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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.

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.

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.

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.

We could get into hypothetical situations, but I will say that, when planning authorities are weighing up the likelihood of possible environmental harms, they already have to apply the precautionary principle under existing legislation, whether through national planning framework 4 or other guidance that is available to planning authorities. We have a very established regime of environmental impact assessment. As a former planning minister, you know that planning authorities have to set out their reasoning and be very clear on the material considerations that have been taken into account if they approve a development or depart from the local development plan in any way.

Take, for example, a situation where there is an awareness of a particular protected species in a locality that could be affected in some way but reasoning has been given as to why the planning authority is satisfied—perhaps because mitigation could be put in place through a buffer zone around an area where bats are known to fly, or whatever—and there then comes a point where the Crown Office is looking at an ecocide case and is trying to work out how the severe environmental destruction happened, who was responsible, who closed their mind to the possible harm and who intentionally caused it to happen or acted in a reckless manner. I cannot think of a circumstance in which planning officers, councils or a planning minister could, based on the best available evidence, be found guilty of intending to cause ecocide in that situation.

No, I do not think that it would. The bill does not change the assessment of environmental, economic and social impacts. We have very well-established processes in the land-use planning system that assess all the different considerations.

You were perhaps hinting at environmental damage that could be caused by an underground cable in the Highlands, but I am not sure what damage there could be. In each particular case, we would have to consider the harm that had been caused, its nature and gravity and whether it was widespread or long term. You said that an environmental NGO could object. Did you mean a statutory consultee that had given a response to the planning authority?

Again, the principal aim is for the bill to have that deterrent effect—up to 20 years in prison is a very serious punishment. In order for the bill to have the maximum deterrent effect, it had to go beyond the current penalty under the RRA, which is up to five years. There are some other examples in the European Union. I think that in Belgium, for example—sorry, it is getting late in the session and I will probably get this wrong—it might be 15 years. However, again, the aim is to set the bar really high.

Especially if the perpetrator is in prison by then.

I read the comments from COSLA and some of the planning authorities about resources. Although local authorities would need to be informed and made aware of any ecocide offences that could impact on their localities, it is not anticipated that the bill would generate any additional financial obligations for them. Councils can often be the first bodies to hear about environmental offences—people might phone or email their local council—but they have to report serious cases to SEPA, and it is SEPA that would be the primary enforcement or investigatory body for this matter.

I am always sympathetic to local authorities regarding their financial settlement and their capacity to do the jobs that they want to do. However, a severe environmental incident that occurs must, under existing regulations, be dealt with by our public sector regulatory bodies. In relation to the financial memorandum, other costs could kick in when a serious incident is dealt with that is likely to be at the level of ecocide. However, other adjustments would take out reporting costs from the financial memorandum.

Roz, is there anything about local authorities or SEPA that I have not mentioned?

I have acknowledged the points that SEPA has made. When you put together a financial memorandum, you have to use the best information and evidence that is available at the time. However, I think that any rise in costs would be minimal. I do not want to say that this is a cheap bill, but the overall conclusion of the financial memorandum is that it is not an expensive bill compared with many others. I will be interested to see what the committee says about the costs in its report.

I reinforce the point that we already have well-established systems in place whereby highly expert SEPA officials are embedded in the Police Scotland crime campus at Gartcosh. I think that I learned that from Michael Matheson a few months back. I asked him, “Do you think I could get in to visit?” He said, “No.”