6. What assessment has the Counsel General made of the Assembly's ability to legislate under the Wales Act 2017 to ban fracking? OAQ51319

I can't disclose legal advice, but, under the new settlement, planning will continue to be devolved. Oil and gas is a reserved matter, but the granting and regulation of petroleum licences, and access to land in Wales for the purposes of such licences, is an exception to this reservation.

Thank you to the Counsel General for confirming the legal situation. I asked the question to the First Minister yesterday. We didn’t reach it on the list, but the First Minister answered to me that it was the intention of the Welsh Government, with these powers, to look at planning policy in order to ban fracking in Wales. May I tell the Counsel General and the Assembly that I have received a copy of the legal opinion, prepared by Paul Brown QC, at the request of Friends of the Earth? This barrister goes through the options available to the Welsh Government for banning fracking, and comes to the conclusion that, yes, as the First Minister said yesterday, there is a way of using planning policy. But he also comes to the conclusion that there is a way for this Assembly to pass a specific Act, and I will quote:

Prohibiting the grant of new licences to search and bore for and get petroleum in the Welsh onshore area by means of fracking and CBM.

Therefore, it is clear to me that there are options for the Government here in terms of planning policy against fracking, or, indeed, a legal Act. So, will the Counsel General be working, therefore, with the First Minister to ensure that we have those options by the end of the new legal year, as it were, when this legislation comes into force next April, so that the Assembly can take the specific steps to ban fracking in Wales?

I recognise the Member’s commitment in this general area. I took interest in the debate that he held at the end of October, where the motion was supported by the Cabinet Secretary at the time.

I am aware of that legal opinion, and officials are considering its content. It wouldn’t be appropriate for me to trespass on a policy area that is within the remit of the Cabinet Secretary, but I do understand that, at the end of last year, the Cabinet Secretary made a statement on energy policy generally, which talked about reducing our reliance on fossil fuels. Again, in September of this year, ambitious targets were set for that, and that is a positive development.

Letters have been issued to senior planning officials recently, informing them of the intention to consult on strengthening planning policy, specifically in the context of fossil fuels.

Can I also congratulate the new Counsel General on his appointment? Simon Thomas is again concentrating on the banning of fracking. Simon Thomas and I don't disagree on a lot of things regarding this, but I think it's far more important to have the power to ban test drilling. As you are well aware, in an area near where you used to live and near where I live, there is substantial test drilling going ahead, and as I've said on more than one occasion, people don't test drill because they're bored and looking for something to do, they test drill because they think they're going to find an opportunity to be able to frack in the near future. Consequently, if we stop the test drilling, it'll have a very important effect on them knowing where it is beneficial to frack. So, will you have the power, or will the Welsh Government have the power, to ban test drilling when the Act goes through—under the new Act, sorry?

There is already a precautionary planning framework, which exists in relation to unconventional oil and gas extraction. The town and country planning directive of 2015 does not include exploratory boreholes, as he mentioned, which sometimes are part of routine engineering works.