Seòmar agus comataidhean

Rural Affairs and Islands Committee [Draft]

Meeting date: Wednesday, February 21, 2024

Attendance
Interests
Agriculture and Rural Communities (Scotland) Bill: Stage 1
Subordinate Legislation
Wildlife Management and Muirburn (Scotland) Bill: Stage 2

Wildlife Management and Muirburn (Scotland) Bill: Stage 2

The Convener

Our next item of business is consideration of the Wildlife Management and Muirburn (Scotland) Bill at stage 2. I welcome Jim Fairlie, the Minister for Agriculture and Connectivity, and his supporting officials to the meeting. I also welcome Jamie Halcro Johnston, Colin Smyth and Edward Mountain.

Section 4—Regulation of certain wildlife traps

The Convener

Amendment 180, in the name of Edward Mountain, is grouped with amendments 120, 13, 121, and 14 to 16.

Edward Mountain (Highlands and Islands) (Con)

Before I speak to and move my amendment, and because there are new committee members, I would like to make a declaration of interests in line with those that I have made before, so that people are aware that I am a member of a family farming partnership and the joint owner of a wild fishery. Both roles require the controlling of some species of wildlife, including stoats, weasels, mink, rats, mice, foxes and corvids, which include crows, rooks and jackdaws. I have been controlling and managing wildlife to manage environments for more than 40 years. I use licensed firearms and spring traps.

I make it clear that I do not own any hill ground, but I have been involved for more than 40 years in muirburn and burning to manage grassland and farmland and protect it from invasive species such as gorse and broom. In the past, I have supervised muirburn and have contributed to muirburn consultations and management plans. I hope that what I have said is sufficient for the committee to understand that I have a relevant interest in the matter.

11:30

Convener, I will speak only to the amendments in the group that are relevant to me. The reason why I lodged my amendments is to ensure that training courses are relevant and that there is consultation with interested parties and land managers when it comes to setting them up. In my experience in the countryside, I have found that, once courses have been set up, they tend to expand in time. For example, a deer stalking certificate 1 course that could have lasted two days now extends to four days. It concerns me that a whole industry is building up around these courses. I believe that they can be limited in time to make sure that they are short and relevant.

The other thing that I have found is that courses are becoming increasingly expensive. There may be up to eight to 10 people on a course, with each being charged £500 to £600 for it. It can work out as £3,000 a day for one instructor, which seems an extremely high figure. I seek to limit the cost of the courses to ensure that everyone has the opportunity to take them.

I do not propose to speak to the other amendments in the group yet. I will listen to the arguments that are made on them and comment at the end. Thank you for your time, convener.

I move amendment 180.

The Convener

I invite Colin Smyth to speak to amendment 120 and the other amendments in the group.

Colin Smyth (South Scotland) (Lab)

My amendment 120 proposes that NatureScot should consider independent animal welfare expertise when determining the content of the trap training courses. The sentience of wild animals and birds is recognised across the scientific community, but trap design and use have not kept up with animal welfare science. With farmed and companion animals and those that are used in research, methods of killing are tightly specified and regulated, the aim being a humane death that is as near instantaneous as possible. That is in contrast to legislation on the trapping and killing of wild animals, which has fallen behind. The involvement of animal welfare expertise in trap training would be a good first step in helping to address that. The provision would not be onerous. It could be implemented simply through, for example, an independent veterinary adviser, an independent academic or the Scottish Animal Welfare Commission being asked to review the animal welfare aspects of the course content.

Amendment 121, like a number of my other amendments, draws on the international consensus principles for ethical wildlife management, which I have talked about on a number of occasions. In this case, the training and assessment that are required for a person to obtain a trap licence would include two particular principles. They would not prevent the use of traps or even restrict their use; they would simply require the use of traps to be justified on the specified ground. Trap users would have to have a legitimate reason to use the traps and consider, first, whether there was evidence of that and, secondly, whether there were non-lethal alternatives. Such evidence should be routinely required in wildlife management decisions.

Jamie Halcro Johnston (Highlands and Islands) (Con)

I draw members’ attention to my registered interest as a partner in a farming business and, through that, as a member of a number of organisations including NFU Scotland and Scottish Land & Estates.

I am delighted to speak in support of my colleague Stephen Kerr, who cannot come along to the committee’s meeting today. He has asked me to cover a number of areas and to move his amendments when we come to them. On his behalf, I will speak briefly to two amendments in the group.

We are against Colin Smyth’s amendments 120 and 121. We do not consider that amendment 120 would add anything instructive or novel to what will be expected of such training courses. The amendment is unnecessarily prescriptive. On amendment 121, similarly, we do not see the rationale for being so prescriptive. Course content, including animal welfare considerations that practitioners should be cognisant of, ought to be a matter for NatureScot and accredited training bodies. It would be highly unusual for ministers to prescribe syllabus content in the way that is proposed.

The Convener

Before I ask the minister to come in, I will make a contribution. Will the minister confirm whether the licences suggested in Colin Smyth’s amendment are compliant with the agreement on international humane trapping standards? I would like confirmation of that.

Jim Fairlie (Minister for Agriculture and Connectivity)

It is quite strange to be sitting at this end of the table, having spent the past three years in the seat that Emma Harper is now sitting in. It feels a little odd for me—I do not know how odd it feels for you—but we will crack on.

I will speak to Edward Mountain’s amendments 180, 13, 14 and 16. The Werrity review recommended that trap operators must be required by law to complete training on the relevant category of trap. Training requirements are common in other professions, especially those relating to animal welfare. I know that the Scottish Gamekeepers Association and similar organisations already undertake a lot of training, and I welcome that. I was pleased to hear that Alex Hogg has indicated that the SGA is happy with the training requirements outlined in the bill. I assure him and the association that we would want its expertise and knowledge to inform the development of training alongside other stakeholders.

However, Edward Mountain’s amendments would create an unnecessary barrier for trap users and training operators. Amendments 13, 14 and 15 would exclude much of the existing training that trap users already undertake as part of their wider professional development and, in some cases, it would result in applicants being required to undertake licence-specific training over and above that. For example, the amendments would not allow the relevant authority, which is likely to be NatureScot, to validate courses such as the higher national certificate or higher national diploma in gamekeeping if they were to incorporate training on the use of traps in their curriculum.

In developing the framework for training courses, the Scottish Government and NatureScot will work with stakeholders to ensure that, if a fee is to be charged for training courses, the cost will be accessible and consideration will be given to providing for exemptions in certain circumstances.

Amendments 16 and 180 simply add an extra level of bureaucracy to the training course creation and approval process. The licensing authority will be responsible for ensuring that any approved training courses cover the standards that are required by the bill and other pieces of legislation. Should it feel that it is necessary to do so, the licensing authority already has the power to consult with anyone it deems appropriate as part of the training course designation process. The amendments are therefore unnecessary and they would impose additional duties on practitioners and the licensing authority at a point when the training courses are required to be updated, and lead to delays in the approval process. That would not be helpful to either the licence applicants or the licensing authority, which would have to manage the additional administrative burden created by the amendments. I cannot support amendments 180, 13, 14, 15 and 16, and I encourage members to vote against them.

On Colin Smyth’s amendments 120 and 121, the bill is not intended to introduce purposes for which some wildlife traps may be used but to ensure that wildlife traps that are used are operated in line with training and best practice. The traps covered by the provisions in the bill are largely used by professionals such as keepers and land managers rather than for domestic use. I therefore expect the training to be based around the existing conditions for the use of each type of trap, as set out in the Spring Traps Approval (Scotland) Order 2011, for example. That means that the training should be easily completed for anyone who is currently undertaking legal trapping. On that basis, I do not think that amendments 120 and 121 are necessary, as those aspects of trapping and best practice will be included in the required training course. If those amendments are moved, I would encourage the committee to vote against them.

To answer the convener’s specific question, the spring traps specified in the licence scheme are those specified in the Spring Traps Approval (Scotland) Order 2011, as amended. That order lists the traps that are compliant with the AIHTS and traps that are used for the capture of live birds are not required to be compliant.

Edward Mountain

I am disappointed to hear what the minister has said, specifically in relation to amendments 180 and 16. He almost indicated that he was prepared to go on amendment 180 in the sense that it would require consultation and he said that consultation would take place. I am unsure why he does not want to support amendment 180.

I am also unsure why he would not want to support amendment 16, because that just asks for people who are using the traps to be included in the design and content of the courses.

I understand why the minister is not able to support amendment 14, but I take heart from the fact that he said that the cost of the course should be reasonable. I would be prepared not to move amendment 14, provided that the minister would be prepared to discuss with me a form of wording that would enable that to be reflected in the bill. I heard what the minister said about amendment 13 and if he is prepared to move his position on amendment 14, I would be in a position not to move amendment 13, as it also tries to limit the overall cost.

Rachael Hamilton

I will go back to amendment 16, if you do not mind. Obviously, it is a very practical amendment. The Scottish Government often co-designs schemes with practitioners. I am very happy to support the amendment, and I do not see why the Scottish Government should not consider that, on the basis of the experience and knowledge that practitioners have.

Edward Mountain

I agree with Rachael Hamilton. I think that the minister referred to Alex Hogg, who is the chairman of the SGA. He is a man with huge experience of these matters, and he has supported the courses. Including such people in the consultation on how the courses should be drawn up seems to be logical. That is why amendments 180 and 16 seem entirely relevant to me.

I would be happy to let the minister in to give me some guidance on amendments 13 and 15. If not, I will push them to a vote.

Jim Fairlie

I am happy to discuss amendment 13 further with Edward Mountain.

Edward Mountain

Amendment 14.

Jim Fairlie

I thought that you said amendment 13.

Edward Mountain

I am sorry, convener; I know that I should speak through the chair. I said that I understand that the number of days of courses, which amendment 13 deals with, is difficult for the minister and that amendment 15, which is also on the number of days of courses, is difficult. However, I would like to examine with the minister amendment 14, which is to do with reasonable cost, to ensure that the cost of training courses is not too onerous and does not preclude people from taking part in them.

Jim Fairlie

I am happy to discuss amendment 14, and I apologise—that was my mistake.

Amendment 16 requires NatureScot to consult persons who are likely to be interested in and affected by the courses. It is likely that NatureScot may consult relevant parties in creating and approving a training course. However, as the relevant licensing authority, it is chiefly responsible for ensuring that any approved training course covers the standards that are required by the bill and other pieces of legislation. Therefore, it has to be given discretion on what the training course will be, but absolutely in consultation with the practitioners, as I have already stated.

The Convener

The question is, that amendment 180 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Burgess, Ariane (Highlands and Islands) (Green)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Harper, Emma (South Scotland) (SNP)
Whitham, Elena (Carrick, Cumnock and Doon Valley) (SNP)

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 180 disagreed to.

Colin Smyth

It is disappointing that the minister will not support the pretty modest proposal in amendment 120, particularly given the suggestion that the training would simply be reviewed by the Scottish Animal Welfare Commission, which is an organisation that the Scottish Government itself set up for that type of purpose. The longer the bill is debated, the more the commitment that was given in evidence that a key aim of the bill is to improve “animal welfare outcomes”, even when traps are used lawfully, looks like rhetoric from Scottish Government officials rather than anything that is reflected in the bill.

However, I take on board what the minister said—that the issue that I have raised will be covered in the training. I would like to discuss that further with the minister before we get to stage 3, to outline exactly how that will be the case. Ideally, we could see some of the training before then or, at the very least, get more information about it. Therefore, I will not move amendment 120 at this stage but, subject to that discussion, I will consider bringing it back at stage 3.

Amendments 120 and 13 not moved.

Colin Smyth

Some time ago, in response to my members’ business debate on the ethical principles of wildlife management, the Government said that it would consider such an approach. Amendment 121 is a test of whether that was just the usual empty rhetoric that we have come to expect or is something that the Government is seriously considering.

Amendment 121 moved—[Colin Smyth].

The Convener

The question is, that amendment 121 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Grant, Rhoda (Highlands and Islands) (Lab)

Against

Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Burgess, Ariane (Highlands and Islands) (Green)
Carson, Finlay (Galloway and West Dumfries) (Con)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harper, Emma (South Scotland) (SNP)
Whitham, Elena (Carrick, Cumnock and Doon Valley) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)

The Convener

The result of the division is: For 1, Against 8, Abstentions 0

Amendment 121 disagreed to.

Amendments 14 and 15 not moved.

Amendment 16 moved—[Edward Mountain].

The Convener

The question is, that amendment 16 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 16 disagreed to.

Amendment 57 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 57 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 3, Against 6, Abstentions 0.

Amendment 57 disagreed to.

Amendment 80 moved—[Finlay Carson].

The Convener

The question is, that amendment 80 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 80 disagreed to.

Amendment 58 not moved.

The Convener

Amendment 59, in the name of the minister, is grouped with amendments 60, 69 and 70.

Jim Fairlie

Please bear with me, convener, as I sort out my papers.

Amendments 59, 60, 69 and 70 are technical amendments that have no practical impact or effect on the provisions of the bill. They simply correct the grammar of provisions that have been amended by the bill to take account of those amendments.

Amendments 59 and 60 remove erroneous conjunctions in section 4(7), and amendments 69 and 70 remove a similar error in section 7(5). I encourage all committee members to vote for the amendments.

I move amendment 59.

Amendment 59 agreed to.

Amendment 60 moved—[Jim Fairlie]—and agreed to.

Section 4, as amended, agreed to.

Section 5 agreed to.

Section 6—Killing and taking of certain birds permitted only on land with section 16AA licence

The Convener

Amendment 61, in the name of the minister, is grouped with amendments 17 and 122 to 124.

Jim Fairlie

Following stage 1, the then minister, Gillian Martin, received feedback from stakeholders asking for an exemption to allow falconers to take red grouse without requiring a licence. Amendment 61 seeks to address those concerns. Having considered the amendment, I agree with and support it.

The purpose of introducing the licensing scheme is to implement the recommendations of the Werritty review, which focused on the management of grouse moor and, in particular, raptor persecution associated with grouse shooting rather than with falconry. Without amendment 61, falconers would need to apply for a licence or would be able to hunt grouse only by using their birds of prey on land that was already covered by a licence. Given that falconers take only a small number of red grouse across Scotland each year, that seems unnecessarily burdensome. I ask the committee to mirror that view and to support amendment 61.

In the interests of ensuring that I have declared everything that I need to, I should add, at this point, that my daughter has bought me a birthday present of a day of falconry.

I move amendment 61.

Edward Mountain

The point of amendment 17 is to ensure that the bill complies with the grounds on which it was set out. The bill is intended to deal with upland moorland management and grouse shooting, so the rationale behind amendment 17 is to remove other birds that are not part of upland moorland management or grouse shooting, meaning that other game birds could not be added to the list of birds that are controlled under the bill unless they have reached a level of scarcity resulting in their being on the amber or red list.

The reason for doing that is that the industry is extremely concerned that, at a later date, additions will be made to the bill to ban the legal pastime of game shooting, which I understand some people are not in favour of. If the minister is truly clear on the reasons for the bill, he will support amendment 17 so that there would need to be a clear rationale for adding birds to the schedule, rather than that just being done on a whim.

The minister’s amendment 61 relates to birds of prey, and I am extremely glad and thankful that the Government has listened to people who use birds of prey for falconry. It is a legitimate field sport, and I have huge respect for the people who pursue it. In some cases, it ensures the survival and diversity of such species by ensuring that there is a captive breeding programme, so that amendment is good news.

I hope that the minister will carefully consider my amendment 17. Its aim is not to frustrate the bill but to make sure that it does what it says on the tin, in that it applies to moorland management and grouse shooting, not other shooting that is recognised as an acceptable form of sport in Scotland.

Rachael Hamilton

As was articulated by Edward Mountain, the bill should remain focused on the remit of red grouse shooting. Part 1B currently includes only red grouse. However, the bill empowers the Scottish ministers to add further birds to the section 16AA licensing regime, if they think that it is appropriate to do so, via secondary legislation. The consultation preceding the bill did not signal an intention to regulate other species, so that broad enabling power is likely to come as a surprise to rural stakeholders without grouse interests, as that change could have a significant downstream consequence for the sector more broadly.

The bill’s policy memorandum says:

“The purpose of the ... scheme is to address the on-going issue of wildlife crime, and in particular the persecution of raptors, on managed grouse moors.”

The committee agrees with that. The policy memorandum continues:

“It will do this by enabling a licence to be modified, suspended or revoked, where there is robust evidence of raptor persecution or another relevant wildlife crime related to grouse moor management”.

What else would you like me to do, convener?

The Convener

You can speak to any other amendments in the group that you wish to speak to.

Rachael Hamilton

That is it. Thank you.

The Convener

I invite Rhoda Grant to speak to amendment 124 and other amendments in the group.

Rhoda Grant

My amendment 124, along with many of the others that I have lodged, seeks to create greater scrutiny of and consultation on actions that will flow from the bill. Much of it is enabling, and it is important that secondary legislation that will flow from it will also be scrutinised.

Currently, the bill lists only red grouse as requiring a section 16AA licence, but other birds may be added to the list in the future. My amendment stipulates that the relevant committee of this Parliament must be consulted and given time to take evidence on any additions before reporting back to the Scottish Government. Thereafter, in laying its legislation, the Scottish Government must explain what consideration it has given to the committee’s report. I am trying to create a super-affirmative procedure in order to provide greater scrutiny. I believe that that is essential, given the increase in the amount of enabling legislation that comes to the Parliament.

I believe that my amendment would fulfil the aims of Edward Mountain’s amendment 17 regarding consultation. However, I cannot support his other amendments or Rachael Hamilton’s amendments. The legislation needs to be future proof, so amendment must be allowed of the list of birds that can be taken under a section 16AA licence. However, my amendment would ensure that such a change was made after full scrutiny by the Parliament.

Kate Forbes

Stakeholders have shared some concerns about the capacity for other birds to be added without scrutiny. I have had some good conversations with the minister that have recognised those concerns and the need to have balanced legislation that is not overly prescriptive or too broad but can take changing circumstances into account. Although I cannot support Rhoda Grant’s amendment, I wanted to put those stakeholders’ concerns on the record. I know that the minister understands the breadth of that worry.

The Convener

As no other member wishes to speak on the group, I invite the minister to wind up.

Jim Fairlie

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.

Edward Mountain

I hear what the minister has said, but I think that he is sending a very dangerous message, or an unconcerned message, to people who carry out field sports in Scotland. The industry is approved by law and regulation, and it should have confidence that it will be able to continue unless there is clear evidence that there is fear that the species that are being hunted will become extinct, which is why I specified that only species on the amber or red list may be added.

Do you agree that the Government, through you, is saying that it is not just about grouse moor management and that every field sport is in your sights?

Jim Fairlie

No. I am saying that there has to be a facility to bring forward licensing if there is clear evidence that wildlife crime is happening in a different type of shoot. I do not need to explain to Edward Mountain that that is very possible, and it does happen.

Rachael Hamilton

Can I intervene on that point?

The Convener

The minister can take an intervention if he so wishes.

Jim Fairlie

I will take it.

12:00

Rachael Hamilton

Minister, section 7 confers a significant enabling power. The bill is about creating a licensing scheme to tackle raptor persecution on grouse moors specifically. As Edward Mountain said, the enabling power means that, in the future, country sports that involve released game birds could be targeted. What would be the trigger for the enabling power being used, and what would be the threshold for monitoring raptor persecution in other country sports?

Jim Fairlie

As I have just said, there would have to be a clear indication that a crime had taken place. However, as we are not legislating in that area at this moment in time, the amendment merely gives ministers the powers, which would have to be brought back to the Parliament. There are safeguards for the industry to make its own defence if those powers have to be brought into force.

Rachael Hamilton

I am sorry, minister, but I completely disagree with your opinion. Section 7 gives the Scottish ministers wide-ranging and powerful enabling powers to do what they like in adding to the list of specific species in such circumstances. That is why I do not support it.

Jim Fairlie

We will have to agree to disagree.

I turn to amendment 124. As Gillian Martin explained when she spoke to a number of similar amendments during day 1 of stage 2, the changes that amendment 124 would make are not necessary. It would add an additional burden to the Scottish Parliament, despite the fact that established procedures are already in place for changes through secondary legislation, and it could lead to unnecessary delays in adding or removing birds from the list, which could have consequences for the natural environment.

Any amendment to add a new type of bird species to part 1B of schedule 2 to the 1981 act will be subject to the affirmative procedure, so the Parliament will have the opportunity to consider the instrument in draft form, take evidence on it and vote on it. That is the correct procedure for any such amending instruments.

Rhoda Grant

Will the minister take an intervention?

Jim Fairlie

Let me just finish my point, please.

I ask the committee to support amendment 61, to allow falconers to take red grouse without requiring a licence, and I ask the committee to vote against amendment 124.

Rhoda Grant

I am a little concerned that only the affirmative procedure will be used, given that there will be people who will need to be consulted. What reassurance can the minister give me that an order will be widely consulted on before it is put in front of the Parliament?

Jim Fairlie

As I have just said, under the affirmative procedure, an order can be brought to the Parliament for consideration.

The power to add additional game birds to a section 16AA licence was considered by both this committee and the Delegated Powers and Law Reform Committee, which found the powers

“acceptable in principle”

and was

“content that it is subject to the affirmative procedure.”

The RAI Committee said:

“The Committee notes, and agrees with, the DPLRC’s conclusion that the ... powers ... are acceptable and that the affirmative procedure would be appropriate.”

The Scottish ministers would also be required to consult before adding any birds. This committee agreed to the principles of section 7 in previous sessions.

Kate Forbes

For absolute clarity—again, I know that the minister fully understands some of the apprehension—what I am hearing from the minister is that there would be an obligation to consult, because there would be a parliamentary procedure. It would not be a case of ministers just making a decision in a dark room without engaging with stakeholders. That is the key in offering assurance.

Jim Fairlie

I agree with that summing up.

Amendment 61 agreed to.

The Convener

Amendment 17, in the name of Edward Mountain, has already been debated with amendments 61 and 122 to 124. I call Edward Mountain to move or not move amendment 17.

Edward Mountain

I feel forced to move amendment 17, because I have received no reassurances from the Government; nor is it laid down in legislation what the procedure would be for other birds, notwithstanding some words that were given today. I therefore press amendment 17.

The Convener

I remind members to limit their comments to moving or not moving their amendment when I ask them the question, and to try to make sure that they have covered all the possibilities during their opportunity to speak to their amendment.

To double check, are you are moving or not moving amendment 17?

Edward Mountain

The point is duly taken, convener. I press amendment 17.

The Convener

Will you move it?

Edward Mountain

Yes.

Amendment 17 moved—[Edward Mountain].

The Convener

The question is, that amendment 17 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Burgess, Ariane (Highlands and Islands) (Green)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Harper, Emma (South Scotland) (SNP)
Whitham, Elena (Carrick, Cumnock and Doon Valley) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)

The Convener

The result of the division is: For 2; Against 7; Abstentions 0.

Amendment 17 disagreed to.

Amendment 122 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 122 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2; Against 7; Abstentions 0.

Amendment 122 disagreed to.

Amendment 123 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 123 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2; Against 7; Abstentions 0.

Amendment 123 disagreed to.

Amendment 124 not moved.

Section 6, as amended, agreed to.

Section 7—Licensing: land on which certain birds may be killed or taken

The Convener

Amendment 125, in the name of Stephen Kerr, is grouped with amendments 128, 62, 129, 81, 63, and 130 to 133. I remind members that amendments 81 and 63 are direct alternatives, which means that they can both be moved and decided on. The text of whichever is last to be agreed to is the text that will appear in the bill.

I call Jamie Halcro Johnston to move amendment 125 on behalf of Stephen Kerr and to speak to the amendments in the group.

Jamie Halcro Johnston (Highlands and Islands) (Con)

I am delighted to speak on these amendments and to present some of Stephen Kerr’s reasons and concerns regarding amendments in this group.

Amendment 125 would replace the appropriateness test with a fit and proper person test in order to address widely held concerns about the lack of certainty arising from the appropriateness test by ensuring that licence applications are granted unless the applicant is an individual who is not considered fit to hold a licence as a matter of fact in law.

The appropriateness test is likely to cause legal and operational uncertainty that could be damaging to rural Scotland. The term “appropriate” is not defined in the bill and the only guidance that is given is that NatureScot

“must have regard ... to the applicant’s compliance with a code of practice”

However, that is not the only factor that NatureScot can take into account. The code of practice, which is yet to be developed, will include best-practice guidance on matters that have nothing to do with the policy objective of tackling raptor persecution. It is also concerning that NatureScot’s assessment of appropriateness is not confined to an identifiable and relevant individual—the applicant or land manager.

Stephen Kerr is also concerned that the bill creates a two-tier approach to decision making, in which licence applications could be refused on lesser grounds than those on which licences can be suspended or revoked. That is illogical. The effects of a licence refusal, suspension or revocation are the same: the land cannot operate as a grouse moor, which means that the rights holder will suffer substantial losses of capital and income; quality rural jobs and the accommodation that is tied to those will become redundant and rural economies will suffer, as will the privately funded land management that is of benefit to red and amber-listed species and mitigates the risk of wildfires.

Put simply, the approach could create a system in which rights are restricted by the back door in cases where NatureScot does not have sufficient evidence to justify a licence suspension or revocation and so simply waits until the licence expires and refuses to grant a new one on the basis of its discretionary interpretation of appropriateness.

Amendments 128 and 129 are critical safeguards in the face of an increasingly overburdened regulator. NatureScot processes some 5,000 licensing applications each year, which means that there is a tangible risk that section 16AA licences would face undue delays in processing. Given the significant economic value that is associated with grouse shooting, and the immediate and significant consequences of not having a licence on 12 August, we feel that it is vital that a safeguard be built into the licensing scheme to guard against delays being caused by an increasingly overburdened regulator.

I will briefly turn to other amendments in the group. On amendment 130, in the name of Colin Smyth, the committee heard from the minister’s officials that the primary purpose of the code of practice in this bill is to enable the licensing authority to have regard to how much or otherwise an applicant has complied with it. The committee also heard that the code of practice will, like most codes of practice, have a range of recommendations. There will be things that people must absolutely comply with—that is, legal requirements—things that people really should comply with, and things that are good practice. There will also be things that people must do all the time and other things that people will not have to do. The requirement to “have regard to” the code of practice, as reflected in the bill as laid, is a common way of incorporating a code of practice into primary legislation. It would require the licence holder to be aware of the code’s provisions, to keep that awareness up to date, taking into account any revisions that are made to it, and to consider how the code may be relevant to particular actions and activities on the land.

Amendment 130 would have the effect of radically changing how the licensing scheme would operate by providing that licences must slavishly comply with every detail of still-to-be-developed guidance, much of which will likely have nothing to do with raptor persecution. Otherwise, a licence may be refused, suspended or revoked. That is a wholly disproportionate approach to regulation. It would remove the licensing scheme from any rational connection with its declared purpose in relation to raptor persecution and leave the bill wide open to legal challenge.

On amendment 131, which is also in the name of Colin Smyth, it is impossible to understand the reasons behind the collection of the data to which it refers and the duty that it would place on the licence. The purpose of section 16AA licensing is to tackle the persecution of raptors; it is not concerned with the number of grouse shot or the legal management of other wild birds or animals under general licences. Reporting lawful activity has no deterrent effect at all and is therefore not connected to the aim. The proposed reporting requirements therefore have no rational connection to the policy aim and would disproportionately burden the licences for correspondingly little public gain. Information about the number of grouse shot is commercially sensitive and, if it was made publicly available, it could be detrimental to rights holders. Moreover, unaggregated species data is not useful to the public, the regulator or policy makers.

Predator control is undertaken in a number of other land management contexts, such as farming. Singling out one sector for additional recording requirements would be disproportionate and inconsistent with the principle of equality of treatment, which underpins natural justice and which the Scottish Government is bound by.

I move amendment 125.

Rachael Hamilton

Amendment 62 would ensure that any licence conditions are reasonable. In other words, it necessitates the imposition of reasonable licence conditions only.

On amendment 63, a 10-year licence would ensure the greatest clarity for land managers and would be most consistent with the type of investment and land management associated with Scotland’s grouse moors. Ten years provides optimum certainty for investment, livelihoods, the wider supply chain and the economy—obviously, the rural economy is very important just now. Ten-year licences would ensure that sustainable grouse moor management could continue under licence, with greater opportunities to bolster efforts to deliver on climate and biodiversity targets due to the longer timeframe allowing for enhanced forward planning.

On amendment 132, we know that moorland that is managed for grouse shooting is often also managed for other purposes—examples include hill farming, deer, peatland restoration and renewables. In the light of the increasingly mixed-use nature of grouse moors, it follows that any licensing decision is made with reference to the taking or killing of red grouse in isolation. It would not be right that a grouse moor operator suffers a sanction on the back of the actions of a person who rents the land, for example. This simple amendment provides for that. Its effect would be to make it clear that it is only the conduct of persons who manage the land for the purpose of the licence—that is, grouse moor management—that can trigger licensing penalties. How can it be right that the conduct of persons who manage the land for a purpose that is unrelated to the licence—for example, an agricultural tenant—can result in the licence being suspended, despite the land management in question having no tie to the licensed activity or, to put it another way, the management of the grouse moor? That is irrational given that the purpose of the licensing scheme is to tackle raptor persecution connected with grouse moor management.

12:15

Emma Harper

I am pleased to speak to amendment 81. The amendment would increase the maximum period for which a grouse licence may be granted from one year to five years. This issue has been brought up by many land managers and estate owners, including those in Dumfries and Galloway and in the Scottish Borders, and I understand that it featured heavily in much of the evidence that the committee heard and considered at stage 1.

As is the case with many other businesses, grouse moor management is a long-term undertaking, and it requires careful planning and up-front capital investment. Land managers whom my office has engaged with as recently as yesterday have expressed concerns that an annual licence will not provide the certainty that is needed to undertake long-term financial and business planning for the management of grouse moors.

NatureScot also reassured the committee during its stage 1 evidence taking that it would prefer more flexibility on the licence duration and that

“A licence duration of between three and five years sounds about right and sits more comfortably with other civil licensing schemes that we know work well.”—[Official Report, Rural Affairs and Islands Committee, 21 June 2023; c 30.]

I also know that, when giving evidence at stage 1 as the then minister for the bill, Gillian Martin indicated that she was willing to consider a change to the duration of the licence. Some have called for a shift to 10-year licences, and we have just heard that Rachael Hamilton’s amendment 63 proposes to make that change. That feels too long with regard to being able to assess any changes in circumstances, as has been indicated by RSPB Scotland.

It is right that there is a periodic review of licence holders—whatever the licence may be—and renewal allows that to happen. A maximum licence duration of five years seems to strike the right balance. Any longer than that could undermine the effectiveness of the licensing scheme. A five-year licence would give land managers and estates the certainty that they need to manage and invest in their businesses, while ensuring that the licensing authority retains enough oversight to ensure that everyone is adhering to statutory requirements and best practice.

Colin Smyth

Amendment 130, in my name, would make the code of practice, to be introduced by the bill for land management under a section 16AA licence, mandatory. The wording of my amendment, particularly the phrase

“relevant to management of the area of land in question”,

clearly addresses the question of whether a person must comply with all aspects of the code where some aspects do not apply to the land management in question, which has been previously mentioned as a reason why the code cannot be mandatory.

The wording of the code could also easily set out the circumstances for which each part of the code is relevant, so suggestions from Jamie Halcro Johnston, which were taken word for word from the British Association for Shooting and Conservation and the Scottish Land & Estates briefing note, that every aspect of the code must be “slavishly” followed in every single circumstance is simply untrue and does not reflect the wording of the amendment. Such a claim maybe reflects the weakness of the arguments against the amendment.

A requirement only to “have regard to” a code of practice is not, in my view, strong enough. When the code is relevant to the land that is being managed, the question of how we ensure that the code is followed remains. Under the current wording, a provision to “have regard to” will not ensure that the code is followed when it should be. My amendment would ensure that, importantly, the code is followed when it is

“relevant to management of the area of land in question.”

In response to Jamie Halcro Johnston’s comment on judicial review—which also comes from the briefing note—I say that every piece of legislation is open to judicial review. However, just because you do not like having something in the law, that is not grounds for a judicial review. My advice to Scottish Land & Estates and to the British Association for Shooting and Conservation, which are the only bodies making this claim about a judicial review, is that if their lawyer is seriously telling them that the amendment is grounds for a judicial review, they should maybe get themselves a new lawyer. It is simply untrue.

Amendment 131 would provide a degree of accountability that is currently lacking with regard to the numbers of birds and animals killed—both the game birds that are shot and the animals that are killed because they are seen as a threat to those birds.

The amendment would allow authorities to gauge the numbers of targeted and non-targeted animals that are being trapped and killed, which is surely important to allow a full understanding of species biodiversity, as I outlined in quite a lot of detail when I spoke to amendment 117. It is important to stress that the requirement is to report to the relevant authority for consideration. It is not to publish commercially sensitive information, for example about an individual licence holder. I repeat the question that I asked when I spoke to amendment 117. If the Scottish Government does not agree with reporting that information, what is it trying to hide?

Rhoda Grant

It has been raised with me that proposed new section 16AA(8)(b)(ii) of the Wildlife and Countryside Act 1981, which section 7 will insert, means in practice that a licence may be revoked due to wrongdoing by a person who is outwith the licence holder’s control—someone who is not contracted by them or an employee. An example is a farmer who is a tenant on the land. My amendment 133 is intended to make it clear that a licence may be suspended or revoked only if the licence conditions are breached by the licence holder or by somebody who is in their employment or under their direction.

I support amendment 81. The bill will make section 16AA licence holders reapply every year, which is not sustainable. Given that a licence may be revoked, I believe that a five-year licence would provide the best balance, and I believe that there was broad consensus on that.

I have sympathy with what amendment 125 seeks to add, but I am concerned that it would remove from the bill safeguards on adherence to the code of practice.

Edward Mountain

With the committee’s indulgence, I will comment briefly on Rachael Hamilton’s amendment 63. The reason for asking for the time period to be extended from five years to 10 years is purely that the period will have a huge effect on whether a business is viable. I do not think that anyone really understands that buying just an Argocat, without a sprayer on the back, is probably going to cost you £35,000. Buying a Land Rover or another vehicle to get round the land that you are managing will add another £30,000. When you add on the costs of the traps and the rest of the equipment that you will need, the cost of going on the training courses and the cost of providing a house for the employee, you are probably looking at an investment—just to start up with one employee—of north of £150,000, and the yearly running costs for these places are exceptionally high.

The point of having a 10-year licence is that it would give some surety and security, most importantly to the people who are employed there. There is a real fear that jobs that are here today may be gone tomorrow, and a five-year licence could bring that about. Everyone knows—I am sure that Ms Forbes knows this—the fragility of the rural countryside and of jobs for gamekeepers on upland estates when it comes to management. Protecting their jobs and giving investors some surety is therefore important, which is why I support the period being changed to 10 years.

I am slightly concerned about Colin Smyth’s amendment 131. He wants every single animal that is killed or taken on the land to which the licence relates to be recorded. We would have long lists of rats and mice and every other species that we could possibly record, and I am not sure what benefit would accrue from that at the end of the day. There might have been a way in which the amendment could be supported if it was targeted at species excluding rats and mice. It might have been important to include animals whose spread we want to keep track of that are being killed. An example is mink, which there is encouragement to remove as they are an invasive species.

I urge the committee to support Rachael Hamilton’s amendment 63 and not to support Colin Smyth’s amendment 131.

Jim Fairlie

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.

12:30

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.

Rhoda Grant

There is quite a lot of concern that people could break the law on the land pertaining to the licence without the knowledge or agreement of the licence holder. It is about finding the right balance. Can the minister give assurances that NatureScot would have to be reasonably convinced that an offence had been carried out under the direction of the licence holder? They could obviously ignore things and turn a blind eye, which I believe would leave them guilty as well. However, can you give an assurance that, when offences are carried out explicitly against the will of the landowner, they will not have their licence revoked?

Jim Fairlie

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.

Rachael Hamilton

I have a question on that. If someone was suspected of committing an offence, would they not automatically get their licence suspended?

Jim Fairlie

NatureScot has the flexibility to decide that.

Rachael Hamilton

Yes, but how long would that take, through an investigation?

Jim Fairlie

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

Rachael Hamilton

If we do not support Rhoda Grant’s amendment, the individual will be under suspicion, will have to go through an investigation and will have their licence suspended for an indefinite period of time. Therefore, they will be under suspicion from the get-go.

Jim Fairlie

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.

The Convener

I call Jamie Halcro Johnston to wind up and to press or withdraw amendment 125.

Jamie Halcro Johnston

That discussion highlighted some of the intentions behind the bill, but it is difficult to have much confidence in how they will be practically implemented. I will press the amendment on Stephen Kerr’s behalf. Perhaps there could be further engagement between the minister and Mr Kerr on those areas.

The Convener

The question is, that amendment 125 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 125 disagreed to.

Amendment 126 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 126 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 126 disagreed to.

Amendment 2 not moved.

Amendment 127 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 127 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 127 disagreed to.

Amendment 128 moved—[Jamie Halcro Johnston].

The Convener

The question is, that amendment 128 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 3, Against 6, Abstentions 0.

Amendment 128 disagreed to.

Amendment 62 moved—[Rachael Hamilton]—and agreed to.

Amendment 129 moved—[Jamie Halcro Johnston].

The Convener

The question is, that amendment 129 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 129 disagreed to.

The Convener

I remind members that amendments 81 and 63 are direct alternatives. The text of whichever is the last agreed will appear in the bill.

Amendment 81 moved—[Emma Harper]—and agreed to.

Amendment 63 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 63 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 63 disagreed to.

Amendment 130 moved—[Colin Smyth].

The Convener

The question is, that amendment 130 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Grant, Rhoda (Highlands and Islands) (Lab)

Against

The Convener

The result of the division is: For 1, Against 8, Abstentions 0.

Amendment 130 disagreed to.

Amendment 131 moved—[Colin Smyth].

The Convener

The question is, that amendment 131 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Grant, Rhoda (Highlands and Islands) (Lab)

Against

The Convener

The result of the division is: For 1, Against 8, Abstentions 0.

Amendment 131 disagreed to.

Amendment 132 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 132 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

The Convener

The result of the division is: For 3, Against 6, Abstentions 0.

Amendment 132 disagreed to.

Amendment 133 not moved.

Amendment 49 moved—[Jim Fairlie]—and agreed to.

Amendment 64 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 64 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 64 disagreed to.

Amendment 134 moved—[Jamie Halcro Johnston].

The Convener

The question is, that amendment 134 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 134 disagreed to.

The Convener

I call amendment 65, in the name of Rachael Hamilton.

Rachael Hamilton

I will not move amendment 65, on the basis that the minister is working with me.

Amendment 65 not moved.

Amendment 66 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 66 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 66 disagreed to.

Amendment 67 moved—[Jim Fairlie]—and agreed to.

Amendment 135 not moved.

12:45

Amendment 50 moved—[Jim Fairlie]—and agreed to.

Amendment 68 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 68 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 68 disagreed to.

Amendment 82 moved—[Alasdair Allan].

The Convener

The question is, that amendment 82 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Against

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

The Convener

The result of the division is: For 7, Against 2, Abstentions 0.

Amendment 82 agreed to.

Amendment 136 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 136 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 136 disagreed to.

Amendment 18 moved—[Edward Mountain].

The Convener

The question is, that amendment 18 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 18 disagreed to.

Amendment 137 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 137 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 137 disagreed to.

The Convener

Group 5 is on “Section 16AA licences—code of practice”. Amendment 83, in the name of Jim Fairlie, is grouped with amendments 138, 139 and 20. I call Emma Harper to move amendment 83 and speak to all amendments in the group.

Emma Harper

I am pleased to move amendment 83, which was lodged by Jim Fairlie, who was a member of the committee a couple of weeks ago. The bill provides that Scottish ministers must prepare a code of practice relating to managing land to which a section 16AA grouse licence relates. The code of practice was a recommendation of the Werritty review and it is intended that it will cover issues that were identified by that review, such as the use of medicated grit. The proposed new section 16AC(2) of the 1981 act sets out examples of the type of guidance that may be included in the code of practice. At stage 1, a number of parties were concerned that there were no specific references that allowed medicated grit to be provided, raising concern that the silence might suggest that its use was no longer legitimate.

Amendment 83 adds medicated grit to a non-exhaustive list of topics for which guidance may be provided, and I hope that it will provide clarity and certainty on the matter. It has been specifically included in an amendment to make it transparent that the code would cover the use of medicated grit. If a licence specifies that the medicated grit sections of the code must be complied with, failure to do so would be an offence under the bill, which would mean that the licence could be revoked or suspended on those grounds. That is an important safeguard to ensure that the use of medicated grit is appropriate and that it meets good practice standards as set out in the code.

I move amendment 83 and encourage committee members to vote for it.

Colin Smyth

Amendments 138 and 139, in my name, relate to the code of practice for a section 16AA licence. The relevant paragraph that outlines what the code may provide guidance on, paragraph (a) of proposed new section 16AC(2) of the 1981 act, covers

“how land should be managed to reduce disturbance of and harm to any wild animal, wild bird and wild plant”.

That sounds positive, but paragraphs (b) and (c) of the new subsection contradict paragraph (a), as they refer only to how wild birds and predators should be killed, rather than “managed”. The current wording in the bill assumes that killing wild birds and predators should continue to be the default means of control, which is ethically and ecologically questionable. Clearly, my amendments would not prevent killing, but they would require reasonable consideration of “whether, when and how” birds or predators should be killed, rather than implying that they will be as a first resort.

Robbie Kernahan said in oral evidence that the code of practice should “drive up standards”, and Hugh Dignon said that one of the Scottish Government’s intentions was

“to improve animal welfare outcomes even when ... traps are used lawfully”

and

“ensuring that the highest standards apply and that people are operating to those high standards”.—[Official Report, Rural Affairs and Islands Committee, 31 May 2023; c 62.]

Those warm words are meaningless unless they are reflected in the bill. If the code of practice is to “drive up standards” as intended, I ask members and the minister to support my amendments.

Edward Mountain

I am pleased to speak to my amendment 20, which seeks to ensure that Scottish Natural Heritage, or NatureScot—whichever name it is trading under on the given date—should

“consult such persons as it considers likely to be interested in or affected by the code of practice, including land managers.”

I think that that is fair, reasonable and inclusive—which the Scottish Government claims to be, so I would be very surprised if the minister were against the amendment.

I am somewhat surprised by amendment 83. I must put it to the person who has moved it, Emma Harper, that she does not know that the use of all medication on land is covered by vets’ prescriptions.

Emma Harper

Would the member take an intervention?

Edward Mountain

I will make a little bit more ground first.

Something called Panacur was originally put on medicated grit; now, flubendazole is used, and it requires a veterinary prescription. People cannot just buy it and put it out.

I am happy to take an intervention from Ms Harper now.

Emma Harper

I am absolutely aware, from my research since coming back to the committee, that we used to use fenbendazole but we now use flubendazole. There are issues and concerns around when and how flubendazole is used, and there are issues around potential resistance. I have learned that the grit is used in a way that supports the welfare of the red grouse to deal with the parasitic strongyle threadworm. I am interested in that, as my background is as a nurse, working in healthcare. I am therefore used to dealing with issues around managing medication. I do not think it is right that Edward Mountain suggests that, because I do not work in a rural area, I might not have knowledge about medicated grit, for instance. We all know how to research.

I am interested in considering how we manage best practice, support the best welfare and monitor how medicated grit is used. I think that it is worth pursuing amendment 83. I spoke to the minister to gather some background information, and I was reassured that the amendment that was lodged by Jim Fairlie is a reasonable one.

Edward Mountain

I certainly take that intervention in the spirit in which it was meant. I did not question Ms Harper’s knowledge of what medicines do; I was politely suggesting, knowing full well that it was not she who lodged amendment 83, that a farmer or land user who may use medication on animals cannot just go and buy it from some supermarket or off the dark web. People cannot buy a tonne of medicated grit off the dark web. They buy it with a vet’s prescription, following the correct procedures, and they cannot then just scatter it wherever they need to, as the veterinary person who has issued the scrip for that grit must assure themselves that it is being used in accordance with that scrip.

If there is any doubt about medicated grit good practice, that can be found under the Game and Wildlife Conservation Trust’s “Best practice use of medicated grit”, which includes a 28-day withdrawal period.

Emma Harper

Will the member take an intervention?

Edward Mountain

I am sorry, Ms Harper, but I took quite a long intervention from you earlier.

I have explained that medicated grit cannot be used or acquired without significant controls. I accept that it might be said that it could be used, but I do not think that things should go any further than that.

I believe that Mr Smyth’s amendments 138 and 139 are too restrictive and prescriptive. How should the taking or killing of wild birds be carried out

“prioritising methods with the least negative animal welfare impact”?

Does that mean shooting them? Does it mean trapping animals? Obviously, that would not be birds, because they cannot be trapped except in live traps, so they cannot be killed. We have established ways of trapping animals and killing birds, which in most cases involves a shotgun or a rifle. I do not know how to make things more highly controlled than that. People could be put through shooting tests to see whether they can point a rifle in the right direction. However, every time a person fires a rifle or a shotgun, they aim to kill the thing that they are firing at; they do not aim to make it suffer. Therefore, I am not sure how amendment 138 would help.

Amendment 139 begs the question how much we want to micromanage the control of predators. Do we want to suggest how and when to do that? Do we want to suggest that people can only put a trap in a ditch in a box, as covered by the spring trap legislation, and that that can be done only at a certain time of year on a particular moor or bit of ground that is subject to a management plan? I simply do not see how that would work.

Colin Smyth

Is Edward Mountain saying that the only way in which we can manage wildlife and our land is through killing animals? Is that his argument?

Edward Mountain

I am sorry—I did not hear that.

Colin Smyth

Is Edward Mountain arguing that the only way to manage land and to protect a particular species against predators is by killing? The point of my amendments is that other forms of control should be considered before killing is used as a last resort, but Edward Mountain seems to be arguing that the only thing that we can do is kill.

Edward Mountain

In most cases, the reason why a predator is being controlled is to allow other species to flourish. I am not sure whether Mr Smyth is suggesting through his amendment that people should trap an animal and release it somewhere else. I fear that taking an animal from one location to another would require a licence. Is Mr Smyth suggesting licensing the moving of predator species from one place to another? I am not sure whether that is what the minister would like to see or whether that is entirely reasonable.

On that note, I am happy to conclude my remarks, convener.

The Convener

There was a suggestion that we should try to finish the first session at 1 o’clock, but I am minded to carry on until 1.45 at the latest. We will continue to consider the amendments.

Edward Mountain

I understand the time pressures, but I have a committee meeting that I need to prepare for, as I got the committee meeting papers at 5 minutes to 8 last night, I think. Extending this session will jeopardise my position as convener of another committee and my ability to speak to my amendments, so I respectfully ask that you reconsider that or shorten the session by a bit.

The Convener

We intend to finish at 1.45, which should be before your committee reconvenes. That will also give people time to prepare for questions this afternoon. I will press on. We may finish before 1.45. We indicated that we expected to finish the session by 1 o’clock but, given the progress that we have made, we need to try to push on a little bit. However, I take on board your comments.

Colin Smyth

Based on your timing, are you suggesting that we will get to the group on “Muirburn licences—purposes” during those 45 minutes?

13:00

The Convener

No. It is not my intention to go into the part of the bill on muirburn if we are quick enough to get that far.

Jamie Halcro Johnston

I have a follow-up point to Edward Mountain’s comments that relates to amendments 138 and 139.

Methods for taking or killing wild birds are legal and already adhere to high standards of animal welfare. Amendments 130 to 139 risk sowing confusion and ambiguity for no discernible public benefit. Given the significant and immediate consequences of failing to comply with a statutory code of practice, the contents of the code must provide absolute legal certainty and leave no room for confusion. Trapping infrastructure employed on grouse moors is already compliant with the international agreement on humane trapping standards.

Jim Fairlie

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

I understand the intention, which is based on the Werritty review’s recommendations. However, how does medicated grit relate to a code of practice that is related to the disturbance of wild animals, wild birds and wild plants?

Jim Fairlie

Medicated grit was part of what the Werritty review considered. Some people would like us to remove medicated grit entirely—there is a very big campaign to do that—but we believe that, on balance, to ensure that grouse moors can function as grouse moors, having medicated grit in the code of practice is helpful to all parties.

Rachael Hamilton

How does that help with the disturbance of wild animals, wild birds and wild plants?

Jim Fairlie

Could you clarify your point, please?

Rachael Hamilton

The code of practice is all about ensuring that specific species are protected and not disturbed. What is the benefit of adding medicated grit to it?

Jim Fairlie

The code of practice is about ensuring good-quality grouse moor management and medicated grit will be part of that code of practice.

It is helpful to have that intention made clear in the bill, so I am happy to support amendment 83 and encourage committee members to vote for it.

I thank Colin Smyth for amendments 138 and 139. I understand the intentions behind them. However, I will not support them.

As the previous minister set out in her letter to the committee on 18 January, NatureScot is taking an iterative, collaborative approach to developing the code of practice for grouse moor management. A code working group that comprises a range of stakeholders has already been established to develop the structure and content of that code. The code will include guidance on wildlife management that will set out statutory requirements with which people who are undertaking wildlife management must comply, as well as providing advice about best practice.

It is important that the finer details of what is included in the code are informed by the wide range of experience and voices that the grouse moor management code group offers so that we can get a workable but robust code. We need to give the code working group space to determine what will be promoted as best practice and we should not be too prescriptive about what we set out in the bill. Therefore, I will not support amendments 138 and 139, and I encourage members to vote against them.

Amendment 20 from Edward Mountain is unnecessary, as the bill as drafted requires the Scottish ministers to consult on the code of practice for grouse moor management. Should the Scottish ministers exercise their powers to delegate the preparation of the grouse moor management code of practice to NatureScot, NatureScot would then be required to adhere to any consultation requirements set out in section 7 of the bill. I hope that that reassures Edward Mountain and that he will not move his amendment. If he does, I encourage members to vote against it.

Emma Harper

I am pleased that the minister gave me the time to deal with amendment 83, as it was originally his amendment, and I encourage members to vote it.

Amendment 83 agreed to.

Amendments 138 and 139 not moved.

Amendment 19 moved—[Edward Mountain].

The Convener

The question is, that amendment 19 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 19 disagreed to.

Amendment 84 moved—[Finlay Carson].

The Convener

The question is, that amendment 84 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 84 disagreed to.

Amendment 20 moved—[Edward Mountain].

The Convener

The question is, that amendment 20 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 3, Against 6, Abstentions 0.

Amendment 20 disagreed to.

The Convener

Amendment 85, in the name of Jim Fairlie, is grouped with amendments 85B, 85C, 86 and 87. I call Emma Harper to move amendment 85 and to speak to all amendments in the group.

Emma Harper

I will be moving and speaking to amendments 85, 86 and 87, in the name of Jim Fairlie, who is now the minister.

As the committee’s stage 1 report indicated, the monitoring and reporting requirements must be balanced against any resources that the Scottish Government and its agencies, and wider interest groups, require to carry out that work. In the previous minister’s response to the stage 1 report, that minister stated that the Scottish Government was committed to an open and transparent approach to legislation. Where additional reporting serves a useful purpose, the Scottish Government has said that it is happy to support it, which I welcome.

Amendments 85, 86 and 87 will require monitoring of section 16AA licences and their effect. Part of the reason for the bill is to address raptor persecution on land managed for grouse shooting, and the Scottish Government wants to do so through the section 16AA licensing provisions. The Werritty review identified three raptor species populations as being significantly impacted by criminal activities on some grouse moors: the golden eagle—indeed, there have been criminal investigations into the persecution of those birds in my South Scotland region—the hen harrier and the peregrine falcon.

To assess the bill’s effectiveness in reducing raptor persecution on those raptor species, regular monitoring and surveillance of their populations will be essential, and I acknowledge the Scottish Government’s commitment to doing so. When Gillian Martin was the minister, she stated that some monitoring of raptor populations was already undertaken by the Scottish Raptor Study Group, and my office has been in contact with the group ahead of this consideration.

Based on the evidence that the committee has taken, I strongly believe that the requirement to undertake raptor population assessments is important, and I would welcome the minister’s comments on these important amendments on monitoring.

I move amendment 85.

Rachael Hamilton

In monitoring the effectiveness of section 16AA licences, it is important that any summary in relation to relevant offences is not speculative, so that a conclusion is not formed on the basis of incomplete information. In that regard, the reference to “suspected offences” is not an appropriate metric. Offences are either proven by way of conviction or not proven, and amendment 85B would ensure that only proven offences were reflected in any summary or report.

Amendment 85C is a minor amendment to provide consistency in respect of the language and phrasing used elsewhere in the bill.

I move amendment 85B.

Jim Fairlie

Now, this really is an unusual situation, as I must now address amendments as the lead minister for the bill and, first of all, thank Emma Harper for speaking on my behalf to the amendments that I lodged previously.

In my new position as Minister for Agriculture and Connectivity, I have received a great deal of advice on the amendments to the bill, and, as a member of this committee, I heard all the evidence from stakeholders at stage 1. I have tried to use the new advice to better understand the bill and all the concerns and issues that surround it.

I originally lodged amendments 85, 86 and 87 for the reasons that Emma Harper has set out. I think that those reasons still hold. However—and this is an example of how my understanding has developed—I can now see ways of improving the amendments to ensure that we get the most out of any reporting requirements that we include in the bill.

Monitoring and reporting requirements must be weighed up to balance the value that they provide against the resources that they take to fulfil. That said, the Scottish Government is committed to an open and transparent approach to legislation, and, where additional reporting serves a useful purpose, it should be supported.

The bill has been introduced in part to address raptor persecution on land managed for grouse shooting, and the section in the bill on licensing provisions is the approach that we have taken to do that. The three raptor species populations identified in the Werritty review—the golden eagle, the hen harrier and the peregrine falcon—are significantly impacted, as Emma Harper has said. To assess the effectiveness of the bill in reducing raptor persecution on those species, regular monitoring and surveillance of their populations will be essential. Some monitoring of that kind is already undertaken by the Scottish Raptor Study Group, albeit at longer intervals than is provided for in the amendments.

Including a requirement to undertake an assessment of raptor populations is a reasonable suggestion. However, what I would like to do, and what I think would be helpful, is to discuss the requirements further with NatureScot and relevant stakeholders to understand their ability to undertake the additional monitoring and reporting. I would also like to ensure that the amendments are framed in a way that is consistent with the language used in the rest of the bill. I therefore request that Emma Harper not press amendment 85 or move amendments 86 and 87 and that she allow me to have those discussions and to bring back better versions of the amendments at stage 3.

Emma Harper

Given that, based on what Mr Fairlie has said, the Government would like time to ensure that the amendments are workable and doable within the current resources, I am happy not to press or move them. I am keen for the minister to work with NatureScot and others, to have the appropriate discussions and then potentially to bring back redrafted versions at stage 3.

The Convener

I call Rachael Hamilton to wind up and press or withdraw amendment 85B.

Rachael Hamilton

I will press amendment 85B.

The Convener

The question is, that amendment 85B be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 85B disagreed to.

Amendment 85C moved—[Rachael Hamilton].

The Convener

The question is, that amendment 85C be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 85C disagreed to.

Amendment 85, by agreement, withdrawn.

Amendment 69 moved—[Jim Fairlie]—and agreed to.

Amendment 86 not moved.

Amendment 173 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 173 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 173 disagreed to.

Amendment 70 moved—[Jim Fairlie]—and agreed to.

13:15

Amendment 140 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 140 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 140 disagreed to.

Amendment 87 not moved.

Section 7, as amended, agreed to.

Section 8—Animal welfare inspectors’ powers

The Convener

Amendment 71, in the name of the minister, is grouped with amendments 21, 141 and 142.

Jim Fairlie

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.

Rachael Hamilton

As the minister well knows, there was much discussion in committee sessions regarding when the protocols will be established. Is there any indication of when that will be? It is important for us to understand what the protocols are, because of the long-standing concerns around giving the SSPCA powers and the view of some people that investigation powers should lie with Police Scotland.

Jim Fairlie

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 though 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.

Edward Mountain

The beauty of submitting an amendment early is that it comes up early and you do not have sight of the minister’s amendment, which was lodged just prior to the window for lodging amendments closing. We kind of agreed among ourselves at the outset that we wanted to remove section 8, but that is as far as it went. I lodged my amendment to remove section 8 because I have very deep-felt concerns that section 8, as amended, would give powers to people who have never had such powers before.

I am a great believer in having respect for our police force and that it should be the police, not other people, who implement the law. I have always believed that. Therefore, I am concerned that the powers that will given to the inspectors are greater than the powers that a policeman has. There is no need for a search warrant, there is no need for corroboration and no specified training is required. Therefore, identifying whether the person who turns up is trained and authorised is almost impossible. There is little or no training on pesticides, which means that collecting evidence on pesticides will be difficult. At the moment, as I am sure the minister knows, that issue is got around when an inspection is carried out by the police with a member of the agriculture department attending to identify and inform on pesticides.

I have real concerns about section 8, because I do not think that it clarifies all the issues that need to be clarified. It would remove powers and undermine the authority of the police, which I am against, and it would give powers to third parties who I do not believe are qualified or have the legal training to exercise such powers.

Rhoda Grant

I am glad that the minister has heard the concerns about this part of the bill. I understand the frustration that is felt by SSPCA officers who are called out because of animal welfare concerns and who are unable to do anything, despite seeing illegal activities. However, there are also concerns about empowering a third sector organisation to provide law enforcement.

I lodged my amendments 141 and 142 to ensure that the issue will be looked at and that there will be no unintended consequences, but I take on board what the minister has said about considering the matter before stage 3. I will be pleased to do that, so I do not intend to move amendments 141 and 142. I look forward to those discussions.

Ariane Burgess

I am delighted to put on record my support for amendment 71, which will extend the SSPCA’s powers to investigate wildlife crime. Scottish Greens have called for that for a long time, which is why we included in the Bute house agreement reference to the holding of a timely review of the SSPCA’s powers.

On several occasions during stage 1, we heard evidence of situations in which animal welfare officers are limited in what they can do to collect evidence of wildlife crime. The extension of the SSPCA’s powers will improve our ability to bring more perpetrators of wildlife crime to justice and to protect the reputations of those businesses that abide by the law.

Jim Fairlie

I welcome the debate on this group. The proposed step is a big one for us to take, and it is right that we should consider it carefully. I think that we have struck the right balance, and that the necessary checks and safeguards are in place to ensure that the protocol between the SSPCA and Police Scotland is right. Therefore, I think that we are in the right place on this issue.

The Convener

The question is, that amendment 71 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Against

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

The Convener

The result of the division is: For 7, Against 2, Abstentions 0.

Amendment 71 agreed to.

Amendment 21 moved—[Edward Mountain].

The Convener

The question is, that amendment 21 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 21 disagreed to.

After section 8

Amendments 141 and 142 not moved.

Before section 9

Amendment 75 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 75 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 75 disagreed to.

The Convener

At this point, I suspend our consideration of amendments until 6 pm this evening.

13:28 Meeting suspended.

18:06 On resuming—

Section 9—Requirement for muirburn licence

The Convener

Good evening, and welcome back to the fifth meeting in 2024 of the Rural Affairs and Islands Committee. I remind everyone please to switch any electronic devices to silent.

We reconvene our consideration of stage 2 amendments. Amendment 181, in the name of Edward Mountain, is grouped with amendment 182.

Edward Mountain

Can I check that you are happy that the declaration of interest that I made this morning is extant?

The Convener

It absolutely is.

Edward Mountain

Today is a first for me, for three reasons. First, I have attended three committee meetings today, which is unusual. Secondly, I have heard the minister speak against his own amendment; I never heard of that before. Thirdly, I will speak at length about a subject in the hope of enabling one of the committee members to attend the meeting to vote against my amendments. Those three things are new to me.

My reason for lodging amendment 181 is to ensure that muirburn licences are for muirburn on moorland. It is unclear to me from the legislation that a muirburn licence does not extend beyond moorland.

My definition of “moorland” is heather, which is in the dictionary definition for “muirburn”, and I want to make sure that it does not extend to gorse, broom and grassland. That is why I have lodged amendment 182, which attempts to define what moorland is not: it is not improved grassland or land suitable for arable cropping beyond permanent grassland. All of those are burnt regularly by people, as I am sure that Alasdair Allan will know, to improve and protect grassland and to stop the invasion of species such as broom and gorse. However, they are burnt not only for those reasons but to remove and control pests such as leatherjackets—cranefly larvae—which can destroy grassland very easily. To my mind, the best option for controlling those, in most cases in which they have damaged and killed off grassland, is to burn that grassland rather than spray it. It is an organic way of controlling such species.

Those are the reasons for my two amendments—to define what muirburn is and where it is—and I am interested in hearing the minister’s comments and in seeing whether he has a more eloquent way of describing it.

I move amendment 181.

Jim Fairlie

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.

The Convener

I call Edward Mountain to wind up and to press or withdraw amendment 181.

Edward Mountain

I listened carefully to what the minister said. It is clear that he understands that, when I lodged those amendments, they defined what is not moorland—that is, improved grassland. I am not sure how the minister could think that improved grassland would include people’s gardens, or that land suitable for cropping would impinge on people’s gardens. The amendments try to define it in more detail than Gillian Martin’s amendments did when she lodged them.

I am happy that my amendments are correct, and I am not convinced by the minister’s argument. I urge committee members to vote in favour of my amendments to ensure that there is no dubiety, which I believe there is at the moment. I will press amendment 181.

The Convener

The question is, that amendment 181 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 181 disagreed to.

The Convener

Amendment 22, in the name of Edward Mountain, is grouped with amendments 24, 27, 29, 30, 35, 38, 42, 44, 46 and 47.

Edward Mountain

Some people will think that my amendments in this group are wrecking amendments, but they are absolutely not, because I am seeking to get the minister to explain why the code is needed. I have been involved in muirburn since I was 18 years old and, without embarrassing myself, that was 44 years ago and I have done a considerable amount of it.

Muirburn may have changed during those 44 years, but the reasons for doing it have not. You need to manage vegetation, because if you do not it becomes rank and of low value to flora and fauna and certainly shades out the pioneer growth that comes underneath. For me, muirburn is about creating a mosaic, and there is a careful way of doing that to ensure that we have mixed habitats across moorlands where we have pioneer communities. Those communities may be as low as individual grassworts or plagioclimax, which is short heather and bluebell heather, or they may be climax vegetation, which is the longer rank heather. All those things have a part to play.

Pioneer communities are particularly important for hares and similar species. Plagioclimax communities are important for ground-nesting birds in allowing them to move around with small chicks and get insects, and climax vegetation is important in allowing nesting sites for more apex predators such as hen harriers. Therefore, each of those communities provides a niche of habitats for different species. Diversity is the key to this.

18:15

Controls have been placed on deer because they are blamed for damaging the hills, and I would sometimes agree that they do. However, that is because they are delving into the pioneer and plagioclimax communities, which provide the best grazing for them. They do not touch the old rank climax vegetation; in fact, very few species do. They are there, and I am trying to ensure that we have diversity.

Muirburn is about burning vegetation. Some people are under the misapprehension that it is about burning peat, but it is certainly not about that. It needs to be understood that it is about removing the vegetation to allow new vegetation to come through.

It is not random. It has never been randomly carried out on the hills but is very carefully managed. I say to members of the committee that it ain’t easy. Anyone who has done it will know that there are huge effects that can make muirburn difficult; whether it is rain, wind or snow, it all plays a part.

It is important to understand that carrying out muirburn requires a skilled practitioner who understands what can be safely achieved within a period. Burning a slope can be easily controlled if the wind is in the right direction; if it is in the wrong direction, however, you will have problems.

The plan, at all stages, is to burn rotationally. I will spend a wee moment on that, because it is really important. People who have been up and looked at heather habitats know that heather regenerates at different speeds. I could certainly take you to bits of hill where heather will regenerate such that you would have no idea that burning has taken place five to six years after it has been done. I could also take you to other bits of hill where it would still be noticeable 12 to 15 years afterwards.

The fallacy of the bill is the fact that we are talking about burning on peat depth. If you go up into the high montane, where you should not be burning, there is very shallow peat depth where there is a schist underneath it, which means that to burn it would be dangerous. It is bad for that montane. In some ways, burning where there is a more equal peat depth is far more sustainable. I do not like the fact that the bill talks about narrowing it down to peat depth.

I have no idea how you can look at an entire burn area—where you are going up and doing 100 or 200 square metres—and work out the peat depth across that whole 100 or 200 square metres to work out whether you can burn it. I think that that is dangerous.

With these amendments, I want to understand where the minister is coming from and where he believes that the current muirburn code is wrong—because, if implemented, the current muirburn code is correct. Of course, I would say that, because I worked on the muirburn code when it was first brought out. However, I am confident that if you read through all the muirburn code guidance, which is a very straightforward document, you would feel confident that, if muirburn was carried out in line with that guidance, there would be nothing wrong with it.

My plea is for the minister to explain to me why licensing is required when we have a decent code. We do not need to introduce licences, but rather to enforce the code that we have, and to rely on and use the skills and experience of those people who are on the hills and who understand the hills that they—and perhaps their fathers and grandfathers before them—have worked on perhaps all their lives. We need to understand that they have a real argument to bring to the table about why the management of muirburn is best done under the code and not under a licence system.

I am interested to hear what the minister says to the arguments that I have raised and why he thinks that a licence is more appropriate than a properly enforced code.

I move amendment 22.

Jim Fairlie

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 Werrity review, including those relating to muirburn, and that is what part 2 of the bill does. The Werrity 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 Werrity review—to vote against those amendments.

The Convener

I call Edward Mountain to wind up and to press or withdraw amendment 22.

Edward Mountain

I am disappointed that we did not get into the actual facts about muirburn and that the minister did not engage with any of the specific issues that I discussed. I am also disappointed that he does not acknowledge the importance and skills of those who carry out muirburn, or the reasons for it.

To my mind, introducing another level of licensing will lead to a situation in which we will probably end up with so much analysis that there will be paralysis. The environment will suffer, along with all the species that rely on it and the people who live around the edges of that environment.

I am disappointed. However, I would be prepared, if the minister was willing, to engage with him on these specific amendments to see whether there is a way to recognise the reasons for muirburn and the skills of those who do it and to look at whether the limits can be reviewed at stage 3. I am prepared not to move the amendments, on the understanding that I believe that the minister will engage with me.

Jim Fairlie

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

Edward Mountain

On the ground that there will be further engagement, I am happy not to press the amendment. I am also happy not to move any of the other amendments. I know that you cannot deal with them en bloc, convener, but I am giving you notice of that now, to save the committee’s time and on the understanding that I can further debate the matter with the minister later.

Amendment 22, by agreement, withdrawn.

Section 9 agreed to.

Section 10—Application for muirburn licence

The Convener

Amendment 143, in the name of Colin Smyth, is grouped with amendments 88, 144, 23, 89, 90, 145, 146, 94 and 149.

Colin Smyth

Amendment 143 draws attention to another elephant in the room. As I explained when I spoke to amendment 113 on 7 February, the explanatory notes to the bill say that the Government wants to

“ensure that the management of grouse moors and related activities are undertaken in an environmentally sustainable and welfare conscious manner.”

Amendment 143 complements the environmental goals of the bill and speaks to the reasons why a muirburn licence should be given by NatureScot.

Although it may be accepted that muirburn can be a tool for land managers, it is environmentally and ethically indefensible for muirburn licences to be given for the sole purpose of maintaining and increasing moorland game only so that it can be shot. Some will oppose amendment 143 because they support maximising the amount of killing, but that is not the public’s view. Three quarters of Scots are opposed to muirburn for that purpose—solely so that grouse numbers can be maintained or increased for the grouse then to be killed for sport.

Amendment 143 will reduce unnecessary muirburn, but it will leave in flexibility for it to continue to be used when necessary. Put simply, if land managers want to obtain a licence to muirburn for genuine conservation reasons, the amendment in no way blocks that from happening.

I move amendment 143.

Kate Forbes

Amendments 88 and 89 are, in my view, fairly minor, technical amendments and they are certainly not controversial. They ensure that there is consistency across licensable purposes for peatland and non-peatland. Amendment 88 ensures that muirburn, which of course does not distinguish between habitats, can be licensed on peatland and non-peatland where we want to prevent damage to habitats caused by wildfire.

Amendment 89 does the same thing, correcting inconsistencies across licensable purposes for peatland and non-peatland, but amendment 89 concerns a licensable purpose where an individual wants to conserve, restore, enhance or manage the natural environment. In short, my two amendments allow for the management of habitats and the protection of the natural environment across peatland and non-peatland as a licensable requirement when it comes to muirburn.

I have spoken to the minister about the amendments, and I understand and respect the point that the Government may wish to bring them back at stage 3. I hope that the minister can give some assurance on that, so as to give effect to the intention behind my two amendments at stage 3, which will mean that I will not move my amendments.

Rhoda Grant

Amendment 146 is in a similar vein to Kate Forbes’s amendment 88; mine also covers muirburn on both peatland and non-peatland. The wildfire in Cannich last year highlights the need to manage fuel load on peat as well as in other areas. It seems wrong to me that we spend money on restoring peatland only for those efforts to be ruined by an intensely burning wildfire. It is sometimes the case, therefore, that muirburn is the most effective way to manage the fuel load, and it should be used as such. Perhaps there should be a duty on land managers to manage fuel load in order to mitigate the harm caused by wildfire. The problem is that the science in this area is not yet conclusive, which makes it challenging to legislate. We need to ensure that what we put down in legislation can be adapted to fit future scientific knowledge. That said, it seems clear that leaving a large fuel load on land is dangerous. Leaving it on degraded peat is disastrous, and we have heard and seen evidence to show that muirburn has caused little harm on well-maintained peatland. My amendments acknowledge the role to be played by muirburn in peat restoration and protection.

Amendment 149 ensures that any regulations that modify the list of purposes for muirburn are subject to full consultation and scrutiny by the committee. I hope that that would give members some confidence in ensuring that any changes are fully scrutinised and will be in line with the science at the time.

Edward Mountain

Amendment 23 is simple in that it recognises that muirburn is carried out not only for moorland game but for wildlife. Most people will accept that muirburn has beneficial effects for ground-nesting birds such as grouse, snipe and other nesting species that require short heather for moving their chicks around. It also has benefits for other species, such as hares, blackcock, peregrine and hen harriers. In fact, everything benefits from muirburn, in my opinion, which is why I want to add the fact that it is for

“managing the habitats of moorland game or wildlife”.

That is, there are two reasons why muirburn should be allowed.

Turning to the other amendments in the group, I believe that Colin Smyth’s amendment 143 is, in effect, trying to destroy grouse shooting. I respect Mr Smyth’s position on field sports, which is that he does not want to see them, but his amendment tries to stop grouse shooting, or that would be its effect.

18:30

I find Kate Forbes’s amendments 88 and 89 interesting and I could sign up to them. I recognise that she has taken into account the horrific wildfires that we had in the Highlands recently. There is no doubt in my mind that they were due to a lack of management of fuel loads, and there are organisations that need to understand that. If Kate Forbes does not move her amendments, I will look to see how the proposals can be progressed at stage 3, but I hope that the Government will work with her on them.

I believe that amendments 144 and 145 are surplus to requirements given Kate Forbes’s amendments 88 and 89. I do not think that they are required.

I find amendment 90 interesting. I agree with it, but it presents me with a problem in the sense—

Alasdair Allan

Is it the fact that we agree that presents a problem?

Edward Mountain

No. Technically, managing reseeding on grasslands could fall within the bill’s definition of muirburn. I believe that grassland management is truly important and it is really important for crofters to have that ability, but technically it could fall within the bill’s definition of muirburn, so there could be a problem with Dr Allan’s amendment. Although I support it and would like it to be agreed to, I hope that the minister, if my concerns are right, will work with him to ensure that crofters are given the ability to carry out management of grassland, which is so important to their practices.

I find Rhoda Grant’s amendment 149 interesting. I listened to her arguments and I am swayed by the amendment, so I will be interested to see how the committee votes on it.

The Convener

I invite Alasdair Allan to speak to amendment 90 and other amendments in the group.

Alasdair Allan

My amendment 90 seeks specifically to allow crofters to apply for a muirburn licence for the purpose of reseeding to provide or improve grazing on peatland. The bill allows licences for muirburn on peatland only for the purposes of restoring the natural environment, preventing wildfire and research. During stage 1, crofting stakeholders raised concerns about the lack of provision in the bill for muirburn on crofting peatland for the purposes of reseeding, which they highlighted is a traditional and effective practice that, when carried out properly, avoids damage to the peat. Controlled muirburn over small areas of land, such as on crofts or common grazings, is a long-established practice in crofting areas across the Highlands and Islands. Although there are alternative reseeding methods that could be attempted on that terrain, their potential efficacy is viewed as highly questionable.

Edward Mountain

I believe that the member’s amendment is important for those reasons, but does he accept that carrying out muirburn on grassland could also have the benefit of removing problems that cattle and crofters face with ticks? That could help to limit the spread of Lyme disease, which is a serious problem across the Highlands.

Alasdair Allan

It is not within the scope of my amendment, but I certainly acknowledge the need to control the spread of Lyme disease, which has been an issue in parts of my constituency. We should of course be open to looking at all measures around that.

My amendment, however, focuses on ensuring that crofters continue, where appropriate, to carry out muirburn on their crofts or common grazings for the purposes of reseeding or to provide or improve grazing, as they have done for generations. I hope that, whatever the Government’s reaction to my amendment is, the minister will be willing to work with me on the issue in the future.

Rachael Hamilton

I was minded to vote against your amendment, but you have persuaded me that it is a sensible one. I initially interpreted it as narrowing the scope of the area where peatland could be burned, but that is not the case. You are saying that it would widen that scope.

Alasdair Allan

Unless I have drafted it badly, yes. My intention is to provide another reason that crofters could use to employ muirburn.

Jamie Halcro Johnston

I am delighted to have the opportunity to speak to amendment 143, in the name of Colin Smyth, and to raise the concerns of my colleague Stephen Kerr, who unfortunately cannot be here today.

Amendment 143 represents a deliberate and targeted attempt to compromise rural businesses that rely on grouse shooting as part of their income stream. Given the body of evidence that demonstrates the benefits of muirburn that is carried out by grouse moor managers for diverse forms of moorland wildlife, it seems counterintuitive to remove the primary motivation for undertaking such activity in the first place. Moreover, moorland game includes species such as black grouse, which is a red-list species of conservation concern whose populations are now largely confined to moorland that is managed for grouse shooting, partly because of the muirburn that is undertaken to benefit moorland game on such landholdings.

The Convener

No other member wishes to comment. I therefore invite the minister to wind up.

Jim Fairlie

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.

Kate Forbes

Does the minister recognise, too, that, as the Scottish Fire and Rescue Service indicated, one of the most essential aims of carrying out muirburn is that it acts as a firebreak for wildfire? Not only is it in the interests of a particular industry, albeit one on which people might have different views; without it, we might have seen homes being burned to the ground last summer.

Jim Fairlie

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.

Edward Mountain

I might have misunderstood. All that my amendment 23 would introduce is that muirburn should be undertaken for

“managing the habitats of moorland game or wildlife”.

I am simply saying that all wildlife is important, not just moorland game. I find it odd that you are in a position where you cannot accept that.

Jim Fairlie

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.

Kate Forbes

I take in very good faith what the minister says. So, if he can assure me that there will be an amendment of some kind at stage 3 that gives effect to my amendments 88 and 89, I will not move them.

Jim Fairlie

I give the absolute commitment that we can meet to talk about the issue and see what we can bring back at stage 3.

I appreciate the intention of amendments 90 and 94, and I am sympathetic to ensuring that the bill works for not only grouse moor managers but crofters and farmers, while protecting our valuable peatlands. Crofting delivers real benefits: it sustains agricultural activity, supports the rural economy, enhances wildlife and the natural environment, and supports people to stay, live and work in our rural and island communities. The Scottish Government supports crofting and is committed to enabling more people to live in or near a croft and to work their land. It is not the intention of the bill to interfere with that. Potentially, the effect of amendments 90 and 94 is already covered by the purposes for muirburn on peatland that are in the bill. I therefore ask Alasdair Allan not to move his amendments.

Alasdair Allan

I likewise wonder if you will go a little further and offer to work with me ahead of stage 3.

Jim Fairlie

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.

Rhoda Grant

As my colleagues have done, I could ask that the minister might be willing to meet me before stage 3 to discuss the issue further, and I sincerely hope that he will do so, but perhaps he will also put on the record some assurance that any changes will be widely consulted on with all stakeholders, who will have an input to any changes that might take place.

Jim Fairlie

I give you the commitment that we can meet before stage 3 to talk about the issue, but I ask you not to move amendment 149 at this stage.

The Convener

I call Colin Smyth to wind up and to press or withdraw amendment 143.

Colin Smyth

The equivalent of more than 200,000 football pitches is subject to muirburn purely to maintain and increase grouse. About 40 per cent of that takes place on deep peat, which is defined as having a depth greater than 50cm. Ending unnecessary muirburn to maintain and increase grouse will not prevent anyone from shooting grouse but will mean that our vital peatlands are afforded far greater protection, while muirburn can still continue for the other legitimate reasons that are set out in the bill.

Kate Forbes

Does the member accept that, as we have seen over the summer, the most destructive thing for peatland is wildfires that are out of control and that, where muirburn can be restricted and managed, it often ensures that peatland is saved on a much broader basis than if fires were to get out of control because of increased fuel load?

18:45

Colin Smyth

I take on board the point that Kate Forbes makes. As she was a member of the committee at the time, she will be aware that the Government gave assurances in evidence that, even without a licence, muirburn can still be an emergency tool to respond to wildfires. If a land manager wants to obtain a licence for muirburn for genuine conservation reasons, amendment 143 would not affect that in any way.

The amendment backs what I believe we all agree the bill should set out to achieve, which is to ensure that the management of grouse moors and related activities are undertaken in an environmentally sustainable and welfare-conscious way.

Rachael Hamilton

I am trying to understand why the member has lodged amendment 143, so I would like to know whether he has ever been to see any black grouse conservation projects on moorland. Obviously, the practice of muirburn is actually conserving wildlife and red-listed species.

Colin Smyth

If a land manager wishes a licence for conservation reasons, amendment 143 would not impact on that whatsoever. That important point needs to be made.

I am not surprised that the Conservatives do not agree with the amendment, because they want to maximise the level of kill. I appreciate that, but I have to say that I am disappointed that the Greens and SNP seem to share that position. Despite the fact that I know that the minister has no—

Rachael Hamilton

On a point of order, convener. Colin Smyth needs to clarify his statement about my party wanting to maximise kill. It does not mean anything. I do not understand what it means. It is actually disrespectful. I can tell him categorically that I support rural economies and country sports pursuits. It is important that he acknowledges that and does not explain it as maximising kill. I have no idea what that means, and it is disrespectful.

The Convener

Thank you, Ms Hamilton. That is not a point of order, but I take this opportunity to remind members that standing orders require members to treat one another with respect. We should bear that in mind in our contributions.

Colin Smyth

I am happy to address that point. In previous amendments, for example, I proposed that we should not be trapping to minimise one species in order to maximise another species purely for the purpose of killing that other species. That circle of destruction has been debated time and again, and that is the point that is being made here.

I am not surprised that the Conservatives do not agree with amendment 143, but I am disappointed that the Greens seem to share that position. I am aware that the minister has no intention whatever of meeting me to discuss bringing back the amendment at stage 3, but I will not press it. The Government’s position on supporting muirburn purely to maintain and increase grouse to be shot for sport is very much now on record.

Amendment 143, by agreement, withdrawn.

The Convener

Amendment 88, in the name of Kate Forbes, has already been debated with amendment 143. I call Kate Forbes to say whether she wishes to move or not move.

Kate Forbes

Not moved.

Rachael Hamilton

Can I move that amendment, please, convener?

The Convener

Certainly.

Amendment 88 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 88 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Burgess, Ariane (Highlands and Islands) (Green)
Grant, Rhoda (Highlands and Islands) (Lab)
Harper, Emma (South Scotland) (SNP)
Whitham, Elena (Carrick, Cumnock and Doon Valley) (SNP)

Abstentions

Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)

The Convener

The result of the division is: For 2, Against 5, Abstentions 2.

Amendment 88 disagreed to.

Amendment 144 not moved.

Amendment 23 moved—[Edward Mountain].

The Convener

The question is, that amendment 23 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 3, Against 6, Abstentions 0.

Amendment 23 disagreed to.

The Convener

I call amendment 89, in the name of Kate Forbes.

Kate Forbes

I will not move amendment 89.

Amendment 89 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 89 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

Abstentions

Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)

The Convener

The result of the division is: For 2, Against 5, Abstentions 2.

Amendment 89 disagreed to.

The Convener

I call amendment 90, in the name of Alasdair Allan.

Alasdair Allan

On the basis of the offer that the minister has made to work with me ahead of stage 3, I will not move amendment 90.

Amendment 90 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 90 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

Burgess, Ariane (Highlands and Islands) (Green)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Harper, Emma (South Scotland) (SNP)
Whitham, Elena (Carrick, Cumnock and Doon Valley) (SNP)

Abstentions

Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Wishart, Beatrice (Shetland Islands) (LD)

The Convener

The result of the division is: For 2, Against 5, Abstentions 2.

Amendment 90 disagreed to.

Amendments 145 and 146 not moved.

The Convener

Amendment 183, in the name of Rachael Hamilton, is grouped with amendments 25, 26, 184, 101, 102, 167, 39, 40 and 168. I point out that, if amendment 184 is agreed to, I will not be able to call amendments 101, 102 or 167 and that, if amendment 102 is agreed to, I will not be able to call amendment 167, because of pre-emption.

Rachael Hamilton

I am pleased to have the opportunity to speak to the amendments in this very important group.

It is worth stating at the outset that uncertainty over amendments in this group has prompted a significant amount of concern and anguish among stakeholders and muirburn practitioners. Therefore, I am keen to ensure that the various concerns that have been raised with me are properly articulated and considered, so I ask members to bear with me while I make some quite technical and scientific observations in relation to the amendments that have been lodged.

I want to start by addressing amendments 101 and 102, in the name of Kate Forbes, which would have the effect of starting and ending the muirburn season two weeks earlier than the status quo. I understand that those amendments have been driven by the perceived impact of muirburn on ground-nesting birds.

I have no issue with opening the muirburn season on 15 September rather than 1 October. It seems logical to provide practitioners with additional capacity to make muirburn in September, notwithstanding the fact that the quality of the burning will not be as good as it is towards the end of the season. If we are to meaningfully reduce fuel load and enhance habitats for biodiversity, having the capacity to burn for an additional two weeks in September could be advantageous. Therefore, I have no difficulty in supporting amendment 101.

However, I have a slight issue with the scientific evidence that supports the amendment that would have the effect of closing the season on 31 March instead of 15 April. I have taken the time to consider in detail the available scientific evidence on the impact of muirburn on ground-nesting birds, and I have to say that I am completely unconvinced by the arguments in favour of amendment 102.

In 2021, the British Trust for Ornithology published an incredibly detailed research report that considered in detail the nesting dates of moorland birds with reference to muirburn. It noted that the

“Overlap for most species between burning season and laying dates remains small”

and that the overall impact of muirburn can be characterised as “low”, even among early breeders. Indeed, it went on to note that those birds that breed early favour habitat that would never be targeted for burning. Golden eagles and peregrine falcons prefer crags, which cannot be burned, and lapwing and golden plover prefer short vegetation, which you would be extremely hard pressed to burn.

The only species that Kate Forbes can credibly say would be impacted by muirburn is the stonechat. That is a small bird that can be described as a habitat generalist, in light of the fact that it nests successfully in lowland, as well as upland, areas. For that reason, the authors of the research that I have referred to noted that

“no more than 0.3-0.5% of nests are likely destroyed by burning”,

which is not statistically significant in the grand scheme of things. Therefore, I think that we can say that the current muirburn season is not posing a threat to ground-nesting birds. Indeed, on the contrary, we know that many species benefit significantly from habitats created by muirburn, as has already been articulated by members this evening.

The other concern that has been put to me is that moorland birds are nesting earlier, which I undertook to explore. Helpfully, that same BTO research report 741 provides useful commentary on that issue, too. It suggests that, on the whole, breeding dates are

“typically advancing by 1-2 days per decade”.

Given the in-depth analysis courtesy of that report, I am not sure that we can credibly say that, just three years later, moorland birds are now breeding significantly earlier. I accept that the muirburn season might be something that we need to look at in the future, but I do not believe that we have reached the point where action is required now.

We must also consider the disbenefits of curtailing the season on 31 March. Providers of muirburn training have said that curtailing the season will have enduring impacts on the provision of muirburn training. That is an interesting point and something that only those who practise muirburn could probably comment on. Muirburn training is set to become a statutory requirement under the bill, so it is an important point.

We know that muirburn training requires an assessment of practical skills, which involves an assessed muirburn. Muirburn trainers have said that some 90 per cent of those assessments take place between 15 March and 15 April, because that is the time when the conditions are most favourable for burning. They have also told me that it is often not feasible to burn at any other time of year due to the ground, the vegetation and the atmospheric conditions.

Therefore, the question is whether amendment 102 would have the effect of imposing a bottleneck on the provision of muirburn training. I am not sure whether that is something that the minister has considered. About 100 people have been trained and assessed voluntarily, but hundreds more will shortly require the qualification in order to burn. Closing the season on 31 March would put the entire training aspiration from the Scottish Government at risk.

To that end, I ask all members to vote against amendment 102 on the basis that it lacks evidential grounding. It is likely to be accompanied by unintended consequences that could potentially be damaging. It is also worth noting that, during the stage 1 debate, the minister intervened on Ariane Burgess when she suggested that the muirburn season should be curtailed early, citing the very research from the BTO that I have spoken about at length. I hope that the minister will be sympathetic to my arguments, considering his comments in the chamber.

It goes without saying that the arguments that I have outlined in relation to amendment 102 also apply to Ariane Burgess’s amendment 167, which would see the muirburn season ending even earlier than 15 March. I find that impractical, and it is quite astonishing that Ariane Burgess would seek to curtail the activity without a shred of supporting scientific evidence—although we may hear that shortly—especially given the extent to which her region has been hit by catastrophic wildfires in recent years.

Muirburn has an integral role in reducing wildfire risk and neutralising wildfire when it does occur, as we have already heard this evening. I believe that amendment 167 would significantly detract from that, which would not be in the interests of the people who were affected by the wildfires in that region.

Thank you for bearing with me, convener. I will now speak to amendments 183 and 184, which are in my name, as well as to amendments 25, 26, 39 and 40, which are in the name of my colleague Edward Mountain. The amendments are designed to give practitioners a mechanism to burn beyond 31 March if the minister is determined to continue on the damaging course of closing the season early.

19:00

My amendments would provide the ability to burn in the extended muirburn season, which is the period between 1 and 30 April, for limited purposes only, to include provision for training. That would effectively deal with the issues surrounding training that I referred to earlier. Edward Mountain’s amendments would also provide the ability to burn beyond the close season under licence for a narrow range of purposes.

There are very good reasons why practitioners should be able to continue burning into April. I have highlighted the immediate unintended consequences of not being able to burn in April, but I should also say that there would be a reduction in the amount of muirburn made annually if the decision were followed through. I contend that it is not in the public interest to reduce muirburn in that way, given the demonstrable benefits that it provides for biodiversity, livestock, game birds, wildfire mitigation and habitat conservation. There is emerging evidence from a long-term study in northern England that muirburn is having huge benefits for a range of key peatland characteristics including water retention, methane reduction and nutrient provision. It is for those reasons that I very much hope that, if the minister decides to support amendment 102 in the name of Kate Forbes, he will support Edward Mountain’s and my efforts to provide practitioners with the means to burn in April.

I support amendment 168 in the name of my colleague Rhoda Grant, which would provide sufficient and effective scrutiny of any future changes to the muirburn season that might be made by regulation.

I move amendment 183.

The Convener

I call Edward Mountain to speak to amendment 25 and other amendments in the group.

Edward Mountain

We, in this room, all recognize that every part of Scotland is different. I am sure that the convener and Colin Smyth would argue that the Borders is the place to be, and Kate Forbes and I might argue that the Highlands are the place to be.

Kate Forbes

We would be right.

Edward Mountain

Across Scotland, it is very different. There is somewhere in the middle of Scotland that the minister might think is the best place to be. The Western Isles, of course, are a good place to be, as well.

My point is that those places are all completely different. They have completely different seasons. There might be snow up in the Cairngorms right the way through to April, yet there might not be snow in the Borders in March. The point of my amendments is to ensure that we recognise the geographical differences that each part of Scotland faces.

It is absolutely wrong to say that all ground-nesting birds nest at the same time, for example. I heard the argument during an evidence session that nesting periods have come forward. Well, they might have come forward in the more temperate bits of Scotland, but, in the Highlands and the more rugged bits, nesting seasons have not really come forward. Keepers know that and muirburn practitioners know it. They understand that and they understand the reason for ensuring that their muirburn is carried out at an appropriate time.

In my mind, trying to reduce the muirburn season by saying that all of Scotland is the same is a fallacy. That is such a mistake, and it does not recognise the different challenges that are experienced in different parts of Scotland. That is why I lodged amendments 25, 26, 39 and 40. I wanted to try to get to the situation in which we have a different season based on geographical location. One could argue that there should be a different season, as was done under the Hill Farming Act 1946, whereby you could carry on burning at higher altitudes until a later date because you probably would not be able to get there to do it at an earlier date. That is why there is sense in my amendments.

However, it is just not true to say that Scotland is all the same, that the Western Isles are the same as the Highlands or that the Borders are the same as Perthshire, and so we need one arbitrary date. For those reasons alone, I have lodged my amendments. I ask the minister and other members of the committee to consider carefully why the amendments are there and why we need to do this.

I also believe that, when we are talking about the muirburn season, we must be cognisant that the people who are carrying out the burning are doing it for good reasons and are not out there to burn birds that are sitting on nests. If there is any risk of that, they do not do it. I am asking that we have trust in them and let the geographical area, not a centralised policy based on a centralised Government agency, dictate the burning season.

Kate Forbes

Rachael Hamilton has already addressed my amendments 101 and 102. The purpose of the amendments needs to be seen in terms of what both achieve, because they are essential to each other. I recognise the push from some quarters, particularly the RSPB, NatureScot and others, to close the muirburn season on 31 March instead of 15 April for reasons relating to the number of moorland birds that might be disturbed, but it is my strong view that that cannot result in an overall reduction in the muirburn season. That is why I have also lodged my amendments to ensure that the start of the muirburn season is 15 September instead of 1 October, which I understand will make a meaningful difference, as per discussions with stakeholders.

There is not much to add beyond that. I encourage members to see those two amendments working in partnership, and I hope that members can support them.

Ariane Burgess

My amendment 167 seeks to set the close of the muirburn season as 15 March. As we have heard, various dates have been suggested this evening, which demonstrates the degree of change that we are seeing in the seasons and the effects on wildlife. My amendment would set an earlier end to muirburn season as proposed in the bill to avoid the season overlapping with the breeding seasons of several bird species that routinely nest on moorland.

Edward Mountain

Will the member give way?

Ariane Burgess

I will just continue my point for now, because I am collecting my thoughts here. It is interesting to note that the BTO data has already been used, because I am going to reference it. It is an interesting piece that highlights that we can use data in different ways. My approach here is a precautionary one.

Edward Mountain

I thank the member for giving way. From the data that she has gathered, what moorland ground-nesting bird is nesting on 15 March?

Ariane Burgess

I have a long list of birds here.

Edward Mountain

I am asking about 15 March in the Highlands.

Ariane Burgess

The report that I have from NatureScot is about the whole of Scotland, which is what we are looking at here. The BTO study “Nesting dates of Moorland Birds in the English, Welsh and Scottish Uplands”, which has been referenced, found that, in 10 per cent of golden plover nests, 15 per cent of lapwing nests and 31 per cent of peregrine nests, eggs had already been laid by 31 March, and by 15 April those figures had increased to 45 per cent, 52 per cent and 82 per cent respectively. Additionally, the study found that 11 per cent of hen harriers, 27 per cent of snipe and 41 per cent of stonechats had laid by the latter date.

My concern is that we are seeing climate change and the nature emergency lead to breeding seasons coming earlier. With this amendment, I am seeking to future proof the provisions.

Rachael Hamilton

Will the member disaggregate the data that she has just quoted to refer to Scottish areas rather than to the whole of the UK, so that we can understand the quote in relation to the lapwing and golden plover?

Ariane Burgess

The data that I have refers to moorland birds in the English, Welsh and Scottish uplands.

Rachael Hamilton

I am just trying to compare like with like.

Ariane Burgess

That is right, is it not? I have information from NatureScot about breeding seasons and dates here. It is interesting that we can all use and cite the same data but come at it in a different way. As I said, my amendment seeks to take a precautionary approach and future proof the legislation. I understand that other amendments would shorten the season by only two weeks. I will listen carefully to the minister’s views.

Rhoda Grant

Amendment 168 would ensure that any changes to the muirburn season were properly scrutinised. I assume that the powers to change the muirburn season will be used in response to the impacts of climate change on nesting birds. It is right that such changes should be made, but it is also right that proposed changes should be laid before Parliament and consulted on widely.

Many members have tried to adjust the muirburn season in the bill. I have sympathy for Kate Forbes’s amendment 102, as we have heard that birds are already nesting by the end of March. Other members have sought to add flexibility to the season. I have some sympathy with that, given the impact of climate change, but I am concerned that, without robust scrutiny, such flexibilities could be abused. I believe that it would be better to deal with changes to the season under the code rather than in the bill. Therefore, my amendment 168 seeks to ensure that changes to the muirburn season will be properly scrutinised.

Colin Smyth

Having lodged the same amendment as Kate Forbes, I express my support for the end date of the muirburn season being moved in the way that amendment 102 proposes. Ideally, the end date would be the one that is suggested in amendment 167, but, failing that, amendment 102 is a reasonable compromise. However, I do not support the start date of the season being moved as is set out in amendment 101, as I do not think that there are any justifiable reasons for that.

As we have heard, the current end date of 15 April for the burning season, as is proposed in the bill, overlaps with the breeding season of several bird species that often nest on moorland. A point was raised about the need for evidence on the issue. In its 2014 document “Bird Breeding Season Dates in Scotland”, NatureScot listed 18 species in Scotland whose breeding season overlaps the end date, and climate change is driving that number ever higher. We also heard about the evidence in the BTO’s report, “Nesting dates of Moorland Birds in the English, Welsh and Scottish Uplands”.

There is a strong case for having a mechanism for proper scrutiny by Parliament, outwith primary legislation, to amend the date as climate change continues to have an impact. However, the bill asks us to set a date, and I believe that the proposed date is too late. In Wales, the end date has been brought forward, from 15 April to 31 March, on the basis of current evidence of breeding seasons and climate change. At the very least, we should replicate that in Scotland.

Jim Fairlie

It is important to remember the purpose of having a muirburn season, which is to ensure that muirburn is carried out only when the risk of damage to economic, social and environmental interests is at a minimum. There are different permitted reasons for carrying out muirburn, depending on whether it is on peatland and whether it is carried out during the prescribed season.

Rachael Hamilton’s amendments 183 and 184 would extend the period for which a muirburn licence can be granted until 30 April. They would also allow licences to be granted for additional purposes between 1 and 30 April. As we have heard from Kate Forbes, we have very good reason to bring forward the start of the close season to protect ground-nesting birds. Therefore, to accept an amendment that would push that season back to the end of April, albeit in limited circumstances, would not be appropriate or good practice. I do not believe that we have been provided with any evidence to support the changes to the dates or the purposes for which muirburn can be undertaken that are proposed by Rachael Hamilton in her amendments.

However, I understand that the science around muirburn is constantly evolving, and that the impacts of climate change mean that we may need to adapt our approach in the future. That is why section 16(3) of the bill gives the Scottish ministers a power to amend the muirburn season if they think it

“necessary or expedient to do so”

for the purpose of

“conserving, restoring, enhancing or managing the natural environment”,

preventing the risk of wildfires or in relation to climate change.

Because the power is subject to the affirmative procedure, Parliament will have an enhanced scrutiny role, and there is a requirement to consult those who are likely to be interested in or affected by the making of muirburn, which will ensure that the power is used proportionately. For those reasons, I will not support amendments 183 and 184, and I encourage committee members to vote against them.

19:15

I turn to Edward Mountain’s amendments. Amendment 39 would also allow the muirburn season to

“be extended to 30 April”,

in this case

“with the permission of the landowner.”

That would seem to delegate the authority to the landowner rather than to ministers or to NatureScot, which I find rather strange. For the same reasons that I gave in relation to Rachael Hamilton’s amendments on extending the muirburn season, I cannot support amendment 39, and I encourage the committee to vote against it—[Interruption.] I ask members to allow me to finish these points.

Amendments 25 and 26 seek to change the muirburn licence provisions so that a licence can be granted for muirburn outside

“the muirburn season only for the purposes of ... conserving, restoring, enhancing or managing the natural environment ... research, or ... public safety.”

However, I think that those amendments have been lodged as the result of a misunderstanding of the bill. Section 11(2) sets out the only purposes for which muirburn can be licensed during the open season, so an out-of-season licence would be available for any purposes that are not explicitly mentioned in section 11(2).

The bill already allows a licence for out-of-season muirburn to be granted on non-peatland for the purposes of

“conserving, restoring, enhancing or managing the natural environment ... preventing, or reducing the risk of, wildfires causing harm to people or damage to property”

or “research”.

Mr Mountain’s amendments therefore duplicate provisions for research and conserving, restoring, managing or enhancing the natural environment on non-peatland for out-of-season muirburn. Examples of that might be to create a suitable seedbed at the appropriate time of year for the natural regeneration of nearby native woodland or to research the effects of muirburn on dry heath in early September.

With regard to public safety, that was previously included in the Hill Farming Act 1946 as a reason for which an out-of-season muirburn licence could be granted. However, in creating the new muirburn provisions for the bill, we took the view that “public safety” is a very wide term that could be interpreted in many different ways, so the narrower provision for

“preventing, or reducing ... wildfires causing harm to people or damage to property”

was introduced.

Edward Mountain

Minister, I am sure that you will accept that things happen at a different pace across Scotland. As a farmer, you will know, for example, that grass will grow quicker in Perthshire than it will in the Highlands. That affects all wildlife, as far as seasons go, because things may take longer when it is colder and darker for longer. That is why I am asking for allowance to be made for geographical variance across Scotland. To treat Scotland as being all the same seems to me to be somewhat strange if we are trying to control management and put it on a level at which we get the best possible outcome for each environment.

I am not seeking a meeting—I seem to be the only member who has not had, or has not been offered, a meeting with you, minister. Will you accept, nevertheless, that there is variance across Scotland and that it would be worth considering geographical variance to take into account latitude and conditions?

Jim Fairlie

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.

Rachael Hamilton

Thank you, minister. My point is specifically about the Government’s training aspiration. As I said, more people will be coming forward—

Jim Fairlie

We will come on to training, so, in the interests of time, do you mind if we come back to that later?

Rachael Hamilton

Sure—thank you.

Jim Fairlie

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.

Rhoda Grant

I understand what the minister says about burdens on the Parliament. However, the trouble is that we have so much enabling legislation, in which powers are set out to introduce measures through secondary legislation, but without a promise of scrutiny on the use of those powers. Given that I have lodged a number of amendments in the same vein, is the minister willing to meet me to discuss an amendment at stage 3 that would make sure that there is adequate consultation, that stakeholders are consulted and that there is scrutiny of any changes through secondary legislation? That would give people confidence that they will not be railroaded into anything that does not work properly for the industry.

Jim Fairlie

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.

The Convener

Thank you—

Rachael Hamilton

Sorry, convener—

The Convener

I am coming to you, Ms Hamilton.

Rachael Hamilton

Right—okay.

The Convener

I call Rachael Hamilton—[Laughter.] Steady on. I call Rachael Hamilton to wind up and to say whether she wishes to press or withdraw amendment 183.

Rachael Hamilton

Thank you, convener.

I will press amendment 183. In closing, I want to add that I am shocked by the minister. I do not know whether he has been grasped by the civil servants since he has become a minister, but he has done a complete U-turn. He now supports amendment 102 but, when we debated the bill in the chamber at stage 1, he clearly suggested to Ariane Burgess that the muirburn season should be curtailed earlier. I would like the minister to explain why he has done that huge U-turn.

I do not know whether I went into a parallel universe, but I thought that the minister was going to address the point on which I tried to make an intervention. He said that he was going to address the training issue and the Government’s aspiration, given that hundreds of people will be coming forward to get a licence. Closing the season on 31 March will put that training aspiration at a complete loss.

The Convener

Minister, would you like to respond to that?

Jim Fairlie

No.

The Convener

The question is, that amendment 183 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 183 disagreed to.

The Convener

Before we move on to another large group of amendments, I am minded to suspend the meeting for 10 minutes for a comfort break.

19:26 Meeting suspended.

19:36 On resuming—

The Convener

Amendment 91, in the name of Kate Forbes, is grouped with amendments 92, 150, 95 to 97, 151, 98, 152, 153, 28, 154, 160, 99 and 104. I point out that, if amendment 150 is agreed to, I cannot call amendments 95 to 97, because of pre-emption.

Kate Forbes

I will speak to amendments 91, 92, 96, 98, 99 and 104. I will first put on record my admiration for individuals such as those in Bright Spark Burning Techniques, who, with the support of the Scottish Fire and Rescue Service, have taught and trained countless muirburn practitioners. I also pay tribute to those practitioners, who are well trained, experienced and conscientious in the carrying out of muirburn. Over the summer, when I visited a site near Cannich and met gamekeepers, I was struck by the fact that they had actively saved businesses and buildings as a result of their many years of experience in fighting fire with fire and because of their training in muirburn.

My amendments in this group introduce a requirement for anybody who applies for a muirburn licence to have completed an approved training course. Muirburn was discussed extensively in the stage 1 evidence sessions, and two points emerged in particular when it came to conducting muirburn safely. The first was the widespread agreement that training is a must. That has been confirmed by input from various stakeholders indicating that, given the associated risks and the potential for extensive damage if muirburn is not executed properly, it is important that those who engage in muirburn activities have appropriate training. That requirement for training was supported by Deputy Assistant Chief Officer Bruce Farquharson of the Scottish Fire and Rescue Service.

The second point goes right back to where I started: that many muirburn practitioners have already undergone some form of training. They recognise the importance of training, and they are very conscientious practitioners. Training is already happening on a less formalised basis, and voluntary training has been developed by Bright Spark Burning Techniques, NatureScot and the Scottish Fire and Rescue Service. For that reason, I hope that my amendments make sense and strengthen the bill. I hope that the requirement will not add a significant additional burden on practitioners who are already doing the training, and who have experience and expertise in carrying out muirburn.

I move amendment 91.

The Convener

I call Jamie Halcro Johnston to speak on behalf of Stephen Kerr on amendment 150 and the other amendments in the group.

Jamie Halcro Johnston

I will speak to Stephen Kerr’s amendments 150, 152 and 153, which are critical safeguards in the face of an increasingly overburdened regulator. As I highlighted earlier, NatureScot already processes some 5,000 licensing applications annually, meaning that there is a tangible risk that muirburn licences will face undue delays in processing, potentially to the detriment of landscape resilience to wildfire risk or of habitat favourability for game and wildlife. We feel that it is vital that a provision be built into the licensing scheme that will safeguard against delays caused by an increasingly overburdened regulator.

Amendment 154, in the name of Ariane Burgess, stands to have a hugely detrimental impact on the ability of land managers to make muirburn. Successive scientific studies are clear about the role of muirburn in providing favourable habitat for the assemblage of moorland game and wildlife. In addition, it has been well documented that muirburn has an important role in conserving, restoring, enhancing and managing the natural environment, as well as in managing habitat for livestock. Such an amendment would have catastrophic implications for a range of muirburn users.

Alasdair Allan

Amendment 97 would change the test that an application must pass for a licence to be granted for the undertaking of muirburn on peatland. The bill currently sets out that a licence may be granted for muirburn on peatland if it

“is necessary for the specified purpose”

and

“no other method of vegetation control”

is available. During consideration of evidence at stage 1, a number of interested parties raised the concern that there might be circumstances in which other methods of vegetation control may be available, but they may not be practicable or effective in all circumstances. They expressed real worry that the wording in the bill would significantly restrict the ability to make muirburn to such an extent that it would be impossible to carry out muirburn on peatland.

I do not think that it was the intention that the bill place such a high bar on licence applications. It would be preferable if NatureScot considered such matters on a case-by-case basis, including whether any other methods of vegetation control would be suitable, and, as a result, whether a licence should be issued. It is likely that there will always be other methods of vegetation control available, such as cutting, but they might not be practical or desirable; for example, due to the topography of the land.

My amendment would ensure that NatureScot could consider, on a case-by-case basis, any practical issues arising from alternative methods of vegetation control, and it would give NatureScot the flexibility to issue a licence for muirburn if no other method of vegetation control was practical. It is my hope that local people, such as those in my constituency, would be listened to as part of that process, to allow their knowledge and experience to inform decision making. In the same way, there is expertise in NatureScot that should also be listened to in order to inform local practice. That dialogue and working together will increase and improve everyone’s knowledge about muirburn and local peatlands.

For all those reasons, I encourage members to vote for amendment 97, not least because it responds to one of the recommendations in our stage 1 report.

Rhoda Grant

My amendment 151 refers to issues that are to be taken into account when granting a muirburn licence on peat. The bill states that muirburn can be allowed only if there is no other option for the management of a fuel load. In evidence, we heard that although cutting kills plants, it does not deal with the fuel load and, indeed, decaying vegetation can often be more flammable. Therefore, my amendment would allow muirburn on peatland for managing fuel load.

Amendment 151 aims to ensure that the prevention of wildfires is taken into consideration in considering a muirburn licence application. Alasdair Allan’s amendment 97, which he has just spoken to, seeks to do a similar thing. I believe that both amendments would work well together, and I urge members to support them.

19:45

Edward Mountain

I will speak to my amendment 28 first. I believe that a licence should be issued for a period of 10 years. The minister will argue that that is too long, which is why I have included in amendment 28 the ability for the Government to remove the licence or issue it for

“a period less than 10 years if the Scottish Ministers consider it necessary for environmental reasons”.

So, the baseline would be 10 years, but there would be the option for the Government to issue a licence for a period shorter than that. That is pragmatic, in the same way as we have driving licences for a period of time unless there is a reason why someone should not have a licence for that period.

I am taken by Kate Forbes’s amendments on approved training courses. Training courses on muirburn for everyone would be particularly helpful. It would be extremely helpful if firefighters went on those training courses to understand how to do muirburn, because one thing that is important about controlling wildfires is the ability to backburn and stop a fire from getting out of control.

I have to say that, when I was a muirburn practitioner, there was not always evidence that firefighters understood the principle of backburn, although perhaps there is now. I remember local fire officers on occasion giving control of the fire staff to keepers to allow them to direct how the backburn should be carried out, because they understood it and firefighters did not. I encourage that training, and I am sure that the minister would like firefighters to be trained to the best ability. If an approved training course is being run, why not get them on it as well?

I am not taken by Rhoda Grant’s amendment 151. We have to remember that muirburn is an option. There are other ways of reducing the fuel load, including flailing, although that does not necessarily always reduce the fuel load. It can often not be possible to get tractors on to moorland or into difficult areas. It is important that fuel loads can be managed by burning, but there are also other reasons for burning—it is not only about managing fuel loads, as Rhoda Grant’s amendment suggests.

Rhoda Grant

I am unsure whether you have understood the intent of my amendment, which is to allow muirburn as opposed to other methods of heather control.

Edward Mountain

Sorry, but, among my many faults, I am slightly deaf. Could you speak up?

Rhoda Grant

You seem to be indicating that my amendment encourages cutting heather and other fuel load rather than burning it, but it does not—it is the very opposite, actually.

Edward Mountain

I am just saying that my understanding of the amendment is that it would restrict what muirburn can be used for to reducing fuel loads. I am not sure that I have misunderstood that—although I may have done—but that is the point that I have come up with.

A licence for 10 years is entirely appropriate, unless the Government decides that, for environmental reasons, it should be less. I would be surprised if the minister did not want to accept that proposal or at least meet me to discuss it further.

Ariane Burgess

My amendment 154 would impose a new condition where a licence is granted in relation to peatland, requiring the person who is undertaking muirburn to do so in a way that minimises the damage to the peatland. As we know, healthy peatland is a vital resource in our efforts to reduce our climate emissions, as it locks up carbon.

The evidence base on muirburn and wildfires is contested, as we have already heard this evening. I remain concerned that escaped fires from muirburn could contribute to wildfires in Scotland’s uplands, creating risk to wildlife and habitats and risk of serious carbon emissions from damaged peat.

My amendment is a probing one. It seeks to require people with a licence to make muirburn on peatland to do so in a way that limits damage to the peatland. For example, studies in protected areas of Ontario in Canada have shown that burning peatland in linear strips can be effective at creating natural firebreaks in the landscape. Such an approach limits the damage to thin strips, whereas burning large patches of peatland is more common in Scotland.

My amendment does not prescribe that particular approach, as other similar methods are, no doubt, available. Rather, the intention is that the muirburn code would focus on muirburn methods that can be shown to minimise the damage to our important peatlands.

Rachael Hamilton

The muirburn licence will relate to the land, meaning that it is important to specify what the land is being used for in the context of any potential licensing decision. My amendment 160 would provide—I can never say this word—specificity in that regard by stating unequivocally that the licence relates to the land for the purpose of making muirburn. [Interruption.] You cannot say it either, convener. [Laughter.]

Jim Fairlie

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 are needed 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.

Kate Forbes

I am happy not to move amendment 95 when the time comes, in the light of what the minister has outlined.

Jim Fairlie

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 it to 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.

Ariane Burgess

I listened carefully to your comments on my amendment 154. I am satisfied by your assurance that the methods to minimise damage will be explored through the muirburn code and training requirements, so I will not move my amendment.

Jim Fairlie

Thank you.

Rachael Hamilton

On the question of the practitioners who will be required to complete the training courses, will it be exclusively those who put a match to vegetation and those who extinguish it?

Jim Fairlie

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?

Rachael Hamilton

Yes. Thank you.

Jim Fairlie

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.

20:00

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.

The Convener

I call Kate Forbes to wind up and to say whether she wishes to press or withdraw amendment 91.

Kate Forbes

In the interests of time, I will go straight to pressing the amendment.

Amendment 91 agreed to.

Amendment 147 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 147 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 147 disagreed to.

Amendment 92 moved—[Kate Forbes]—and agreed to.

Amendment 3 not moved.

Amendment 148 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 148 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 148 disagreed to.

Amendment 93 moved—[Finlay Carson].

The Convener

The question is, that amendment 93 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 93 disagreed to.

The Convener

I call amendment 94, in the name of Alasdair Allan.

Alasdair Allan

I should have explained that amendment 94 merely gives the legal definition of a crofter for the purposes of amendment 90. That amendment not having been passed, amendment 94 does not make much sense on its own, so I will not move it.

Amendment 94 not moved.

Amendment 24 not moved.

Section 10, as amended, agreed to.

After section 10

Amendment 149 not moved.

Section 11—Grant of muirburn licence

The Convener

Amendment 150, in the name of Stephen Kerr, has already been debated with amendment 91. I remind members that, if amendment 150 is agreed to, I cannot call amendments 95 to 97, due to pre-emption.

Amendment 150 moved—[Jamie Halcro Johnston].

The Convener

The question is, that amendment 150 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 3, Against 6, Abstentions 0.

Amendment 150 disagreed to.

Amendment 95 not moved.

Amendment 96 moved—[Kate Forbes]—and agreed to.

Amendment 97 moved—[Alasdair Allan]—and agreed to.

Amendment 151 not moved.

Amendment 98 moved—[Kate Forbes]—and agreed to.

Amendment 25 moved—[Edward Mountain].

The Convener

The question is, that amendment 25 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 25 disagreed to.

Amendment 152 moved—[Jamie Halcro Johnston].

The Convener

The question is, that amendment 152 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 152 disagreed to.

Amendments 26 and 27 not moved.

Section 11, as amended, agreed to.

Section 12—Muirburn licences: content and conditions

Amendment 153 moved—[Jamie Halcro Johnston].

The Convener

The question is, that amendment 153 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 153 disagreed to.

Amendment 28 moved—[Edward Mountain].

The Convener

The question is, that amendment 28 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 28 disagreed to.

Amendments 154 and 29 not moved.

Section 12 agreed to.

Section 13—Modification, suspension and revocation of muirburn licence

The Convener

Amendment 51, in the name of the minister, has already been debated with amendment 179. I remind members that, if amendment 51 is agreed to, I cannot call amendment 72 due to pre-emption.

Amendment 51 moved—[Jim Fairlie]—and agreed to.

Amendment 73 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 73 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 73 disagreed to.

Amendment 155 moved—[Jamie Halcro Johnston].

The Convener

The question is, that amendment 155 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 155 disagreed to.

Amendments 156 and 157 not moved.

Amendment 74 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 74 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 74 disagreed to.

The Convener

Amendment 158, in the name of Rachael Hamilton, has already been debated with amendment 179. I remind members that, if amendment 158 is agreed to, I cannot call amendment 159, due to pre-emption.

Amendment 158 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 158 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 158 disagreed to.

Amendment 159 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 159 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 159 disagreed to.

Amendment 52 moved—[Jim Fairlie]—and agreed to.

Amendments 160 and 30 not moved.

Section 13, as amended, agreed to.

After section 13

20:15

Amendment 99 moved—[Kate Forbes]—and agreed to.

Amendment 161 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 161 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 161 disagreed to.

Amendment 162 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 162 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 162 disagreed to.

The Convener

Amendment 31, in the name of Edward Mountain, is grouped with amendments 36, 37 and 43.

Edward Mountain

With amendment 31, I suggest that a new section be introduced to the bill. There is a reason behind that, and bizarrely enough it was driven by the Crofting Law Group, which we discussed in the previous session of Parliament. The Government promised to introduce a bill to reform crofting law, but it has failed to do that. With my amendments in the group, I am trying to update the Government’s approach, as it seems to be intent on working in the old way.

I encourage the Government to create a register of muirburn licences that is available for people to look at online. Making it available for public inspection would make it more open. I also suggest to the Government that it should drop the rather old-fashioned and outdated approach of demanding that adverts about muirburn be placed in newspapers. We all know, and the Scottish Crofting Federation has argued eloquently, that placing adverts in newspapers is extremely expensive and they are not read by many people. A lot of people miss the advertisements in local papers because they do not look at that section. There is a need for the Government to be conscious of the requirement for such adverts and their cost, which is why I lodged amendment 37.

To me, it seems logical to have open access to a clear online register that will not lead to people incurring massive costs. I am not sure what there is not to like about the proposal. I look forward to hearing from the minister why he thinks that it is a bad idea.

I move amendment 31.

The Convener

As no other member wishes to comment, I invite the minister to respond.

Jim Fairlie

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.

Edward Mountain

The minister is nothing if not predictable. I predicted that he was not going to like my proposed new section and amendments to that part of the bill, because they are about openness and transparency and they would bring the Government into the 21st century. Of course, that is what is being suggested under the Bute house agreement—in fact, I have written that part of the bill for the minister, so a review would not be needed. It does not need anything more than what I have suggested, and it would save on the cost of advertising—

Jim Fairlie

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

Edward Mountain

I think that you have missed your opportunity, minister. Unless you are going to tell me that you will accept that amendment, I am probably not going to let you in—[Interruption.] Okay—that is even more predictable. That is hugely disappointing, convener—

The Convener

Sorry, Mr Mountain, can I just—

Edward Mountain

The Bute house agreement calls for more honesty, openness and transparency—

The Convener

I am sorry, Mr Mountain—obviously, you did not hear me. If you are so minded, you could give way to the minister and give him the opportunity to speak to amendment 37. That is a suggestion for you.

Edward Mountain

In the spirit of co-operation, and because he will not come for a meeting with me, I am happy to give way, convener.

The Convener

I call the minister.

Jim Fairlie

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.

Edward Mountain

Convener, I am very glad that I gave way to the minister to allow him to agree, albeit partially, with something that I have said.

Jim Fairlie

Predictable, yes.

Edward Mountain

Joking aside, however, there is a very serious point. The Scottish Crofting Federation has made it clear that there are exceptional costs for placing adverts in local papers, which makes it prohibitive. Online works for most people, and online is where people go. That is a very simple system for giving notice.

I refute the GDPR issue, because notice can be given simply with the location of the site and a note of whom to contact. Let us be honest: I have yet to know of anyone who, in planning to carry out muirburn, does not speak to their neighbours. They probably co-ordinate it with them to ensure that they work together.

Although I am partially enthused by the minister’s response, my overall response is that I am disappointed, and I will press my amendment 31.

The Convener

Thank you, Mr Mountain—I appreciate your giving way to the minister, as that was certainly helpful.

The question is, that amendment 31 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 31 disagreed to.

Section 14—Muirburn Code

The Convener

Amendment 32, in the name of Edward Mountain, is grouped with amendments 163 to 166, 33 and 34. I ask Edward Mountain to move amendment 32 and to speak to all amendments in the group.

Edward Mountain

Amendment 32 is a very simple amendment, which I am sure the minister will whole-heartedly embrace, because there is no point reinventing the wheel if the wheel is already there. My suggestion, under the amendment, is that

“the Muirburn Code produced for the Scottish Government by Scotland’s Moorland Forum and published on 22nd September 2017”,

which was adopted by the Scottish Government, be the first code. It seems to be an extremely good and workable document, and it has been endorsed by NatureScot, whose staff would no doubt be the people who would draw up the new code.

Rhoda Grant’s amendments in the group set out to prepare a muirburn code. Her amendment 163 would be irrelevant after my amendment had been accepted, and the rest of the amendments would be overtaken by the extremely sensible suggestion of using the code that already exists. That is all.

I move amendment 32.

Rhoda Grant

My amendments in this group refer to the muirburn code, which is fundamental to the practices of licence holders. The Scottish Government has not given Parliament any indication of what the code will look like, so the amendments aim to ensure that, before it is enforced, the code is consulted on, scrutinised and evaluated by Parliament. I believe that that covers the amendments that have been lodged by Edward Mountain.

Jim Fairlie

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”

“the consultation process”

and on how the

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

I believe that, if they were passed, those 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.

20:30

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.

Rhoda Grant

I get it that stakeholders are involved, but it does not say anywhere that the stakeholders have to agree to the code. That is why I am looking for better scrutiny. As with my other amendments, I would be happy if the minister would discuss that ahead of stage 3 to find out whether we can put something in place that will ensure that Parliament has some level of scrutiny so that, if there are concerns about the code, they could at least be heard.

Jim Fairlie

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.

Edward Mountain

It is always a pleasure to listen to the minister telling me why I am wrong. It is probably disappointing for him to hear that I am going to agree with him on pressing amendment 32—it might be the end of his ministerial career.

I believe that work is going on. However, I am minded to suggest that further work is required to ensure that the code is accepted by all people who use the practice of muirburn. I will work with Rhoda Grant to see whether there is a way in which we can ensure that everyone accepts the code and there is a majority decision, rather than just an unclear arbitrary decision.

On amendments 33 and 34, I still believe that revising the code every 10 years rather than every five years is appropriate, otherwise we would just finish off one code and start the next one.

I am sorry if I have destroyed your career, minister, but I will not press amendment 32.

Amendment 32, by agreement, withdrawn.

Amendment 163 moved—[Rhoda Grant].

The Convener

The question is, that amendment 163 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 163 disagreed to.

Amendment 164 not moved.

Amendment 100 moved—[Finlay Carson].

The Convener

The question is, that amendment 100 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 100 disagreed to.

Amendments 165 and 166 not moved.

Amendment 33 moved—[Edward Mountain].

The Convener

The question is, that amendment 33 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 33 disagreed to.

Amendment 34 moved—[Edward Mountain].

The Convener

The question is, that amendment 34 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 34 disagreed to.

Amendment 35 not moved.

Section 14 agreed to.

Section 15—Notice of muirburn activity

Amendment 36 moved—[Edward Mountain].

The Convener

The question is, that amendment 36 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 36 disagreed to.

Amendment 37 moved—[Edward Mountain]—and agreed to.

Amendment 38 not moved.

Section 15, as amended, agreed to.

Section 16—Muirburn season

The Convener

I call amendment 184, in the name of Rachael Hamilton. I remind members that, if amendment 184 is agreed to, I will not be able to call amendment 101, amendment 102 or amendment 167, because of pre-emption.

Amendment 184 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 184 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 184 disagreed to.

Amendment 101 moved—[Kate Forbes].

The Convener

The question is, that amendment 101 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Burgess, Ariane (Highlands and Islands) (Green)
Carson, Finlay (Galloway and West Dumfries) (Con)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Grant, Rhoda (Highlands and Islands) (Lab)
Harper, Emma (South Scotland) (SNP)
Whitham, Elena (Carrick, Cumnock and Doon Valley) (SNP)

Against

Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Abstentions

Wishart, Beatrice (Shetland Islands) (LD)

The Convener

The result of the division is: For 7, Against 1, Abstentions 1.

Amendment 101 agreed to.

The Convener

I call amendment 102, in the name of Kate Forbes. I remind members that, if amendment 102 is agreed to, I will not be able to call amendment 167, because of pre-emption.

Amendment 102 moved—[Kate Forbes].

The Convener

The question is, that amendment 102 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Against

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

The Convener

The result of the division is: For 7, Against 2, Abstentions 0.

Amendment 102 agreed to.

Amendment 39 not moved.

Amendment 40 moved—[Edward Mountain].

The Convener

The question is, that amendment 40 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 40 disagreed to.

Amendment 41 moved—[Edward Mountain].

The Convener

The question is, that amendment 41 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 41 disagreed to.

Amendment 103 moved—[Finlay Carson].

The Convener

The question is, that amendment 103 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 103 disagreed to.

Amendment 42 not moved.

Section 16, as amended, agreed to.

After section 16

Amendment 168 moved—[Rhoda Grant].

The Convener

The question is, that amendment 168 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 168 disagreed to.

Before section 17

The Convener

Amendment 174, in the name of Rachael Hamilton, is grouped with amendment 175.

Rachael Hamilton

Amendment 174 would simply amend the Fire (Scotland) Act 2005 to ensure that personnel are trained in relation to muirburn. It adds a statutory requirement for firefighters to be provided with training that specifically includes sessions on issues arising from making muirburn. It is crucial that our fire services are aware of, understand and are provided with the requisite training in relation to making muirburn, not only for the safety of the public, but for their own safety.

Amendment 175 would require ministers to publish a report every two years on the role of muirburn in relation to wildfires in Scotland. The report would have to consider the impact and damage caused by wildfire on wildlife habitats, the conservation of the natural environment, property and other matters. It is interesting to note that, in relation to the Cannich wildfire and other wildfires, it was difficult for the people who manage the land to understand the significant impact on and damage to those specific parts of nature.

The Scottish Fire and Rescue Service has made it clear that muirburn is not the primary driver or cause of wildfire events in Scotland; on the contrary, the fuel load management that is achieved in making muirburn is often credited with limiting or reducing the effect of wildfire incidents where they occur. Compelling ministers to produce a wildfire report every two years to consider the impacts of muirburn activity on wildfire intensity would be a practical and advisable thing to do as wildfire events become more frequent and prominent with the advent of climate change.

I move amendment 174.

20:45

Edward Mountain

Rachael Hamilton’s amendment 174 chimes with something that I said earlier. I remind members that it is often people who practise muirburn who have the best equipment to fight wildfires. Argocats get people and firefighting equipment up on the hill. Sadly but unsurprisingly, the Scottish Fire and Rescue Service does not have access to all that equipment, because it might cost between £45,000 and £50,000 to equip an Argocat. It therefore seems entirely appropriate for firefighters, who often work beside gamekeepers and moorland managers, to go on the same muirburn course, so that they can work together. If that does nothing else, it will foster good relations and create greater understanding. For that reason alone, I support Rachael Hamilton’s amendment 174.

Jim Fairlie

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.

Edward Mountain

I am not disputing what you are saying, but how many firefighters have done a muirburn course in the past three years?

Jim Fairlie

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.

Rachael Hamilton

I intend to press amendment 174. I have not been convinced by the minister’s arguments that the Fire (Scotland) Act 2005 should not be amended to recognise training for muirburn. It is a really important aspect, considering the danger that firefighters and the wider public in rural areas can be put in, particularly considering examples such as Cannich. Although it has been noted that the Scottish Fire and Rescue Service carries out training and is quick to tackle wildfires, there were distinct gaps in provision when the Cannich wildfire was being tackled last year.

Turning to the points that Edward Mountain made, it is really important that the Fire and Rescue Service is able to use the equipment that gamekeepers and others use to mitigate the wildfire risk. It may be that the fire service does not have that in its suite of training. I therefore still think that the amendment is important, and I am not convinced by the argument that has been made against it.

The additional scrutiny that I am asking for by way of a biennial report is important. We know that biodiversity loss has not been reported, and the minister has acknowledged that there have been knowledge gaps that need to be filled. I hope to lodge an equivalent amendment to amendment 175 at stage 3, in order to get more detail on the scientific research that NatureScot does, in the timeframe in which it is able to provide it. That is a really important piece of work, which must be completed and reported to the Parliament. I will not be moving amendment 175, because I understand that the two-year reporting period could prove challenging, but I will come back at stage 3 with a different amendment that could perhaps reflect the scientific research that the minister referenced.

The Convener

The question is, that amendment 174 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 3, Against 6, Abstentions 0.

Amendment 174 disagreed to.

Amendment 175 not moved.

Section 17—Delegation

Amendment 43 moved—[Edward Mountain].

The Convener

The question is, that amendment 43 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 43 disagreed to.

Amendment 104 moved—[Kate Forbes]—and agreed to.

Amendment 44 not moved.

Section 17, as amended, agreed to.

Section 18—Interpretation of Part

The Convener

Amendment 76, in the name of the minster, is grouped with amendments 169, 45, 171, 170, 77 and 172. If amendment 169 is agreed to, I cannot call amendments 45, 171 or 170, due to pre-emption. I remind members that amendments 45 and 171 are direct alternatives. That is, they can both be moved and decided on, and the text of whichever of the amendments is the latter to be agreed to is what will appear in the bill.

Jim Fairlie

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.

Ariane Burgess

The definition of peat was discussed during stage 1, and that is reflected in a variety of amendments, but why is there a focus on peat depth at all? The International Union for Conservation of Nature’s peatland programme is clear that all peat—from the shallowest peaty soils to deep layers—is vital and an integral part of the overall health of peatlands. In fact, the shallowest of peat soils, those less than 30cm in depth, are arguably the most in need of protection, being more susceptible to damage and drying out.

Early in my discussions about the bill with stakeholders, I was surprised to learn that the current definition, which is based on depth, stems from post-war land management strategies when Britain was looking to maximise its natural resources and agricultural productivity. It is based not on ecological understanding or rooted in climate adaptation practices, but rather in an arbitrary assessment that is based on what was required over half a century ago.

Amendment 169 seeks to remove that arbitrary definition entirely, removing the link between the depth of peat and its status under the licensing regime that is set out in the bill. All peat soils would therefore be subject to the muirburn licensing regime. In a time of climate emergency, we should be looking to maximise the protection of peat and not be undercutting the work that other parts of the Scottish Government is doing to fund the restoration of peatlands.

I am well aware that there will not be consensus on my amendment. I await the minister’s response, but I believe that it is important to highlight how peatland is defined.

Edward Mountain

Before the meeting, we laughed about the fact that Ariane Burgess and I agree on some things. I agree that peat depth is not the relevant factor, because we are not burning peat, but I believe that carrying out muirburn on shallow peats is bad, because it encourages drying out. Usually, shallow peats are in areas of greater altitude. That is a huge generalisation but, in such areas, there is schist underneath the peat that is not fertile at all, and it is very difficult for the plants to regrow on it.

I lodged amendment 45—which would increase the depth that is used in the definition from 40cm to 60cm—as a probing amendment. It was interesting that, when I lodged the amendment, I was absolutely slated by people who thought that it was amusing to say that I had no experience of what I was talking about. I am probably one of the few members in the Parliament who has been a practitioner and has carried out muirburn. Not understanding the parliamentary process for probing amendments is deeply unhelpful, and it should not be encouraged.

The point of my amendment is to try to work out what the minister thinks is being burned, because it is not the peat that is being burned but the vegetation that is on top of the peat. We have all seen the demonstrations of quick fires and slow fires across peatland. A quick fire can burn over the surface of the soil; it might not even melt a bar of chocolate if it was sufficiently quick. In fact, I have seen fires on heaths burn quickly enough to pass through without damaging fence posts or remove the galvanised coating on the wire around the heathland.

Amendment 45 is a probing amendment. I want to know why the minister feels that the depth of the peat is the prerequisite for defining peatland and muirburn.

21:00

I am slightly taken with the minister’s amendment 77, but I am concerned that the word “heath” could encompass a lot of crofting ground where there might be grassland improvement, because, by definition, heath means acidic soils with low fertility. That might include some areas on common grazings, where muirburn might be considered, and that would automatically be encompassed by the legislation.

I am interested to hear the minister’s response to my probing amendment 45 and an acceptance of the fact that it is not the depth of peat that is relevant but the actions that are being carried out on the surface.

I absolutely agree that things have changed. When I was younger—which might seem like many years ago—we were paid to put in grips across moorland to drain the peatland to make it easier to graze. We are now being paid to put it back to the way it was. We have come full circle, but we still need to carry out muirburn to control the vegetation.

Colin Smyth

One of the bill’s key aims is to protect our peatlands by limiting burning on them, so the definition of peatland is clearly important. The definition in the bill states that “peatland” means

“land where the soil has a layer of peat with a thickness of more than 40 centimetres”,

and that “peat” means

“soil which has an organic content ... of more than 60%.”

The consequence of that definition is that extensive areas of shallow peat of a depth of less than 40cm will be treated as not being peatland, even though they are functionally part of a peatland and are often the most vulnerable areas.

The best option would be not to define peatlands on the basis of a specific depth, so I have some sympathy with amendment 169 and—dare I say it?—I agree with some of the observations from Edward Mountain, albeit not with his amendment 45.

Burning for the purpose of nature restoration, wildfire prevention and research would still be allowed under amendment 169, but the need for people to measure depth would be removed. That would be in line with the Scottish Government’s response to the grouse moor review group report of 26 November 2020. The response stated:

“There will ... be a statutory ban on burning on peatland, except under licence for strictly limited purposes”.

It is not clear to me why, in the bill, the Government has reneged on that approach and has proposed an artificial measure of 40cm of peat for the definition of peatland.

If we are to have a depth measure, there is, arguably, a case for a depth of 50cm, as set out in the muirburn code, not least given the available mapping. There are also arguments for the widespread calls for the measure to be reduced to 30cm, which would provide more protection and is in line with international recognition. There is almost universal opposition to—and there does not appear to be any scientific basis for—the arbitrary definition of 40cm, which is very much an international outlier and seems to be little more than a case of splitting the difference between 50cm and 30cm.

If the Government is determined to stick to its view that there needs to be a depth definition, my amendment 171 supports 30cm. A 30cm peat depth is the definition that is used in the peatland code and the UK peatland strategy, and Natural England will apply that to common standards monitoring.

It is also notable that Scottish Forestry has recognised the importance of limiting damaging practices on peat and is no longer accepting forestry grant scheme applications that include ploughing on soils where peat depth exceeds 10cm. Reducing the depth to 30cm, as proposed in my amendment 171, would have the effect of increasing the area of land that is treated as peatland under the bill and would therefore include some of the shallower peatland areas, which are important large carbon stores.

Although it would be better to treat areas of any depth as peatland, changing the definition to 30cm would be an improvement on the 40cm that is included in the bill, because the figure is at least widely recognised. Setting the level in the bill at 40cm is a backward step with no scientific basis, but reducing the depth to 30cm would improve the protection of peatlands at a time when we need to do everything that we can to protect and restore those important areas.

Rachael Hamilton

National survey data of peat at the 50cm depth threshold is currently available. It therefore follows that that definition should be retained to provide land managers with a degree of certainty about what constitutes peatland or non-peatland areas. Before passing regulations about heather and grass burning in England, the then secretary of state George Eustice ensured that peat survey data was available at the requisite threshold.

The provision of de minimis will help to safeguard against issues arising from variable peat depth in small areas by mandating that, to constitute peatland, peat must be of a 50cm depth in a single area of half a hectare or more.

I believe that amendment 169, in the name of Ariane Burgess, is completely unworkable and would unreasonably curtail muirburn activity by stealth. It would also have a Scotland-wide impact, which would rapidly increase fuel load and create a significant risk of wildfire.

On Colin Smyth’s amendment 171, I do not believe that peat depth or a below-ground metric should be used to regulate muirburn, which is an above-ground activity.

I favour the retention of a 50cm peat depth as the defining characteristic of peatland, because national survey data exists at that depth, providing greater certainty to end users. There is no scientific basis for moving to a 30cm depth.

Rhoda Grant

Amendment 172 is similar to previous amendments that I have lodged to try to bring a degree of scrutiny of subordinate legislation to the bill.

It is clear that knowledge of how muirburn affects peat and what different depths of peat mean for different management techniques will depend on the science, which is not clear at the moment. As is demonstrated by the array of amendments in front of us today, the minister cannot pretend that there will be consensus on that, even if the science becomes clearer. Therefore, the impact of any change in the depth of peat that is used in the definition must be properly scrutinised.

I fear that the minister is more interested in avoiding scrutiny than in saving parliamentary time. It is Parliament’s role to scrutinise the Government, on behalf of our constituents, so I hope that the minister will at least accept amendment 172.

Jim Fairlie

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.

Rachael Hamilton

A lot of us have been out to see muirburn. If the minister has seen muirburn, did he witness that peat was burned after the muirburn or whether sphagnum moss remained wet where it was a depth of 50cm, which is the current level used in the survey data?

Jim Fairlie

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.

Colin Smyth

I think that the minister has confirmed the concern that the 40cm definition seems to be a bit arbitrary. It almost seems to be a case of splitting the difference between peoples’ views.

However, the minister has indicated that the Scottish ministers can amend the definition by regulations and that they would have to consult NatureScot and others in doing so. Does he accept that the definition of peatland needs to be kept under review, given that there is a mechanism to change it, not least because of his earlier words about the growing impact of climate change?

Will he at least agree to meet those of us who have a different view on the issue to discuss what mechanisms are in place in Government to keep the definition under review? That would at least provide some assurance to the many stakeholders that the scientific evidence will be looked at regularly. It would be helpful to discuss that with the minister ahead of stage 3.

Jim Fairlie

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].

The Convener

The question is, that amendment 182 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 182 disagreed to.

The Convener

Amendment 169, in the name of Ariane Burgess, has already been debated with amendment 76. I remind members that, if amendment 169 is agreed to, I cannot call amendments 45, 171 or 170, due to pre-emption.

Amendment 169 not moved.

The Convener

Amendment 45, in the name of Edward Mountain, has already been debated with amendment 76. I remind members that amendments 45 and 171 are direct alternatives, so, if agreed to, the text of whichever is last agreed to will appear in the bill. I call Edward Mountain to move or not move amendment 45.

Edward Mountain

As we are sticking to a depth of 40cm in the definition, I will not move the amendment.

Amendment 45 not moved.

Amendment 171 not moved.

Amendment 170 moved—[Rachael Hamilton].

The Convener

The question is, that amendment 170 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)

Against

The Convener

The result of the division is: For 2, Against 7, Abstentions 0.

Amendment 170 disagreed to.

Amendment 77 moved—[Jim Fairlie]—and agreed to.

Amendment 105 moved—[Finlay Carson].

The Convener

The question is, that amendment 105 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 105 disagreed to.

Amendment 46 not moved.

Section 18, as amended, agreed to.

After section 18

Amendment 172 moved—[Rhoda Grant].

The Convener

The question is, that amendment 172 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Carson, Finlay (Galloway and West Dumfries) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Wishart, Beatrice (Shetland Islands) (LD)

Against

The Convener

The result of the division is: For 4, Against 5, Abstentions 0.

Amendment 172 disagreed to.

Section 19—Repeals and consequential amendments

Amendment 47 not moved.

Section 19 agreed to.

Sections 20 to 28 agreed to.

Long title agreed to.

The Convener

That ends stage 2 consideration of the bill.

Meeting closed at 21:17.

Air ais

Subordinate Legislation

Rural Affairs and Islands Committee [Draft]

Meeting date: Wednesday, February 21, 2024

Contents

Wildlife Management and Muirburn (Scotland) Bill: Stage 2