Chamber and committees

I will come to local authorities in a second, cabinet secretary.

But if they are conforming with the consent—

Have you had any discussions with the planning minister—I suspect that you will not have done, given that you received the local government submissions only yesterday—about the implications for the planning system if the bill were to go through unamended, or if it went through without the right amendments being lodged to get it right?

Good morning. Cabinet secretary, you said that the bill has serious deficiencies, and a number of the witnesses who have given evidence to the committee are of the same opinion. Section 40 of the 2014 act has a defence for licensed, permitted and consented activities. The bill has no defence for those activities, which is a concern to industries, such as farming, fishing and renewables. Am I right in thinking that you indicated that the Government is looking to amend that aspect of the bill? If so, how does the Government intend to proceed in that regard?

I understand that you are willing to co-operate on all of this, and that is grand. I managed to read through the submissions from local authorities only yesterday; I think that they were received only yesterday. They give rise to a huge number of questions. The questions that I had have only increased by the responses from local authorities alone, and we have not yet heard from some of the other public bodies that will be taking decisions.

I understand that you will consider amendments, as will we, but what I am asking is whether there is enough time left in the parliamentary session to go through what is proposed in the bill in the amount of depth that is required to come up with the right amendments to get rid of all the possible unintended consequences.

I recognise that some people want to get the bill through, but we have heard today that that is the case largely because of a desire to give ecocide greater publicity and visibility. I get that. I am not averse to that, but I want us to have legislation that works and that does not have huge unintended consequences that could, for example, clog up our planning system and cause great grief. Do you think that we have the time to do all that?

Thank you.

—the permit or the licence, that is a defence, and you intend to lodge amendments to ensure that there is a defence, as there is in section 40 of the 2014 act.

I am keen to go over how much work the Government has carried out in its consideration of unintended consequences and the fact that there is apparently no defence in the bill that would prevent a regulator or a consenting body from being held liable for ecocide. I imagine that you will lodge amendments to change that. If you do not, I would certainly consider doing so.

In the past few weeks, the committee has written to local authorities at my behest. We have had a number of responses, which are somewhat concerning—in some cases, they are very concerning. Fife, for example, has a very experienced head of planning, Pam Ewen, who says:

“We support the intent of the Bill but strongly urge that:

Explicit defences for consented/licensed activities are included.

Enforcement responsibility remains with specialist agencies, not local authorities.

Definitions and thresholds are clarified and aligned with existing legislation.

Adequate resources and guidance are provided before implementation.

Without these changes, the Bill risks creating legal uncertainty, unrealistic expectations, and significant operational and financial burdens on local authorities.”

Renfrewshire Council has also responded, and it talks about the possibility of criminal prosecution influencing the approach of the planning authority, which could put the plan-led system at risk. The letter goes on to say that, if some of those impacts are not dealt with,

“Officers may be more inclined to decline to use delegated authority where there is a fear of a future criminal charge”

and that

“Elected Members on the board/committee may be more inclined to refuse applications”.

It goes even further by saying that

“Elected Members may not be willing to serve on the planning board/committee for fear of being involved any a decision which may later be the subject to criminal charge.”

That could lead to a huge amount of bureaucratic clog in the planning system. It could lead to huge amounts of, in some cases, quite small applications landing on the desk of the planning minister, for example, who might well think to themselves, “What do I do here? Is there a chance of me facing prosecution at a later date?”

I imagine that you will seek to amend the bill to prevent a regulator or consenting body from being held liable for ecocide, but have you looked at the issue in enough depth to be confident that we could deal with it through amendments, which would have to be lodged quite quickly if the bill proceeds any further in the very short period that remains of the parliamentary session?

I understand that the committee has received more correspondence this morning, which I have not yet seen, and I think that more will come in. The bill requires very serious scrutiny so that we can get rid of any unintended consequences, some of which you gave an indication of earlier.

Are there any other unintended consequences that we have not discussed this morning that need to be dealt with by amendment? Do you agree that, if the bill proceeds, for us to get it right, we should also look to amend aspects of section 40 of the Regulatory Reform (Scotland) Act 2014?

I will ask about acquiring and transferring ownership. Some aspects of that were covered earlier, in the discussion about the Westminster bill, including the third classification that Lord Hodge mentioned.

The Law Commission in England and Wales considered the concept of control of digital assets to be too nuanced to be helpfully codified in legislation. Do you think that the bill benefits from the use of control as a concept?