Seòmar agus comataidhean

I need a coffee.

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 its 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.

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.

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.

The issue of the definitions of “widespread” and “long-term” has come up a few times. The definition of long-term damage comes from the expert panel international definition of ecocide, which I have tweaked a little bit. The panel defines long-term damage as damage that is

“irreversible or which cannot be redressed through natural recovery within a reasonable period of time”.

We used 12 months because it is recognisable and there is a body of case law around it. NatureScot is an important stakeholder in this conversation, and I appreciate that you have heard everyone suggesting that a derogation for 12 months could be required in certain circumstances. If the committee thinks that the addition of a specific timeframe is not necessary and that the bill should be amended to reflect that, I am amenable to that.

I will pick up on the policy intent first, because I hope that that will be helpful. The intention behind my bill is to prevent mass environmental damage and destruction through crimes of ecocide. One way in which I am trying to do that is by having strong punishments to act as a deterrent.

I will run through the policy objectives if that is helpful. They seek to ensure that serious environmental offences are treated as criminal offences. That is the distinction from the RRA. The intention is to act as a deterrent to individuals and companies, and to ensure that our domestic legislation maintains alignment with EU legislation.

On some of the points that you have made, particularly around the cumulative impact—or maybe you were getting at incremental steps—the starting point is to look at the extent of the harm that has been caused and work back from there to see whether the elements of the offence are established. To bring it back to what the bill says, that is about whether the person intended to cause environmental harm or was reckless as to whether harm was caused. That is what is different from the RRA, under which there is strict liability and the mens rea test is not applied; it is simply that the act has happened and the court does not have to prove that there was intent or reckless conduct. An ecocide-level event could be something that happens over a period of time, but the main point that I am asking the committee to think about is the harm that was caused and whether it can be proved that intentional or reckless conduct led to that harm.

That was given detailed consideration during the drafting process. It was recognised that all three possibilities—consent, connivance or neglect—are provided for in the RRA, but neglect is not provided for in some circumstances. The rationale is that consent and connivance both require a high degree of knowledge and fault, whereas neglect does not involve knowledge or a high degree of culpability. Therefore, in some circumstances, it might be unfair to allow individual criminal liability to be founded on the basis of neglect alone.

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.