Seòmar agus comataidhean

I accept that there is variance, but I also accept that NatureScot has the ability to extend the muirburn season if that is required.

I see that Rachael Hamilton wants to intervene—I will take her intervention as well.

I have a request from Bright Spark for a face-to-face meeting, which I have agreed to, and we will look at what the requirements for the training will be. Does that satisfy you?

As I have said, the purposes that are listed in the bill 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. For that reason, the bill attempts to reach a balanced position between limiting the damage to peatlands that arises from muirburn and limiting the damage that arises from wildfire. That means that the process of undertaking any muirburn on peatland needs to be done more thoughtfully and only in limited circumstances. I therefore encourage Edward Mountain not to move amendment 23. If it is moved, I encourage committee members to vote against it.

Amendment 89, in the name of Kate Forbes, would add the terms “conserving”, “enhancing” and “managing” the natural environment to the purposes for muirburn on peatland. The current provision allows just for “restoring” the natural environment. As I explained to Edward Mountain, the provisions for muirburn on peatland are about reaching a balanced position. The increased purposes for undertaking muirburn that are proposed by amendment 89 are broader in terms than just “restoring” and would therefore open up the scope for when muirburn could take place on peatland.

For example, “managing” the environment is so wide that it would allow muirburn on peatland for any purpose whatsoever, without any restriction. I think that we can agree that that would not be appropriate, would put peatlands at unnecessary risk and would not align with our commitments to address climate change.

However, I appreciate where Kate Forbes is coming from, so, as with amendment 88, if Kate Forbes is happy not to move amendment 89, I will undertake to consider the matter further ahead of stage 3, to address some of the issues that she has outlined today.

Amendments 91, 92, 96, 98, 99 and 104, in the name of Kate Forbes, seek to include provisions in the bill that would ensure that the person who will undertake the muirburn has completed an approved training course. There is near universal agreement from stakeholders that, due to the risks and the potential for widespread damage when muirburn is not done correctly, anyone undertaking muirburn should be trained.

When the bill was introduced, the intention was for training to be a requirement of the muirburn code. However, having heard from a number of key stakeholders on the issue of training, including the Scottish Fire and Rescue Service, it is clear to me that the importance of training demands that it be included in the bill. I therefore support those amendments.

Amendment 95, which is also in the name of Kate Forbes, would change the provisions regarding muirburn licences so that the Scottish ministers “must” grant a licence if

“they are satisfied that the person is a fit and proper person, having regard in particular to the applicant’s compliance with the Muirburn Code”.

I understand the intent behind the amendment, and I am particularly sympathetic to the point about changing “may” to “must”, should all other conditions that were previously listed at section 11(1)(a) and (b) be satisfied.

However, removing those conditions from the bill would remove a series of tests that need to be considered before a licence is granted. Replacing those conditions with a fit-and-proper-person test feels too limiting. Indeed, it could be argued that section 11(1)(a) already provides for some of that, in that an applicant’s compliance with the muirburn code is a key measure to be considered.

Section 11(1)(b) also matters. It gives NatureScot more discretion on when a muirburn licence might be granted, including the necessity of muirburn and whether there are practical alternatives. That discretion is required because there may be other reasons why it would not be appropriate for NatureScot to grant a licence that are not related to the applicant’s fitness or otherwise. For example, there may be circumstances in which it would not be appropriate to grant a licence due to environmental reasons or other factors.

Therefore, although I understand what Kate Forbes is trying to do, I cannot support her amendment as drafted. If she is happy not to move the amendment, I will undertake to look at the issue again, focusing on the “may” and “must” part of the provisions. However, if she moves the amendment, I encourage committee members to vote against it.

I offer Edward Mountain my apologies, convener, as I did not speak to amendment 37.

Predictable, yes.

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.