This article looks at how the State and its emanations - both in
Canada and the UK - have, and are still, ducking and diving within their legislative and regulatory regimes in order to steamroller their shale gas extraction proposals over
It picks up from the end of 2015 and updates our readers on some of the most significant ducks and dives of late.
It also introduces an important (and probably related) matter that we have not looked into before - the direction that several aspects of the Government's anti-terrorism
'Prevent' strategy are taking, and about what seems to us to be 'mission creep' in its scope.
To our way of thinking, the scope of 'Prevent' seems to be stretching
to cover matters much wider than what we would call terrorism, and it might now encompass being involved in opposition to fracking.
We find this very worrying.
We begin with some Background about the situation in Canada which is running a bit ahead of the UK in this matter, and might point the way for the
our future. Next we look at changes made in Previous UK legislation, before moving to More recent Changes.
These include the new National Planning Policy Framework, and how that sets out to Accommodate Fracking, how it sets
out to 'divide and rule' by Separating the phases for planning decisions, before we consider some confusing wording about
Checking on the Regulators.
Next, we look at some Reports about fracking that have been kept secret by the Government, before considering whether the shale gas exploration phase
should be classed as 'Permitted Development (on which Government is currently consulting), and we look at what the terms 'Non-Hydraulic Fracturing,' and
'Permitted Development' mean before looking at this matter in more depth.
Finally in the update part of the article, we look at the other consultation the Government currently has running, i.e. whether planning decisions on the production phase for
shale gas ought to be removed from councils and placed within the Nationally Significant Infrastructure regime.
But before we finish, we have another very significant matter to address. It has risen to prominence because of a
Dreadful Misjudgement. made by an organisation who wrongly said that anti-fracking campaigners had been 'grooming' a 14 year old, and the authorities had involved the boy in
part of the Anti Terrorism 'Prevent' programme.
We first Introduce the matter, then consider a Report about preventing Terrorism, called 'A Shared Future'
before looking at what the Government's Prevent Strategy involves.
We then look at the Maelstrom that encircled the report when it was published, and at Reaction to it, before
giving Our Own Take on the underlying issues.
We ask: What is a terrorist and an extremist, before looking at the work of an organisation
called Netpol, who have been Asking questions about how many anti-fracking campaigners have been referred to parts of the 'Prevent' programme,
eventually Using the Freedom of Information Act.
When their request for information was refused by both the state and the Information Commissioner, they appealed to A Tribunal who Agreed with Netpol's claim and found in their favour'.
Finally, we look at What has happened since, before concluding with some of Our own concerns on this matter.
In several of our previous fracking articles, we have referred to Canadian scientist Jessica Ernst's first visit to St Annes in 2013 - where she spoke about her experiences
with the fracking industry and emanations of the Canadian Government.
We found her talk one of the most shocking and disturbing meetings we had attended.
Here was a mature, self reliant, intelligent woman. A trained scientist, whose life had been taken over, turned upside down, and was being consumed, because she tried to
stop the environment around her farm being damaged by the fracking industry.
We listened with incredulity as she described how emanations of the state had used all manner of chicanery to prevent her from seeking redress.
We documented some of her story in 'Jessica Ernst v Canada'.
When she spoke to the St Annes meeting, she showed how her water supply - which in her case was a well
on her land in Alberta - had become so poisoned from various fracking
processes that she had to drive a pickup truck with a drinking water tank on the back to another district of Canada in order to have drinkable water at her home.
That's a bad enough situation in which anyone might find themselves, but our greatest shock was how various state and government bodies had reacted to, and had treated her,
when she tried to seek redress.
After evidence she had assembled discredited a Regulator, the Government changed the Regulator's name to make it look like a different organisation.
Later it gave the Regulator immunity from prosecution (yes really!) to prevent anyone else from doing what Ms Ernst had done.
She spoke of gagging orders being imposed on her neighbours whose claims for damages had been settled for cash.
When she complained to the Regulator about the noise from the drilling site, the Regulator changed the noise limits.
Eventually, the Regulator instructed their staff to avoid any further contact with her.
Whenever she had exposed something that was wrong or inappropriate, regulations (and even laws) were changed so as to sidestep the problem
She became widely known for her accurate critiques and, eventually, she sought legal redress for the damage.
After serving the legal papers, she was visited by the Royal Canadian Mounted Police - to whom the Regulator had complained and asserted she was a terrorist.
At one point she was arrested.
She also had visits from the Canadian Secret Service in this regard which, she said, felt like intimidation.
In time, a judge was appointed to hear her legal challenge which was to be held locally.
The Regulator objected to this, and said they would claim their full costs against Ms Ernst.
The judge asked Ms Ernst's legal team for a shorter statement of claim. Ms Ernst agreed to do this, only to find the Regulator then demand that her full claim be removed not
only from the case, but from the public record. Thankfully, the judge did not allow this.
The Regulator then made an application to move the case to a court some distance away in Calgary.
Although the judge said she thought it should be held where the harm had
been done and where local people lived, it was nevertheless, moved to Calgary.
Ms Ernst said the Regulator wanted her case thrown out because, she said, they asserted they could infringe her constitutional rights because they regarded her as a
She said they made and filed that claim of terrorism in court papers without any evidence to support it, and even though she had a tape recording of them saying they did not
consider her to be a threat.
But it shocked Alberta to the core that the Regulator stated in a legal brief that she was a terrorist.
The use of this term was shocking to us as well.
But in reality, it hinges on how Governments and courts define 'Terrorism' and it's supposed precursor; 'Extremism.'
She is absolutely anything BUT a terrorist. Nor is she an extremist. She is a trained and very able, articulate scientist who understand how to cogently argue a case from
assembling the evidence.
However, the attempt to define her as a 'terrorist' has now found echoes in the UK, because it might now be happening to people here - as we will show later in the article.
Back in Canada, and in a surprise move for Ms Ernst and her legal team, the Judge who had been hearing her case was removed from doing so when she was promoted to Canada's
Court of Appeal.
Ms Ernst then attempted to re-commence her 2007 suit against the Alberta government, Encana and the regulator, for negligence over the contamination of local aquifers near
her home, which she alleged had been caused by hydraulic fracturing of shallow gas wells in 2004.
Various situations and measures arose to frustrate her endeavour, some of which we reported in our Fracking Update
Chief amongst these was a major setback when the Supreme Court of Canada ruled that Ms Ernst could not sue the powerful and controversial Alberta Energy Regulator (AER) over
alleged violations of her Charter rights.
Her lawyers had argued that no regulatory body (such as the AER) had the right to block citizens from seeking remedies for violations of their fundamental Charter rights,
and that no citizen should be unfairly silenced by Canada’s energy boards.
The ruling - with five judges against her and four supporting her - was a big setback, and has implications far wider than her individual case.
The majority view - led by Justice Thomas Cromwell - had upheld the validity of an immunity clause that had been passed by the Government that specifically protected the
Alberta Energy Regulator from any Charter claims or lawsuits.
The five justices majority group concluded that such immunity clauses were in the interests of what they termed 'good governance' saying:
“Opening the Board to damages claims could deplete the Board’s resources, distract it from its statutory duties, potentially have a chilling effect on its decision making,
compromise its impartiality, and open up new and undesirable modes of collateral attack on its decisions....”
The four dissenting Judges said:
“We see no compelling policy rationale to immunize state actors in all cases, including where, as here, the impugned conduct is said to have been ‘punitive’ in nature,”
“To be precise, what Ms. Ernst alleges is that the Board, far from exercising an adjudicative function, effectively sought to punish her by barring access to those functions
so long as she continued to criticize the Board in public.”
The Alberta Energy Regulator's press release following this decision noted the court had recognized “that permitting the claim would hinder the AER’s ability to carry out its
statutory duties effectively and in the public interest.”
Soon after this, new legislation from the Government removed the “public interest” aspect of the AER’s mandate, and it became a corporation largely funded by industry.
In effect what had happened here, was that although Canada's 'Charter' guarantees everyone the right to an appropriate and just remedy if their constitutional rights are
violated, a majority of the Court had said that the Government could legitimately prevent people from claiming damages from some organisations - in this case the Alberta Energy
Regulator - irrespective of whether they had suffered damage or not.
The regulator was, in effect, immune from prosecution in this regard.
George Orwell would have recognised the circumstances in which all people had equal rights - but some people had more rights than others.
Readers might think we've spent a lot of time on this background (and we have), but we think it's really important.
When we first heard Ms Ernst, we struggled to believe what she was telling us.
We simply couldn't believe that a country like Canada - with a legal system based on our own common law and a culture that is probably even more liberal than our own, could
be so antagonistic to, and difficult with, an individual citizen.
We were fortunate to know the organisers of the St Annes event at which Ms Ernst spoke, and they kindly arranged for us to have a short private discussion with her.
We found her entirely believable and she quite understood our difficulty in believing she had suffered as she did, because she had absolutely not expected to find herself
in that situation.
We were shocked, but we didn't think it could happen here in the UK. That said, we came away from her meeting very troubled.
We have followed her story on and off since then, and have only seen 'more of the same' for her.
We should make it clear at this point that we're NOT saying her experience of the fracking itself is directly comparable to that in Fylde. It isn't. Her water all came from
wells. Around 90% of ours comes piped from reservoirs and treatment works. Her problem was shallow fracking, and ours is deep fracking (at least at present). So we fully accept
that the Albertan gas extraction situation she experienced is not at all directly comparable to Cuadrilla's operation.
But what is directly comparable is the increasingly arrogant and assertive line flowing from both the Canadian and (now) the British Government (and their emanations), in
order to secure what they see as the economic benefits of shale gas extraction.
In short, what we have seen is both the Canadian and the British Governments making specific legal and regulatory exceptions for this new industry of unconventional onshore
The effect and purpose of these exceptions is to better shield the industry from the traditional and long held freedoms and protections that have been built into our laws.
PREVIOUS CHANGES TO UK LEGISLATION
At the end of our article June 14: Fracking Update
we began a list which we rather cheekily called 'Dave'll Fix It' which we intended to be published at the end of each fracking article.
The aim was - having seen the Canadian path in this matter - we wanted to document and record of all the legislative and similar changes that the UK Government - led at that time by David
Cameron - had made, in order to ease the path for, or otherwise benefit, the emerging fracking industry.
We started the list in June 2014 but went back to changes made since 2012 to begin the list. And we added to it as time went by.
In just one month, (by 24 July 2014) it was so long we had to move it from the end of our fracking related articles and put it into a separate document that was just linked
from the article.
By Version 5 (in November 2015) it had grown onto its third page.
At that time, the Government's controversial 'Infrastructure Act' had overturned centuries of common law precedent that gave landowners ownership of the land they owned
at the surface of the planet and its subterranean land in a sort of 'cone' shape, down to the centre of the earth.
The Government's new Act allowed companies to deep drill under the land you owned without seeking your agreement or a court order.
It was also around the same time that the Secretary of Stare for Communities and Local Government declared Cuadrilla’s planning appeals were of such major importance, and
they raised such novel issues of development control and legal matters, that he would take the final decision on Cuadrilla's appeals (which were against LCC's refusal of
Planning Permission) himself.
So, reluctantly, we recognised that Ms Ernst had been right all along, and the British government had decided that come hell or high water; irrespective of the evidence, and
irrespective of established law, it would have fracking in the UK, and it would do whatever was necessary to make that happen.
It had become clear to us that, like Canada, the UK Government was equally prepared to change the law and re-interpret regulations whenever there was need to do so in order
to prevent circumstances that might hinder fracking.
That being the case, we also recognised that maintaining the list we had called 'Dave'll Fix It' had become pointless, so we stopped doing so. Readers can
follow this link
to see the last list we published
The remainder of this article chronicles some of the more recent and major milestones along the Government's path to support fracking, and it concludes with what we regard as
a very worrying instance of an official report that intentionally set out to misrepresent the true facts of a case which it said involved anti-fracking activists 'grooming' a
14-year-old boy, and which publicised the steps that were taken to counteract this alleged grooming, using legislation introduced under the prevention of terrorism banner.
RECENT MAJOR CHANGES AND MEASURES
NEW NATIONAL PLANNING POLICY FRAMEWORK
In spring of 2108, the Government published the draft text of planned changes to its national planning guidance to local authorities.
In effect, it sought to change substantial sections of the National Planning Policy Framework (NPPF), and it asked for responses to the proposals.
Regular readers will know we have little time for this system of 'loose leaf' planning where the guidance is published and amended online.
Government guidance is the de-facto 'planning of last resort' that overrides all other local plans and all planning decisions (except those which may be subsequently ruled
out of order by the High Court).
All Local Plans must conform to the NPPF, but local plans are typically published with an intention of 10, 20 or sometimes 30 years duration. Their whole point is to provide quite a degree
of certainty about what will and will not be permitted in terms of built development for a significant period.
When the first version of the NPPF was introduced in 2011, it rode roughshod over, and replaced, years and years of accumulated expert knowledge and best practice that had
set out evidence-based decisions on the best way to plan and regulate development.
The Government replaced this with the NPPF's version of short-term politically driven dogma and electoral expediency that was designed to suit the needs of the Government of the day,
not the country.
In our view it represented Government meddling in local decisions, and meddling that was of the absolute worst order.
In July 2011, the widely respected Sir Simon Jenkins, Chairman of the National Trust, wrote at the time:
"With parliament in recess, the government this week sneaked out the most astonishing change to the face of England in half a century. A "national planning policy
framework...... [it] replaces all previous regulation and encourages building wherever the market takes it, crucially in the two-thirds of rural England outside national parks,
green belts and areas of outstanding natural beauty.... will be at the mercy of a "presumption in favour of sustainable development". The "default response" to any planning
application is to be "yes"."
We invite our readers to ponder how on earth it can be that the 2018 overhaul of the NPPF - only 6 years after it was introduced - is a sensible move, when the previous NPPF
has been incorporated into plans that were intended to cover a period of up to 30 years like the one that Fylde is about to deliver?
Alice has re-entered Wonderland.
We will be taking a closer look at the new NPPF in the round in a future article, but for the time being readers might like these few nuggets....
- Fylde's Local plan - which is just about to be published after ten or more years gestation - will NOT have to be altered to take account of the new NPPF.
- But as far as we can tell (at least at present), planning decisions that are taken by Fylde Council WILL have to conform to the new NPPF
- It follows that in many regards, if Fylde's emerging Local Plan is not updated, aspects of it will be rendered redundant and irrelevant by the new NPPF.
- That said, we're told the final rules on how to calculate housing requirements for any given area will not be published by Government until later this year (possibly
October or November), but planning applications are still having to be considered at Fylde until then, with no-one clear about what housing numbers should apply.
- Worse: Any planning appeal made by a developer against a refusal of planning permission by Fylde (or any council) will have to be judged against the NEW guidance in the NPPF
- (with which, incredibly, Fylde's - almost ready - Local Plan does NOT have to comply). So the new NPPF has, in effect, declared emerging local plans redundant where they
differ from the new NPPF.
What a nonsense this is.
Just imagine the difficulties that this stupidity is causing - for example, to our friends in CAPOW at Wrea Green who are in the middle of four enormous planning appeals at
the present time, and where all the evidence has been presented and heard by the Planning Inspector who WAS working on a decision on the appeals.
But because of the new NPPF announcement, all the parties to the appeals (including individual residents and out friends at CAPOW) now have to re-examine what they said or
presented to the recent inquiry, to see whether the arguments they advanced are still compliant with the new NPPF, and whether any of the changes to the NPPF require new or additional arguments to be made.
Depending on how this goes, and how much has changed, we wouldn't altogether rule out the prospect of re-opening those appeals.
It is complete planning shambles, and we expect to have more to report shortly on the wider implications of the NPPF....
But whilst the headlines and short tweets about the new NPPF will probably all be about the big items (notably Green Belt vs Housing Development), in terms of the impact on fracking,
parts of the new NPPF do make differing demands on Mineral Planning Authorities (like LCC).
Unhelpfully, the Government published its first draft of the NPPF (literally) whilst the Communities & Local Government Select Committee was seeking public and expert
comments on planning in relation to fracking.
Although Government said they would still welcome the Select Committee's views and comments, and would set a long consultation period to enable that to happen, the
impression they had created was to cut the legs from under the Select Committee by saying, 'You say what you like, but this is what we're going to do'.
So much for 'evidence-based' planning then.
From what we can see, the final draft of the revised NPPF (published after the consultation concluded in July 2018) has not changed the wording of those parts of the earlier
consultation draft of the revised NPPF so far as fracking. is concerned.
This shows that none of the consultation responses the Government received regarding fracking has caused any change to their wording.
We also noted that, like the original NPPF, this final draft was - once again - published on the day Parliament broke up for the summer recess, meaning that Parliament is
not active and able to question and hold the Government to account on this matter.
Assuming no further changes are made to the revised NPPF, Local Plans (and the Councils that are responsible for Mineral Planning (like LCC)) will, in future, have to
the following section-headings below are our own):
Accommodate and Support Fracking
'Recognise the benefits of on-shore oil and gas development, including unconventional hydrocarbons, for the security of energy supplies and supporting the transition to a
low-carbon economy; and put in place policies to facilitate their exploration and extraction;'
We've see this sort of wording used before - notably when Government told councils they must assume that the various so-called 'regulators' who engage with the fracking
industry would do their work properly (i.e. Councils should not try to decide what weight to give what the Regulators have said, they should take it as 'gospel truth').
The underlying logic of adopting this sort of approach would have us believe that it is OK to use flammable cladding on tower blocks, or, more especially - and from our own
experience - that the useless Environment Agency was a fit and proper body to regulate the effect of the fracking industry on the Environment.
Our readers will know we do not believe this to be the case. Their Environmental Permitting scheme is being used as nothing more than a license to pollute -
as our last
article showed. But the Government guidance effectively says councils should disregard evidence of failure or inaction on the part of a Regulator and assume that the useless
Environment Agency (or whoever) is always right.
Furthermore, the phrasing that has been used in the revised NPPF sets out to require Local Authorities to follow current government policy to support fracking.
It tells them to recognise the benefits, yet and fails to offer any weight to consideration of the disbenefits.
Planning is, if anything, about weighing the pros and cons of development proposals. This wording in the new NPPF urges only support, and specifically identifies fracking
('unconventional hydrocarbons') as something Councils will have to view with through rose tinted glasses.
In future, it will be more difficult for mineral planning councils like LCC to refuse fracking applications.
Separately Consider Development Phases
'When planning for on-shore oil and gas development, clearly distinguish between, and plan positively for, the three phases of development (exploration,
appraisal and production);'
Whilst this seems innocuous, what we think it really means is....
Firstly, that councils must distinguish between, and separately consider, each of the exploration, appraisal and production phases associated with fracking.
The effect of this is that (for example), at the exploration and / or the appraisal (test fracking etc) stages, councils and planning appeals will be prohibited from taking
account of the likely impact that (say) large numbers of drilling sites would bring to their area in a (later) production phase regarding traffic, character of the area, visual
amenity, tourism and so on.
They will only be allowed to consider the merits of the one or two (or whatever small number of) sites that are contained within in each application.
This makes it impossible for planners and inspectors to take account of the eventual effect the industry might have in their area.
Or indeed - as readers will recognise - if the exploration phase causes a problem, and you have to restart your 'perception clock' for subsequent phases, it will no
doubt be argued by industry lawyers that Councils and Planning Inspectors may not take account of what has gone wrong in the past when considering only a subsequent phase.
It is really another overt measure of support by a Government that unreasonably constrains what the designated Mineral Planning Authorities - local councils - and Planning
Inspectors might consider; and it is plain wrong.
Secondly it - literally - requires local councils to be positive about fracking, and to approach their local plan making with the same imbalanced eyes with which the
Government views fracking.
Checking on the Regulators?
'When determining planning applications, minerals planning authorities should ensure that the integrity and safety of underground exploration, extraction
and storage operations and facilities are appropriate, taking into account the maintenance of gas pressure, prevention of leakage of gas and the avoidance of
We really couldn't fathom this at first.
In one breath the Government has told Council Planners and Planning Inspectors that they must assume the Regulators will do their job properly and Councils may not try to
'second guess' what the Regulator ought to do.
Yet in this breath they are saying the exact opposite.
Given that this is the latest guidance to come out from Government, (and perhaps, like the Army, you have to obey the last instruction) it might mean that Government has now
abandoned their earlier guidance about regulators being 'infallible' - or it might simply be incompetence on the part of Government and they haven't noticed that in their 'dash
for gas' they are contradicting themselves.
But we suspect the most likely possibility is that they intended this provision to apply only to 'conventional' extraction and mines (like coal mines).
If that is a correct interpretation, then it serves only to highlight the extraordinary measures to which Government is going to support the fracking industry against local
public opinion by telling councils not to second-guess the regulators!
If that is not the correct interpretation, then the Government might just have created more trouble for themselves than they bargained for.
And before we leave the NPPF, we have another two quick points to make
Firstly, three local councillors (Miranda Cox, Julie Brickles, and Dawn Ansell) have just written an open letter to the Government to complain of actionable environmental
breaches (bringing the total to six this year) regarding waste management and control. The breaches were said to have taken place in April 2018 but the Regulator has only made
them public this week.
The trio further draw attention to the lack of a published emergency and evacuation arrangements plan for the site - to be enacted in the event of a serious wellhead event such
as an explosion. They say
'....we have been advised to “trust” plans are adequate. Given that Cuadrilla have breached environmental conditions already, we cannot trust their processes and safeguards.
We have no confidence in the power of the Regulators.'
In some instances, such plans are known to cover evacuation arrangements within a 3 mile radius of the site.
Readers can follow this link to download the full open letter.
Secondly, we remind readers that, as we said earlier, we expect to do a broader view of the other important aspects of the new NPPF in a future article.
REPORTS BEING KEPT SECRET
In March, journalists at 'Unearthed' (which is Greenpeace's UK journalism project) reported that the government was refusing to release an internal 2016 report called
'The Implementation Unit Report on Shale Gas' which set out the prospects of shale gas,
for fear that it could 'call into question the industry’s viability'.
After the unpublished report’s existence had been revealed by 'Unearthed' in Feb/March 2018, the government conceded that its figure of 155 wells by 2025 was now considered
‘out of date.’ But it also rejected a freedom of information request for further information, saying:
'There is a real risk that if the withheld information were released, then despite the passage of time since the report was written, it could still have an adverse effect on
commercial organisations’ engagement in the market.'
Readers will also remember the earlier scandal that saw a secret Government DEFRA study on the effects of fracking on the rural economy - impacts which included the prospect
of lower house prices - had to be called for under the Freedom of Information Act, and even then was then it was first released with significant redactions. This piled on the
pressure for an unredacted version. We covered this in our January 2016: Fracking Update
So far as we are concerned, the content of these reports is what it is. But the act of concealment for both of them has but one intention, and that is to keep information
that would damage the Government's support for the fracking industry out of the public domain.
In what we regard as an absolutely disgraceful statement, the Cabinet office is reported to have said
'It is not inconceivable that officials and ministers could become much more conscious of public opinion and thus more circumspect when expressing
their views and considering options for fear of how the public might react. That would not be in the public interest.
When governments withhold adverse information from what is a legitimate public debate, they not only insult those who elect them, they seriously damage the credibility of
the democratic system within which they operate.
And as we're sure our readers will recognise, this is EXACTLY the sort of driver that has led to several out-of-touch Ministers and Civil Servants being horrified at what
they disparagingly refer to as 'populist uprisings' across the world.
These people really are taxi drivers in the world of Uber.
If they're not able to negotiate the change that's coming, disruption will quickly be upon, and will overwhelm, them.
On 24th July, (as was widely expected) the Government gave the separate written permission that was needed to do the actual fracking operation at the Preston New Road site.
The timing of this is noteworthy. Once again, it was just before Parliament broke for the summer recess when MPs were not in a position to debate it in Parliament.
It was another good day to bury what some see as bad news.
But on what we believe to have been 23rd July 2018, the Government also published a report called 'Potential Air Quality Impacts of Shale Gas Extraction in the UK'.
Its preface says:
"This is a report from the Air Quality Expert Group to the Department for Environment, Food and Rural Affairs; Scottish Government; Welsh Government; and Department of the
Environment in Northern Ireland, on potential air quality impacts of shale gas extraction in the UK. The information contained within this report represents a review of the
understanding and evidence available at the time of writing (2015)."
So this report - regarding the vitally important matter of air quality around fracking sites - had been kept out of the public domain for something like *three years* -
whilst the Government's own Planning Inquiry into the Preston New Road site heard arguments on this very matter for ages and ages, but were denied access to the contents of
this report - because the Government had kept it secret.
It's no surprise that folk in these parts are angry it was published the day before (or on the same day, we're not exactly sure) that fracking at PNR was given the go-ahead.
Both happened as Parliament broke for the summer recess, stymieing debate.
We see similarities between this (i.e. the Government knowingly and intentionally keeping reports containing damning information away from the Public Inquiries that they
themselves set up via their own Planning Inspectorate to consider the pros and cons of the PNR and Roseacre applications), and those cases where the Police and CPS failed to disclose facts that
were detrimental to the case they wish to prosecute - both of which resulted in trials being abandoned and severe criticism of the prosecutors for their failure to disclose.
All Planning Inquiries are based on the full pre-disclosure of information in evidence (submitted in advance of the Inquiry). But that can never be the case when the
Government is keeping a crucial part of the evidence secret because it damages their case!
In response to the release of this Air Quality Report, Dr Barbara Kneale MB ChB, MRCGP ,MFOM,BA Hons (distinction), and Dr Francis Paul Rugman MB ChB, MSc (Distinction) FRC
Path, FRCP (London) (Retired Consultant Haematologist) have sent an open letter to the Rt Hon. Claire Perry MP, Minister for Business, Energy and Industrial Strategy on 7th
Readers can follow this link to download a copy of the Open Letter, but in essence it claims that the only conclusion that can be drawn from the Air Quality Impacts of Shale
Gas Extraction report is that that the Cuadrilla site at Preston New Road 'will be used as a prospective observational study to monitor emissions of toxic chemicals, known to
adversely impact human health'.
Some commentators have said the situation has turned local residents into guinea pigs.
The letter concludes:
'We believe that PHE should consider all the high-quality evidence since 2014 and update their report as a matter of urgency.
We believe there should be an immediate moratorium on fracking until a transparent review takes place to evaluate all the health, safety and
Prohibiting the development of an industry that is potentially so harmful to the health of close residents, that has doubtful economic viability and runs counter to the
direction of the necessary transition to renewable energy, should be regarded as a reasoned and sensible decision'
The letter was picked up by the BBC news on 10 August and they quoted a Government spokesperson as saying:
"Shale gas has the potential to be a new domestic energy source, further enhancing our energy security and continuing our transition to a lower-carbon economy.
"The UK has world-leading regulation to ensure that shale gas can be explored safely and ensure there is no risk to public health."
So we ask the Government: if that's the case, why did you fail to publish the report so as to better inform the Planning Inquiry decisions at Roseacre and Preston New Road in
PERMITTED DEVELOPMENT FOR FRACKING?
In a another move that we regard as a blatant attack on the planning process in order to force fracking on an unwilling local community, the Government launched another
consultation on whether what it (misleadingly) calls 'non-hydraulic fracturing shale gas exploration development' should become 'Permitted Development' within the planning
This move was telegraphed in a Joint Ministerial Statement from Rt.Hon. Greg Clark (who we used to have time for before he was brainwashed by 'Treasury Thinking' when
he was moved there under the now widely deprecated former Chancellor George Osborne) and Rt. Hon. James Brokenshire, in May 2018.
It began with the usual propaganda about the
need for shale extraction then said:
'However, recent decisions on shale exploration planning applications remain disappointingly slow against a statutory time frame of 16 weeks where
an Environmental Impact Assessment is required. So, we are announcing a range of measures to facilitate timely decisions.....'
We're amazed at this statement - for two separate reasons.
Firstly, his own legislation requires that - for planning applications within the remit of an Environmental Impact Assessment - if an applicant provides additional
information in support of their application (and Cuadrilla did that four times), there is a statutory requirement (known as Regulation 22) to publicise and consult on the
additional information they have provided.
Each consultation lasts for at least three weeks, so the additional information provided by Cuadrilla themselves took 12 weeks compared with the 16 weeks in which the
application should have been considered. And that's not counting any delays that were cause by requests from the applicant themselves in order to gather additional information.
Secondly, Mr Clark appears to have no idea of (or is choosing to ignore) the time and work involved in preparing an EIA if - as is often the case in this area -
wildlife that enjoys European Protection - via a Special Protection Area or RAMSAR site for example.
Fylde and Wyre - being situated on estuaries - are surrounded on two or three sides by land that is so designated.
If the scoping for the EIA says it's necessary for an 'Appropriate Assessment' to be undertaken, and / or it's necessary to study the numbers of, say, Pink-Footed Geese or
other protected migratory wild birds that only appear once a year for about 3 months or so as they fly into the affected area, then plainly it's going to take anything up to a
year to gather the information to prepare the EIA, (let alone write and publish it). Some of the EIA we have seen run into hundreds of pages.
For Kensington's Queensway development - which affected a Special Protection Area - the main ecological report was 89 pages and this lead to 19 technical appendices of
evidence etc, a submission totalling 294 pages.
16 weeks is a ridiculously short timescale in which to grant permission in such circumstances, and he would do better to change the planning legislation to account for these
We find it ironic that this remoaning Europhile Minister is complaining about the time needed for a planning application involving an EIA - when the need for the Assessment
only exists because of legislation emanating from the EU (currently Directive 2014/52/EU), and which his own party has enacted into British law, and of which, no doubt, he is
advocating retention in the Brexit negotiations.
Looks like we've digressed again.......
Mr Clark went on to say that his 'Ministerial Statement' was a 'material consideration' in plan-making and decision-taking, so Councils would have to take what he said into
He also said
'Shale gas development is of national importance. The Government expects Mineral Planning Authorities to give great weight to the benefits of mineral
extraction, including to the economy. This includes shale gas exploration and extraction....."
He also noted that the Government was consulting on a draft revised National Planning Policy Framework and he said in due course, the revised NPPF would sit alongside this
Written Ministerial Statement. It went on to say:
'To support a decision-making regime that meets the future needs of the sector we will progress our manifesto commitments by:
- holding an early stage consultation, in summer 2018, on the principle of whether non-hydraulic fracturing shale exploration development should be
treated as permitted development, and in particular on the circumstances in which this might be appropriate......'
It then continued with some other matters that are not relevant in this section of our article.
But we first need to quickly look at those two terms he had used, so we're clear about the meanings.....
We think the use of 'non-hydraulic fracturing' was misleading because from a quick look, you think it's not about fracking. But it is.
This comes about because of the Government's decision to separately consider the exploration, appraisal, and production of shale gas into three different planning processes.
If this ludicrous idea goes ahead, his 'Permitted Development' scheme would only apply to the exploration phase - that is, drilling to see if there is frackable rock below
the surface and how deep it is, and what other geology you go through and so on.
This phase does not include the process of fracking which is required to release the gas from
the rock, so the Government is calling it 'non-hydraulic fracturing'
Is development that you can undertake 'as of right' without having to apply for planning permission before you do so.
The measure was first introduced around 1948 and intended to allow small 'non-controversial' extensions and outbuildings to be incorporated into domestic houses and gardens.
Subject to matters of size and how much development has already taken place, (and outside of conservation areas), householders can now usually undertake: single storey side
or rear extensions; loft conversions; front porches; outbuildings; solar panels; skylights, new windows or doors and the like, without having to apply for Planning Permission.
The idea of extending development rights that are intended for domestic dwellings to commercial, multi-nationally owned, mineral-extracting companies is a complete nonsense.
It is worthy only of the anti-planner Nick Boles - who said live on air that he did not believe in the principle of planning - and was subsequently put in charge of planning
(by the Government of the day).
We find it difficult to select words to describe the idiocy of this proposal that would not land us in court, so we'll simply use a more moderate quote that our friends at
'Drill or Drop' elicited from CPRE's Daniel Carey-Dawes who said:
"These proposals would be a complete perversion of the planning system and trample over the rights of local communities – all to fast-track an industry bringing
environmental risks that would massively outweigh any suggested ‘benefit’ to our energy security."
There's one other point of interest that we noted as we read through the excellent Select Committee hearing report.
The Rt Hon Dominic Raab MP, (Minister for Housing, Communities and Local Government since January 2018 - but now Brexit Minister); and Rt Hon Claire Perry MP, (Minister for
Energy and Clean Growth in the Department for Business, Energy and Industrial Strategy since January 2018), were being questioned by a Select Committee on a range of matters relating to fracking and
Anyone interested in the detailed work of Select Committees, and those deeply into fracking might want to read the questions to, and evidence given by, the two ministers at
this Select Committee meeting on 21 May 2018, and can follow this link to download a copy of the Select Committee evidence report.
Toward the end of Question Number 192 (asked by Liz Twist MP), about localism, and the input from the local community, Ms Perry said
"I did just want to go back to your previous point, Ms Twist, about exploration. I confess that until I took on the role I had not quite understood what exploration was. You
watch a time-lapse build-up of a well and then it goes away again. It is a single well; it is a single drill point; it is a temporary structure. It is simply drilling a single
well to establish the presence and flow rate potential of the gas, and then it can move away again and there is no degradation of the land. It is not as terrifying as some
She hasn't been doing the job for long (and to be honest we were surprised how well briefed she had been on some topics to be able to give the answers she did) so it might
be a bit unfair of us to pick her up on this point, but it seemed to us that she had not really grasped the difference between two of the three distinct phases (exploration and
assessment) that the Government is introducing in its new NPPF.
We say that because factually, it's not possible to assess the 'flow rate potential' of the gas unless you have conducted the fracking in order to make the gas flow out of
the rock in which it is bound, and that happens not in the exploration, but in the 'assessment' phase.
Exploration is only to test for the existence of gas-bearing rocks and the drilling pathway. It does not include the fracking operation itself.
In what seemed to us to be her most candid and unguarded answer of the session, we felt as though we had been treated to an insight into what might have been the
Department's Ministerial video induction course on fracking.
And we have to say, we were not impressed.
The consultation on this 'Permitted Development' proposal runs for 14 weeks from 19 July 2018 so we imagine that anyone who wants to comment can do so before about 25th
October 2018. Readers can follow this external link to download the Consultation on Permitted Development
NATIONALLY SIGNIFICANT INFRASTRUCTURE
In yet another move to support and bolster the establishment of a fracking industry in the UK, the Government is considering - and consulting on - taking the decisions on the
production phase of fracking out of the hands of local councils such as LCC, to include them within what it calls the Nationally
Significant Infrastructure Project (NSIP) regime.
If it does so, that will become the only route by which planning consent for the production phase of fracking will be determined, and the final decision for granting
development consent will rest with the relevant Secretary of State.
And, of course, some fear that once established, there is always the possibility of the earlier 'exploration' and 'assessment' phases being added to this regime.
According to what we could see from the Consultation Document, the main reasons for doing this (outside the Government's blinkered support for fracking) are said to be that
'....would bring such applications into a well-defined process with clear, established governance and timelines designed for larger and more complex infrastructure
By definition that suggests the present planning legislation is not a well defined process.
We find that difficult to believe.
Once again, to us, this move feels more like a Government that knows it isn't winning hearts and minds (or the argument) and wants to change the law to move the decisions away
from councils elected by local people.
(And we hear they're ending the national opinion survey question that asked the public about their views on fracking.)
The big difference with the NSIP regime, is that the proposals are considered by technocrat planning inspectors - usually by the holding of a public inquiry.
That's actually a bit of a misnomer really, it's an Inquiry held in public, not an inquiry for the public.
If the Inspector so decides, they can refuse to hear what the public want to say, and in more extreme cases, they have the power to continue the Inquiry with the public
We saw that sort of thing happen more than once at the recent Roseacre Inquiry when local residents had let out involuntary gasps and exclamations when some obviously
incorrect local information was given to the inquiry, and the inspector threatened to clear the room if people could not remain silent.
And on other days, people who had registered to speak in the formal 'public speaking sessions' - people with something to say - had their microphones turned off by the
Inspector when they strayed away from the narrow aspects the Inspector wanted to hear, and he actually said he did not want to hear what they wanted to tell him.
(See Ms Rothery's session on Day 6,
and the session with Mr TarJanyi)
But the biggest problem with using technocrats rather than Councillors, is that it removes the vitally important humanising effect that elected councillors bring to decision-taking,
and that humanising effect is precisely what gives the decisions by elected members their democratic legitimacy.
But we think that's exactly what the Government is after. They clearly don't want the public being able to impact the decisions that are taken.
"Populism Doesn't Rule. - KO"
Having said that, and to be fair, the Government's consultation does say:
'...There are extensive requirements on applicants to consult with local authorities, communities and statutory consultees at the pre-application stage as set out in the
Planning Act 2008....'
We recognise that sort of comment, but, of course, consultation is not unknown to be regarded a process that is endured before you disregard what you have been told, and
carry on anyway. Hence the emergence of more popular version of the term - 'consultation exercise.'
The Government also says
'There is the opportunity for local authorities, statutory bodies and other interested parties to participate in the examination of an application. Members of the public can
also take part in the examination stage if they register as an interested party.'
Again, this is true, but it's not the whole story. Whilst it could be registering to have your three minutes or whatever, we suspect this term 'registering as an interested
party' probably means signing up to become a 'Rule 6 Party' which will take several (very demanding) months out of the life of those who sign up for it (to research and prepare
proofs of evidence).
It is such a formidable task that few, if any, of the people known to us who have done so - would willingly do it twice in one lifetime.
The photo illustrates the documentation that the Preston New Road Action Group had to assemble
(and had to provide several copies of) as the 'Rule 6' evidence
that was presented at the Inquiry by their barrister. There is a significant cost involved in this process as well, even if you do not engage a barrister.
And signing up to be a Rule 6 Party commits you to working within the rules of the technocrat - who can choose to limit what evidence he will consider anyway.
So whilst we accept it is possible for the public to participate in such a regime, it's introduction will undoubtedly reduce the democratic input into decisions and make it
harder for the public to influence the outcome.
As we understand it, the Government intends to make this change (if it does so) by what's called 'Secondary Legislation'.
This usually involves Ministers issuing Statutory Instruments (SI's) which are otherwise known as 'Regulations.'
They have equally legally binding powers and requirements, but (with *very* rare exceptions) they are not debated and considered by Parliament.
They simply 'become law' because the Act under which they have been made grants delegated authority for Ministers to make such Regulations at will.
This is a very much easier process to make laws say what the Government (as opposed to Parliament) might want.
Most folk we've spoken to oppose the idea of including the 'fracking production' phase within the Nationally Significant Infrastructure Projects regime.
'In regard to the determination of planning applications relating to shale gas, Fylde Borough Council considers that the status quo be maintained and that local authorities
should retain the powers to approve or reject fracking planning applications. Decisions should be made by the County Council, having due regard to current planning policy as
set out in the development plan, Government guidance set out in the National Planning Policy Framework and other material planning considerations.'
And the Select Committee's final recommendation to Government was:
'There is little to be gained from bringing fracking planning applications at any stage under the NSIP regime; there is limited evidence that it would expedite the
application process and such a move is likely to exacerbate existing mistrust between local communities and the fracking industry........
.......Fracking planning applications should not be brought under the NSIP regime. While we note that the NSIP regime does provide opportunities for consultation with
Mineral Planning Authorities and local communities, such a move could be perceived as a significant loss to local decision-making. Mineral Planning Authorities are best placed
to understand their local area and consider how fracking can best take place in their local communities.'
Whilst we agree with these sentiments, and we don't support the idea of making it harder for the public to press their case, we're a bit less sure ourselves, and we wouldn't
see the decision being part of the NSIP regime as being a disaster.
We say that because even under the present regime, and certainly so far as Lancashire is concerned, it is the Minister who has taken to himself the decisions as to whether to
allow the exploration phase at both sites, (and at PNR, the Assessment phase) to go ahead.
We see even less reason why the Minister would not make the same decision in respect of the production phase.
So if the Minister is going to take the final decisions anyway, and they will be taken by the same Minister under the NSIP regime, we see little practical difference between
the two processes to reach that decision.
And whilst we agree that local people will probably have less influence under the early parts of a NSIP regime, it would at least put responsibility for the decision squarely
on the shoulders of the Government, who would be less able to insulate and isolate themselves from having taken it.
Furthermore, as fracking exploration spreads to more areas of the UK, the prospect of electoral consequences being visiting upon a Government that chooses to follow the path
that Canada has carved in its blinkered support of fracking, might just persuade more of the UK's MPs to pressurise Ministers to temper their gratuitous support for the
We recognise our view here is not likely to be popular with some of our readers, but we do think the other changes proposed by Government are far worse.
Readers who wish to respond to the NSIP consultation have until 25 October 2018 to respond, and can
Follow this external link to download the
NSIP Consultation Document for as
long as it remains available.
Readers can also follow this link to download the Final Report of the Select Committee on Planning Guidance for Fracking. It's well worth a read.
A DREADFUL MISJUDGEMENT
Up to here, this counterbalance article has been highlighting the latest changes that Government has or is planning to make to our laws specifically to make it easier and
quicker for shale gas extraction to become a fully-fledged UK industry.
The final part is not exactly laid at the door of Government, although they have created the legislation and are supporting the processes that allowed it to happen.
Like our experience of hearing Jessica Ernst's story we have once again been shocked and disturbed by a recent event.
It concerns a recently published report regarding the awful Manchester bombing incident.
Following the atrocity, Andy Burnham, the Mayor of Greater Manchester, announced the establishment of an independent group of experts to consider how to tackle what he
called 'hateful extremism, social exclusion and radicalisation' across Greater Manchester.
The 'Greater Manchester Preventing Hateful Extremism and Promoting Social Cohesion Commission' came into existence and was chaired by Cllr Rishi Shori, who is also the
Leader of Bury Council.
Its aim was to identify, disseminate and build on existing work in countering extremism and in social cohesion. It would also identify gaps in knowledge and provision, and
highlight any opportunities, by considering academic research, existing policy and reviews from local, national and international work, as well as embarking on a comprehensive
The Commission's Report: A Shared Future
The Commission produced what at first sight appeared to be an authoritative report called 'A Shared Future'
For example, Part 7 of the report posed the question:
'What are the broader determinants of social exclusion and how can we work collectively to address them?'
The key lines of enquiry for this section were said to be:
- What factors contribute to hateful extremism?
- How can we strategically take a 'what works' approach from communities that are well integrated, cohesive and supportive?
- What is the role of the business community in promoting a more cohesive Greater Manchester?
The report went on to address these matters in an informed and almost academic way, citing academic source references, local statistical research, the results of interviews
with professionals, community leaders, and so on.
It also included a series of case studies to illustrate some of the work that had (or was being) done to promote community cohesion, including tree planting schemes, the
opening a bar that was specifically designed to help improve community spirit and enable community interaction.
Part 8 posed the question
'How do we develop a distinctive community-led Greater Manchester approach to challenging hateful extremism?'
and this followed the same sort of
line, again with case study examples.
Part 9 asked
'Would a Greater Manchester Charter be an effective way to promote social cohesion?'
The 'Prevent' Strategy
Part 10 set out to
'Consider how Prevent operates in Greater Manchester across all agencies'
Some of our readers might not know that the 'Prevent' strategy is one part of the Government’s Counter Terrorism Strategy. The report notes
'The Government outlines the aim of Prevent as:
'…safeguard[ing] and support[ing] vulnerable people to stop them from becoming terrorists or supporting terrorism…[and] supporting the rehabilitation and disengagement of
those already involved in terrorism.” (Home Office, 2018a).'
It also says
'Prevent has three specific aims (Home Office, 2018a):
- Tackle the causes of radicalisation and respond to the ideological challenge of terrorism
- Safeguard and support those most at risk of radicalisation through early identification, intervention and offering support
- Enabling those who have already engaged in terrorism to disengage and rehabilitate
10.3 The strategy is aimed at targeting all forms of terrorism and non-violent extremism, and places a legislative duty on 'specified authorities' (these include, but not
limited to, schools, universities, NHS trusts, prisons and probation services) to have 'due regard to the need to prevent people from being drawn into terrorism' (HM
Government, 2015c). Whilst there is a legislative duty for some agencies, anyone with safeguarding concerns about an individual can raise their concerns with their local
authority safeguarding team or police for an assessment.
10.4 As part of the Prevent intervention, an individualised, multi-agency, support package known as Channel can be offered to individuals (Home Office, 2018a). Channel cases
are discussed at a multi-agency Channel Panel (similar to those held in the safeguarding of children) to consider the person’s needs and vulnerability, develop necessary action
plans and review progress. Any adult individual who is accepted onto the Channel programme must do so on a voluntary basis. For children, their involvement in Channel would
form part of a wider safeguarding plan.
And as before, the Report gave research results and two case studies
One of these
'A need to consider wider safeguarding concerns - not just the potential radicalisation'
was about a middle-aged woman who was said to have
'.....developed very specific views in relation to right wing ideology, primarily determined from research she has undertaken on the internet.'
It went on to say she was
'....socially isolated, has a history of mental health difficulties and her views appear to become more extreme during periods of decline in her mental health; primarily
when she is not taking her medication.....'
It then described the measures that were put in place to support her, and what lessons could be learned from the case.
But the second example - 'Case Study J' caused a great deal of trouble - and within hours of its publication, the report was mired in controversy.
The Report Is Published
The report had been provided to some news outlets early, but was embargoed from publication until Noon on 30th July
The first inkling that something was wrong came at noon, when
'The Guardian' published a story that included the following:
'A 14-year-old A* student was referred to the UK government’s anti-extremism programme following concerns he was being "groomed" for environmental activism by anti- frackers.
Campaigners said that the decision to refer him to the Prevent programme was "incredibly alarming" and "offensive".
The boy, known by the pseudonym Aaron, was targeted via social media after signing an online petition, according to a report on preventing extremism in Greater Manchester
commissioned in the aftermath of last year’s Manchester Arena attack.
The main activist stopped only when police made them the subject of an abduction notice, the report claimed. This prohibited them from making contact with a
named child. A breach of such a notice is a criminal offence.
Aaron was initially encouraged by local activists to participate in protests and hand out leaflets, but the approaches became "progressively more aggressive to the point
where Aaron was on the periphery of engaging in criminal behaviour and frequently reported to the police as missing by his parents", the report said.
Fracking for shale gas has become a hugely divisive issue since the government started to encourage exploration. Protest camps have been set up all over the country by
demonstrators intent on disrupting the process, including one camp at Barton Moss in Salford in Greater Manchester in 2013.
Aaron began to use the ”dark web” to engage with activists to discuss fracking, according to the report by the Greater Manchester Preventing Hateful Extremism and Promoting
Social Cohesion Commission. The commission found mental health and learning difficulties were a common feature in the cases they examined.
His parents were so worried that they extensively monitored his online activity and accepted help from Channel, an individualised, multi-agency, support package offered as
part of the government’s anti-extremism Prevent programme.
Aaron had a number of underlyling vulnerabilities, including potentially undiagnosed autistic spectrum disorder and was socially isolated and prone to self -harm, the report
The family was initially offered a "therapeutic long-term intervention". But the report said that despite the best efforts of the therapeutic team, the intervention had
minimal impact on his behaviour: his school attendance continued to be poor and visits to rallies and engagement with the activists continued.
"Having explored a number of avenues, with limited success, a decision was made to issue an abduction notice to the main protagonist of the social media lobbying.
These notices prohibit an individual from making contact with a named child and a breach is a criminal offence," the report said.
"Within two hours of the notice being issued, Aaron was ‘de-friended’ on social media by all those individuals who had encouraged his activist behaviour. When
Aaron tried to access his activist ‘ friends’ , he received no responses and as such, while the underlying vulnerabilities still remain and continue to be monitored, the threat
in terms of his involvement in extremist activity, which had been becoming more intense, was resolved."
The report suggests that police and other partners should learn "from other crime types such as child sexual exploitation" and translate the tactics into other arenas should
be translated into other arenas. (sic)
“The impact of social media in terms of ‘grooming’ of vulnerable and isolated individuals cannot be [overestimated]. In this case, the parents were extremely adept at
monitoring social media activity. This is not the norm," the report’s authors said, recommending more work should be done locally and nationally to increase the awareness of
the impact and influence of social media.
A few months later, Aaron is more settled at school, his attendance has improved and he is engaging with appropriate peers, the report claimed.'
Reaction To The Guardian Report
The Guardian's piece was published at noon on 30 July.
Very quickly, and to his great credit, a correction to the original publication was tweeted by the Committee Chairman, which we now reproduce.
The Guardian too added a rider to its original story which said
'After this story was published, misleading claims in the anti-extremism report on which it was based came to light: read the updated news here'
Just before 7pm on 30 July, The Guardian published a follow up story
which included the following quotes:
'But according to Greater Manchester police, the boy in question was never involved in the anti-fracking movement. He had been targeted by an entirely different group of
activists, the force said. The detail was then changed without their knowledge, ostensibly to protect his real identity......'
......It was a "dreadful error", an official at the Greater Manchester Combined Authority (GMCA) said on Monday, adding that the report would be corrected as soon as
The GMCA accepted the disclaimer included in the report did not cover the alteration of such an important piece of information. It said: "All case studies used in this
report are based on genuine case examples from Greater Manchester. Some details may have been changed in order to protect the identity(ies) of the person(s)"'
And as far as we can tell, a revised version of the report 'A Shared Future' was published.
The version of it we downloaded was a few days later. The metadata for this document said it had been created on 31 July 2018 at 9:10am.
Needless to say there has been widespread anger amongst those opposed to fracking.
Our Own Take On This
We're not at all critical of the way this mistake has been rectified.
It was quickly acknowledged to be wrong, and what seemed to us to be a genuine apology was made, followed by a corrected report. That's all as it should be when you make a
We also would not want this fuss to detract from what is, at least in part, an important report.
Furthermore, we noted that the report carries the following at the foot of the Contents on page 2
All case studies used in this report are based on genuine case examples from Greater Manchester. Some details may have been changed in order to protect the identity(ies) of the
The disclaimer led us to expect that the personal details, such as the name of the individuals would have been changed, but we absolutely would not have expected what
purported to be factual data to be invented and inserted, and especially so in an otherwise authoritative sounding report.
What happened might have been done with the best of intentions, but is plainly wrong, and it should never have happened in the first place.
We also understand why our friends protesting at Preston New Road and elsewhere - who are sometimes beleaguered by officialdom of one sort or another - whether that's a heavy
police presence, or threats of prosecution for erecting critical notices, or civil law injunctions from a company that is unprepared to accept it is not welcome in or wanted by
the community into which it has elbowed its way - we understand why they would have reacted badly to this unwarranted and wholly inappropriate slur.
But we also have another point to make. And here we go back to the beginning of this article where Jessica Ernst said the Alberta Energy Regulator had made and filed a claim
of terrorism against her in legal court papers - without any evidence to support it - and even though she had a tape recording of them saying they did not consider her to be a
What's a Terrorist and What's an Extremist?
The maelstrom around this story made us think more widely about what might and might not properly be defined as terrorism and terrorists, and at what point does widening the definition of
'Extremism' become unacceptable.
These questions were prompted by our reading of the 'Shared Future', the latest (corrected) version of which can be downloaded from this external link so long as it remains
The part about 'Prevent' and its subsequent initiatives begins at Section 10 on page 79/80, and the revised 'Case Study J' begins on page 89/90.
But the part of all this that most concerns us is at what point the term 'terrorist' becomes a valid description of someone.
We have long held the view that a terrorist and a freedom fighter are the opposite sides of the same coin, and the name you choose to use depends on your perspective.
And equally, we came to the view that whilst we might each hold our own personal opinions, the only body that can actually define a terrorist has to be a court or a
government - because they make the law that defines what is, and is not, classed as terrorism.
And if that is so, it behoves Government, and the police, and our legal system, to be very careful about what they treat as terrorism, and especially not to use it - as state
actors in Canada have done - to define or accuse those who speak hard truths to power.
They must reserve that epithet for those who act to cause widespread existential fear
amongst the population.
In our view it most definitely should not be used to intimidate or threaten those who oppose a government policy, or those who demonstrate their opposition to such a policy, or those
who are politically active, or those who campaign for change - even if that campaigning includes the sort of peaceful civil disobedience used by Gandhi and others.
Whilst it is likely to be the case that terrorists are also extremists, the reverse is not necessarily also true - those holding extreme views are not necessarily
We Discover the Netpol Group
During our research on the matter and we found information published by the Netpol group - who describe themselves thus
'The Netpol Lawyers Group (NLG) acts as a forum for solicitors and barristers to meet and exchange their knowledge and experience of public order law and to support the
objectives of the Network for Police Monitoring (Netpol) in challenging protest and community policing that is excessive, discriminatory or threatens civil rights.'
If we read Netpol's website correctly, they are concerned about the way the Government and its and security services are extending the scope of terrorism legislation to
encompass wider issues - typically using the 'Prevent' and the 'Channel' programmes to do so.
Netpol are a signatory to the ‘Together Against Prevent’ campaign - and readers can follow this link to find out more about that aspect.
Netpol Ask About Reference of Anti-Fracking Campaigners
It seems that in 2015 after concerns had been raised about fracking protests and the 'Channel' programme, Netpol sought breakdowns of referrals that had been made to the
A Home Office statistical bulletin overwhelmingly related referrals to Islamist-related and similar extremism, but it also said 15% of the total was
classified as 'other forms of extremism'
In October 2015, Netpol made a request for a breakdown, but the police and the Home Office would not say whether the 15% might include opposition to fracking - claiming
that the specifically localised nature of protests would increase the risk that revealing anything at all might give an indication of the way police resources are deployed.
Netpol say they used the Freedom of Information Act to request information about part of the government’s Prevent strategy called ‘Channel’ which - as we have seen - is said
to be a
voluntary programme aimed at people identified as 'vulnerable to being drawn into terrorism.'
Specifically Netpol asked how often such referrals involved anti-fracking campaigners.
Their request for this information was refused.
So they asked the Information Commissioner to intervene.
But the Commissioner did not support Netpol's request.
Netpol's website says of this decision....
'In a series of extraordinary Decision Notices in 2016, the Information Commissioner had said releasing this information "would disclose that Prevent officers were targeting
anti-fracking events for extremist activities" and provide "useful intelligence to anyone wishing to circumvent counter-terrorism arrangements surrounding fracking". She also
implied there was something suspect about Netpol asking for data from a number of different police forces.'
Netpol's FoI and its Subsequent Appeal are Refused
Netpol (in our view understandably) disagreed with this answer, and appealed the Information Commissioner's refusal to what is known as a 'First-tier (Information Rights)
Tribunal' in May 2018
We pick up the story here from quotes in articles on Netpol's own website....
'.....On Monday, a First-tier (Information Rights) Tribunal in London heard an appeal brought by Netpol over the refusal by police to confirm they hold details of the number
of such referrals of opponents of fracking to a ‘de-radicalisation’ process called Channel controlled by counter-terrorism officers.
The Home Office was presented (sic) at the hearing along with the Information Commissioner’s Office, which back in 2016 rejected our request to overturn the blocking of our
Freedom of Information request on national security grounds. The five forces were collectively represented at the Tribunal by Greater Manchester Police.
.....This case is important because the police and the Home Office are continuing to insist there is no proof the anti-fracking movement has ever been targeted for
surveillance by Prevent counter-terrorism officers. This is despite growing evidence showing this is exactly what has happened in different parts of the country....
.....The government’s Prevent strategy has been highly controversial and has been the subject of repeated criticism because its fundamental remit involves policing political
dissent and religious beliefs. Academics have criticised the flawed science behind its assessment of risk and in evidence to Parliament, the former Independent Reviewer of
Terrorism Legislation David Anderson QC said: "the lack of transparency in the operation of Prevent encourages rumour and mistrust to spread and to fester".
Our legal challenge was necessary because of this intensive secrecy, which means the police refused to even confirm or deny that they hold information on referrals of
legitimate campaigners to a programme designed to divert vulnerable people away from terrorism.
Netpol argued that merely indicating whether or not the material we sought was held would have no adverse effect on national security....."
The Tribunal's Findings
The tribunal found in Netpol's favour.
Readers can follow this link for a copy of the full judgement of the First Tier Tribunal. It is very detailed and interesting, and not too
difficult to read.
Responding to the Tribunal's decision, Netpol said
"....The Tribunal panel has rejected arguments presented last month by the police and the Commissioner. Its judgment says that although revealing whether the police hold
this kind of information would "indicate a level of concern or watchfulness concerning anti-fracking campaigning as a movement", this would not reveal anything new “that is not
already in the public domain”.
The panel added that it was "stretching credulity to contend that such confirmation would be of material assistance to terrorists or potential terrorists".
The Tribunal judgment also supported the view that there is a genuine public interest in greater transparency about the way the Prevent strategy and Channel programme
operate, as both "can only work if [they have] widespread public understanding and support."
Netpol’s victory is important because the police and the Home Office have both repeatedly insisted, despite growing evidence, that there is no proof the anti-fracking
movement has ever been targeted for surveillance by Prevent counter-terrorism officers.
Now that the Tribunal has instructed all five forces to go back and look at our freedom of information requests again, the police can no longer simply fall back on a
standard "neither confirm nor deny" response to avoid saying whether opponents of fracking were ever considered vulnerable to the influence of so-called "extremists".
This over-reliance by the police on ‘national security’ to block greater transparency is a long-standing concern for many campaigners alarmed about the scale of intrusive
surveillance on political dissent. It has been an excuse used again and again by the police during the ongoing public inquiry into undercover policing, even when the names of
disgraced former officers have been widely reported.
We hope that as a result of losing this case, the Information Commissioner will finally adopt a more positive stance on ensuring the public are not shut out completely from
the debate about the effectiveness (or otherwise) of counter-terrorism and policing policy.
Netpol’s legal challenge is a reminder, too, about the importance of interventions by campaign groups and the increasingly shrinking space available for organisations to
demand accountability from the police and state. Working with our lawyers, it has taken two years to obtain today’s judgment, in the face of stonewalling from the police and
the regulator responsible for freedom of information. An individual working on their own would have found it far more difficult find the time and resources to pursue a case for
What's Happened Since Then?
That was in May.
There is no report on the Netpol website today to indicate that they have received the results of the review that was required of the five police forces
We suspect that like us, our readers will be unsettled by the information we have reproduced from the Netpol website.
It only came to our attention as a result of the appalling misjudgement in the 'Shared Future' report where, in its original version, the Guardian quoted it as saying:
'A 1 4-year-old A* student was referred to the UK government’s anti- extremism programme following concerns he was being “groomed” for environmental activism by anti-
......The boy, known by the pseudonym Aaron, was targeted via social media after signing an online petition, according to a report on preventing extremism in Greater
Manchester commissioned in the aftermath of last year’s Manchester Arena attack...."
Having read the Judgement of the First Tier Tribunal we are now considerably less content with the direction that the Government's 'prevention of terrorism' strategies
appear to be taking.
Our Own Concerns
On a personal level, we would not disagree that those armed with bombs and guns, and - when used with the intention of provoking existential fear - knives, corrosive
liquids, poisonings, and vehicles, are tools that terrorists might deploy.
But we are struggling to agree that the holding of 'right wing views', as is mentioned in the report, or signing a petition, or even taking part in a demonstration of some
sort, whether environmental or some other topic (both of which we have done ourselves) merits consideration in the same breath as terrorism.
Nor do we believe that civil disobedience practiced by Suffragettes, Gandhi, Martin Luther King, Nelson Mandela and others, who also served prison terms (let alone being
arrested) should fall within the definition of 'Extremism'
We see a danger here that - however well intentioned it may be - 'mission creep' into what to us seem to be very some questionable areas identified in the 'Shared Futures'
report, risks alienating the very public support that law enforcement agencies need to be able to function properly, and to respond to instances of real 'terrorism''.
It's a matter that is of concern to us.
Several of our local readers participate in opposition to Cuadrilla's activities, and with one correspondent in particular, we occasionally refer to a story they recounted
to us that they were once teased by a good friend (who was ambivalent about fracking), but who joked with them that because of the strength of their view against it, they must
have been 'radicalised' into opposing fracking.
We absolutely know that is not the case with the person concerned.
But in the light of what has been said in this report, it has also stopped being a joke we feel able to share with them.
And that, itself, feels very wrong.
Dated: 17 August 2018