Seòmar agus comataidhean

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.

One of the policy aims has been to align with the EU environmental crime directive while trying to ensure that we have the right penalties and punishments in place in a Scottish setting. As well as a custodial sentence and unlimited fines, the bill has provisions on compensation and publicity orders. However, I will turn to Roz Thomson to respond to that specific point.

Again, it would depend on individual cases. If it was at all relevant—it is highly possible that it is not—it would be a matter for the discretion of the courts on application by the Crown Office.

Yes. I am not sure what the question was, but I will push back a little, because there were a number of assertions in there. The parliamentary timetable is not a matter for me—we are in the hands of the Parliament. If people have minds that are closed to the bill and want to believe that we do not have time and want to try to wreck the bill, that is not under my control.

We have to be careful when we say things such as there being a lot of fear out there. I do not think that the evidence shows that. I will not repeat all the numbers, but we saw huge public support for the bill in the consultation, and a huge number of organisations from all parts of civil society, including business, support the bill. It is clear that the bill adds something different from the RRA.

We have had a batch of responses from planning authorities, who very politely responded to the committee’s request. It is clear that there has been some collaboration and discussion. I think that, at the root of that, there is a bit of misunderstanding. If people are saying that they are frightened or scared and that there are unintended consequences, we all have a responsibility as elected members of Parliament to bring them back to the facts of the bill.

I will take that point away, because I have been speaking to elected members from different political parties who are very enthusiastic about the bill and who feel that it would help them to protect their communities from ecocide. I know that a number of local authorities are looking at possible motions. It is not for me to go out and mobilise a campaign to do that; I am just trying to take the Parliament through the rationale of the bill, in a calm and considered way, and to be clear about what the bill does and does not cover.

People out there are asking me whether the bill is a way to stop X, Y and Z sectors, and I am pushing back against that and saying no. I absolutely agree that, if businesses or operators have obtained a licence or permit and are acting within the law, they should be left alone to get on and do that, and the regulators should be allowed to regulate that in confidence. In a world post the introduction of an ecocide law, if new planning applications come in, the same tools and assessments will be available to planning authorities and judgments will be made. The bill might help to improve transparency about why decisions were taken and why an issue was settled on—there might be some environmental impact, but the authority could set out how that can be mitigated or why a decision has been taken. However, that is nothing new.

Therefore, I do not accept that there is widespread fear in Scotland or among planning authorities about the bill. I reinforce my point that there is significant public support for the bill. It will be on me to make sure that, at stage 2, we have amendments that address concerns, where there is evidence for them. I have said that I will work with the Government and members to do that. I will be an active participant, convener—I will not just sit back and leave others to do the work. Believe me, I have worked very hard on the concept since 2021. I do not know whether Mr Stewart has worked on a member’s bill—it takes time. I do not have the whole of the civil service behind me, but I am working with the Government—that is an important point. I am working constructively with the Government, more than 50 MSPs signed the final proposal, and the Government did not intervene to say, “We are going to amend the RRA. We are going to give effect to this.” The Government has allowed me to advance the bill, and there is a shared aspiration to keep pace with the EU—when we look around us and at our near neighbours, we do not want Scotland to be left behind.

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.

That shows the seriousness of the investigations that they do. Bearing in mind that not everyone who they investigate is a legitimate businessperson and that there are lots of nasty people out there, it is important that those officers remain faceless and that we do not name any of them.

We have the systems in place already. Is there a question about resources? There always is, but let us remember that the bill covers ecocide, which is very rare. It might happen once every 10 to 20 years.

Yes. So far, I have not felt it necessary to state it in the bill. To reinforce Roz Thomson’s answer, I note that there are other provisions on the proceeds of crime and, I suppose, the compensation element of the bill. Where work can be done on any sort of clean-up, that is another way to ensure that the polluter pays so that the financial burden does not fall on communities, local authorities or others.

I do not think that there is a gap in relation to remediation but, if you have further questions on that, I can take the point away and take some advice on it.

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.

Good morning. I welcome the opportunity to give evidence on the general principles of the Ecocide (Scotland) Bill, and I thank the committee for the extensive scrutiny that it has undertaken so far.

Scotland must be more ambitious and effective when it comes to environmental protection. I hope that the bill helps us to recognise that the most egregious acts of environmental destruction must be treated as the serious crimes that they are.

I have found the scrutiny process at stage 1 incredibly valuable, not least in providing reassurance to stakeholders about the bill’s scope and, crucially, what it will not do. Let me be crystal clear that the bill will not criminalise legitimate licensed activities. It will not go after businesses that are operating responsibly under current regulations. I will happily support the Scottish Government’s proposed amendments on permits, which will make that fact abundantly clear.

I also reassure the committee that the bill will not clog up the planning system. As a former planner, I know that the planning system already considers environmental impacts and requires mitigating measures to prevent long-term harm. The bill is designed to sit far above that, at the top of the regulatory pyramid, to deter and punish acts of severe environmental destruction.

The definition of ecocide in the bill is not a new legal invention but is underpinned by familiar concepts in existing law, drawing on the Regulatory Reform (Scotland) Act 2014—known as the RRA.

I welcome the Cabinet Secretary for Climate Action and Energy’s confirmation that the Scottish Government is content with the definition. However, simply tweaking the RRA is not enough. The offence under the RRA is one of strict liability; it is not designed for the extremely serious nature of an ecocide offence. For example, changing the penalties from a maximum of five years imprisonment to eight years will not fundamentally alter how that offence functions.

That is why we need a stand-alone crime where the mental threshold and the associated penalties are high and which is designed to sit above the RRA. The new offence will give the Crown Office and Procurator Fiscal Service an essential additional option for prosecution for the most serious environmental crimes.

Furthermore, I welcome the Government’s proposed amendments that would ensure if the higher threshold for an ecocide conviction cannot be reached, alternative penalties under the RRA are still available. That tiered approach has precedent in other legislation and is a sensible step that strengthens the bill.

Turning to deterrence and changing behaviours, the severity of the penalty is an intentional and necessary deterrent. As the Law Society of Scotland observed in their submission, the new offence is expected to foster a

“change of behaviour towards environmental risk”,

acting as a clear, dissuasive message to those who might cause environmental harm.

This is about changing corporate culture and sending an unmistakable signal that Scotland places the value of its nature above illegal profit.

The support for the bill comes not just from environmental groups, but from within the compliance system, including Scottish Environment Protection Agency trade union members, who recognise the limits of the current legal framework. I am confident that the issues raised during stage 1 were carefully considered during the drafting process. However, I am pragmatic and have been listening. Where there is significant evidence that a tweak would strengthen the bill, I am prepared to act. I will happily work with the Government on amendments, specifically on: a clear permit defence, re-examining the reverse burden of proof, amending the reporting obligation and adding an explicit alternative conviction procedure, to ensure that the bill is robust and delivers its core purpose. Finally, although my bill does not address the issues of existing resources for regulatory bodies or the lack of prosecutions under existing legislation, I hope that those areas will be addressed by the Government as a complementary action to the bill.

The movement to criminalise ecocide is international, with many countries and the European Union recognising the need for action. Scotland’s nature is extraordinary, but we are also one of the most nature-depleted countries in the world. The level of support for the bill should reassure us that the people of Scotland care and that they want to see severe environmental damage criminalised to protect current and future generations. That is why I hope that the general principles of the bill will be welcomed by the committee. I look forward to your questions.