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We could get into hypothetical situations, but I will say that, when planning authorities are weighing up the likelihood of possible environmental harms, they already have to apply the precautionary principle under existing legislation, whether through national planning framework 4 or other guidance that is available to planning authorities. We have a very established regime of environmental impact assessment. As a former planning minister, you know that planning authorities have to set out their reasoning and be very clear on the material considerations that have been taken into account if they approve a development or depart from the local development plan in any way.

Take, for example, a situation where there is an awareness of a particular protected species in a locality that could be affected in some way but reasoning has been given as to why the planning authority is satisfied—perhaps because mitigation could be put in place through a buffer zone around an area where bats are known to fly, or whatever—and there then comes a point where the Crown Office is looking at an ecocide case and is trying to work out how the severe environmental destruction happened, who was responsible, who closed their mind to the possible harm and who intentionally caused it to happen or acted in a reckless manner. I cannot think of a circumstance in which planning officers, councils or a planning minister could, based on the best available evidence, be found guilty of intending to cause ecocide in that situation.

I want to reinforce the point that, under the bill, the ecocide offence would not be a strict liability offence, unlike the offence of significant harm in the RRA. Under the bill, a person would commit an offence if they intended to cause environmental harm or were reckless about whether environmental harm would be caused. Recklessness requires that the person closed their mind to the consequences of their actions and to whether any environmental harm would come about as a result.

Recklessness is accepted as sufficing to constitute a criminally guilty mind. I felt that that was important, given the serious nature of the proposed crime and the punishment for it, which would be up to 20 years in prison, unlimited fines, publicity notices and compensation orders. Omission, in contrast, does not necessarily involve knowledge or a high degree of culpability. That was my reasoning.

I would be open to looking at any of the committee’s recommendations, but I am in the same space as the Scottish Government on that. Some strong points have been made on the matter, but given that we are looking at criminal law, which has high penalties, it is very important that the mens rea test is included. Omission would not necessarily involve knowledge or a high degree of culpability. From where I am sitting, if someone potentially faces 20 years in prison, it is really important that there is proof of intent or recklessness.

At that point, it might be helpful to bring in Roz Thomson.

I need a coffee.

No, I do not think that it would. The bill does not change the assessment of environmental, economic and social impacts. We have very well-established processes in the land-use planning system that assess all the different considerations.

You were perhaps hinting at environmental damage that could be caused by an underground cable in the Highlands, but I am not sure what damage there could be. In each particular case, we would have to consider the harm that had been caused, its nature and gravity and whether it was widespread or long term. You said that an environmental NGO could object. Did you mean a statutory consultee that had given a response to the planning authority?

Especially if the perpetrator is in prison by then.

I read the comments from COSLA and some of the planning authorities about resources. Although local authorities would need to be informed and made aware of any ecocide offences that could impact on their localities, it is not anticipated that the bill would generate any additional financial obligations for them. Councils can often be the first bodies to hear about environmental offences—people might phone or email their local council—but they have to report serious cases to SEPA, and it is SEPA that would be the primary enforcement or investigatory body for this matter.

I am always sympathetic to local authorities regarding their financial settlement and their capacity to do the jobs that they want to do. However, a severe environmental incident that occurs must, under existing regulations, be dealt with by our public sector regulatory bodies. In relation to the financial memorandum, other costs could kick in when a serious incident is dealt with that is likely to be at the level of ecocide. However, other adjustments would take out reporting costs from the financial memorandum.

Roz, is there anything about local authorities or SEPA that I have not mentioned?

I have acknowledged the points that SEPA has made. When you put together a financial memorandum, you have to use the best information and evidence that is available at the time. However, I think that any rise in costs would be minimal. I do not want to say that this is a cheap bill, but the overall conclusion of the financial memorandum is that it is not an expensive bill compared with many others. I will be interested to see what the committee says about the costs in its report.

I reinforce the point that we already have well-established systems in place whereby highly expert SEPA officials are embedded in the Police Scotland crime campus at Gartcosh. I think that I learned that from Michael Matheson a few months back. I asked him, “Do you think I could get in to visit?” He said, “No.”

Again, the principal aim is for the bill to have that deterrent effect—up to 20 years in prison is a very serious punishment. In order for the bill to have the maximum deterrent effect, it had to go beyond the current penalty under the RRA, which is up to five years. There are some other examples in the European Union. I think that in Belgium, for example—sorry, it is getting late in the session and I will probably get this wrong—it might be 15 years. However, again, the aim is to set the bar really high.