My Lords, I have given notice to the Minister that I was going to raise this point, but before doing so, I should say that I take second place to nobody in supporting the priorities spelled out in the statement that the Minister took the opportunity of making. We have to build up our sustainable energy resources. That is crucial to our survival. Our survival is not just an end in itself; it is to have a country worth living in. That is why areas of special exception are so crucial because that is part of a decent civilised society.
Quite serious issues have begun to register as a consequence of this statutory instrument. For example, in the Peak District there are complex geology and water quality issues that raise particular concerns with regard to the potential for harm arising from fracking. That is why it is essential to have a precautionary approach. We need to avoid removing important protections from the national park and to avoid potential risk to the deeper geological features, including show caves, potholes and systems enjoyed by thousands each year. Water quality and sensitive wildlife habitats in areas of the Peak District national park could consequently suffer. They are, of course, protected under primary legislation.
I should declare an interest because I am vice-president of the Campaign for National Parks and an honorary patron of Friends of the Lake District. In saying that, I should also emphasise that there is no pecuniary interest whatever—quite the contrary—in holding these roles.
The Environmental Audit Committee inquiry into the environmental risks of fracking made a recommendation for protected areas. Recommendation 8 states:
“Fracking must be prohibited outright in protected and nationally important areas including National Parks, the Broads, Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest and ancient woodland, and any land functionally linked to these areas”.
The Government response was given on 26 March this year that the Infrastructure Act ensured that no associated hydraulic fracturing would take place within protected groundwater source areas and other protected areas, and that that would be clarified in secondary legislation by the end of July. The Minister referred to that. They confirmed that that would include—again, the Minister underlined this—national parks, areas of outstanding natural beauty and sites of special scientific interest.
However—this is the issue—the proposed draft statutory instrument defines “other protected areas” as,
“areas of land at a depth of less than 1,200 metres beneath … a National Park … the Broads … an area of outstanding natural beauty … a World Heritage site”.
The draft statutory instrument, therefore, allows for associated hydraulic fracking within a national park at depths below 1,200 metres, and incorrectly states in paragraph 3(3) that the national park,
“has the same meaning as in the National Parks and Access to the Countryside Act 1949”.
It seems that by default the draft statutory instrument is altering primary legislation by limiting the extent of the national park to a depth of 1,200 metres, and in so doing is potentially placing at risk the national parks’ ecosystem services.
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The Peak District raises particular anxieties in this respect. It is, of course, a unique landscape with a unique geology, deep geological features and a complex set of historical mines beneath it. The House of Commons Environmental Audit Committee stated:
“The UK has complex geology and more effort is required to understand and map specific local geological conditions and the influence of historic mining activity”.
In its evidence to the British Geological Survey, it stated:
“There is also very limited knowledge of the properties of the sub-surface (geological and other) pathways along which pollutants might migrate. This makes assessment of the risks very difficult. More work is needed to develop tools for assessing the vulnerability of groundwater and the risks from deep activities”.
The report continues:
“The difficulty lies in the fact that below c.200m there is very little information and data on the hydrogeological properties and potential for movement of pollutants through rocks below this depth”.
Given this limited knowledge and experience of hydrogeological fracturing in the UK and of the deep geological features and the water resources of the Peak District National Park, there is a risk of allowing secondary legislation to remove the precautions that are in place for this valued and environmentally significant land, when a precautionary approach is essential. That is why I raise this matter at this point. Why do I stress the Peak District National Park? We are yet to see whether—life is life and things work this way—as other people register, it will become clear that there are similar serious issues in other national parks.
There is another point, which concerns constitutional propriety. I suggest—indeed, I am fairly convinced of this—that the statutory instrument potentially conflicts with primary legislation. What is now in question is
how secondary legislation, in the form of a statutory instrument, is able to reduce the extent of land in a national park, when all the land is within the national park and benefits from the protection of two pieces of primary legislation—the National Parks and Access to the Countryside Act 1949 and the Infrastructure Act 2015.
The National Parks and Access to the Countryside Act does not state that national parks end at a depth of 1,200 feet. The Infrastructure Act states that the associated hydraulic fracking will not take place within other areas. The deep geological features below 1,200 feet are still within the national park. The national parks authorities are custodians of land valued by the nation for its clean air, earth and water, biodiversity, geodiversity and inspirational landscapes, and which provides tourism opportunities that are valued worldwide. These special qualities should not be undermined. Indeed, that would be against the primary legislation and contrary to the recommendations of the Environmental Audit Committee. In the Lake District we have a park which is being put forward for world heritage status. That again underlines the Government’s commitment to not in any way counter world heritage status.
The impact assessment for the secondary legislation SI that defines “protected areas” under Section 4B of the Petroleum Act 1998, and the commencement of Section 50 of the Infrastructure Act 2015, has not considered the statutory purposes of the national parks as required under Section 11A(2) of the National Parks and Access to the Countryside Act 1949, which states the duty of certain bodies and persons to have regard to the purposes for which the national parks were designated:
“In exercising or performing any functions in relation to, or so as to affect, land in a National Park, any relevant authority shall have regard to the purposes specified in subsection (1) of section five of this Act and, if it appears that there is a conflict between those purposes, shall attach greater weight to the purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of the area comprised in the National Park”.
For the purposes of this section, the “relevant authority” means, as stated in the Act,
“any Minister of the Crown … any public body …any statutory undertaker, or … any person holding public office”.
It continues in Section 5, entitled “National Parks”:
“The provisions of this Part of this Act shall have effect for the purpose … of conserving and enhancing the natural beauty, wildlife and cultural heritage of the areas specified in the next following subsection; and … of promoting opportunities for the understanding and enjoyment of the special qualities of those areas by the public”.
Of course, in the Peak District, those wonderful caves that some of us may have experienced are very much part of that enjoyment and understanding.
I therefore suggest that some quite serious issues are raised by the drafting of the regulations as they stand. I hope that we will not have to have a great confrontation at the next stage but I suggest that it would be helpful if the Minister could not only answer convincingly on these points—I know that he takes all these issues seriously; he has been most courteous and
kind in his responses to me—but also give us some indication that the Government are prepared to look again at getting this right, because it would be a great shame if we did not get it right.