Chamber and committees

We still do not know when the Scottish National Party will deliver the additional 3,500 teachers promised in the 2021 manifesto—or the 4,310 additional teachers, if we include the overall deficit in teachers since that promise was made. None of that will reassure my 13-year-old constituent Adam, who has barely been in school since August. He is not thriving and no longer wants to attend school, because his additional needs are not being met. Will the First Minister apologise to Adam and his family, who are now investigating home schooling because they are desperate? Will he agree to meet them in the new year and take steps not only to support Adam but to reassure the thousands of children and young people across Scotland who are being failed by this total system failure?

To ask the First Minister what the Scottish Government’s response is to the recent Educational Institute of Scotland findings that young people with additional support needs are being let down, and teachers are experiencing stress due to inadequate resourcing, in light of the reported reduction of nearly 20 per cent in specialist ASN staff since 2010, despite a rise of over 710 per cent in the number of pupils requiring such support since 2007. (S6F-04540)

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 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.

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.

At that point, it might be helpful to bring in Roz Thomson.

I need a coffee.

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?

Especially if the perpetrator is in prison by then.

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?