Seòmar agus comataidhean

Given the concerns that you have raised, do you believe, as I do, that, if the bill proceeds, it is really important that we get any amendments in early, so that we can take evidence on them and know whether they are any good?

I congratulate the industry on complying with the recommendation of the Rural Economy and Connectivity Committee’s report from 2018 on providing data. The problem is that, for nine years, the industry provided figures for total weight of fish loss, and now they go on numbers of fish lost. Will the cabinet secretary speak to the industry to see whether it can continue to report in the way that it did for nine years and not break what is a sequence of very useful data?

I congratulate Monica Lennon on introducing the bill. I know that she has put a huge amount of work into it, and we have had a good discussion at stage 1. I thank all those who engaged with the committee during our scrutiny of the bill and, in particular, the committee members and our clerks for their hard work and diligence during the process.

The committee agreed from the start that this is a debate worth having. There is a case to be made for strengthening the law. We heard views that the current legal framework lacks an apex offence for serious environmental damage, with penalties to match. We heard about the potential deterrent effect that the new offence might create and how it might influence corporate behaviour for the good, even if prosecutions are rare. We heard views that it would be one way—not necessarily the only way—to keep pace with revised European law.

However, the committee also found two other things. First, the evidence as to whether there is much of a gap in the law is finely balanced. Regulators and prosecutors told us that the existing powers—in particular, section 40 of the Regulatory Reform (Scotland) Act 2014—appear to be more than capable of addressing quite serious harm. They struggled to identify examples of cases that would clearly have met the proposed ecocide threshold.

Secondly, and even more importantly, our scrutiny found significant concerns about the clarity and workability of definitions of key terms in the bill such as “severe environmental harm”, “widespread” and “serious adverse effects”. Prosecutors and regulators emphasised the importance of legal certainty, especially if prosecution could mean a huge fine or a long spell in prison. Doubts were raised about whether some of the current drafting has the legal certainty that is required.

There was also a concern about unintended consequences. I referred to the potential deterrent effect as an argument for the bill. It could affect risk appetite, but there is another side of the coin. The bill does not provide a defence of carrying out permitted activities or exercising lawful functions, such as approving a planning application. We heard serious concerns about that. We heard that the bill could have a chilling effect on decision makers.

Then there are the practical challenges of enforcement, such as those of establishing the thought process in complex corporate cases, of getting right the detail of employer liability and of allowing alternative convictions if the jury is not persuaded that the conduct was bad enough to justify a finding of ecocide. There is also the fact that the current section 40 offence has barely been used at all. Why is that? That needs to be looked at.

If the Parliament agrees to the general principles of the bill, those issues are not going to go away. The committee was not unanimous on the general principles, but all of us agreed that if the bill reaches stage 2, evidence will need to be taken on those matters—including views from experts on the wording of the proposed amendments. Most of us doubted that there was sufficient time left to get it right and ensure that we have a robust, workable law on the statute book. It is fair to say that I am concerned about where we go from here.

There are two bits of unsolicited advice that I give to the members in the next parliamentary session, from somebody who will not be here in May. First, please let us not have members’ bills on complex, controversial issues introduced so late in the parliamentary session. It is unfair on the member in charge of the bill and on the lead committee. It is not where we should start from if we want to make good law.

Secondly, let us not have another Net Zero, Energy and Transport Committee, with its near-impossible remit—it is far too wide and diverse and there are far too many issues to keep on top of. At a point at which some other committees might be winding down, as a committee, we are busier than ever, with the scrutiny of the draft climate change plan coming to a head, loads of important subordinate legislation, legislative consent memorandums on other matters, and the latest issues on ferries—to mention nothing about the Railways Bill.

If the Ecocide (Scotland) Bill proceeds, I will, of course, respect the will of the Parliament and try to adhere to whatever deadlines are set. However, I want to be crystal clear that it will be a serious challenge to scrutinise the bill in the time that remains, to make good law and to make sure that it is effective. Personally, I do not believe that it is a challenge that we can achieve.

14:37

The committee has only seven meetings left, and we have already asked for another one. There will be three meetings on the climate change plan, and time for two of those is already allocated. If the bill is to go further, the cabinet secretary will have to lay out amendments in the next week or so to allow the committee to schedule the evidence. Is she in a position to do that?

Will the member take an intervention?

Will the member take an intervention?

On a point of order, Presiding Officer. During general question time, I raised a question on aquaculture. It would have been fair of me to note that I have an interest in a wild salmon fishery—I do so now.

Will the cabinet secretary take an intervention?

You might have to.

I congratulate Monica Lennon on introducing the bill. I know that she has put a huge amount of work into it, and we have had a good discussion at stage 1. I thank all those who engaged with the committee during our scrutiny of the bill and, in particular, the committee members and our clerks for their hard work and diligence during the process.

The committee agreed from the start that this is a debate worth having. There is a case to be made for strengthening the law. We heard views that the current legal framework lacks an apex offence for serious environmental damage, with penalties to match. We heard about the potential deterrent effect that the new offence might create and how it might influence corporate behaviour for the good, even if prosecutions are rare. We heard views that it would be one way—not necessarily the only way—to keep pace with revised European law.

However, the committee also found two other things. First, the evidence as to whether there is much of a gap in the law is finely balanced. Regulators and prosecutors told us that the existing powers—in particular, section 40 of the Regulatory Reform (Scotland) Act 2014—appear to be more than capable of addressing quite serious harm. They struggled to identify examples of cases that would clearly have met the proposed ecocide threshold.

Secondly, and even more importantly, our scrutiny found significant concerns about the clarity and workability of definitions of key terms in the bill such as “severe environmental harm”, “widespread” and “serious adverse effects”. Prosecutors and regulators emphasised the importance of legal certainty, especially if prosecution could mean a huge fine or a long spell in prison. Doubts were raised about whether some of the current drafting has the legal certainty that is required.

There was also a concern about unintended consequences. I referred to the potential deterrent effect as an argument for the bill. It could affect risk appetite, but there is another side of the coin. The bill does not provide a defence of carrying out permitted activities or exercising lawful functions, such as approving a planning application. We heard serious concerns about that. We heard that the bill could have a chilling effect on decision makers.

Then there are the practical challenges of enforcement, such as those of establishing the thought process in complex corporate cases, of getting right the detail of employer liability and of allowing alternative convictions if the jury is not persuaded that the conduct was bad enough to justify a finding of ecocide. There is also the fact that the current section 40 offence has barely been used at all. Why is that? That needs to be looked at.

If the Parliament agrees to the general principles of the bill, those issues are not going to go away. The committee was not unanimous on the general principles, but all of us agreed that if the bill reaches stage 2, evidence will need to be taken on those matters—including views from experts on the wording of the proposed amendments. Most of us doubted that there was sufficient time left to get it right and ensure that we have a robust, workable law on the statute book. It is fair to say that I am concerned about where we go from here.

There are two bits of unsolicited advice that I give to the members in the next parliamentary session, from somebody who will not be here in May. First, please let us not have members’ bills on complex, controversial issues introduced so late in the parliamentary session. It is unfair on the member in charge of the bill and on the lead committee. It is not where we should start from if we want to make good law.

Secondly, let us not have another Net Zero, Energy and Transport Committee, with its near-impossible remit—it is far too wide and diverse and there are far too many issues to keep on top of. At a point at which some other committees might be winding down, as a committee, we are busier than ever, with the scrutiny of the draft climate change plan coming to a head, loads of important subordinate legislation, legislative consent memorandums on other matters, and the latest issues on ferries—to mention nothing about the Railways Bill.

If the Ecocide (Scotland) Bill proceeds, I will, of course, respect the will of the Parliament and try to adhere to whatever deadlines are set. However, I want to be crystal clear that it will be a serious challenge to scrutinise the bill in the time that remains, to make good law and to make sure that it is effective. Personally, I do not believe that it is a challenge that we can achieve.

14:37