Legal advice says Scottish Government can and should pass law to ban fracking
Friends of the Earth Scotland have today published a legal opinion from one of Scotland’s leading advocates that says the Scottish Parliament can pass a law to ban fracking and that doing so would be less likely to result in successful legal challenges from companies with an interest in the industry, than the present policy approach. 
The legal opinion comes ahead of an anticipated announcement from the Scottish Government about how it intends to move forward on the issue of fracking, which is currently halted by an indefinite moratorium. .
The legal opinion, which Friends of the Earth Scotland commissioned from Aidan O’Neill QC, says:
- it is within the legislative competence of Holyrood to pass primary legislation to prohibit unconventional oil and gas extraction using powers over onshore licensing recently devolved from Westminster
- a strong argument can be made that the Scottish Government and Parliament are in fact required by law to impose such an outright ban
- the surer way to defeat any further legal challenges to the position of no support for fracking would be to enshrine it in primary legislation
Commenting on the new legal opinion Friends of the Earth Scotland Head of Campaigns Mary Church said:
“This legal opinion shows that not only is it well within the power of the Scottish Government to ban fracking, but that legislating would be a far more robust way to stop the industry and defeat any further legal challenges from the likes of INEOS.
“Communities on the frontline of this dirty industry have been waiting for over four years for the Scottish Government to bring its long drawn out process on unconventional oil and gas to an end. It is time for Ministers to live up to their rhetoric and legislate to ban fracking for good.
“Eighteen months ago the First Minister promised a ban on the industry, but last year the Government’s position was exposed by INEOS’s court case as having no legal force. [3 & 4] Ministers are now committed to a final decision before Easter, but it is pretty clear that all they plan to do is keep the current moratorium going on an indefinite basis, an approach that means any future Government could overturn it. 
“When it is clearly within Holyrood’s power to legislate to protect people’s health, environment and the climate from the fracking industry, continuing only to use policy levers would be a betrayal of the tens of thousands of people across the country who called on the Scottish Government to act to stop this industry.
“Parliament voted to ban fracking back in 2016, with Scottish Labour, Greens and Liberal Democrats coming together to defeat the pro-fracking Conservatives, while the SNP abstained. A series of subsequent powerful commitments from Nicola Sturgeon and her Ministers have still not resulted in robust, long-term protection against this industry.
“We now have a clear legal opinion confirming it is both possible and more watertight to legislate to prohibit fracking, and Holyrood has a clear mandate from the people of Scotland to do so. If the present Scottish Government cares an ounce about its legacy, then we urge it to work together with the other anti-fracking parties to pass a law banning fracking and finally put this issue to bed once and for all.”
Quoted in the Sunday National both Claudia Beamish of the Scottish Labour Party and Mark Ruskell of the Scottish Green Party welcomed the new legal advice and suggested they would pursue legal avenues for a full ban on fracking. 
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Notes to Editors
1. A story relating to this release appeared in today’s Sunday National and The Ferret.
2. The legal opinion from Aidan O’Neill QC is available in full at https://foe.scot/resource/legal-opinion-scotland-ban-fracking/. The summary says:
1.4 My advice, in summary, is that it is within the legislative competence of the Scottish Parliament to pass primary legislation in effect to prohibit onshore unconventional oil and gas (UOG) exploitation in Scotland by imposing mandatory conditions upon which the Scottish Ministers may grant PEDL licences such as to forbid the use of such technologies when carrying out operations under the PEDL licence.
1.5 Indeed, given the current international law and domestic regulatory framework, a strong argument can be made out that the Scottish devolved institutions are required under international, EU, UK and Scots law – given that it is otherwise within their powers – to impose an outright ban on unconventional oil and gas extraction in Scotland.
1.6 Further, as a matter of devolved politics, if there is a political consensus within the devolved institutions that there should be no unconventional oil and gas extraction in Scotland, then the surer way successfully to defeat any further legal challenges which might be brought by oil concerns aggrieved at this position, would be for a ban expressly to be enshrined in primary legislation from the Scottish Parliament, rather than simply left to the administrative or planning discretion of the Scottish Ministers.
1.7 This is because the courts regard measures involving political, social and economic issues as falling centrally within the legislature’s discretionary area of judgment and would respect its decision as to what was in the public interest unless it were shown to be manifestly unreasonable.  which is a higher test than the courts will set for a successful challenge to purely administrative action or the executive’s exercise of such discretionary powers as are invested in it by the legislature: see e.g. AXA General Insurance Ltd v Lord Advocate  UKSC 46, 2012 SC (UKSC) 122 per Lord Reed at para 124:
“At the domestic level, courts require to be similarly circumspect, since social and economic policies are properly a responsibility of the legislature, and policy-making of this nature is amenable to judicial scrutiny only to a limited degree.””
3. Energy Minister Paul Wheelhouse announced an ‘effective ban’ on fracking in Parliament in October 2017, and the First Minister echoed this days later: The Herald, 5 October 2017 ‘Nicola Sturgeon: Fracking will be banned in Scotland – end of story’ https://www.heraldscotland.com/news/15578977.nicola-sturgeon-fracking-will-be-banned-in-scotland-end-of-story/
4. In June 2018 the Court of Session ruled that there was no legally enforceable ban in place following a legal challenge from INEOS and Reach CSG. BBC 19 June 2018 ‘Judge says fracking not banned in Scotland’ https://www.bbc.co.uk/news/uk-scotland-44532985;
Friends of the Earth Scotland blog ‘When is a ban a ban?’ https://foe.scot/when-is-a-ban-a-ban/
5. The Scottish Government published a Strategic Environmental Assessment (SEA) of its preferred policy position of no support for UOG in October 2018. The SEA highlights the significant harmful environmental impacts the industry would have if allowed to go ahead. It noted that “Ministers will inform Parliament of their finalised policy on the development of unconventional oil and gas in Scotland in the first quarter of 2019.” https://consult.gov.scot/energy-and-climate-change-directorate/preferred-policy-position-on-uog/
6. An updated preferred policy position statement published at the same time as the SEA, suggests that the Government intends to continue to rely on policy levers to prevent fracking taking place, despite gaining licensing powers:
“The Scottish Government will embed its position on unconventional oil and gas within the next iteration [of the National Planning Framework], thereby giving an assurance the policy would carry significant weight in development planning and decision making, and that any future changes to the policy would be given Parliamentary consideration….
“In the event our preferred policy position is adopted, in addition to the policy being a material consideration within planning policy, Scottish Ministers would discharge our newly devolved licensing powers in line with that adopted policy position i.e. of not supporting the development of unconventional oil and gas in Scotland.”
The document appears to be no longer available on the Scottish Government website, but Friends of the Earth Scotland have uploaded it at https://foe.scot/resource/scottish-gov-policy-position-fracking-oct-2018/