Don’t be feart! Scotland won’t be sued!

The SNP and its supporters seem to be getting increasingly contorted trying to explain why the party won’t clearly come out in favour of banning unconventional gas extraction. Over the last year the party and its faithful supporters have ducked and dived trying to give reasons why Scotland is going to have to put up with being fracked. This is very odd from a party whose supporters were fired up to campaign against fracking and TTIP (of which more later) after the Independence Referendum in 2014.

Firstly there was the argument that this was something we couldn’t do anything about. The SNP would love to stop fracking, but simply couldn’t. That argument was starting to get some traction until it was pointed out by this blog amongst others that actually Scottish Government could ban fracking through the planning system using the same approach as it used to ban new nuclear power stations.

So the Scottish Government wriggled and squirmed and was pushed into introducing a temporary moratorium firstly on fracking, then on unconventional gas extraction onshore. However initially this ban didn’t include the most risky technology, underground coal gasification which was proposed for coal seams under the Forth and Solway estuaries. Apparently this was “offshore” and so not within Scottish jurisdiction, but something controlled by Westminster. And while of course the SNP would love to ban it they couldn’t. Then it was pointed out that estuaries do not qualify as being “offshore” and were regulated by Marine Scotland, and that anyway Scotland could use the planning system to prevent the onshore infracture needed to bring the gas ashore. Another awkward silence followed by a retreat, and underground coal gasification was included in the moratorium.

So we were at the stage where we have gone from being unable to do anything to having a temporary moratorium on all forms of unconventional gas extraction (although test drilling was still allowed). Quite a change! But how long was this moratorium to last? Until research was done. How long would that be? Around the end of May 2016 (conveniently after the Holyrood elections). But as the Inquiry progressed it was decided that it would need until the end of May 2017 (conveniently after the council elections and into a two year period with no elections). The Inquiry trundles on worthly accumulating journal papers, case studies, and focus group output which mirrors that already collected elsewhere e.g by New York State to support its fracking ban.

Grass roots SNP activists tried to get conventional gas on the debated at the SNP’s 2015 annual conference, but for reasons best known to themselves the leadership choose not to include it in the agenda despite the huge interest in the issue.

Yesterday the newly elected Holyrood Parliament debated fracking in one of its first debates. An amended motion was passed in which the Parliament voted to ban fracking. What a great opportunity for the SNP to show it’s commitment to protect Scotland from this damaging technology! Only unfortunately they didn’t. They abstained en masse and the motion was passed by a concerted effort from Labour, the Scottish Greens and the Lib Dems to vote down the Tory opposition.

So why did the SNP abstain from voting on something which they say that they support? Ah, well, it’s not easy being a government! Why, you’re so powerless that you might get sued by a nasty big company (or even a nasty small company!). This is a problem which has beset Scottish Government in the past. Er… Not! There has only been one attempt to sue Scottish Government for passing laws on areas which are with its remit, when Axa Insurance got unhappy at the thought that it might be forced to pay out to people whose lungs have been affected by asbestos. That action was soundly thrown about by the UK Supreme Court when the judges ruled that it was not “irrational” for the Scottish Parliament to pass laws designed to ensure the well being of its citizens.

Aha though! Those trying to defend the SNP were quick to cite various other cases where governments have been sued by (mostly American) corporations for passing laws they didn’t like. Ecuador, Argentina, El Salvador, Ghana, Phillippines, Ukraine, Germany, Canada. But hang on! All of these countries were sued by organisations based outside their borders which were able to take action as a result of free trade agreements which included a mechanism called Investor State Dispute Settlement (ISDS). In ISDS agreements governments sign away some of the rights of their parliament in return for access to markets. Although small countries might see these sort of deals as being good for business by allowing them to trade free with countries like the US they generally end up with the small countries’ interests getting squashed by the larger ones.

Fortunately neither the UK nor Scotland (as foreign trade agreements are not devolved) is party to such deals, although the Transatlantic Trade and Investment Partnership (TTIP) being negotiated by the EU could allow this in future. So actually, no government of a country or federal state in a similar situation to Scotland has ever been sued by a company for passing laws. Philip Morris and BAT have not sued Scotland for being the first part of the UK to ban smoking in public places, the nuclear industry has not sued Scotland for banning new nuclear power stations, Scotland has been able to legislate to protect workers and the environment without being sued, and there is absolutely no reason to believe that it would be sued if it banned unconventional gas extraction. No one has sued New York State or France for banning fracking. Why would Scotland be any different?

The one game changer would be if the UK signed up to a TTIP agreement which included ISDS before Scotland enacted a ban on unconventional gas extraction. In that case we’d be in the same position as Ecudor, Argentina, El Salvador, Ghana, the Phillippines, Ukraine, Germany and Canada. This is why we need a ban now, not at some unspecified point in the future when we might have lost the power we do it because of an ill-advised trade treaty.

That leaves the only line left to those trying to defend the SNP’s abstention to be claiming a bizarre and complex conspiracy theory in which Labour put a motion banning fracking because actually they wanted to make it easier to frack. This 2 + 2 = 5 logic claims that any motion to ban fracking which wasn’t put by the only true defenders of Scotland must be bad and dangerous, and could only have been proposed specifically to let Scotland be sued (which we know is very unlikely to happen) or possibly transported to the planet Zarg by Zargons clad in the union jack.

So, kicking and screaming, the SNP Government have moved from claiming to be powerless to stop fracking, to having a moratorium in place backed by a parliamentary vote to ban fracking. The legislation putting this ban into “legalese” will be developed over the next few months, and will then be voted on by the Parliament. Will the SNP show themselves to be keen to protect Scotland’s people, its environment and its world leading emissions reduction targets or will it abstain or vote it down the bill enacting yesterday’s motion? Here’s hoping sense prevails over profit!