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MPs may make the law - but that does not make them above the law. Photo: UK Parliament via Flickr (CC BY-NC-ND).
MPs may make the law - but that does not make them above the law. Photo: UK Parliament via Flickr (CC BY-NC-ND).
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Fracking: MPs and Lords have derelicted their legal duties - now they must pay the price!

Jojo Mehta

26th February 2015

The rushed passage of the Infrastructure Bill with all its pro-fracking provisions and toothless 'safeguards' is an abuse of democracy. And as it's manifestly against the national and public interest, it's also in breach of both MPs' and Lords' legally binding Codes of Conduct. Now Jojo Mehta intends to hold them to account - in Court.

Anyone in either House who supported this corrupt, dangerous and ridiculously rushed piece of legislation has acted in blatant contravention of their legally-binding Code of Conduct.

On 13th January, just before the Parliamentary Committee on the Infrastructure Bill was to report back to the House of Commons, I put every single MP in the UK (and more recently, all the Lords with a policy interest in Energy and the Environment) on legal notice.

The point I made in my 'Letter before Action' was that if they passed the Bill with the clauses promoting 1. economic recovery of petroleum; and 2. fracking; and if harm ensued thereby, they might find themselves in breach of their moral and legal duty to the nation set out in The Code of Conduct for Members of
Parliament
.

Among other obligations it reminds MPs that they "have a general duty to act in the interests of the nation as a whole; and a special duty to their constituents", and that they must "take decisions solely in terms of the public interest", the latter obligation also applying to members of the House of Lords.

As public servants both MPs and Lords are, moreover, "accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office."

So what about the risks of fracking?

I also sent them the introduction and executive summary of this document detailing the risks and harms of fracking - a document instrumental in New York State's decision to ban the practice last December.

I sent the 657 letters by recorded delivery (it took the local post office 10 hours to process), so even if the MPs didn't even look at them, from a legal point of view those letters will have been deemed as read.

Interestingly, a flurry of amendments to the Bill ensued, mitigating the clauses allowing fracking and even calling for a moratorium. Was this a complete coincidence, or did some of our elected representatives check with their lawyers and find that the Code of Conduct for MPs holds weight in a civil court?

I have taken legal advice from a barister and it does, in case you're wondering.

I received a number of replies from MPs, many saying they had passed the information to my own MP, Neil Carmichael (Conservative), according to "strict Parliamentary protocol".

This made me wonder: did the industry lobbyists who clearly had a major hand in drafting the Bill also get asked to make contact only via their own MPs? Either way, no MP can now legally deny prior knowledge of the risks and harms of fracking.

The public and national interest trampled underfoot

The Commons proceeded to significantly amend the fracking clauses in the Bill, and if their amendment 21 had stood, fracking would not have been permitted in AONBs, SSSIs, National Parks, under aquifers, etc, and drilling companies would have had to go through a number of procedures in order to frack including individual notification of local residents.

However, the Lords replaced this amendment in short order, doing two things:

  • watering down the safeguards proposed by the Commons so as to make them toothless and dependent upon secondary legislation; and
  • applying those weakened safeguards only to fracking using over 1,000 cubic metres of fluid, meaning that all exploratory and potentially even medium scale production could escape the safeguards altogether.


The Lords made these replacement amendments at the final 'ping pong' stage of the bill, and the Commons were assigned a paltry 1 hour's discussion to address them. The Commons vote showed that MPs were now strongly divided about fracking (257 in favour of the Lords amendments, 203 against), but the amendments were still passed.

Only Caroline Lucas MP (Green) pointed out the farcical nature of these phantom safeguards, but there was no time to explore further. The following morning on 12th February, with truly unseemly haste, the Bill was made law.

We now have a situation where, by law, drilling companies can frack wherever they like with no special permission, as long as they use less than 1,000 cubic metres of fluid - about the volume of a large municipal swimming pool.

To our knowledge, all fracks carried out to date in the UK have used significantly less. Certainly what this means is that all future drilling that uses less than 1,000 cubic meters of fluid is exempt from all the safeguards drafted.

Goodbye 'Green and Pleasant Land'

Reading the Hansard scripts of the discussions that took place on this Bill, we don't think any of those in favour of the Act that was passed have a clue what fracking actually looks like in production. They seem to be chatting about a well or two here or there, nothing to disturb a national park ... do they really not know? It requires hundreds of wells, four to every square mile, to make a viable production facility.

This government has an aggressive expansion policy to put in place up to 30,000 wells. Goodbye 'green and pleasant land'! Use Google Earth to have a look at Texas or North Dakota and you'll pretty soon get the idea.

 

Then - health hazards aside - there are the thousands upon thousands of HGV journeys required to service the site. And the disposal of the millions of gallons of toxic waste from the process. This is not easy, cheap, abundant gas and oil. It's an expensive post-apocalyptic nightmare and an environmental disaster.

Not only that. One clause of the Infrastructure Act remained virtually unchallenged from start to finish, and that is a clause adjusting the Petroleum Act 1998, apparently making it a legal obligation for the Government to "maximise the economic recovery of UK petroleum" and for the relevant Secretary of State to create a strategy for doing this in whatever way he sees fit.

A legal duty to maximize petroleum recovery

This clause is so astonishing that it bears printing in full:

PART 1A

Maximising economic recovery of UK petroleum

9A The principal objective and the strategy

(1) In this Part the "principal objective" is the objective of maximising the economic recovery of UK petroleum, in particular through-

(a) development, construction, deployment and use of equipment used in the petroleum industry (including upstream petroleum infrastructure), and

(b) collaboration among the following persons-

(i) holders of petroleum licences;

(ii) operators under petroleum licences;

(iii) owners of upstream petroleum infrastructure;

(iv) persons planning and carrying out the commissioning of upstream petroleum infrastructure.

(2) The Secretary of State must produce one or more strategies for enabling the principal objective to be met.

(3) A strategy may relate to matters other than those mentioned in subsection (1)(a) and (b).

This appears to be no less than a legal mandate to fill the coffers of Halliburton, oil infrastructure supplier par excellence, and other industry players, with a clause to cover the arse of any Secretary of State who implements this.

Our Government has effectively just passed the 'Support Halliburton' Act 2015, with a few subsections making it easy to frack, and a bunch of transport, planning and other elements thrown in for infrastructural support and general confusion.

How exactly is this in the 'national interest' or that of constutuents? Isn't the real national interest the health and happiness of the inhabitants of this country and the land we live on? Shouldn't all economic activity be serving that, not vice versa? Is this not the true legal mandate of anyone in public service?

Anyone in either House who supported this corrupt, dangerous and ridiculously rushed piece of legislation has acted in blatant contravention of their legally-binding Code of Conduct, and failed miserably in their duty of care. We must prepare to sue.

 


 

Jojo Mehta is a mother of two young children based in Nympsfield, Gloucestershire, and a campaigner on environmental and democratic issues. Together with Katy Dunne, she is a co-founder of Frack Free Five Valleys.

 

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