Draft Onshore Hydraulic Fracturing (Protected Areas) Regulations 2015

Alan Whitehead Excerpts

Tuesday 27th October 2015 General Committees

[Dr Alan Whitehead (Southampton, Test) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Hanson.

This simply is not good enough. It defies belief that arrangements set out in the Infrastructure Act can be separated out in the way that the Minister has described, talking about fracking underground as if it had no relation whatever to the pipe that leads up from the underground fracking, that leads to the drill head at the top of the pipe, that leads to the water coming out of the pipe and being held in containment ponds on the surface, that leads to the vehicles bringing the water to go down the pipe for fracking. It is preposterous to suggest that associated hydraulic fracking is nothing to do with the rest of the process of fracking that inevitably has to take place on the surface and down through the ground to the point at which the drill bit turns left or right and goes into the horizontal seam and then begins the fracking.

We can see why that suggestion is preposterous in the Infrastructure Act. As the Minister has indicated, this SI does indeed arise from section 50 of the Act, which is headed “Onshore hydraulic fracturing: safeguards”. Section 4B(4) of the Petroleum Act 1998, which is inserted by section 50, requires the Secretary of State by regulation to specify descriptions of areas that are protected in the section. That is essentially what the Minister has told us this afternoon: it is something she is thinking about at the moment and she may come back at a later date with a definition. However, the definition is already required by section 4B. The protected areas are numbers 5 and 6 of the table in section 4A, which state that

“The associated hydraulic fracturing will not take place within protected groundwater source areas”,

and

“The associated hydraulic fracturing will not take place within other protected areas.”

One might think that that is clear. The regulation defines the areas—what is in, what is out and what is the extent of the areas.

It is clear also because those two items in the table directly arose from an amendment to the Infrastructure Bill accepted by the Government at the time, which specified that,

“Any hydraulic fracking can not take place...in land which is located within the boundary of a groundwater source protection zone…within or under protected areas”

or

“in deep-level land at depths of less than 1,000 metres”.

The amendment was modified to some extent during the passage of the Bill through another place, but by and large it remained intact as a list of prohibitions on or conditions attached to the fracking process that is a hydraulic fracturing consent issued by the Secretary of State. So clear was it that upon acceptance of the amendments even before the Bill went to another place, the Secretary of State declared:

“we have agreed an outright ban on fracking in national parks, sites of special scientific interest and areas of outstanding natural beauty.”—[Official Report, 26 January 2015; Vol. 591, c. 586.]

So that was that: no fracking pads, no trucks, no water retaining ponds, no drill heads, no drilling rigs in those areas. All that was left to do would be to winnow out the precise designation of what those areas were, and that is what was required in the regulation that is in the legislation. There might have been an issue, for example, about the exact extent of groundwater source protection zones, but the regulation would sort that out.

One might ask: what could possibly go wrong? Well, quite a lot has gone wrong. Yes, the instrument before us defines what is in groundwater source protection zones; it defines other protected areas, including national parks, the broads, areas of outstanding natural beauty and world heritage sites; as has been pointed out, it defines out all but zone 1 groundwater source protection zones; and it defines completely out sites of special scientific interest—but then, as in the fracking process, it veers away at 90 degrees. It uses a very curious definition of what constitutes associated hydraulic fracking within those defined zones. It merely adds an additional protection zone of 200 metres to the 1,000 metres nationally above which the process of fracking can take place. If the Government really intended to undertake as a separate exercise the process of deciding in which areas fracking would be banned completely—and these would be identical to the areas defined in this statutory instrument—why would they introduce a zone below which fracking can take place? Why does regulation 3, at that point, state that associated hydraulic fracking can take place at depths below 1,200 metres, rather than 1,000 metres, as is the case nationally, if indeed there was to be no fracking at all in those particular areas? It simply makes no sense.

Reading the definitions in the statutory instrument, along with the provisions of the Act, we can see that only the associated hydraulic fracking that might otherwise take place within that chunk of defined land—it is all underground, from 0 metres to 1,200 metres—cannot happen. That is the protected lump of rock in this particular statutory instrument.

[Michael Fabricant]

On a point of order, Mr Hanson. I am sorry to interrupt the hon. Gentleman, but I understand that there will be a vote at 3.5 pm, which will be followed by a second vote. Can you define when Committee members have to come back? There will be a suspension during the vote, but if it is a 20-minute vote followed by another, will we have to come back and then go back down to the Chamber?

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[The Chair]

What I am saying, Mr Fabricant, is that there will normally be a 15-minute suspension for a Division and I would expect people to be back here within 15 minutes. If there is a second vote, we will have to cross that bridge when we come to it. We have already used a minute of time now as a result of your point of order.

[Dr Whitehead]

As I was saying, there is no clarity in the SI, as I have emphasised, concerning what any reasonable person would regard as the rest of the fracking process: that is, the establishment of the fracking pad, the vehicle movements, the drilling itself and the treatment of waste water on the site.

[Richard Benyon (Newbury) (Con)]

I have come along to try to get to the bottom of this, so I am listening closely to the debate. The hon. Gentleman seems to suppose that every fracking operation happens vertically. Surely the lateral drilling that he mentioned earlier must be the reason for the fact that activity might take place on the surface outside a protected area, but reach deep underground inside a protected area. I hope that he will clarify that point.

[Dr Whitehead]

The hon. Gentleman may consider that the reason for the 1,200 metre protection; like me, he does not know. It may be that one could consider a process—the Minister may enlighten us in the fullness of time about how that process might work, when she comes up with a list of protected areas, as she has said she might—in which a drilling rig could be set up on the boundary of a national park, then drill diagonally for a number of miles and then go further around to reach whatever it is thought might be reached at 1,200 metres below the national park. I would consider that fairly unlikely, particularly in large protected areas, because the drilling process would have to be extensive even to get there. However, like the hon. Gentleman, I am in the dark about whether that is the reason, because it is not stated in the SI, and indeed was not stated in the main legislation.

[Mr Dennis Skinner (Bolsover) (Lab)]

I used to work in very deep pits. My hon. Friend might be coming to the fact that drilling might cause gas to escape. The reason why I say that is that the Government want to be very careful about what they are doing. After Arkwright colliery in the Bolsover constituency closed, it had not been closed very long before there was an escape of gas into about 200 or 300 houses close to the pit. We were lucky that nobody was killed. Had somebody struck a match, the whole village could have gone up in smoke.

That is what can happen, and my hon. Friend has described it almost exactly. The drilling shaft and then, at 90°, the seams of coal and so on—it is almost an exact replica of what it is like in a pit, and I defy anybody to suggest otherwise. We all carried a safety lamp down the pit. Why did we carry them? To find gas. Believe me, when canaries went down the pit, they went for the same reason.

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[The Chair]

For the convenience of Members, the new completion time for the Committee is 4.30. I intend to take a five-minute winding-up speech from the Minister, and as for the remainder of the time it is in Members’ hands to enable as many to be called as possible.

[Dr Whitehead]

I was in the process of saying that there is no clarity in the statutory instrument—although the Minister suggested that at some stage a definition might be brought forward—with respect to the rest of the fracking process, the drilling itself, vehicle movements, the pads, the treatment of waste water and so on, on the site.

From the definition in the statutory instrument—which, I agree, also has to be read in conjunction with the requirements on local authorities to certify that fracking is not taking place within any of the stated protected areas in their planning area—the Secretary of State could lawfully give permission for fracking wells to be established on the surface of all the areas in question, provided only that the 1,200 metre condition was met when it came to the actual fracking proceedings. The statutory instrument therefore completely overthrows the assurances and written definitions in the Infrastructure Act 2015.

[Graham Jones (Hyndburn) (Lab)]

My hon. Friend makes a powerful case for our serious concerns about today’s proposals. He says that he struggles to find a reason for the manner in which the Government are bringing the measure forward; but on pages 10 and 11 of the impact assessment we see nothing but spreadsheets about the value—presumably to the Treasury as well as to the economy—and about numbers and financial benefits. Is not that one reason for the introduction of the measure?

[Dr Whitehead]

My hon. Friend may well be right. He has drawn attention to the impact assessment accompanying the statutory instrument, which dwells at length on the relative utility for the public—or private—purse of fracking at 1,000 metres or 1,200 metres. Even assuming—this is what the hon. Member for Newbury and I were puzzling about a little while ago—that there could conceivably be a proposition that one could drill diagonally from outside the areas in question below 1,200 metres, and that that would not give rise to a great deal more danger or problems for the whole process than drilling vertically down, a 200 metre “additional protection zone” seems an odd creation.

Either the 1,000 metre limit below which fracking may take place nationally is deemed not to be safe, but under these particular areas 1,200 metres is safe—in which case why is there a 1,000 metre prohibition for the rest of the country, and additional protection under areas of outstanding natural beauty and national parks—or there is no difference as to protection. In that case, the statutory instrument is a completely vacant measure, which should not have been put before the Committee in its present form, as it makes no difference to the reality of what goes on under the surface.

There is another strange locution in the statutory instrument, about the question of what a national park is. The regulation refers to

“land at a depth of less than 1,200 metres beneath…a National Park”

as if a national park were merely what is on the surface. In planning terms, it is not possible to be granted planning permission in a national park if what is under the national park is not taken into account. The definition of a national park is not just the surface of the national park; in planning terms, it is the surface and what is under the national park. Therefore, we cannot decide to introduce even secondary legislation that treats a national park as if what is under it is nothing to do with it and as if the national park is merely a millimetre deep linear feature on the surface of the earth.

[Christian Matheson]

My hon. Friend makes an interesting point. I recall going to Edale in the Peak District national park when I was a child. I visited Blue John mines and Speedwell cavern, which are rather deep under the national park. They are considered to be important tourist attractions within that national park, even though they are underneath it.

[Dr Whitehead]

My hon. Friend makes a strong point, which leads me to draw attention to the word “within”, which is in condition 6 of section 4A of the Petroleum Act 1998. “Within” a national park must mean what is in and under it. It is therefore illogical—and, indeed, a simple misreading of what a national park is—to try to define a national park as if it consisted of two separate things, one for the purpose of what is on the surface and the other for the purpose of what is 1,200 metres beneath it. I contend that this was simply not what was set out when the Act was passed. Indeed, the apparent strength of the bans that were set out at that point may have caused some doubting Members to vote for the legislation in the first place.

One can, at the very least, say that this provision is a serious diversion of the intention of the Act—of what the Act said and, indeed, what those who proposed it said about it at the time. Either this SI has been accidentally very badly drafted, meaning that it allows fracking activity in all of these areas while claiming that it does not, or it has been deliberately drafted to take a very fine definition of what

“specify the descriptions of areas”

means to drive a coach and horses through the protections that Members thought were in the Act when it became law.

Under those circumstances, it would be best if the SI were simply withdrawn to be returned for further consideration. At that point, if and when the Minister decides what should have been done in the first place—which is to specify the extent of the protections that are to be on the surface—a properly drafted SI can be brought forward with that protection so that Members can see whether this provision is an accidental or a deliberate diversion of the intention of the Act. Either way, we demand that the SI is withdrawn. Failing that, we will divide the Committee. This is not just a question of whether the Government vote one way and the Opposition vote another. All hon. Members are engaged in a joint endeavour about whether the protections put forward in the Infrastructure Act, which all hon. Members here voted on, should be maintained or set aside.

Some hon. Members may already have corresponded with constituents about protections for various areas in their constituencies. The hon. Member for St Austell and Newquay has an area of outstanding natural beauty in his constituency, as does the hon. Member for North Cornwall. The hon. Members for Lichfield and for Croydon South, and the right hon. and learned Member for Beaconsfield have water source protection zones in their constituencies. The hon. Member for Skipton and Ripon has a national park in his constituency; he is doing rather well there. Indeed, all but one of the hon. Members on the Committee have sites of special scientific interest in their constituencies. It is a question not simply of possible party animus, but of how Members want to vote in light of how those sites in their constituencies may be dealt with and what they have said about those sites. I merely draw attention to the fact that should hon. Members on either side of the Committee decide to vote for the SI, they will effectively be saying that those areas in their constituencies, contrary to their understanding and that of their constituents, have no protection. That is a weighty decision for hon. Members to take.