Onshore Hydraulic Fracturing (Protected Areas) Regulations 2015

Tuesday 24th November 2015 Grand Committee

Motion to Consider

16:12

Moved by

[Lord Bourne of Aberystwyth]

That the Grand Committee do consider the Onshore Hydraulic Fracturing (Protected Areas) Regulations 2015.

Relevant documents: 3rd Report from the Joint Committee on Statutory Instruments, 8th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Department of Energy and Climate Change and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, we are today considering an instrument which sets out definitions for the “protected groundwater source areas” and “other protected areas” in which hydraulic fracturing will be prohibited. The powers to make this secondary legislation are found in Section 4B of the Petroleum Act 1998, as inserted by Section 50 of the Infrastructure Act 2015, which, following scrutiny in this House and in the other place, received Royal Assent in February 2015.

Before outlining what the draft regulations seek to do, I will take this opportunity to restate the Government’s commitment to a low-carbon and affordable future for energy. Gas, the cleanest fossil fuel, still meets a third of our energy demand and we will need it for many years to come. It is vital that we seize the opportunity to explore the United Kingdom’s shale gas potential while maintaining the very highest safety and environmental standards. We have established these standards as world leaders in extracting oil and gas over decades.

Shale can and will be developed safely. The UK has over 50 years’ experience of safely regulating oil and gas exploration. We have world-class, independent regulators who will not allow operations that are dangerous to local communities and the environment to go ahead. Safety is and always will be absolutely paramount. Highly respected independent bodies such as the Royal Society, the Royal Academy of Engineering and Public Health England have reported that risks associated with developing shale gas in the UK can be managed effectively if operational best practices are implemented and enforced through regulation. We have a strong regulatory regime for exploratory activities, which we will look to review continuously as the industry develops. We insist on the highest safety standards, and all this is backed up by independent checks from the regulators.

16:15

There is no denying it: 80% of us use gas for heating and cooking, and industry uses gas in many everyday products. At the moment we import around 40% of our gas needs, and by 2030 we could be importing three-quarters of the gas that we use. Shale is vital, not just to reduce our reliance on imports but because it can also create an energy “bridge” while we further develop renewable energy, improve energy efficiency and build new nuclear generating capacity. Importantly, studies have shown that the carbon footprint of electricity from UK shale gas would likely be significantly less than unabated coal and lower than imported liquefied natural gas. Shale offers a valuable decarbonisation route from where we are today to where we want to be in future. Exploring for shale will also help to create jobs and grow local economies. Investment in shale could reach £33 billion and support as many as 64,000 jobs in the oil, gas, construction, engineering and chemical sectors.

I turn to the draft regulations. As noble Lords may be aware, Sections 4A and 4B of the Petroleum Act 1998 set out further safeguards for onshore hydraulic fracturing in England and Wales to provide the public with confidence that the developing shale industry is being taken forward in a balanced and measured way. The Act contains a number of conditions that must be satisfied before a hydraulic fracturing consent is issued by the Secretary of State. This includes two conditions specifying that associated hydraulic fracturing cannot take place within “protected groundwater source areas” or “other protected areas”. These two terms are not defined in the Act. Instead, the Act contains a requirement for the Government to produce draft regulations with the definitions and to lay them in both Houses by the end of July this year. Honouring this commitment, we laid the instrument, in draft, on 16 July.

The draft regulations will afford greater protection to some of our most precious areas, in a manner that meets the Government’s broader policy objective of supporting the long-term development of the UK’s shale gas industry. Regulation 2 defines “protected groundwater source areas”. The definition is equivalent to the regulators’ existing definition of source protection zone 1, which applies to those areas close to drinking water sources where there is the greatest risk associated with groundwater contamination. As required by Section 4B of the Petroleum Act, we consulted with the Environment Agency and Natural Resources Wales when formulating our proposed definition of “protected groundwater source areas”. Both agencies confirmed that they were content with the definition being aligned with source protection zone 1, as this reinforces their approach to controlling risks from other groundwater activities.

The draft regulations ensure that the process of hydraulic fracturing cannot take place at depths above 1,200 metres within these areas. The vast majority of drinking water supplies are located at depths above 400 metres. This limit therefore provides a buffer of at least 800 metres between the depth of most drinking water sources and the highest possible level at which hydraulic fracturing can take place. This exceeds the safety depth recommended by the most cautious scientific reports.

It is worth noting that if the environmental regulators assess that more stringent controls are needed to protect groundwater, these can still be applied as conditions in the environmental permits required for all developers. The environmental regulators have successfully influenced operators not to apply for sites in these zones and have made sure that pipelines do not run through these areas. What is more, if either of these agencies assess that more stringent controls are needed to protect groundwater, these will be applied as conditions in the environmental permits required, as I say, for all developers. The proposed definition would not impact on the environmental regulators’ current powers to refuse permit applications within source protection zones 1, 2 or 3, or wider on a case-by-case basis, if they consider that an activity poses an unacceptable risk to the environment. So, in addition to the regulations a discretion can be applied via the environmental regulators that is more stringent even than those in the regulations, if it is considered that an activity poses an unacceptable risk to the environment.

I turn to Regulation 3, which really comes in two parts. One part relates to the depth at which the fracking can be carried on, which is always at least 1,200 metres below ground. I will come to some specific areas where it will be more than that and where there will be a control on what happens on the surface, as it were. Regulation 3 defines “other protected areas” as national parks, the Broads, areas of outstanding natural beauty and world heritage sites. The regulations ensure that the process of hydraulic fracturing cannot take place above 1,200 metres in these areas.

In defining protected areas there is a need to strike the right balance between affording them additional protection and stifling the nascent shale industry. The Government firmly believe that the depth limit chosen, 1,200 metres, strikes this balance. In addition, national parks, the Broads and areas of outstanding natural beauty are our finest landscapes and are afforded the highest protection within the planning system in relation to landscape and scenic beauty. Similarly, world heritage site status is the highest international heritage designation. Our world heritage sites are irreplaceable, and the Government take their responsibility to conserve and protect them very seriously.

We recognise that concerns have been expressed about fracking from wells drilled at the surface of some sensitive areas. The draft protected areas regulations can relate only to the subsurface process of fracking, in accordance with the requirements and provisions of the Infrastructure Act 2015. However, we have separately committed, in a way that is not intended to impact on conventional drilling operations, to ensure that fracking cannot be conducted from wells that are drilled at the surface of our most valuable areas. That will be reflected in the licensing and environmental permits process. We are minded to apply the surface restrictions in sites of special scientific interest, in Ramsar and Natura 2000 sites, which are very similar—Natura is a European designation, Ramsar an international one—as well as in the areas covered by the draft regulations. We are currently consulting industry and other interested parties on how best to implement these surface restrictions.

I stress that, even with these draft regulations, a company looking to develop shale will still need to obtain all the necessary permissions, including planning and environmental permits, before hydraulic fracturing can be carried out. Those are in addition to these requirements. As part of the licence, permission and permit procedures, the environmental impact of operations, and any risks associated with them, are assessed by regulators and through the planning system on a case-by-case basis. All oil and gas sites need permits under the Environmental Permitting (England and Wales) Regulations 2010, as well as planning permission from the relevant planning authority. The National Planning Policy Framework and supporting practice guidance clearly state that, in respect of minerals like shale oil and gas, new development should be appropriate for its location. Let me be clear: if the risks of a proposed shale activity are deemed unacceptable, the environmental regulators will simply not allow it to go ahead, irrespective of the area or depth.

In line with the Small Business, Enterprise and Employment Act 2015, Regulation 4 commits us to carry out a review of the regulations in five years’ time and every five years thereafter, and to publish a report setting out the conclusions of the review.

Before we start what I am sure will be a helpful and insightful debate, I emphasise that shale gas may hold huge potential for adding to the United Kingdom’s energy sources, helping to improve energy security, create jobs and meet carbon targets. We need more secure, home-grown energy supplies, and shale gas has a vital role to play. It is much better that we use what we have at home than rely on supplies from overseas. I beg to move.

[Lord Judd (Lab)]

My Lords, I have given notice to the Minister that I was going to raise this point, but before doing so, I should say that I take second place to nobody in supporting the priorities spelled out in the statement that the Minister took the opportunity of making. We have to build up our sustainable energy resources. That is crucial to our survival. Our survival is not just an end in itself; it is to have a country worth living in. That is why areas of special exception are so crucial because that is part of a decent civilised society.

Quite serious issues have begun to register as a consequence of this statutory instrument. For example, in the Peak District there are complex geology and water quality issues that raise particular concerns with regard to the potential for harm arising from fracking. That is why it is essential to have a precautionary approach. We need to avoid removing important protections from the national park and to avoid potential risk to the deeper geological features, including show caves, potholes and systems enjoyed by thousands each year. Water quality and sensitive wildlife habitats in areas of the Peak District national park could consequently suffer. They are, of course, protected under primary legislation.

I should declare an interest because I am vice-president of the Campaign for National Parks and an honorary patron of Friends of the Lake District. In saying that, I should also emphasise that there is no pecuniary interest whatever—quite the contrary—in holding these roles.

The Environmental Audit Committee inquiry into the environmental risks of fracking made a recommendation for protected areas. Recommendation 8 states:

“Fracking must be prohibited outright in protected and nationally important areas including National Parks, the Broads, Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest and ancient woodland, and any land functionally linked to these areas”.

The Government response was given on 26 March this year that the Infrastructure Act ensured that no associated hydraulic fracturing would take place within protected groundwater source areas and other protected areas, and that that would be clarified in secondary legislation by the end of July. The Minister referred to that. They confirmed that that would include—again, the Minister underlined this—national parks, areas of outstanding natural beauty and sites of special scientific interest.

However—this is the issue—the proposed draft statutory instrument defines “other protected areas” as,

“areas of land at a depth of less than 1,200 metres beneath … a National Park … the Broads … an area of outstanding natural beauty … a World Heritage site”.

The draft statutory instrument, therefore, allows for associated hydraulic fracking within a national park at depths below 1,200 metres, and incorrectly states in paragraph 3(3) that the national park,

“has the same meaning as in the National Parks and Access to the Countryside Act 1949”.

It seems that by default the draft statutory instrument is altering primary legislation by limiting the extent of the national park to a depth of 1,200 metres, and in so doing is potentially placing at risk the national parks’ ecosystem services.

16:30

The Peak District raises particular anxieties in this respect. It is, of course, a unique landscape with a unique geology, deep geological features and a complex set of historical mines beneath it. The House of Commons Environmental Audit Committee stated:

“The UK has complex geology and more effort is required to understand and map specific local geological conditions and the influence of historic mining activity”.

In its evidence to the British Geological Survey, it stated:

“There is also very limited knowledge of the properties of the sub-surface (geological and other) pathways along which pollutants might migrate. This makes assessment of the risks very difficult. More work is needed to develop tools for assessing the vulnerability of groundwater and the risks from deep activities”.

The report continues:

“The difficulty lies in the fact that below c.200m there is very little information and data on the hydrogeological properties and potential for movement of pollutants through rocks below this depth”.

Given this limited knowledge and experience of hydrogeological fracturing in the UK and of the deep geological features and the water resources of the Peak District National Park, there is a risk of allowing secondary legislation to remove the precautions that are in place for this valued and environmentally significant land, when a precautionary approach is essential. That is why I raise this matter at this point. Why do I stress the Peak District National Park? We are yet to see whether—life is life and things work this way—as other people register, it will become clear that there are similar serious issues in other national parks.

There is another point, which concerns constitutional propriety. I suggest—indeed, I am fairly convinced of this—that the statutory instrument potentially conflicts with primary legislation. What is now in question is how secondary legislation, in the form of a statutory instrument, is able to reduce the extent of land in a national park, when all the land is within the national park and benefits from the protection of two pieces of primary legislation—the National Parks and Access to the Countryside Act 1949 and the Infrastructure Act 2015.

The National Parks and Access to the Countryside Act does not state that national parks end at a depth of 1,200 feet. The Infrastructure Act states that the associated hydraulic fracking will not take place within other areas. The deep geological features below 1,200 feet are still within the national park. The national parks authorities are custodians of land valued by the nation for its clean air, earth and water, biodiversity, geodiversity and inspirational landscapes, and which provides tourism opportunities that are valued worldwide. These special qualities should not be undermined. Indeed, that would be against the primary legislation and contrary to the recommendations of the Environmental Audit Committee. In the Lake District we have a park which is being put forward for world heritage status. That again underlines the Government’s commitment to not in any way counter world heritage status.

The impact assessment for the secondary legislation SI that defines “protected areas” under Section 4B of the Petroleum Act 1998, and the commencement of Section 50 of the Infrastructure Act 2015, has not considered the statutory purposes of the national parks as required under Section 11A(2) of the National Parks and Access to the Countryside Act 1949, which states the duty of certain bodies and persons to have regard to the purposes for which the national parks were designated:

“In exercising or performing any functions in relation to, or so as to affect, land in a National Park, any relevant authority shall have regard to the purposes specified in subsection (1) of section five of this Act and, if it appears that there is a conflict between those purposes, shall attach greater weight to the purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of the area comprised in the National Park”.

For the purposes of this section, the “relevant authority” means, as stated in the Act,

“any Minister of the Crown … any public body …any statutory undertaker, or … any person holding public office”.

It continues in Section 5, entitled “National Parks”:

“The provisions of this Part of this Act shall have effect for the purpose … of conserving and enhancing the natural beauty, wildlife and cultural heritage of the areas specified in the next following subsection; and … of promoting opportunities for the understanding and enjoyment of the special qualities of those areas by the public”.

Of course, in the Peak District, those wonderful caves that some of us may have experienced are very much part of that enjoyment and understanding.

I therefore suggest that some quite serious issues are raised by the drafting of the regulations as they stand. I hope that we will not have to have a great confrontation at the next stage but I suggest that it would be helpful if the Minister could not only answer convincingly on these points—I know that he takes all these issues seriously; he has been most courteous and kind in his responses to me—but also give us some indication that the Government are prepared to look again at getting this right, because it would be a great shame if we did not get it right.

[Baroness Parminter (LD)]

My Lords, I will raise two matters, which the Minister skated over slightly in his introduction. The first is the definition of the protected areas, which is a different definition to that which was brought into force when the Infrastructure Act was introduced by the previous coalition Government. The Minister made it clear that at that stage it included national parks, AONBs, world heritage sites and triple SIs, which are excluded from the definition in this regulation. SSSIs are some of our most valuable areas of wildlife and nature protection. If any noble Lords saw “Countryfile” on Sunday they would have seen the care with which many farmers ensure that triple SIs are managed sensitively because of their importance to the nation and to our biodiversity but in a way that is consistent with them getting an economic return as farmers. It is important that this Committee reflects on the fact that SSSIs have been dropped by this Tory Government; I will come on to the process of decision-making in a moment. I also highlight a point that was touched on by the noble Lord, Lord Judd—that this legislation no longer prevents the drilling of wells in national parks. I just want to make that clear.

The Minister went on to talk about the fact that there will be a concentration on drilling in national parks, but these draft regulations do not prevent a well being drilled from the surface in protected areas. I would be grateful if the Minister could say a few more words about the wording of the proposed consultation because I really do not understand it when it says,

“from wells that are drilled in the surface of National Parks and other protected areas, but without having an impact on conventional drilling operations”.

I would be grateful for more clarification of what the consultation will mean.

My main point is on the main process of decision-making, about which the Minister said nothing. What disappoints me so much about the impact assessment is that the Government have not looked at the environmental, economic and social impacts equally, and then, on the basis of a rational consideration of the three, decided that, “For the following good reasons, we are going to take this route”. No, they are quite honest and open; on page 3 they say:

“The environmental benefits from preventing hydraulic fracturing in protected areas has been considered, but not quantified”.

They then go on to say, on page 11:

“Extreme uncertainty attaches to the key parameters underlying this estimate; most if not all of the assumptions are subject to very wide margins of error”.

So they are taking figures from the industry but taking no evidence from anyone else. They accept that there are extreme uncertainties attached to the key parameters, yet they base the definition of “protected areas” solely on consideration of those economic costs provided by a wholly biased source, those in the industry, and the department does not even say that there is any certainty attached to those figures. Does the Minister really believe that that is the right way for a Government to make decisions—not looking at environmental impacts and basing decisions entirely on questionable costs provided by industry? That does not give me confidence in solid decision-making by the Government.

On the point about decision-making, the Minister did not mention that the Secondary Legislation Scrutiny Committee rightly challenged the Government over why there was no public consultation or indeed any ministerial Statement. I thought that the response provided by the department was pretty thin, but then of course I am sure that is because it was very worried about bad publicity, particularly in the Weald and Bowland, when this regulation came forward. Even if the department is worried about that, though, it strikes me that the public have a right to know. A lack of transparency will just breed more cynicism in the process and that will make it even harder for the Government to get what they want, which is more fracked gas, so this seems to be a rather short-sighted approach.

In conclusion, I am disappointed in how the Government have come to make this decision. It is disappointing that SSSIs have been taken out on that basis. It shows an extremely cavalier approach to environmental protection that does not serve this Government well. I fully understand that they want to have a dash for gas but they have to accept that we have to do that in a way that takes people with this and, rightly, protects what is special and precious about our countryside. The process of bringing about this piece of secondary legislation does not do that.

[Lord Young of Norwood Green (Lab)]

My Lords, I welcome the statutory instrument. I listened with great interest to my noble friend Lord Judd and the noble Baroness, Lady Parminter. I declare straightaway that I have no pecuniary/financial interests. I have an interest in energy and in the area of fracking in particular because I think there has been so much misinformation put about about the process. All the sources that I quote from are independent; I do not rely on the oil and gas industry to supply me with information. If I do not agree with much that the noble Baroness said, I agree on the point that we should not rely just on the industry.

One phrase that the noble Baroness used made me smile, albeit ironically. She used the phrase “dash for gas”. Would that we were doing so! There has been no dash for gas, that is for sure. I forget for how long exactly, but one exploration well in Lancashire has been delayed for over three years. Considering the amount of experience out there, including in some quite sensitive areas, there has certainly been no dash, and there has been plenty of environmental examination.

16:45

I was also interested in my noble friend Lord Judd’s remarks. By coincidence, I was on a cycling tour this year in the Peak District and I went down the mines he referred to. Of course, it is a wonderful area and nobody in their right mind would want to damage one of the great natural resources we have in this country. They are of inestimable value, both to those who live near them and those who visit them for tourism. I share my noble friend’s concerns about water quality and wildlife and I do not want to place either of those at risk.

Nevertheless, I note as a matter of interest that oil has been produced in the UK for over 150 years, with production from oil shales in Scotland in 1851. In 1896 a water well was sunk during the construction of Heathfield railway station in the High Weald of East Sussex, and natural gas was discovered at 312 feet. The gas was used to light the station and the local hotel until February 1934. In 1973 the Wytch Farm oil field in East Dorset was opened in an area of outstanding natural beauty, and today it is the largest onshore oil field in western Europe. The 1979 oil crisis again accelerated onshore activity, and many of the fields operated today were discovered and developed during this period. In all, over 2,000 wells have been drilled in Britain, with more than 200 wells having been hydraulically fractured to improve their performance—so we are not talking about a new science by any means.

As for the experience in the States, the only thing I want to say is that we are not using the rather poor environmental protection that they had over there, inasmuch as that some of the fracking agents that they used were doubtful. However, the recent study by the Environmental Protection Agency—which is not a soft touch by any means—

“did not find evidence that these mechanisms have led to widespread, systemic impacts on drinking water resources in the United States”.

That study was the most comprehensive ever done, having taken five years and investigated over 38,000 wells.

That was in the US; our regulations in relation to fracking are much tougher. It is unfortunate that there is so much misinformation, in some cases deliberately put about. The worst example recently was when one of the green organisations alleged that there are carcinogenic problems with silica. Are we going to ban people from beaches next, since it is mostly sand that is used? The organisation went on to talk about acrylamide. In fact, the substance that has been used for fracking—polyacrylamide—is the same substance that has been used to bathe contact lenses. It does not strike me as a highly polluting substance.

In my view, what the Government are doing here is sensible. I think my noble friend had a slip of the tongue when he referred to 1,200 feet—in fact, it is 1,200 metres, which is more than three times greater. There is very significant protection in the statutory instrument that is proposed.

I will not repeat all the points made by the Minister about the benefits of having a source of home-grown energy. It is, however, somewhat ironic—

[Lord Judd]

I thank my noble friend. I have checked my notes. I misquoted, and I accept the correction: it is 1,200 metres.

[Lord Young of Norwood Green]

I assumed that that was the case. I thank my noble friend for that.

We are going to be dependent on gas for 30 years, and some would say for even longer than that. It is ironic that we are prepared to import it. We know that importing liquid natural gas is not good in terms of emissions. Gas, certainly in comparison with coal and with liquid natural gas, will reduce carbon emissions significantly.

I am not by any means opposed to renewables. Since we are burnishing our own contributions, I would mention that the solar panels on my roof are working very effectively and I have ensured that my local primary school has just installed solar panels. I am as committed as anyone to renewables.

This, however, is a sensible and measured approach to developing shale gas and it takes into account the understandable concerns that we should have about protecting sites of outstanding natural beauty, national parks and so on. All the agencies that have been involved with this, including the Environment Agency and the Health and Safety Executive, consider it to be low-risk. We are talking about drilling to very deep levels before the fracking turns and goes underneath: 1,200 metres is a long way below the natural water aquifers, which the Minister referred to as being at 400 metres.

So I welcome the statutory instrument because it is important that we have a balanced and integrated approach to energy. It is unfortunate that it has taken us so long. It would have been interesting to see, if we had produced our own natural gas and if the costs of energy had been reduced, whether the Redcar situation would have been impacted. I do not want to make unreasonable assumptions.

Another point about assessing the potential economic benefits was made by the noble Baroness, Lady Parminter. Most of the figures are usually obtained from the Royal Geological Society. Where I would partially agree is that no one can be sure until you start drilling. I have spoken to some of the world’s leading experts on fracking and they all tell me the same thing: you can drill a well and it may or may not produce. You can move along a few hundred metres and you may strike lucky. There is no certainty.

We know that that there are very significant amounts of shale gas there. We need to be able to assess the situation and do the drilling safely wherever we are doing it. It does not matter whether we are in an area of outstanding natural beauty or somewhere else: we want it to be safe. We want it to be justified in terms of an integrated approach to energy. We also need to take into account whether there is potential for jobs. There is a mothballed training college in the north-west that is ready to go and would give us probably a few thousand apprenticeships and many thousands of jobs. There has been no dash for gas; there has been a sensible, measured and proportionate approach. I welcome the introduction of this statutory instrument.

[Baroness Byford (Con)]

My Lords, I thank my noble friend the Minister for introducing this statutory instrument today, which I welcome. I have listened very carefully to the contributions made by others, and I should like to thank the noble Baroness, Lady Parminter, for her expressions of appreciation to the farming community, which cares very deeply about biodiversity. I should declare an interest as we have a farm in Suffolk, although not where any fracking will be taking place.

Can my noble friend tell us a little more about the urgency of the need to get shale gas into action, bearing in mind the various aspects of gas and oil production that we have been debating over the past year? As noble Lords will know, we had a big debate on setting up the Oil and Gas Authority. At the moment gas seems to be in fair profusion—they are not the words I really want to use but I cannot think of the right ones, so I apologise to noble Lords. I think that we in Committee are all agreed that we need to have a balanced approach to energy production. That is what we are really after and I am grateful to noble Lords for their support in that.

I listened with great care to the noble Lord, Lord Judd, who is rightly very passionate about his concerns on areas of outstanding natural beauty. I also take up the point made by the noble Baroness, Lady Parminter, which I had not picked up, that SSSIs were not included, so I shall be interested to hear what the Minister has to say on that.

In the scenario that I have set out, I wonder if we have slightly more time to review the way in which we use, and explore for, shale gas. I am sure that it is the right thing to be doing, but the gas that has been referred to is not as great as it might have been considered a couple of years ago. That is not to say that I am not in favour of shale gas exploration, because clearly I am. However, I wonder whether the Minister can tell us a little more about the costs involved, or if there are costs that I missed in the impact assessment, because of the decline in the cost of oil and gas, and whether fracking has less of a drive than it perhaps had a little while ago when energy costs were so expensive. I can well understand if the Minister wishes to write to me on that because it might be argued that that is why we are having this debate today. I thought it was important to include it because certainly we need to be looking to the future for a sustainable supply of gas—shale is but one option—and at the same time having a very balanced approach to the biodiversity of the land above the soil and obviously, as noble Lord, Lord Judd, said, to that beneath. I take the point that it is a long way down; it is in fact metres, not feet.

I have raised one or two questions in the broader context and I wonder whether there is slightly less pressure than there was in the circumstance before. It gives us a wonderful opportunity to use the shale gas that is there to be used while at the same time ensuring that we use it in the wisest way and that we have time to review how that development is going. If there are issues on which the Minister does not have briefing, I am more than happy for him to write to me later on.

17:00

[Lord Grantchester (Lab)]

I thank the Minister for his explanation of the regulations. He has explained the Government’s approach to providing added protections and assurances relating to the major public concerns regarding fracking in environmentally sensitive areas around water catchment zones, national parks, areas of outstanding natural beauty and world heritage sites. We regard this as largely beside the point, though, so we have severe reservations about these regulations.

The point is that from the passage of the Infrastructure Bill earlier this year in the other place the outlined areas were thought to have been excluded altogether from fracking explorations and production. As has been said, the Secretary of State is quoted as agreeing that there will be an outright ban on fracking in natural parks and these other environmentally sensitive areas. This is rightly leading to grave public concerns. It cannot be bypassed by, in these regulations, permitting fracking to proceed with only the added conditionality of being driven further underground. Quite simply, there was agreement that there would be no-go areas within which fracking would not take place, and with these regulations the Government are now backtracking.

Furthermore, the Government have not gone to consultation on the regulations. This has rightly become the subject of the eighth report from your Lordships’ Secondary Legislation Scrutiny Committee. The Minister’s department refers to consideration of the Infrastructure Act as justification for there being no public consultation about the definitions within these regulations. The Committee takes the opposite view that both public consultation and a ministerial Statement could be justified.

Are the Government trying to avoid embarrassment and controversy? Are they once again trying to put forward measures that they want through secondary legislation that cannot be amended? Instead of public consultation, the Government have merely consulted the environmental regulators on the proposed definition of “protected groundwater source areas” so that their proposal of excluding depths of above 1,200 metres was workable in light of the existing groundwater regulatory practices. I also express concern at the exclusion of SSSIs from the definition, as has already been expressed by the noble Baroness, Lady Parminter.

Can the Minister state the evidence that 1,200 metres is the correct extra precautionary level? The Environment Agency and Natural Resources Wales refer to sensitive areas for groundwater sources as source protection zones. These regulations will now provide a formal definition of how deep beneath the surface these SPZs extend, where before there was none. Can the Minister provide the Committee with any consideration or comments given to this specific depth by the regulators? Can he also clarify that these regulations would also apply to Scotland, in that the Scottish Parliament does not yet have legislative competence on this issue?

There is the further point of where the proposed wellhead of a fracking operation may be situated. These regulations do not prevent a fracking well being drilled from within the protected zone. Present guidance to planning authorities suggests that developments in these sensitive areas be refused unless demonstrably exceptional circumstances exist and they are in the public interest. Can the Minister confirm reports that the Government will consult on the question of whether wells can be drilled from the surface of natural parks and other protected areas? If these drills located outside protected areas can proceed down to 1,200 metres before changing direction and then cross underneath the surface of a national park, is this provision largely irrelevant? There will be understandably grave misgivings regarding the integrity of drilling levels should wellheads be situated within striking distance of national parks and other protected areas.

These serious issues, and others expressed around the Committee today, translate into our view that these regulations should not be proceeded with. We believe that Britain must pursue a socially just energy policy that is sensitive to the impact on the environment and climate change and how it impacts people’s lives, as well as the need for secure, affordable energy. These regulations should be deferred for further consideration by the Government. Indeed, that seems to be the Government’s position at the moment in the other place, where they have deferred further consideration on these regulations.

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have taken part in this debate and I will endeavour to cover the points that they have made. I shall address myself first to the points made by the noble Lord, Lord Judd, who, in a meeting yesterday evening in a corridor, did indeed tell me that he was going to be raising issues today. I have looked closely at what he said last night and have listened carefully again to what he said today. We have followed a precautionary principle: 1,200 metres below the surface is well below where normal drinking supplies will be sourced from in protected areas. The noble Lord might be making a point about these regulations being ultra vires or not within scope or perhaps running contrary to the national parks Act regarding access. I think I am right in saying that the deepest pothole in the UK is 198 metres, so there should not be any issue about access to 1,200 metres below the surface. That is not what was envisaged then or indeed feasible now, so I do not think there is an access issue relating to the areas that we are talking about in national parks.

What is happening in the regulations and the statement that we are making about surface developments is that there can be no development on the surface of a national park, as it were; any drilling has to come down and then across, and it has to be at that depth. I am able to offer that reassurance and say that, like the noble Lord, I am a great fan of national parks, particularly the Peak District, where I walk frequently. I do not pothole, but I would not be able to pothole at a depth of 1,200 metres anyway because that is just not feasible.

[Lord Judd]

The concern is that we do not know what will happen to the geology once the fracking begins and what that might do to the cave system to which the Minister has referred.

[Lord Bourne of Aberystwyth]

My Lords, I was going on to say—perhaps I will come on to it now—that the scientific and environmental evidence is overwhelming that it should be safe at that depth.

In addition to the regime that we are seeking to set up here, as I have explained, there is a process of requiring a licence and planning permission, as well as the numerous EU directives that have to be complied with—the groundwater directive, the water framework directive, the industrial emissions directive, the environmental liability directive, the habitats directive and the mining waste directive—along with basic safety standards and the process that we follow. This country has a very good record for safety, and safety first, in relation to drilling. I am sure that no system can be 100% robust, but it is very clear that saying that this drilling is effectively two-thirds of a mile down very much favours the precautionary approach.

I turn to the points raised by the noble Baroness, Lady Parminter, about the environmental impact. The economic impact is what is quantified in the assessment of economic impact; environmental issues are dealt with elsewhere. To come back to the basic point about the need to balance interests, we have an obligation, in terms of not just energy security but energy affordability and indeed our carbon footprint, to progress as a nation and to try to strike a balance between what is sensible and what is fair. We need to look at our own energy security rather than importing from overseas. My noble friend Lady Byford suggested as much by saying that we have to look to our own resources and these things take time, as indeed they do. Even with these regulations, as I have explained, there is a necessity for planning permission and licensing. In addition to the regulations, as I explained in introducing them, there is a discretion for the Environment Agency to turn down individual applications where it thinks there is good reason to do so.

I do not think that we can be accused of a dash for gas at all costs; indeed, I agree with the noble Lord, Lord Young, that we as a nation cannot be accused of a dash for gas at all. It really is time that we started taking this seriously. We have this massive potential and we have the experience of what has happened in the United States. We cannot draw direct parallels, but I think that we have a greater regard for safety in this country than is the case there. We have every right to be proud of our precautionary safety-first approach. Like the noble Lord, Lord Young, I wish that we had had a dash for gas. That is certainly not what has happened historically.

I move on to points raised by the noble Lord, Lord Young. If he is doing well with his solar panels at the moment, then the London Borough of Ealing is obviously the place to be. I am reassured that he has them and that he is contributing to the great growth of renewables. I thank him sincerely for what he says, in a most unpartisan way, about the importance of this for British jobs, for British security supply and for affordability, all of which are very necessary. However, it is really not realistic to suggest, if you study this and react to it in a fair way, that we are cutting corners.

My noble friend Lady Byford raised points about the urgency of the need for shale, which very much ties in with what the noble Lord, Lord Young, was saying. There is an urgent need for shale for our own domestic supply. Of course, we need to balance that; safety must come first, with proper planning and environmental considerations, which are already there.

To come back to protection, we have afforded particular protections to national parks, to the Broads and to world heritage sites by providing that drilling has to be at a greater depth. We have provided protection, too, by stipulating that there can be no development on the surface in those areas; we have also provided that protection in relation to SSSIs and Natura sites and so on. It is true that we have not extended SSSI protection below 1,000 metres, but 1,000 metres is well above what is considered safe in the assessment of the various scientific bodies—the Royal Society and so on—that have looked at these issues.

So far, there have been no successful planning permission applications in relation to shale, but these things take time. We have a massive potential and we have issues to address. This is the right way forward and it is a satisfactory approach. I understand what the noble Lord, Lord Grantchester, says about people’s concerns about surface activities. That is why we have said that there can be no surface activities in the areas that demand particular protection. However, we have to recognise that, if we are too restrictive, that will just drive investors away altogether.

My noble friend Lady Byford also raised the question of whether there is interest. There is some interest—there have been developers who are interested in this—but we do not want to make it so difficult or so unattractive that all interest dies away all of a sudden. We are not that sort of nation. We have energy issues to address on security of supply, which we looked at in relation to other statutory instruments earlier today.

I turn to two additional points raised by the noble Lord, Lord Grantchester. First, this does not apply to Scotland. We anticipate that Scotland will bring forward legislation of its own. This is a measure for England and Wales. Secondly, as he rightly said, we have chosen to align the 1,200 metres issue with the source protection zone 1 areas. That seems the sensible approach; the Environment Agency and Natural Resources Wales have recognised that. It seems a consistent approach. I do not think that there is any danger of pollution to groundwater. I do not accept that there is any massive safety issue. You can never be 100% certain, but we are almost there with our safety regimes, which I think we should be proud of.

17:15

[Lord Judd]

The Minister is being his usual self in being very full in his response, which I appreciate greatly, but he has not really dealt with the constitutional issue of whether you can redefine what is a national park through an order when there is legislation covering national parks and their status. I hope that the Government will look at that before this issue comes before us again. He really must not pit those who have anxieties about what is happening with the government situation on national parks against the general argument about making ourselves self-sustaining in energy. I am absolutely convinced that we must make ourselves self-sustaining in energy, but there are exceptions to the application of what is necessary.

[Lord Bourne of Aberystwyth]

My Lords, on the second point first, I was certainly not suggesting that the noble Lord, with his vast experience, or indeed anyone else, was raising anxieties that were not valid. I was seeking to reassure noble Lords that we have a safety regime of which we can be very proud and proposals in these draft regulations that strike the right balance. In relation to the first point that the noble Lord raised about the constitutional position of national parks and the argument that he is deploying that we are redefining national parks in this statutory instrument, I know that he has vast experience, but I think that that is rather a creative argument. I will of course have a look at the issue, but I do not for one minute accept that that is the case. However, I will write to him and other noble Lords who have participated on that point.

Motion agreed.