WIDESPREAD claims from SNP politicians that imposing an immediate fracking ban would backfire and lead to the technique getting the go-ahead have been debunked by experts.
SNP parliamentarians have been accused of deploying deliberately misleading arguments by justifying abstaining in a Holyrood vote on a ban by suggesting that if the Scottish Government was to outlaw unconventional oil and gas extraction now, the move would be overturned in the courts and fracking would get the green light.
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Gail Ross, an SNP MSP who abstained on Wednesday despite saying she is opposed to fracking, used her Twitter account to share a spurious "guarantee" that if Nicola Sturgeon introduced a ban, it would be certain to be overturned in the UK Supreme Court and, within a year, fracking would be "destroying our land, our water supply, and our food and drink and tourism industries", transforming Scotland into a "wasteland" within two decades.
The image and statement Ms Ross posted added that the Scottish Government had in fact "skilfully sidestepped" the pro-fracking UK Government by imposing a moratorium, which it claimed has a separate legal status to a ban.
The argument is without foundation according to Ewan MacLeod, a partner in the planning and environment group at leading law firm Shepherd and Wedderburn.
He said that the Scottish Government is correct to continue with its current moratorium, which will see it collect evidence and carry out a consultation before taking a decision, having created what is known as a 'legitimate expectation' to interested parties that it would do so and investing public money in the process. He also confirmed the Government could face a legal challenge should it ditch its current policy in favour of a ban. But crucially, he said there would be no prospect of companies winning the right to start fracking through the courts.
If the Government lost a judicial review, he said, the worst case scenario for ministers would be merely having to revert to the original policy of seeing through an evidence-gathering process and consultation before taking a decision.
The expert view clashes with statements from several SNP politicians in recent days over fracking, a process that sees water, sand and chemicals pumped deep underground to fracture shale role and release gas.
In this week's debate, MSP Stewart Stevenson claimed that the Labour motion stating there should be a full ban, which is non-binding on ministers, "will bring fracking closer, not move it away" citing the potential for a judicial review. MSP Angus MacDonald made a similar statement.
MSP Joan McAlpine, in a column on a pro-independence website, criticised Labour for calling for a ban "before we have the evidence to ensure it is not overturned". She also claimed Scotland was the only place in the UK to stop fracking, despite the Northern Ireland Executive adopting a similar stance to the SNP Government. It follows Mhairi Black, the MP, warning that Tories at Westminster could 'impose' fracking on Scotland despite planning and environmental powers that can be used block developments being devolved.
Mr MacLeod, accredited a specialist in planning law by the Law Society of Scotland, said: "A successful judicial review would be very unlikely to expose Scottish Government to damages. It would simply mean that the Government’s ban on fracking would be removed until the consultations had been completed and considered and a further decision on whether to ban fracking was taken."
Scottish Labour, which saw its call for a fracking ban backed by the parliament, described the SNP politicians' claims as "ridiculous" and said they had a duty to make decisions "based on facts, not fiction". MSP Jackie Baillie added: "They are supposed to be representatives of the people, not keyboard warriors."
A spokeswoman for the Scottish Government said: "The decisions the Government takes can be subject to legal challenge – as has been seen in other policy areas and other jurisdictions - and, if a challenge occurs, it would be for the courts to consider any evidence presented. Going through full due process ensures that, if there was to be a challenge to Scottish Ministers' decision, we would have the a body of evidence upon which we could draw to support our course of action."