Official Report 855KB pdf
Welcome back. Our fifth item of business is an evidence session on the Ecocide (Scotland) Bill with the member in charge, Monica Lennon. I welcome Monica’s committee substitute, Sarah Boyack, to the meeting.
This will be our final evidence session before the committee reports on the bill’s general principles early in the new year. No stage 1 deadline has been set by the Parliamentary Bureau yet, but the committee has proposed a deadline of the end of January. I believe that we are close to agreeing on a timeline, and will hopefully do so this week.
I welcome to the meeting Monica Lennon MSP and her supporting officials: Roz Thomson, the principal clerk in the non-government bills unit and Ailidh Callander, a senior solicitor from the legal services office. Both are from the Scottish Parliament.
Monica, as is often the way, I will start with some easy questions, but before I do, you get to make an opening statement.
Good morning. I welcome the opportunity to give evidence on the general principles of the Ecocide (Scotland) Bill, and I thank the committee for the extensive scrutiny that it has undertaken so far.
Scotland must be more ambitious and effective when it comes to environmental protection. I hope that the bill helps us to recognise that the most egregious acts of environmental destruction must be treated as the serious crimes that they are.
I have found the scrutiny process at stage 1 incredibly valuable, not least in providing reassurance to stakeholders about the bill’s scope and, crucially, what it will not do. Let me be crystal clear that the bill will not criminalise legitimate licensed activities. It will not go after businesses that are operating responsibly under current regulations. I will happily support the Scottish Government’s proposed amendments on permits, which will make that fact abundantly clear.
I also reassure the committee that the bill will not clog up the planning system. As a former planner, I know that the planning system already considers environmental impacts and requires mitigating measures to prevent long-term harm. The bill is designed to sit far above that, at the top of the regulatory pyramid, to deter and punish acts of severe environmental destruction.
The definition of ecocide in the bill is not a new legal invention but is underpinned by familiar concepts in existing law, drawing on the Regulatory Reform (Scotland) Act 2014—known as the RRA.
I welcome the Cabinet Secretary for Climate Action and Energy’s confirmation that the Scottish Government is content with the definition. However, simply tweaking the RRA is not enough. The offence under the RRA is one of strict liability; it is not designed for the extremely serious nature of an ecocide offence. For example, changing the penalties from a maximum of five years imprisonment to eight years will not fundamentally alter how that offence functions.
That is why we need a stand-alone crime where the mental threshold and the associated penalties are high and which is designed to sit above the RRA. The new offence will give the Crown Office and Procurator Fiscal Service an essential additional option for prosecution for the most serious environmental crimes.
Furthermore, I welcome the Government’s proposed amendments that would ensure if the higher threshold for an ecocide conviction cannot be reached, alternative penalties under the RRA are still available. That tiered approach has precedent in other legislation and is a sensible step that strengthens the bill.
Turning to deterrence and changing behaviours, the severity of the penalty is an intentional and necessary deterrent. As the Law Society of Scotland observed in their submission, the new offence is expected to foster a
“change of behaviour towards environmental risk”,
acting as a clear, dissuasive message to those who might cause environmental harm.
This is about changing corporate culture and sending an unmistakable signal that Scotland places the value of its nature above illegal profit.
The support for the bill comes not just from environmental groups, but from within the compliance system, including Scottish Environment Protection Agency trade union members, who recognise the limits of the current legal framework. I am confident that the issues raised during stage 1 were carefully considered during the drafting process. However, I am pragmatic and have been listening. Where there is significant evidence that a tweak would strengthen the bill, I am prepared to act. I will happily work with the Government on amendments, specifically on: a clear permit defence, re-examining the reverse burden of proof, amending the reporting obligation and adding an explicit alternative conviction procedure, to ensure that the bill is robust and delivers its core purpose. Finally, although my bill does not address the issues of existing resources for regulatory bodies or the lack of prosecutions under existing legislation, I hope that those areas will be addressed by the Government as a complementary action to the bill.
The movement to criminalise ecocide is international, with many countries and the European Union recognising the need for action. Scotland’s nature is extraordinary, but we are also one of the most nature-depleted countries in the world. The level of support for the bill should reassure us that the people of Scotland care and that they want to see severe environmental damage criminalised to protect current and future generations. That is why I hope that the general principles of the bill will be welcomed by the committee. I look forward to your questions.
Thank you, Monica. I am glad that you made your opening statement, because it negated some of my questions. I will go to the questions that I am still keen to ask.
Can you briefly outline what engagement you had with stakeholders and the wider public before you lodged the bill? Were stakeholders either for or against any areas of the bill?
There was a 14-week consultation on the proposal, which started in November 2023 and ran until the beginning of February 2024. There was a significant response to the consultation, with more than 3,379 responses, including from 134 organisations. The majority of responses were from members of the public. A high majority—just over 95 per cent—of responses were fully supportive of the proposals; a further 3 per cent were partially supportive; and a very small minority of 34 respondents, or just over 1 per cent, were fully opposed to the proposal. The convener asked about opposition. Only one organisation, the Scottish Fisherman’s Federation, was fully opposed to the proposed bill.
Alongside the formal consultation process, I initiated an expert advisory group, bringing together the legal profession, academia, trade unions, scientists and people who represent the community voice. A bit like the committee, it has been another forum for robust scrutiny and challenging questions. There have been drop-in sessions in the Parliament and people have asked their MSPs about the bill, and there has been a lot of media interest in it. Alongside the formal process, I feel that the initial consultation was extensive and seemed to capture the public’s imagination.
You have heard during the evidence sessions, which you have attended, that there is some concern about an overlap between section 40 of the RRA and the bill. The cabinet secretary has alluded to the fact that, in principle, she is happy with the general principles of the bill. Can you explain to the committee and to me why you decided to pursue a separate offence, rather than amending section 40 of the RRA?
It is fantastic that the Scottish Government is supportive of the general principles of the bill. For a number of years, we have had discussions about the direction of travel with ecocide law internationally, particularly given the decision that has been taken by the EU. I am very aware of the Scottish Government’s policy to keep pace with the EU.
We wanted to explore how the current regulations work and whether simply amending the RRA, if that were possible, would be sufficient. My position is that that would not be sufficient. As I touched on in my opening remarks, the RRA includes a strict liability offence, whereas, as I hope the committee has learned through this process, when we talk about ecocide offences, we are talking about events that cause the most severe environmental harm, which would probably happen only once every 10 to 20 years.
In relation to the gravity of the harm and of the penalties, the bill differs from the RRA because, under the bill, it must be proven that the guilty party had a guilty mind when carrying out a guilty act. That is not the case under the RRA in relation to strict liability. Under the bill, it must be proven that someone acted with intent or recklessness, and it is right that there should be that test, because we consulted on the punishment being up to 20 years in prison, which the public have said that they support.
For other reasons that the committee is aware of, the Government or the Parliament could amend the RRA to increase the penalties, but that would not fundamentally change the offence—it would still be a strict liability offence.
I prefer to think of this as a regulatory pyramid, which has been mentioned by other stakeholders, including the Environmental Rights Centre for Scotland. It is not about having one or the other. I hope that having an ecocide offence at the apex of the pyramid will strengthen the RRA. Obviously, I will consider the amendments that are lodged, but, fundamentally, we need both a stand-alone bill on ecocide and the RRA to operate properly. I know that people have concerns about the enforceability of provisions in the RRA, given the low number of prosecutions. However, the need for a separate offence has come through in the consultation and in a lot of the evidence on the bill.
You said that it is not about having one or the other. If there was not enough evidence to go down the ecocide offence route, the Government could switch to the route involving amending the RRA, but, as we heard from the Government last week, that would require alternative conviction provision. Since you introduced the bill, have you had any discussions with the Government about alternative conviction provision?
During this parliamentary session, I have had regular discussions with the Scottish Government about how we can give effect to an ecocide law in Scotland. Those discussions have included the issues that the cabinet secretary referred to in her evidence and the issue that you have raised today.
I have been quite clear with the Government that I am very open to what it and, indeed, other members bring forward. It is clear that there is precedent in law for prosecutors and the courts to consider other routes to prosecution. That is the case with domestic abuse legislation, and there are other such examples. I want the bill to provide another tool in the toolbox. I do not want to tie the hands of prosecutors and the courts, and I do not think that the bill will do that. However, if a stage 2 amendment would help to provide clarity, I am absolutely happy to work with the Government on that.
The Crown Office and Procurator Fiscal Service was concerned that, if prosecutors went down the ecocide offence route and someone was proved to be not guilty, they would not be able to go down the RRA route afterwards. However, last week, the Government said that alternative conviction provision would enable prosecutors to go down the RRA route if it looked as though they would not get a conviction by going down the ecocide offence route, and the Government seemed open to that. Have you had any discussions with the Government about how such provision could be added to strengthen the bill?
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I can reassure the committee that I considered that at the drafting stage. That is not covered in the bill, but the constructive points made by the Crown Office and Procurator Fiscal Service and by the Government have been helpful. A number of statutory provisions already allow a court to convict for an alternative crime to the charge that is in the indictment. That means that the alternative charge is implied in the libelled charge without having to be specified. The minister and her officials have said that, in this case, that would mean that, if the charge in relation to ecocide is not proved, it would be possible to convict the accused of the lesser charge of significant environmental harm under section 40 of the RRA, if the facts proved against the accused amount to that offence. I do not have a problem with that.
I have had informal discussions with the Government since last week, and what I am hearing loudly from the Government is that it supports the general aims. It has set out areas where amendments would be desirable, and I am more than willing to work with the Government on those.
I am trying to understand how the bill could be amended to incorporate the alternative conviction provision. I guess that the Government might bring forward a proposal on that at the next stage, if the bill gets that far.
The question is fundamentally about the power to convict under alternative offences. It is a matter of ensuring that that discretion still applies to the Crown Office and Procurator Fiscal Service. After my time discussing that with the committee, I will be happy to discuss it with the Government. If the Government wants to lodge amendments on that in the cabinet secretary’s name I will respect that process and work with the Government; I am not putting up any obstacles to that. I think that the issue can easily be cleared up at stage 2.
I want to ask you about the stand-alone offence of ecocide. Is there something quite different if somebody is convicted under the heading of ecocide? Leaving aside the penalties, which are obviously a lot higher, is there something quite different between that and a conviction under section 40 of the RRA? Is there a sense that a corporation might be fined or get a heavy penalty under section 40 of the act whereas, to a certain extent, individuals can hide behind that within a corporation? The committee is still trying to wheedle out the real strength of the stand-alone offence, so it would be good to get any reflections that you have on that from your expert working group or from wider consideration, referring to the value of the ecocide offence as compared with what COPFS might pursue through section 40 of the act, if it were to make a choice between one and the other.
Stepping back from some of the more legal and technical points, I heard from the expert advisory group and many other stakeholders that, when ecocide is discussed internationally and with corporate organisations, it brings to people’s minds the risk of being prosecuted for ecocide and the huge reputational damage that comes with that. Serious people understand that we are talking about the most catastrophic environmental harm; we are not talking about low-level offences that can be covered by the RRA just now. I hope that the bill will ensure that decision makers and the controlling minds of organisations will not be at all flippant or casual with environmental risks. It is about changing corporate behaviours and changing attitudes to risk.
In a Scottish domestic setting, the bill will give our compliance system and our justice system another lever to pull. I hope that the bill, if it becomes law, does not have to be utilised, because if we were to deal with an ecocide event in Scotland, that would be very serious. The intention is for the provisions in the bill to be a strong deterrent, given the reputational risk to corporations.
We also need to consider the activities of organised criminal gangs and remember that environmental crime is a fast-growing area of crime around the world. There is a particular study of it in the European context, and it has been noted that it is seen as low risk in terms of fines and custodial sentences. There is a feeling that the consequences are not that serious. With ecocide law, we are trying to change that. It is about ensuring that Scotland keeps up with our neighbours across the European Union and the many other countries around the world that are seeking to act.
We have talked a lot about what is happening in the EU to criminalise ecocide-level crimes. There is an important distinction between that and what we have in regulations at present. The bill is about saying to people, “You could go to prison for up to 20 years,” and it is about getting that into the mindsets of decision makers as well.
Last week, Douglas Lumsden put a question to the cabinet secretary—I think that he was playing devil’s advocate—about whether the bill would put off investors from coming to Scotland. However, the concern that we should all have is why any corporation would want to get away with ecocide. It is about making sure that ecocide is beyond the pale and something that will not be tolerated in any jurisdiction. The examples of the revision to the Belgian penal code and what we are seeing in France and other countries show that Scotland will not be the first to act, or the outlier. We are seeing many other jurisdictions do this.
We have received some evidence on the bill’s provisions being a deterrent. Will you expand on that? I am interested in what has been put in place in the European Union. As you say, there is now more emphasis on ecocide as a criminal offence. How has that changed the conversation—or not—with regulators and corporations? What is the impact of having ecocide in legislation? Is it a deterrent? What evidence do you have on that?
It is difficult to quantify that. When something has not happened, it is hard to prove why it did not happen. However, on your point about whether it is changing the conversation, the answer is yes. When I first stumbled across the concept and the movement for ecocide law in 2021, in the build up to the 26th UN climate change conference of the parties—COP26—I did not know much about it. In the years since then, it feels as if there has been an announcement about it every week from another country or part of the world. Whether at the UN or in the discussions that have been taken to the International Court of Justice, it is becoming a more mainstream topic.
I have also seen a number of briefings from high-profile law firms to their clients to prepare them for ecocide law becoming a reality not just domestically but internationally. Even the prospect of that has got people thinking. Jojo Mehta, the chief executive officer of Stop Ecocide International, talks about the business engagement that it has been having around the world. Big corporations are now putting ecocide law on their risk registers because they are taking it very seriously. They are forecasting that ecocide could become an international crime in a matter of years. We are already seeing it emerging in lots of jurisdictions.
Ecocide law is no longer an abstract concept. It is becoming mainstream, and European member states will have to fully transpose and adopt the environmental crime directive by May next year.
That sounds pretty concrete. If corporations are putting ecocide into their risk registers, that goes right to the top, to board level, and it cuts across their legal fiduciary duties as companies. I am interested in that. Is there any more evidence from the corporate world about how practice is changing as a result of the concept of ecocide?
Some of the submissions to the original consultation picked that up—I am not certain whether it was in the responses to the call for views, but organisations such as Pensions for Purpose are trying to do things more ethically and responsibly. We have all seen examples of companies being lobbied due to being perceived not to be acting ethically. There is huge public support for ecocide law, not just among those who responded to my bill. Extensive public polling across the G20 nations shows significant support in every one of the G20 countries.
It is hard to prove the deterrent effect, but a number of stakeholders have touched on it, saying that they believe that the bill would have such an effect. If the bill is passed, we would expect some publicity around it and for the Scottish Government and others to bring it into mainstream conversation in Scotland, alongside any training for people who might be professionally impacted by it.
I am happy to provide the committee with more information that is specifically from the business and corporate world, but I am confident that those conversations are happening.
Thank you—that is helpful. I think that it adds to the evidence that we have taken already. Before other colleagues come in, I will move on to briefly discuss the definition of ecocide. The committee has spent a bit of time looking at the terms in your bill, such as “widespread” and “long-term”, the latter of which has been defined in the bill as 12 months. There is no definition of “serious adverse effects”. I am interested in your reflections on the evidence that we have taken, particularly in relation to the concerns around those specific terms. What is your response to those concerns, as you head into stage 1?
As I said in my opening remarks, I am not trying to invent something new here. That is why we see similarity with the RRA in terms of definitions. It is positive that the Scottish Government is saying that it accepts the definition in the bill. There are, rightly, questions about clarity, for example about how we would define “widespread” and how we can be sure what that term means. Again, it would depend on the exact circumstances, and we would have to look at it on a case-by-case basis. I ask colleagues, when they are thinking about ecocide, to think about the harm that is being caused. Would something that is quite low level—someone last week asked me about something like silly string on the high street that is causing nuisance and littering—constitute ecocide? Obviously, it would not, because it is not causing widespread, long-term environmental harm. It is easier to rule out what is not ecocide. I hope that the committee sees that I have tried to stick to established definitions. If the committee wants reassurance on particular points, I am happy to try to provide that.
You might have seen that we took evidence from NatureScot in which it suggested that 12 months is not an ideal definition of “long-term”, because it is very difficult to see how any ecosystem can recover, even from a relatively minor environmental impact over that timescale, so there are some questions about particular definitions in the bill. The question for us as a committee is whether we have the opportunity to think through a lot of that detail ahead of stage 2, which could come quite quickly on the back of stage 1. Therefore, your response to those questions at this point is quite important.
10:45
The issue of the definitions of “widespread” and “long-term” has come up a few times. The definition of long-term damage comes from the expert panel international definition of ecocide, which I have tweaked a little bit. The panel defines long-term damage as damage that is
“irreversible or which cannot be redressed through natural recovery within a reasonable period of time”.
We used 12 months because it is recognisable and there is a body of case law around it. NatureScot is an important stakeholder in this conversation, and I appreciate that you have heard everyone suggesting that a derogation for 12 months could be required in certain circumstances. If the committee thinks that the addition of a specific timeframe is not necessary and that the bill should be amended to reflect that, I am amenable to that.
Thank you.
We are reading over the evidence on what we mean by ecocide. Is it a catastrophic single incident that causes widespread and obvious damage? Is it a course of conduct by a single operator over a much longer period, with incremental damage leading to what some might interpret as ecocide?
Environmental Standards Scotland said that it was not clear
“how the cumulative impact of a number of events over an extended period would be captured”,—[Official Report, Net Zero, Energy and Transport Committee, 4 November 2025; c 26.]
but the Crown Office took a different view, saying that
“the definitions in relation to course of conduct are pretty clear in the provisions”.—[Official Report, Net Zero, Energy and Transport Committee, 11 November 2025; c 9.]
There is therefore a bit of conflict in the evidence that we have heard. It would be helpful to know what the policy intent is, and whether you considered all that in developing the bill. What is your view on how the definition might capture that type of harm? Are the provisions clear in the bill, and what is the policy intent in relation to it?
I will pick up on the policy intent first, because I hope that that will be helpful. The intention behind my bill is to prevent mass environmental damage and destruction through crimes of ecocide. One way in which I am trying to do that is by having strong punishments to act as a deterrent.
I will run through the policy objectives if that is helpful. They seek to ensure that serious environmental offences are treated as criminal offences. That is the distinction from the RRA. The intention is to act as a deterrent to individuals and companies, and to ensure that our domestic legislation maintains alignment with EU legislation.
On some of the points that you have made, particularly around the cumulative impact—or maybe you were getting at incremental steps—the starting point is to look at the extent of the harm that has been caused and work back from there to see whether the elements of the offence are established. To bring it back to what the bill says, that is about whether the person intended to cause environmental harm or was reckless as to whether harm was caused. That is what is different from the RRA, under which there is strict liability and the mens rea test is not applied; it is simply that the act has happened and the court does not have to prove that there was intent or reckless conduct. An ecocide-level event could be something that happens over a period of time, but the main point that I am asking the committee to think about is the harm that was caused and whether it can be proved that intentional or reckless conduct led to that harm.
That is helpful. I know that there is a threshold that would apply to whether the test for the criminal offence has been met. However, you have talked about the offence happening over a period of time and I am trying to flesh that out a little bit. There is an event and there is a process and there could be a distinction between those, although maybe not in the eventual outcome of what could be defined as an ecocide. Whether a company, a farmer or an organisation is doing something in good faith or not, as the case may be—that would have to be established—in the past 10 years, the test for an ecocide might not be met from one year to the next.
If we do a compare and contrast from 2011 to 2021 on biodiversity or anything else, we might find that there has been a stark change and that the test has been met. Is there a particular time period that must apply, or are the provisions completely open ended, covering a course of conduct over one year, two years, five years or 10 years, irrespective of what the threshold is for reckless conduct and so on?
I want to be clear about the starting point, which should be to ascertain what harm has been caused. That may involve SEPA investigating and the Crown Office and Procurator Fiscal Service then looking at the evidence as to what caused the incident to happen and what the intent was. As I hope I set out in my opening remarks, I have listened to evidence and I have heard about the Government’s intention to provide clarity for activities and individuals who have a permit. If an activity has a permit and if people or organisations are acting within the limits of that permit, they will not cause environmental harm. Ecocide will not arise if people are sticking to the parameters of a permit. If there is an incident of ecocide and a case is prosecuted, the starting point is what the actual damage is. It could be that, according to analysis, the offence was occurring over a period of weeks or months, or the incident could have just happened—boom—in a single day. It will very much depend on the circumstances of the particular case and the offence.
I am trying to show that there is a difference between the provisions of the RRA and those of the bill. We are not looking to go after individuals and businesses that have a permit and are carrying out an activity lawfully. The bill concerns instances of severe environmental destruction where there is evidence of intent or recklessness—where the perpetrator closed their mind to the potential damage that they were causing.
That is helpful, Monica. I will not push further, other than to ask for a tiny bit of clarity. What you have said previously about operating under a licence or permit has been helpful, but there is no specific time period for that. Theoretically, if someone meets the threshold that you have put on record, but the process concerned occurred over a longer time—perhaps a number of years—that could still meet the threshold for ecocide. You have spoken about weeks and months, but an individual event could take place over a number of years, theoretically. I just want to get clarity on that.
I think that I understand your point, but I bring it back to the questions of what harm has been caused and what harm has been investigated. What does the evidence say? Was there intent? Was there reckless conduct? If it is evident that mens rea cannot be proved, the regulators or the police could look to ascertain whether an activity has breached the limits of its permit. That would be considered under the existing regulations—which others who are more expert than me can comment on.
If someone has a permit and it has not been apparent initially that there has been a breach of that permit, damage could have been occurring over a period of time. However, that would be down to individual circumstances. In all such matters there would be case-by-case assessment. That is why I think that it would be good to have the option of investigating whether something is an ecocide offence—which should be a very serious criminal matter—or something that comes under the current regulations, which is a strict liability offence. You are familiar with how that operates.
That is helpful. A number of witnesses have suggested to the committee that an ecocide offence should explicitly cover omissions or failures to act, as is the case under section 40 of the RRA, as I understand it. However, last week, the cabinet secretary seemed to say that that would not be necessary, because, as it stands, the bill would already cover that. Is it the policy intention of the bill to include omissions as well as acts? If that is the case, are you satisfied that the bill is clear on that?
I want to reinforce the point that, under the bill, the ecocide offence would not be a strict liability offence, unlike the offence of significant harm in the RRA. Under the bill, a person would commit an offence if they intended to cause environmental harm or were reckless about whether environmental harm would be caused. Recklessness requires that the person closed their mind to the consequences of their actions and to whether any environmental harm would come about as a result.
Recklessness is accepted as sufficing to constitute a criminally guilty mind. I felt that that was important, given the serious nature of the proposed crime and the punishment for it, which would be up to 20 years in prison, unlimited fines, publicity notices and compensation orders. Omission, in contrast, does not necessarily involve knowledge or a high degree of culpability. That was my reasoning.
For the record, I know that the Government does not think that the bill needs to be amended in that respect, but, as the member in charge of the bill, do you think that there is a need for greater clarity?
I would be open to looking at any of the committee’s recommendations, but I am in the same space as the Scottish Government on that. Some strong points have been made on the matter, but given that we are looking at criminal law, which has high penalties, it is very important that the mens rea test is included. Omission would not necessarily involve knowledge or a high degree of culpability. From where I am sitting, if someone potentially faces 20 years in prison, it is really important that there is proof of intent or recklessness.
Michael Matheson is next.
Good morning. I want to stick with the thresholds for liability in the bill. You will have heard and read some of the evidence that the committee has received, which raises questions about whether the thresholds are appropriate, largely on the basis that the provisions do not include negligence. Currently, section 1 requires intent or recklessness, and the threshold for responsible officials is “consent or connivance”. Could you explain why you have chosen not to include negligence in the provision?
That was given detailed consideration during the drafting process. It was recognised that all three possibilities—consent, connivance or neglect—are provided for in the RRA, but neglect is not provided for in some circumstances. The rationale is that consent and connivance both require a high degree of knowledge and fault, whereas neglect does not involve knowledge or a high degree of culpability. Therefore, in some circumstances, it might be unfair to allow individual criminal liability to be founded on the basis of neglect alone.
Are you of the view that the existing thresholds are sufficient, or do you think that there might be a need to amend them on the basis of the evidence that we have heard to date?
In what way?
To include negligence.
At the moment, I am not persuaded on that, but if the committee felt strongly about it based on evidence, I would look at it for stage 2.
11:00
Will you clarify the bill’s policy intention with regard to the definition of a “responsible individual”? We have received evidence that suggests that the table that you have provided in section 3(4) is likely to include people who might be viewed as non-senior staff. Is that the bill’s intention? If it is not, how will you seek to address that?
My intention is to ensure that only individuals at a senior level in organisations are covered by section 3. That goes back to the point that I made to Mark Ruskell about the controlling minds in an organisation, where the power lies in an organisation and those who have overall oversight. My view is that prosecutions should be aimed at those people.
My clear intention is that individuals at a lower level in an organisation—those in middle management and below—should not be subject to prosecution under section 3. That point came across strongly from the expert advisory group, which has been in place for a while and includes representatives of trade unions and other groups. In the consultation, Unison Scotland and the Centre for Climate Crime and Climate Justice raised concerns about the punishment of workers, and recommendations were made that the bill should include additional protections for whistleblowers, although I did not feel that I could put such provisions in the bill. There has been quite a lot of discussion about the issue, and I know that it has played out in the stage 1 evidence.
In relation to the definition of “responsible official”, if a non-senior member of staff acted in such a way that they committed an offence under the bill, including under section 3, who should be prosecuted?
It would all depend on the evidence. The evidence would point to the guilty mind.
What if the evidence pointed to a non-senior member of staff? If their actions resulted in an offence under the bill, who should be prosecuted?
It is important to be clear that this issue is not unique to the bill. Employees are not immune from potential conviction if it is proven that they have committed a criminal offence—in this case, ecocide. For an ecocide offence to occur, the person—whether it is an employee or an employer—must have caused severe environmental harm and have intended to cause that harm or been reckless. I go back to the point about intent and recklessness. It will be for the Crown Office and Procurator Fiscal Service to determine, based on the evidence that is available, whether an ecocide offence has been committed and, if so, who should be charged.
I do not say this naively, but I really hope that we do not have to use the ecocide law. As is set out in the policy memorandum and the financial memorandum, we estimate that such events will be rare—they might take place once every 10 to 20 years. If the offence did not meet the ecocide thresholds, it would be dealt with under other regulations. However, by having an ecocide law, organisations will have a responsibility to ensure that good practice and knowledge percolate throughout their organisations. I hope that that will protect workers and middle managers from the threat of prosecution and from the impact of any ecocide crime.
These are important questions, and a lot of it will come down to what the evidence says in any particular case, but I hope that workers and managers will not be in a situation in which their organisation is investigated for ecocide.
Sure. As you have mentioned, the policy intention is to target senior management, but the threshold for liability in section 1 relates to intent and recklessness, so the actions of a non-senior member of staff could make them liable under the bill if it were enacted. Is my understanding of that correct?
At that point, it might be helpful to bring in Roz Thomson.
On the drafting process, I note that the Regulatory Reform (Scotland) Act 2014 includes managers in its definition of responsible officials, who are considered to be lower-level members of staff. Monica Lennon specifically asked for the term “manager” to be left out of the table that Michael Matheson referred to, in response to concerns from Unison and others about members of staff on very low grades being caught by the provision. The drafting deliberately seeks to avoid that. Should somebody feel that they have been coerced to act in a particular way by somebody senior in an organisation, there are provisions in existing legislation that they would already be able to use as a defence, so that does not need to be in the bill.
The other thing to add is that, if somebody did something and somebody much more senior in the organisation was aware of that, the more senior individual could be prosecuted through vicarious liability.
I want to be clear in my understanding of this. Under section 1, the requirement for intent and recklessness means that, if there were evidence to suggest that a non-senior member of staff had acted in such a way, they could be prosecuted under the bill. I know what the policy intention is, but I am trying to be clear about whether, despite the stated intention, the provisions of the bill would not prevent a non-senior member of staff from being prosecuted. Is that correct?
I have made the policy intention clear, as Roz has helpfully explained. However, on that particular legal point, it is probably best to bring in the lawyer. Ailidh, would it be okay if you addressed that point?
Yes. If the elements of the offence were made out, a non-senior member of staff could be prosecuted. Obviously, whether to bring a prosecution would be a decision for the Crown Office and Procurator Fiscal Service.
It would also be important to consider the vicarious liability provisions in section 4, which would provide that, if that person was an employee, the employer could be prosecuted, too. Section 4(4) confirms that proceedings could be taken against the company or the employer, irrespective of whether they were taken against the employee.
Again, it would come back to whether the elements of the offence were made out. The prosecutorial decision would be for the Crown Office and Procurator Fiscal Service.
Just so that we are clear, although there is a certain policy intention, the provisions of the bill could be applied to any employee.
They could be applied to any individual.
Any individual could be prosecuted under the bill as it is drafted.
Yes—any individual, regardless of what capacity they were acting in.
Okay.
You will have heard in last week’s evidence from the Cabinet Secretary for Climate Action and Energy that the Scottish Government considers that the bill as introduced is not compatible with the European convention on human rights. She referred specifically to section 2(3), which is on establishing a defence of necessity
“on the balance of probabilities”.
Do you believe that the Scottish Government’s view that that is not compatible with the ECHR is correct? If so, what consideration did you give to that when you were drafting the provision in the bill?
I do not disbelieve the Scottish Government. As you know, the Scottish Government does not share its legal advice with people who are outwith the Government, but we have had good discussions about that. It was raised early on in our dialogue and, to an extent, I have had to accept what the Government says about it. If it is helpful, I can set out why I included the defence of necessity in the way that I did. I reinforce the point that I made in my opening remarks: I am happy to work with the Government on the amendment that it intends to lodge.
Section 2 provides for a defence of necessity that a person may use if they are charged with ecocide. The defence is that a person’s actions were carried out to prevent greater harm from occurring and that the prevention of harm was necessary and reasonable. Under the bill, the person who is charged with ecocide is responsible for demonstrating, on the balance of probabilities, that they had such a defence. I included that defence because I felt that there might be very rare circumstances in which a person could conceivably act in a way that may risk ecocide in order to prevent greater harm, such as avoiding significant loss of human life.
In relation to article 6(2) of the ECHR, I considered the reverse onus provision, as did the Presiding Officer, and we concluded that it was within the reasonable limits permitted by the convention and was, therefore, within the legislative competence of this Parliament. That said, the Scottish Government’s points are persuasive, because it says that the reverse burden could be problematic during a trial in practical terms, which is why an evidential burden might be more suitable.
You asked whether I believe the Government; I do not disbelieve the Government, and if it is happy to lodge amendments, I will not object to that.
That is helpful. I am conscious that, as the member who introduced the bill, you are relying on advice from the non-Government bills unit and the Parliament’s legal team. This question is specifically for the Parliament’s legal team: why did you not identify the bill’s lack of compatibility with the ECHR?
As Monica Lennon set out, the issue was given careful consideration during the drafting of the bill. As the committee heard last week, it comes down to a question of proportionality. The convention does not prohibit reverse onus provisions or reverse burdens within criminal offences, and they are found in other bits of legislation, including around mental disorder and domestic abuse. It was felt that it was an appropriate provision in this context, in which the individual accused would be best placed to know their mental state at the time of the offence, and it was considered that that was within the reasonable limits permitted by the convention.
However, as Ms Lennon set out, if it is a question of putting that beyond doubt for the reasons that were set out by the Scottish Government, the member is considering that.
From the Parliament’s point of view, do you consider that the bill is compatible with the ECHR?
It is for the member and the Presiding Officer to separately consider that.
I am asking you directly, given that you are the lawyer who has been giving advice on the matter. Do you consider that it is compatible with the ECHR?
It is necessary to look at both the statements that were given when the bill was introduced. The Presiding Officer’s assessment is separate from the member’s.
So you consider that the bill is compatible with the ECHR.
I think that it comes down to a question of proportionality, and it is a fine line. The issue is where that line is drawn.
Okay—thank you.
I refer members to my entry in the register of members’ interests. Unison has been mentioned, and I am a member of Unison.
The bill does not provide a defence for an operator of permitted, licensed or consented activities. You will be aware that the committee has heard mixed views on that, with some people considering that consented activities would be unlikely to reach the mens rea standard of “intent of recklessness”. Extremely serious concerns about regulatory certainty have also been raised. Why did you take the decision not to include a permitting defence in the bill, and what is your current position on the issue, having heard all the evidence?
Thank you for your questions, today and throughout the evidence at stage 1. Those has helped to improve people’s understanding of what the RRA already does, and have brought into the discussion the important role of planning authorities and others in the consenting regime.
11:15I am reassured that, in principle, the planning authorities that have responded have said that they support the aims of the bill, but legitimate questions have been asked, so—
We will come to consenting bodies, including planning authorities, in a little while, but first I am asking about the operator viewpoints. We heard from the likes of NFU Scotland, the Scottish Fishermen’s Federation and others that they have concerns about the fact that the bill could cover activities that have been consented to, permitted or licensed. Perhaps we could deal with the operators first, if you do not mind, and then we can come to the individual consenting bodies.
Sure. I have set out these points in earlier answers. The bill seeks to introduce a criminal offence of ecocide, and for a successful prosecution to happen, there has to be evidence that there was intent or reckless conduct. There is a distinction with those organisations that have permits, which are already subject to the provisions of the RRA regarding strict liability offence. I cannot think of an example of where a member of the NFU or the Scottish Fishermen’s Federation has gone out with intent or recklessness to cause ecocide.
You mentioned the Scottish Fishermen’s Federation. The SFF opposed the bill in the consultation because it said that it did not think that there was a need for any more legislation. NFU Scotland gave a fairly neutral response in writing to the committee; when it came to committee, it went a bit further. Nonetheless, we had a round-table discussion with NFU Scotland at which I spoke to many members; they were really positive about the bill and felt that it would give them protection from bad actors.
The bill is not about going after businesses in your region or my region that engage in legitimate business and have a consent or permit and operate within that. It is about situations in which there has been intent or recklessness that has caused severe environmental destruction on the scale of a one-in-20-years event—something pretty catastrophic.
The SFF has suggested that the bill as drafted creates a huge amount of legal uncertainty. Are you willing, at a future stage, to accept amendments that will provide a defence for operators of permitted, licensed or consented activities?
I do not think that I accept that the bill will cause a huge amount of legal uncertainty. We heard good evidence from the Law Society of Scotland, from King’s counsel and from a number of stakeholders that the bill will sit at the apex of environmental law. I know that the member disagrees, but we have heard that it will sit at the top of the pyramid, and I hope that it will also help to strengthen the application of the RRA, which would give the Crown Office and Procurator Fiscal Service options.
It unsettles me that there are certain trade bodies, industries or businesses that are very frightened by the prospect of ecocide law. We are trying—collectively, I think, given that, although I am the member in charge of the bill, it has been a cross-party endeavour and has a huge amount of cross-party support—to ensure that we can prevent ecocide from happening as far as possible.
However, it is important that if a business or an individual has a permit or a licence, they can operate in good faith within the confines of that. It is also important to give certainty to those in the regulatory space. I do not have any concerns about that, having worked professionally in that space for a long time before I came to Parliament.
We have legal certainty about when the RRA can and cannot be applied and we set it out clearly that the threshold for ecocide crime is very high and there needs to be evidence of intent or recklessness.
You mentioned the RRA. It provides for certain defences. Do you not think that your bill should act in a similar manner in that regard?
The fear and legal uncertainty that some organisations express is not necessarily because they think that they are doing anything wrong at the moment that would lead to ecocide but because some future scientific discovery might show that something that they did over a long period might have caused difficulties. Those folks are quite worried about the unknowns. That is a genuine worry; it is not a blockage for the sake of blockage.
That is a helpful recap. I can provide reassurance on that point. I repeat the point, which I made in my opening statement, that I am happy to work with the Government on amendments, including for a clear permit defence. However, I make the distinction that, if there is intent and recklessness that goes beyond what is covered in a permit, a behaviour could be an ecocide offence. However, if the people who you have in mind operate lawfully within their permits, they do not have to worry about it.
It is not me who has to be convinced on that but them.
I said that I will work on an amendment with the Government, which said last week that it wanted to address that point. A clear permit defence can be addressed easily at stage 2.
Equally, there is no defence in the bill that would prevent a consenting body from being held liable for ecocide. You started to go over some of the issues that we have heard about from planning authorities. Those letters came in after I raised issues at the committee on aspects of that matter. Some people did not really think that there was an issue with it. However, the letters from local authorities clearly show that they have concerns about that aspect of the bill. You said that you will work with the Government on amendments, but are there circumstances in which you believe that regulators should be held liable for causing severe environmental harm through authorised acts?
I bring you back to the policy aim of the bill. I seek to prevent environmental destruction. That is the motivation. We are trying to prevent ecocide-level crimes. Every day, planning authorities, for example, assess environmental impact. They look at potential harm. If an element of harm is identified that could result from a development, they also then consider mitigation that could be put in place. Planners are pretty skilled in dealing with that every day.
On why there is no defence for a regulator or licensing body against being held liable for ecocide under the bill, I will go over what is in section 40 of the RRA. There are specific provisions in that section to provide that those who grant relevant permits—for example, regulators such as SEPA—are not committing an offence. That is necessary, because it is a strict liability offence.
Under the bill, for an ecocide offence to occur, the person must cause “severe environmental harm” and either intend to cause it or be reckless as to whether it is caused. I am finding it difficult to think of a scenario in which a regulator or licensing body would intend to cause or be reckless as to whether it causes environmental harm when permitting relevant activities.
I will give an example. In taking decisions, planners, councillors and planning ministers often have to perform a fine balancing act in looking at everything that is going on in a particular place before giving permission for an activity. Sometimes, advice is given to the effect that there might be an impact on a particular species, possibly a rare species, and folk are not certain about what might happen if permission is granted but have to make a decision about it. If they have made a decision in favour of granting permission and it is later found that there has been a major impact on a species—which some might regard as ecocide—what then happens and who is liable? Those are the unanswered questions that are in the minds of many folk. Again, that is about the creation of legal uncertainty.
We could get into hypothetical situations, but I will say that, when planning authorities are weighing up the likelihood of possible environmental harms, they already have to apply the precautionary principle under existing legislation, whether through national planning framework 4 or other guidance that is available to planning authorities. We have a very established regime of environmental impact assessment. As a former planning minister, you know that planning authorities have to set out their reasoning and be very clear on the material considerations that have been taken into account if they approve a development or depart from the local development plan in any way.
Take, for example, a situation where there is an awareness of a particular protected species in a locality that could be affected in some way but reasoning has been given as to why the planning authority is satisfied—perhaps because mitigation could be put in place through a buffer zone around an area where bats are known to fly, or whatever—and there then comes a point where the Crown Office is looking at an ecocide case and is trying to work out how the severe environmental destruction happened, who was responsible, who closed their mind to the possible harm and who intentionally caused it to happen or acted in a reckless manner. I cannot think of a circumstance in which planning officers, councils or a planning minister could, based on the best available evidence, be found guilty of intending to cause ecocide in that situation.
I go back to my point that some folk feel that there is legal uncertainty around that. Having explored this, I think that there could be a number of unintended consequences from some parts of the bill as drafted. You have said that you are willing to work with the Government and others to amend it. That is admirable and we would expect that. I do not think that anyone is against the spirit of the bill.
However, I think that there needs to be some further exploration around potential amendments. Would you be favourable to that? Do you think that there is enough time in this session for us to take cognisance of the real concerns that have been raised by operators and consenting authorities?
11:30
I am confident that the Parliament has time to progress the bill if it goes beyond stage 1. As we know, it is for any member to lodge amendments and, as I have said to the Government, I will work with any member and will listen carefully to them. If there is significant evidence that amendments are required in the areas that Mr Stewart is talking about, I will be open to listening.
Points have been made about planning authorities already feeling a burden with workloads, resourcing and having another thing to take into account. I am very sympathetic to planning authorities, who are saying that they already deal with very complex issues and that, if we ask them to think about anything else, they will need resources. I am very alive to that point.
I have wanted to be clear today that ecocide offences go way beyond what is covered in the RRA: they are the most serious, catastrophic environmental impacts that you can think of. For an individual—a natural or legal person—to be prosecuted and convicted, it has to be proven that there was intent or recklessness.
I worked as a chartered town planner for more than 12 years before I came here, and I declare that my husband is currently in a planning authority. I do not want him to go to jail—who would make my dinner every night? The serious point is that I respect the important work that our planning authorities and others involved in the consenting regime do. The bill is not aimed at them. I have been very clear—given the criminal sanctions, including up to 20 years in prison—why the mens rea test, which does not occur under the RRA in relation to strict liability, is really important.
I cannot think of a circumstance that would involve a planning authority, given all the checks and balances from the case officer to the planning committee. Mr Stewart is correct that the planning minister would be the decision maker in some cases. I have sat in the offices at Victoria quay and provided advice to ministers on such matters. Knowing about all the checks and balances, I cannot imagine a situation where anyone in the planning system would have the intent or would act with recklessness to allow something like ecocide to occur.
I am confident that all the other countries that are legislating to give effect to ecocide law, including Belgium and others that the committee has heard about, will have had the same discussions, and they are able to progress the law in their own jurisdictions. I have every faith in my colleagues in this committee room and across the Parliament that we can focus our minds on the policy aims and the general principles of the bill. A number of amendments have been discussed already, particularly by the Government, and we are advancing those discussions.
A lot of the evidence has suggested that stronger enforcement of the existing law is as important as, if not more important than, creating a new offence. At any point did you consider strengthening section 40 of the RRA? At any point did you think that one of the ways of putting ecocide on the statute book would be through an amendment to the existing act?
Absolutely: I have looked at everything. I have considered the current legal framework and the number of prosecutions and convictions under the RRA.
I return to the point that, although it is of course possible to amend the RRA to increase the punishment, that would not fundamentally change the offence—it would still be a strict liability offence. To deter something as serious as ecocide from occurring, we have to get into the space of criminal law and impose much stronger penalties. It is only right and fair that, if you are proposing to take someone’s liberty away for up to 20 years—and considering all the other measures in the bill around punishment—there has to be a higher bar. That is where the mens rea test comes in. We have to prove not just that what was done was a guilty act, which can be done under the RRA’s strict liability provisions, but that there was a guilty mind as well. That is the point about intent.
I will always support measures to boost enforcement powers. When I was a young planner back in 2001, the planning enforcement officers were the people who moaned the loudest: they felt that they were at the bottom of the food chain in the planning system. They probably still feel that way. The committee has scrutinised resourcing for SEPA and NatureScot over the years. We know that our local authorities are feeling hollowed out and able just to do the bare minimum around their statutory functions. They are feeling the pressure.
I am very sympathetic to all those arguments but, even if we fully resourced all the regulatory bodies with respect to their current responsibilities, that does not give us the equivalent to an ecocide law. I hope that the member understands the point that I am making.
There are some follow-up questions in this area. I will move to Mark Ruskell first, and then I have a question. I am looking to see whether any other committee member has a question, too.
I am picking up the point that there is now consensus on a permitting defence, which would potentially extend to consenting bodies. Everybody would covered by that. Can ecocide still occur, even within that regime? I am aware that there is a provision on overriding public interest in the habitats regulations, which are designed to protect species and habitats. A consenting body can effectively allow environmental damage to occur if it is seen to be in the wider public interest, whether because of climate change or some other issue. Have you considered that? We are considering the creation of a defence for consenting bodies, but a consenting body could intentionally and wilfully allow environmental damage to take place because it is in the wider public interest to do so.
It feels like the ground has shifted a little bit with respect to the bill, which I think is good, given the evidence that we have heard on the impact on consenting bodies and on those that have been granted permits. Within that space, however, I am now wondering whether that has been or needs to be considered.
I hope that that question is clear—it is probably not.
No—I understand the points that Mr Ruskell is making. This is an opportunity for me to be clear that, when I am talking about trying to protect Scotland’s natural environment, I am not saying that having an ecocide law is the silver bullet or will be the answer to absolutely everything. I hope that I have been clear, in the policy memorandum, that an ecocide offence is extremely rare—there are between one and 10 in 20 years. We have existing regulations for lower-level offences—although they could still be very significant—including the Environmental Liability (Scotland) Regulations 2009, which cover
“significant adverse effects on ... protected species or natural habitat”.
We have a number of tools in the toolbox already.
We can see the direction of travel for some stage 2 amendments, and I hope that I have shown willingness to work with the Government and colleagues.
However, the point that I want to leave with colleagues today is that having ecocide law sitting at the top of that regulatory pyramid would bring us into alignment with the EU and many other countries. Ecocide law is now out of the box and it is just a matter of time until all those other countries get around to enacting it. We can see that there is momentum towards having an international crime of ecocide. That is not a matter for us in this room to decide, but we can see the wider global context.
It is important that those who work in the regulatory space have certainty, and here I want to make a point that does not really address Mark Ruskell’s question. There have rightly been questions about whether the bill will cause uncertainty for those who are trying to build houses and Scotland’s infrastructure while making a profit, which is perfectly legitimate. We are not going after legitimate businesses that have the right permits in place. To go back to the convener’s original question, during the consultation and all the engagement that I had with many stakeholders, I heard that the bill is not anti-business; it is pro-responsibility.
Some businesses in Scotland are already saying that, although they are not impacted by ecocide, they are impacted when a minority of businesses and others do not do the right thing. That includes the criminal gangs who carry out business activities that impact on the environment and who feel that those activities are low risk because the penalties and punishment are just not there.
I am not saying that this is ecocide, but I give the recent example of a whole town in England becoming a dumping ground: people were collecting waste, charging for it and then dumping it on a site in the town. I do not know what the environmental impact is of that, but people are questioning how something like that can happen in plain sight, and under the current legislation in England, the maximum criminal penalty would be five years in prison.
I appreciate that. I go back to my original question. Part of the argument that you make for creating an offence of ecocide is that it forces us to look from the top of that regulatory pyramid down at the regulatory framework, and there are questions that emerge from that. If we put a permitting defence into the bill, does that mean that we are totally okay with everything else in the regulatory framework that protects the environment and sits underneath that defence?
If we accept a permitting defence—there are a lot of other ifs in that regard, such as if the bill gets to stage 2—we are effectively creating a protection for regulators, consenting bodies and those who have permits. That leads to the question whether we are okay with that and whether we think that any potential ecocide events could happen under the current permitted regime. What I am getting from your answer is that the current regime is fine, but culpability and intention remain at the top of the pyramid and are not captured by the strict liability offence at its highest level. I will leave it there, but it is on the record.
The final word on that is that my policy aim is to prevent severe environmental destruction. That is what creating an offence of ecocide under criminal law is about.
If the bill is passed, it might open up a wider conversation about all the other regulations that we have. If we are keeping pace with the EU, for example, things might have to change anyway. If passing the bill encourages the Scottish Government and others to look afresh at the scope of existing regulations, how they operate and their resourcing, that can only be a good thing.
If we were not talking about ecocide law, perhaps all that would not receive the same level of attention. I therefore thank everybody on the committee for all your questions because we have put some things into the mind of the Government and others about whether we have all the right enforcement powers in place. I am thinking about some of the questions that have been asked about the marine environment, for example, or some of the cross-border issues.
It is very much a topical, on-going discussion and I know that conversations about ecocide law are also being held at Westminster. Things are moving pretty quickly, but if it means that we get a bit sharper and look at everything from planning to all the different regulations that Mark Ruskell mentioned, that can only be a good thing.
Douglas, did you have a question on this subject?
11:45
Yes, I have a follow-up to Kevin Stewart’s question. A couple of local authorities have suggested that the bill might cause some problems. For example, Moray Council said:
“National Planning Framework 4 allows excavation of deep peat for renewable energy developments. This is an action that would otherwise possibly fall within the definition of ecocide.”
Would it be a defence that NPF4 allowed that to take place?
Planning authorities make decisions based on current legislation and the policy of the Scottish Government; they also consider local circumstances. They will be informed by environmental impact assessments. If a private developer is responsible for a project, it will have to provide support and documentation, which will be looked at independently by the planning authority. There is already a very robust regime for that. If the Government’s policy position on peat extraction changed, how the planners operate would also have to change.
It is right and proper that any planning authority, including Moray Council, considers NPF4 and all other relevant legislation, strategies, policies and guidance. However, if there was any concern about whether a legitimate business with a planning application and consent had operated in a way that gave rise to environmental harm, it would be considered under the RRA, initially.
If what happened were to be considered ecocide—as I have said, we are looking to lodge an amendment related to this at stage 2—it would have to be very reckless and intentional, and it would have to be shown that no one tried to stop it. That is very far away from what Douglas Lumsden described.
There is another example in Highland Council’s letter, which describes a few situations, including one involving an underground cable from Dundonnel to Beauly and one involving Coul Links golf course, which, it says,
“could be viewed as reckless if the development was granted against advice relating to environmental harm.”
In that instance, an environmental NGO could put in an objection.
It is all about risk for planning authorities. If the bill were in place, would it make it too risky for the council to grant permission to some of those projects?
No, I do not think that it would. The bill does not change the assessment of environmental, economic and social impacts. We have very well-established processes in the land-use planning system that assess all the different considerations.
You were perhaps hinting at environmental damage that could be caused by an underground cable in the Highlands, but I am not sure what damage there could be. In each particular case, we would have to consider the harm that had been caused, its nature and gravity and whether it was widespread or long term. You said that an environmental NGO could object. Did you mean a statutory consultee that had given a response to the planning authority?
No. Anyone could write in and say, “This could be an ecocide event.” I am just trying to understand whether that would plant a seed of doubt in the planning authority’s mind. It might think, “Hold on; this is a bit too risky. We will not accept this application, because it might be seen as an ecocide event in years to come.”
If members of the public or other interested parties respond to every planning application saying that it is ecocide, I do not think that that will be taken seriously. Again, this is about proportionality. We have a very robust and well-established tradition in Scotland. We have a planning system that works, and legislation is very clear about who the statutory consultees are, and they are trusted voices and experts. I am talking about SEPA, NatureScot and Transport Scotland—you know the list. It includes community councils, because the community voice is important. However, if someone writes to a planning authority advising it, “Don’t do this, because it will cause ecocide,” that has to be evidenced in some way.
If it is about statutory consultees—I think that you are saying that they were mentioned by that particular authority—and their objection was dismissed, there are checks and balances in the system to ensure that when something is raised as a very serious departure from advice, that could be notified to ministers or called in. There are well-established processes, but what you describe from those letters relates to fairly routine—albeit major—planning applications, which planning authorities look at every single day. In doing so, they weigh up all those considerations, always based on the best available evidence.
Convener, I was going to go on to my next point.
I will ask a question first, if I may, and then I will bring you in on your next point.
Monica, I have just heard two members questioning you on concerns about the consenting aspect. There is a way of allaying people’s concerns, because those concerns come from outside the committee, and that is for you, the Government or individual members to lodge amendments to get round them. I am not sure that I have heard this from you, and I might have got this wrong, but did you say that you were not going to lodge amendments and that it is up to other people to lodge amendments, or will you be lodging amendments in light of what you have heard this morning from committee members?
Just to clarify, convener, I understand that it is open to any member to lodge amendments. There could be members who are not here today who would want to lodge amendments. My general point is that I will act in good faith with all of them. I think that I have been clear about the areas that the Government is seeking to amend, which include the permit defence, re-examining the reverse burden of proof, amending the reporting obligation—we have not talked about that today, but I am absolutely fine with what Government says on it—and adding an explicit alternative conviction provision. That is all fine. I also hope that I have been clear in response to questions from members, including from Kevin Stewart.
I will reserve my position to see what is in the committee report, because I cannot prejudge what will be in it. However, if the committee makes recommendations on amendments or is still seeking clarity at that point, I will look at that. As the member in charge of the bill, it is very much in my interest to try to be in the driving seat as much as possible. As I did with my previous member’s bill, I will probably think about amendments. I am not trying to outsource that to others.
I am just wondering, Monica, whether you have been swayed by the arguments that you have heard this morning from members around the table about concerns regarding the consent process.
I am sympathetic. I have read the responses from individual planning authorities, many of which, while not being identical, are very similar. I know that Heads of Planning Scotland met and that COSLA has responded, and there are a number of responses that echo one another. The planning community is a small community. I am not making light of that at all, because I know that people who work in a planning authority are under a lot of scrutiny. It can be a thankless job, particularly if it involves a development that attracts a lot of objection and a lot of community response.
There is sometimes pressure from developers. The vast majority of developers behave impeccably, but I know of cases in which planning officers and other officials have been bullied or intimidated. That goes on. I have discussed that with Unison. That is why the points about protection for workers and people on the front line are not lost on me.
I hope that I have been clear in what I have said about a permit defence. I will take away colleagues’ comments and reflect on whether something needs to be done to provide the comfort that people in the planning world and others in the regulatory space are looking for. I hope that I have been clear about the policy aims and intentions. In discussions with me and the committee, the Government has mapped out areas where clarity and comfort can be provided through amendments.
As I said to Mr Stewart, I am confident that we can use the time that is left in the parliamentary session wisely and efficiently. My door is open—I will listen to colleagues and work with everyone. There will be further opportunities for other MSPs to drop in and have a chat with me.
I always feel that I am in the hot seat when we get short of time, but the clock never stops, so short answers and short questions will help me. However, I do not want to stifle debate, especially on a member’s bill that that has been introduced by a member of this committee.
I welcome what Ms Lennon has said about her door being open to those who are likely to lodge amendments. My problem is that, as we have gone on with our consideration of the bill, other cans of worms have been opened. We have heard from the planning authorities, and, of late, I have been listening to elected members in councils who have just cottoned on to the bill. It is fine for us to be able to lodge amendments, but it is simply not possible to listen to all the concerns in the time available, and that causes me a huge degree of concern.
Some members were doubtful about how planners would see the bill, and those doubts have been shown to be justified. Now, I am hearing from elected members, who are saying, “I don’t know whether I would vote for that.” That must all be taken into consideration if we are to get the legislation absolutely right. I come back to my point about the level of unintended consequences that the bill might have, which we need to explore further.
I remind the committee that the consultation on the proposal for the bill started in November 2023 and ran for 14 weeks, so some of the questions and issues that you have raised are not new. Perhaps people are saying those things now because the committee proactively wrote to the planning authorities and asked them to respond. That might be why those views are being presented to the committee in a very concentrated way. However, such questions are not new and are not unique to Scotland. I could point you to elected members, planning professionals and others, including scientists at SEPA, who strongly welcome and agree with the bill.
I remind the committee that the planning authorities say that they support the general principle. These are not new issues. Glasgow City Council responded to the committee’s call for views over the summer. The Convention of Scottish Local Authorities is taking a fairly neutral view—it is saying that it will look at the bill down the line if it needs to.
My door is open. I will speak to COSLA and to Heads of Planning Scotland. Obviously, my door is open to you, Kevin—I might even put the kettle on. There is plenty of time to do all that. Mention was made of the Royal Town Planning Institute Scotland. As a former member of that body, I would be happy to chat to it.
We have also seen compelling and clear support from many other organisations that the bill would do what it says on the tin. It is about trying to protect Scotland from severe environmental destruction that is carried out in an intentional or reckless manner. It has strong penalties and sends a strong signal to anyone who might think that they could get away with a crime of that nature. I hope that the bill will also strengthen people’s understanding of the RRA.
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I have not come across anyone who is against the general principles of the bill. However, as the bill stands at the moment, there is a real fear about unintended consequences. I believe that some folk want to have time to feed in their concerns so that we get any amendments right.
My concern is that it is very late in the day in this parliamentary session, and I do not know whether we are going to do justice to the folks who have concerns, given the time that is required. I get Ms Lennon’s point about the 14-week consultation that ran from November 2023, but she knows as well as I do that folk sometimes do not come forward at initial consultations because they do not see how something will impact them, just as I do not think that the planners realised how much the bill could impact them until they got that letter.
I am sure that Monica Lennon will want to respond to that.
Yes. I am not sure what the question was, but I will push back a little, because there were a number of assertions in there. The parliamentary timetable is not a matter for me—we are in the hands of the Parliament. If people have minds that are closed to the bill and want to believe that we do not have time and want to try to wreck the bill, that is not under my control.
We have to be careful when we say things such as there being a lot of fear out there. I do not think that the evidence shows that. I will not repeat all the numbers, but we saw huge public support for the bill in the consultation, and a huge number of organisations from all parts of civil society, including business, support the bill. It is clear that the bill adds something different from the RRA.
We have had a batch of responses from planning authorities, who very politely responded to the committee’s request. It is clear that there has been some collaboration and discussion. I think that, at the root of that, there is a bit of misunderstanding. If people are saying that they are frightened or scared and that there are unintended consequences, we all have a responsibility as elected members of Parliament to bring them back to the facts of the bill.
I will take that point away, because I have been speaking to elected members from different political parties who are very enthusiastic about the bill and who feel that it would help them to protect their communities from ecocide. I know that a number of local authorities are looking at possible motions. It is not for me to go out and mobilise a campaign to do that; I am just trying to take the Parliament through the rationale of the bill, in a calm and considered way, and to be clear about what the bill does and does not cover.
People out there are asking me whether the bill is a way to stop X, Y and Z sectors, and I am pushing back against that and saying no. I absolutely agree that, if businesses or operators have obtained a licence or permit and are acting within the law, they should be left alone to get on and do that, and the regulators should be allowed to regulate that in confidence. In a world post the introduction of an ecocide law, if new planning applications come in, the same tools and assessments will be available to planning authorities and judgments will be made. The bill might help to improve transparency about why decisions were taken and why an issue was settled on—there might be some environmental impact, but the authority could set out how that can be mitigated or why a decision has been taken. However, that is nothing new.
Therefore, I do not accept that there is widespread fear in Scotland or among planning authorities about the bill. I reinforce my point that there is significant public support for the bill. It will be on me to make sure that, at stage 2, we have amendments that address concerns, where there is evidence for them. I have said that I will work with the Government and members to do that. I will be an active participant, convener—I will not just sit back and leave others to do the work. Believe me, I have worked very hard on the concept since 2021. I do not know whether Mr Stewart has worked on a member’s bill—it takes time. I do not have the whole of the civil service behind me, but I am working with the Government—that is an important point. I am working constructively with the Government, more than 50 MSPs signed the final proposal, and the Government did not intervene to say, “We are going to amend the RRA. We are going to give effect to this.” The Government has allowed me to advance the bill, and there is a shared aspiration to keep pace with the EU—when we look around us and at our near neighbours, we do not want Scotland to be left behind.
Monica, you are proposing a maximum penalty of 20 years’ imprisonment. Why did you settle on that figure, rather than on 10 years, as they have in France, or the minimum of eight years that is in the EU environmental crime directive?
Again, the principal aim is for the bill to have that deterrent effect—up to 20 years in prison is a very serious punishment. In order for the bill to have the maximum deterrent effect, it had to go beyond the current penalty under the RRA, which is up to five years. There are some other examples in the European Union. I think that in Belgium, for example—sorry, it is getting late in the session and I will probably get this wrong—it might be 15 years. However, again, the aim is to set the bar really high.
Why did you rule out eight or 10 years? Was it just a case of you wanting to make it as high as possible in order to make that deterrent effect as big as possible?
I was listening to what stakeholders were saying. In its evidence at stage 1, the Environmental Rights Centre for Scotland said that the maximum term is aligned with the evolving criminalisation of ecocide in other jurisdictions, where it carries a penalty of imprisonment of up to 10 to 20 years. Again, examples include the Belgian penal code and the French climate and resilience law.
In the consultation, I asked a question about imprisonment to see whether people felt that such a penalty was right or whether they wanted something different. Some 2,600 people said that they supported imprisonment—79 per cent of respondents were fully supportive, and 14 per cent were partially supportive.
The aim is to reflect the seriousness of the crime. I have a wee list here—I have mentioned ERCS, but Unison Scotland and Scottish Environment LINK also fully supported the proposed penalty in principle, stating that it was proportionate to the harm that was caused and that it was aligned with approaches in other jurisdictions. I do not want Scotland to look like a soft touch on this. If we are going to have ecocide law, I want us to do it properly.
I want to follow up on EU alignment and discuss the issue of penalties. We took quite a lot of evidence from witnesses who had a range of different views about the exact detail of potential penalties. Some witnesses said in response to the call for views that the bill should go further in some areas, including in relation to penalties, by looking at what has been discussed in the environmental crime directive and looking beyond traditional types of penalties. Some issues that were considered included restricting a company’s operations, turnover-based fines and remediation orders.
I am keen to get your views on remediation orders, which is one issue that was discussed by witnesses. Having listened to, or seen in writing, the evidence that different witnesses gave, do you think that there is a case for expanding any of the penalty provisions in the bill?
One of the policy aims has been to align with the EU environmental crime directive while trying to ensure that we have the right penalties and punishments in place in a Scottish setting. As well as a custodial sentence and unlimited fines, the bill has provisions on compensation and publicity orders. However, I will turn to Roz Thomson to respond to that specific point.
In relation to remediation orders, there is already provision in the bill about fine levels, the extent that money can be taken back and compensation orders, which could be used to pay for restoration.
One of the thoughts about restoration is that the nature of an ecocide event might be such that the damage cannot be entirely undone, so it would not necessarily be possible to have full remediation. During the drafting of the bill, there was a focus on the collective impact of all the different measures in the bill combined with existing legislation. For example, there is already capacity to seize assets from organisations under other legislation.
Basically, you do not think that there is a need to reference remediation explicitly because it could be delivered through other elements of the bill if it was appropriate and possible. I just want to get that on the record.
Yes. So far, I have not felt it necessary to state it in the bill. To reinforce Roz Thomson’s answer, I note that there are other provisions on the proceeds of crime and, I suppose, the compensation element of the bill. Where work can be done on any sort of clean-up, that is another way to ensure that the polluter pays so that the financial burden does not fall on communities, local authorities or others.
I do not think that there is a gap in relation to remediation but, if you have further questions on that, I can take the point away and take some advice on it.
No. It was just that one of the witnesses said that it is a curiosity that it is not specifically included in the bill. The issue is about explaining the options that come from the current legal provisions that are referred to in the bill.
I am trying to remember what SEPA said, so I am looking for that now. There are already civil remedies available to SEPA to drive restoration and, as we heard, there is existing environmental legislation that covers restoration. Given the gravity of ecocide, I did not include them in the bill and the focus is instead on compensation. We believe that that can include the cost of remediation.
I repeat the point that Roz Thomson made. Given the scale of ecocide, particularly if the damage that was caused was irreversible, remediation might not be an option. It has therefore not been made explicit in the bill. My understanding is that remediation would be covered under the compensation provisions, but I will take that away and double-check our thinking on it.
What was appropriate at the time would depend on different cases in which legal proceedings were brought, but remediation is not excluded from the bill even though it is not explicitly referenced in it. Is that a correct interpretation?
Yes. That is my understanding, but I will bring in Ailidh Callander on the legal point, because it is considered case by case.
Section 7 is explicit that the compensation orders can include the costs of remediation. It was felt that, given the severe nature of ecocide, the costs should be reclaimable by those who are responsible for the clean-up or have suffered from the damage that was caused. That could be anyone—it could be SEPA, a local authority or individuals—but they would be doing the remediation, as opposed to the perpetrator or the accused, given the serious nature of the offence.
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Especially if the perpetrator is in prison by then.
Michael Matheson has a supplementary question.
I seek clarification with regard to the Proceeds of Crime Act 2002. I remember serving on a committee, if I recall correctly, that dealt with aspects of that legislation. It deals with the pursuit of assets that have been obtained through illegal activity, rather than criminal offences being committed and some form of remediation being claimed from the perpetrator. Can you clarify how that would work in relation to the bill?
Under the 2002 act, the Crown Office would secure an order of confiscation, and it would then be for the individual to demonstrate that they did not gain those assets through illegal activities. I do not understand how that would apply in this instance. Can you help me to understand that?
Again, it would depend on individual cases. If it was at all relevant—it is highly possible that it is not—it would be a matter for the discretion of the courts on application by the Crown Office.
A criminal conviction is not required to pursue a proceeds of crime matter. The Crown Office can go to the court and say, “This person has so much wealth that we believe they got it through criminal activity”, and seek a confiscation order. The individual then has to prove that that is not how they gained that wealth. I am just trying to understand how that would interact with the bill.
I will turn to Ailidh Callander on that. There are existing powers under the Proceeds of Crime Act 2002 to enable the police and other law enforcement agencies to investigate, search and seize assets that were obtained by criminal activity. There has been a question—not today, but previously—about why that is not in the bill. It is because that power already exists, and that is a matter to be left to the discretion of the courts on submission of a relevant application by the Crown Office.
Have I got that wrong, Ailidh?
No. The question came up in response to concerns. If we look at the other options in the European environmental crime directive with regard to what happens with proceeds from the crime of ecocide, that is where the provision would kick in if we are talking about those proceeds. There is no need to legislate further on the proceeds of crime.
I think that I understand, but I am not entirely sure that the Proceeds of Crime Act 2002 is the legislation that would be referred to in that respect. Anyway, I will leave it there.
We go back to Sarah Boyack.
I move on to the financial memorandum and how the bill’s provisions would be implemented. SEPA has raised concerns that the financial memorandum underestimates the costs of implementation. NatureScot has said that, as things stand, it does not think that the extension of enforcement powers would apply to it, so it would need to work with SEPA.
There are a few questions about the detail of implementation. Have you thought through how the implementation costs would be met by the public sector organisations that would be required to implement the provisions?
Careful consideration has been given to all those matters. The bill includes provisions to ensure that SEPA’s existing investigatory powers can be used and it anticipates that SEPA will use existing processes and procedures to investigate any reported cases of ecocide, including liaising with COPFS. That was the basis for the methodology in the financial memorandum.
Although SEPA may be required to dedicate significant resource to the investigation of any reported instance of ecocide if the bill is enacted, any such offence would previously have been looked into as an offence under existing environmental legislation, including section 40 of the RRA. It is not anticipated that SEPA would incur notable additional on-going costs as a result of the introduction of the bill’s enforcement provisions.
Having said that, I acknowledge the point that SEPA made in evidence when it said:
“the scale of such events ... will require significant effort/resource, training and support. Scale, resource implications and training requirements should also reflect the breadth of reporting agencies that could be involved.”
It again emphasised the point about the scale of ecocide. On that basis, I acknowledge that SEPA’s costs could be higher than those that are set out in the financial memorandum. I take that point.
NatureScot has questions about funding, and local authorities also raised concerns that they would not be likely to have the resources that they would need to engage in an ecocide investigation. Will you clarify or explain how the expansion of powers in section 9 relates to the existing regulatory remits of public bodies? As the member who is leading on the bill, which bodies do you think would be expected to lead on an ecocide investigation?
I read the comments from COSLA and some of the planning authorities about resources. Although local authorities would need to be informed and made aware of any ecocide offences that could impact on their localities, it is not anticipated that the bill would generate any additional financial obligations for them. Councils can often be the first bodies to hear about environmental offences—people might phone or email their local council—but they have to report serious cases to SEPA, and it is SEPA that would be the primary enforcement or investigatory body for this matter.
I am always sympathetic to local authorities regarding their financial settlement and their capacity to do the jobs that they want to do. However, a severe environmental incident that occurs must, under existing regulations, be dealt with by our public sector regulatory bodies. In relation to the financial memorandum, other costs could kick in when a serious incident is dealt with that is likely to be at the level of ecocide. However, other adjustments would take out reporting costs from the financial memorandum.
Roz, is there anything about local authorities or SEPA that I have not mentioned?
As well as the focus on SEPA, another organisation’s role that we considered is that of the police. However, I understand that there is an existing unit at Gartcosh where SEPA and the police work closely together. We took existing practices into account while acknowledging the point about the scale of an ecocide event.
I just wanted to flag up that SEPA has raised concerns that the financial memorandum does not cover what it thinks the cost would be for it to proceed with an inquiry.
I have acknowledged the points that SEPA has made. When you put together a financial memorandum, you have to use the best information and evidence that is available at the time. However, I think that any rise in costs would be minimal. I do not want to say that this is a cheap bill, but the overall conclusion of the financial memorandum is that it is not an expensive bill compared with many others. I will be interested to see what the committee says about the costs in its report.
I reinforce the point that we already have well-established systems in place whereby highly expert SEPA officials are embedded in the Police Scotland crime campus at Gartcosh. I think that I learned that from Michael Matheson a few months back. I asked him, “Do you think I could get in to visit?” He said, “No.”
[Inaudible.]—I do not think that they would.
That shows the seriousness of the investigations that they do. Bearing in mind that not everyone who they investigate is a legitimate businessperson and that there are lots of nasty people out there, it is important that those officers remain faceless and that we do not name any of them.
We have the systems in place already. Is there a question about resources? There always is, but let us remember that the bill covers ecocide, which is very rare. It might happen once every 10 to 20 years.
Thank you. Back to the convener.
I hoped that you were going to say that, Sarah. The final question will come from Mark Ruskell because, if we were not up against the clock before, we are now. I encourage Mark to ask a short question and Monica to give a short answer.
There are two views on reporting. The Scottish Government would like the reporting requirements to be removed from the bill, but you have received some alternative views. Some stakeholders would like there to be an incident-level reporting provision so that, if an ecocide offence was committed and there was a conviction, there would be some kind of reporting after the incident. What are your views on that?
I have pretty much said that I agree with the Government on that. I will keep my answer short and not go over the background around the environmental crime directive, which I have tried to mirror. I appreciate that, if there has not been an ecocide event, a requirement to produce a report would be burdensome against the potential to save some money—I cannot remember the exact amount, but it is something like £50,000. I am amenable to removing that provision at stage 2, if we get there.
If the committee says in its report that there would be merit in a report following an ecocide event, I will be happy to look at that. The Government might be amenable to that, but I do not have a strong position on it either way. I will be guided by recommendations and will work with the Government on it, too.
I guess that it would depend on the event, would it not? If there was a public inquiry into a major catastrophic event, reporting might follow anyway. That is food for thought. Thank you.
Thanks very much—
Convener, before we move into private session, I would like to make a point of clarification, please. I have had a look at chapter 12 of standing orders, which is on committee procedures. Earlier, you said that politics should be left at the door of the committee room, which I thought was rather a strange phrase to say in a Parliament, including in a parliamentary committee. There is nothing in standing orders—in chapter 12, on committee procedures—that says that that is the case. Will you please reflect on what you said earlier in your decision to close me down for asking what I think was a relevant question?
Of course, Mr Stewart—I will reflect on it. In the reasonable and responsible way in which I have tried to convene committee meetings for nine years, I will look back at the Official Report. I will check exactly what you said and exactly what I said. I will then reflect on what I said and whether it is correct, and I will come back to the committee on that. I do not have the benefit of being able to check standing orders during a committee meeting, but please be assured that I always try to convene this committee in a way that I think is reasonable.
Give me a chance to reflect on what I said and what you said, a chance to speak to the clerks and a chance to reflect on standing orders, and I will, of course, come back to the committee on that—I will be delighted to do so, Mr Stewart. I hope that you will accept that comment.
Did you say that that was a point of order?
I said that it was a point of clarification.
It was a point of clarification. That is good, because—
We cannot have points of order in committee. I read the standing orders, which I am very prone to do. [Laughter.]
Thank you very much, Mr Stewart. I will come back to you in the fullness of time, but it will be before we break up for the recess.
Monica, thank you very much for giving evidence to us this morning. By my calculation, unless I am corrected, you sat there for two hours and 12 minutes giving evidence on your bill. That is quite a marathon for anyone who comes in front of a committee, let alone a committee that you normally sit on.
I need a coffee.
You could have had coffee, Monica. You are always welcome to drink coffee.
We will go into private session to reflect on the evidence on the Ecocide (Scotland) Bill. Monica, I think that we will see you again in the latter part of our private session, once we have considered the evidence on your bill.
12:29 Meeting continued in private until 13:02.