Seòmar agus comataidhean

You might have seen that we took evidence from NatureScot in which it suggested that 12 months is not an ideal definition of “long-term”, because it is very difficult to see how any ecosystem can recover, even from a relatively minor environmental impact over that timescale, so there are some questions about particular definitions in the bill. The question for us as a committee is whether we have the opportunity to think through a lot of that detail ahead of stage 2, which could come quite quickly on the back of stage 1. Therefore, your response to those questions at this point is quite important.

I appreciate that. I go back to my original question. Part of the argument that you make for creating an offence of ecocide is that it forces us to look from the top of that regulatory pyramid down at the regulatory framework, and there are questions that emerge from that. If we put a permitting defence into the bill, does that mean that we are totally okay with everything else in the regulatory framework that protects the environment and sits underneath that defence?

If we accept a permitting defence—there are a lot of other ifs in that regard, such as if the bill gets to stage 2—we are effectively creating a protection for regulators, consenting bodies and those who have permits. That leads to the question whether we are okay with that and whether we think that any potential ecocide events could happen under the current permitted regime. What I am getting from your answer is that the current regime is fine, but culpability and intention remain at the top of the pyramid and are not captured by the strict liability offence at its highest level. I will leave it there, but it is on the record.

We have received some evidence on the bill’s provisions being a deterrent. Will you expand on that? I am interested in what has been put in place in the European Union. As you say, there is now more emphasis on ecocide as a criminal offence. How has that changed the conversation—or not—with regulators and corporations? What is the impact of having ecocide in legislation? Is it a deterrent? What evidence do you have on that?

I can see that it is about the ecological coherence with the continental shelf and how it extends beyond that. I think that that is a good example.

You mentioned notification, storage, access and reporting around marine genetic resources, as well as co-ordination of potential area-based management tools. How do you anticipate that being organised? Would the UK Government lead on it, or would the Scottish Government want to feed in? I am just trying to picture what the activity is and the reality of the Scottish Government’s function within that.

Cabinet secretary, can you say a bit more about area-based management tools and how you anticipate the legislation working in a devolved context? What is the potential fix or amendment, or negotiated outcome, that you are looking for in relation to those tools? I am just trying to picture what, in practice, this all actually means.

Thank you.

I am picking up the point that there is now consensus on a permitting defence, which would potentially extend to consenting bodies. Everybody would covered by that. Can ecocide still occur, even within that regime? I am aware that there is a provision on overriding public interest in the habitats regulations, which are designed to protect species and habitats. A consenting body can effectively allow environmental damage to occur if it is seen to be in the wider public interest, whether because of climate change or some other issue. Have you considered that? We are considering the creation of a defence for consenting bodies, but a consenting body could intentionally and wilfully allow environmental damage to take place because it is in the wider public interest to do so.

It feels like the ground has shifted a little bit with respect to the bill, which I think is good, given the evidence that we have heard on the impact on consenting bodies and on those that have been granted permits. Within that space, however, I am now wondering whether that has been or needs to be considered.

I hope that that question is clear—it is probably not.

I want to ask you about the stand-alone offence of ecocide. Is there something quite different if somebody is convicted under the heading of ecocide? Leaving aside the penalties, which are obviously a lot higher, is there something quite different between that and a conviction under section 40 of the RRA? Is there a sense that a corporation might be fined or get a heavy penalty under section 40 of the act whereas, to a certain extent, individuals can hide behind that within a corporation? The committee is still trying to wheedle out the real strength of the stand-alone offence, so it would be good to get any reflections that you have on that from your expert working group or from wider consideration, referring to the value of the ecocide offence as compared with what COPFS might pursue through section 40 of the act, if it were to make a choice between one and the other.

That sounds pretty concrete. If corporations are putting ecocide into their risk registers, that goes right to the top, to board level, and it cuts across their legal fiduciary duties as companies. I am interested in that. Is there any more evidence from the corporate world about how practice is changing as a result of the concept of ecocide?

I guess that it would depend on the event, would it not? If there was a public inquiry into a major catastrophic event, reporting might follow anyway. That is food for thought. Thank you.