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I am giving consideration to that. I will not use the phraseology of “switching”. I have been very careful in what I have said, because we have not yet arrived at a decision about what we might do at stage 2. Of course, other members might want to do something similar, and we could work with them on that.

An alternative conviction provision would provide for courts and juries to consider a specified lesser offence at the same time as ecocide. I presume, therefore, that a verdict could be reached that it was not possible to convict someone of ecocide but they have been found guilty of the offence in section 40 of the 2014 act.

That is a good question. Again, I wrestled with that and spoke to Ms Lennon about it, and we made an offer to work on something like that. However, things are moving quite fast with regard to the international campaign to put ecocide into law, and I did not want there to be any sense that we were lagging behind when other countries were putting it into law.

I spoke to Ms Lennon about whether it was necessary to go ahead with a bespoke bill. My reason for supporting the bill is that it provides additionality, in that it sets a much higher bar than the 2014 act does, although the latter is still in place. I wanted—and I still want—to ensure that if something is not prosecutable or provable under ecocide legislation, that would not prevent the 2014 route from being considered.

That was my initial concern when Monica Lennon brought to me the proposed offence of ecocide. I had discussions with my officials, who obviously know the existing law intricately. I was initially concerned, because I thought, “We already have offences in place. Will the proposed ecocide offence be additional, or will the burden of proof be so high that, while people or organisations might be accused of it, we will not able to meet that bar?” Now that Monica Lennon has introduced the bill, I come back to the point that it must provide additionality, but it also cannot cancel out the existing law under which people could be prosecuted, if that makes sense.

We in Government are working on ways to address that concern. I do not want the bar for ecocide to be set so high that, while terrible offences could be committed, they might not meet that bar and would therefore not be sufficient for prosecution.

We must hope that that is the case.

I was seized of the evidence that the committee heard from academic colleagues on 4 November. They were all asked what events would have been prosecutable in the past under such an offence, and the answer was, “Very few.” That is great, because, in effect, it means that there has not been a seismic event.

We would hope that, if the bill was passed, we would never have to use its provisions, because it would have to be such a severe event. However, the fact that we would not want to ever have to use the legislation does not mean to say that we should not have it in place, because the deterrent effect is important.

The case has to be made that there is a level of harm for which the existing legislation does not adequately provide. A new offence of ecocide needs to address the most extreme, wilful and reckless cases of harm. The new offence should not impinge on the range of activity that is already covered by legislative provisions, but nor should it knock those provisions out. Making a decision on prosecution should not involve having to say, “If we go for ecocide, does that mean we can’t go for a section 40 offence under the 2014 act?”

I and my officials are wrestling with how we can dovetail the offence of ecocide with the existing provisions. We need to ensure that there is clarity on what the bill intends to achieve and on the purpose and nature of the new offence. The proposed new offence is not designed to address the lower levels of environmental harm, but the existing law already covers “significant” events—that is the wording in the 2014 act. It also includes—this is important, too—damage that arises from permitted activities. That is another area of Ms Lennon’s bill that needs to dovetail better with the existing law, because I would suggest that permitted activities must be reflected in the bill as well.

I am not avoiding the question, but I wonder whether that is less a question for me and more a question for the member in charge of the bill. Obviously, Ms Lennon has said that there is a reason for introducing the bill. I also point to the views of Professor Hendry, who gave evidence on 4 November. She said that there was merit in a bespoke bill of this type in the sense that there is a deterrent effect with higher penalties being associated with ecocide. Ecocide would be discussed out there in relation to Scotland going first in acting on ecocide. I cannot find the exact quotation, but it is obviously in the Official Report.

You raise some important points, and you have gone through some of the issues that I discussed with Ms Lennon when she brought forward the bill around the purpose of having a stand-alone offence for the most severe incidents.

There is also a general point about the sentences that are associated with the 2014 act, and that aspect may also need to be looked at. If the bar for ecocide is—rightly—very high and ecocide is not provable at that stage, the 2014 act becomes the vehicle by which to secure a prosecution for a significant event. If the sentences under the 2014 act are indeed “lagging behind”, the existing law may not give a judge the leeway to impose penalties that are commensurate with the gravity of the offence. That may be an issue.

Initially, I was keen to discuss with Ms Lennon whether we could amend the 2014 act to include such an offence and to make the penalties more commensurate with the severity of the offence. Regardless of whether the bill is passed, I think that we need to look at that. We do not want prosecution of an offence under the 2014 act to be seen as having a much lesser penalty associated with it. We may be looking at an event, or a series of events, that has caused huge, long-term environmental damage, with huge associated costs, which may not be reflected in the sentence. You make a very good point in that regard.

The definition of “ecocide” has been developed for international law purposes, and it has been adapted to the domestic legal system, so I am of the view that the definition of “ecocide”, as drafted, is workable. If members were to lodge amendments on the definition of the offence, I would consider them, and Ms Lennon, as the member in charge of the bill, would have a view, too.

The definition of “environmental harm” in the bill is the same as the definition in the 2014 act. The definitions of “significant” and “severe” environmental harm both include reference to “serious adverse effects”. The new offence specifies that the harm must be either “widespread” or “long-term”.

Officials have been discussing this, and we are not sure whether there is any benefit in seeking to add further conditions to the definition of “significant environmental harm” for a proposed ecocide offence, because, ultimately, it would be up to the prosecutors and the courts to determine whether an offence had been committed of a level of seriousness that justified the charge of ecocide. We hope that there will be none, but we do not know what future events would fit that definition. However, we need something that can cover the most serious and, potentially unforeseen, events.

Yes. I keep going back to the definition of “environmental harm”. The definition in the bill is the same as the definition in the 2014 act. Obviously, that is a point that committee members will want to speak to Ms Lennon about.

Yes, and it would be up to the prosecution to prove that.

Yes.