Did Nicola Sturgeon deceive the Scottish parliament when she said: “there is a ban on fracking in Scotland”? Probably, is it a resigning issue, probably not and here is my thinking on this?
When you ban something you simply stop it from happening from a position of authority. Ok, now there are two ways that can happen. A ban can be imposed by a person, organisation or government by invoking the law. The only way that can happen in the UK is by the Westminster government banning it because the law regarding Fracking is a reserved area. So could the Scottish government have banned fracking by using their legislative power? Almost certainly the answer to that is no.
OK, so the other way you can impose a ban is by making something legally impossible to happen by using a power allowed under the devolution settlement, and that is what the Scottish Government have done. Planning is a devolved power and the Scottish Government have decreed that no planning application for fracking will be allowed.
Jim Radcliff is jumping up and down because his lawyers kind of messed things up as it would appear they took the Scottish government to court on the basis that they had no legal right to ban fracking when, if anything they should have taken out the action against the Scottish government for misuse of their responsibilities under the planning act.
To use an analogy, suppose someone owned the land a loch sat on but not the water and they wished to stop people swimming in this loch but did not have the power to stop them. They could open a dam and allow the water to drain away thus making it impossible for anyone to swim in the Loch, for the simple fact that the Loch no longer existed, without actually banning them. Not perhaps a perfect analogy but same principal.
I do think Nicola Sturgeon should apologise for misleading the public as the inference in what she said after the extensive consultation and investigation into the effects of fracking was that it was a legal ban. But on balance, not a resigning matter.
However, I do think she should resign for allowing the independence cause to get into the present mess that it is in.