Scottish Government accused of establishing ‘unlawful ban’ on fracking

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A lawyer who is acting for two petrochemical companies has accused the Scottish Government of establishing a “ban” on fracking which is “unlawful”.

Advocate Gerry Moynihan QC told Lord Pentland today (Wednesday) that the SNP administration has exceeded its legal powers with regard to the energy extraction method.

Mr Moynihan told the Court of Session in Edinburgh that through public statements the government has created a policy which will prevent the fracking industry from developing in Scotland.

The silk made reference to a statement that Paul Wheelhouse MSP, the minister for business, innovation and energy, made to the Scottish Parliament on October 3, 2017.

Mr Wheelhouse used the phrase “effective ban” in his address.

The lawyer also said that the Scottish Government’s view – that it hasn’t yet created a formal policy and that Mr Wheelhouse just stated its preferred political position – is incorrect.

He said that the only inference which can be drawn from the Holyrood’s administration statements is that there is a ban on fracking in place and that this alleged prohibition is illegal.

Urging Lord Pentland to rule in favour of his clients - the petrochemical companies Ineos and Reach CSG - Mr Moynihan added: “The Scottish Ministers have acted unlawfully. If one looks at the statements which have been one thing is clear – there is a ban on fracking in place.

“The practical issue is that unless the field is cleared these decisions will wallow like a black cloud over matters.”

Mr Moynihan was speaking on the second day of a judicial review which has been brought by Ineos and Reach CSG.

Ineos owns two fracking licences in Scotland and imports fracked shale gas from the United States to process at its refinery in Grangemouth.

It has said that a ban on fracked oil and gas extraction would result in Scotland missing out on economic benefits, including about 3100 jobs and £1 billion for local communities.

Ineos also claims that millions of pounds it invested in acquiring fracking licences and obtaining planning permission for drilling sites had been “rendered worthless”.

In legal papers lodged at the Court of Session, the pursuers claim that an October 2017 statement made by the Scottish government about fracking indicated a policy change.

The pursuers argue that the statement showed that the government had changed its policy from a moratorium to an outright ban.

The pursuers want the court to declare that the Scottish government acted unlawfully by making this statement.

The pursuers want the court to declare that it is unlawful for Scottish Ministers to use their powers under planning legislation to ban fracking in Scotland.

The petrochemical companies are also seeking damages - the exact sum isn’t specified in papers.

Today, Mr Moynihan made reference to submissions made by the court yesterday by the government’s lawyer James Mure QC.

Mr Mure said the October 2017 statement was a “gloss” which was intended for the press and that the Scottish government had yet to decide its formal policy on fracking.

Mr Moynihan told the court that the language in the October 2017 statement couldn’t help but give any reader the impression that a ban had been put in place.

He added: “It was said that it was a gloss. We are dancing around handbags - what does a gloss even mean?”

The hearing continues.