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The committee has a copy of our policy memorandum, which outlines our main concerns and where we would like the bill to be amended at stage 2. If we become aware of any additional unintended consequences between now and stage 2—perhaps as a result of evidence and submissions that come in—we would want to address those as well.

Well, you have put it on the record.

I think that you are asking me a direct question about whether I would want to put guidance in the bill. The nature of guidance is that it must be responsive and adaptable, so I would not want to put anything in the bill of that nature that would require primary legislation to change it. Also, I cannot comment on conversations that I have had with the planning minister until I have had them.

However, I think that you are right. You have heard my concerns about some parts of the bill, which I would seek to change, and I have already written to you about them. We must ensure that there is a need for the offence—that the bill provides additionality beyond what is already covered. One area that provides additionality is the penalties that are associated with ecocide. They are severe and extensive. They allow the courts to make a judgment on the severity of the incident or the event, the cost to the environment—if one can ever quantify such a thing—and the clean-up cost or the cost to the public purse in dealing with the impact of that. Of course, when it comes to something such as ecocide, you can never fully recover the loss. One of the strengths of the bill is the penalties that it seeks to introduce.

I hope that that is enough. The main things that I would want you to think about as we leave here are some of the unintended consequences that have been raised by people around this table; the need for additionality; the need for the measures to dovetail with existing legislation; the need for provisions to allow for fair trial and compatibility with the ECHR; and the need for the bill to set a high bar, going beyond the requirements of existing legislation.

I would not want to do anything that constrains the discretion of the courts when they are deciding on the fines. However, you are asking a specific question about a mechanism for compensation, and I will need to take that away.

My official has just pointed me to something about that part of the bill. Can you leave that with me? I need to speak to my officials about the consequences of that.

I am sorry that I do not have a direct answer for you. If it is not covered in my letter, I will make sure that I will respond to you on that point.

I want to ensure that the nature of the penalties that you are associating with the provisions are not constraining the courts on what those penalties might be. As far as the mechanism is concerned, I will need to look into what mechanisms already exist.

—and some of them said 11 and some of them said fewer than that. I do not have an answer to that, convener. I am not an academic legal expert. I do not have an encyclopaedic knowledge of every environmental crime that has happened in the past 20 years, so you would have to go to someone who does for that information.

I am supportive of the proposal to introduce an offence of ecocide, as it is properly understood to cover the most extreme, wilful and reckless cases of harm. I was satisfied that the provisions in the Regulatory Reform (Scotland) Act 2014 were appropriate, and the suggestion that an amendment to the 2014 act would have the same outcome formed part of my initial discussion with Monica Lennon.

However, I was particularly seized of the international campaign for the adoption of ecocide as an offence. The outcome might be similar to or the same as reform of the 2014 act, but would an amendment have the same deterrent impact as a bespoke bill? I want to make sure that Scotland is always in line with European Union law, and Ms Lennon and I had a good discussion about that. Being one of the first nations to introduce a bespoke offence would provide a deterrent.

Given that the bill has advanced to stage 1 and Ms Lennon has done all the work that she has, I am keen to support the general principles, albeit with some caveats. I do not know whether you want me to mention some of those.

I had discussions with Ms Lennon about that. It is important to ensure that the offence of ecocide is additional to—a step up from—what is already there. We need to consider the definition of “significant environmental harm” in section 40 of the Regulatory Reform (Scotland) Act 2014, the definition of “severe environmental harm” in the bill and the difference between those two things. It is certainly the case that enough work has been done by the campaign to define what ecocide is.

Could we have gone down the route of reforming and making amendments to the 2014 act? Yes, we could have done that, but we are where we are. Ms Lennon has progressed her bill, which is an alternative vehicle for introducing the offence of ecocide. The phrase “six and a half a dozen” comes to mind. We could reform the Regulatory Reform (Scotland) Act 2014 to include the offence of ecocide and to make it strong, but Ms Lennon has progressed her bill, and we have an opportunity to establish a bespoke offence of ecocide. I want to ensure that that dovetails with the 2014 act provisions and provides additionality.

Let me come to some of the provisions. I will explain this properly.

I am suggesting that there may be ways to address the concern that people have raised about the fact that there is such a high a bar for proving ecocide. A formal connection could be made between the two offences—for example, through an alternative conviction provision. I am just putting it out there that that is worthy of further consideration. I have not yet decided what we might propose at stage 2, but that is one idea. An alternative conviction provision provides for courts and juries to consider a specified lesser offence if they are not convinced that a conviction is merited under a greater offence. I am not making that up—such a provision could be made.

Therefore, there could be merit in the bill establishing the section 40 offence as an alternative to the new ecocide offence. I am giving consideration to that as a way of addressing the issue that members have mentioned, which was already a concern for the Government. Ecocide must provide additionality to the existing law, but, given that it involves a very high threshold or bar, we could lodge an amendment at stage 2 that would establish a formal connection between the two offences.

I would like other amendments to be made to the bill to make it more in line with the 2014 act, because there are areas in which it is not in line with the 2014 act. I have mentioned a few of those in the past half hour.