Stage 1 report on the Ecocide (Scotland) Bill

The Committee understands the case for ensuring the worst types of environmental harm are dealt with effectively, under the criminal law, including offences that could be labelled as ecocide. On this specific Bill, evidence is finely balanced. Environmental regulators and prosecutors did not see a clear enforcement gap, as they consider that existing legislation, including section 40 of the Regulatory Reform (Scotland) Act 2014, appears incapable in principle of addressing even in the case of very serious environmental harm. Witnesses also struggled to identify Scottish cases that would have met the proposed ecocide threshold, even going back several years.

At the same time, the Committee understands arguments that the current framework lacks a clear offence at its apex that explicitly recognises intentional or reckless severe environmental destruction as a crime of exceptional gravity, with penalties reflecting that seriousness. The Committee understands that some believe that this legislation has "signalling" power and that criminalisation can have a deterrent effect, even in cases when the legislation rarely has to be used.

The Committee recognises that the Ecocide Bill sits within a developing European and international legal context. The revised EU Environmental Crime Directive requires a stronger enforcement approach to the most serious environmental harm, including conduct comparable to ecocide, and while it does not mandate a standalone offence, it requires robust penalties for widespread, substantial and irreversible or long-lasting damage. The Committee notes views that the Bill would be one way of achieving alignment with the Directive and thus “keeping pace” with EU law in this area.

The Committee notes that two broad legislative routes could credibly respond to the concerns identified in evidence:
Amending section 40 of the 2014 Act to incorporate an additional tier where “severe” harm is caused intentionally or recklessly, with higher maximum penalties for ecocide-level cases. This could be expressly labelled ‘ecocide’. This would require primary legislative intervention (unless, possibly, the Scottish Government's EU "keeping pace" power were used)
Proceeding with a standalone ecocide offence as in the Bill, subject to whatever amendment is considered necessary to tighten up the provisions in the light of evidence received.

Along this issue of principle, however, it is also necessary to consider next steps in relation to this Bill in the wider context of some of the important definitional and enforcement issues raised during Stage 1 consideration (as set out later in this report) and the remaining time in this session to ensure there is proper reflection on these and that they can be satisfactorily dealt with.

Should the Parliament determine that the Bill should progress to Stage 2, there should be detailed consultation with the Crown Office and environmental regulators to ensure a drafting approach is taken that (a) clearly differentiates between an ecocide-level offence and the current section 40 offence and (b) in appropriate cases, enables a court or jury to convict of the section 40 offence on an ecocide prosecution, so as to avoid a situation where serious wrongdoing is not punished because of difficulties in proving the offence met the threshold for ecocide.

A further non-statutory alternative, or a complementary approach, to the two alternatives set out above is to reflect further on the importance of enforcement. It is surprising to the Committee that there as yet appear to have been no convictions under section 40 of the 2014 Act. The Committee recommends that the Scottish Government undertakes or commissions a short, targeted review of the operation of section 40 and the Environmental Liability (Scotland) Regulations 2009, examining why they have been rarely used and whether procedural, evidential or resource constraints are limiting their effectiveness.

The Committee accepts that creating a new offence in law requires a balance to be struck between having a clear intelligible offence, the parameters of which are broadly understood and avoiding an excessively "technical" and detailed drafting approach that may create difficulties of its own. In the case of the ecocide offence, there is evidence that it is insufficiently robust and may give rise to uncertainty in practice. For instance, there are questions over terms such “widespread”, “long-term” and “serious adverse effects”, which, some witnesses consider, are ambiguous in ways that risk creating uncertainty or may not accurately capture the gravity of ecocide. There are also differences of views as to whether the Bill takes the right approach in re-using a definition of "environmental harm" used for slightly different purposes in another statute. The Committee also takes seriously concerns from prosecutors as to whether the Bill sets sufficiently clear terms to give confidence to people called to be an expert witness. The Committee would be very concerned by the Bill becoming law without proper consideration of all these matters.

In the Committee's view, if the Bill proceeds past Stage 1, there must be continued discussion of these matters by the Member in Charge with the Scottish Government and expert stakeholders, including courts, police and regulators and ecological experts, in order to reach agreement on any necessary changes.

The Committee does recognise that not all matters can be expressed on the face of legislation, and that it is not possible to ‘predict’ exactly what types of environmental harm could amount to an ecocide event in future. The Committee further recommends that guidance for prosecutors, police and regulators be developed on the different elements of the definition, including ecological criteria, scientific indicators, and practical examples.

The Committee recognises that the Bill is intended to criminalise grave misconduct and that requiring intention or recklessness reflects the seriousness of the offence and the penalties proposed. It would not be appropriate to make ecocide a strict liabilty offence.

The Committee does note views that combining what appears to be a high harm threshold with the requirement to prove a mental element may create a high bar for regulators, police and prosecutors. Prosecutors and legal commentators highlighted challenges in establishing intention or recklessness through diffuse corporate decision-making structures. On top of this, the Committee notes views that the Bill’s approach to individual liability within organisations may be unduly narrow. Limiting culpability to cases of “consent or connivance” risks leaving gaps where serious failures of oversight or governance cause severe ecological harm but cannot be characterised as deliberate approval or knowing participation.

At the same time, the Committee notes the concerns expressed by the Member in Charge and others about the need to protect workers and lower-level staff from inappropriate criminal exposure, and about the importance of targeting liability at those who genuinely exercise power and control within organisations

The Committee therefore considers that further work would be required to clarify the definition of “responsible individuals”, including whether this should be more explicitly aligned with concepts of senior management used elsewhere in criminal law, in order to strike an appropriate balance between accountability and fairness

The Committee also agrees with the evidence that the Bill would benefit from clearer provision on liability in contractor and subcontractor relationships.

The Committee recognises the rationale for including a defence of necessity in an offence intended to capture conduct of exceptional gravity, and accepts that there may be very rare circumstances in which conduct risking severe environmental harm is undertaken to prevent a clearly greater harm, particularly where human life or similarly grave interests are at stake. However, the Committee notes a difference of views between the Member in Charge, and her legal advisors, and the Scottish Government as to whether section 2(3), which places a legal burden on the accused to establish the defence on the balance of probabilities, is likely to be incompatible with Article 6(2) ECHR.

The Committee recommends that, if the Bill proceeds, section 2(3) be amended to remove any doubt as to ECHR compatibility on this ground.

The Committee also considers that the scope and operation of the necessity defence requires clearer definition. Evidence highlighted uncertainty around the meaning of “greater harm”, the risk of speculative reliance on the defence, and ambiguity as to whether the test is objective or subjective or capable of applying to systemic decisions over time. If the defence is retained, the Member in Charge should consider how the definition could be tightened to provide more clarity on how “greater harm”, necessity and reasonableness are to be interpreted in real-life situations.

The Committee accepts that some stakeholders supported the absence of a defence of carrying out permitted activities. However, many operators, regulators and local authorities warned that this creates significant legal uncertainty, with potential chilling effects on regulatory decision-making and major developments. The Committee therefore recommends that the Bill be amended to provide for a defence based on carrying out licensed activities, including the position of operators acting competently within authorisations and of regulators and consenting authorities exercising statutory functions in an appropriate manner.

In the event of the Bill becoming law, the Committee notes that guidance on the operation of the defences under the Bill could fulfil a useful role. This could be developed collaboratively with bodies including SEPA, NatureScot and COPFS.

The Committee recognises that the Bill’s penalty framework represents a significant departure from existing Scottish environmental offences, particularly through the proposed maximum custodial sentence of up to 20 years’ imprisonment, but accepts that that new offence is intended to be for only the most grave and egregious environmental breaches and also requires the prosecutor to prove a mental element. Given this, penalties under the Bill seem broadly appropriate. However, as stated earlier, this is provided questions over definition, liability and defences are resolved satisfactorily.

The Committee agrees that, whether or not this Bill progresses to Stage 2, there is a case to consider strengthening maximum penalties under section 40 of the 2014 Act, and that this should be considered as part of a review of that legislation (as recommended in paragraph 106)

The Committee is persuaded by evidence that existing confiscation powers under the Proceeds of Crime Act 2002 are sufficient and need not be duplicated in the Bill. The Committee also notes proposals to link fines more explicitly to corporate turnover, in line with the EU Environmental Crime Directive. This warrants further consideration.

The Committee recommends that, if the Bill progresses, the Member in Charge consider strengthening the sentencing framework through clearer or additional provision for restorative and preventative sanctions, including measures addressing corporate governance and decision-making, in line with the EU Environmental Crime Directive.

The Committee notes that the Bill is intended to operate largely through existing enforcement structures and investigatory powers. It is difficult to predict resourcing needs for an offence intended to address rare and exceptional events. However, ecocide investigations are likely to be infrequent, complex and resource-intensive, requiring specialist legal, scientific and operational expertise. The Financial Memorandum may underestimate the investment required to build and sustain such investigations.

NatureScot is not formally an enforcing body under section 108 of the Environment Act 1995. This means that it would not be automatically covered by the provisions extending the enforcement bodies’ remits to ecocide. Instead, it would require authorisation from SEPA to undertake ecocide-related investigations. As the Committee understands it, this also applies in the case of investigations potentially leading to a prosecution under section 40 of the 2014 Act. The Committee invites the Scottish Government to clarify whether investigations of possible environmental offences would benefit from NatureScot being designated an enforcing body and to comment on any significant resourcing or other implications of doing so.

If the Bill proceeds past Stage 1, the Committee recommends that there be discussions between the Member in Charge, the Scottish Government, prosecutors, police and environmental regulators with a view to producing revised and agreed estimates to complement further Parliamentary consideration of the Bill. This is complementary to the Committee's earlier recommendation on reviewing the operation of the section 40 offence, including why it has been so little used by prosecutors, which may itself suggest an existing resourcing, capability development, and inter-agency coordination issue.

The Committee notes the Scottish Government's concern that a fixed reporting requirement, detached from the occurrence of any ecocide cases, risks creating misleading expectations about the frequency of prosecutions and may impose disproportionate administrative burdens. At the same time, the Committee notes the strong support among stakeholders for some form of reporting mechanism.

On balance, the Committee considers that some form of reporting can play an important role in demonstrating how the offence operates in practice and what lessons could be learned following an ecocidal event.

The Committee therefore recommends that the Member in Charge consider lodging amendments to replace the current five-year reporting requirement with a duty on Scottish Ministers to publish a report within 12 months of any conviction for ecocide. The Committee considers that such a report should include, at a minimum, information on the environmental harm involved, the outcome of the case, and any lessons learned that could help prevent similar incidents in the future.

The Committee’s duty is to report on the general principles of the Bill. “General principles” is not a defined term- it is for each committee considering a Bill at Stage 1 to contextualise it to the specific circumstances of its scrutiny, including practical considerations, such as the remaining time the Committee and the Parliament has.

The Committee supports the principle of ensuring that the most egregious forms of environmental harm, carried out with intent or recklessness, are treated with the seriousness they warrant under the criminal law. This includes having robust penalties that reflect the severity of the damage caused and serve as a warning to others. There is a strong case for changing the law to more clearly embody this principle.

As outlined in prior conclusions and recommendations, there are a large number of question marks over definitional issues to do with the offence set out in the Bill and whether the alternative approach of amending section 40 of the Regulatory Reform (Scotland) Act 2014 would work better. There is also the issue of enforcement of environmental law and the Committee’s concerns that some existing legal sanctions, such as the section 40 offence, are barely being used. We all need to understand better why that is. A majority of the Committee i Sarah Boyack and Mark Ruskell dissent from this recommendation do not see a realistic prospect of these questions about definitions and enforcement being addressed comprehensively in the few remaining weeks before this session of the Parliament ends and, given this, do not consider that it would be responsible to recommend to the Parliament that the Bill should proceed any further. In that context, a majority i Sarah Boyack and Mark Ruskell dissent from this recommendation of the Committee do not support the general principles of the Bill.

Several recommendations, in particular the recommendation that there be a thorough review of the section 40 offence, exist independently of whether this Bill proceeds. While the Committee recognises that a parliament or government cannot bind its successor, the Committee hopes that these recommendations are commenced as soon as possible and taken forward into the next session with a view to possible legislation to create a robust penalty for serious environmental crime at the apex of Scotland’s environmental regulation. In this context, the Committee also note the current government’s commitment to keep pace with EU law which may require amendment to existing laws in this area.