Seòmar agus comataidhean

Absolutely: I have looked at everything. I have considered the current legal framework and the number of prosecutions and convictions under the RRA.

I return to the point that, although it is of course possible to amend the RRA to increase the punishment, that would not fundamentally change the offence—it would still be a strict liability offence. To deter something as serious as ecocide from occurring, we have to get into the space of criminal law and impose much stronger penalties. It is only right and fair that, if you are proposing to take someone’s liberty away for up to 20 years—and considering all the other measures in the bill around punishment—there has to be a higher bar. That is where the mens rea test comes in. We have to prove not just that what was done was a guilty act, which can be done under the RRA’s strict liability provisions, but that there was a guilty mind as well. That is the point about intent.

I will always support measures to boost enforcement powers. When I was a young planner back in 2001, the planning enforcement officers were the people who moaned the loudest: they felt that they were at the bottom of the food chain in the planning system. They probably still feel that way. The committee has scrutinised resourcing for SEPA and NatureScot over the years. We know that our local authorities are feeling hollowed out and able just to do the bare minimum around their statutory functions. They are feeling the pressure.

I am very sympathetic to all those arguments but, even if we fully resourced all the regulatory bodies with respect to their current responsibilities, that does not give us the equivalent to an ecocide law. I hope that the member understands the point that I am making.

No—I understand the points that Mr Ruskell is making. This is an opportunity for me to be clear that, when I am talking about trying to protect Scotland’s natural environment, I am not saying that having an ecocide law is the silver bullet or will be the answer to absolutely everything. I hope that I have been clear, in the policy memorandum, that an ecocide offence is extremely rare—there are between one and 10 in 20 years. We have existing regulations for lower-level offences—although they could still be very significant—including the Environmental Liability (Scotland) Regulations 2009, which cover

“significant adverse effects on ... protected species or natural habitat”.

We have a number of tools in the toolbox already.

We can see the direction of travel for some stage 2 amendments, and I hope that I have shown willingness to work with the Government and colleagues.

However, the point that I want to leave with colleagues today is that having ecocide law sitting at the top of that regulatory pyramid would bring us into alignment with the EU and many other countries. Ecocide law is now out of the box and it is just a matter of time until all those other countries get around to enacting it. We can see that there is momentum towards having an international crime of ecocide. That is not a matter for us in this room to decide, but we can see the wider global context.

It is important that those who work in the regulatory space have certainty, and here I want to make a point that does not really address Mark Ruskell’s question. There have rightly been questions about whether the bill will cause uncertainty for those who are trying to build houses and Scotland’s infrastructure while making a profit, which is perfectly legitimate. We are not going after legitimate businesses that have the right permits in place. To go back to the convener’s original question, during the consultation and all the engagement that I had with many stakeholders, I heard that the bill is not anti-business; it is pro-responsibility.

Some businesses in Scotland are already saying that, although they are not impacted by ecocide, they are impacted when a minority of businesses and others do not do the right thing. That includes the criminal gangs who carry out business activities that impact on the environment and who feel that those activities are low risk because the penalties and punishment are just not there.

I am not saying that this is ecocide, but I give the recent example of a whole town in England becoming a dumping ground: people were collecting waste, charging for it and then dumping it on a site in the town. I do not know what the environmental impact is of that, but people are questioning how something like that can happen in plain sight, and under the current legislation in England, the maximum criminal penalty would be five years in prison.

I am trying to remember what SEPA said, so I am looking for that now. There are already civil remedies available to SEPA to drive restoration and, as we heard, there is existing environmental legislation that covers restoration. Given the gravity of ecocide, I did not include them in the bill and the focus is instead on compensation. We believe that that can include the cost of remediation.

I repeat the point that Roz Thomson made. Given the scale of ecocide, particularly if the damage that was caused was irreversible, remediation might not be an option. It has therefore not been made explicit in the bill. My understanding is that remediation would be covered under the compensation provisions, but I will take that away and double-check our thinking on it.

Yes. That is my understanding, but I will bring in Ailidh Callander on the legal point, because it is considered case by case.

I will turn to Ailidh Callander on that. There are existing powers under the Proceeds of Crime Act 2002 to enable the police and other law enforcement agencies to investigate, search and seize assets that were obtained by criminal activity. There has been a question—not today, but previously—about why that is not in the bill. It is because that power already exists, and that is a matter to be left to the discretion of the courts on submission of a relevant application by the Crown Office.

Have I got that wrong, Ailidh?

It is fantastic that the Scottish Government is supportive of the general principles of the bill. For a number of years, we have had discussions about the direction of travel with ecocide law internationally, particularly given the decision that has been taken by the EU. I am very aware of the Scottish Government’s policy to keep pace with the EU.

We wanted to explore how the current regulations work and whether simply amending the RRA, if that were possible, would be sufficient. My position is that that would not be sufficient. As I touched on in my opening remarks, the RRA includes a strict liability offence, whereas, as I hope the committee has learned through this process, when we talk about ecocide offences, we are talking about events that cause the most severe environmental harm, which would probably happen only once every 10 to 20 years.

In relation to the gravity of the harm and of the penalties, the bill differs from the RRA because, under the bill, it must be proven that the guilty party had a guilty mind when carrying out a guilty act. That is not the case under the RRA in relation to strict liability. Under the bill, it must be proven that someone acted with intent or recklessness, and it is right that there should be that test, because we consulted on the punishment being up to 20 years in prison, which the public have said that they support.

For other reasons that the committee is aware of, the Government or the Parliament could amend the RRA to increase the penalties, but that would not fundamentally change the offence—it would still be a strict liability offence.

I prefer to think of this as a regulatory pyramid, which has been mentioned by other stakeholders, including the Environmental Rights Centre for Scotland. It is not about having one or the other. I hope that having an ecocide offence at the apex of the pyramid will strengthen the RRA. Obviously, I will consider the amendments that are lodged, but, fundamentally, we need both a stand-alone bill on ecocide and the RRA to operate properly. I know that people have concerns about the enforceability of provisions in the RRA, given the low number of prosecutions. However, the need for a separate offence has come through in the consultation and in a lot of the evidence on the bill.

The question is fundamentally about the power to convict under alternative offences. It is a matter of ensuring that that discretion still applies to the Crown Office and Procurator Fiscal Service. After my time discussing that with the committee, I will be happy to discuss it with the Government. If the Government wants to lodge amendments on that in the cabinet secretary’s name I will respect that process and work with the Government; I am not putting up any obstacles to that. I think that the issue can easily be cleared up at stage 2.

I have made the policy intention clear, as Roz has helpfully explained. However, on that particular legal point, it is probably best to bring in the lawyer. Ailidh, would it be okay if you addressed that point?

I do not think that I accept that the bill will cause a huge amount of legal uncertainty. We heard good evidence from the Law Society of Scotland, from King’s counsel and from a number of stakeholders that the bill will sit at the apex of environmental law. I know that the member disagrees, but we have heard that it will sit at the top of the pyramid, and I hope that it will also help to strengthen the application of the RRA, which would give the Crown Office and Procurator Fiscal Service options.

It unsettles me that there are certain trade bodies, industries or businesses that are very frightened by the prospect of ecocide law. We are trying—collectively, I think, given that, although I am the member in charge of the bill, it has been a cross-party endeavour and has a huge amount of cross-party support—to ensure that we can prevent ecocide from happening as far as possible.

However, it is important that if a business or an individual has a permit or a licence, they can operate in good faith within the confines of that. It is also important to give certainty to those in the regulatory space. I do not have any concerns about that, having worked professionally in that space for a long time before I came to Parliament.

We have legal certainty about when the RRA can and cannot be applied and we set it out clearly that the threshold for ecocide crime is very high and there needs to be evidence of intent or recklessness.

The final word on that is that my policy aim is to prevent severe environmental destruction. That is what creating an offence of ecocide under criminal law is about.

If the bill is passed, it might open up a wider conversation about all the other regulations that we have. If we are keeping pace with the EU, for example, things might have to change anyway. If passing the bill encourages the Scottish Government and others to look afresh at the scope of existing regulations, how they operate and their resourcing, that can only be a good thing.

If we were not talking about ecocide law, perhaps all that would not receive the same level of attention. I therefore thank everybody on the committee for all your questions because we have put some things into the mind of the Government and others about whether we have all the right enforcement powers in place. I am thinking about some of the questions that have been asked about the marine environment, for example, or some of the cross-border issues.

It is very much a topical, on-going discussion and I know that conversations about ecocide law are also being held at Westminster. Things are moving pretty quickly, but if it means that we get a bit sharper and look at everything from planning to all the different regulations that Mark Ruskell mentioned, that can only be a good thing.