Legal opinion on whether the Scottish Parliament can ban fracking

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 a surer way to defeat any further legal challenges from companies with an interest in the industry.

Brief Summary of the opinion:

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. [1] 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 [2011] 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.””