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I have it here. I can read it, if that would be helpful. She said:

“It is difficult to have an evidence base for a deterrent effect but, instead of changing section 40, with its high penalties, the passage of a specific bill would probably attract some regulatory attention, press attention and corporate attention, which might strengthen the potential for a deterrent effect.”—[Official Report, Net Zero, Energy and Transport Committee, 4 November; c 8.]

Beyond the public relations aspects, I think that it is fair to say that there is not much evidence of a deterrent effect. My understanding of the deterrent effect of criminal legislation is that, broadly, the evidence says that, when people are committing criminal offences, the last thing that they are thinking about is the actual criminal penalty that would be applied to them.

In your policy memorandum, you have suggested that section 2(3), on defence provisions, is incompatible with the ECHR on the basis that it requires the accused to establish a defence of necessity on the “balance of probabilities”, whereas the ECHR operates on the basis of a presumption of innocence. Will you elaborate further on the Government’s view? Is the bill as drafted incompatible with the ECHR and existing case law?

Good morning, cabinet secretary. I want to pick up on a couple of points that have been made in response to Mark Ruskell. With any form of criminal legislation of this nature, the lead agency responsible for its implementation, in seeking to pursue prosecutions, will be the Crown Office and Procurator Fiscal Service.

The Crown Office, in its evidence to the committee, said that it

“struggled to identify a scenario where the existing legislative framework would not be sufficient … most notably”

given the availability of the offence under section 40 of the 2014 act. However, it went on to say:

“If you are wanting to find a gap, I think that the gap relates to massive incidents where we would be limited in sentencing”,

because penalties are limited to sentences of five years under the 2014 act.

We then heard evidence from the legal expert Murdo MacLeod QC, who said:

“if Parliament thought that the sentence was lagging behind what it should be to mark the gravity of the offence, that five-year penalty could be amended”,—[Official Report, Net Zero, Energy and Transport Committee, 11 November 2025; c 7-8.]

which would obviously be done by amending the 2014 act.

In your earlier response, you mentioned that if the Crown Office was to try to pursue a prosecution under the bill—if it is passed and implemented—and was not successful in doing so, it could then use the 2014 act. However, my understanding is that the Crown Office, in its evidence, was saying that, because of the thresholds in the bill, it would actually be much more likely to prosecute under the 2014 act in order to secure a prosecution. Given the expertise of the Crown Office and the need to implement the bill, if it is passed, that raises a question as to the purpose of having a stand-alone offence.

Of course, we could just amend the 2014 act to increase the sentencing powers to include the imposition of sentences of 20 years. Why would we not do that?

Yes, I understand that point.

You mentioned that a bespoke bill could have a deterrent effect. I am always interested in the idea that new criminal law acts as a deterrent. What is the evidence to support the argument that a bespoke bill delivers a deterrent effect?

Okay. To push you a bit further on that, will you clarify whether that incompatibility is based on existing case law rather than just an interpretation of ECHR?

That is helpful.

To stick with the issue of oil and gas, we have to be realistic about what we can expect the Scottish Government to do. All decisions about exploration and extraction rest with the UK Government and there is very little that the Scottish Government can do to change the use of the existing gas fields in the North Sea or of those still to be exploited. The timeline for deciding how that will be taken forward rests solely with the UK Government.

The fact that that is a declining basin has been recognised and acknowledged for the best part of a decade, if not longer, and the just transition fund for the north-east addresses that. I put it to you that the Scottish Government has already acknowledged that and that some of the work that it is doing is intended to address those issues. However, actually setting a timeline for when we will stop extracting oil and gas from the North Sea is not something that is in the gift of the Scottish Government.

Thanks, convener.

I will pick up on the issue of governance, which was touched on in the earlier part of the meeting. We have discussed the issue of data and being able to track progress, or the lack of it, the need to have clarity on policy and the distinction between targets and other broader aspects. Richard Dixon also touched on the fact that there is no provision for the additional catch-up reports that the Scottish Government had to produce annually under section 36 of the 2009 act, on where it was not making sufficient progress.

I would be grateful for the witnesses’ views on whether the governance arrangements are sufficient or whether they think that there are measures that the Government could take to support the governance process around its draft climate change plan.

I will come to Clare Wharmby first, particularly given that governance aspects will have a role to play in accountability. That could be at different levels of government, with local government being a key part of the delivery mechanism for the climate change plan. Are the governance arrangements sufficient?

That is helpful.

I turn to Graeme Roy. A considerable part of the change that will be needed to meet our climate change targets will require private sector investment. I would be interested to hear your views on this. If there is a lack of clear leadership for and ownership of policy within the Government’s climate change plan, does that run the risk of making it difficult for the private sector to develop a clear understanding of the Government’s priorities and of how firms should target their investment in this area? If there is a lack of clarity, that could have an impact on our economy in the medium to longer term.

I wanted to come in on the back of the response from Richard Dixon, particularly on the issues of air departure tax and oil and gas. I have two points. The first is that there are fiscal challenges regarding arrangements for an air departure tax and the potential impact that it could have on interisland flights. The Scottish Government has now been seeking to get that issue resolved with the Treasury for the best part of a decade, but that has not yet been resolved. Are you taking that into account in highlighting any areas in which you think that there is a lack of leadership?

My second point is the issue of the Scottish Government setting out a timeline or process for reducing our reliance on oil and gas production. How do you expect the Scottish Government to deliver on that when it is not responsible for the licensing of exploration or the extraction of oil and gas in the North Sea?