I thanked Monica Lennon for her work on the ecocide bill and reflected on the evidence heard by the Net Zero, Energy and Transport Committee. While I recognise the passion behind creating a new offence, I highlighted that existing legislation – particularly section 40 of the 2014 Act – may offer a clearer route, though it is currently underused. I stressed the need for a targeted review, careful drafting and major stage‑2 work to avoid unintended consequences. The bill is well‑intentioned, although I cannot give it full support at this stage.
Full text of my speech
I start by commending Monica Lennon on her efforts to introduce her bill and get us to this stage. As a member of the Net Zero, Energy and Transport Committee, I heard an impassioned plea from the member for the creation of an ecocide offence that would be a new criminal offence for the most serious environmental harms. Various environmental organisations clearly agreed with Ms Lennon on the need for that.
However, it is also reasonable to acknowledge that much of the evidence to our committee suggested that legislation might not be required or, at least, that there were other ways of achieving the same outcome. For instance, we heard that amending existing legislation, particularly section 40 of the Regulatory Reform Act (Scotland) 2014, might be a more co-ordinated and obvious route to having a specific offence of ecocide. I still believe that that is a distinct possibility.
That said, the committee was also concerned about a lack of prosecutions for offences that would fall short of ecocide, depending on how it is defined, using current section 40 provisions under the 2014 act. Our committee wants to see a “short, targeted review” of those provisions, examining whether there are procedural, evidential or resource constraints. In her contribution, Sarah Boyack talked about resource constraints, which are perhaps limiting the legislation’s effectiveness.
It is important to note that environmental offences under section 40 can lead to a fine of up to £40,000 or five years in prison, but that provision has not been used. We should not pretend that the bill will fill a gap so that environmental crimes in our communities will suddenly get a higher tariff. We have the powers to police and prosecute environmental crimes, but the prosecutions are not happening. Environmental harm is already a criminal offence, which could be added to in order to take account of a more serious form of environmental damage. The bill before us could introduce unlimited fines and up to 20 years in prison, so the threshold is much higher. Intent to cause environmental harm would have to be shown, and recklessness might have to be demonstrated. That is quite right, given the significant tariffs if a prosecution is successful.
One question is whether, following a review, we should reform the 2014 act and legislate as required, or legislate now for the new stand-alone offence. That is a reasonable question to ask. However, there is a wider question, which is why the heck this Parliament has not done proper post-legislative scrutiny of the 2014 act in the first place. That would have informed us in a much more substantial way ahead of considering this legislation.
We have to look at whether there is a benefit to a stand-alone ecocide offence. There perhaps is some advantage. Some witnesses, as well as the member in charge of the bill, passionately believe that a stand-alone offence would offer a greater deterrent. They have also talked about the offence being at the apex of a suite of potential prosecutorial pathways. They have argued that the new offence might help us to align with the revised EU environmental crime directive. Amending section 40 of the 2014 act could do the same thing. You pays your money and you takes your choice as to what the best pathway is to securing what we all want to see.
As has been referred to, we all acknowledge that amendments are required in order for this bill to progress. The committee was concerned about the possibility of prosecutions, which take place under an ecocide offence, not succeeding. The threshold should be high—it is very high, because of the punishment that can be dispensed—and, therefore, a prosecution might fail. That is a distinct possibility if we pass the legislation. In such circumstances, obvious environmental offences might not be punished at all.
The committee believes that a court or jury should be able to
“convict of the section 40 offence on an ecocide prosecution”.
There should be a transferability between the new law, if it comes in, and section 40. Drafting any such amendment would require consultation with the Crown Office and environmental regulators, and such an amendment would be required, because the Crown Office described the possibility of a “double-or-quits situation”—whether to go for the prize of the big offence of ecocide or to go for an offence for which a conviction can be secured. It should not be an either/or situation.
If the bill is to proceed, it is self-evident that there will need to be much heavy lifting at stage 2 on matters such as potential prosecutions for permitted activities, planning consents, concerns over liability, cumulative harm—I do not quite agree with Mr Leonard on cumulative harm, but we will agree to disagree on that—and what “severe” means. In addition, what do we mean by “widespread” and by “long-term”
My point is that the bill is well intentioned and it might have a positive impact, but it would take a lot of work at stage 2 to flush out all those issues. I say to Monica Lennon that she has my good will, if not my absolute support, this afternoon.