Part 2: Muirburn
Muirburn is the intentional and controlled burning of moorland vegetation to encourage new growth (either heather or grassland) for the management of moorland game and wildlife or for improving the grazing potential of the moorland for livestock or deer. Muirburn is also used to maintain moorland landscapes and habitats, and to reduce the risk of damage to habitats from wildfires.
Muirburn is a complex issue, with research suggesting that muirburn has both beneficial and adverse effects. If it is undertaken without due consideration of all the possible consequences, it undoubtedly has the potential to have a serious negative impact on wildlife and the wider environment. However, it can also have a positive impact, creating beneficial habitats for certain species or helping reduce fuel loads and lower the risk of wildfires.
Peat is a brown deposit resembling soil, formed by the partial decomposition of vegetable matter in the wet acidic conditions of bogs and fens, and often cut out and dried for use as fuel and in gardening. It stores a significant amount of carbon and water as well as supporting a variety of important ecosystems.
Peatland restoration is a key part of the Scottish Government's goal of achieving a net-zero Scotland by 2045 as peat soils cover almost a quarter of Scotland, about 1.7 million hectares, storing some 1.6 billion tonnes of carbon – the equivalent of an estimated 140 years of Scotland's emissions. If we continuing to allow unregulated muirburn on peatland, the progress that has been made restoring Scotland's peatlands could be negated by damage caused by muirburn.
The principal legislation governing muirburn is the Hill Farming Act 1946. Further regulations are also in place for specific sites, including areas designated for their natural or cultural heritage, or to protect species and their nests. Muirburn is currently only permitted during the muirburn season which runs from the 1 October to 15 April (inclusive). However, this season can be extended to 30 April with the permission of the landowner.
In a small number of exceptional circumstances, NatureScot can grant a licence to undertake Muirburn outwith the Muirburn season.
This legislation is supplemented by the Muirburn Code. This is a non-statutory code which provides good practice guidance for burning and cutting of vegetation. Supplementary guidance covering some aspects of the Muirburn Code has also been published. As with the Muirburn Code this supplementary guidance is non-statutory.
The Muirburn Code advises against burning on peatland (unless as part of a habitat restoration plan) however, unless the peatland is part of a Site of Special Scientific Interest (SSSI) (in which case consent from NatureScot is required) there is currently no legal prohibition against burning on peatland in Scotland.
Definition of peatland
The Muirburn Code defines peat as "an organic soil, which contains more than 60 per cent of organic matter and exceeds 50 centimetres in thickness".
However, the Heather and Grass etc. Burning (England) Regulations 2001 which regulates muirburn in England uses a different definition:
"a person must not burn specified vegetation on a designated site on peat that is of a depth of more than 40 centimetres, except under (and in accordance with) a licence issued by the Secretary of State under regulation 4."
In our response to the Werritty report we committed to:
"…undertake a review of the current definition of peatland, taking expert advice on whether it should be revised and a stricter definition imposed."
NatureScot are currently undertaking a review of muirburn including the impact of muirburn on peat, we will take into account the outcome of that review when developing our proposals for the definition of peatland to be used in the Wildlife Management (Grouse) Bill.
To help inform this review we are seeking views on whether the current definition in the muirburn code should be amended to 40 cm in-line with definition used in England.
The Werritty report recognised the benefits of muirburn: that it provides nutritious shoots for grouse, livestock, deer and mountain hares, can increase biodiversity in dry heaths, and restrict colonisation by woodland. However, it also highlighted that there was strong evidence that muirburn can have a detrimental effect on biodiversity, hydrology, and soil stability.
The report goes on to say that the impact of muirburn can differ according to the type of moorland it is practiced on:
"The strongest, but still inconclusive evidence for a greater likelihood of long-term detrimental impacts comes from blanket bog/wet heath areas, and it has been widely assumed that regular muirburn is detrimental to peat-forming plant species."
It also considered the effects of muirburn on carbon storage:
"Muirburn can have both positive and negative effects on carbon storage, both directly, by affecting carbon contents of soil and vegetation, and indirectly, by affecting carbon storage potential through the changes in plant community composition after fire. There is often an assumed net loss of carbon under regular muirburn, but the evidence is not conclusive…"
The report concluded that muirburn should be subject to greater regulation and oversight.
Muirburn was also considered by The Deer Working Group who in their report on the Management of Wild Deer in Scotland concluded that:
"...there is no public interest justification for continuing to allow a general right of land owners and occupiers to carry out muirburn for deer. The environmental costs of these fires in upland environments is at odds with the Scottish Government's healthy ecosystem approach and its measures to mitigate climate change."
They went on to recommend that the "Hill Farm Act 1946 should be amended to make it an offence to carry out muirburn for wild deer without a licence from SNH [NatureScot]."
In their report 'Land use: Polices for a Net Zero UK' the Committee for Climate Change recommended that there should be a ban on burning on peatlands:
"Ban rotational burning in the UK in 2020. This includes burning for grouse shooting. This practice was traditionally undertaken on mineral soils but over-time it has encroached onto peat soils. Burning heather promotes young shoots, which grouse feed on, but it is highly damaging to the peat, and to the range of environmental benefits that well-functioning peat can deliver (e.g. water quality, biodiversity and carbon sequestration). A voluntary cessation of this activity by landowners has not produced the desired outcome so the practice should be banned across the UK with immediate effect. The adoption of more sustainable practices to manage the vegetation (e.g. heather cutting) would still allow grouse shooting to continue on peat soils, while the burning of heather could continue on mineral soils."
Scottish Government Proposals
The Scottish Government intends to implement the recommendations of the Werritty report which stated:
- "That muirburn should be unlawful unless carried out under a licence.
- That muirburn should be subject to increased legal regulation
- This should apply to all muirburn, not only on grouse moors."
We are also proposing a statutory ban on muirburn on peatland (currently defined as peat of a depth of 40cm or more) unless it is part of an approved habitat restoration programme, to protect public safety (e.g. reduce the risk of wildlife) or for the purpose of research.
We propose that the approach outlined above is consistent with precautionary principle in this matter. However, recognising that the scientific evidence on the impacts of muirburn is currently contested and that the management of peatland is a highly important aspect of Scotland's net-zero target, we propose that the Bill should contain powers to modify the regulation of muirburn in the future, as the scientific evidence base develops.
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