Seòmar agus comataidhean

I give that commitment—we can work with you ahead of stage 3.

Amendment 149 is unnecessary. As I have previously mentioned, established procedures are in place for laying affirmative Scottish statutory instruments, which include the laying of those instruments in draft. In addition, we have included consultation requirements. The special provision that is envisaged in amendment 149 would diminish the efficiency with which business-as-usual legislation might be taken forward. It could also substantially delay the making of regulations that were needed to introduce urgent further protections for peatland muirburn or similar. On that basis, I encourage the committee to vote against amendment 149.

Let me finish the bit that I was going to say, and then I will come back to that point.

A change in the dates of the muirburn season would be subject to the use of the affirmative procedure, as well as a consultation requirement. Parliament would have an opportunity to consider the instrument in draft, to take evidence on the instrument and to vote on it. That is the correct procedure for any such amendment. That clearly established requirement is set out in the affirmative procedure.

The issue also begs a question about practitioners. They will be involved in setting up the code, and I imagine that they will be far better placed than parliamentarians are to make such decisions.

I urge the committee to vote against amendment 168.

That is why there is a provision that offences must be relevant to the grouse moor management, which allows NatureScot the flexibility not to take action. It is not required to suspend a licence, but it has the ability to do so if it is convinced that the crime has been committed in the manner that we have spoken about.

NatureScot has the flexibility to decide that.

I simply cannot support amendment 143. As Colin Smyth well knows, if muirburn were not allowed on moors or heath where game is present, it would be impossible to support moorland game or the industry that is enabled by it. That might be Colin Smyth’s intention, but it is definitely not the Scottish Government’s. The bill’s purpose is to allow for the undertaking of muirburn, in properly controlled circumstances, for a range of reasons, including the creation and maintenance of habitats for red grouse or other moorland game, and also, as we have heard, the protection of other ground nesters. I therefore encourage members to vote against amendment 143.

Amendment 125, in the name of Stephen Kerr, requires that the licensing authority must grant a licence

“if it is satisfied that the person is a fit and proper person, having regard in particular to the applicant’s compliance with the code of practice made in accordance with section 16AC”.

In the absence of a definition of a “fit and proper person”, it is not clear what the amendment will achieve. The policy intention that has been made clear all along is that obtaining a section 16AA licence will not be a bureaucratic process. If the applicant produces the required information about the land that is subject to the licence, and if the licensing authority has no reason to doubt their compliance with the code of practice, there is generally no reason to think that a licence will not be granted. To put it another way, NatureScot will be able to take into account compliance with the code of practice as a way of determining how “fit and proper” an applicant is.

However, NatureScot does need some discretion to deal with unusual cases. I fear that attempting to add a definition of “fit and proper person” and then assessing whether an applicant meets that definition would add a second test for those applicants and would create the potential for unintended consequences and loopholes.

For those reasons, I ask Stephen Kerr not to press amendment 125. If he does press it, I encourage members to vote against it.

Amendment 128, in the name of Stephen Kerr, provides that a section 16AA licence would be deemed to have been granted if NatureScot had not processed the application within three months. Amendment 129 further provides that the licence would have effect from the date on which it was deemed to have been granted.

I understand that there is anxiety about the possible time taken for the processing of licence applications. A number of factors can affect the time taken to process a licence, including how long it takes the applicant to get back to NatureScot with any additional information that has been requested. However, when the applicant has supplied all the required information, NatureScot aims to process most applications within 30 days and will prioritise urgent applications, as I would urge it to do. If the bill is passed, NatureScot will produce licensing guidance in collaboration with stakeholders to clearly set out how a licence can be applied for, what information is needed to process the application and how it will be assessed and granted.

In any event, the amendments are flawed in a number of respects. First, amendment 128 does not recognise that the application process could be delayed by inadequate information being provided by the applicant or by NatureScot making enquiries or requiring further information about certain aspects. Amendment 128 could lead to an application being granted automatically, due to the passage of time, even when that application is flawed or inappropriate or when there is incomplete information. That would fundamentally undermine the policy intention of introducing the licensing scheme, which, I suspect, might be the real purpose of the amendment.

I also note that amendment 129, as drafted, would have the effect of removing the maximum duration period for all section 16AA licences.

For those reasons, I cannot support amendments 128 and 129, and I encourage members to vote against them.

Amendment 62, in the name of Rachael Hamilton, would amend section 16(5)(a)(iii) to specify that any conditions that the relevant authority places on a section 16AA licence must be reasonable. That amendment seems satisfactory and I am happy to support it.

Amendment 81, which Emma Harper spoke to on my behalf—which is where things get a bit weird—amends the maximum period for which a grouse licence can be granted from one to five years. I have heard the arguments as to why one year is not a satisfactory duration for a section 16AA licence. As lead minister for the bill, I agree that having a five-year period strikes the right balance between keeping to a minimum the process involved in licensing, which will allow businesses to plan ahead, and enabling NatureScot to retain a degree of control over activity that is the subject of the licence. I support amendment 81 and hope that members will do so, too.

Amendment 63, in the name of Rachael Hamilton, would amend the maximum period for which a licence can be granted from one year to 10 years. As I have just said, I agree that the duration of section16AA licences should be extended beyond a single year, but I think that 10 years is too long and would not provide the degree of control and oversight that the bill aims to put in place. I do not support amendment 63 and hope that Rachael Hamilton will not press it. If she does, I encourage members to vote against it.

The effect of amendment 130, in the name of Colin Smyth, would be that a section 16AA licence holder would be required to “comply with all aspects” of the code of practice that are relevant to management of the land in question. The amendment would be unlikely to work with the code of practice that is being developed. It is expected that the code, like others in this area, will contain elements that are legal requirements and absolutely must be complied with, alongside some other elements that are highly recommended for all and others that may represent very best practice but might be achievable only by estates with significant resources.

Compliance with the entirety of the code may vary according to the nature of the land that is under management, its size and the resources that are available to the business. That flexibility seems reasonable and, in some cases, will be necessary. Compliance with the code may also improve over time as estates put in place new elements of best practice such as resources and skills.

The net result from amendment 130 could therefore be a code that represented a lowest common denominator rather than the highest of standards. NatureScot will, of course, be looking to move estates along the pathway to achieving the best standards, and that can be reflected in regular dialogue about compliance. I think that that is a better approach, and for that reason I will not support amendment 130. I encourage committee members to vote against it.

Amendment 131, in the name of Colin Smyth, would also require a section 16AA licence holder to maintain record of the numbers and species of all wild birds and animals that are killed or taken on land to which the licence relates and to report those annually to the relevant authority. I do not believe that the amendment is necessary or proportionate. It is also not clear what purpose, or whose purpose, it would serve, and for some people it might prove onerous and costly. It is simply not standard practice to mandate the inclusion of that kind of information in a licence condition.

The bill is intended to set out the framework for licences so that guidance can be set out in consultation with stakeholders. That will allow the licensing scheme to be responsive and dynamic, and it feels like a much better approach.

For all those reasons, I will not support amendment 131, and I ask members to vote against it.

Amendment 132 requires that the conduct of only the licence holder, or a person who is involved in managing the land for the purpose of killing or taking red grouse, can be a basis on which a licence may be suspended or revoked. The amendment would mean that, if someone else working on the land—for example, a shepherd—committed a relevant offence, the licence could not be suspended. The amendment would also mean that, when a person managing the land—for example, a gamekeeper on a grouse estate—committed a relevant offence, the licence holder could simply get rid of that gamekeeper and carry on using their licence, even if they had instructed that the offence be committed in the first place.

I understand the concern here, and I would certainly expect NatureScot to carefully consider that sort of evidence and take it into account when considering whether to suspend or revoke a licence. However, I am also mindful of the need to avoid loopholes in the licensing scheme. It is not hard to envisage how someone who is determined to persist with raptor persecution could take steps to cast suspicion on a person who is not employed directly on a grouse moor, either with or without their knowledge, simply in order to prevent any possible licensing sanction. For that reason, I will not support amendment 132, and I encourage members to vote against it.

Amendment 133, in the name of Rhoda Grant, provides that a grouse licence could be suspended or revoked only when a relevant offence had been committed by the licence holder or someone under the direction of the licence holder. Again, my concern is that it would create a potential loophole. We know from past experience that some grouse moor managers will persist with raptor persecution in the face of strong opposition from the public and their peers, as well as from law enforcement activity. It would not be hard for a licence holder to argue that any offence committed was not under their direction. Therefore, I cannot support amendment 133, and I encourage committee members to vote against it.

I understand the concern, but NatureScot must have the flexibility to decide whether to suspend the licence. It does not have to suspend it—that is the most important point. It is not a requirement to suspend the licence.

Amendment 174, which would amend the Fire (Scotland) Act 2005, is unnecessary. The current provisions in the 2005 act state that the Scottish Fire and Rescue Service must

“secure the provision of training for personnel”.

That phrase is purposefully broad and non-descriptive, and it therefore already covers issues relating to muirburn. It is already a priority for the Scottish Fire and Rescue Service to ensure that its operational firefighters are properly trained and equipped to undertake the professional duties that it expects of them. That includes tackling wildfires.

We will debate the whys and wherefores of muirburn later, so I ask Edward Mountain not to press his amendments.

Please bear with me while I find where I am in my notes.

The provision that I mentioned is narrower because those are the only ways in which we can foresee muirburn being required. Given the way in which amendments 25 and 26 are worded, they would also allow a muirburn licence to be granted for the purpose of “managing the natural environment” on peatland outwith the muirburn season. That has the potential to undermine the intention behind the majority of the muirburn provisions in the bill.

For those reasons, I hope that Edward Mountain is assured that the points that he sought to make with his amendments are already covered and that he will see that his amendments 25 and 26 are unnecessary. I hope, therefore, that he does not move them.

Amendment 40 would change the regulation-making power in section 16 so that, if the Scottish ministers wanted to amend the muirburn season dates through secondary legislation

“for the purpose of ... preventing, or reducing the risk of, wildfires causing harm to people or damage to property”,

they would need to do so while

“taking into account conditions in particular geographic areas.”

I hope that what I say on that will also provide Edward Mountain with some assurance. That amendment is unnecessary, because the bill already sets out that the power to change the muirburn season dates can be used to make different provisions for different purposes, different land and different years. Therefore, the bill already provides the ability for regulations to make different provisions depending on the type of land, which could include land that is or is not at a high risk of wildfire, so I am not convinced that the amendment is necessary. However, I undertake to give it further consideration ahead of stage 3, particularly to ensure that the purpose of the regulation is sufficiently clear. I therefore ask Edward Mountain not to move amendment 40.

Kate Forbes’s amendments 101 and 102 seek to mitigate biodiversity loss. I recognise the importance of biodiversity and the urgent need for action at all levels—here, elsewhere in the UK and internationally—to tackle the twin crises of biodiversity loss and climate change and to ensure a nature-positive net zero world. By moving the end of the muirburn season back two weeks, we will give red-listed ground-nesting birds the chance that they need to breed and produce successful clutches. I have also heard from rural stakeholders and recognise the need for muirburn to be undertaken in the right way.

For the reasons that Ms Forbes has set out, the balance is the key, and I believe that amendments 101 and 102 strike the right balance between responding to the changes to the nesting season arising from climate change and ensuring that essential muirburn activity can continue. For those reasons, I will support Kate Forbes’s amendments 101 and 102, and I encourage members to vote for them.

Ariane Burgess’s amendment 167 would go further than amendment 102 by moving the end of the season to 15 March. As the committee heard during stage 1, there are a range of opinions on when the muirburn season should close. The effect of closing the season on 15 March would be to significantly reduce the muirburn season, which would result in less time for muirburn to be carried out for the broader range of purposes, including managing for grouse or livestock grazing.

For that reason and for the reasons that Kate Forbes has given, I believe that amendment 167 would not be proportionate or achieve the right balance. However, I assure Ariane Burgess that the bill includes a power to change the muirburn season dates, which would allow us to respond to any new evidence that comes to light in future around shifting patterns of nesting or the impacts of climate change. I hope that that reassures Ariane Burgess and that she does not move her amendment. If she does, I encourage the committee to vote against it.

On Rhoda Grant’s amendment 168, as the previous minister and I have explained on a number of occasions in relation to other similar amendments, the proposed changes are not necessary. The amendment would impose an unnecessary additional burden on the Scottish Parliament when established procedures are already in place for making changes through secondary legislation. The amendment could lead to unnecessary delays in amending the muirburn season dates, which could have consequences for the natural environment.