Judge rules fracking is not banned in Scotland, despite ministers saying it was

Nicola Sturgeon has been urged to apologise for “deliberately misleading” business after a judge ruled that fracking has not been banned in Scotland, despite her claims to the contrary.

The First Minister and other senior SNP figures claimed last year that the controversial form of gas extraction had been banned.

But the petrochemical giant Ineos lost its legal bid to overturn the “effective ban” on the process when Lord Pentland said it had never been outlawed in the first place, and ministerial statements saying it had were “mistaken”.

The company that runs the huge Grangemouth refinery complex went to court with another firm, Reach CSG, in a bid to have the policy declared unlawful.

They argued ministers acted illegally last year when they converted a moratorium on fracking into an indefinite, effective ban.

However, the government’s QC argued during the hearing at the Court of Session that talk of a ban was just “gloss” and the “language of a press statement”, and ministers had merely expressed their preferred position on a policy that was still evolving.

Lord Pentland agreed and ruled on Tuesday that the challenge from Ineos was unfounded because “there is no prohibition against fracking in force”.

Tom Pickering, operations director of Ineos shale, welcomed the court’s clarification, but added: "We are in the extraordinary position where a senior judge has effectively concluded that the Scottish Government did not know what it was doing.

"He has ruled that there is no fracking ban in Scotland. We are sure that this will be a surprise to all those who heard the First Minister and others repeatedly tell Holyrood the exact opposite.

"It is for MSPs to decide whether Parliament was misled deliberately or simply through incompetence.”

He added: “We cannot have a situation where we need to go to court to find out what government policy is. Business needs a transparent environment that will encourage investment in Scotland for the long-term.”

The Scottish Conservatives accused the SNP of misleading businesses that wanted to invest millions in the new technology.

Alexander Burnett, the party’s energy spokesman, called on senior ministers to apologise.

He said that last year alone ministers said fracking was banned on 10 occasions, with Ms Sturgeon saying: “Those who, like me, do not believe that fracking should go ahead in Scotland should welcome the fact that fracking in Scotland is banned.”

Mr Burnett added: “The SNP has spent the last year deliberately misleading not only businesses who want to invest millions in Scotland, but communities too.

“From the First Minister down it has claimed fracking is banned – no ifs, no buts. But now the SNP government has succeeded in a court case on precisely the opposite argument – that there is no ban in place.

“The sheer incompetency involved from the nationalist government is embarrassing for the country as a whole.”

Lord Pentland said the Ineos’s stance was based on a "series of fundamental misunderstandings”, adding: "Whilst acknowledging that there have been a number of ministerial statements to the effect that there is an effective ban, the Lord Advocate, on behalf of the Scottish Ministers, made it clear to the court that such statements were mistaken and did not accurately reflect the legal position.

"The stance of the Scottish Government before the court is that there is no legally enforceable prohibition.

"For the reasons set out in this judgment, I consider that the Government's legal position is soundly based and that there is indeed no prohibition against fracking in force at the present time."

He added that there was instead an "emerging and unfinalised planning policy" expressing no support for the development of Unconventional Oil and Gas (UOG) in Scotland.

Paul Wheelhouse, the Business Minister, said he explained in October that the “preferred position” was not to support fracking in Scotland.

He added: "I have repeatedly set out to parliament that we would undertake a Strategic Environmental Assessment (SEA) ahead of finalising that position and that approach has been endorsed by the overwhelming majority of the Scottish Parliament.

"In the meantime, a moratorium is in place which means no local authority can grant planning permission and ministers would defer any decision on any planning application that did come forward until the policymaking process is completed.

"The practical effect of the current moratorium and the policymaking process which is underway to finalise our position is that no fracking can take place in Scotland at this time."