Seòmar agus comataidhean

I remind the committee that the consultation on the proposal for the bill started in November 2023 and ran for 14 weeks, so some of the questions and issues that you have raised are not new. Perhaps people are saying those things now because the committee proactively wrote to the planning authorities and asked them to respond. That might be why those views are being presented to the committee in a very concentrated way. However, such questions are not new and are not unique to Scotland. I could point you to elected members, planning professionals and others, including scientists at SEPA, who strongly welcome and agree with the bill.

I remind the committee that the planning authorities say that they support the general principle. These are not new issues. Glasgow City Council responded to the committee’s call for views over the summer. The Convention of Scottish Local Authorities is taking a fairly neutral view—it is saying that it will look at the bill down the line if it needs to.

My door is open. I will speak to COSLA and to Heads of Planning Scotland. Obviously, my door is open to you, Kevin—I might even put the kettle on. There is plenty of time to do all that. Mention was made of the Royal Town Planning Institute Scotland. As a former member of that body, I would be happy to chat to it.

We have also seen compelling and clear support from many other organisations that the bill would do what it says on the tin. It is about trying to protect Scotland from severe environmental destruction that is carried out in an intentional or reckless manner. It has strong penalties and sends a strong signal to anyone who might think that they could get away with a crime of that nature. I hope that the bill will also strengthen people’s understanding of the RRA.

Sure. I have set out these points in earlier answers. The bill seeks to introduce a criminal offence of ecocide, and for a successful prosecution to happen, there has to be evidence that there was intent or reckless conduct. There is a distinction with those organisations that have permits, which are already subject to the provisions of the RRA regarding strict liability offence. I cannot think of an example of where a member of the NFU or the Scottish Fishermen’s Federation has gone out with intent or recklessness to cause ecocide.

You mentioned the Scottish Fishermen’s Federation. The SFF opposed the bill in the consultation because it said that it did not think that there was a need for any more legislation. NFU Scotland gave a fairly neutral response in writing to the committee; when it came to committee, it went a bit further. Nonetheless, we had a round-table discussion with NFU Scotland at which I spoke to many members; they were really positive about the bill and felt that it would give them protection from bad actors.

The bill is not about going after businesses in your region or my region that engage in legitimate business and have a consent or permit and operate within that. It is about situations in which there has been intent or recklessness that has caused severe environmental destruction on the scale of a one-in-20-years event—something pretty catastrophic.

I want to be clear about the starting point, which should be to ascertain what harm has been caused. That may involve SEPA investigating and the Crown Office and Procurator Fiscal Service then looking at the evidence as to what caused the incident to happen and what the intent was. As I hope I set out in my opening remarks, I have listened to evidence and I have heard about the Government’s intention to provide clarity for activities and individuals who have a permit. If an activity has a permit and if people or organisations are acting within the limits of that permit, they will not cause environmental harm. Ecocide will not arise if people are sticking to the parameters of a permit. If there is an incident of ecocide and a case is prosecuted, the starting point is what the actual damage is. It could be that, according to analysis, the offence was occurring over a period of weeks or months, or the incident could have just happened—boom—in a single day. It will very much depend on the circumstances of the particular case and the offence.

I am trying to show that there is a difference between the provisions of the RRA and those of the bill. We are not looking to go after individuals and businesses that have a permit and are carrying out an activity lawfully. The bill concerns instances of severe environmental destruction where there is evidence of intent or recklessness—where the perpetrator closed their mind to the potential damage that they were causing.

I think that I understand your point, but I bring it back to the questions of what harm has been caused and what harm has been investigated. What does the evidence say? Was there intent? Was there reckless conduct? If it is evident that mens rea cannot be proved, the regulators or the police could look to ascertain whether an activity has breached the limits of its permit. That would be considered under the existing regulations—which others who are more expert than me can comment on.

If someone has a permit and it has not been apparent initially that there has been a breach of that permit, damage could have been occurring over a period of time. However, that would be down to individual circumstances. In all such matters there would be case-by-case assessment. That is why I think that it would be good to have the option of investigating whether something is an ecocide offence—which should be a very serious criminal matter—or something that comes under the current regulations, which is a strict liability offence. You are familiar with how that operates.

Just to clarify, convener, I understand that it is open to any member to lodge amendments. There could be members who are not here today who would want to lodge amendments. My general point is that I will act in good faith with all of them. I think that I have been clear about the areas that the Government is seeking to amend, which include the permit defence, re-examining the reverse burden of proof, amending the reporting obligation—we have not talked about that today, but I am absolutely fine with what Government says on it—and adding an explicit alternative conviction provision. That is all fine. I also hope that I have been clear in response to questions from members, including from Kevin Stewart.

I will reserve my position to see what is in the committee report, because I cannot prejudge what will be in it. However, if the committee makes recommendations on amendments or is still seeking clarity at that point, I will look at that. As the member in charge of the bill, it is very much in my interest to try to be in the driving seat as much as possible. As I did with my previous member’s bill, I will probably think about amendments. I am not trying to outsource that to others.

I am sympathetic. I have read the responses from individual planning authorities, many of which, while not being identical, are very similar. I know that Heads of Planning Scotland met and that COSLA has responded, and there are a number of responses that echo one another. The planning community is a small community. I am not making light of that at all, because I know that people who work in a planning authority are under a lot of scrutiny. It can be a thankless job, particularly if it involves a development that attracts a lot of objection and a lot of community response.

There is sometimes pressure from developers. The vast majority of developers behave impeccably, but I know of cases in which planning officers and other officials have been bullied or intimidated. That goes on. I have discussed that with Unison. That is why the points about protection for workers and people on the front line are not lost on me.

I hope that I have been clear in what I have said about a permit defence. I will take away colleagues’ comments and reflect on whether something needs to be done to provide the comfort that people in the planning world and others in the regulatory space are looking for. I hope that I have been clear about the policy aims and intentions. In discussions with me and the committee, the Government has mapped out areas where clarity and comfort can be provided through amendments.

As I said to Mr Stewart, I am confident that we can use the time that is left in the parliamentary session wisely and efficiently. My door is open—I will listen to colleagues and work with everyone. There will be further opportunities for other MSPs to drop in and have a chat with me.

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?

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.

Planning authorities make decisions based on current legislation and the policy of the Scottish Government; they also consider local circumstances. They will be informed by environmental impact assessments. If a private developer is responsible for a project, it will have to provide support and documentation, which will be looked at independently by the planning authority. There is already a very robust regime for that. If the Government’s policy position on peat extraction changed, how the planners operate would also have to change.

It is right and proper that any planning authority, including Moray Council, considers NPF4 and all other relevant legislation, strategies, policies and guidance. However, if there was any concern about whether a legitimate business with a planning application and consent had operated in a way that gave rise to environmental harm, it would be considered under the RRA, initially.

If what happened were to be considered ecocide—as I have said, we are looking to lodge an amendment related to this at stage 2—it would have to be very reckless and intentional, and it would have to be shown that no one tried to stop it. That is very far away from what Douglas Lumsden described.

I was listening to what stakeholders were saying. In its evidence at stage 1, the Environmental Rights Centre for Scotland said that the maximum term is aligned with the evolving criminalisation of ecocide in other jurisdictions, where it carries a penalty of imprisonment of up to 10 to 20 years. Again, examples include the Belgian penal code and the French climate and resilience law.

In the consultation, I asked a question about imprisonment to see whether people felt that such a penalty was right or whether they wanted something different. Some 2,600 people said that they supported imprisonment—79 per cent of respondents were fully supportive, and 14 per cent were partially supportive.

The aim is to reflect the seriousness of the crime. I have a wee list here—I have mentioned ERCS, but Unison Scotland and Scottish Environment LINK also fully supported the proposed penalty in principle, stating that it was proportionate to the harm that was caused and that it was aligned with approaches in other jurisdictions. I do not want Scotland to look like a soft touch on this. If we are going to have ecocide law, I want us to do it properly.