The third day of INEOS and Reach CSG’s judicial review of the fracking ban drew to an early close, and with it, the substantive hearing as a whole.
This morning Lord Pentland summarised the political context in which Ministers had made the announcement to Parliament on 3rd of October of an ‘effective ban’ – there was pressure from opposition parties to move ahead with primary legislation, and Ministers were resisting that. He pushed James Mure QC, for the Scottish Government, on whether it was a reasonable interpretation of what the Minister said that day, that the position announced would have the full force of a legal ban. If it is correct that the language of an effective ban is just commentary, as now argued in court, then the Minister and all his officials just got it completely wrong; how did a Minister make a mistake of this nature in a pre-prepared statement of this importance, he asked?
Mr Mure indicated that if that were the case then the Minister would be accountable in Parliament, but that question to be addressed here was what would the advantage be to stopping the process now in play – a strategic environmental assessment was underway, and a business and regulatory impact assessment and consultation would follow before a final decision was made.
In terms of the remedy sought by the petitioners that the directions issued in January 2015 which gave effect to the moratorium, and were continued following the 3rd October announcement, should be brought to an end – what has changed, Mr Mure asked, that means these are suddenly unlawful? He noted that INEOS had moved staff south, to focus on unconventional oil and gas assets in England, after the moratorium was announced in 2015, not following the later decision of October 2017.
Lord Pentland observed that one view might be that the petitioners were taking a snapshot of matters and might be attaching undue weight to certain parts of the Ministerial statement. One way of looking at the situation may be that while it is unfortunate that certain things were said that led to misleading impressions, how would compelling the Scottish Government to go back to square one be in the public interest.
Gerry Moynihan QC came back for the petitioners using, as he put it, very strong language, and noting that he was aware that the person he was accusing is the Lord Advocate. What Lord Pentland had been told today, he said, was disingenuous. To judge the significance of the mistake in law, one needed to look at what was said in the statement to Parliament about the action being taken to give effect to the decision – that an effective ban was being brought into immediate effect by an indefinite moratorium. That part of the statement Mr Moynihan said was ‘stepped over’ by Mr Mure, and that is why what he said was disingenuous.
Ministers decided to impose a ban, realised they did not have competence in terms of the Scotland Act as it stood, and so used planning powers to implement that policy to achieve that result Mr Moynihan argued. Planning powers were a means to an end, the end was a ban. If matters proceed without Ministers pausing to clear the air, the petitioners would be left with the unanswerable proposition that the Strategic Environmental Assessment process would be continuing against a backdrop of closed minds on the part of Scottish Ministers.
The hearing came to an end shortly after 2pm, drawing the case to an early conclusion, at least at this stage, with Lord Pentland indicating that a judgement would be issued as soon as possible. Judgements are usually handed down within 3 months.
… and we’ll be back somewhat sooner with an overview of where things stand now.
We are making a public interest intervention in the case arguing that the Scottish Government was obliged to ban fracking in order to meet its own legally binding climate change commitments. You can read more about why we decided to get involved in the case on our blog, and download our intervention in full here.