Can an ecocide bill protect Scotland’s wild places?

The Trust takes a closer look at plans for new legislation that would criminalise activity that causes mass destruction to Scotland’s nature.

Scotland does have legislation intended to protect the natural environment and wildlife, however a consultation paper for a ‘Proposed Ecocide Prevention (Scotland) Bill’, brought by Monica Lennon MSP, argues there are gaps and existing legislation isn’t being enforced as fully as it could be. An ecocide bill would provide ‘overarching’ legislation to protect land and water environments, ensuring there were no gaps and that serious harm to the environment is prosecuted.

The paper makes the case for stronger environmental legislation to stop activities such as scallop dredging and dumping industrial waste in Marine Protected Areas; prevent the illegal and on-going dumping of sewage by water companies into rivers, lochs and seas; and to reduce the risk of future catastrophic environmental harm.

What is ecocide?

Broadly, ‘ecocide’ means the mass destruction or killing of the natural world.

A widely accepted starting point for the definition was agreed in 2021 by an independent expert panel convened by the Stop Ecocide Foundation. According to that definition, ecocide means “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts”.  

Variations of this definition have been adopted in legislation in countries around the world. Since 2017 the Stop Ecocide Foundation has been campaigning for ecocide to be recognised as a crime in international law.

Who would police ecocide legislation in Scotland?

SEPA and Environmental Standards Scotland are the two regulatory bodies with main responsibility for enforcing existing environmental legislation in Scotland.

The paper notes that under the current system criminal sanctions are considered a last resort (SEPA’s approach favours education and guidance over crime detection and prosecution), there is a perception that environmental crimes in Scotland receive unduly lenient sentences and criminal prosecutions and resulting convictions for environmental crimes investigated by SEPA are at a historical low.

The paper doesn’t analyse whether the emphasis on education, guidance and light touch enforcement has resulted in lower criminal prosecutions nor whether SEPA has enough resources to take full enforcement action. These questions could be worth exploring as part of this consultation.

Could ecocide legislation protect wild places?

In attempting to answer this question, perhaps it’s useful to start with the consultation paper’s proposed definition for ecocide:

‘Ecocide means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment of Scotland being caused by those acts. [‘wanton’, ‘severe’, ‘widespread’ and ‘long-term’ are also defined.]

The Trust’s policy team briefly discussed what could fit this definition. We wondered about the destructive harm caused by plumes of sea lice, which disperse from open cage salmon farms off Scotland’s west coast and infect and can ultimately cause the death of wild salmon; about the mass destruction caused to blanket bog habitats when wind farms such as the Energy Isles development on the Isle of Yell, and Cloiche wind farm, in the Monadhliath mountains, are constructed on peatlands; and about the proposed destruction of rare dunelands habitats in Sutherland, important for species of ‘conservation concern’, to make way for Coul Links golf course.

Each of these activities are having, or are predicted to have, a severely harmful impact on wild places, either directly from habitat destruction, or indirectly by harming the ecological balance of wild places. For the purposes of the definition, would it be possible to prove that these activities were having long-term, widespread and severe harm to wild places? Would the proof need to be the beyond all reasonable doubt (the standard proof in criminal law cases)? It seems that the evidence would only exist after the harm had occurred, too late therefore to save the habitats and the species from harm. An ecocide bill could not therefore right past wrongs, but it could deter future similar activity from happening (an aim of the legislation that has been reflected in the proposed title).

There are land use changes and management practices which impair wild places for which it might be unclear if they meet the definition, but which result in the on-going loss of abundance and diversity of species in Scotland. An ecocide bill can’t recover lost biodiversity nor help to restore nature to wild places. To do that, we need a mix of different policy measures that will influence behaviour that supports nature’s recovery and the ability of wild places to have the freedom to repair. These may include fiscal policies such as a Carbon Emissions Land Tax, agreed and approved standards for private investment in nature restoration in Scotland, a regulated grouse shooting industry, changes to land use consented only if there is sound evidence of how that land use change improves biodiversity, and reforms to legislation to achieve sustainable deer populations.

The cumulative loss of so much nature in Scotland’s wild places and beyond, over a sustained period of time, means we need reform. We welcome the Natural Environment Bill, the Wildlife Management and Muirburn (Scotland) Bill, and proposed revisions to National Parks legislation. To achieve its stated purpose, legislation requires effective implementation and the statutory bodies that exist to protect nature, namely SEPA and NatureScot, to be adequately funding and resourced.

We may have questions that we think require further exploration, but the proposals for an ecocide bill nonetheless chime with the John Muir Trust’s vision of ‘A world where wild places are valued for present and future generations’. We recognise, however, that if we are to reverse decades of biodiversity loss and repair wild places, we need policy measures and laws that are intended to  restore nature, alongside strong enforcement of crimes against nature.

What happens next?

Monica and her team will analyse the responses to the consultation and present a final proposal to the Scottish Parliament. For this to proceed as a Member’s Bill, the proposal will need support of at least 18 other MSPs from at least half of the political parties or groups represented in the Parliament, and the Scottish Government can’t be planning to introduce an ecocide bill.

• Learn more about Monica’s campaign for an ecocide law.
• If you would like to have your say, you can submit a response to Monica’s consultation via this online survey.
• Please note that the House of Lords has introduced an Ecocide Bill and this is currently making its way through the legislative process.

What is happening at UK level?

Baronness Boycott introduced an Ecocide Bill as a Private Member's Bill to the House of Lords at the end of November 2023. The Bill has already had its first reading and the second reading is expected in spring 2024. The Bill creates an 'ecocide' offence which could apply to 'a person, company, organisation, partnership or any other legal entity registered in the United Kingdom'. The definition for ecocide is split with one definition for indivduals and another for 'company, organisation, partnership or other legal entity'. The Bill as currently drafted includes a clause on superior responsibility, which gives the circumstances in which senior managers could  be held responsible for ecocide. For anyone interested in how the law could be used to protect the UK's wild places, this is one to watch!