Seòmar agus comataidhean

I said that I will work on an amendment with the Government, which said last week that it wanted to address that point. A clear permit defence can be addressed easily at stage 2.

Some of the submissions to the original consultation picked that up—I am not certain whether it was in the responses to the call for views, but organisations such as Pensions for Purpose are trying to do things more ethically and responsibly. We have all seen examples of companies being lobbied due to being perceived not to be acting ethically. There is huge public support for ecocide law, not just among those who responded to my bill. Extensive public polling across the G20 nations shows significant support in every one of the G20 countries.

It is hard to prove the deterrent effect, but a number of stakeholders have touched on it, saying that they believe that the bill would have such an effect. If the bill is passed, we would expect some publicity around it and for the Scottish Government and others to bring it into mainstream conversation in Scotland, alongside any training for people who might be professionally impacted by it.

I am happy to provide the committee with more information that is specifically from the business and corporate world, but I am confident that those conversations are happening.

As I said in my opening remarks, I am not trying to invent something new here. That is why we see similarity with the RRA in terms of definitions. It is positive that the Scottish Government is saying that it accepts the definition in the bill. There are, rightly, questions about clarity, for example about how we would define “widespread” and how we can be sure what that term means. Again, it would depend on the exact circumstances, and we would have to look at it on a case-by-case basis. I ask colleagues, when they are thinking about ecocide, to think about the harm that is being caused. Would something that is quite low level—someone last week asked me about something like silly string on the high street that is causing nuisance and littering—constitute ecocide? Obviously, it would not, because it is not causing widespread, long-term environmental harm. It is easier to rule out what is not ecocide. I hope that the committee sees that I have tried to stick to established definitions. If the committee wants reassurance on particular points, I am happy to try to provide that.

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.

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.

During this parliamentary session, I have had regular discussions with the Scottish Government about how we can give effect to an ecocide law in Scotland. Those discussions have included the issues that the cabinet secretary referred to in her evidence and the issue that you have raised today.

I have been quite clear with the Government that I am very open to what it and, indeed, other members bring forward. It is clear that there is precedent in law for prosecutors and the courts to consider other routes to prosecution. That is the case with domestic abuse legislation, and there are other such examples. I want the bill to provide another tool in the toolbox. I do not want to tie the hands of prosecutors and the courts, and I do not think that the bill will do that. However, if a stage 2 amendment would help to provide clarity, I am absolutely happy to work with the Government on that.

I can reassure the committee that I considered that at the drafting stage. That is not covered in the bill, but the constructive points made by the Crown Office and Procurator Fiscal Service and by the Government have been helpful. A number of statutory provisions already allow a court to convict for an alternative crime to the charge that is in the indictment. That means that the alternative charge is implied in the libelled charge without having to be specified. The minister and her officials have said that, in this case, that would mean that, if the charge in relation to ecocide is not proved, it would be possible to convict the accused of the lesser charge of significant environmental harm under section 40 of the RRA, if the facts proved against the accused amount to that offence. I do not have a problem with that.

I have had informal discussions with the Government since last week, and what I am hearing loudly from the Government is that it supports the general aims. It has set out areas where amendments would be desirable, and I am more than willing to work with the Government on those.

Careful consideration has been given to all those matters. The bill includes provisions to ensure that SEPA’s existing investigatory powers can be used and it anticipates that SEPA will use existing processes and procedures to investigate any reported cases of ecocide, including liaising with COPFS. That was the basis for the methodology in the financial memorandum.

Although SEPA may be required to dedicate significant resource to the investigation of any reported instance of ecocide if the bill is enacted, any such offence would previously have been looked into as an offence under existing environmental legislation, including section 40 of the RRA. It is not anticipated that SEPA would incur notable additional on-going costs as a result of the introduction of the bill’s enforcement provisions.

Having said that, I acknowledge the point that SEPA made in evidence when it said:

“the scale of such events ... will require significant effort/resource, training and support. Scale, resource implications and training requirements should also reflect the breadth of reporting agencies that could be involved.”

It again emphasised the point about the scale of ecocide. On that basis, I acknowledge that SEPA’s costs could be higher than those that are set out in the financial memorandum. I take that point.

It is difficult to quantify that. When something has not happened, it is hard to prove why it did not happen. However, on your point about whether it is changing the conversation, the answer is yes. When I first stumbled across the concept and the movement for ecocide law in 2021, in the build up to the 26th UN climate change conference of the parties—COP26—I did not know much about it. In the years since then, it feels as if there has been an announcement about it every week from another country or part of the world. Whether at the UN or in the discussions that have been taken to the International Court of Justice, it is becoming a more mainstream topic.

I have also seen a number of briefings from high-profile law firms to their clients to prepare them for ecocide law becoming a reality not just domestically but internationally. Even the prospect of that has got people thinking. Jojo Mehta, the chief executive officer of Stop Ecocide International, talks about the business engagement that it has been having around the world. Big corporations are now putting ecocide law on their risk registers because they are taking it very seriously. They are forecasting that ecocide could become an international crime in a matter of years. We are already seeing it emerging in lots of jurisdictions.

Ecocide law is no longer an abstract concept. It is becoming mainstream, and European member states will have to fully transpose and adopt the environmental crime directive by May next year.

I have pretty much said that I agree with the Government on that. I will keep my answer short and not go over the background around the environmental crime directive, which I have tried to mirror. I appreciate that, if there has not been an ecocide event, a requirement to produce a report would be burdensome against the potential to save some money—I cannot remember the exact amount, but it is something like £50,000. I am amenable to removing that provision at stage 2, if we get there.

If the committee says in its report that there would be merit in a report following an ecocide event, I will be happy to look at that. The Government might be amenable to that, but I do not have a strong position on it either way. I will be guided by recommendations and will work with the Government on it, too.