Fracking in Scotland: when a ban is not a ban

摘要

Despite a clear statement from the Scottish government in 2017 that it had used planning controls to introduce a ban on tracking in Scotland, the Scottish Court of Session has held that in law no such ban yet exists. A challenge to the legality of such a ban was therefore held premature. The case raises important issues concerning the relationship of law and policy in an area of considerable controversy. Ineos Upstream Ltd ⅴ The Lord Advocate (Outer House, Court of Session [2018] CSOH 66 P1318/17 19 June 2018) was a judicial review challenge to an apparent ban on fracking by the Scottish government. The court recognised that the subject of tracking has given rise to intense debate raising sensitive issues of environmental, economic and social policy but emphasised it was only concerned with questions of law, and whether the Scottish government had exceeded its powers.