Seòmar agus comataidhean

Charles Stewart Roper is indicating that he wants to come in on that, so may I bring him in now?

—and some of them said 11 and some of them said fewer than that. I do not have an answer to that, convener. I am not an academic legal expert. I do not have an encyclopaedic knowledge of every environmental crime that has happened in the past 20 years, so you would have to go to someone who does for that information.

Yes, I do. I want to acknowledge the role that Monica Lennon has played in raising the profile of the importance of preventing serious damage to the environment. Her consultation on the bill showed that environmental crimes are extremely important to the public, and it is absolutely right that we analyse whether we have provision in law to reflect the seriousness of those crimes.

I have had useful discussions with Ms Lennon as she has developed her thinking on ecocide-level offences, which are, thankfully, very rare. Scotland has the opportunity to be among the first nations to have an offence of ecocide in criminal law, and I am supportive of the general principles of Monica Lennon’s bill. Obviously, I will consider the committee’s stage 1 report, but, today, I will outline some areas of the bill that the Government would like to amend.

I am supportive of the proposal to introduce an offence of ecocide, as it is properly understood to cover the most extreme, wilful and reckless cases of harm. I was satisfied that the provisions in the Regulatory Reform (Scotland) Act 2014 were appropriate, and the suggestion that an amendment to the 2014 act would have the same outcome formed part of my initial discussion with Monica Lennon.

However, I was particularly seized of the international campaign for the adoption of ecocide as an offence. The outcome might be similar to or the same as reform of the 2014 act, but would an amendment have the same deterrent impact as a bespoke bill? I want to make sure that Scotland is always in line with European Union law, and Ms Lennon and I had a good discussion about that. Being one of the first nations to introduce a bespoke offence would provide a deterrent.

Given that the bill has advanced to stage 1 and Ms Lennon has done all the work that she has, I am keen to support the general principles, albeit with some caveats. I do not know whether you want me to mention some of those.

There is a question of whether a figure is appropriate at all. You have just pointed to some of the difficulties in this regard: we do not know what the nature of the offence is, so we do not know how long it would take to recover from a particular event or how you could measure it. Members might have ideas for amendments at stage 2 or questions for Ms Lennon, but you have pointed out a particular difficulty. For the Government, it is about the impact and the severity of the harm, not the duration of the event.

This comes back to the point about dovetailing with existing legislation, because ecocide is meant to have a high threshold. If I understand your question correctly, you have just proposed bringing the threshold for the offence below the threshold for ecocide as currently defined. Is that the question that you are putting to me?

In providing the additional offence of ecocide, as defined, Ms Lennon’s bill is offering additionality to what is already in the 2014 act.

Initially, I was concerned that there was a degree of overlap between the proposed new offence and the existing offence. That was covered in the policy memorandum, which sets out a summary of the existing environmental law and includes a full discussion of the existing offence of causing “significant environmental harm” under section 40. Of course, there is already a range of offences that cover activities that damage the natural environment; the committee will be well aware of those.

The committee has raised various concerns about having both the existing section 40 offence and the new ecocide offence on the statute book. Prosecutors might be inclined to bring a prosecution for a section 40 offence in most circumstances, as it is a strict liability offence, which is easier to prove. Bringing a prosecution for an ecocide offence might be seen as a riskier option.

That is why I am keen, if the bill gets to stage 2, to work, at that point, on something that would genuinely provide for taking section 40 into account. If something comes to court and has not met the bar for ecocide, it could meet the bar for a section 40 offence, and that possibility should be included. I would not want “significant” and “severe” to be the enemy of prosecuting serious environmental harm.

My point is that a formal connection between the two offences through an alternative conviction provision is worthy of further consideration. It would enable courts and juries to consider a specified lesser offence, should they not be convinced that a conviction is merited under the greater offence. That could be done, and I think that it would address any overlap. If there is a prosecution under the ecocide offence and the case is not able to be proven, the bar could be met for an offence under section 40.

I do not prefer either. As I said, the vehicle to amend the existing legislation existed, and that could be done, but, when Ms Lennon presented the bill and the consultation responses, I thought that this vehicle could have the same effect and potentially shine a light on ecocide as an offence. Not everyone will agree with that, but I was prepared to see what the committee and those who gave evidence thought. However, I go back to the point that the bill must provide additionality to the existing law and to my previous comment that, if the bill gets to stage 2, we must ensure that, if the threshold of ecocide is not met in court, the organisation could still be prosecuted for the offence under section 40 of the 2014 act.

Can I bring in the lawyer?

Negligence was mentioned there. Am I right?