Draft Onshore Hydraulic Fracturing (Protected Areas) Regulations 2015
Debate between Christian Matheson and Alan Whitehead
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.