Chamber and committees

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.

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.

It would all depend on the evidence. The evidence would point to the guilty mind.

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.

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.

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.

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.

Yes. That is my understanding, but I will bring in Ailidh Callander on the legal point, because it is considered case by case.

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?

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.