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I guess that proceeding an indictment is the available option if a higher fine is what would be sufficient for the crime that has been committed. That is why I have set out our position in the way that I have. I absolutely recognise and sympathise with the fact that, as you mentioned in relation to previous amendments, people have gone to court and had to pay a lesser fine. In this case, however, the option of an indictment, which can lead to an unlimited fine, is available as well. I understand why you lodged amendment 299, but I hope that I have been able to set out that the level is not limited to £40,000, because an unlimited fine is possible.

Amendment 300, which is also in the name of Ross Greer, would introduce a requirement on the Scottish ministers to amend section 40 of the Regulatory Reform (Scotland) Act 2014 to

“replicate the penalties in EU Directive 2024/1203”

and set

“maximum levels of fines as a percentage of the total worldwide turnover”.

There are a couple of issues with the amendment. First, I am concerned that it is not entirely clear what is meant by “replicate the penalties”. To see why that is the case, we need to consider the nature of the EU environmental crime directive, which places requirements on member states to introduce criminal sanctions for causing environmental harm of different scales for a wide range of activities.

In our transposition of the earlier environmental crime directive, which was conducted while we were still in the EU through sectoral environmental regulation of different activities, the section 40 offence was not included. The new directive introduced a requirement for higher levels of sanction for qualified offences for certain activities where environmental damage is particularly severe and long lasting. That is described in the preamble to the directive as “damage equivalent to ecocide”. There is no offence in the directive that is directly comparable to section 40 of the 2014 act.

Members will be aware that the Net Zero, Energy and Transport Committee is considering Monica Lennon’s Ecocide (Scotland) Bill at stage 1, and I have put on record my support for its general principles. That bill seeks to establish a new offence of ecocide with higher penalties—I believe that the proposition is to have unlimited penalties—that would apply to events that are more serious in nature than those covered by the section 40 offence. As such, amendment 300 would create uncertainty and confusion as the Ecocide (Scotland) Bill progresses.

I am on record as saying that, before I agreed to support the Ecocide (Scotland) Bill, I offered the option of an amendment to the Regulatory Reform (Scotland) Act 2014, but Monica Lennon has pressed forward and has given Parliament the opportunity to vote for the Ecocide (Scotland) Bill, albeit that there are issues with it and it needs to be tidied up at stage 2, should it get to that stage. That bill would bring us more into line with what is happening in the EU. The campaign for ecocide law across the whole world is gaining momentum, and Monica Lennon has given us an opportunity to consider that in a Scottish context.

I have not drafted that amendment yet. Obviously, I am waiting to see what happens with the progression of Ms Lennon’s bill, but our general thinking is that, because the bar for proving ecocide is rightly set very high, we will link the Regulatory Reform (Scotland) Act 2014 to the applicable section in the Ecocide (Scotland) Bill, so that there could be almost dual offences—I think that is the phrase for it. If a court felt that it could not prosecute under the ecocide law, because the bar was too high and the evidence did not support that, it could fall back on the Regulatory Reform (Scotland) Act 2014.

I have not drafted that amendment, so I have not got the wording, but that is the general intention. We would not want a situation in which somebody brings a claim of ecocide and the whole court process is gone through but the case does not quite meet the bar, even though the evidence suggests that significant harm was caused. That is the reasoning behind the approach. Obviously, notwithstanding some of the issues with Ms Lennon’s bill that might have to be straightened out at stage 2, the eventual passing of an Ecocide (Scotland) Bill would provide sufficient leeway in terms of the sentence and the fines that might be associated with it.

Yes, but I will finish my comments on Ross Greer’s amendments.

One thing that we have been talking about with the Ecocide (Scotland) Bill is the polluter pays principle. Substantial or significant damage could cost an awful lot of money to repair, and we would not want that to fall solely on the public purse. That is all in consideration.

I can offer you an opportunity to chat the issue over with me and my officials, given the context that you have just provided. The Parliament might not support Ms Lennon’s bill, but there is still a situation that needs to be addressed, which could be done through the 2014 act. As I said, initially, I offered reform of the 2014 act as a solution, because it could be amended to include ecocide penalties. We are where we are, but I get your point, so I am happy to meet to talk that through further with my officials.

At the moment, there is not a directly comparable offence in the directive that Ross Greer is talking about that works with the 2014 act. The best thing that I can offer is a discussion with Ross, in the context of where we are with the Ecocide (Scotland) Bill and this bill. Maybe we can bottom it out through conversation with my officials, so we can see how we could address potential gaps. The timing is difficult, given where we are with Ms Lennon’s bill as we do not know when stage 2 will happen or whether the NZET Committee will agree to the bill.

On amendment 307, in the name of Douglas Lumsden, the Government is committed to ensuring that there is effective access to justice on any matters—not just environmental matters. In November 2024, the Government made a statement on the effectiveness of environmental governance arrangements, following a consultation and a report on those matters, as required by section 41 of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. As well as the effectiveness of governance arrangements, the 2021 act required the report to cover whether the law in Scotland on access to justice and environmental matters is effective and sufficient.

The report considered various issues that have been identified in evidence gathering about access to justice in environmental matters, particularly with respect to the cost of access to court. The report also discussed the concerns that have been raised by the Aarhus convention compliance committee with respect to the cost of access to justice in environmental matters. It set out a number of measures that had been taken with respect to those costs and further steps that were under consideration.

Having fully considered the views that were raised in the consultation, the Government’s statement was clear that we could continue to work to improve access to justice in environmental matters and that we would carry out further engagement with stakeholders on our approach to environmental rights. We have also taken meaningful steps to address concerns about the cost to communities’ access to justice in environmental matters. For example, court fees for Aarhus cases in the Court of Session have been removed, the Scottish Civil Justice Council has strengthened protective expenses orders to improve confidentiality, and it is consulting on expanding those protections to the sheriff court and private nuisance claims.

It should also be remembered that environmental governance arrangements established by the 2021 act, along with the creation of the independent body, Environmental Standards in Scotland, provide the opportunity to individuals and communities to raise concerns about the effective implementation of environmental law. ESS has a simple online form for raising environmental concerns, and it is an alternative route—rather than a complex legal challenge—to resolving a concern. In addition, it enables communities to participate effectively in environmental decision making and enforcement, as a key part of the licensing and consenting systems. It is always preferable for community concerns to be taken account of in the design of proposed development or activity.

Therefore, although we support the principle of seeking to address the cost of access to justice in instances when a community has exhausted other means and regards it as necessary, practical considerations with regard to funding and interaction with existing legal aid provisions must be addressed. I assure the committee that those issues form part of the Government’s long-term, on-going work on legal aid reform. That is not in my portfolio, but the Government’s position is set out in the legal aid reform discussion paper that was published in February this year, and in our response to the Equalities, Human Rights and Civil Justice Committee’s recommendation to consider regulation 15 of the Civil Legal Aid (Scotland) Regulations 2002, which was published on 24 November 2025.

On the basis that the Scottish Government is committed to ensuring that there is effective access to justice on environmental matters in Scotland, and of the work that has been done as a result of the recommendations of the Equalities, Human Rights and Civil Justice Committee in relation to legal aid, I ask Mr Lumsden not to move amendment 307. If he does, I encourage members to vote against it.

Actually, I had finished—but it is up to you, convener.

Is that in relation to legal aid?

I am very sympathetic to any means of replacing commercial fertiliser, which has emissions associated with it and is very expensive, with organic materials that can be put straight on the soil. I absolutely understand that point. With Mr Carson and SEPA colleagues, I need to bottom out the reporting and monitoring requirements. We need to ensure that what we put on our soil is right, because it might end up in our rivers and other watercourses, so we need to have a mechanism for recording that. My door is open to the convener to talk about that particular issue because, if there are blocks to that being done, I would like to know about them.

I agree with your first point; in fact, I was ready to say that I totally agree with you, convener. It is important that we take evidence on all aspects of a bill throughout its passage, but we have seen, many times, amendments being lodged to various bills—not just this one—that would effectively add arms and legs to them. Nevertheless, I do respect members’ right to put forward the issues that have been raised with them by stakeholders.

I do not accept, however, that no progress has been made in protecting the marine environment. In fact, when I speak to many of the amendments in this group, I will explain what is taking place and where there is duplication. The point that I was making is that people might think that things are not happening fast enough, but adding reporting requirements and duplicating administrative burdens will not accelerate action; it will, in fact, do the opposite—that is the point that I was making.

Amendment 17, in the name of Sarah Boyack, would require Scottish ministers to publish a national marine strategy for protecting and restoring Scotland’s marine environment. Although I understand the intent behind the amendment, I am afraid that it is unnecessary, as it would lead to duplication and would risk undermining our existing legal framework. The Marine Strategy Regulations 2010 already require the development and implementation of a marine strategy to achieve and maintain good environmental status in marine waters. Scottish ministers are already subject to statutory obligations under those regulations, which are complemented by the Water Environment and Water Services (Scotland) Act 2003 to provide integrated management of estuarine and coastal waters, including environmental objectives, pollution control and monitoring.

A national marine strategy under amendment 17 would be limited to the extent of the Scottish Parliament’s legislative competence, unlike the marine strategy under the 2010 regulations, which is not limited in that way. As a result, amendment 17 would complicate rather than enhance marine governance, diverting resources from delivery into administration through overlapping systems and additional and unnecessary reporting requirements. For those reasons, I ask Sarah Boyack—

I thank Maurice Golden for trying to help my party to deliver its objectives, not for the first time—wry smile.

The national marine plan will consider and react to consultation and feedback. It goes back to my point that I sense that quite a lot of the amendments are intended to prompt action because people do not see things happening fast enough. However, the vehicles required to take those actions already exist. I point to the fundamental issue that, if the amendment were to be agreed to, it would cause serious problems with the Marine (Scotland) Act 2010, because it would not dovetail with it.

I get the general point. I understand that people want action to be accelerated. I do, too, but difficult amendments will have the unintended consequence of taking away from that action. Data collection in the marine space takes time, which is probably more the reason for things not happening fast enough for people. It is not about a lack of relevant regulation or legislation; rather, it is about getting the data collection in place, getting many stakeholder views, and ensuring that we collectively move forward.