Chamber and committees

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.

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 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.