Seòmar agus comataidhean

Maybe I read the wrong bit.

Yes. There are some areas of the bill that I want to point to. One of those is the burden of proof that it would place on the defence to prove the defence of the accused. Given that the usual burden of proof for all offences is on the prosecution to prove guilt, I think that that needs to be looked at. I will propose an amendment to the bill in that regard, because we do not think that it is currently in line with the European convention on human rights and article 40 of the United Nations Convention on the Rights of the Child. We intend to amend that part of the bill at stage 2 to ensure that it is compliant, as everyone has a right to a fair trial, and the burden of proof must be on the prosecution to prove guilt.

09:30

I also feel that the reporting requirement is unnecessary, given that ecocide is—thankfully—a very rare occurrence. The financial memorandum identifies that ecocide will happen

“once every 10 to 20 years”,

yet there is a requirement to report every five years, which I do not think is proportionate. Those are two of the areas in which I have concerns.

I want to float an idea with the committee on the dovetailing of the bill with the Regulatory Reform (Scotland) Act 2014 and any prosecutions that may be undertaken in that connection, which is perhaps an issue that has been mentioned in evidence. I would like to ensure that, if a case of ecocide was not provable, the offences contained in the 2014 act would also be a component of any such trial. As the bill is drafted, there is a very high bar for ecocide. That is rightly the case, but we do not want people who have not reached that high bar to feel that they have got away with an offence that is covered in the 2014 act.

Those are a couple of the areas that I have concerns about.

I do not prefer either. As I said, the vehicle to amend the existing legislation existed, and that could be done, but, when Ms Lennon presented the bill and the consultation responses, I thought that this vehicle could have the same effect and potentially shine a light on ecocide as an offence. Not everyone will agree with that, but I was prepared to see what the committee and those who gave evidence thought. However, I go back to the point that the bill must provide additionality to the existing law and to my previous comment that, if the bill gets to stage 2, we must ensure that, if the threshold of ecocide is not met in court, the organisation could still be prosecuted for the offence under section 40 of the 2014 act.

As I said, we already intended to lodge an amendment on a defence of acting under permit. We received the letters from which you read only last night, and we will look at them thoroughly. I would be happy to work with any member who thinks that we can lodge amendments to the bill that would protect against the scenarios that Mr Stewart has just outlined.

I got the submissions from the local authorities last night, and we are looking at the issue in case there are any other unintended consequences. I am happy to work with any members to test their amendments on the matter.

I hope that it will be extremely rare.

In providing the additional offence of ecocide, as defined, Ms Lennon’s bill is offering additionality to what is already in the 2014 act.

Initially, I was concerned that there was a degree of overlap between the proposed new offence and the existing offence. That was covered in the policy memorandum, which sets out a summary of the existing environmental law and includes a full discussion of the existing offence of causing “significant environmental harm” under section 40. Of course, there is already a range of offences that cover activities that damage the natural environment; the committee will be well aware of those.

The committee has raised various concerns about having both the existing section 40 offence and the new ecocide offence on the statute book. Prosecutors might be inclined to bring a prosecution for a section 40 offence in most circumstances, as it is a strict liability offence, which is easier to prove. Bringing a prosecution for an ecocide offence might be seen as a riskier option.

That is why I am keen, if the bill gets to stage 2, to work, at that point, on something that would genuinely provide for taking section 40 into account. If something comes to court and has not met the bar for ecocide, it could meet the bar for a section 40 offence, and that possibility should be included. I would not want “significant” and “severe” to be the enemy of prosecuting serious environmental harm.

My point is that a formal connection between the two offences through an alternative conviction provision is worthy of further consideration. It would enable courts and juries to consider a specified lesser offence, should they not be convinced that a conviction is merited under the greater offence. That could be done, and I think that it would address any overlap. If there is a prosecution under the ecocide offence and the case is not able to be proven, the bar could be met for an offence under section 40.

That is a fair point. Again, when Ms Lennon came to us about a bespoke ecocide bill, these were points that we put to her. The Government felt that section 40 of the 2014 act already made provision in relation to ecocide. Of course, we also have to reflect on how often—or not—that provision has been used. In the evidence to the committee, there was a difference of opinion on whether there were certain things that that provision should have been used for, but the Government felt that, on balance, reforming the provision would not have put the spotlight on the offence of ecocide in the same way that a bespoke bill would. I am keen to see what Ms Lennon says in response to your question.

As it stands, I am keen to support the bill’s progression to stage 2. There are elements of the bill that I would like to amend so that it is compatible with the ECHR and so that it provides additionality, which is important. I understand your general point in that regard.

Charles Stewart Roper is indicating that he wants to come in on that, so may I bring him in now?

I have seen some of the evidence from people who want the bill to cover omissions and failures to act. We do not believe that there is a case to expand the bill’s scope to cover omissions, beyond the extent to which they are already covered. We believe that omissions are already covered by the offence of ecocide as it is set out. The offence is of causing severe environmental harm intentionally or recklessly, so harm can be caused by omission already. We do not see that there is a case for including a further provision in relation to omissions.

I will simply move the motion.

I move,

That the Net Zero, Energy and Transport Committee recommends that the Equality Act 2010 (Specification of Public Authorities) (Scotland) Order 2025 [draft] be approved.