Seòmar agus comataidhean

Good morning, cabinet secretary. I want to pick up on a couple of points that have been made in response to Mark Ruskell. With any form of criminal legislation of this nature, the lead agency responsible for its implementation, in seeking to pursue prosecutions, will be the Crown Office and Procurator Fiscal Service.

The Crown Office, in its evidence to the committee, said that it

“struggled to identify a scenario where the existing legislative framework would not be sufficient … most notably”

given the availability of the offence under section 40 of the 2014 act. However, it went on to say:

“If you are wanting to find a gap, I think that the gap relates to massive incidents where we would be limited in sentencing”,

because penalties are limited to sentences of five years under the 2014 act.

We then heard evidence from the legal expert Murdo MacLeod QC, who said:

“if Parliament thought that the sentence was lagging behind what it should be to mark the gravity of the offence, that five-year penalty could be amended”,—[Official Report, Net Zero, Energy and Transport Committee, 11 November 2025; c 7-8.]

which would obviously be done by amending the 2014 act.

In your earlier response, you mentioned that if the Crown Office was to try to pursue a prosecution under the bill—if it is passed and implemented—and was not successful in doing so, it could then use the 2014 act. However, my understanding is that the Crown Office, in its evidence, was saying that, because of the thresholds in the bill, it would actually be much more likely to prosecute under the 2014 act in order to secure a prosecution. Given the expertise of the Crown Office and the need to implement the bill, if it is passed, that raises a question as to the purpose of having a stand-alone offence.

Of course, we could just amend the 2014 act to increase the sentencing powers to include the imposition of sentences of 20 years. Why would we not do that?

Okay. To push you a bit further on that, will you clarify whether that incompatibility is based on existing case law rather than just an interpretation of ECHR?

Yes, I understand that point.

You mentioned that a bespoke bill could have a deterrent effect. I am always interested in the idea that new criminal law acts as a deterrent. What is the evidence to support the argument that a bespoke bill delivers a deterrent effect?

I have it here. I can read it, if that would be helpful. She said:

“It is difficult to have an evidence base for a deterrent effect but, instead of changing section 40, with its high penalties, the passage of a specific bill would probably attract some regulatory attention, press attention and corporate attention, which might strengthen the potential for a deterrent effect.”—[Official Report, Net Zero, Energy and Transport Committee, 4 November; c 8.]

Beyond the public relations aspects, I think that it is fair to say that there is not much evidence of a deterrent effect. My understanding of the deterrent effect of criminal legislation is that, broadly, the evidence says that, when people are committing criminal offences, the last thing that they are thinking about is the actual criminal penalty that would be applied to them.

In your policy memorandum, you have suggested that section 2(3), on defence provisions, is incompatible with the ECHR on the basis that it requires the accused to establish a defence of necessity on the “balance of probabilities”, whereas the ECHR operates on the basis of a presumption of innocence. Will you elaborate further on the Government’s view? Is the bill as drafted incompatible with the ECHR and existing case law?

If there is a lack of ownership in the governance processes, can that compromise accountability for the progress, or lack of progress, in key areas?

Richard Dixon mentioned that there is no section 36 report in the process now. What would help or enhance the governance process and the monitoring and tracking of progress, or lack of progress? What positive step could the Government take to change the existing draft plan to make it more transparent and accountable?

I wanted to come in on the back of the response from Richard Dixon, particularly on the issues of air departure tax and oil and gas. I have two points. The first is that there are fiscal challenges regarding arrangements for an air departure tax and the potential impact that it could have on interisland flights. The Scottish Government has now been seeking to get that issue resolved with the Treasury for the best part of a decade, but that has not yet been resolved. Are you taking that into account in highlighting any areas in which you think that there is a lack of leadership?

My second point is the issue of the Scottish Government setting out a timeline or process for reducing our reliance on oil and gas production. How do you expect the Scottish Government to deliver on that when it is not responsible for the licensing of exploration or the extraction of oil and gas in the North Sea?

That is helpful.

To stick with the issue of oil and gas, we have to be realistic about what we can expect the Scottish Government to do. All decisions about exploration and extraction rest with the UK Government and there is very little that the Scottish Government can do to change the use of the existing gas fields in the North Sea or of those still to be exploited. The timeline for deciding how that will be taken forward rests solely with the UK Government.

The fact that that is a declining basin has been recognised and acknowledged for the best part of a decade, if not longer, and the just transition fund for the north-east addresses that. I put it to you that the Scottish Government has already acknowledged that and that some of the work that it is doing is intended to address those issues. However, actually setting a timeline for when we will stop extracting oil and gas from the North Sea is not something that is in the gift of the Scottish Government.