Siobhan Tolland: Why the SNP was right to abstain on the fracking vote

CommonSpace columnist Siobhan Tolland explains why she believes the SNP had no choice but to abstain on a recent Holyrood vote on fracking

OH GOD, here we go again. The SNP’s decision to abstain on the Labour party’s amendment that there should be a ban has been met with a whole host of frenzied discussion.

I am not going to get into the badness of fracking. That’s established. Its ecological suicide for God's sake. But behind some of the frenzy regarding the SNP’s abstention there has been some considered debate and legal expertise offering balanced advice on these issues.

I talk specifically about two interviews with legal experts. One with an environmental lawyer, Ian Cowan, back in February, used in an article by the National just this weekend. The other was a legal expert in planning and environment, Ewan MacLeod, interviewed by the Herald.

It would be would be useful at this juncture for the SNP to outline a detailed analysis of the nature and outcome of a successful legal challenge to a ban: it would help inform the current debate.

Cowan noted that while a legal challenge is possible, it is "not immediately obvious that there would be an industry challenge to a similar policy 'ban' on UGE, at least not to me".

MacLeod noted that the "government could face a legal challenge should it ditch its current policy in favour of a ban". That this would lead to a legal right to frack is unlikely, he qualified.

Note that, contrary to the Herald’s headline (‘SNP's 'fictitious' claims over fracking ban call debunked by expert’), MacLeod never got anywhere near suggesting a successful legal challenge is fictitious. That was Sheila Baillie. MacLeod noted in a further discussion with myself that should a court overrule a ban, it is likely the Scottish Government could find a way to circumvent it. If it wants to stop fracking, it will find a way to stop it despite the ban.

It would be would be useful at this juncture, then, for the SNP to outline a detailed analysis of the nature and outcome of a successful legal challenge to a ban: it would help inform the current debate.

Having said this, I would still argue that a continuation of the moratorium is the correct, least complicated and fastest way of imposing a full ban. A moratorium is due for completion in the summer of 2017. We have to wait one year for a decision to ban.

While I can understand the frustration of anti-fracking campaigners and the desire to have a full outright ban now, the process would only become fraught with more complications and doubt should the moratorium be broken now in favour of a ban.

While I can understand the frustration of anti-fracking campaigners and the desire to have a full outright ban now, the process would only become fraught with more complications and doubt should the moratorium be broken now in favour of a ban.

For what MacLeod does note is should the government lose a "judicial review ... the worst case scenario for ministers would be merely having to revert to the original policy of seeing through an evidence-gathering process and consultation before taking a decision."

Effectively, then, what he is saying is that if the Scottish Government initiates a ban and then loses any legal challenge against that ban, then we would end up back in the situation we are now in. There would be no permanent ban and we would have to continue the consultation and research.

So after a lengthy judicial review process, we may end up back where we started, having lost a few years fighting with the courts. What The National’s article on Saturday interestingly missed out, and what the Herald didn't note in its headline, is that both legal experts agreed that the moratorium is appropriate.

Cowan stated that it is quite possible the Scottish Government has been threatened with legal action and that now the moratorium is in process it would be understandable that it continues this.

He suggested that changing SNP policy during the moratorium could be seen by fracking companies as not being evidence-based but rather one of party policy: leaving it vulnerable should it be legally challenged.

MacLean clarified this: "Government is correct to continue with its current moratorium, which will see it collect evidence and carry out a consultation before taking a decision, having created what is known as a 'legitimate expectation' to interested parties."

It would be irresponsible of a government to initiate an evidence-based consultation process and then abandon it without completion. This is why the SNP had no choice but to abstain.

Legitimate expectation is a promise by a government body to carry out a certain procedure before making a decision on the merits of a case. In this case, the promise that the Scottish Government would carry out evidence-based research and consultation on fracking before making a decision.

For the SNP to publicly favour a ban on fracking by supporting the amendment, it could be accused of not carrying through this 'legitimate expectation'. It would have shown itself to have made a decision ignoring the merits of the case and not following the procedure it set up.

Cowan stated that if the moratorium process is genuine and fair then a total ban must be one of the possible outcomes. I would agree with that. Should the Scottish Government decide to allow fracking, however, I will rip up my SNP membership in disgust, though I believe it is likely a fair process will lead to a ban.

But it would be irresponsible of a government to initiate an evidence-based consultation process and then abandon it without completion. This is why the SNP had no choice but to abstain. It could not risk making the issue of fracking party policy rather than an evidence-based decision. This leaves a potential future ban vulnerable to legal challenge.

The fact is, now that a moratorium is in place, we have no choice but to see it through. This is the fastest and best way to ensure a solid ban at the end of it.

Picture courtesy of Scottish Government

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