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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.

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.

It would all depend on the evidence. The evidence would point to the guilty mind.

It is important to be clear that this issue is not unique to the bill. Employees are not immune from potential conviction if it is proven that they have committed a criminal offence—in this case, ecocide. For an ecocide offence to occur, the person—whether it is an employee or an employer—must have caused severe environmental harm and have intended to cause that harm or been reckless. I go back to the point about intent and recklessness. It will be for the Crown Office and Procurator Fiscal Service to determine, based on the evidence that is available, whether an ecocide offence has been committed and, if so, who should be charged.

I do not say this naively, but I really hope that we do not have to use the ecocide law. As is set out in the policy memorandum and the financial memorandum, we estimate that such events will be rare—they might take place once every 10 to 20 years. If the offence did not meet the ecocide thresholds, it would be dealt with under other regulations. However, by having an ecocide law, organisations will have a responsibility to ensure that good practice and knowledge percolate throughout their organisations. I hope that that will protect workers and middle managers from the threat of prosecution and from the impact of any ecocide crime.

These are important questions, and a lot of it will come down to what the evidence says in any particular case, but I hope that workers and managers will not be in a situation in which their organisation is investigated for ecocide.

I do not disbelieve the Scottish Government. As you know, the Scottish Government does not share its legal advice with people who are outwith the Government, but we have had good discussions about that. It was raised early on in our dialogue and, to an extent, I have had to accept what the Government says about it. If it is helpful, I can set out why I included the defence of necessity in the way that I did. I reinforce the point that I made in my opening remarks: I am happy to work with the Government on the amendment that it intends to lodge.

Section 2 provides for a defence of necessity that a person may use if they are charged with ecocide. The defence is that a person’s actions were carried out to prevent greater harm from occurring and that the prevention of harm was necessary and reasonable. Under the bill, the person who is charged with ecocide is responsible for demonstrating, on the balance of probabilities, that they had such a defence. I included that defence because I felt that there might be very rare circumstances in which a person could conceivably act in a way that may risk ecocide in order to prevent greater harm, such as avoiding significant loss of human life.

In relation to article 6(2) of the ECHR, I considered the reverse onus provision, as did the Presiding Officer, and we concluded that it was within the reasonable limits permitted by the convention and was, therefore, within the legislative competence of this Parliament. That said, the Scottish Government’s points are persuasive, because it says that the reverse burden could be problematic during a trial in practical terms, which is why an evidential burden might be more suitable.

You asked whether I believe the Government; I do not disbelieve the Government, and if it is happy to lodge amendments, I will not object to that.

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 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.

I am confident that the Parliament has time to progress the bill if it goes beyond stage 1. As we know, it is for any member to lodge amendments and, as I have said to the Government, I will work with any member and will listen carefully to them. If there is significant evidence that amendments are required in the areas that Mr Stewart is talking about, I will be open to listening.

Points have been made about planning authorities already feeling a burden with workloads, resourcing and having another thing to take into account. I am very sympathetic to planning authorities, who are saying that they already deal with very complex issues and that, if we ask them to think about anything else, they will need resources. I am very alive to that point.

I have wanted to be clear today that ecocide offences go way beyond what is covered in the RRA: they are the most serious, catastrophic environmental impacts that you can think of. For an individual—a natural or legal person—to be prosecuted and convicted, it has to be proven that there was intent or recklessness.

I worked as a chartered town planner for more than 12 years before I came here, and I declare that my husband is currently in a planning authority. I do not want him to go to jail—who would make my dinner every night? The serious point is that I respect the important work that our planning authorities and others involved in the consenting regime do. The bill is not aimed at them. I have been very clear—given the criminal sanctions, including up to 20 years in prison—why the mens rea test, which does not occur under the RRA in relation to strict liability, is really important.

I cannot think of a circumstance that would involve a planning authority, given all the checks and balances from the case officer to the planning committee. Mr Stewart is correct that the planning minister would be the decision maker in some cases. I have sat in the offices at Victoria quay and provided advice to ministers on such matters. Knowing about all the checks and balances, I cannot imagine a situation where anyone in the planning system would have the intent or would act with recklessness to allow something like ecocide to occur.

I am confident that all the other countries that are legislating to give effect to ecocide law, including Belgium and others that the committee has heard about, will have had the same discussions, and they are able to progress the law in their own jurisdictions. I have every faith in my colleagues in this committee room and across the Parliament that we can focus our minds on the policy aims and the general principles of the bill. A number of amendments have been discussed already, particularly by the Government, and we are advancing those discussions.