So, my first ever blog post took me completely by surprise last week. Instead of the expected crickets and tumbleweed, I ended up with a veritable avalanche of views, blog comments and Tweets. All in all it was a hell of an interesting experience and also brought to the surface the war of words and confusion that seems to be swirling round the subject of UGE (Unconventional Gas Extraction).

The most interesting (to me), thing being, that it appeared we all agree we don’t want UGE in Scotland, we just have different ideas about how it can and should be stopped. Massive amounts of conviction and scarce understanding of the law and mechanisms available to reach our common goal, seemed to be the gist of it.

Then low and behold a lawyer turned up in the post’s comment section. A lawyer specialising in environmental law. I emailed him to thank him for his detailed comments and the idea of a guest post emerged. We decided that the best way to approach it would be a Q&A system. It’s a long and detailed read, 30 questions and answers in total.I’d like to extend a massive thanks to Ian for his time, patience and ability in making the detail so accessible. Please, grab a coffee / tea and some biscuits…

Without further ado let me introduce you to Ian Cowan.

The Scottish Government has placed a moratorium on unconventional gas extraction (UGE). A lot of people would like to see a ban in place. What is the difference between a moratorium and a ban? Is there a legal difference or is it simply confusion over language being used?

Some words, in a particular legal context, do have a particular meaning. But ‘ban’ and ‘moratorium’ are words with no special legal meaning. I don’t think of either of them as a legal concept, but you might. Confusion certainly can arise because of how you and I might use words in different ways, but I think most people would agree that a ban suggests something permanent, while a moratorium is temporary. Now if you had said ‘prohibition’ instead of ‘ban’, I would think you might be talking about something legal, because (as we all know) lawyers won’t use a single syllable when four will do.

So is the moratorium a temporary prohibition?

Before I answer that, I’m going to do something else lawyers like doing, which I honestly believe everyone could usefully do to avoid some of the confusion over language, except it would take too long, so it’s just not going to happen… I’m going to define my terms. I’ve realised that in my first answer I used the word ‘legal’ 3 times, and luckily it meant the same thing in each case: “to do with law” or “relating to law”. But often it can mean “permitted” or “within the law”. So, in order to be as clear as I can, I am going to use the word ‘legal’ in the same way throughout; and I will use the word ‘lawful’ to mean “within the law”. To be consistent, I will say ‘unlawful’ instead of ‘illegal’ (which I shouldn’t need to use again).

Great. Can you answer my question now?

Sorry. In effect, yes, a moratorium is a temporary prohibition, but it’s not a prohibition in the legal sense. Legally, a ‘prohibition’ is making something that was lawful (i.e. within the law) unlawful, or ‘outlawing’ it, and that generally means making it a criminal offence. But the law has been used to make the moratorium happen, to make it something more than just a word or, as we lawyers like to say, to ‘give it legal effect’.

Where exactly are you going with this?

I know, it takes a while to explain, and I need to digress again. There’s been a lot of talk in Scotland recently about powers: what powers Scottish Ministers have, and what powers they don’t have. In parliamentary democracies like the UK, new powers are only ever granted by the parliament. All the powers of Scottish Ministers were granted by the UK Parliament through the Scotland Act 1998 (and the Scotland Act 2012). Some of the powers Scottish Ministers don’t have are powers that were ‘reserved’ to UK Ministers by the 1998 Act. But other powers they don’t have because, in a democracy, no parliament should grant politicians those powers: for instance, the power to lock someone up indefinitely without trial, or to torture them. Sometimes people refer to these as ‘arbitrary’ powers. Another example of an arbitrary power is the power to prohibit things at short notice with the force of law. In the UK, the only way for a politician to properly prohibit a thing (i.e. make it an offence) is to propose a new law and try to get it through the relevant parliament – in other words legislation, which takes a lot of time, thought and effort.

So how has the law been used to give effect to the moratorium?

Imagine you are a Scottish Minister. (“Scottish Ministers” is the formal legal title for the Scottish Government, by the way.) You go to your officials and say “I want to stop all UGE in Scotland until we have done more research and had a public consultation. What can I do to make that happen? Can I just say it’s banned until I say it’s not?” Your officials will say: “You are asking us what powers you have to make it happen”. They will then inform you (as you do not appear to know) that, as you are not a dictator in a one-party state (despite what some careless commentators keep crowing), you cannot simply (or ‘arbitrarily’ – more syllables) say “it’s banned until I say it’s not”. In fact the only existing power you really have (they will then say) is the power to delay UGE.

But isn’t UGE a reserved matter under the Scotland Act?

Kind of, but not completely. Schedule 5 to the Scotland Act is where all the reserved matters are listed. It covers “Oil and gas, including—(a) the ownership of, exploration for and exploitation of deposits of oil and natural gas…”, so you are partly right. To drill for and produce gas in or around the UK, you need a licence under the Petroleum Act 1998 – known as a ‘petroleum exploration and development licence’ or ‘PEDL’ (because ‘petroleum’ is defined as including “natural gas existing in its natural condition in strata”) – and at the moment, you can only get a PEDL from a UK body (until recently the Department of Energy and Climate Change, or DECC, but now the Oil & Gas Authority, but that’s not important).

What do you mean ‘at the moment’?

Well, Clause 44 of the Scotland Bill currently going through the UK Parliament would devolve to Scottish Ministers “the granting and regulation of licences to search and bore for and get petroleum that, at the time of the grant of the licence, is within the Scottish onshore area, except for any consideration payable for such licences.” (“Consideration” is another fine example of a lawyerly word, in this case, for ‘payment’ – so you will see that although Scottish Ministers will be able to grant and regulate PEDLs in Scotland, payment for them will still go to the Crown – a subject for another blog-post maybe. And because the provision only covers “the Scottish onshore area”, Scottish Ministers will not be getting the power to grant PEDLs for offshore oil and gas development.)

Okay, so in what way is UGE not a reserved matter at the moment?

In order to drill for and produce gas onshore (as opposed to offshore), you need other permissions or licences, in particular planning permission and an environmental licence. Planning and environmental regulation are not listed in Schedule 5 to the Scotland Act, which means they are devolved matters, and, as it happens, both Scottish planning legislation and Scottish environmental legislation give Scottish Ministers significant powers.

But don’t local councils make planning decisions?

Yes, they do, in their role as planning authorities, and environmental licences are granted by the Scottish Environment Protection Agency (or SEPA). But in both cases, Scottish Ministers have supervisory powers. For example, if a developer wants to appeal against a decision (or a non-decision) by a planning authority or SEPA, they can appeal to the Scottish Ministers. Dart Energy appealed to Ministers when Falkirk Council had failed to determine their planning application for coal bed methane production at Airth within the permitted time-scales (referred to legally as a ‘deemed refusal’, in other words a non-decision that the applicant could treat as a refusal). The Scottish Ministers can also ‘call in’ planning applications or environmental licence applications, and make the decision themselves. (Who can forget Donald Trump’s golf course application?)

So how does that work?

Ok, you asked for it, but I’ll try to make it clear. Section 46, subsection (1), of the Town and Country Planning (Scotland) Act 1997 says that the Scottish Ministers “may give directions requiring [planning applications] to be referred to them instead of being dealt with by planning authorities”. (When you see the word “may” in a legal provision, you are looking at a power. If you see the word “shall”, it is a duty.) A ‘direction’ is a formal letter to another authority, literally directing (or ordering) them to do something. (It’s a good example of an ordinary English word that in this context has a special meaning.) Subsection (2) says: “A direction under this section may be given either to a particular planning authority or to planning authorities generally, and may relate either to a particular application or to applications of a class specified in the direction.” And planning authorities have a duty to comply with a ‘direction’, because subsection (3) says: “Any application in respect of which a direction under this section has effect shall be referred to the Secretary of State.”

So the Trump golf course application was “a particular application”?

Yes, and in that case the ‘direction’ was given to Aberdeenshire Council. In order to give effect to the moratorium – you’ll be pleased to hear we are finally getting to the point now –the Scottish Ministers could have used their power under section 46 of the 1997 Act to issue a general ‘direction’ to all planning authorities, calling in all applications that related to UGE.

Did you say ‘could have’?

Yes. They could have, and they might still have to, but local councils don’t much like being ordered around by Ministers, because they are supposed to be accountable to their own voters, so officials would have recommended that you (as a Minister) use another existing power which wouldn’t ruffle so many feathers. That power is set out not in the primary legislation (the 1997 Act), but in secondary legislation, namely The Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013.

Give me a break.

I’ve only just started. These Regulations, as the name suggests, govern the procedure for ‘development management’, which is jargon for ‘dealing with planning applications’. Regulations 31 and 32 allow Ministers to intervene in the normal process for dealing with planning applications by issuing ‘directions’ of two other types. They can direct planning authorities to pass on certain information about planning applications, and they can “restrict the grant of planning permission by a planning authority, either indefinitely or during such period as may be specified in the direction”. So that’s what they did.

They ‘restricted the grant of planning permission indefinitely’?

Good guess, but no. They issued The Town and Country Planning (Notification of Applications) (Unconventional Oil and Gas) (Scotland) Direction 2015 (which I will refer to as “the Direction” hereinafter – sorry, couldn’t resist it). This instructed local councils to do three things if they receive a UGE-related planning application.

Stop right there. I thought there could be no applications during the moratorium.

So did I, until I asked the Scottish Government to send me a copy of the Direction, and read it. I had to read it several times before it sank home that the moratorium does not prevent developers making planning applications for UGE. Anyway, the first thing the local authority has to do is send Ministers a copy of such a planning application, including all the accompanying information such as the environmental statement (if there is one).

Is that what you mean by Scottish Ministers calling in the application?

No. The legal way of saying ‘we are calling in this application’ is ‘we direct to you to refer this application to us for determination’. All the council needs to do is make a copy of the complete application and send it to Ministers, for information. The council then has to follow the usual ‘development management procedure’, i.e. process the planning application as they normally would, before coming to a decision. If they decide to refuse it, they can just go ahead and refuse it, but if they decide to grant it, the second thing they have to do is let the Scottish Ministers know that they are ‘minded’ to grant the application, with their reasons for coming to that decision. The third thing they must do is wait 28 days before actually issuing the planning permission (often called the ‘decision notice’).

So what does the Direction say happens after the 28 days?

It says nothing else. But as I said above, Ministers have other powers of ‘direction’, so, reading between the lines, I reckon they would use one of them before the 28 days were up. They could either use the section 46 power at that stage to call in the application (which would mean they would have to make the decision eventually, because they don’t have the power to sit on a planning application indefinitely), or they could issue a new ‘direction’ to the council in question, ‘restricting the grant of planning permission indefinitely’, thus kicking it into the long grass… indefinitely. I strongly suspect that they would do the latter, even though it would also kick up a storm, in order to avoid having to make the decision themselves. But in the mean time, that’s how the moratorium works.

So it’s really just a delaying tactic?

Precisely. And, as I found out when I looked up the dictionary definition of ‘moratorium’, it comes from the Latin ‘mora’, for ‘delay’. I bet you never knew law could be so fascinating.

So a UGE developer can really apply for planning permission today if they want?

Correct, and the council still has to go through the normal determination process, as I said. The Regulations I mentioned above give them up to 4 months to determine a planning application, and this period can be extended by agreement, but if (as Dart did at Airth) the applicant decided not to agree to any more extensions, and the application still hasn’t been determined when the deadline (as extended) passes, they can treat this as a ‘deemed refusal’, and appeal to the Scottish Ministers. So the process just keeps marching slowly on until the Scottish Ministers are left with the choice of either calling in and determining the application, or instructing the local council to suspend the determination process indefinitely. Neither of these options is politically attractive, so I am pretty sure that they are keeping their fingers crossed that no UGE developer will call their bluff and apply for planning permission, until the UGE research work and public consultation are done, and they can lift the moratorium.

And what about SEPA?

I’m glad you asked that, because the environmental legislation doesn’t give Ministers nearly so many options as the planning legislation. In fact, the only suitable power Ministers have under the relevant environmental legislation is to call in a licence application (or a class of licence applications) made to SEPA. So they issued The Water Environment (Controlled Activities) (Unconventional Oil or Gas Development) (Scotland) Direction 2015, instructing SEPA “to refer to them for their determination” any application for a licence under the water legislation “in connection with unconventional oil or gas development”.

So they’ll be even keener that there are no UGE-related applications to SEPA.

Too right. Developers that need a SEPA licence tend to get their planning permission in the bag first before applying to SEPA. It doesn’t always happen, but Ministers will be keeping their fingers and toes crossed that it does in this case.

Ok, let’s move on. The Scottish Green Party is saying they will ban UGE. Would that ban make UGE illegal, for instance in the same way that displaying tobacco products has been banned and is now illegal?

It’s possible, but in order to prohibit UGE in that ‘making it unlawful’ way, they would have to make it a criminal offence, as I mentioned about 4 pages ago. There are serious international calls for a crime of ‘ecocide’ to be recognised, but I don’t think Scotland is ready for that, I don’t think Holyrood would vote for legislation banning UGE, and I don’t think the Greens intend to do that, even if they have the balance of power after May.

I keep hearing people say that the Scottish Government can ban UGE just as it has banned new nuclear power plants in Scotland. Is that actually a ban or a moratorium?

It’s more a ban than a moratorium, because they are not waiting for any more information before making their minds up, but it’s not a legal prohibition (meaning it would be an offence to build a nuclear power station). It is something completely different – a strong statement of national planning policy – and I am pretty sure that this is what the Greens mean when they say they would use planning powers to block UGE in Scotland.

Tell me more.

The Scottish planning legislation requires the Scottish Ministers to prepare and publish a National Planning Framework (NPF) every 5 years. It is a bit like the local development plan which local councils produce every 5 years or so, but on a national scale, and like a local plan, it involves several periods of public consultation before it is finally published, or ‘adopted’. The main purpose of the NPF is to set out the ‘national developments’ that Scottish Ministers want to see go forward over the coming 20 years, after consulting the public. The first NPF was published in 2004, setting out a strategy for Scotland’s development to 2025. When the second NPF (known as “NPF2”) was published in 2009, it stated: “The Scottish Government does not support the construction of new nuclear power stations in Scotland”. The current NPF (“NPF3”, published in 2014) looks forward “20 to 30 years” and asserts: “There will be no nuclear new build in Scotland”. It would certainly be possible to make a similar policy statement about UGE in the next NPF, subject of course to public consultation.

But does the Scottish Government have powers to stop nuclear plants from being built?

That is the right question. This page on the Scottish Government website contains the answer: “Yes – Under the Electricity Act 1989, the building of any new nuclear power station in Scotland would require consent from Scottish Government Ministers (under Section 36 of the Electricity Act). … Scottish Ministers would of course consider any application on its individual merits. However, given our energy policy position, combined with Scotland’s current generating capacity and abundant energy sources, it is unlikely such a proposal would find favour with Scottish Ministers.”

That’s not exactly a ban then, is it?

No, it’s not, it is simply a very strong policy statement that they will be likely to use their planning powers to stop any new nuclear in Scotland. Here is a link to the original 2007 announcement by the Scottish Government on nuclear power which contains a very similar statement about section 36 of the Electricity Act. Section 36, by the way, says “a generating station [of more than 50MW capacity] shall not be constructed, extended or operated except in accordance with a consent granted by the [Scottish Ministers]”.

What does the Electricity Act have to do with planning?

Well, section 57(2) of the Town and Country Planning (Scotland) Act 1997 says: “On granting a consent under section 36 or 37 of the Electricity Act 1989 in respect of any operation … that constitutes development, the [Scottish Ministers] may direct that planning permission for that development and any ancillary development shall be deemed to be granted, subject to such conditions (if any) as may be specified in the direction.” What this means is that developers of power stations don’t have to apply separately for planning permission from the local council as well as consent under the Electricity Act. If their single application to Scottish Ministers under that Act is granted, they obtain ‘section 36 consent and deemed planning permission’.

So when people say that the Scottish Government has used its planning powers to ‘ban’ nuclear power, what they mean is that Scottish Ministers have said very clearly that they do not think nuclear power is safe or necessary, and they would be ‘unlikely’ to grant consent?

Exactly. But it helps to be in control of both national planning policy and the relevant planning decisions, as Scottish Ministers are in relation to nuclear. When it comes to UGE, by contrast, there is no need for a new power station, because the natural gas, once it has been treated and meets required quality standards, can simply be piped into the national gas distribution network. So there need be no application to the Scottish Ministers under the Electricity Act. Planning permission would have to be obtained, as stated above, in the normal way, by applying to the local council. And because local councils are elected, have their own powers and make their own decisions, it would be both harder politically for any Scottish Government to declare that “there will be no UGE in Scotland”, and harder in practice to make such a declaration stick, without resorting to their ‘call-in’ powers again.

Other people say the Scottish Government would be open to legal challenge if they tried to ban UGE at this point in time. Are they right?

We have seen legal challenges from big corporate interests to new legislation: 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. It is reasonable to conclude that, in the unlikely event that Holyrood legislated to prohibit UGE, a legal challenge might very well follow. But there has been no challenge by the nuclear industry to the policy ‘ban’ on new nuclear, and the only legal challenge to a National Planning Framework that I know of came from a member of the public (Marco McGinty), so it is not immediately obvious that there would be an industry challenge to a similar policy ‘ban’ on UGE, at least not to me.

But was that not why the SNP leadership were so reluctant to debate the issue at the recent party conference?

I think it was. Having announced the moratorium, the programme of research into the impacts of UGE and the public consultation; and having put contracts out to tender for some of the research projects and since awarded them, the Scottish Government is understandably keen to see the process through rather than change tack at this stage. If the process is genuine and fair, one of the possible outcomes must be a total ‘ban’ (probably a policy ban rather than a legal ban, as suggested above). It is quite possible that the Scottish Ministers have been threatened with legal action, so they would want to avoid giving any fracking company the slightest impression that they might have made such a decision because it had become SNP policy during the moratorium, rather than as a result of a dispassionate review of the research evidence. The best way to achieve that is to prevent it becoming party policy, and ca’ canny.