On 11 December the proposed new offence took a step closer to becoming law when the Bill received the necessary cross party backing from MSPs to progress to the next stage of the legislative process.
This article will comment on the responses received during the consultation period, and the key issues that will need to be considered when it comes to drafting the legislation.
The Consultation received a total of 3,379 responses. Of these, 134 were from organisations, and the remainder from individuals. 95% of respondents were fully supportive of the proposal; 3% were partially supportive; 0.5% were partially opposed; just over 1% fully opposed; and the remainder neutral to the proposal.
In the previous article, four main issues raised in a report by the Environmental Rights Centre for Scotland were considered: legality, gravity thresholds, enforcement procedures, and sentencing.
The Consultation asked respondents to consider the proposed definition of ecocide:
“unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the Scottish environment being caused by those acts.”
Overall, the definition was widely regarded as comprehensive, with particular emphasis placed on its alignment with existing international law.
However, one respondent predicted issues with the uncertainty of using “wanton” as part of the definition, opining that the novelty of this term in Scots criminal law could lead to uncertainty in application. The use of the term implies intent, but what about recklessness? This is perhaps something to be further considered.
The definition of ecocide is explained in the Proposal as existing to punish the most serious environmental crimes. Some respondents highlight this point, stating that although there are specific environmental offences in force in Scotland, this offence is required to add an additional threshold of penalty for environmental crimes comparable to ecocide in terms of scale and severity: “that is, causing widespread and substantial damage, which is either irreversible or long-lasting to an ecosystem.”
However, a minority of respondents argued that this Bill would introduce another piece of legislation that could be redundant, given the existing laws already in place.
As mentioned in the previous article, there were initial concerns that the existing enforcement procedures under current legislation could ultimately limit the effectiveness of any new offence.
This concern was mirrored by many respondents in the Consultation, viewing that any deterrent effect is wholly dependent on the effectiveness of enforcement. Summarised succinctly by one respondent, “if the reason for introducing the offence is that the criminal law is not being effectively used at present, will just adding a further offence change that?.”
Monica Lennon highlights that she does not offer ecocide law as a solution to wider concerns on the existing gap in enforcement of environmental offences. However, she states that she is nonetheless reassured that a strong majority see a potential for this offence to prevent environmental harm.
79% of respondents were fully supportive of the proposal for a sanction of up to 20 years’ imprisonment, including for responsible officials. This was generally based on the view that the penalty should reflect the seriousness of the crime, which would be severe environmental damage.
80% of respondents were fully supportive of the proposed financial sanction of 10% of worldwide turnover of companies over 3 years. One respondent noted that as profit is the key driver for ecocide actions, it must be targeted financially to make the offence effective.
Some respondents argued that the penalty should be higher, warning that without a substantial fine, it could be offset by the profits generated from ecocide-level criminal acts. Consequently, some proposed that the financial sanction should be directly linked to the profits derived from the offence.
Finally, one respondent raised concerns on the impact of such a fine on employees and communities.
Unlawful acts that cause severe damage to the environment could have serious consequences not only for society today, but also for future generations. There is growing recognition that we may be reaching a tipping point when it comes to climate change. It is therefore not surprising that Monica Lennon’s proposed Bill has received widespread support from the public and from MSPs.
The next stage in the process will involve the legislation being drafted. This will be of particular interest to business organisations that could be affected by the new legislation and to solicitors that practice in this area.
The definition of what constitutes ecocide will be very important. It is not entirely clear from the definition currently proposed if negligent or sufficiently reckless acts would be covered by the new law. If it is to have the desired effect and force organisations to fully consider the impact that their undertakings could have on the environment, then I would suggest clarifying this point would be beneficial for prosecutors and duty-holders alike.
In the draft proposal for the Bill the suggested sanctions for breaching the new law would be up to 20 years’ imprisonment and financial sanctions worth up to 10% of worldwide turnover for companies over three years. These sentences would be far more severe than anything that could be imposed under current environmental legislation and the risks for businesses and individuals who were non-compliant would be too high to ignore.
BTO regularly advise clients in all aspects of Environmental law, including compliance issues. Please do contact us if you wish to discuss a particular environmental concern.
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