UK anti-fracking movement wins appeals victory / Court decides that Ineos injunction was too broad / Scotland still dithering about ban
Following a series of defeats in the nation’s High Court, the UK anti-fracking movement has finally prevailed against Ineos (Rolle / Switzerland; in the Court of Appeals. While the judgment technically handed a partial victory to each side, for those protesting shale gas exploration it was also a moral victory, as the judges agreed with the campaigners’ position that the injunction was too wide-ranging and may even have constituted a human rights violation.

In its ruling, the appeals court left untouched Ineos’ right to keep protestors off its own drilling sites, but said it could not make rules for other companies within or outside its supply chain. At the same time, the judges ordered the High Court to assure that the rights it allowed the chemical group to defend its own property do not violate the Human Rights Act. In particular, they stressed that British law does not allow a wide-ranging injunction to be issued before any offence has been committed.

The fight over the right to protest shale gas drilling geared up almost immediately after the High Court in summer 2017 ruled that Ineos was within its rights to embrace what the protestors called “draconian penalties” to silence protest – see of 16.08.2017. The initial challenge to the injunction was brought by campaigners Joe Boyd and Joe Corré, who are active in several NGOs, and later received support from the UK section of Friends of the Earth Scotland (FoE, Edinburgh;

The injunction, the first to be granted in the absence of an offence being committed, increased the powers of the police and the judicial system to clamp down on lawbreaking by militant fracking opponents and was labelled an undemocratic scare tactic by campaigners. Penalties could be levied against such activity as obstructing the highway around drilling sites, including slow-walking in front of drilling equipment transport and refusing to disperse. Obstructing or interfering with Ineos’ business or harassing or conspiring to injure people and businesses across its supply chain were among other provisions drafted by the chemical group and approved by the High Court.

Under the terms, anyone determined to have broken Ineos’ rules could be jailed, fined or have assets seized. The injunction furthermore stipulated that the penalties could apply to those not present, but who simply supported the protest behind the scenes. That it never came to a physical confrontation between the two sides reflects in part the ongoing litigation on several fronts, but also the fact that shale activity has faced obstacles such as earthquakes, and only small test drills have taken place. The UK government’s recent refusal to relax rules mandating a stop to drilling at prospective shale sites if the activity generates earth tremors with a magnitude of 0.5 or higher on the Richter scale put another stumbling block in the path to fracking and was met with widespread protest from the industry – see of 20.02.2019.

Reacting to the appellate decision, Joe Corré said the court had restored his confidence in the British legal system, while Friends of the Earth called it “a humiliating defeat for Ineos and a victory for campaigners and human rights.” Ineos also saw its right to make rules for its own exploration sites (of which none currently exist) confirmend, but Tom Pickering, COO of Ineos Shale, hinted that the chemical group is discussing further steps so that “the forces of law-and-order will prevail.”
Scottish moratorium still in limbo
In Scotland, meanwhile, the government has said it needs more time to decide how to make its moratorium on drilling permanent without unleashing a long legal battle against the industry. A final decision had been promised for the 2019 first quarter, but Scotland's parliament now says additional consultation is needed. No new date for a decision has been named. The announcement of a further delay after weeks of silence was triggered by the publication of a legal opinion on fracking by Friends of the Earth Scotland and a parliamentary enquiry demanding answers.

The opinion commissioned by FoE from what it called “one of Scotland’s leading lawyers” is said to conclude that the Scottish parliament can pass a law to ban fracking and that this would be less likely to be successfully challenged by the industry than the present policy approach. The organisation’s head of campaigns, Mary Church, called on the government to “stop dilly-dallying, have the courage of its convictions and legislate to stop the industry for good.” Church noted that the Scottish parliament has already voted to ban fracking, while recalling that the 2017 public survey overwhelmingly rejected it – see of 10.10.2017. In 2018, Scotland fought back a challenge from Ineos against its decision to ban fracking permanently when the court agreed with the government’s unexpected assertion that a permanent moratorium did not constitute a ban – see of 22.06.2018.
09.04.2019 [242195-0]
Published on 09.04.2019

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