Chamber and committees

I will make a couple of points. We will be debating the muirburn code. As Mr Mountain says, not everyone carries out muirburn properly, in the way that the code dictates.

I am disappointed that Mr Mountain has lodged amendments that would remove the whole of part 2 of the bill. If passed, the amendments would mean that the existing legislation would remain in place, which would feel like a missed opportunity to improve the regime for a rural activity that is important, but can have an adverse impact on peatland, habitats and wildlife if it is not undertaken appropriately and safely.

Although some might disagree, there is broad agreement from stakeholders and the public that muirburn should be subject to greater oversight and that the legislation currently governing it—some of which dates back to 1946—should be updated. The public consultation showed that the majority of respondents supported the proposals, with 68 per cent agreeing that a licence should be required to undertake muirburn, regardless of the time of year when it is done.

The Scottish Government committed to implementing the recommendations of the Werritty review, including those relating to muirburn, and that is what part 2 of the bill does. The Werritty review recognised the benefits that muirburn can bring, but it also highlighted the strong evidence that muirburn can have negative impacts, including on biodiversity and soil. The review concluded that muirburn should be subject to greater regulation and oversight and that that should apply to all muirburn, not only to that undertaken on grouse moors.

It is recommended that muirburn should be unlawful unless carried out under licence, and part 2 of the bill seeks to implement that. I therefore cannot, nor would wish to, support any of the amendments in this group. I ask Mr Mountain not to press them. If he does, I encourage committee members—most of whom were elected on a manifesto commitment to implement the recommendations of the Werritty review—to vote against those amendments.

I do not support amendment 32. The 2017 muirburn code set out the current statutory requirements for undertaking muirburn and provides guidance on good practice. It stands to reason that, if the bill is passed and changes to the regulations for undertaking muirburn are brought in, the 2017 code will need to be updated to reflect the latest regulatory position.

As the bill requires that anyone undertaking muirburn in Scotland must

“have regard to the Muirburn Code”,

it is essential that the code reflect statutory requirements.

The process of updating the code is already under way, and I am pleased that NatureScot is taking an iterative and collaborative approach to developing the new muirburn code of practice. That process is being managed through a code working group, with additional input from members of the Moorland Forum, who provide feedback on the practical and technical aspects of the code. That will ensure that the code is applicable and relevant to all users and audiences, and that it fits the requirements of the legislation. Other stakeholders with an interest in muirburn will be kept up to date with progress via a correspondence group.

Amendment 32 would put all that work and activity back and would mean that we would have a code that was not compliant with the law. For those reasons, I cannot support amendment 32.

I turn to amendments 33 and 34. As far as I am aware, no stakeholders have called for such amendments. As well as setting out the statutory requirements, the muirburn code will set out best practice and guidance, and it will provide a mechanism by which practitioners can be kept informed about any changes or developments. As we all know, the science behind muirburn is constantly evolving, so I think that it is sensible to require that the code be refreshed regularly.

If Edward Mountain’s amendments were passed, they would mean that we could go as long as 10 years before a new code would be produced. Given all the reasons that I gave for why it would be inappropriate to grant a licence for 10 years, that would also be too long an interval for a code, especially given that climate change mitigation and adaptation and wildfires are at the forefront of our considerations.

For those reasons, I cannot support amendments 33 and 34, and I ask committee members to vote against them.

I cannot support Rhoda Grant’s amendments. Taken together, they would provide that, before laying the revised muirburn code before the Scottish Parliament,

“the Scottish Ministers must publish a draft of the Muirburn Code ... consult such persons as they consider likely to be interested”

and

“lay before the Scottish Parliament a statement”

on

“the consultation process”

and on how the

“views expressed during that process have been taken account of”.

I believe that, if the amendments were passed, the changes would create an unnecessary additional burden and would considerably slow down the process of updating the muirburn code. The bill currently sets out that—[Interruption.] Let me finish this piece. If you need to come back in after that, you can do so.

The bill currently sets out that stakeholders will be consulted on the muirburn code as it is being developed. Therefore, and as is currently occurring, NatureScot will be working with all stakeholders to ensure that production or revision of the muirburn code is a collaborative process. It seems unnecessary to consult stakeholders on something that they have helped to develop.

Finally, the muirburn code is meant to be a practical working document that provides up-to-date guidance for licence holders. It is not clear to me what laying it before Parliament would achieve. The code will be published on the NatureScot website and we will, of course, ensure that Parliament is kept updated on the process of development and on when it is published.

The amendments in the group would create an unnecessary statutory requirement for what is meant to be active, up-to-date guidance. Although I understand the intention for the first updated version of the code following the bill, I do not think that it makes practical sense to put through such a statutory process every future iteration in response to circumstances, which in some cases will have to be done nimbly and flexibly.

For all those reasons, I encourage the committee to vote against the amendments.

I point out that the muirburn code working group consists of BASC, the Cairngorms National Park Authority, the Game and Wildlife Conservation Trust, the International Union for Conservation of Nature UK peatland programme, the James Hutton Institute, NFU Scotland, RSPB Scotland, the Scottish Crofting Federation, the Scottish Fire and Rescue Service, the Scottish Gamekeepers Association, Scottish Land & Estates and the Scottish Wildlife Trust. I have asked to sit in on some of the meetings as the meetings get further down the road, to hear exactly what is being discussed so that the code covers all aspects of what needs to be done.

I am going to push back on that on the basis that the people I mentioned will all be sitting at a round table in the room. We know how constructive round-table sessions can be. I have said that I will sit in on meetings to hear how the process is developing. I do not think that there is any need to bring the code back to Parliament, so I will resist that.

Amendments 169, 45, 171 and 170 all offer alternative definitions of peatland for the purpose of muirburn licensing. I want to be clear that the approach that is taken in the bill, which is in line with wider muirburn provisions, follows the precautionary principle, and that the depth of 40cm arose from that principle.

I thank Ariane Burgess, Edward Mountain, Colin Smyth and Rachael Hamilton for lodging their amendments, which has allowed us to debate the issue during the passage of the bill. It is an important debate that reminds us that it was always going to be difficult to balance the need to protect peatland with the practical necessities of managing land productively.

Today’s debate, in which some members wanted peatland to be defined as deeper and others wanted it to be shallower, leads me to believe that the bill’s definition of 40cm is probably right and that it adequately accounts for what we know to be the potential risks that are associated with muirburn on peatland.

The public consultation on the definition of peatland was similarly divided: 38 per cent of respondents said that it should be 40cm, while those who disagreed with the 40cm depth were divided between wanting it to be 50cm and arguing that it should be 30cm or less. I am also mindful that the 40cm depth is the definition that is being moved to in England. We have carefully considered the approach being taken there and the evidence and science that was considered by the UK Government.

In recognition of the lack of a strong scientific consensus relating to muirburn on peatland, the bill contains a regulation-making power allowing Scottish ministers to amend the definition of peatland. That means that ministers will be able to take a proactive approach and can respond to new evidence or data in future to ensure that the definition keeps pace with scientific research.

To reassure the committee, I note that the bill provides that the Scottish ministers must consult NatureScot and

“such other persons as they consider likely to be interested in or affected by the making of muirburn”,

before making any regulations to amend the definition of peat or peatland.

Amendments 31, 36 and 43 set out a new section that would require NatureScot to keep a public register of muirburn licences that are granted under part 2 of the bill. Notices of muirburn activity would be placed in that register.

I am sympathetic to the intentions behind the amendments, and I agree that transparency is important not only in respect of the way in which the licences will operate, but for all the licences that are operated by NatureScot. That is why, under the Bute house agreement, we have made a commitment to

“review the wider species licensing system ... and the introduction of a public register of licenses to improve transparency, bearing in mind data protection and safety of licence holders.”

Therefore, I think that it would be better to allow for the review that has just been announced to be undertaken and for options to be presented for creating a register that would potentially cover a range of licences. That would seem to be a more appropriate way to proceed, rather than providing in the amendments for a register only in respect of muirburn licences that are granted under the bill. Such an approach would also allow me to fully consider any general data protection regulation implications before creating any register.

I hope that, for that reason, Edward Mountain will not press or move the amendments. If he does so, I encourage the committee to vote against them.

It has been clear all along that medicated grit was always going to be part of a code of practice, as that was one of the matters considered by the Werritty review. It recommended that the Scottish Government should publish a code of practice, which is now in train. It was always the Scottish Government’s intention that guidance on the use of medicated grit would be included in the code of practice for grouse moor management as it was developed.

Rachael Hamilton’s amendment 160 seeks to change the definition of “relevant person” for the purpose of the muirburn licence scheme. I understand that the amendment seeks to ensure that only offences committed by people who are involved in the management of the land for the purposes of making muirburn can result in a licence being modified, suspended or revoked. However, NatureScot already has the discretion not to suspend a licence—we have argued that point already. Therefore, a licence holder may not be sanctioned as a result of a person who is involved in managing the land to which the muirburn licence relates committing a relevant offence.

Unfortunately, amendment 160 would lead to loopholes that could easily be used to circumvent the provisions and intentions of the bill. For example, when someone involved in managing the land but not for muirburn purposes committed an offence by making muirburn that was not in accordance with the licence, the amendment would mean that that illegal muirburn would not lead to the licence being suspended or revoked unless the person who was managing the land for the purpose of muirburn caused or permitted it.

I have some difficulty with the potential outcome for workers on the land. Should an employee be the one who commits an offence, they should not be the only one who bears the consequences—the landowner or the manager should, too. Otherwise, employees could be in a much more precarious position than they are in now.

The amendment would not result in good employment practice, with a lack of training, guidance or supervision, for example, being—or, in some cases, becoming—the norm. It is right and proper for employees to expect such support, and it is right and proper that licence holders should also bear the responsibility for offences that are committed by people they employ or otherwise allow to participate in land management.

I cannot support the amendment, and I encourage committee members to vote against it.

I agree. I also highlight the absolutely invaluable work of gamekeepers and associated industries to ensure that such wildfires are brought under control.

I understand why Kate Forbes has lodged amendment 88. Like her, I want to ensure that the bill’s provisions on the purposes for which muirburn will be allowed in the future are as clear as possible. I agree that, when undertaken appropriately, with caution and planning, muirburn can be a tool to prevent and reduce the risk of wildfire. However, I do not consider amendment 88 to be necessary, because making muirburn for the purpose of

“preventing, or reducing the risk of, wildfires causing damage to habitats”

is covered by the existing purposes in the bill of

“managing the habitats of ... wildlife”

and

“managing the natural environment”.

I therefore ask Kate Forbes not to move amendment 88, which would allow me to consider the matter further ahead of stage 3 and to determine whether we can make the bill’s purposes clearer.

Similarly, amendments 144 to 146, in the name of Rhoda Grant, are unnecessary. The bill already includes, in section 10(2)(a) and (b), making muirburn for the purposes of

“preventing, or reducing the risk of, wildfires”,

which would include managing fuel loads to serve those purposes. Such detail could—and, indeed, should—be set out in the muirburn code. However, there is a risk that the changes to the wording that is proposed by amendments 144 to 146 might restrict the wildfire management purposes solely to managing fuel loads. If there were to be another use of muirburn to prevent or reduce the risk of wildfire it would no longer meet that licensable purpose. It is not immediately clear what amendments 144 to 146 offer over what is already in the bill. I therefore ask Rhoda Grant not to move them.

Amendment 23, in the name of Edward Mountain, which would allow muirburn to be undertaken on peatland to manage habitats for game birds or other wildlife, does not take into account the value of Scotland’s peatland. As they are currently stated in the bill, the purposes for undertaking muirburn on peatland are limited in recognition of the risk of serious and significant carbon emissions when burning either damages the peat or interferes with the natural carbon sequestration process that occurs on functioning peatlands.

Amendments 181 and 182 would insert a definition of moorland into the bill and would have the effect that a muirburn licence would not be needed to make muirburn on improved grassland or land suitable for arable cropping.

The Rural Stewardship Scheme (Scotland) Regulations 2001 provide definitions of “arable land” and “improved grassland” that clearly exclude heath or moorland. Heathland, or heather moorland, is defined instead as “rough grazings”. The amendments would not apply for the purposes of the provisions of the bill, but that provides background to what Edward Mountain is trying to do.

Gillian Martin has lodged amendments 76 and 77 to amend the definition of making muirburn in the bill to mirror the definition used in the Hill Farming Act 1946, which is the

“setting fire to or burning any heath or muir”.

That means that, should amendments 76 and 77 be agreed to, Edward Mountain’s amendments 181 and 182 would have no practical effect, as heath or muir would not include improved grassland or land suitable for arable cropping. Amendments 181 and 182 would, however, create a layer of complexity and possible confusion for muirburn applicants, because they would be dealing with two different definitions of what muirburn is and where it can be carried out.

In addition, the definition of moorland that amendment 182 offers is so wide that it could encompass anything that is not improved grassland or land suitable for arable cropping—for example, it could include forestry, roads and private gardens. It is clear that such a wide definition would not be practical.

For those reasons, I cannot support amendments 181 and 182, and I encourage committee members to vote against them.

It would be up to NatureScot and the grouse moor manager to have that conversation.