Chamber and committees

I thought that you said amendment 13.

My apologies, convener—that was entirely my mistake.

Amendment 37 would require the Scottish ministers, when specifying any additional method through which notice of making muirburn may be given, to have

“regard to the need for the cost of giving notice to be reasonable”.

The requirement to give notice of muirburn activity is not new, and the bill as it is currently drafted broadly replicates the existing requirements for giving notice, as set out in the Hill Farming Act 1946 and covered by the muirburn code.

I am unaware of any concerns or issues relating to the cost of giving notice of muirburn activity under the existing legislation. Notwithstanding that, we would always seek to ensure that any costs that individuals incurred to fulfil the requirements to give notice of muirburn were reasonable and proportionate.

I have no issue with amendment 37 being agreed to, although we would want to have a closer look at its framing ahead of stage 3 and potentially tidy it up in order to avoid unintended consequences and ensure that it is aligned with the approach that is taken in the rest of the bill.

I do not have that number to hand, but what I am going to say, if you allow me to finish, might put your mind at ease.

The Scottish Fire and Rescue Service regularly reviews training capacity against demand to ensure sufficient training capacity and investment in people and resources so that staff are competent in the roles that they are expected to undertake. In my view, it would be too prescriptive to amend the 2005 act to specifically mention muirburn, given that no other individual fire types are specified in it. For those reasons, I cannot support amendment 174, and I ask members to vote against it.

In our 2023 programme for government, we committed to working with the Scottish Fire and Rescue Service to ensure that continuing priority is given to the implementation of its wildfire strategy. It has produced the strategy in partnership with various agencies and groups in the rural and land management sectors. As part of the strategy, the SFRS is adopting a burn suppression technique that is similar to those that are used in the new Mediterranean-style specialist wildfire units. The SFRS remains fully ready and able to respond to any wildfire that occurs across Scotland, and substantial investment has recently been made in rural areas to provide additional specialist wildfire equipment and personal protective equipment. The service’s planned spend over the three-year roll-out of its wildfire strategy is about £1.6 million. Although the SFRS is fully supportive of training for those undertaking muirburn, it does not support muirburn training being explicitly added to the 2005 act.

Amendment 175 would require that a report on the role of muirburn in relation to wildfires in Scotland be laid before the Parliament every two years. In my view, not only is that unnecessary but it would create an additional and onerous administrative and reporting burden on various organisations, including the SFRS and NatureScot. The SFRS already records and reports on fires through its incident reporting system inputs. It has also produced, in partnership with the Scottish Wildfire Forum, a wildfire strategy, which includes a commitment to review the distribution of wildfire danger assessments and to measure how effective they are in preventing wildfires.

On muirburn and its relationship to wildfire, NatureScot produced, in 2022, a comprehensive report in which it reviewed, assessed and critiqued the evidence base on the impacts of muirburn on wildfire prevention, carbon storage and biodiversity. The report covered decades of peer-reviewed academic literature on wildfire and muirburn, and it concluded that the evidence base on the impacts of muirburn on wildfire habitats and species is limited and sometimes contested. The report also highlighted that a number of knowledge gaps need to be filled in order to determine the pros and cons of muirburn in relation to the suite of upland ecosystem services that moorlands provide. Ultimately, the findings recommend that targeted scientific assessment is required to better understand the role of muirburn in relation to wildfire and biodiversity. Detailed scientific research cannot simply be generated and reported on every two years.

I believe that it is more appropriate and proportionate to monitor wildfires through the existing reporting systems, in conjunction with the wildfire strategy. That, in turn, will enable NatureScot to take into account the most up-to-date evidence on wildfire when updating the muirburn code and assessing licence applications. For those reasons, I cannot support amendment 175, and I ask members to vote against it.

Amendments 76 and 77 will change the definition of muirburn in the bill. During the stage 1 evidence sessions, we heard from stakeholders who were concerned that the definition of muirburn might be broad enough to cover situations that would not normally be considered to be muirburn. The current wording in the bill refers to the

“burning of heather or other vegetation”,

which might capture piled-up dead vegetation and so include things such as bonfires and campfires. We also heard concern that the definition would include the activity of flame weeding, which is a method that is used to control weeds in garden settings or agricultural fields, or gorse in fields, golf courses and urban areas.

It was not the intention to include activities of that type under the bill. The muirburn provisions are intended to cover only the burning of vegetation on a heath or a muir. The amendments would align the definition of making muirburn in the bill to what is currently used in the Hill Farming Act 1946, which is well understood by practitioners, so that it means

“the setting of fire to, or the burning of, any heath or muir.”

That would provide welcome clarity, so I encourage the committee to vote for amendments 76 and 77.

I do not propose to speak on any other amendments in the group at this point, but I will listen to the proposers and to what all contributors have to say before responding.

I move amendment 76.

I accept that establishing what constitutes muirburn is difficult. I was out on a hill last week—in fact, it was at the beginning of this week. This has been such a difficult week. I was out there on Monday and I witnessed muirburn in perfect burning conditions—they managed to burn right over the top of a chocolate bar. I have seen all the provisions that are made, but I also know that, when muirburn goes wrong, peat gets burned. We are trying to find a balance in this part of the bill.

We are keeping the definition under review anyway, but I fully understand that it is a difficult issue in terms of getting everybody on board. Through the bill, we are trying to find the balance. I will meet you before stage 3 and we can discuss the issue. However, right now, my preferred option is 40cm.

Any regulations that are developed to amend the definitions would be subject to consultation and enhanced parliamentary scrutiny, as they will be subject to the affirmative procedure.

Taking all of that into account, I would hope that amendments 169, 45, 171 and 170 are not moved. If they are moved, I encourage members to vote against them.

Amendment 172 would add to the process that is required of Scottish ministers if they change the definition of either peat or peatland in future through secondary legislation. As I and ministers before me have explained on a number of other similar amendments, those changes are not necessary. The amendment would place another additional burden on the Scottish Parliament when established procedures are already in place for changes through secondary legislation. It could lead to unnecessary delays in amending the depth of peat, which could have consequences for the natural environment.

Any change to the definition of peat or peatland for the purpose of the bill would be subject to the affirmative procedure as well as to the consultation requirement. Parliament will have an opportunity to consider the instrument in draft, take evidence on it and vote on it. That is the correct procedure for any such amending instrument. Therefore, I encourage the committee to vote against amendment 172 on that basis.

Amendment 76 agreed to.

Amendment 182 moved—[Edward Mountain].

Amendments 150, 152 and 153, in the name of Stephen Kerr, would add a requirement that muirburn licence applications are determined within three months, and that, if a final decision is not made prior to the end of three months, the application will be deemed to have been granted.

The amendments would effectively undermine the process that we are seeking to put in place to better govern muirburn practice. They also fail to take into account the many reasons why a licence application might not be processed in three months. Indeed, the amendments do not account for applicants taking a long time to return information to NatureScot and may create a situation in which an application is granted automatically through the passage of time even when the application is flawed or inappropriate, or if there is incomplete information in relation to it.

The amendments also reduce the opportunity for NatureScot to work with applicants to gather the required information and could lead to it rejecting applications for missing information rather than having an iterative and more constructive process.

For the reasons that I have mentioned, I will not support those amendments, and I ask the committee to vote against them.

Alasdair Allan’s amendment 97 seeks to allow muirburn to be undertaken on peatland if no other method of vegetation control is “practicable” rather than “available”. Demonstrating other potentially less damaging land management techniques is a key part of ensuring that our valuable peatlands are protected. However, I have heard concerns from stakeholders that, even though other methods may be available, they may not be suitable. Requiring methods to be practicable feels like a more appropriate test. I am clear that it will still be a high bar to meet and that it will require all parties to respect the intent of the legislation.

A more expensive approach or a scheme that would take longer to complete could still be practicable. However, there may be times when, due to Scotland’s topography, the cost of an alternative would be prohibitive, particularly for the small land managers and owners who live and work in constituencies such as Alasdair Allan’s. I hope that NatureScot and applicants will work together to arrive at mutually discussed and agreed decisions. I therefore support Alasdair Allan’s amendment 97, and I encourage the committee to vote for it when the time comes.

Rhoda Grant’s amendment 151 seeks to amend the muirburn licence test for peatland so that there would have to be no other method of vegetation control available,

“taking into account the need to manage fuel loads to prevent, or to reduce the risk of, wildfires”.

I understand what Rhoda Grant is trying to do with the amendment, and the mitigation and prevention of wildfires is a key part of the provisions in the bill. However, given that amendment 97, if it is agreed to, will change the licensing test for determining when muirburn may be conducted on peatlands so that that may be done when no other method of vegetation control is practicable, Rhoda Grant’s amendment would have no material effect on the licensing test.

As amendment 151 is no longer necessary, I hope that Rhoda Grant will not move it. That will allow further consideration to be given to how the guidance that relates to wildfire prevention can be clarified ahead of stage 3. Because the provision is not needed, I do not see the point of voting it into the bill. For that reason, I cannot support amendment 151, and I encourage the committee to vote against it.

Edward Mountain’s amendment 28 would insert a condition that would require muirburn licences to last for 10 years and would allow them to last for a shorter time only if that was deemed appropriate “for environmental reasons”. In the past year, we have had a very early warm period, water scarcity, a wet summer, flooding, short sharp cold spells and wind-related gales and storms, often with non-prevailing winds dominating. The year in front of us may prove to be completely different in terms of weather events. The point is that our climate is changing continually and we need to be able to respond to that. Our changing climate and weather have also resulted in more wildfires, including on peatland.

Amendment 28 would therefore defeat one of the bill’s core purposes, which is to allow us to regulate and control in a much more orderly fashion the making of muirburn. Further to that, it may be quite onerous for some applicants to determine what their muirburn plan will be for a 10-year period. The bill’s provisions will allow NatureScot the flexibility to issue licences for periods that are thought appropriate in individual circumstances. For all those reasons, I cannot support amendment 28, and I encourage the committee to vote against it.

Ariane Burgess’s amendment 154 seeks to ensure that muirburn that is conducted for certain purposes on peatland will seek to minimise damage to the underlying peat. I appreciate the intention behind the amendment, but the best places for that requirement are the muirburn code and the approved training courses that are part of the bill. Those two mechanisms will ensure that practitioners have appropriate levels of knowledge and experience when making muirburn. I therefore cannot support amendment 154, and I encourage the committee to vote against it.

Gillian Martin’s amendment 71 modifies the Animal Health and Welfare (Scotland) Act 2006 to confer additional powers on inspectors appointed by the Scottish ministers to investigate certain wildlife offences.

I am aware that the issue of giving additional powers to the Scottish Society for the Prevention of Cruelty to Animals inspectors has been debated in the Parliament on a number of occasions. That is why the Scottish Government decided to set up an independent task force to look further at the matter and, after listening carefully to stakeholders, developed the proposals. The proposals were consulted on last year, and 71 per cent of the respondents agreed with the proposal to extend the powers of the Scottish SPCA to investigate wildlife crime, but two thirds also agreed with proposals to place limitations and conditions on the extended powers of the Scottish SPCA inspectors.

Notwithstanding that level of support, I know that some people have raised concerns about giving further powers to individuals and organisations that are not part of the police service. On the other side of the argument, some would have liked the Government to go significantly further on new powers for the Scottish SPCA. Having listened carefully to the evidence that has been presented to the committee, I believe that the provisions set out in amendment 71, which provide for a small extension of powers to deal with a gap in the arrangements for securing evidence of potential criminality, strike the right balance.

I will give an example of the powers in use. As the law currently stands, a Scottish SPCA inspector responding to the case of a live animal caught in an illegally set trap is not able to seize any other illegal traps in the immediate vicinity that do not contain live animals. They would also not have the power to search the area for evidence of other illegally set traps. If the amendment was agreed to, it would mean that, in those circumstances, an inspector would have the power to seize the illegally set traps and search for evidence of other illegally set traps in the vicinity. They would then turn over their evidence to Police Scotland, which would retain primacy over the investigation of wildlife crime cases including offences under the Wildlife and Countryside Act 1981 and this bill.

The additional powers for inspectors will come with a number of safeguards and limitations. They can be exercised only when an inspector is already responding to a case under their existing powers. As is currently the case, each inspector will be appointed separately and individually by the Scottish Government. All inspectors will be required to undertake training prior to being given authorisation to exercise the new powers. Authorisation can be withdrawn at any time at the discretion of the Scottish Government. Protocols will be established between the SSPCA and Police Scotland to ensure effective partnership working and to set out clearly the role of the SSPCA within the limit of those powers. The SSPCA will not be given powers to stop and search people, and it will also not have the powers to arrest people who are suspected of committing a wildlife crime.

The protocols for partnership working that the SSPCA will follow when using the new powers will clearly set out how the new functions should work. That will include what reporting mechanisms will be in place, how the SSPCA, the National Wildlife Crime Unit, Police Scotland and the Crown Office will work together effectively, and what the individual roles and responsibilities of each party are.

You have jumped in just a second too quickly. I was about to say that those provisions will not be commenced until the protocols have been agreed by all relevant parties, including Scottish ministers.

On the extent of investigatory powers, under the Animal Health and Welfare Act (Scotland) 2006, the SSPCA can utilise its powers only in relation to the investigation of cases that involve live animals. That will remain the case with the new powers. If a situation were to arise in which, for example, it responded to a call relating to a live animal caught in a trap and then, on arrival, found that the animal had subsequently died, I would expect the SSPCA to alert Police Scotland, which would then determine the appropriate course of action. I would also expect such situations to be clearly covered by the protocols that will set out how the SSPCA will operate using those new powers.

Amendment 21, in the name of Edward Mountain, would remove section 8 of the bill. Section 8 is currently an enabling power that provides that the Scottish ministers may, by regulation, modify the 2006 act to add powers such as those that I have just described. The intention was always to seek to remove that provision by amendment at stage 2 and replace it with a provision that sets out in the bill the detail and limits of the new powers, which is what amendment 71 now does.

If amendment 71 gets the support of the committee and is agreed to, Edward Mountain’s amendment 21 would immediately remove the new provisions. However, in the event that amendment 71 is not agreed to, it would be sensible to retain section 8 as it would enable the Scottish ministers to lay regulations to extend the powers of SSPCA inspectors at a later stage, should that be desirable. Those regulations will be subject to the affirmative procedure, so if they are ever to be used, Parliament would have a say. I will therefore not support Edward Mountain’s amendment 21, and I urge committee members to vote against it.

Rhoda Grant’s amendments, which would require the Scottish ministers to undertake a review of the effect of those new provisions, are a helpful addition. I hope that the requirement to undertake such a review would help to allay some of the concerns that were raised at stage 1 about how the new powers will be used. I therefore support those amendments in principle; however, I do not think that the review period of one year, as set out in the amendments, is an appropriate timescale.

Amendment 141 would require the review to examine whether the “exercise of” those new powers “has resulted in convictions”. Given the time that it can take for an investigation to proceed through the criminal justice system, a longer review period of three to five years would probably be more appropriate.

More generally, there are also some minor issues with the amendments, and I would like to work with the member to address them. I therefore ask Rhoda Grant not to move either amendment at this stage, and I will consider them further with a view to bringing a revised version at stage 3.

I move amendment 71, and I encourage committee members to support it.

Amendments 17, 122 and 123 seek to severely restrict the power to add other birds to the licensing scheme that will be established by section 7. As, I am sure, Edward Mountain is well aware, the power to add a bird species to allow it to be taken only under licence is not a mechanism to protect that species but a mechanism to protect other wildlife that predates on it. The licensing scheme needs to protect raptors and other wildlife, so the regulation-making power to add other bird species to the scheme needs to remain as it is. That will ensure that if, in the future, we have robust evidence that wildlife crimes such as raptor persecution are being committed to facilitate the management of other bird species, we will be able to regulate the management of those birds. For that reason, I encourage members to vote against those amendments.