Fracking Banned in Wales? Almost, but not quite.

As someone who has been campaigning against fracking for just over 7 years now, and who been involved with Frack Free Wales since its inception in 2013, today is a momentous day.

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Today saw the publication of a written statement by Lesley Griffith, Cabinet Secretary for Energy, Planning and Rural Affairs, of the Welsh Government’s new Petroleum Extraction Policy. In this context, we can safely assume that references to petroleum cover the full range of petroleum products, namely oil and gas hydrocarbons (effectively all fossil fuel sources except coal.

The full policy statement can be found here.

The key section, as far as I am concerned, is this:

Screen Shot 2018-12-10 at 21.57.29“Having considered the evidence, the risks, and the responses we have received to the consultation, I confirm today hydraulic fracturing “fracking” of petroleum will not be supported in Wales.
To help deliver on my commitment in 2016 to reduce the use of fossil fuels I also confirm we will not undertake any new petroleum licensing in Wales.”

Hip, hip, hmmm….

Hang on a minute. What is it with wording it “fracking of petroleum will not be supported in Wales”? Clumsy at best!

Bleddyn Lake of Friends of the Earth Cymru seems happy to interpret this thus, on their web page today:
“This ban is great news for Wales, great news for the communities who are campaigning tirelessly against fracking, and great news for our planet.”

Screen Shot 2018-12-10 at 22.00.04.pngYou will note a statement from Donal Whelan on behalf of Frack Free Wales on the same page, as we have worked closely with FotEC on this campaign. I helped Donal put this statement together. FotEC didn’t like this in our first draft:
“We regret the Welsh Gov’s choice of words in ‘not supporting fracking’, we would have preferred more emphatic language including the word ‘ban’”. They wanted it to ‘sound a bit more positive and celebratory’, which I guess is fair enough.

Or is it?

What’s nagging at me and Donal, and the rest of our FFW colleagues, is this question:
Why is Lesley Griffith so reluctant to simply say that fracking is now banned in Wales?

Not supporting something is patently NOT the same as banning something. I can say that I will not support Manchester United, but in no sense is this even suggesting that I want them banned.

So what is going on here?

Inevitably, until we get clarification from Lesley Griffith, this is a matter of conjecture on my part, but I think there are enough clues to give substance to what I am suggesting here.

I believe the problem lies in the Wales Act 2107 that has devolved certain matters to Screen Shot 2018-12-10 at 22.04.32Welsh Government, and led to this opportunity to reframe Petroleum Extraction Policy.

When the Wales Bill was being published, Professor Richard Wyn Jones, director of Cardiff University’s Wales Governance Centre, was excoriating in his verdict on the Bill. In October 2016, he described it thus:

“The Wales Bill suffers from two fatal flaws: it’s a piece of legislation that has been both poorly conceived and badly drafted.They combine to fatal effect to outline a system of devolution that would not only be as cumbersome as its predecessors, but in some important ways would be even more restrictive and frustrating.”

“…it has insisted upon a system of ‘ministerial consents’ of such mind numbing complexity as to cause bafflement even amongst seasoned constitutional experts. Its effect, though, is clear enough. It will require Welsh Ministers to go cap in hand to Whitehall in order to act even in areas that might otherwise be regarded as devolved.”

In simple terms, Westminster retained the ability to thwart, or even veto or over-rule issues supposedly under Welsh Government control, if they felt strongly enough about it. Not surprisingly, it wasn’t just Prof. Wyn Jones who was unimpressed, but attempts to resolve these reservations do not appear to have succeeded.

I’m no legal expert, and I’ve no intention of picking apart the whole Act, but page 1 has this to say:

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So, Westminster “will not normally legislate with regard to devolved matters”. But it can’t guarantee it won’t.

So this creates the context for the similarly wishy washy statement in today’s Policy Statement.

Welsh Government “will not support fracking”. But it can’t guarantee a ban.
Because Westminster reserves the ability to over-ride any ban.

This is all hugely frustrating semantics. I am sure that Lesley Griffith, Mark Drakeford et al share our frustration. We know that Lesley Griffith’s predecessor, Carl Sergeant, certainly shared similar frustrations over the convoluted measures that were needed to try and ensure fracking related planning applications were rejected (the mythical ‘fracking moratorium’ in Wales)

I have no real doubt that Lesley Griffith would have preferred to use the word ban, but I strongly susp[ect that legal advice steered her and Welsh Government away from using such an emphatic and unambiguous word. All the time we have fracking Tories in Westminster, I can kinda see where they are coming from.

Screen Shot 2018-12-10 at 22.07.37Thankfully, Jeremy Corbyn and John McDonnell have both been unequivocal, despite some union opposition, in stating the next Labour government in Westminster will BAN fracking. Rebecca Long Bailey MP, Labour’s Shadow Business Secretary, commenting recently on the Government’s announcement to try and make planning applications easier for fracking projects, said:

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Rebecca Long Bailey (centre) at Preston New Road, Blackpool

“Fracking should be banned, not promoted….. Labour will ban fracking and boost renewable energy projects. We will fix our broken energy system by creating publicly owned, locally accountable companies and co-operatives.”

This is true music to my ears.

So, yes, Welsh Government has ‘effectively banned’ fracking today. It could and should have been more emphatic about it in its choice of words. The potential legal loophole could and should have been faced down. They should know by now that we would not let it happen, no matter what. They surely should have more confidence in Labour sweeping into power at the next general election.

I guess we have come to expect, under Carwyn Jones, for the Welsh Labour Government in Cardiff Bay to take the lame approach whenever a bold one is called for.

Screen Shot 2018-12-10 at 22.15.41.png

You’ve got the job now, so let’s hear it loud, clear & unambiguously!

So, I await the public declaration that the last seven years have been all about; the clear, unambiguous, public declaration that fracking is now banned, be it in Wales, or even better, across the whole UK.

Maybe Mark Drakeford will make my day tomorrow, but for now, the champagne stays on ice.

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