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Fracking in the Lords

Fracking in the LordsIn our article 'February 2014 - Fracking Update', (under the heading "Forgive them their Trespasses") we touched on a proposal by Government to make it easier for fracking companies to drill under people's land - and potentially under their houses.

Government had said "There is an existing legal route by which operators can apply for access where this can't be negotiated." adding that "We're currently considering whether this existing route is fit for purpose."

We also outlined the background to 'underground trespass' as it stood at the time.

Then, in 'June 2014: Fracking Update' we reported a Government announcement to change this law by inserting some clauses into the 'Infrastructure Bill'.

We also highlighted a consultation that was in progress on this matter, and urged people to make their views known to the Government.

A month later, in our 'July 2014: Fracking Update' we again promoted the consultation, and noted a new House of Commons Briefing note about shale gas.

Since then the 'Infrastructure Bill' has been wending its way through Parliament.

We hope to cater for a range of readers in this matter - from anoraks to the impatient, so there's a list of links below to let readers skip to the bits that are of most interest.

It began life in the House of Lords (which is a bit unusual, but not exceptional. The more usual process is to start in the Commons, but it makes little difference).

It's 'First reading' (which is nothing more than the announcement of the name of the bill, it's formal insertion into the parliamentary schedule and it's being printed) was on 5th June 2014. No debate on the Bill takes place at this time, so it's a bit of a non-starter for most folk.

Between the First and Second Readings, members who would like to speak about issues in the Bill add their name to a list (called the ‘speakers list’).

The Bill's 'Second Reading' (where it is considered in an overall / overview sense) began on 18th June. This is the first opportunity for members of the Lords to debate the key principles and main purpose of the bill, and to flag up any concerns or specific areas where they think amendments are needed.

The government minister, spokesperson or a member of the Lords who has been given responsibility for steering the Bill through to success, opens the proceedings by outlining the Government's purpose and aims for the Bill.

Any member can speak during this Second Reading – this usually shows-up those members who are particularly interested in a bill, or a specific aspect of it, and those who are most likely to be involved in suggesting amendments at later stages.

We report the Infrastructure Bill's Second Reading in relation to fracking a bit later in this article.

Before the next stage (The Committee Stage) begins, amendments to the Bill are gathered together and placed in order, then published in what's called the ‘marshalled list’.

This list is updated before the start of each day during the committee stage.

The Bill then moves into the 'Committee' stage, (where a small committee examines it clause by clause, and where amendments that have been proposed are debated).

For the Infrastructure Bill, that stage began on 3 July, and the Committee - Chaired by Baroness (formerly Lib Dem MP Susan) Cramer - met 6 times before parliament broke up for the summer recess.

Because on Tuesday 14th October, the first Committee sitting of the present Parliamentary Term will take place, and it's expected that it will begin with the issue of making it easier for fracking companies (and geothermal companies) to drill under your land by granting right of access in law.

If you're free around 3pm on that day, you can watch the debate live on Parliament TV - which is not the same as the Parliament Channel on the TV - it's effectively a live webcast. Details of access are at the end of this article.

It's also available to view - at least for a while - after the event, a bit like the' BBC I Player'

Although when the Bill was introduced, it said absolutely nothing about fracking, it will have such clauses inserted by the Coalition Government.

These clauses are specifically intended to change what many regard as established and settled property law, so that it becomes easier for fracking companies to drill under other people's land without having to gain their consent or a court order to overrule a refusal.

We're going to try and follow this Bill as it makes its way to becoming an Act of Parliament, and thus, law.

We absolutely and fundamentally disagree that the Government should change the law of the country to make it easier to trespass under other people's property.

For us, this is a red line, and if it succeeds to become law, it will cost all of the four political parties who currently support it any vote they might have hoped for at the next election so far as we are concerned.

And that will remain our view, irrespective of how they try to dress it up using the need for geothermal heat sourcing as the 'pretend reason' for doing it.

This proposal is similar to how the terrible situation faced by Canadian resident and landowner Jessica Ernst began - when the Canadian Government changing the law to make it easier for frackers to operate.

That has ended with Canadian national law being changed and twisted - specifically to make it more difficult for her to bring a court case against the Canadian Government's Energy arm 'EnCana' for damage that has made her borehole water supply completely unusable and poisoned the land that she owns.

(And before we are reminded that Fylde's water comes from reservoirs in the Lake District, we take the opportunity to note that a proportion of our water does indeed come from boreholes. Last time we looked it was about 11%)

So it has been (to our amazement) that in Canada - the Government believes that if the regulations get in the way, you simply change the regulations.

Proper civilised countries ought not to engage in the sort of actions and threats Ms Ernst has had to endure.

Nor should changes to fundamental legal rights be treated in such a cavalier fashion.

And Britain ought not to chart a course on the same slippery slope that Canada is sliding down,

So this matter is something we want to highlight.

Even though this will probably upset some of our friends, readers might care to note at this point that this is not a 'political' campaign for us. We carry no green agenda, nor do we have a problem in principle with shale gas extraction, (though at present we maintain practical objections because we do not believe the process is adequately regulated and sufficiently safe). Nor do we have a problem with the use of what some call 'fossil' fuels. We don't even support the widely held view that climate change is mostly man-made.

So we don't approaching this issue from an environmental angle.

We approach it from a constitutional angle.

Which is why we plan to keep track of the Bill's progress through Parliament.

After the Committee Stage (probably within a fortnight or so), the Bill moves back to be considered by the whole of the House of Lords. This is called the Report Stage, and offers a further opportunity for any and all members of the House of Lords to collectively examine and make amendments to the Bill.

But before Report Stage, any proposed amendments are gathered together and placed in order, then published in the ‘marshalled list’. Once again updates are produced before the start of each day of committee stage.

The Report Stage usually starts about a fortnight after committee stage has concluded, and can be spread over several days (but is generally quite a bit shorter than committee stage).

During this stage, there is further detailed examination of the Bill, and any member of the Lords can take part and vote on any amendments.

After report stage, the Bill is reprinted to include all the agreed amendments. The Bill then moves to third reading, a further chance for the Lords to discuss and amend the bill as it nears conclusion.

This is the final chance for the Lords to amend the bill to address anything that has not been already debated - (it's not about re-opening debates that have already taken place), but by now it's often simply a rubber-stamping exercise unless the Government wants to clarify some aspects of the Bill.

Once this stage is completed, the Bill Goes to the House of Commons for its first reading there.

The Commons reprints the bill in its own format (with the Lords amendments), and the whole process (exactly as took place in the House of Lords) starts again with a First Reading - leading to an eventual Third Reading, after which it returns to the House of Lords for consideration of any amendments the Commons has made.

If the Commons did make any amendments to the Bill, the Lords must consider them and either agree or disagree to the amendments or make alternative proposals.

If the Lords disagrees with any Commons amendments, or makes alternative proposals, then the bill is sent back to the Commons.

A bill may go back and forth between each House until both Houses reach agreement on the exact wording of the bill – this is known as ‘ping pong’

When the exact wording has been agreed by both the Commons and the Lords, the bill is ready for Royal Assent.

Once a bill receives royal assent it is made an Act of Parliament (the proposals in the bill become law).

In exceptional cases, when the two Houses do not reach agreement, the bill falls. If certain conditions are met, the Commons can use the Parliament Acts to pass the bill, without the consent of the Lords, in the following session.

So that's the process to get the idea into law.

The Infrastructure Bill set out the Government’s proposals to fund, plan, manage and maintain the UK’s national infrastructure.

It includes a diverse range of (what we consider to be awful) measures:

  • Replacement of the Highways Agency with strategic highways companies. (In effect, this will turn the present Highways Agency into a Government-owned private company. The approach here is not unlike what happened to Blackpool Airport which used to be owned 100% by Blackpool Council - until they sold 95% of it to MAR Properties Ltd, who later sold it to Balfour Beatty, who have just closed it down. We suspect after a few years Government will sell the company they are about to create in order to raise cash from some project or another)
  • The control of invasive non-native species (This lunacy flies in the face of natural evolution and is, in effect, about ethnic cleansing to control or remove the most biologically successful plants and animals from the UK. Thankfully, as yet, it does not include removing the most biologically successful people);
  • Reform of planning law and provision for nationally significant infrastructure projects (mostly to be able to override settled planning processes where they are inconvenient);
  • To introduce a community electricity right (Don't even ask!).
  • And a few other measures that we and most ordinary folk wouldn't immediately see a connection with 'infrastructure'

When introduced into the House of Lords, however, the Bill did not include measures about fracking.

After The Bill was published, it was widely speculated that the Infrastructure Bill would include measures about ‘fracking’.

In particular, it was expected that provisions to alter the existing laws governing trespass to reportedly enable fracking companies to gain easier access to shale gas deposits under residential properties (particularly when drilling horizontally at depth) would be added

We gave readers early warning of this in February 2014 - Fracking Update

Then on 23 May 2014, the (then) Energy Minister, Michael Fallon, announced that the Government would be undertaking a twelve week consultation on the subject of underground drilling access for the purpose of extracting gas, oil or geothermal energy.

We reported this in 'June 2014: Fracking Update'

That consultation closed on 15 August 2014,

When he responded to the Queen's Speech that announced the Infrastructure Bill, Secretary of State for Energy and Climate Change, Ed Davey, said

"In order to ensure that the UK can benefit even more from its home-grown energy, we will introduce a final set of measures, subject to consultation, so that Britain can be more secure and reduce our reliance on imports and on coal. The measures are to support the development of the shale gas and geothermal industries. Although both industries are still in their infancy, they are both concerned that the existing legal situation could delay or even stop their ability to drill horizontally deep underground to recover gas or heat. Ironically, given the urgency of climate change and unlike the situation for dirty coal—a landowner or property owner high above a coal seam cannot object and delay work—for cleaner gas and clean heat, landowners and property owners can object.

To assist the shale gas and geothermal industries, we are consulting on how to address those access issues. [...] We want feedback and input, because that will help us to refine our proposals, to develop alternative ones or even to convince us that the existing system is fit for purpose. We will listen during the consultation and, subject to its outcome, we will introduce proposals when parliamentary time allows."

Under the existing access regime, drilling license holders do not have automatic access rights to drill under landowners’ property.

Permission must be sought from the landowner before they can do so.

If such permission is refused, then the license holders are able to apply through the Secretary of State and the courts to gain access.

However, the Government believes that this approach is too time consuming, and, in the words of Michael Fallon: it "Does not strike the right balance between the legitimate interests and concerns of landowners, and the benefits to the community and nation at large of permitting development, where that development is otherwise acceptable in planning and environmental terms."

We believe this view is fundamentally wrong.

Officially, we don't know, because there is no draft legislation. We only have the statements in the Government's consultation document.

That proposes changes to the current system which would:

  • Grant underground access rights to companies extracting petroleum resources including shale gas and oil and for geothermal energy in land at least 300 metres below the surface.
  • Provide for a voluntary community payment of £20,000 for each unique horizontal well that extends by more than 200 metres laterally. (And alongside this will be powers to make such payments compulsory if companies fail to volunteer).
  • Provide for a public notification system, under which the company would set out drilling proposals along with details of the voluntary payment.
  • The consultation response refers to a community payment of £20,000 per horizontal well in return for access. This is expected to be in addition to the community benefits package previously devised by the shale industry – payments of £100,000 per site at the exploration stage followed by 1% of revenues thereafter.

There are also reports about more generous offers, with one company talking of potential payments equal to 6% of revenues shared between landowners and the wider community.

But, irrespective of the voluntary payments proposal expected in the legislation, the outcome - if the proposals in the Consultation carry through - will be a disapplication of the present law of trespass in relation to fracking activities carried out at this depth.

This plan has been cooked up by the Lib Dems and the Conservatives, so what does her Majesty's Opposition have to say about it?

Well, Shadow Secretary of State for Energy and Climate Change, Caroline Flint, said that Labour would support the Government’s reform of underground access rights.

Such reform, she said, would put shale gas on the same footing as other industries such as coal, water and sewage.

Ms Flint added, however, that her party would continue to press for further safeguarding measures, saying "We will continue to push for the environmental framework to be strengthened, and for assurances that the responsibility for clean-up costs and liability for any untoward consequences rests fairly and squarely with the industry, not with taxpayers or homeowners."

We also understand that UKIP supports the move, though we've not seen any specific comments they have made about the trespass legislation

So none of the mainstream political parties (or the soon to be ones), oppose the change in the law.

Several environmental groups have been critical of the Government’s intention to reform the trespass laws.
Friends of the Earth and Greenpeace have launched a joint petition to campaign against the plans.

Commenting on behalf of Greenpeace, Simon Clydesdale said:

"[The Prime Minister] wants to rob people of their right to stop fracking firms drilling under their homes [despite the fact that] Fracking won’t deliver energy on a meaningful scale for years, if ever, by which time we’ll need to have moved away from dirty fossil fuels and towards high-tech clean power if we’re to head off dangerous climate change."

On the other hand, Marcus Pepperell, (spokesman for Shale Gas Europe), argued that the reform was necessary, saying "We are only able to consider shale gas as a commercially viable energy source because of important advances in modern technology [including] horizontal drilling. Shale gas drilling will be deep underground and far less intrusive than many other energy sources. Utility facilities are far closer to the surface and their facilities can be much larger."


A total of 40,647 respondents replied to the consultation:

That's quite a lot as consultations go. The Government's consultation on Online Services for Vehicles (removal of tax disc and online record updating etc) produced just 49 responses, and their proposals for 'Electricity Market Reform' consultation generated (sorry!) 123 responses.

So to get over 40,000 responses to a consultation about a small (but important) change in the trespass law, is pretty outstanding.

Over 99% of all respondents opposed the proposal to legislate to provide underground access to gas, oil and geothermal below 300 metres.

That means more than 40,240 people opposed the proposal, and less than 407 supported it.

In its attempt to rubbish this inconvenient result, the Government argues that 36,582 (approximately 90% of total responses received) responses from individuals did not address the specific consultation questions the Government had asked. Instead, they gave their views in a more open format ('freeform responses').

A total of 28,821 of these responses submitted one of two campaign texts which did not specifically address the consultation questions; however they all opposed the proposed underground access legislation

(Government further denigrates and isolates these views by referring to them as 'campaign responses').

The Government also says "3,983 responses addressed the three consultation questions (referred to here as 'questionnaire responses'). These are mainly from individual respondents, but this group also includes small businesses, local groups and groups opposed to hydraulic fracturing."

The implication between the lines of this part of the report is that there were really only 3,983 'proper' responses because only these people addressed the questions the Government had asked. (Thus further denigrating the remainder whose views are insinuated to be not as worthy - because they didn't address the government's specific questions, and were submitted in what the Government thought was a campaign.)

The breakdown of the 3,983 - to use the Government's term 'non-campaign' responses in respect of the general question of 'should the Government legislate' was :

  • Individuals 3,753
  • Local businesses 137
  • Anti-hydraulic fracturing groups 54
  • Local groups and organisations 39

So it's not just anti frackers who responded here.

But the news on this 3,983 (which is still pretty big compared with 49 and 123 in other recently closed consultations) is actually almost as bad for the Government.

Hidden in the body of the report is the data you can use to identify the support or otherwise of this group. (The Government didn't want to actually print then numbers, so you have to do a bit of maths to arrive at it, so we've done that for our readers).

They say "6% of 'questionnaire respondents' [by which they mean those who focused exactly on the questions the Government had asked] supported the proposal...."

Doing the maths, that means 3,744 (94%) of this group objected to the proposal whilst only 239 (6%) supported it.

Below these headline results for question 1, we thought some of the more interesting responses were:

  • Individuals: 6% support; 94% oppose
  • Small Businesses: 10% support, 89% oppose; 1% no response
  • Industry: 100% support

Finally, for the general question, there were 82 responses from what Government called 'stakeholder organisations'. This group is defined as those with national or regional presence, representative bodies, public sector bodies, locally elected bodies and also bodies operating in relevant sectors such as oil and gas, energy and law.

These folk also provided off-topic responses from the perspective of their organisation (which the Government seems happy not to distinguish between as it did with individuals) , and [a proportion] addressed the consultation questions. However, 21% of these respondents did not give an answer.

Of those that did respond, 20 stakeholder bodies (24%) said they opposed the proposal and 45 bodies (55%) supported it,

So, like Tony Blair's Iraq war - although admittedly, with less people involved, but with even higher percentages of opposition - there is no popular mandate at all for the Government to make this change, and there is downright opposition to the measure.

So we think we might have been entitled to expect this view to influence the Government that asked for our view.

Not a bit of it.

They said "The role of the consultation was to seek arguments and evidence to consider in developing the proposed policy. Whilst a wide range of arguments were raised and points covered, we did not identify any issues that persuaded us to change the basic form of the proposals."

The sub-text here says - you all answered the wrong question. We only wanted your opinion on HOW we could implement this policy, not WHETHER we should implement it or not.

They also said "Having carefully considered the consultation responses, we believe that the proposed policy remains the right approach to underground access and that no issues have been identified that would mean that our overall policy approach is not the best available solution.

We will therefore put before Parliament primary legislation to implement the policy proposals set out in the consultation paper.

Parliament’s scrutiny of the provisions will provide further opportunities for public engagement on the issues."

In other words, we're going ahead with this anyway.

No. Some amendments have been proposed to the clauses about highways and species and so on, but nothing on shale gas.

The only real decision that has been made is to disregard public opinion which is overwhelmingly against this change in the law.

Readers can follow this link to download a copy of the Government's response to consultation.

This took place at the House of Lords on Wednesday, 18 June 2014.

Baroness Kramer moved "That the Bill be read a second time".

Introducing the Bill she addressed all the existing clauses. We haven't reported these, we have only extracted the comments she made re: shale gas, together with comments from other Lords who spoke to the matter. (The Column Numbers are referenced to Hansard, the verbatim transcript of proceedings)

Baroness Kramer (LD)
Column 841
"....The measures that I have discussed above are on the face of the Bill. In the Queen’s Speech and in other discussions, the Government have however drawn attention to other measures that are not on the face of the Bill at present but may be included by future amendments. These measures have specifically been: enhancing the United Kingdom’s energy independence and security by opening up access to shale and geothermal sites, maximising North Sea resources, and the construction of zero-carbon homes.

A third of UK energy demand is met by gas. If we do not develop shale, by 2025 we expect to be importing close to 70% of the gas that we consume. The Government therefore support the development of our own indigenous energy sources in a safe and sustainable manner. We believe that shale gas and oil and deep geothermal energy may hold huge potential for adding to the UK’s energy sources, helping to improve energy security, create jobs and meet carbon targets. We consider that the existing procedure for gaining underground access to be burdensome and unfit for new methods of drilling. A public consultation on underground access was opened on 23 May and will conclude on 15 August.

Subject to that consultation, future amendments to the Bill would provide companies with access for shale and geothermal extraction 300 metres or more below the surface without requiring individual landowner permission. In return, a payment would be made to the community. As I said, the Government’s consultation on this policy continues until 15 August 2014 and the legislation is entirely dependent on the outcome of that consultation.

I am well aware, however, that some noble Lords are concerned about the potential environmental impact of extraction from shale. The UK has over 50 years’ experience of regulating the onshore oil and gas industry. More than 2,000 wells have been drilled onshore during that time. The Government are confident that the UK oil and gas industry, including shale gas, will continue to be well regulated and any risks, particularly environmental risks, will be effectively mitigated.

The UK oil and gas industry is of national importance; it makes a substantial contribution to the economy, supporting around 450,000 jobs, and had record capital expenditure in 2013 of around £14 billion. Oil and gas will continue to be a vital part of the energy mix as we transition to a low-carbon economy, with indigenous oil and gas production supplying the equivalent of about half the UK’s primary energy demands.

Sir Ian Wood’s independent report in 2014 recommended changes to the recovery and stewardship regime, estimating that full and rapid implementation would deliver at least 3 billion to 4 billion barrels of oil equivalent—more than would otherwise be recovered over the next 20 years. The report, in turn, estimates that this would bring over £200 billion additional value to the UK economy....."

Column 843
Lord Adonis (Lab):
My Lords, I am very grateful to the Minister for explaining the Bill so clearly and lucidly. On this side of the House, I am delighted to be supported on the Front Bench by my noble friend Lord Davies, who will lead in Committee, and by my noble friends Lady Worthington and Lord McKenzie of Luton.

As the Minister recognised in her opening remarks, we face big infrastructure challenges on transport, on energy and on housing in particular. Although the Bill contains some useful provisions, the position, I suggest to the House, is that we have the big infrastructure needs of the country on the one hand, and this Bill on the other. They are like ships passing in the night, except that the Bill is perhaps more like a dinghy than a ship: it is no match for the high seas and, indeed, parts of it do not even exist. We still do not have the clauses related to fracking, and consultations on that issue and important issues relating to the Land Registry and community electricity are still incomplete—some have not even commenced.

The noble Baroness said, if I noted it down correctly, that this legislation is “still being developed”. If I may say so, that is one of the most remarkable statements I have heard from a Minister while introducing a Bill, which the House would expect to be fully developed at the point of introduction. Instead, we have a major heading, “Fracking”, and a long spiel from the noble Baroness about how this will be vital for the future energy needs of the country, but the following pages are blank. With respect, that is no way to treat Parliament or your Lordships. In the vernacular, the Government are legislating on the hoof—or perhaps I should say on the future hoof, as we do not even know what hoof they are going to be legislating on hereafter.

Column 846
On fracking, we do not have the provisions at the moment, as I said, but the Government have put it up in lights. If the intention is to put shale gas production in line with the coal industry, water and sewerage, all of which have access to underground land, then we welcome this in principle. I endorse the potential gains that the noble Baroness mentioned as being well worth securing if it is possible to develop shale gas in this way. But communities need to be reassured about impacts on the environment, including methane levels, contamination of the water table and seismic shifts.

However, the big and immediate issue on energy, whatever the potential long-term gains from fracking, is the need for new power stations. According to a recent survey by the CBI and KPMG, two-thirds of British companies fear that UK infrastructure will deteriorate over the next five years and their most critical concern is about energy. Britain’s supply of electricity is dangerously close to demand. The safety

Column 847
margin of capacity has been shrinking and now stands well below the 20% necessary to ensure against shocks. Thanks to its antiquity and the demands of environmental legislation, roughly one-fifth of existing generating capacity will drop out of the system over the next decade."

Lord Teverson (LD):
Column 849
"Renewable energy will be much more important if communities are able to invest themselves.

That is true of what we hope will come through in the clauses on fracking, with direct community benefit, which will be important. We need to change the trespass legislation to bring it in line with many other areas. I am tantalised by the fact that there is such a positive reaction to geothermal energy, which is also affected by this change in legislation. In the Queen’s Speech debate, I started to ask what else the Government can do to help us kick-start the technology for geothermal energy and ensure there is that legal change. The Minister quite rightly pointed out that it has great potential for us as a country. I agree that fracking is important for our energy security in the medium term in terms of gas provision. However, in moving towards decarbonisation, gas can be only a transition energy source but it can be an important part of that formula, given the major decline in North Sea oil production."

Lord Cameron of Dillington (Crossbencher):
Column 853

"In Part 5, the great unstated provision, we are led to believe, is that of changing the law of trespass to allow for fracking. On the whole, I would go along with the rumoured proposals. I cannot believe that I, as a landowner, should have rights over my land down to the centre of the earth, where presumably I would meet the rights of some Australian landowner coming the other way. There must be a limit to the depth of my ownership and some 500 metres below sea level would seem amply fair to me.

However, as a supporter of fracking, I just say that surely one of the objectives must be to get the locals on side. Taking Part 4 as a model, would it not be a good idea to offer a 5% share issue in a fracking project to a local community? What is good for the goose might also be good for the gander.

Generally, I welcome the Bill and look forward to discussions on the wide-ranging various bits of it in Committee."

Lord Jenkin of Roding (Con):
Column 855

"...Finally, on the question of shale gas, he said that there was a totally blank sheet. He has obviously not read the consultation paper published last May, which sets out a great many details of exactly what the Government want to do, provided that the consultation shows that there is sufficient approval for it. So I was rather disappointed by the noble Lord’s speech. I hope that I am not disclosing secrets, but when we discussed this matter some years ago he told me that the duty of an Opposition was to oppose. I said, “Well, you can’t oppose the high speed rail—you started it all”. Well, we will wait and see.

On the fracking clauses, I was not alone in believing that we would see those clauses in this Bill. Noble Lords will remember that I mentioned this in my speech on the second day of the Queen’s Speech debate. In a somewhat jocular account of the Government’s legislative programme, the House Magazine said that this was going to be called the “drill, baby, drill” Bill. Well, it will be. I am grateful to my noble friend for the letter that she sent me yesterday which said that the House will have an opportunity to consider those clauses once the consultation was complete and the Government could be sure that they would have sufficient support for them. That is one way of doing it. We want to get ahead with this—that is why the Bill has been introduced—and it is perfectly possible, with the notice that has been given, to have the clauses dealt with as they were."

Lord Hodgson of Astley Abbotts (Con):
"My second point is, at this time, a non-point because fracking has not so far appeared in the Bill. However, my noble friend on the Front Bench has trailed it extensively so I take this opportunity to urge the Government, as they consider the whole issue of fracking, to consider at the same time the possibility of establishing a sovereign wealth fund for the UK. Noble Lords will be familiar with the concept of such a fund, whereby a country, instead of spending all the proceeds from the exploitation of a precious and finite resource on immediate consumption, puts some proportion aside to benefit future generations. One could argue that this is akin to an everlasting pension fund for UK plc. "

And with that, so far as fracking is concerned, the Second Reading of the Bill came to an end

Committees undertake the clause by clause examination of proposed Bills and debate amendments to them.

The committee considering the Infrastructure Bill met for six days (July 3, 8, 10, 15 and 17th) with no reference to fracking at all (They were dealing with the existing clauses of the Bill - and could not address fracking trespass anyway because the Consultation had not ended)

But the sixth sitting of the committee on 22 July did make passing reference.

At 4.30 pm they were debating Clause 26: The 'community electricity right', and they were considering Amendment Number 94AA

This had been moved by Baroness Worthington and it was simply that in "Clause 26, page 26, line 7, leave out 'renewable'"

This amendment was intended to relate to community electricity schemes where households joined together to use the power from a specific generation plant.

It was chiefly aimed at plants producing renewable energy, but Amendment No. AA94 wanted to leave that word out 'renewable' so the 'community electricity schemes' did not HAVE to be from renewable sources.

Lord Cameron of Dillington (Crossbencher) said:
"My Lords, I, too, support the idea of community involvement in projects. As I said in my Second Reading speech, I support Amendment 94AA in view of the possibility of local opposition causing projects to fail. Fracking is very controversial. It seems to me that if you could involve the local community in a fracking project in the same way as the Government are trying to do with renewables, it would be very beneficial."

Baroness Verma (Conservative) said
"Amendment 94AA seeks to extend the scope of the community electricity right to include all electricity generation facilities. While the Government strongly support community engagement in relation to the development of all energy projects, we are clear that these provisions should apply only to renewable electricity generation facilities."

She went on to explain why. This was followed by

Lord Teverson (Lib Dem):
"I am absolutely fascinated by the political analysis because I see this as something completely different. I do not know whether what the noble Baroness is saying suggests that this is good or it is bad. I do not think that it is some sort of Conservative move to persuade electors. Let us be quite clear: certain parts of the coalition want to stop onshore wind in its tracks. That is not the case for the whole of the coalition, but for some, and this is not an answer to that. This is a way of making it a positive thing and moving forward the programme of changing some of the ways that it works. This does not seek to give up, it tries to make it something far more workable. There is no greater advocate of wind power in the countryside than I. I revel in the fact that I can see at least 50 turbines from my house, which luckily for me is on the top of a hill where it is windy—but without a turbine.

We know that certain people and communities are quite legitimately concerned about these issues, so this is a way of involving them and giving them part of the benefit of the schemes. I do not think that it is at all cynical. If we could push things further, I would do that as well, but even so the political analysis is wrong. It is a positive development and if it is successful, it will inevitably be rolled out more widely. I agree that there probably are issues around shale, possibly more around exploration than production, but again there is something cynical in this political analysis. We all understand where cynicism comes from, but in this instance it is absolutely wrong. I am not talking about the dynamics of the two political parties which make up the coalition, but the dynamics of the coalitions between different government departments, along with other things. As is the case in all of politics, it is a broad church. This is a solution that will start things off. I want to reject all this cynicism."

Baroness Worthington (Labour):
"I thank the noble Lord for attempting to reject my cynicism. We know that there is an issue with the coalition Government. We know that one department is pushing renewables while another department is calling all the renewables projects in and objecting to them. I do not think that I am being paranoid in saying that there is a problem in the signals being sent to investors in renewable energy projects. It is quite apparent in the statements being made by different Ministers."

Baroness Verma (Conservative):
"My Lords, I apologise. We should move on to the next group. However, I want to clarify that it is healthy to have these debates. The noble Baroness’s own party is also having them. To make this into a political debate is, I think, wrong, because the underlying premise of the noble Baroness’s amendment is what we are all trying to achieve—greater community engagement."

Baroness Worthington (Labour):
"I do not dispute that. I say again that I have nothing against community engagement—in fact, I positively encourage it for all the reasons the noble Lord, Lord Teverson, has outlined. As I said, it clearly helps people to move forward with renewable energy. I am simply saying that this approach is very narrow and that it inevitably puts an administrative burden on to a certain class of developers which does not apply to other developers. That is my concern. I am sure that we will talk about these issues in the next group of amendments. I do not think that I am wrong to express a healthy degree of cynicism and I am glad that I tabled these probing amendments so that we could have this debate. It is now on the record, so let us see how we get on. I am sure that it is something which will evolve over time. I beg leave to withdraw the amendment."

And with that, amendment number '94AA' was withdrawn and the plan was restricted to renewable energy sources.

That was the last meeting before Parliament broke up for the summer recess.

They're going to resume the Committee Stage after their summer holidays.

The seventh day of the Committee's deliberation takes place at 3:30pm in the 'Moses Room' of the House of Lords. (So called because it has a large fresco - 'Moses bringing down the Tables of the Law from Mount Sinai')

Moses on Mount Sinai

The 'Marshalled list' of amendments for this meeting has been published, and it looks as though the meeting will start with a big bang when Baroness Kramer introduces the 'Seventh Marshalled List Of Amendments To Be Moved In Grand Committee' which have been marshalled in accordance with the Instruction of 25th June 2014, for Clauses 28 to 32

Readers can follow this link to see all the seventh list of amendments. (There are just less than 40 amendments to the Bill)

Amongst the list, we spotted, or had pointed out to us by other constitutional anorak readers like ourselves.....

Proposed new Clause 28: “Petroleum and geothermal energy: right to use deep-level land

  1.  A person has the right to use deep-level land in any way for the purposes of exploiting petroleum or deep geothermal energy.
  2. Land is subject to the right of use (whether for the purposes of exploiting petroleum or deep geothermal energy) only if it is

    (a) deep-level land, and

    (b) within a landward area.

  3. But that does not prevent deep-level land that is within a landward area from being used for the purposes of exploiting petroleum or deep geothermal energy outside a landward area.
  4. Deep-level land is any land at a depth of at least 300 metres below surface level.
  5. This section confers the right to use Scottish deep-level land for the purposes of exploiting deep geothermal energy only in cases where the sole, or main, use of that energy is to be, or is, the generation of electricity.”

That's the Coalition Government's stab at the main wording of the new clause.

There are a couple of proposed amendments to it, including a requirement to publish fugitive emissions.

There are other government clauses as well including:

“Further provision about the right of use

  1. The ways in which the right of use may be exercised include

(a) drilling, boring, fracturing or otherwise altering deep-level land;

(b) installing infrastructure in deep-level land;

(c) keeping, using or removing any infrastructure installed in deep- level land;

(d) passing any substance through, or putting any substance into, deep-level land or infrastructure installed in deep-level land;

(e) keeping, using or removing any substance put into deep-level land or into infrastructure installed in deep-level land.

These appear to us to suggest that fracking companies can leave fracking fluid and any installations in land they have drilled under other people's land.

The way we read it at present, it looks as though the fracking company could be granted the right to store any material in such land as well.

Readers will recall an early concern that fracked and redundant wellbores might be used to store radioactive waste. We've no idea if that's what the Government has in mind with these clauses, but we hope it's not.

Another proposed clause gives fracking companies the right to leave deep-level land in a different condition from the condition it was in before an exercise of the right of use (including by leaving any infrastructure or substance in the land).

There are also clauses about the payments scheme and the notice to be given.

Opposition amendments include a requirement for

  • measuring baseline groundwater methane levels for 12 months,
  • an Environmental Impact Assessment,
  • a well-by-well disclosure of the volume and contents of fracking fluid used.

So that, and more, will form the meat of the debate on Tuesday.

We know some of our readers will want to watch it, either as it happens or afterwards. Debates in the secondary committee rooms are not usually put on the Parliament TV channel, so it will probably have to be watched on the internet.

Parliament doesn't use YouTube, or flash player. You'll probably need a Microsoft player called 'Silverlight' installed. Follow this link to go to the MS Silverlight download page.

Once installed, the player should automatically play the Commons webcasts, but it can be picky about Firewalls, and we found we had to turn ours off for the duration of the broadcast.

You can view the webcast live from Parliament TV then choose the day you want the viewing for.

Then choose the bottom right box, for 'Committees' and scroll down to
"3.30pm HoL Grand Committee - Moses Room
Infrastructure Bill [HL]
Committee (day 7) [Baroness Kramer] 2nd and 3rd Reports from the Delegated Powers Committee"

Once it gets to that date and time, live steaming of the debate will start.

If you're looking for 'historic' recordings use the 'Archive' link on the left of the parliament TV page.

With all four parties supporting it, we can be pretty sure it will happen, and we'll be adding it to the 'Dave'll Fix It' list of changes to law or regulations that Government has made to make fracking easier.

That list is growing and it's already quite long. We do seem to be going the same way as Canada, and we'd urge readers to refresh themselves with what happened there in the story told when Jessica Enrst came to Fylde to speak. Follow this link to 'Jessica Ernst v Canada'

We can also be pretty sure the electorate will oppose the move, so the stage is set to increase opposition to fracking still further.


 ~~~~~~~~ DAVE'LL FIX IT ~~~~~~~~

We introduced this panel so show how, in his enthusiasm to support fracking, David Cameron took the first small steps on a slippery slope. He began with saying how important he thinks fracking is, but he's now changing UK law to make it easier for frackers to operate. We expect to record and publish each of his steps as we publish future fracking articles.

However, the list has already grown too big to include it in the web page, so it's now downloadable as a PDF file. So if you want to see some of the legal and financial sidesteps Government has already made to help and encourage fracking in the UK - follow this link to 'Dave'll Fix It'

Dated:  12 October 2014


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