Seòmar agus comataidhean

I am sorry that I do not have a direct answer for you. If it is not covered in my letter, I will make sure that I will respond to you on that point.

I want to ensure that the nature of the penalties that you are associating with the provisions are not constraining the courts on what those penalties might be. As far as the mechanism is concerned, I will need to look into what mechanisms already exist.

Yes, we could do both. We could have a stand-alone bill, as Monica Lennon is proposing, or we could reform the 2014 act.

The definition of “ecocide” has been developed for international law purposes, and it has been adapted to the domestic legal system, so I am of the view that the definition of “ecocide”, as drafted, is workable. If members were to lodge amendments on the definition of the offence, I would consider them, and Ms Lennon, as the member in charge of the bill, would have a view, too.

The definition of “environmental harm” in the bill is the same as the definition in the 2014 act. The definitions of “significant” and “severe” environmental harm both include reference to “serious adverse effects”. The new offence specifies that the harm must be either “widespread” or “long-term”.

Officials have been discussing this, and we are not sure whether there is any benefit in seeking to add further conditions to the definition of “significant environmental harm” for a proposed ecocide offence, because, ultimately, it would be up to the prosecutors and the courts to determine whether an offence had been committed of a level of seriousness that justified the charge of ecocide. We hope that there will be none, but we do not know what future events would fit that definition. However, we need something that can cover the most serious and, potentially unforeseen, events.

Whether serious or severe harm is caused over time or as a one-off event, the issue is the severity of the harm. My understanding of the bill is that the issue is the threshold for the harm, not whether the harm occurred over a period of time or was a one-off event. It is about the impact, regardless of whether there was a series of events with a long-term effect or a one-off event.

Yes, and it would be up to the prosecution to prove that.

Yes. There are some areas of the bill that I want to point to. One of those is the burden of proof that it would place on the defence to prove the defence of the accused. Given that the usual burden of proof for all offences is on the prosecution to prove guilt, I think that that needs to be looked at. I will propose an amendment to the bill in that regard, because we do not think that it is currently in line with the European convention on human rights and article 40 of the United Nations Convention on the Rights of the Child. We intend to amend that part of the bill at stage 2 to ensure that it is compliant, as everyone has a right to a fair trial, and the burden of proof must be on the prosecution to prove guilt.

I also feel that the reporting requirement is unnecessary, given that ecocide is—thankfully—a very rare occurrence. The financial memorandum identifies that ecocide will happen

“once every 10 to 20 years”,

yet there is a requirement to report every five years, which I do not think is proportionate. Those are two of the areas in which I have concerns.

I want to float an idea with the committee on the dovetailing of the bill with the Regulatory Reform (Scotland) Act 2014 and any prosecutions that may be undertaken in that connection, which is perhaps an issue that has been mentioned in evidence. I would like to ensure that, if a case of ecocide was not provable, the offences contained in the 2014 act would also be a component of any such trial. As the bill is drafted, there is a very high bar for ecocide. That is rightly the case, but we do not want people who have not reached that high bar to feel that they have got away with an offence that is covered in the 2014 act.

Those are a couple of the areas that I have concerns about.

Vicarious liability and holding the organisation responsible has precedent in Scots law. First of all, in a “I was just doing what I was told to do” case, a tremendous penalty could be put on an individual, while the organisation was left to continue without any penalty at all, so it is entirely appropriate that there are provisions in the bill for vicarious liability.

The seriousness of the crime puts it above negligence. Again, if it is ecocide, it is not negligent; it is wilful. I come back to the definition in the bill that it has to be wilful or reckless. That is what has to be proved. A wilful act, on the part of an organisation, would suggest telling an employee to do something that would cause severe harm to the environment, but that is the thing that must be proved—that it was wilful or reckless. However, reducing the threshold for what constitutes ecocide is problematic, because, as I have said, we already have law that would deal with that. My understanding is that, as the law stands, it includes vicarious liability. Is that correct?

That was my initial concern when Monica Lennon brought to me the proposed offence of ecocide. I had discussions with my officials, who obviously know the existing law intricately. I was initially concerned, because I thought, “We already have offences in place. Will the proposed ecocide offence be additional, or will the burden of proof be so high that, while people or organisations might be accused of it, we will not able to meet that bar?” Now that Monica Lennon has introduced the bill, I come back to the point that it must provide additionality, but it also cannot cancel out the existing law under which people could be prosecuted, if that makes sense.

We in Government are working on ways to address that concern. I do not want the bar for ecocide to be set so high that, while terrible offences could be committed, they might not meet that bar and would therefore not be sufficient for prosecution.

I am suggesting that there may be ways to address the concern that people have raised about the fact that there is such a high a bar for proving ecocide. A formal connection could be made between the two offences—for example, through an alternative conviction provision. I am just putting it out there that that is worthy of further consideration. I have not yet decided what we might propose at stage 2, but that is one idea. An alternative conviction provision provides for courts and juries to consider a specified lesser offence if they are not convinced that a conviction is merited under a greater offence. I am not making that up—such a provision could be made.

Therefore, there could be merit in the bill establishing the section 40 offence as an alternative to the new ecocide offence. I am giving consideration to that as a way of addressing the issue that members have mentioned, which was already a concern for the Government. Ecocide must provide additionality to the existing law, but, given that it involves a very high threshold or bar, we could lodge an amendment at stage 2 that would establish a formal connection between the two offences.

I would like other amendments to be made to the bill to make it more in line with the 2014 act, because there are areas in which it is not in line with the 2014 act. I have mentioned a few of those in the past half hour.