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In what way?

At the moment, I am not persuaded on that, but if the committee felt strongly about it based on evidence, I would look at it for stage 2.

My intention is to ensure that only individuals at a senior level in organisations are covered by section 3. That goes back to the point that I made to Mark Ruskell about the controlling minds in an organisation, where the power lies in an organisation and those who have overall oversight. My view is that prosecutions should be aimed at those people.

My clear intention is that individuals at a lower level in an organisation—those in middle management and below—should not be subject to prosecution under section 3. That point came across strongly from the expert advisory group, which has been in place for a while and includes representatives of trade unions and other groups. In the consultation, Unison Scotland and the Centre for Climate Crime and Climate Justice raised concerns about the punishment of workers, and recommendations were made that the bill should include additional protections for whistleblowers, although I did not feel that I could put such provisions in the bill. There has been quite a lot of discussion about the issue, and I know that it has played out in the stage 1 evidence.

I bring you back to the policy aim of the bill. I seek to prevent environmental destruction. That is the motivation. We are trying to prevent ecocide-level crimes. Every day, planning authorities, for example, assess environmental impact. They look at potential harm. If an element of harm is identified that could result from a development, they also then consider mitigation that could be put in place. Planners are pretty skilled in dealing with that every day.

On why there is no defence for a regulator or licensing body against being held liable for ecocide under the bill, I will go over what is in section 40 of the RRA. There are specific provisions in that section to provide that those who grant relevant permits—for example, regulators such as SEPA—are not committing an offence. That is necessary, because it is a strict liability offence.

Under the bill, for an ecocide offence to occur, the person must cause “severe environmental harm” and either intend to cause it or be reckless as to whether it is caused. I am finding it difficult to think of a scenario in which a regulator or licensing body would intend to cause or be reckless as to whether it causes environmental harm when permitting relevant activities.

Stepping back from some of the more legal and technical points, I heard from the expert advisory group and many other stakeholders that, when ecocide is discussed internationally and with corporate organisations, it brings to people’s minds the risk of being prosecuted for ecocide and the huge reputational damage that comes with that. Serious people understand that we are talking about the most catastrophic environmental harm; we are not talking about low-level offences that can be covered by the RRA just now. I hope that the bill will ensure that decision makers and the controlling minds of organisations will not be at all flippant or casual with environmental risks. It is about changing corporate behaviours and changing attitudes to risk.

In a Scottish domestic setting, the bill will give our compliance system and our justice system another lever to pull. I hope that the bill, if it becomes law, does not have to be utilised, because if we were to deal with an ecocide event in Scotland, that would be very serious. The intention is for the provisions in the bill to be a strong deterrent, given the reputational risk to corporations.

We also need to consider the activities of organised criminal gangs and remember that environmental crime is a fast-growing area of crime around the world. There is a particular study of it in the European context, and it has been noted that it is seen as low risk in terms of fines and custodial sentences. There is a feeling that the consequences are not that serious. With ecocide law, we are trying to change that. It is about ensuring that Scotland keeps up with our neighbours across the European Union and the many other countries around the world that are seeking to act.

We have talked a lot about what is happening in the EU to criminalise ecocide-level crimes. There is an important distinction between that and what we have in regulations at present. The bill is about saying to people, “You could go to prison for up to 20 years,” and it is about getting that into the mindsets of decision makers as well.

Last week, Douglas Lumsden put a question to the cabinet secretary—I think that he was playing devil’s advocate—about whether the bill would put off investors from coming to Scotland. However, the concern that we should all have is why any corporation would want to get away with ecocide. It is about making sure that ecocide is beyond the pale and something that will not be tolerated in any jurisdiction. The examples of the revision to the Belgian penal code and what we are seeing in France and other countries show that Scotland will not be the first to act, or the outlier. We are seeing many other jurisdictions do this.

That is a helpful recap. I can provide reassurance on that point. I repeat the point, which I made in my opening statement, that I am happy to work with the Government on amendments, including for a clear permit defence. However, I make the distinction that, if there is intent and recklessness that goes beyond what is covered in a permit, a behaviour could be an ecocide offence. However, if the people who you have in mind operate lawfully within their permits, they do not have to worry about it.

Thank you for your questions, today and throughout the evidence at stage 1. Those has helped to improve people’s understanding of what the RRA already does, and have brought into the discussion the important role of planning authorities and others in the consenting regime.

I am reassured that, in principle, the planning authorities that have responded have said that they support the aims of the bill, but legitimate questions have been asked, so—

If members of the public or other interested parties respond to every planning application saying that it is ecocide, I do not think that that will be taken seriously. Again, this is about proportionality. We have a very robust and well-established tradition in Scotland. We have a planning system that works, and legislation is very clear about who the statutory consultees are, and they are trusted voices and experts. I am talking about SEPA, NatureScot and Transport Scotland—you know the list. It includes community councils, because the community voice is important. However, if someone writes to a planning authority advising it, “Don’t do this, because it will cause ecocide,” that has to be evidenced in some way.

If it is about statutory consultees—I think that you are saying that they were mentioned by that particular authority—and their objection was dismissed, there are checks and balances in the system to ensure that when something is raised as a very serious departure from advice, that could be notified to ministers or called in. There are well-established processes, but what you describe from those letters relates to fairly routine—albeit major—planning applications, which planning authorities look at every single day. In doing so, they weigh up all those considerations, always based on the best available evidence.

There was a 14-week consultation on the proposal, which started in November 2023 and ran until the beginning of February 2024. There was a significant response to the consultation, with more than 3,379 responses, including from 134 organisations. The majority of responses were from members of the public. A high majority—just over 95 per cent—of responses were fully supportive of the proposals; a further 3 per cent were partially supportive; and a very small minority of 34 respondents, or just over 1 per cent, were fully opposed to the proposal. The convener asked about opposition. Only one organisation, the Scottish Fisherman’s Federation, was fully opposed to the proposed bill.

Alongside the formal consultation process, I initiated an expert advisory group, bringing together the legal profession, academia, trade unions, scientists and people who represent the community voice. A bit like the committee, it has been another forum for robust scrutiny and challenging questions. There have been drop-in sessions in the Parliament and people have asked their MSPs about the bill, and there has been a lot of media interest in it. Alongside the formal process, I feel that the initial consultation was extensive and seemed to capture the public’s imagination.

I am confident that the Parliament has time to progress the bill if it goes beyond stage 1. As we know, it is for any member to lodge amendments and, as I have said to the Government, I will work with any member and will listen carefully to them. If there is significant evidence that amendments are required in the areas that Mr Stewart is talking about, I will be open to listening.

Points have been made about planning authorities already feeling a burden with workloads, resourcing and having another thing to take into account. I am very sympathetic to planning authorities, who are saying that they already deal with very complex issues and that, if we ask them to think about anything else, they will need resources. I am very alive to that point.

I have wanted to be clear today that ecocide offences go way beyond what is covered in the RRA: they are the most serious, catastrophic environmental impacts that you can think of. For an individual—a natural or legal person—to be prosecuted and convicted, it has to be proven that there was intent or recklessness.

I worked as a chartered town planner for more than 12 years before I came here, and I declare that my husband is currently in a planning authority. I do not want him to go to jail—who would make my dinner every night? The serious point is that I respect the important work that our planning authorities and others involved in the consenting regime do. The bill is not aimed at them. I have been very clear—given the criminal sanctions, including up to 20 years in prison—why the mens rea test, which does not occur under the RRA in relation to strict liability, is really important.

I cannot think of a circumstance that would involve a planning authority, given all the checks and balances from the case officer to the planning committee. Mr Stewart is correct that the planning minister would be the decision maker in some cases. I have sat in the offices at Victoria quay and provided advice to ministers on such matters. Knowing about all the checks and balances, I cannot imagine a situation where anyone in the planning system would have the intent or would act with recklessness to allow something like ecocide to occur.

I am confident that all the other countries that are legislating to give effect to ecocide law, including Belgium and others that the committee has heard about, will have had the same discussions, and they are able to progress the law in their own jurisdictions. I have every faith in my colleagues in this committee room and across the Parliament that we can focus our minds on the policy aims and the general principles of the bill. A number of amendments have been discussed already, particularly by the Government, and we are advancing those discussions.