Infrastructure Bill [Lords]

Tom Greatrex Excerpts

Wednesday 11th February 2015 Commons Chamber

[Amber Rudd]

I thank my hon. Friend for the opportunity to clarify that. The Welsh Government, as he will know, already have substantial control of onshore oil and gas activities through planning controls and environmental regulation, as they are already devolved. As he will also be aware, the Secretary of State for Wales is leading discussions on further powers for Wales ahead of the St David’s day announcement. I understand that there is some merit in these decisions being devolved to the Welsh Assembly. However, this issue requires further consideration before a decision can be taken.

Turning to the specifics, we outlined on Monday in the other place that Government amendments 21B, 21C and 21D in lieu are designed to ensure associated hydraulic fracturing cannot occur unless a set of 13 conditions have been met. The Secretary of State will not grant consent for associated hydraulic fracturing unless that has been done. I would be very happy to speak about each condition if colleagues have specific questions, but I would like to focus on areas of concern raised during Monday’s debate and by amendments that have been tabled subsequently.

First, amendment (a) indicates a misunderstanding of our clauses, and specifically the way in which subsection (3) works. At the end of (3)(a) it very clearly says “and”, not “or”, so paragraph (3)(b) is not a get-out provision for the Secretary of State, but an additional safeguard to ensure that my Department refuses consent if there is something else wrong with the proposal. We should not change anything here.

Secondly, amendment (b) asks that the environmental impact assessment of the development be taken into account. I want to reassure the House that there is no difference between us on the outcome we are seeking to achieve; it is simply a question of how we deliver the requirement in law. The term “environmental information” is used in the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. It captures the information that must be taken into account by the relevant planning authority before planning permission is granted, including, but not limited to, an environmental statement. This process is commonly referred to as an environmental impact assessment. The Secretary of State cannot give consent for associated hydraulic fracturing unless he is satisfied that the environmental impact of the development has been taken into account by the relevant planning authority. He can be satisfied that this has happened where he is given a notice by the local planning authority stating that the environmental information has been taken into account. As I have said, this is simply about delivering a provision that has a meaning in law. I hope that reassures the House.

Amendment (b) asks that we refer to fugitive emissions, rather than emissions of methane into the air in our clauses. The Environment Agency already requires operators to manage, monitor and report on fugitive emissions. It is unlikely it would require this for carbon dioxide emissions, which are likely to be negligible. The MacKay Stone report on potential greenhouse gas emissions from shale gas sites shows that on average, shale gas is approximately 86% methane and 3% carbon dioxide, as well as ethane, propane and nitrogen. Methane represents more than 99% of the carbon dioxide equivalent emissions—in other words, the global warming emissions—from fugitive shale gas. It therefore makes sense for the conditions related to associated hydraulic fracturing to focus on methane. The principal source of carbon dioxide emissions would be from combustion of gas in flaring. Such emissions from flaring are modelled and monitored as part of the permit conditions. I can also confirm that we are actively considering whether the drilling of bore holes for monitoring purposes should be classified as permitted development, and we hope to take this forward in the near future.

Amendment (b) also deals with individual notification of residents. It is just not feasible to require separate notifications for each individual resident regarding associated hydraulic fracturing. We live in a free country where individuals are not required to register where they live. It would be practically impossible for the Secretary of State to identify each individual resident and check whether they had been notified, so making individual notification a condition of issuing consent for associated hydraulic fracturing would leave every consent wide open to legal challenge by third parties. Similarly, it would be unreasonable to introduce a demand that would require every single resident to consent to associated hydraulic fracturing.

[Tom Greatrex (Rutherglen and Hamilton West) (Lab/Co-op)]

rose—

[Amber Rudd]

The hon. Gentleman will have a chance to respond in a minute.

Planning regulations currently require persons submitting planning applications for shale gas to serve notice on individual owners and tenants of land where surface works are required.

[Amber Rudd]

I am going to make some progress.

Persons submitting such planning applications must publish a notice in a local newspaper and put up site notices. We believe this is proportionate and fair to residents. In addition, the industry has agreed, as part of a voluntary package, to notify the public when exercising the right of use to access underground land. We have taken a reserve power in the Bill to enforce this if the notice scheme relating to the right of use is not honoured appropriately.

Amendment (c) stipulates that no hydraulic fracturing, as defined in the amendment, can take place until the regulations defining water source protection areas and other protected areas have been approved by Parliament. It is worth noting that, at the moment, no operator in the UK has well consent where hydraulic fracturing for shale gas is intended. I can confirm that the Government will not grant any consent for associated hydraulic fracturing operations until all the conditions are clearly defined.

Amendments (b), (d) and (e) insert wording into the clauses about associated hydraulic fracturing not taking place “within or under” protected areas. Amendment (b) also asks that we insert the environmental regulator’s definition of groundwater protection zones into the clauses. I would like to stress that we are talking here about how to define these things in law. It is absolutely crucial to get these legal definitions right. The Government amendment does not refer to “within or under” protected areas because the meaning of this term needs to be flexible to allow proper provisions to be made in secondary legislation.

There is a strong case that sites such as World Heritage sites and the Norfolk Broads should be protected from fracking taking place under them. In other cases, that would not be so sensible. For example, in the case of areas of outstanding natural beauty and national parks, given their size and dispersion, it might not be practical to guarantee that fracking will not take place under them in all cases without unduly constraining the industry. However, that is something we need to consider in more detail, and we will do that in due course.

We will look at the evidence to ensure we get this right when setting out the details in secondary legislation. The regulations will be subject to the approval of both Houses, so now is not the time for this. Our clauses put a duty on the Secretary of State to lay draft regulations containing a definition of “protected areas” by 31 July 2015. We must not rush this now, because we would risk putting in place restrictions in areas in a way that does not achieve the intended aim of the condition, or that goes beyond it and needlessly damages the potential development of the shale industry.

We have been working tirelessly over the past week to come up with a set of clauses specific to the shale industry that, in keeping with the spirit of each of the points in amendment 21, will provide the public with confidence that it is being taken forward in a balanced way. Officials and Ministers have worked hard on this, and I would like to thank the Minister of State, Department for Transport, my right hon. Friend the Member for South Holland and The Deepings (Mr Hayes), and the Under-Secretary of State for Communities and Local Government, my hon. Friend the Member for Bristol West (Stephen Williams), for working so hard with us in Committee, together with our excellent cross-departmental team of officials.

I hope the points I have made address hon. Members’ concerns. Shale gas is an exciting new energy resource for the UK, with huge potential that we can deliver safely. Now is the time to seize, not squander, the opportunity to develop the United Kingdom’s shale industry.

[Tom Greatrex]

I note from the number of Members seeking to catch your eye, Madam Deputy Speaker, and the amount of time left that even if I try to be brief, which I will, we will probably not have the opportunity to repair the damage that the Government have done to the amendment that was passed wholeheartedly by this House just a couple of weeks ago. The Minister should regret that. Given that she refused to take interventions on a number of specific points, I will put them to the House.

My understanding is that some of the changes the Government have made in introducing the amendment in the other place do not go as far as what was agreed by this House on 26 January—again, a matter to be regretted, particularly in view of some the commitments and comments that the Minister made in her sometimes rather chaotic contribution on that date. Once again, I think the House will come to regret that.

Last month, many in the Chamber were left with the impression that the Government had listened and accepted the case being made, which included issues concerning groundwater protection and areas of protection, as well as other detailed points. Although I accept that there has been value in clarifying some of the language in our amendment, I do not accept that every one of the changes made by the Government and the Minister protect the integrity of the amendment passed by this House. As I have said, that is to be regretted.

[The Minister of State, Department for Transport (Mr John Hayes)]

rose—

[Tom Greatrex]

I am not giving way. It is to be regretted on both sides of the House. [Interruption.] The Minister’s Parliamentary Private Secretary is chuntering away, as she is wont to do, so let me remind her that we are short of time and that the Minister refused to give way during her contribution. I will repay that lack of courtesy to the Minister. That is how she seems to want to deal with the issues this afternoon.

[Joan Walley (Stoke-on-Trent North) (Lab)]

Will my hon. Friend give way?

[Tom Greatrex]

Yes, I will give way to my hon. Friend.

[Joan Walley]

I am so grateful. Not just the House, but the public outside will have noticed that the Minister did not give way on the safeguards that the Opposition sought to place in this Bill. If we accept the Government’s case that our previous amendments had to be refined, is there not a precedent whereby the Government could accept the Opposition amendments and take forward the safeguards when we vote at the end of the debate?

[Tom Greatrex]

I am grateful to my hon. Friend, who is absolutely right that that course is open to the Government. I shall come on to say more about amendment (c) and respond to what the Minister said about it. She accepted that nothing would happen before 31 July, so what is the problem with accepting amendment (c) to make sure that it is clear and built into the Bill before it becomes an Act?

The Minister said that amendment (a) is not a get-out clause, but I am afraid that her explanation did not convince me. Proposed new subsection (3)(b) says that a well consent could still be issued if the Secretary of State is

“otherwise satisfied that it is appropriate”—

not the other way round. That suggests some ambiguity in the Government’s amendment, and we need to ensure that it is removed.

The Minister touched on a number of different areas in respect of amendment (b). When it comes to groundwater protection zones, it is our contention, as I said during the debate a couple of weeks ago, that the range of protections developed cannot be cherry-picked. It is a comprehensive set of conditions that were developed in dialogue with a number of different sources, including specialist engineers, geological survey experts and others, in order to get the points right. It is not just a wish list drawn up at the last minute. Many people concerned about groundwater protection think the Minister is saying, “Well, we’ll leave that to secondary legislation, and we will not use the definition because it already exists in law.” Groundwater protection zones are defined—we know what they are—but the Minister seems to be content to rely on the much more ambiguous term “protected areas” while having no sense of what those areas are. It is vital for groundwater, and sources of drinking water, to be properly protected, and there is concern about that on both sides of the House.

--- Later in debate ---

[Dr Julian Huppert (Cambridge) (LD)]

I noted that the regulations that would be made in July, after the general election, would be dealt with through the affirmative resolution, and that there would therefore be no opportunity to amend them. If the hon. Gentleman were in a position to influence that within his party, would he rule out any fracking within or under any protected area? Can he make that commitment now?

[Tom Greatrex]

If the will of the House is to support the Government amendment this evening and we reach a point at which there must be a definition in secondary legislation, we shall want to ensure that such areas are properly protected, just as we did when we proposed the amendment that the House accepted two weeks ago. [Interruption.] I am talking about the definition that was in an amendment that was supported by the hon. Member for Cambridge. In fact, a Division was not necessary, because everyone supported it. I think it vital for those areas to be properly protected, and we will seek to protect them if we are in a position to do so in the future. I am sure that if the hon. Gentleman can imagine being in that position himself, he may think that he would do so as well.

[Gregory Barker (Bexhill and Battle) (Con)]

Will the hon. Gentleman give way?

[Tom Greatrex]

I will not give way again, because I am conscious of the time, and I hope that we can reach the stage at which my amendments are put to a vote.

Let me now deal with what the Minister said about environmental impact assessments. She had previously accepted that they should be mandatory for all shale gas sites, not just those measuring more than 1 hectare. The Government’s proposed new clause, however, would ensure only that

“the environmental impact of the development... has been taken into .account”.

That stops short of a full commitment to an environmental impact assessment.

Like the Minister in the other place, this Minister said that individual notification was impractical. Let me raise a point that I wanted her to clarify earlier, namely the decision to exclude shale gas operators from the need to notify people individually. That requirement still applies to other horizontal activities, such as those involving geothermal energy. Why has the arrangement been changed when it will still apply to operators of another technology? That seems absurd to me.

The Government accepted our amendment on Report, which required that

“site-by-site measurement, monitoring and public disclosure of existing and future fugitive emissions is carried out”.

Their version weakens that wording on two counts. First, it limits the emissions to methane emissions, and to emissions generated during the operation of the site. As the Minister will know, the nature of hydraulic fracturing means that methane and other gases may continue to leak upwards through fractures and the borehole long after a site is decommissioned. Given a greenhouse gas impact about 25 times as potent as a tonne of carbon dioxide, it is vital that those emissions are properly reported.

The Minister seemed to think that amendment (c) was not necessary, because there would be no activity before the deadline of 31 July deadline. If that deadline is placed in law, what reason is there for not ensuring that there is absolute clarity, so that people cannot misunderstand? The Minister gave the impression that she agreed that there would be no activity within that time frame, but I think it important for the law to be properly clarified.

One of the reasons we tabled a number of amendments is that the Government have been unclear about policy in several areas. On Report, we moved an amendment to include hydraulic fracturing under the scheduled list of activities in the environmental permitting regulations. That amendment was not carried, but in the debate the Minister said that

“the Government welcome in principle the sentiment behind the proposed amendment to the Environmental Permitting (England and Wales) Regulations 2010 to make explicit reference to hydraulic fracturing”—[Official Report, 26 January 2015; Vol. 591, c. 596.]

However, in answer to a written question from my hon. Friend the Member for Brent North (Barry Gardiner) on 9 February, her DEFRA colleague the hon. Member for North Cornwall (Dan Rogerson) said:

“There are no immediate plans to amend the Environmental Permitting (England and Wales) Regulations 2010.”

Will the Minister clarify that? Was she mistaken when she told the House that the regulations were being updated, or was it her colleague in DEFRA, who said there were no such plans? That is just one example and I am going to list another couple where there is inconsistency in what the Government have said even in the last couple of weeks. That hardly helps us to have confidence in the integrity of the regulatory regime, and that is why I believe our amendments are still necessary.

On Report, the hon. Member for Fylde (Mark Menzies), who is in his place, asked whether Health and Safety Executive inspections would be unannounced. The Minister replied:

“The short answer to that is yes.”—[Official Report, 26 January 2015; Vol. 591, c. 589.]

However, in a written answer on 4 February the Minister for Disabled People, the hon. Member for Forest of Dean (Mr Harper), said:

“Decisions on whether an inspection is announced or unannounced are made on a case by case basis by the HSE inspector.”

Which is it? Are they unannounced or not? Is the “short answer” also the wrong answer, or, again, have we got confusion at the heart of Government about the way in which these regulations will be applied?

The Minister’s colleague, the Minister for Business and Enterprise, the right hon. Member for West Suffolk (Matthew Hancock), was asked whether DEFRA had a role in regulating shale gas, and he said on 10 February:

“DEFRA does not have a direct regulatory role in shale gas operations”.

However, the hon. Member for North Cornwall said on 3 February:

“DEFRA is responsible for the environmental aspects of shale gas policy”.

With this kind of confusion, it is not difficult to see why people accuse the Government of not taking the regulations for shale gas seriously, and why there is a lack of confidence in what the Government are saying this evening and what they have been saying over the past couple of weeks.

[The Minister for Business and Enterprise (Matthew Hancock)]

Will the hon. Gentleman give way?

[Tom Greatrex]

No. I am concluding now as I know other Members wish to speak in the short time available to us.

Just over two weeks ago we had a debate in which we discussed a number of different aspects of this subject in a very constrained time frame. We also did so in good faith. We accepted the Government were taking our new clause 19 as it then was, and I also accepted in conversation with Ministers that they would seek to correct some ambiguities in it. I do not have a problem with that, but what I do have a problem with is the way in which the Government have weakened the scope of what was agreed by this House. As I have said, this is not a list to cherry-pick from, and it is not a party political issue. It is an issue that affects a number of communities across the UK—and a number of communities represented by Members of the Minister’s party, my party and other parties represented in this House. We all want to have confidence in the regulatory regime—that it is robust, that monitoring is comprehensive, and that can inform debates in local areas. By watering down aspects of the amendments that were accepted by this House the Government are at risk of undermining that case around which I felt on 26 January the House had united. I think the Government will come to regret that.

[Sir John Randall (Uxbridge and South Ruislip) (Con)]

I had not intended to speak, although I did sign amendments (d) and (e) tabled by my hon. Friend the Member for Cambridge (Dr Huppert). I did so because I wanted more clarification. I was encouraged by what I heard from the Minister on Report, and I am slightly disappointed that what we heard then has been slightly watered down. Although I accept in good faith that this will be resolved by 31 July, it will be to my eternal regret that I will not be able to see that as I will not be here. Accepting the good faith of the Government is always the right thing to do, because Ministers always do right for the whole country. However, when the regulations are clarified on 31 July, if they are not as strong as people want, the Government—it will be the same Government—will have a few more questions to answer. I will leave it there.