Chamber and committees

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.”

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.

In what way?

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.

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.

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.

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.

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.

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.

I 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—

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.