Neil Macdonald

In November 2023, Monica Lennon MSP launched the public consultation on her proposed member’s bill to introduce ecocide law in Scotland. Although Scotland does have legislation intended to protect the natural environment and wildlife, it is argued in the consultation paper that there are gaps and that existing legislation isn’t being enforced as fully as it could be.

The stated aim of the proposed Ecocide Prevention (Scotland) Bill is to “deter mass environmental damage and destruction taking place in Scotland. It aims to protect the environment in Scotland covering all natural resources – air, water, soil, wild fauna and flora, including habitats.”

The proposed definition of ecocide in the consultation paper is: “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.”

In recent months, ecocide bills have been proposed or progressed in the EU, Brazil, the Netherlands, Belgium, Spain and Mexico. It is suggested in the Consultation Paper that the proposal for a Scottish Bill will help Scotland to keep pace with the European and international trend towards domestic criminalisation of ecocide and show solidarity with nations most affected by climate change and biodiversity loss.

Environmental Rights Centre for Scotland (ERCS) Report

A report commissioned by the Environmental Rights Centre for Scotland (ERCS) was recently published titled “Scoping a Domestic Legal Framework for Ecocide in Scotland”.

The ERCS report gives consideration to how the crime of ecocide could be defined in Scots law and how it would interact with environmental laws currently in place, with attention given to issues such as legality, gravity thresholds, enforcement and sentencing.

Legality

The principle of legality dictates that a crime must be specific and detailed enough for a person to understand what conduct is prohibited. A new crime of ecocide would need to balance a degree of certainty with sufficient flexibility to respond to emerging forms of environmental destruction. It is suggested in the ERCS report that this could best be achieved by listing specific qualifying acts, but to also include a residual category of ‘other sufficiently ecologically destructive acts’ to enable flexibility.

Gravity thresholds

Consideration would need to be given as to how serious an environmental incident would need to be for it to be considered ecocide. If the bar were to be set too high, then that may undermine any useful functionality of a domestic crime of ecocide. However, if the bar were set too low, it may be difficult to differentiate between ecocide and crimes already in force, such as s40 of the Regulatory Reform (Scotland) Act 2014, which makes it an offence for a person to act, or permit another person to act, in a way that causes or is likely to cause significant environmental harm.

Enforcement procedures

It is noted in the ERCS report that there is growing concern that enforcement efforts in the UK are not robust enough to tackle environmental crimes effectively. In Scotland, the Scottish Environmental Protection Agency (SEPA) are primarily responsible for environmental regulation. Prosecutions in relation to environmental offences are taken by the Crown Office and Prosecutor Fiscal Service (COPFS) usually after a referral from SEPA.

The suggested reason for a downturn in enforcement action is that a reduction in funding has impacted on the ability to properly investigate and enforce environmental laws. Recent statistics released by SEPA have confirmed that the number of prosecutions, statutory notices, warning letters and other penalties issued by the agency for pollution breaches has decreased by over 100 a year since 2017.

Without an effective enforcement procedure, the deterrent effect of any new legislation would likely be very limited.

Sentencing

In the consultation paper, the proposal is that the punishment for committing ecocide should be imprisonment for up to a maximum of 20 years for individual directors or managers, and financial penalties for companies worth up to 10 per cent of worldwide turnover.

The next steps

The proposal to introduce the offence of ecocide into Scots law is still at an early stage. If it is going to progress and become a new law, significant thought will need to be given as to what type of conduct it is seeking to combat and how that would best be achieved. That such a bill is being proposed may be an indication of a greater focus in coming years by politicians and law makers on protecting the environment. The proposed penalties are far more severe than anything that could be imposed under current environmental legislation, particularly for individual directors or managers.

If they are not already doing so, I would suggest that it may be wise for business owners or company directors operating in Scotland to consider the impact their business could be having on the environment and, if necessary, to make changes now.

Neil Macdonald is an associate BTO Solicitors LLP