Infrastructure Bill [Lords]

Sheila Gilmore Excerpts

Monday 8th December 2014 Commons Chamber

[Mr Mike Weir (Angus) (SNP)]

This Bill covers a wide range of topics, some of which do not affect Scotland, but those that relate to energy most certainly do, and it is those areas on which I shall concentrate my remarks.

Part 4 of the Bill opens with provisions relating to community energy. By and large, we support the efforts to allow communities or community groups to buy a stake in renewable energy facilities in or close offshore to their communities.

I hope that those provisions will lead to more communities taking a stake in such important facilities—indeed, some community organisations are already making efforts to raise funds to invest in local renewable energy—and to greater involvement and acceptance of renewable generation. Should the Bill succeed, I hope it will lead to alternative visions of how we deal with off-gas grid properties, which are so often left out of the thinking on energy costs and energy efficiency.

I also hope that more community involvement will encourage energy companies to consider the wider interests of the community when proposing new developments, such as encouraging economic regeneration by supporting other businesses or by looking at ways in which they can help to deliver better broadband services to allow businesses to prosper.

I also note that amendments are proposed to the Petroleum Act 1998 that are designed to implement the recommendations of the Wood review to maximise offshore oil and gas extraction. I would disagree strongly with the Minister on what should be done with oil and gas revenue, but we are inclined to support the relevant parts of the Bill because both the Scottish Government and the UK Government strongly endorsed the Wood review.

Unfortunately, there are other aspects of the Bill with which we do not agree. New clauses were introduced in the other place relating to the process of hydraulic fracking. I have raised my concerns and asked specific questions on this matter at least twice in this House but have yet to have a clear answer, so I will try again—third time lucky, but I am not holding my breath.

In his introduction to the debate the Minister said that oil and gas was a reserved matter. That is true, but, unfortunately, the clauses on fracking cut across Scottish land law as well, which is very much a devolved matter. Given that the Smith commission proposed the devolution of those proposals to Scotland, it strikes me that now is the right time to do that. We should get all these provisions in one place while fracking is still at a very early stage. If we do not do that, it will be much more difficult to deal with it at a later stage. I should make it clear at the outset that I do not support fracking. Although we have heard much about its potential, I note that even in Denton, Texas, the very home of fracking, a recent referendum voted to end it. Other states in the US are turning against it because of environmental concerns. We should take note of such concerns, because if there are concerns about the impact of fracking in the wide open spaces of the American west, how many more would there be in densely populated islands such as these?

I wish to concentrate today on some specific questions relating to the process of fracking. Although development is at an early stage in Scotland, it is already causing a great deal of public concern. A large area of central Scotland, stretching through to my own constituency in Angus, has been identified as having potential for shale gas extraction. Much of the power over such developments lies with the Westminster Government rather than the Scottish Parliament. Westminster has the power to grant licences under the Petroleum Act to search for and develop shale gas, while local authorities and the Scottish Parliament have powers in respect of planning, which clearly give them some powers to restrict fracking. In his opening statement, the shadow Minister made the point that the Scottish Government have not introduced a moratorium. My understanding is that it is very difficult to do that, because planning is initially carried out at local authority level, and any such moratorium or attempt to put in standard conditions would lead to judicial review and endless litigation. It would be much simpler if all the powers relating to fracking were in one place. In that instance, the Scottish Government could take action by refusing the licences.

[Sheila Gilmore (Edinburgh East) (Lab)]

I am pleased to hear the hon. Gentleman say that he agrees with the Smith commission’s proposals, as I do. Does he accept that the Scottish Government could, if they wished, issue planning guidance that would prevent fracking, as they have in relation to nuclear power?

[Mr Weir]

My simple answer is no. If the hon. Lady had listened, she would have heard me say that nuclear is completely different. Section 36 of the Electricity Act 1989 gave the powers directly to Scottish Ministers, so the situation is not the same.

The UK Government seem determined to have fracking. The changes proposed by the Bill remove the right of landowners to object to fracking under their properties. It has been reported that the UK Government are funding the British Geological Survey to carry out investigative boreholes to demonstrate the viability of fracking. Will the Minister confirm whether that is true?

Interestingly, the Chancellor of the Exchequer proposed in his autumn statement last week to give, in effect, a sovereign wealth fund for fracking to north-east England. I note that, for many years, he refused even to consider such a thing for Scotland’s oil and gas. That has not gone unnoticed in Scotland.

As well as giving the right to grant licences to persons seeking to explore for shale oil, the Petroleum Act provides, in section 7:

“Subject to the provisions of this section, the Mines (Working Facilities and Support) Act 1966 shall apply (in England and Wales and Scotland) for the purpose of enabling a person holding a licence under this Part of this Act to acquire such ancillary rights as may be required for the exercise of the rights granted by the licence.”

The 1966 Act includes the right to

“enter upon land and to sink boreholes in the land for the purpose of searching for and getting petroleum”

and to use the land for such specific purposes as erecting buildings and laying pipes, and ancillary rights. The right hon. Member for Arundel and South Downs (Nick Herbert) made the point that there is no right to enter on to land—there is no such right in the Bill, but there is in the 1966 Act. The definition of petroleum in the Petroleum Act includes natural gas. There is a right in other regulations under which people can enter on to land. The ancillary rights laid down cover such rights as lowering the surface, the conveyance of gas or oil, and the right to occupy the surface of the property, among other things.

That illustrates the confusion and difficulty resulting from planning law, the Bill and the 1998 Act. Those are extensive rights for the licence holder. Rightly, under the 1966 Act, those ancillary rights need to be set out by a court if agreement cannot be reached with the landowner. That right is being taken away by the Bill. No longer would that disagreement have to go before a court—those doing the fracking will have an automatic right to frack.

I am not clear where planning law is involved in fracking. If someone has a UK Government lease to seek shale gas in a specific part of Angus, would they be entitled to go on to ground to do so even if the landowner objected? Do those rights override planning permission, or would people still need planning permission from the local authority? If so, where does the landowner stand? Is his only right to object to the planning permission?

There is a further difficulty. In any event, the planning process could cover only the area in which there is infrastructure for boring, but it will be very difficult to be sure where or how far any drilling into adjoining land will go until such time as the operation gets under way. Planning permission will not cover that. At most, it will cover the infrastructure for starting the bore. What happens once the hole is bored? What happens when the bore follows the gas deposits? No one knows where it will go once it has started. That is the difficulty.

The Scottish Government have powers over planning in Scotland and have taken a much more cautious approach to fracking than the UK Government have taken. They have called in the application from Dart Energy in Falkirk, and have introduced changes in planning guidelines for unconventional oil and gas. Another Member has made the point that the Scottish Government have confirmed that, for the first time, the concept of buffer zones should be applied to all proposals. They have asked for the additional requirement to prepare risk assessments to ensure a transparent and evidence-based approach for assessing the acceptability of proposed buffer zones. They have made it explicit that buffer zones will be assessed by the planning authority and statutory consultees, with a strong expectation that planning permission will be refused if they are unacceptable. They have ensured that operators are up front about their plans, and that communities are consulted on all unconventional gas developments, including close involvement in the risk assessment process. As an Opposition Member said, the Scottish Government require a fresh planning application and public consultation if permission had not been sought for hydraulic fracturing but developers subsequently intended to undertake the process. As the hon. Member for Fylde (Mark Menzies) has said, the Scottish Government have also convened an expert scientific panel to review the scientific evidence on fracking.

I believe that all powers relating to fracking, and indeed everything else, should be moved from Westminster to the Scottish Parliament. The Smith commission recommended that powers over onshore oil and gas should be transferred to the Scottish Parliament. The political parties in Scotland agree on that, at least. It would be right and proper if all aspects, including planning and licensing, were dealt with in Scotland. That would reflect the views of the communities of Scotland where fracking might take place.

As I have said, fracking is at an early stage. Now is the time to transfer those powers. If we do not transfer the powers now, and if we wait until a Bill is prepared in the next Parliament after a general election, the transfer of the powers will, with the best will in the world, be at least a year down the line. A lot can happen in fracking in a year. We have the opportunity to have a proper look and ensure we do it right from the beginning, rather than transfer the powers in the middle of the process when it could be too late to stop some of those developments.