could be no applications during the moratorium.

So did I, until I asked the Scottish Government to send me a copy of the Direction, and read it. I had to read it several times before it sank home that the moratorium does not prevent developers making planning applications for UGE.  Anyway, the first thing the local authority has to do is send Ministers a copy of such a planning application, including all the accompanying information such as the environmental statement (if there is one).

 

  1. Is that what you mean by Scottish Ministers calling in the application?

No. The legal way of saying ‘we are calling in this application’ is ‘we direct to you to refer this application to us for determination’.  All the council needs to do is make a copy of the complete application and send it to Ministers, for information. The council then has to follow the usual ‘development management procedure’, i.e. process the planning application as they normally would, before coming to a decision.  If they decide to refuse it, they can just go ahead and refuse it, but if they decide to grant it, the second thing they have to do is let the Scottish Ministers know that they are ‘minded’ to grant the application, with their reasons for coming to that decision. The third thing they must do is wait 28 days before actually issuing the planning permission (often called the ‘decision notice’).

 

  1. So what does the Direction say happens after the 28 days?

It says nothing else. But as I said above, Ministers have other powers of ‘direction’, so, reading between the lines, I reckon they would use one of them before the 28 days were up.  They could either use the section 46 power at that stage to call in the application (which would mean they would have to make the decision eventually, because they don’t have the power to sit on a planning application indefinitely), or they could issue a new ‘direction’ to the council in question, ‘restricting the grant of planning permission indefinitely’, thus kicking it into the long grass… indefinitely. I strongly suspect that they would do the latter, even though it would also kick up a storm, in order to avoid having to make the decision themselves.  But in the mean time, that’s how the moratorium works.

 

  1. So it’s really just a delaying tactic?

Precisely. And, as I found out when I looked up the dictionary definition of ‘moratorium’, it comes from the Latin ‘mora’, for ‘delay’. I bet you never knew law could be so fascinating.

 

  1. So a UGE developer can really apply for planning permission today if they want?

Correct, and the council still has to go through the normal determination process, as I said.  The Regulations I mentioned above give them up to 4 months to determine a planning application, and this period can be extended by agreement, but if (as Dart did at Airth) the applicant decided not to agree to any more extensions, and the application still hasn’t been determined when the deadline (as extended) passes, they can treat this as a ‘deemed refusal’, and appeal to the Scottish Ministers.  So the process just keeps marching slowly on until the Scottish Ministers are left with the choice of either calling in and determining the application, or instructing the local council to suspend the determination process indefinitely.  Neither of these options is politically attractive, so I am pretty sure that they are keeping their fingers crossed that no UGE developer will call their bluff and apply for planning permission, until the UGE research work and public consultation are done, and they can lift the moratorium.

 

  1. And what about SEPA?

I’m glad you asked that, because the environmental legislation doesn’t give Ministers nearly so many options as the planning legislation.  In fact, the only suitable power Ministers have under the relevant environmental legislation is to call in a licence application (or a class of licence applications) made to SEPA.  So they issued The Water Environment (Controlled Activities) (Unconventional Oil or Gas Development) (Scotland) Direction 2015, instructing SEPA “to refer to them for their determination” any application for a licence under the water legislation “in connection with unconventional oil or gas development”.

 

  1. So they’ll be even keener that there are no UGE-related applications to SEPA.

Too right. Developers that need a SEPA licence tend to get their planning permission in the bag first before applying to SEPA. It doesn’t always happen, but Ministers will be keeping their fingers and toes crossed that it does in this case.

 

  1. Ok, let’s move on. The Scottish Green Party is saying they will ban UGE. Would that ban make UGE illegal, for instance in the same way that displaying tobacco products has been banned and is now illegal?

It’s possible, but in order to prohibit UGE in that ‘making it unlawful’ way, they would have to make it a criminal offence, as I mentioned about 4 pages ago.  There are serious international calls for a crime of ‘ecocide’ to be recognised, but I don’t think Scotland is ready for that, I don’t think Holyrood would vote for legislation banning UGE, and I don’t think the Greens intend to do that, even if they have the balance of power after May.

 

  1. I keep hearing people say that the Scottish Government can ban UGE just as it has banned new nuclear power plants in Scotland. Is that actually a ban or a moratorium?

 It’s more a ban than a moratorium, because they are not waiting for any more information before making their minds up, but it’s not a legal prohibition (meaning it would be an offence to build a nuclear power station).  It is something completely different – a strong statement of national planning policy – and I am pretty sure that this is what the Greens mean when they say they would use planning powers to block UGE in Scotland.

 

  1. Tell me more.

 The Scottish planning legislation requires the Scottish Ministers to prepare and publish a National Planning Framework (NPF) every 5 years.  It is a bit like the local development plan which local councils produce every 5 years or so, but on a national scale, and like a local plan, it involves several periods of public consultation before it is finally published, or ‘adopted’. The main purpose of the NPF is to set out the ‘national developments’ that Scottish Ministers want to see go forward over the coming 20 years, after consulting the public.  The first NPF was published in 2004, setting out a strategy for Scotland’s development to 2025.  When the second NPF (known as “NPF2”) was published in 2009, it stated: “The Scottish Government does not support the construction of new nuclear power stations in Scotland”.  The current NPF (“NPF3”, published in 2014) looks forward “20 to 30 years” and asserts: “There will be no nuclear new build in Scotland”.  It would certainly be possible to make a similar policy statement about UGE in the next NPF, subject of course to public consultation.

 

  1. But does the Scottish Government have powers to stop nuclear plants from being built?

That is the right question. This page on the Scottish Government website contains the answer: “Yes – Under the Electricity Act 1989, the building of any new nuclear power station in Scotland would require consent from Scottish Government Ministers (under Section 36 of the Electricity Act).  … Scottish Ministers would of course consider any application on its individual merits. However, given our energy policy position, combined with Scotland’s current generating capacity and abundant energy sources, it is unlikely such a proposal would find favour with Scottish Ministers.”

 

  1. That’s not exactly a ban then, is it?

No, it’s not, it is simply a very strong policy statement that they will be likely to use their planning powers to stop any new nuclear in Scotland. Here is a link to the original 2007 announcement by the Scottish Government on nuclear power which contains a very similar statement about section 36 of the Electricity Act. Section 36, by the way, says “a generating station [of more than 50MW capacity] shall not be constructed, extended or operated except in accordance with a consent granted by the [Scottish Ministers]”.

 

  1. What does the Electricity Act have to do with planning?

Well, section 57(2) of the Town and Country Planning (Scotland) Act 1997 says: “On granting a consent under section 36 or 37 of the Electricity Act 1989 in respect of any operation … that constitutes development, the [Scottish Ministers] may direct that planning permission for that development and any ancillary development shall be deemed to be granted, subject to such conditions (if any) as may be specified in the direction.” What this means is that developers of power stations don’t have to apply separately for planning permission from the local council as well as consent under the Electricity Act. If their single application to Scottish Ministers under that Act is granted, they obtain ‘section 36 consent and deemed planning permission’.

 

  1. So when people say that the Scottish Government has used its planning powers to ‘ban’ nuclear power, what they mean is that Scottish Ministers have said very clearly that they do not think nuclear power is safe or necessary, and they would be ‘unlikely’ to grant consent?

Exactly.  But it helps to be in control of both national planning policy and the relevant planning decisions, as Scottish Ministers are in relation to nuclear.  When it comes to UGE, by contrast, there is no need for a new power station, because the natural gas, once it has been treated and meets required quality standards, can simply be piped into the national gas distribution network.  So there need be no application to the Scottish Ministers under the Electricity Act.  Planning permission would have to be obtained, as stated above, in the normal way, by applying to the local council.  And because local councils are elected, have their own powers and make their own decisions, it would be both harder politically for any Scottish Government to declare that “there will be no UGE in Scotland”, and harder in practice to make such a declaration stick, without resorting to their ‘call-in’ powers again.

 

  1. Other people say the Scottish Government would be open to legal challenge if they tried to ban UGE at this point in time. Are they right?

 We have seen legal challenges from big corporate interests to new legislation: by the insurance industry to the Damages (Asbestos-related Conditions) (Scotland) Act 2009, and by the drinks industry to the Alcohol (Minimum Pricing) (Scotland) Act 2012. It is reasonable to conclude that, in the unlikely event that Holyrood legislated to prohibit UGE, a legal challenge might very well follow.  But there has been no challenge by the nuclear industry to the policy ‘ban’ on new nuclear, and the only legal challenge to a National Planning Framework that I know of came from a member of the public (Marco McGinty), so it is not immediately obvious that there would be an industry challenge to a similar policy ‘ban’ on UGE, at least not to me.

 

  1. But was that not why the SNP leadership were so reluctant to debate the issue at the recent party conference?

 I think it was. Having announced the moratorium, the programme of research into the impacts of UGE and the public consultation; and having put contracts out to tender for some of the research projects and since awarded them, the Scottish Government is understandably keen to see the process through rather than change tack at this stage. If the process is genuine and fair, one of the possible outcomes must be a total ‘ban’ (probably a policy ban rather than a legal ban, as suggested above). It is quite possible that the Scottish Ministers have been threatened with legal action, so they would want to avoid giving any fracking company the slightest impression that they might have made such a decision because it had become SNP policy during the moratorium, rather than as a result of a dispassionate review of the research evidence. The best way to achieve that is to prevent it becoming party policy, and ca’ canny.

 

It’s not easy being Green.

How to not get that list vote you want folk to lend you.

I should preface this, my first post by saying, I quite like the Scottish Greens, I think they get a raw deal when it comes to getting their voice heard (witness the latest attempt by the BBC to shut them out).  I’m quite fond of Patrick Harvey, he sponsored me so we could screen Gas Land II at the Scottish Parliament a couple of years ago.

But listen, if you’re after votes in an upcoming election, it might be an idea to take the time to explain a section of your ‘We Will’ promises to people when they ask you a serious question about them.

Yesterday an email arrived from the Scottish Greens telling me what they’ll do if enough people vote for them. This caught my eye.

Greens fracking ban

That’s it, that’s all it had to say on that topic. Later I fell over a Tweet linking to their Vision on the Scottish Greens website  A little bit more said there but not much more.

As far as I’m aware the Scottish Government is using its planning powers to keep a moratorium on fracking and UGE in place. As far as I’m aware fracking / UGE is not devolved. Scientific evidence from other parts of the world does show that these are dangerous destructive practices, however I don’t think we can use scientific evidence from say, America or Australia to put a case against fracking / UGE in Scotland. It’d be shredded by lawyers working for the fracking companies.

I know I’m not alone in wanting an all out ban. But from what the Greens have sent me and from what I’ve found, I still don’t know how they plan to implement an outright ban.

So I popped over to Patrick Harvey on Twitter and asked him. Here’s how that went.

Conversation with Patrick Harvey part 1

So far, no detail.

Next:

Conversation with Patrick Harvey part 2

Asking for detail would appear to be silly, but I’m still none the wiser.

Next:

Conversation with Patrick Harvey part 3

A helpful tweet from a passing Twitterer. That would have been the way to go imho. A link to an article or an essay or a blog post or I dunno, maybe a not top secret policy document. But alas no.

Next:

Conversation with Patrick Harvey part 5

Conversation with Patrick Harvey part 6

Now two of us would like those pesky fact things. I’m sure there’re more of you out there that would like some pesky facts.

Next:

Conversation with Patrick Harvey part 7

This has to be my favourite response though. In answer I have to say, no, the Green policy is still entirely unclear to me.

I’m not convinced that giving me the detail I asked for, which as you can see was spectacularly avoided for some unknown reason, wouldn’t have convinced me of the merits of the policy.

I’m left with more questions than when I started last night. Is there a detailed policy on how the Greens will achieve a total ban or is it just some sort of bungled criticism of the Scottish Government’s position?

If anyone out there has the detail I’d really appreciate seeing it. Who knows, I might agree with it given the fact that I want to see a total ban in place.

Patrick’s strategy for gaining those list votes has left me somewhat cold. I must thank him though for the push I needed to start a blog (and for not blocking me).