What the frack happened?

Yesterday the Scottish Parliament voted to pass an amendment during the environmental debate to ban fracking in Scotland.

For those not following the debate so far, fracking is the process of drilling down into the earth and using a high-pressure mixture of water, chemicals and sand to create fissures in the underground rock that releases trapped gas.

The big question though is whether or not the process is safe - activists around the world have been sharing their experiences of the alleged effects of fracking online, including this Australian Green MP who accidentally set a river on fire...

It's not just gas bubbling up out of the ground in unexpected places though - fracking has been reported as leading to water contamination and minor earthquakes too.

With their being a few concerns about safety, the Scottish Government imposed a temporary moratorium on fracking back in January of 2015, to give them time to do some comprehensive research into the practice before making a decision on whether or not it should go ahead.

This led to a bit of trouble in February when the Sunday Herald revealed that the Scottish Government had awarded one of the research contracts to a pro-fracking organisation, resulting in the contract ultimately being cancelled.

The moratorium is scheduled to last through till 2017, with no fracking taking place in Scotland till a further decision could be made based on what the reports generated by these contracts said.

Which leads us up to the vote on Wednesday.

An amendment was put forward by Scottish Labour, further amended by Andy Wightman from the Scottish Greens, to "recognise that, to meet Scotland's climate change goals and protect the environment, there must be an outright ban on fracking in Scotland".

This wasn't the first time that an amendment had been put forward to ban fracking in Scotland. In May 2014 Alison Johnstone of the Scottish Green Party had raised an amendment to do so. Every party, including Labour, voted it down. Not so this time.

Only the pro-fracking Conservative party voted against, with the SNP choosing to abstain entirely, leading to the amendment passing.

So wait... Does that mean that fracking is now banned in Scotland?


It is now the official position of the Scottish Parliament that fracking should be banned. For that to happen, however, the Scottish Government, who are a separate body, would need to create legislation that bans fracking, which then gets passed back to parliament to be voted in; only then would fracking be banned. So nothing has effectively happened, and with the SNP Government saying that they do not intend to legislate to ban fracking despite the vote, it seems unlikely that anything will happen either.

Paul Wheelhouse, SNP minister for business, innovation and energy, said the view of parliament “will not deflect Government” from its current policy of a moratorium on fracking until it has canvassed expert and public opinion.

Do we even have the power to ban fracking?

This is where things begin to get more complicated.

At the moment, the Scottish Government has power over the granting of environmental licences and planning permission; two things that are required for fracking to take place. Campaigners argue that it is possible to use these two devolved powers to effectively ban fracking.

Section 46 of the Scotland Act also gives Scotland the power to grant, or not grant, the necessary licences for companies to drill for on-shore petroleum, though the power has not been fully devolved yet.

However other campaigners argue that the Scottish Government would be open to a legal challenge if they banned fracking now, prior to waiting for the results of the study they are currently carrying out. Historically the Scottish Government has been challenged before over legislation it has passed, such as by the insurance industry to the Damages (Asbestos-related Conditions) (Scotland) Act 2009, and by the drinks industry to the Alcohol (Minimum Pricing) (Scotland) Act 2012.

The Scottish Government won the challenge from the insurance industry and the challenge from the drinks industry is still ongoing.

Ian Cowan, an expert in the law and practice of environmental regulation, stated: "It is reasonable to conclude that, in the unlikely event that Holyrood legislated to prohibit [fracking], a legal challenge might very well follow.  But there has been no challenge by the nuclear industry to the policy ‘ban’ on new nuclear."

He concluded: "It is not immediately obvious that there would be an industry challenge to a similar policy ‘ban’ on UGE, at least not to me."