Petroleum Licensing (Exploration and Production) (Landward Areas) (Amendment) (England and Wales) Regulations 2016

Alan Whitehead Excerpts

Wednesday 1st March 2017 General Committees

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

I beg to move,

That the Committee has considered the Petroleum Licensing (Exploration and Production) (Landward Areas) (Amendment) (England and Wales) Regulations 2016 (S.I. 2016, No. 1029).

It is a pleasure to serve under your chairmanship, Mr Gray. We have before us a statutory instrument purporting finally to put in place protection against surface drilling for hydraulic fracturing in national parks, sites of special scientific interest, areas of outstanding natural beauty and similar areas. It might be worth casting our minds back and considering how we got to a position in which this SI is being presented to us today. During the passage of the Infrastructure Act 2015, the then Secretary of State for Energy and Climate Change, the right hon. Member for Hastings and Rye (Amber Rudd), assured us that

“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.]

That was assumed to be the outcome of the Infrastructure Bill discussions, but it turned out, at the end of consideration of that Bill, that a separate SI needed to be introduced to give effect to the outright ban. That secondary legislation was laid before us in autumn 2015, but it turned out that it was not an outright ban on fracking in national parks, sites of special scientific interest and so on, because it separated hydraulic fracking underground from drilling on the surface in national parks. Although it indicated that hydraulic fracking would be restricted as far as sub-surface activity was concerned, it appeared to many of us at the time that that was something of an absurdity, inasmuch as a common-sense interpretation of fracking is that it does involve drilling a hole in the ground, and then fracking that hole, so separating the two in the way the SI did might be regarded as somewhat Jesuitical.

When that SI was laid before Parliament, the then Minister of State, Department of Energy and Climate Change, the right hon. Member for South Northamptonshire (Andrea Leadsom), reassured those who had made that point that

“the Government have separately committed to ensure that hydraulic fracturing cannot be conducted from wells that are drilled at the surface of national parks and other protected areas. Members can be reassured that that remains the Government’s position.”—[Official Report, Second Delegated Legislation Committee, 27 October 2015; c. 7-8.]

That is why we have this statutory instrument today; it is a third go. It deals at last with surface drilling in national parks and sites of special scientific interest.

One would therefore expect these regulations finally to lay that trail to rest, so that we could say that yes, there is to be an outright ban on fracking in national parks and sites of special scientific interest, which I believe all hon. Members present would want. Elementary research—I will not go into names or places—shows that a number of Members present have those areas in their constituency. What the Minister says about a ban today may give them some succour in discussions in their constituency with people who are concerned about fracking in their area. Hon. Members might have welcomed the regulations as finally indicating that their wishes had come true, and that there actually was to be a ban, and might have thought that we could leave the room this morning safe in thinking that that was what we had voted for. Unfortunately, it appears unlikely that that is what will happen if we vote for the regulations.

In the 2015 Act, there is a definition not just of fracking—surface drilling—but of “associated hydraulic fracturing”, which is fracking that involves

“more than 1,000 cubic metres of fluid at each stage, or expected stage, of the hydraulic fracturing, or…more than 10,000 cubic metres of fluid in total.”

That fluid is the water associated with the fracking process. It is injected into a well, comes back up again, and then has to be dealt with as waste once the fracking has been completed. If a well produces less fluid than that, it is not deemed associated hydraulic fracturing under the Act, although common sense would suggest that it is fracking.

Proposed new clause 22A(2)(c) slightly redefines “associated hydraulic fracturing” as “Relevant Hydraulic Fracturing”, although that has exactly the same definition as “associated hydraulic fracturing” does in the 2015 Act. The regulations define relevant hydraulic fracturing as

“hydraulic fracturing of shale or strata encased in shale which is carried out in connection with the use of a Well to search or bore for or get petroleum, and involves, or is expected to involve, the injection of—

more than 1,000 cubic metres of fluid at any stage, or expected stage, of the hydraulic fracturing, or

more than 10,000 cubic metres of fluid in total.”

Proposed new clause 22A(1) states:

“The Licensee shall not carry out Relevant Hydraulic Fracturing from a Well if the well pad is in a Protected Area in England or Wales.”

There is a clear link between the definition of relevant hydraulic fracturing and whether a licensee can carry out that fracking in a protected area. That is a problem, because if, in legislation to protect such areas, we place a limit below which fracking is not fracking, then evidently, straightforwardly and logically there is a point below which that area is not protected. It is not protected if someone is fracking in it but not producing 10,000 cubic metres of fluid. That is what appears in the explanatory memorandum that accompanies these regulations:

“The purpose of this instrument is to amend the model clauses for onshore petroleum exploration and development licences in order to ensure that licensees do not carry out high volume hydraulic fracturing from a well if the well pad is located in a protected area”.

I emphasise “high volume”, because that is the reality of what is in front of us today. We are talking not about fracking, but about high-volume fracking, and those are two very different things.

I mention this problem because we have expert testimony on what happened with hydraulic fracking in the United States; I am sorry to call on the wisdom of experts, because I know there is some dispute about whether we should listen to experts. In the United States, the amount of water used for fracking in any well is notified to the Environmental Protection Agency. There is still an EPA in the United States, which is good; it monitors how much water is used in each well and publishes the numbers once the fracking is completed. Work by Professor Stuart Haszeldine at the University of Edinburgh looking at more than 17,000 wells fracked in the United States between 2000 and 2010 shows that 43% of wells fracked through gas fracking, hydraulic fracking, and machinery and surface drilling—the whole lot—would not be defined as fracking under UK rules simply because the amount of water they used did not reach the American equivalent of that 10,000 cubic metres overall definition.

In case we do not agree with experts, I—a non-expert—have looked at the EPA’s more recent data from 2011 to 2013 on wells that have been fracked, and not only do they show a very similar picture, but in the majority of states in which wells have been fracked, all the wells are below the 10,000 cubic metre water level. That suggests that to some extent this is an issue of variability in geology, the difficulty of fracking a particular well and so on. In some states in the United States, most of the wells use more than 10,000 cubic metres of water in the fracking process, and in other states, most do not.

Of course, we simply do not know whether the UK is likely to be an Arkansas, a New Mexico or even a Texas as far as fracking is concerned because we have the evidence of only two wells. It may be that all the wells across the UK will have to use more than 10,000 cubic metres of water, or it may turn out that none or not many will. The problem with the statutory instrument is that the outcome is pre-empted and predicted by it stating that protection from fracking in protected areas will be based on a prescribed definition of what it is to frack a well, and what amount of water is involved.

[Maria Eagle (Garston and Halewood) (Lab)]

As everyone on the Committee knows, many people campaign against fracking, particularly in places where it is to take place. How does my hon. Friend think people who campaign because they fear the damage from fracking will react to politicians who have told them that protected areas will not be fracked, if they see wells in those areas because the fracking will involve less than the specified volume of water?

[Dr Whitehead]

I cannot imagine anything other than that those people will feel betrayed, let down and effectively duped when they find that what they thought was the protection of those areas turns out to be nothing of the sort.

Perhaps the Minister can assist me; under the SI, what will be the process for deciding to frack in a particular area? What process will have to be carried out in relation to the 10,000 cubic metre outcome? The SI is pretty silent on that. Taking the provisions at face value, I can imagine that a company wanting to frack in a national park—and, indeed, surface-drill, so that things will be worse than under previous statutory instruments—will merely have to say, “We are confident that this well will not produce 10,000 cubic metres of water, so it is not relevant hydraulic fracking—so we can go ahead, can’t we?”.

It may be suggested that there are other means by which that outcome could be prevented, such as through planning arrangements or ministerial intervention. Ministerial intervention has already overturned a planning decision, in an early fracking case, in Preston, but that is not the real point. The point is that the SI was supposed to be the definitive measure finally establishing protection—on the surface and under the surface—in national parks: protection for national parks with no ifs, no buts and no quibbles. I suggest that the SI simply does not do that. Furthermore, as my hon. Friend the Member for Garston and Halewood mentioned, it opens the door to a possible series of national confusions; what people thought was the case may turn out not to be, and we, collectively, will find that we are responsible for that.

There are two possible explanations for the SI taking the form it does. Either the Government consider that all wells drilled in this country will use more than 10,000 cubic metres of water, in which case it would be a good idea to have some evidence on the table to demonstrate that. Alternatively, they do not want proper protection for national parks, despite previous statements, and have produced the SI in accordance with that. I cannot believe that such mendaciousness is involved, however; I prefer to think that either the Government erroneously believe that all wells will have 10,000 cubic metres of water associated with them, or they believe that other mechanisms can protect the national parks, despite what the SI says. If that is the case, I hope that the Minister will be able to explain.

In the absence of all those explanations, I suggest that the right thing for hon. Members to do—this is not a party issue; it is a matter of doing what we collectively said we would do on fracking—is, as we say in our conferences, refer this back. We should not vote for the motion, but should ask the Government to go away and come back with a statutory instrument that produces the result that we all want.

It is unfortunate that statutory instruments cannot be amended, because the easiest thing to do would be simply to delete proposed new clause 22A(2)(c) and let the rest of the SI stand. The rest of it—the protections for national parks—is perfectly okay. It is just the introduction of the concept of relevant fracking that fatally overturns the intention behind the regulations. Unless we receive a bolted-on, cast-iron explanation of why the world is not as we see it, I am afraid we will not support these regulations, and we will seek a Division.

--- Later in debate ---

[Jesse Norman]

Perhaps I can reassure the hon. Lady. The point of the regulations is precisely to ensure that smaller scale operations meet an equivalent range of safeguards to those set out in the Petroleum Act 1998. In some cases there may be local activities that are subject to all of the usual procedures and, if they are not hydraulic fracturing, they are captured by separate rules. However, hydraulic fracturing in national parks has been banned. That is the Government’s position.

I draw the hon. Lady’s attention to the fact that even at the sub-surface level, protections are in place to ensure not merely that hydraulic fracturing using more than 10,000 cubic metres of fluid cannot be done, but that hydraulic fracturing using more than 1,000 cubic metres of fluid at any one stage cannot be done either. That is a comprehensive response to the question.

[Dr Whitehead]

The problem is that proposed new clause 22A(1) states:

“The Licensee shall not carry out Relevant Hydraulic Fracturing from a Well if the well pad is in a Protected Area in England or Wales.”

The Minister has simply not answered the question of whether a well cannot be drilled at all in a national park or an area of outstanding natural beauty, or whether it can be drilled from the surface within a national park if the well uses less than 10,000 cubic metres of water overall. If he cannot assure me about that, does he accept that the assurance he has just given is not correct?

[Jesse Norman]

No. The position is that “well pad”, as the hon. Gentleman knows, describes the location in which a well is drilled. That term was defined in paragraph 3.33 of the Government’s response to the landwards regulations consultation. Further consideration may be needed of whether a more explicit definition is required elsewhere, but what is in the response is clear. To give him comfort, let me reiterate that a well pad counts as being in a protected area if any part of it is in that area. There should be no ambiguity about that; it is what the response to the consultation says. I take his point, but it has already been addressed.

If I may continue with what I was saying, I should emphasise that the shale gas resources beneath this country have enormous potential, which we as a country should not underrate. We have a very secure regime in place.

--- Later in debate ---

[Dr Whitehead]

I think it is evident from our exchanges this morning that the central question about drilling from wells and fracking from the ground underneath them is this: can that take place using less than 10,000 cubic metres of water? As I have set out for the Committee—not as my contention, but in a series of facts—yes, it can. It happens in the United States, not just occasionally, but to a very substantial extent—indeed, in just under half of all fracking operations. Everybody in the United States regards those as real fracking operations, with real wells drilled and real volumes of water involved.

We are not talking about whether fracking is safe or a boon to the economy. We are talking about the fact that Ministers have given apparently cast-iron assurances that fracking will not take place in areas of outstanding natural beauty, national parks or sites of special scientific interest, but the Minister has not given any assurances to that effect today, and it is quite evident, not just from external sources but from the wording of the SI, that there is no such protection in legislation. The Minister said that we should not get too hung up on nomenclature, but we absolutely should, because legislation is all about getting it right. It is about getting assurances in writing, so that people know that what Ministers say is backed up by legislation from this House.

[John Woodcock]

My hon. Friend has made a compelling case today, which has clearly raised new questions for Government Members. I credit the Minister for being honest with hon. Members about not having the answers, and for saying that he is prepared to write to the right hon. Member for Arundel and South Downs. However, does the shadow Minister agree that, in the circumstances, the sensible thing would be to pause this process and resume it when we have the right assurances and the proper facts to enable us to decide whether to proceed?

[Dr Whitehead]

My hon. Friend makes an important point. Writing to the right hon. Member for Arundel and South Downs and to the hon. Member for The Cotswolds after we have voted on this legislation today will have no weight at all and will provide no assurances whatever. Either the legislation protects national parks and areas of outstanding national beauty from fracking and drilling on the surface—not lateral drilling, but wells in pads drilled within the curtilage of the parks—or it does not. If it does not, no amount of writing to hon. Members to assure them that it does will alter that.

A strong case has been made this morning. I make the caveat that we do not know for certain whether every well drilled in the United Kingdom will use more than 10,000 cubic metres of water; we can merely refer to the evidence from the United States, which is that a lot do and a lot do not. My hon. Friend the Member for Newport West points out that the UK’s geology is very different from that of the United States. It may be that, just as there are different circumstances—I pointed those out in my evidence to the Committee, as it were—in different states of the US, different amounts of water are used in different geological circumstances. Given the difficult geology in the UK, it may be that quite a lot of water would be used. It may be that Bowland shale and Wealden shale need different amounts of water for fracking.

It will be extremely difficult—the Minister fell on this difficulty—to walk out of this room assured that there will be no fracking in national parks and sites of special scientific interest as a result of the regulations. If that is what we believe, we should not allow the SI to proceed. That is not to say that the Minister is not sincere and clear in his contention that there is no intention to enable fracking to take place in national parks and SSSIs, but evidently there is a dissonance between what the Minister says and what the legislation says.

[Geoffrey Clifton-Brown]

On a point of order, Mr Gray. Could you advise the Committee on what the procedure would be for taking the SI away, looking at it carefully, and bringing it back when answers have been given to the queries raised in this Committee?

[The Chair]

I am grateful to the hon. Gentleman for his point of order. The position is that the statutory instrument has been laid before Parliament, made and come into force already. All we are considering today is whether the Committee has considered the statutory instrument. Those who believe that the Committee has considered it properly will vote aye; those who believe that the Committee has not considered it properly will vote no. In either case, there will not be a change to the status of the SI, which is already in force.

[Dr Whitehead]

My understanding is that because this SI was under the negative procedure, was prayed against and was brought to this Committee, it is indeed in operation at the moment, but if we do not vote for it, that brings into question whether it should continue in operation without some form of amendment that would meet the intentions behind the SI. As for what should be done for the future, it is not possible to amend statutory instruments, as I said, but the wishes of Members and the discussion that we have had will be on the record,. If we in this House do not indicate that we wish the SI to proceed in its present form, it will, in my view, be incumbent on the Government to bring forward an SI that fulfils its purpose, which perhaps we could support.

[The Chair]

Order. For the sake of clarity, I point out that if there were a feeling in the Committee that there was something wrong with the statutory instrument, it would be perfectly open to the Opposition or anybody else to engineer a vote on the matter on the Floor of the House of Commons, using one of a variety of instruments, including, but not limited to, the Backbench Business Committee. This Committee is merely considering whether the statutory instrument has been considered.

[Dr Whitehead]

Thank you for that clarification, Mr Gray. Were the SI not accorded a positive vote, there would be a deferred Division, as I understand it, on the Floor of the House next week, and we would have to vote on it. If, however, there is a yes vote on the SI this morning, that Division would not take place; we therefore could not seek any further clarity on the SI. I have made clear what, to my mind, the safe course of action would be. I take the points made, and I commend the right hon. Member for Arundel and South Downs, and the hon. Member for The Cotswolds, for seeking the clarification that I think is essential on the SI. It appears that we should not give the SI our positive commendation today, but should refer it for consideration on the Floor of the House. Between now and next week, we may get the further clarification that we did not get this morning.

In any event, the right course of action, which I urge upon the Government, is to bring forward a further SI that establishes that the things that have been said about national parks and sites of special scientific interest are really the case, with no ifs or buts. We would all be able to stand behind that. Anything less would need us to take another look at it.

Question put.