Chamber and committees

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 people’s 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.

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.

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.

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

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?

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.

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.

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.

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.

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].