fylde counterbalance logo

search counterbalance

plain text / printout version of this article

countering the spin and providing the balance


Oh Lordy!

Oh Lordy!In 'Fracking in the Lords' we gave the background to the Government's process and intent to change the law of our country to make it easier to trespass under other people's property, and thus clear the path for fracking companies to drill under your land - and even your house - without asking permission.

We said it was fundamentally wrong to make this change.

The problem here is that no political party (apart from the one Green MP - Caroline Lucas) opposes the Bill. The Conservatives, Labour, UKIP and the Liberal Democrats all support it - so it's almost certain to become law.

This Bill began life in the House of Lords, and in the committee stage, (where the Bill is scrutinised line by line), Liberal Democrat Baroness (as was Susan) Kramer proposed the addition of a clause that would dis-apply hundreds of years of settled UK law.

It will specifically dis-apply the law of trespass that presently applies to the land under the surface, and it is this change that will allow fracking companies to drill under people's land and property without getting their permission first.

The Government's reason for doing this is quite clear.

They want fracking to happen

And they want no obstacle in its way.

They do not want anyone - including you and me - to be able to stop, or even to slow down - the prospect of drilling under our land.

At present, if a drilling or mining company cannot agree terms to drill under someone else's land by reaching agreement with the landowner, they must go to court and get a court order to restrict the householder's rights - or they must accept the landowner's decision and not bother at all.

If it goes to court, and a court finds grounds to allow the drilling over the wishes of the landowner, the court can make an order and the driller will get permission, but will have to pay compensation to the landowner.

We believe that's how it should be.

It is a fundamental principle of democracy that executive power over individuals should be exercised by an independent Judiciary

We believe there MUST be court (and preferably a Judge) to determine such matters - and they MUST be entirely separate from the Executive.

But that's all about to be changed.

If the new law comes in, drillers will be able to drill under your land as of right provided the drilling depth is 300m or more. All they will have to do is pay you some compensation.

For a Liberal Democrat Peer to introduce and support this legislation - which removes centuries of our rights at a stroke - tells us a lot about where the Liberal Democrats now stand.

It also shows where the Conservative party stands - it's now the same place as the Canadian Government stands, and if you want to see where that leads, you only need look at brave Jessica Ernst who is taking on the combined might of the Canadian Government in Ernst v EnCana, Alberta Environment and the Energy Resources Conservation Board.

You can follow this link to see our own report of her visit to St Annes. It explains how the Canadian Government has changed the laws to encourage and help fracking companies and work against the rights of individual landowners.

The latest stage of her campaign is an invitation to present her story and make recommendations to governments at the 19th session of the Commission on Sustainable Development at the United Nations in New York.

And you can follow this link to see her own website.

Back in our own House of Lords, during the Committee stage of this awful Infrastructure Bill, Labour did produced a few wishy-washy amendments - one was about making the Government publish its proposals for the measurement, monitoring, reporting and managing of existing and future fugitive emissions. But that was eventually withdrawn when the Government said it would not agree.

Labour's Lord Whitty proposed the establishment of one or more contingency funds to be paid for by the industry. These funds would available to "meet the cost of unforeseen damage to the environment or economic damage to any person or persons arising from the operation of oil or onshore gas activity."

Great Idea.

At present there's nothing to stop a drilling company creating a subsidiary, passing ownership of a clapped out drilling complex to it, and then that subsidiary declaring itself unable to meet the costs of restoration and voluntarily going into liquidation.

It could equally say it was not able to meet an award of damages or the costs of a court case against it where someone's house or property has been damaged by the fracking process.

So what did the Government do with this amendment?

It said 'No Way'.   And Lord Whitty withdrew it.

We seem to remember our MP taking on board the concerns of his constituents in this regard.

He held a Shale Gas Panel meeting in St Annes where the Friends of the Earth read out a letter suggesting that one of the major insurance companies had said they would exclude damage from shale gas drilling from household insurance policies, and it fell to Cuadrilla to say that they had substantial insurance to try to ease public concern.

What they had to say on the matter really didn't ease the concern of anyone at the meeting at all. We said at the time, "We believe this is a matter that needs addressing by Government. There was great deal of public distrust evident from the audience."

We also said "It [the meeting] will have shown Mr Menzies the strength of feeling more clearly than he might have seen to date, it showed that the insurance risk is something that needs more consideration, and it did give some local people the opportunity to ask questions and for us all to hear what the regulators had to say."

Perhaps this is a matter he will raise himself when the Bill gets into the House of Commons in a few weeks time.

Labour's Baroness Worthington tried to get an amendment in that would require operators to undertake studies and records of the baseline levels of methane in the groundwater over a 12 month period before they could do any work, but again the Government set its face against the amendment and she withdrew it.

She also tried to get another amendment that would have required both an Environmental Impact Assessment, and the well-by-well disclosure of "the composition of any hydraulic fluid to be employed; and the quantity of such hydraulic fluid to be employed" Again, this met the same fate as her other amendments and was withdrawn.

Another of her amendments proposed that the levels of methane in the groundwater, ecological studies and surface water had to be conducted for 12 months before work began and continued throughout the term of the work was also refused by Government and withdrawn.

Another amendment sought to create a Sovereign Wealth Fund to put half the Government's income from the fracking into. That too was turned down and withdrawn.

Baroness Young (who is not a member of a political party) proposed an amendment to get areas such as World Heritage Sites; Special Areas of Conservation; Ramsar sites; Special Protection Areas; National Parks; Areas of Outstanding Natural Beauty; Sites of Special Scientific Interest; and Nature Reserves excluded altogether.

She said "The Committee will understand why I am concerned about the impact of shale gas extraction. There is a significant land take. The sites last for as long as 20 years. There are about 120 well pads per site. The impacts are well beyond the immediate site of entry into the substructure for extraction.

There are issues such as water stress, and a recent AMEC report showed that up to 25,000 cubic metres of water per well could be required.

That is not just about the abstraction of clean water, which already has many competing demands from human beings, wildlife and other uses, including industrial use, but results in waste water that has to be disposed of. We certainly do not have the waste water capacity to do that.

There is water stress and water pollution. We have to be aware of the propensity to spills. The fluids used for extraction can pick up toxins, heavy metals and radioactivity from existing substances in the substructure."

This was another good proposition. But the Government spokesman said they would not agree that amendment, and she withdrew it - just as everyone else had done.

The only amendments to succeed were those proposed by Baroness Kramer herself who - in particular - moved an amendment that gives fracking companies the right to:

  • install infrastructure (pipes etc) in deep-level land (300m or more down);
  • keep or use, it there;
  • pass any substance through the land or their buried infrastructure
  • put any substance into the land or their buried infrastructure
  • keep, use, or remove any substance they or someone else has put into deep-level land or into infrastructure installed in deep-level land.

Her amendment also proposed "The right of use includes 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)."

In short, what this means is that a fracking company can drill under your house and install pipework. They can insert a range of chemicals, some of which are toxic, and set off explosive charges just 300m below the surface to frack the geology, and they can simply seal over the end of the pipes and leave them there forever, with the concrete and steel pipe casings rotting and breaking down over time to leak the contents into the land beneath your property.

Worse than that, if you read it carefully, it effectively allows underground waste dumps to be set up and it permits the injection of *any substance* (and that's the wording Baroness Kramer proposed) 300m under your property.

We recall hearing someone in the early days claim there was a possibility that the Government was eying up redundant drilling shafts as potential storage facilities for radioactive waste. We dismissed it at the time as being fanciful. Now were not so sure with amendments like this being proposed.

And that was how it ended. The LidDem / Conservative coalition steamrollered the Bill through with the wording they wanted.

If you would like to see the verbatim transcript of the debate on this matter, it's available from the House of Lords Grand Committee Hansard of 14th October 2014

Readers can also follow this link to see the revised version of the Bill (as it was amended in the House of Lords Committee stage).

The bit about the right to drill under land without permission (the 'deep drilling' provision) is now at Page 38, and runs from clauses 32 (Petroleum and geothermal energy: right to use deep-level land) to 39. But the nitty gritty is mostly in clauses 32 and 33.

The next stage starts on Monday, when the Bill (as amended in the Committee stage) is presented to the full House of Lords for it's 'Report Stage' Reading.

At this point, their Lordships can propose further amendments to the Bill and make changes.

We had hoped the amendments that were withdrawn in the Committee stage might be raised again when the whole of the House of Lords was considering the matter, but that doesn't look likely because today, the Government published its 'Revised Marshalled List of Amendments", and there's nothing much in there except an incredibly complicated new Clause about 'Renewable heat incentives' from the Government (which doesn't seem to have anything to do with the 'deep drilling' clauses).

Three days have been set aside for debate on this bill by the House of Lords (November 3, 5 and 10). That's probably because the bill includes a lot of (apparently unrelated) other matters as well as the Deep Drilling provisions, and most of the discussion is going to be about changing the Highways Agency into a separate, independent body (presumably as a prelude to selling it off to the private sector in a few years time).

Whether there will be further amendments to the 'Deep Drilling' parts as the three days progress, we don't know, but we hope to keep our readers informed of the progress of this awful piece of legislation.

After the three days debate, the Bill will be reprinted (with the final amendments incorporated) and, on 19th November, it will be presented once again to the House of Lords for what's known as the "Third Reading.'

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

When the Bill clears the Lords, it moves to the House of Commons - where the whole process begins again with First and Second Readings, then a Committee stage with the prospect of more amendments, then a Report stage which can also make amendments, before it's final Third Reading in the Commons.

This passage through the Commons is where MPs come in, and we expect we might see some representations and amendments proposed by the people's elected representatives.

We'll bring readers that story when it happens.

Finally, our Readers know we're implacably opposed to this change to the existing law of trespass, and we've already made our views know to Government.

If you agree, and want to make your views known, there are currently three ways this can be done.

Firstly Greenpeace have a petition you can sign which opposes fracking altogether, and you can sign that.

There is also an e-Petition on the Government's website to request amendments to the infrastructure bill, to stop energy companies from being allowed to drill under your property without your consent. Its author says:

"I am extremely concerned with the Government's decision which is pending a consolation to propose within the infrastructure bill, a law which would make it possible for energy companies to drill for gas and oil under people's homes and land without their consent.

Public opposition to these plans is estimated at 74 per cent so the Government lacks a popular mandate to institute this change.

According to a YouGov survey published on the 6th of May 2014, 73% of Tory and 70% Lib Dem potential voters believe energy firms should be required to have permission.

Only 13% of respondents said energy firms should not be required to have permission.

This law would priorities the interests of big business over the rights of ordinary citizens, their properties and the protection of the environment.

I am strongly opposed to these elements of the bill and request these elements of the bill to be amended."

This e-Petition is not yet well known, but word is spreading about it. You can follow this link to sign it

Thirdly, you can contact your MP at the House of Commons and ask them to argue for the removal of this measure.

Just Google your MP's name, or if you're not sure visit 'They Work For You' and enter your postcode to find the details.

We expect to bring our readers more on the Infrastructure Bill as it unfolds.

Thanks also to an eagle eyed reader, we have another piece of legislation coming up on our radar. The Government proposes to change the way Judicial Reviews can be brought. Here again it proposes a curb on our right to use the independent Judiciary to review and determine the validity of Government decisions, and it will make things easier for fracking companies to operate. We'll bring more on this shortly.

Dated:  1 November 2014


To be notified when a new article is published, please email