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.
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.
So far, no detail.
Next:
Asking for detail would appear to be silly, but I’m still none the wiser.
Next:
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:
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:
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).
#talkingmince 
A ban is possible using the same powers that allow the Moratotium. The devolved planning laws have been used to implement a ban on nuclear, and a moratorium on UGC. They could also be used to implement a ban on UGC.
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I am of the opinion that as I support the SNP and been a member for some years I cannot see why I should “lend” my vote to another party,I just cant.
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A good government that’s reflective of Scotland should have a mix of politicians from different backgrounds and perspectives. A robust opposition can keep politics healthy
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This is puzzling. I followed conversation and couldn’t understand why Patrick wouldn’t simply provide a useful link, and instead chose to take the asking of a genuine question as implied criticism of Greens and tacit support of SNP. Like many people who plant to vote SNP in Map, post indy I will probably vote Green. This leaves bit of as our taste. Disappointing.
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Patrick Harvie is correct. Scots govt can ban fracking via planning laws. Just like the have banned building mew nuclear power stations via planning laws.
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Yes, but as it isn’t devolved they would be challenged in the courts, and the ban could very well be overturned.
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Planning IS devolved.
The Scottish government have said they will never allow new nuclear power stations. They can achieve this goal using the devolved planning laws.
The Scottish government have said they won’t allow any new fracking to take place for a bit. This again can be achieved through the devolved planning laws.
The Scottish government *could* say they will never allow fracking, just like they have for nuclear power stations. Instead, they’ve gone for a temporary cessation of fracking.
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You misunderstand me; I didn’t say planning wasn’t devolved, I was referring to fracking & UGE – control of that is firmly in the hands of WM, and if the SNP ban it outright they’ll find themselves involved in very expensive & time-consuming court cases.
The moratorium puts the ball firmly in the fracking companies’ court – they have to prove it’s safe; ban it, and that position reverses.
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Can you provide any evidence that a temporary ban is more robust from court cases than a permanent one?
And why did the SNP opt for a permanent position against nuclear power stations if it’s such a bad idea?
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3 little words – onus of proof.
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Not so. Denial of planning permission must proceed on a case by case basis, and also be accompanied by valid reasons. You cannot simply cite policy, as this may be challenged.
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Except that his answer is pretty clear. If planning and environmental regulation is devolved, those laws could be used to prohibit the construction of facilities required to extract shale gas.
For good measure, here’s an extract from a government report:
“Operators must also get the necessary consents and planning permission before beginning any activities on that land. When an operator wants to drill an exploration well, it must first negotiate with landowners for access to the site. If the well encroaches on coal seams, the operator must also get permission from the Coal Authority.
The next step is to seek planning permission from the minerals planning authority (in Scotland,
the planning authorities). They can order the operator to complete an environmental impact
assessment before making a decision on planning permission if they think there may be a
significant environmental impact. This requirement is made on a case-by-case basis.
Appropriate permits or authorisation from the relevant environmental regulator (the Environment Agency in England, Natural Resources Wales, or the Scottish Environment Protection Agency in Scotland) are also required. These planning and environmental permitting steps must be repeated at each exploratory stage of the site’s development, to drill any further wells and before the site goes into production. Planning authorities and industry can approach Public Health England or Health Protection Scotland for advice on the potential impacts on health.”
The tweeter could have looked this up in no time at all. It took me two minutes, far less than it took her to harangue Patrick Harvie. Of course, she wasn’t interested in an answer, was she? And nor are you.
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Thanks for your comment and the information. I am the Tweeter and I was not haranguing Patrick, I was asking for more detailed information. I have looked before and have not come up with anything that made it obvious to me that it can be banned outright at this point in time.
I am very interested in the answer, I’m totally opposed to fracking and want to see a complete ban on all unconventional extraction. I’m also the one who organised the screening of Gas Land II at the Scottish Parliament with Patrick’s support. So yes, it was a genuine question seeking a genuine and helpful response.
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Another Green put it better than I could – here’s the legal basis. We already use it to prohibit the construction of new nuclear stations here.
“Under Section 3D of the Town and Country Planning (Scotland) 1997 Act, Scottish Ministers must develop the NPF with the objective of contributing to sustainable development. Unconventional gas extraction is not sustainable development either environmentally or financially given the high risk of fossil fuels becoming “stranded assets”, so it is illegal for Scottish Ministers to permit it to happen, and they must take action to prevent it. This is exactly the same argument as has been used to prohibit the building of new nuclear power stations. I haven’t noticed EDF, Westinghouse etc queueing up to sue the Scottish Government about this.
The high level intention to ban unconventional gas extraction would then also be enshrined in the subsidary National Planning Policy, and National Planning Policy Guidance (NPPGs) particularly NPPG 4 Mineral Extraction and followed up in the Planning Advice Notes (PANS) and Local Plans Developed by local authorities. But it’s pretty simple to say that unconventional gas is banned in Scotland, so it wouldn’t require lots of additional detailed planning guidance.”
[ETA – we can use planning policy to state that the risks are too great, which is essentially a ban until further notice. As for licenses, not devolved but we are also not obligated to grant new ones.]
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Thanks for that Helen, much appreciated.
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It is a “fact” that Planning policy is devolved.
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I must admit to getting the same runaround from Andy Wightman, which kinda surprised me as he is usually pretty open. I didn’t push it because I thought there was something I had missed and hoped to see more detail published. Also, an anti-frack group are saying similar, with I’m afraid similar result.
All in all, disappointing from these groups/people.
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Yes, it was the lack of a simple link to an extended piece that made me post about this. It’s not helpful to just keep repeating ‘it can be done’ or even ‘it can be done through planning’. A starting point, given the confusion some of us are feeling would be much more helpful.
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Hi Cath,
A member of the Greens has posted a response to your question on the unofficial Scottish Greens facebook group but I’ve copied and pasted them below for clarification:
“Scottish Government could right now amend the National Planning Framework (NPF) to prohibit unconventional gas extraction.
Under Section 3D of the Town and Country Planning (Scotland) 1997 Act, Scottish Ministers must develop the NPF with the objective of contributing to sustainable development. Unconventional gas extraction is not sustainable development either environmentally or financially given the high risk of fossil fuels becoming “stranded assets”, so it is illegal for Scottish Ministers to permit it to happen, and they must take action to prevent it. This is exactly the same argument as has been used to prohibit the building of new nuclear power stations. I haven’t noticed EDF, Westinghouse etc queueing up to sue the Scottish Government about this.
The high level intention to ban unconventional gas extraction would then also be enshrined in the subsidary National Planning Policy, and National Planning Policy Guidance (NPPGs) particularly NPPG 4 Mineral Extraction and followed up in the Planning Advice Notes (PANS) and Local Plans Developed by local authorities. But it’s pretty simple to say that unconventional gas is banned in Scotland, so it wouldn’t require lots of additional detailed planning guidance.
So that’s how a ban could be enforced right now.”
If you want to debate with them you can jump over to the forum now.
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Thanks very much for bringing that over here Stephen. I don’t have a FB and at the moment I’m simply trying to find the information in order to inform myself (and hopefully help out others with the same questions). Much appreciated.
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Stephen, using the NPF in that way would lead to major issues in the oil and gas service industry as conventional oil and gas are not sustainable either. That we are striving to develop renewable a is fantastic but the country’s economics particularly in the North East currently need additional issues like a hole in the head.
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My understanding is that a Moratorium puts the proof of evidence into the hands of the frackers. Whilst banning puts the proof in to the SG hands. Also an outright ban is open to very expensive legal action. So yes planning law can be used but at the expense of legal action.
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That is part of my understanding too. The moratorium puts the onus on the companies to prove the practices are safe, no proof, no fracking.
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Why do you think that? Do you have any evidence?
Because the Scottish government has used the same laws to BAN nuclear. Why did they not impose what you say is a safer temporary ban?
Similarly, they banned the display of cigarettes. They didn’t go for a temporary ban, but a permanent one.
Why do you think fracking is different?
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If this doesn’t show up as a reply to you barneydellar my apologies, I can’t find a reply button under your comment.
It’s my understanding that while the moratorium is in place and scientific evidence is being gathered it will necessarily fall to the companies to disprove any evidence that says it’s unsafe. Maybe I’m misunderstanding the situation in New York.
I’m wondering now if the use of the work BAN in connection with nuclear is the right use. I keep looking but I’m not finding the word ban. What I am finding is a “no new nuclear power strategy” that was voted for in 2007 by the Scottish Government. I’m assuming that they are using the same planning powers to keep that in place as they are using for the fracking moratorium.
As for the banning of the display of cigarettes that appears to fall under the Health and Social Care Act, which is devolved.
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The fracking moratorium is a temporary ban, using planning laws.
Nuclear power stations have been permanently banned, using planning laws.
Why can the government not put in place a permanent ban for fracking using planning laws?
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I have no idea why you think companies can sue a government if they permanently ban something. Are we at risk for being sued for banning nuclear power stations or cigarette displays? If not, why not?
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No idea why I can’t reply to your last comment, again no reply box.
Do you have a link to any legislation that shows the there is a permanent ban on new nuclear power stations? I haven’t found any yet.
I’m again assuming that the moratorium on fracking / UGE is in place so the scientific evidence can be gathered.
I didn’t say sued, I agreed they might be open to legal action if there was an attempt at an outright ban without scientific evidence to back up that ban. In other words an attempt to overturn a ban.
Again, I’ve not seen anything to suggest that there is an outright ban on new nuclear power stations, if you have it, please drop it in.
You can’t mix up energy with health, one is devolved the other is not.
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The issues with fracking is that mineral deposits are not devolved, therby any ban can be appealed through uk and european courts based on Uk government policy. All planning rejections can be appealed. That is evident by the multiple appeals that go through the courts, one example is Trump. The other question you need to ask is where does the funding come from to defend the appeals? It comes from SG funding i.e. block grant. Fracking companies are paying 100’s of millions to defend and contest banning decisions in other countrys, what would make us any diffrent? You keep mentioning the “banned nuclear power stations” but provide no evidence to the planning act that bans them.
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Here is a link to a February 2015 FAQ on the SG website, which includes the following:
“Does the Scottish Government have powers to stop nuclear plants from being built?
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). This is accepted by the UK government despite the recent statement in the Calman Commission.
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.”
So it is not really a ban, but a very strong policy statement that they will be likely to use their powers to stop any new nuclear in Scotland.
Here is a link to the original 2007 announcement by the SG on nuclear power http://www.gov.scot/Publications/2007/10/Nuclear which contains a very similar statement about section 36 of the Electricity Act. That section 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]”.
Now you might be wondering what the Electricity Act has got 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 or change of use 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 and consent under the Electricity Act. If their single application to the SMs under the Electricity Act is granted, they obtain ‘section 36 consent and deemed planning permission’.
So when people say that the SG has used its planning powers to ‘ban’ nuclear power, what they mean is that SMs have said very clearly that they do not think nuclear power is safe or necessary, and they would be ‘unlikely’ to grant consent.
They have not made such a clear statement about unconventional gas; they have declared a ‘moratorium’. But again, there is an element of bluff to this too, because nobody can stop anyone from applying for permission to build a nuclear power station or to frack. I will explain further (if you’ve got this far).
Neither a ban or a moratorium is a legal thing; they are both strictly political things, so in order to give effect to them (or make them happen), politicians have to find and use the appropriate legal tool. The fracking moratorium was made real by the use of other powers under planning legislation and under environmental legislation. The SMs, like all democratic governments and other public authorities, have to act within their powers, so they would have gone to their lawyers and said: “What powers do we have to create a moratorium on fracking?” The lawyers would have replied (eventually): “Well, you don’t have powers to stop the issue of licences under the Petroleum Act, because those powers are reserved to the UK Government, but you do have powers to direct planning authorities under the Planning Act and you have similar powers to direct SEPA under the water legislation, so you could use those”. So they issued ‘directions’ to all planning authorities and to SEPA.
These directions instruct local councils and SEPA to forward any planning/environmental licence applications they receive to the SMs, for them to determine instead. So if any developer wanted to call the SG’s bluff, they could apply for planning permission or a SEPA licence, and watch what happens. A decision would eventually have to be made by the SMs, because they do not have the power to sit on an application for ever. So all the moratorium in fact does is stop local authorities and SEPA from carrying on with determining applications and diverts those applications straight to them (SM) to deal with.
It would be the same for nuclear, if a nuclear developer wanted to test the SG, they could apply under the Electricity Act and wait for a determination. All SMs have said is that they would be ‘unlikely’ to grant it, but so far no-one has tried it, presumably because the statement was made with such authority and conviction that is had the desired political effect.
So in a way, you are right that SMs have no power to ban anything, even temporarily, but they do have the powers to make sure that the relevant decision – where it is isn’t already in their hands, as it is in the case of the Electricity Act – ends up on their desks. They are hoping that no-one applies before the research projects are complete and they finally make up their minds.
Is that enough detail? 😉
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Ian, you’re a gent. Thank you very much. Yes that is enough detail and importantly explanation for me to get my head around. Really appreciate you taking the time 🙂
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You’re very welcome, Cath. It does my head seeing so much often ill-informed speculation about what the law says. Unfortunately it’s rarely simple. However, I have looked into the ban on tobacco displays, that is mentioned above, and I’m pleased to say it is a ban and it is legal.
Section 1 of the Tobacco and Primary Medical Services (Scotland) Act 2010 says
“Prohibition of tobacco displays etc.
(1) A person who in the course of business displays or causes to be displayed tobacco products or smoking related products in a place where tobacco products are offered for sale commits an offence.”
So the way to ban (or prohibit) something you don’t want is to legislate to make it a criminal offence. I doubt any government would make fracking a criminal offence, although there are some people who believe it should be.
I don’t know if it is Scottish Green Party Policy to legislate to ban fracking in this way, even though I am a member. I will try and find out though.
P.S. I gave my only vote last year to the SNP, for the greater good (my MP was Danny Alexander)! So maybe you could consider giving one of your votes to the Greens…?
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“So in a way, you are right that SMs have no power to ban anything, even temporarily, but they do have the powers to make sure that the relevant decision – where it is isn’t already in their hands, as it is in the case of the Electricity Act – ends up on their desks. They are hoping that no-one applies before the research projects are complete and they finally make up their minds.”
If that happens, what happens next? If the SG make the decision not to permit it, do the oil/gas companies have recourse to appealing to Westminster, as suggested on some forums?
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In reply to you Ian. Not being able to reply under a reply is starting to bug me.
I found that legislation on tobacco yesterday evening, it was oddly easy to find, I’m guessing because it exists. I had in my head that it was part of a devolved area whereas licensing for fracking isn’t devolved.
Yes, the confusion led to me starting this blog, that and Patrick doing handstands rather than doing what you did. It was the detail I was after in order to help clear up some of the confusion and misunderstanding that I felt was there, but couldn’t pin down (not being a lawyer). It’s all turned into a word salad and needs sorted.
If you could find out the policy, the ‘how we will’ behind the Green statement that would be great.
As for voting Green, I don’t think we have one standing in our area yet…
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There are Greens on the List in every part of Scotland.
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I’ll check them out.
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Can I humbly suggest you compose a new blog, digesting the comments you have received (or the helpful ones, anyway) as not everyone will read the comments but may wish to discover the answers you have been asking for too?
Well done on asking for the detail. I suspect the trouble with Twitter is that although it allows ‘access’ to public and semi-public figures, it also means that any conversation is public and therefore some people will always be answering with a view to how others perceive them. They may get it wrong (as I believe PH did in this case) but it adds a ‘layer’ to the conversation that is different from what may happen in a one-to-one conversation in person.
Even DMs could be subject to screen grabs and mass publication so I think politicians are either too wary or too much looking for a chance to score points against opponents, even by proxy. 😦 Just my 2p. Well done and keep blogging!
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Thank you Dave. Yes, I will do another post and try to get it out there again. It seems we’ve gotten into a Humpty Dumpty situation where words can mean whatever the speaker wishes them to mean even with the best intentions at heart. It isn’t the way to grapple with serious and dangerous issues imho
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Cath, I will just add 2 more things which might be helpful if you’re doing a new post, and one more comment. (Kind of ran out of steam last night…)
1. I think you said you thought ‘fracking licences’ are reserved to the UK. That’s partly correct, but there’s no such thing as a single fracking licence. A fracker needs AT LEAST 3 licences or permissions from different authorities before they can start: (1) a petroleum exploration and development licence (PEDL) under the Petroleum Act from the UK Oil & Gas Authority (previously DECC, the Department for Energy and Climate Change) – ‘petroleum’ is defined as including natural gas – and all the North SEA offshore operators need PEDLs too, I think; (2) planning permission from the local council; and (3) an environmental licence or permit from SEPA. Only the first of these is a reserved matter, and under the current Scotland Bill it is due to be devolved.
At least 3 companies already have PEDLs that were granted by DECC years ago and last for up to 30 years, covering large square areas in central and southern Scotland. In order to explore they have obtained planning permission and SEPA licence, and some of them have located what they say are economic gas reserves. To move to the next stage of production, the PEDL remains effective, but new planning permission and new SEPA licence are needed (partly because production involves many more wells). At Canonbie, one of these companies managed to get both, behind the backs of the public, but for some reason never moved into production, thank goodness, and the SEPA licence is no longer valid, so they can’t now. At Airth, the Council were more on the ball, the communities got involved (represented partly by me) and the developer had to appeal to the SMs. That appeal is now on ice pending the end of the moratorium, which ensures (as I said above) that any new applications will end up with SMs too.
2. Someone else with some knowledge commented above, “Scottish Government could right now amend the National Planning Framework (NPF) to prohibit unconventional gas extraction.
… as has been used to prohibit the building of new nuclear power stations.”
The current NPF from 2014 (known as NPF3, available on the SG website) says, at para 3.11: “There will be no nuclear new build in Scotland, although we have not ruled out extending the operating life of Scotland’s existing nuclear power stations at Hunterston B and Torness”.
But legally, the position is as set out in the SG FAQ from 2015 that I quoted above, i.e. that SMs would be “unlikely” to grant consent. That is as strongly as they can put it in the context of their actual statutory powers, without risking legal challenge down the line. The NPF3 policy statement would only be one ‘material consideration’ that they had to take into account when it came to an actual decision on an application under the Electricity Act.
So yes, it would be fairly simple for the Scottish Greens to make a similar, strong policy statement about UGE, and that is what I am sure they (we) mean when they (we) say they will ban UGE in Scotland. I have started trying to find out how they would deliver that policy – which I think is what you were trying to get Patrick to do.
3. Patrick, like Alec, Nicola and every politician I have ever encountered, like to make sweeping policy statements before they have perhaps looked into the legal practicalities of delivery. I think you will agree that the statement in the SG FAQ from 2015 is a lot more circumspect than the bold statement in NPF3, but that is what politicians do. Lawyers tend to spoil things for the politicians by saying “actually, you can’t do that, all you can lawfully do is this”. My point is that all politicians are guilty of bluster, now and again.
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Thanks Ian, that extra clarification is really helpful. Yes, the how would the policy be delivered is exactly what I was trying to get at. You’re right, politicians do make sweeping statements at times, which isn’t helpful in the long run me thinks, especially now that people aren’t taking statements at face value any more. I’d make a dreadful politician I’ve just realised 😉
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Maybe, but you’d make a great lawyer!
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lol, thank you kindly
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“we all agree we don’t want UGE in Scotland”; who are “we”? Certainly not the people, including to my knowledge a prominent Scottish geologist, who wrote the Royal Society report on the subject
“Scientific evidence from other parts of the world does show that these are dangerous destructive practices”; please give more detail.
“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.” It might in court cases; but the shredding I’ve seen of claims of major damage from fracking has come from scientists.
And please don’t quote Pennsylvania’s flaming tapwater to me. It was flaming 200 years before anyone fracked
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Paul this blog is here for “all of us who agree” we don’t want UGE to take place in Scotland.
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