71.Part 2 of the Act deals with the regulation of muirburn. “Muirburn” is a Scottish word for the intentional and controlled burning of moorland vegetation (heather or grassland) in order to encourage new growth. It is typically undertaken in order to produce a habitat conducive to livestock grazing and supporting populations of ground nesting game birds such as grouse. The practice of setting fire to moorland vegetation for this purpose is known as making muirburn, which is given its legal definition for the purposes of Part 2 in section 22.
72.In summary, the Part is arranged as follows:
Section 12 criminalises the making of muirburn unless it is done in accordance with a muirburn licence.
Sections 13 to 17 are about how licences are obtained, their contents and how, once granted, a licence can be suspended, revoked or modified.
A condition of every muirburn licence is that the person to whom it is granted must have regard to the Muirburn Code (see section 15(2)(a)). Section 18 deals with the making and revising of that Code.
A further condition of every muirburn licence is that notice has to be given to site owners and neighbours before muirburn is made (see section 15(2)(b)(iii)). Section 19 sets out the notice requirements.
A stipulation of every muirburn licence that allows muirburn to be made for the purpose of managing the habitats of moorland game or wildlife or improving the grazing potential of moorland for livestock is that it only allows muirburn to be made for those purposes during the muirburn season (see section 14(2)). Section 20 defines the muirburn season.
On their face, the preceding sections say that the Scottish Ministers will be the public body that deals with regulating muirburn by, amongst other things, granting muirburn licences and producing the Muirburn Code. Section 21 allows the Scottish Ministers to delegate some of their functions under Part 2 so that they can instead be carried out in practice by Scottish Natural Heritage.
Section 22 defines terms used elsewhere in Part 2.
The Act, once commenced, will largely replace the current legal regime for regulating the making of muirburn. That regime is set out in the Hill Farming Act 1946. Section 23 repeals (i.e. removes from the statute book) those provisions of the Hill Farming Act 1946 that Part 2 of the Act supersedes and modifies remaining provisions of that Act so that they interface correctly with Part 2.
73.Section 12 criminalises the making of muirburn where it is not done in accordance with the terms of a muirburn licence that has effect at the time. As the offence may also be committed by a person who causes or permits the making of muirburn, it applies not only to the person who starts the fires but also, for example, the estate manager who orders the making of muirburn.
74.A muirburn licence is a licence granted under section 14. A muirburn licence only has effect for the period it says it has effect (see section 15(1)(d)), and does not have effect within that period if and for so long as it has been suspended under section 16 (see subsection (5) of that section).
75.Section 12(5) sets the maximum penalty for committing the offence as 6 months’ imprisonment and a level 5 fine on the standard scale. A judge may choose to impose a lesser sentence depending on the circumstances of the case. The standard scale for fines is set out in section 225 of the Criminal Procedure (Scotland) Act 1995. At the time of the Bill’s introduction, level 5 on the standard scale was £5,000.
76.Section 12(1) provides that a reasonable excuse may be available to a person who has made muirburn in contravention of a muirburn licence. Examples of what may constitute a reasonable excuse are:
an employee who is ordered to make muirburn in contravention of a muirburn licence by an estate manager,
a person who has had to make a firebreak to prevent the spread of an active wildfire, and thus did not have the time to apply for a muirburn licence.
77.Section 12(3) clarifies a specific circumstance where an offence is not committed. This is where a person has a muirburn licence in relation to land, and the licence is for land that is not peatland. If the person makes muirburn in accordance with that licence and later find out that the land is peatland, the person has not committed an offence.
78.If an unlicensed person makes muirburn in connection with that person’s completion of a muirburn training course (see section 17), then section 12(4) provides that it is not an offence to do so.
79.Section 13 sets out the requirements for applying for a muirburn licence. An application that does not fulfil the requirements would not be valid and therefore could not provide a basis for granting a licence under section 14.
80.Amongst other things (such as evidence of having completed an approved training course or the payment of a fee), an application has to specify the purpose for which the applicant wishes to make muirburn, which must be one of the purposes listed in subsection (2). Subsection (2) sets out different lists of permissible purposes depending on whether or not the land in question is peatland (as defined in section 22). For example, preventing, or reducing the risk, of wildfires, which could include the managing of fuel loads that would otherwise cause wildfires.
81.Subsection (5) gives the Scottish Ministers a power to modify by regulations the lists of permissible purposes for which muirburn can be made. Regulations under that power would be subject to the affirmative procedure (which is defined in section 29 of the ILRA 2010). Before making regulations to modify the list of purposes the Scottish Ministers must consult Scottish Natural Heritage and such other persons as they consider likely to be interested in or affected by the licensing of muirburn.
82.Subsection (8) makes it a crime to knowingly or recklessly make a false statement about anything material in order to obtain a muirburn licence. The maximum penalty for anyone committing the offence is the same as for anyone committing the offence under section 9 (see paragraph 75 above).
83.Section 14 empowers the Scottish Ministers, on receiving an application that meets the requirements in section 13, to grant a muirburn licence. Subsection (1) sets out the considerations relevant to a decision on whether to grant a licence. Subsection (2) places restrictions on the granting of muirburn licences depending on whether it is within or outwith the muirburn season.
84.While section 14 says it is for the Scottish Ministers to grant licences, it is a function which they can delegate to Scottish Natural Heritage under section 21.
85.Section 15(1) sets out the basic information that every muirburn licence must contain.
86.Subsection (2) states the conditions attached to all muirburn licences, which are:
the person to whom the licence is issued must have regard to the Muirburn Code (see section 18),
a person intending to make muirburn must also have regard to the Muirburn Code, complete a training course approved under section 17 before making muirburn and must also comply with section 19 (which relates to notice requirements).
87.Subsection (3) allows the Scottish Ministers to attach further conditions to a muirburn licence. Subsection (4) provides an illustrative list of what further conditions might be attached. The list includes conditions about complying with certain provisions of the Muirburn Code, which would create a stronger requirement to abide by those provisions than the general condition attached to all licences to have regard to the Code.
88.Failure to comply with the conditions of a muirburn licence may be a criminal offence under section 12(1) if it results in muirburn being made otherwise than in accordance with the licence’s terms.
89.Section 13 allows the Scottish Ministers to modify, suspend and revoke muirburn licences. This is a function which they can delegate under section 21. For brevity, in the following explanation of section 16, “the licensing authority” is used to mean the Scottish Ministers or Scottish National Heritage if they have delegated the relevant functions.
90.The licensing authority can modify a muirburn licence at any time. But notice (in accordance with subsection (2) and (3)) has to be given before the modification can take effect, and the notice has to give reasons for the change.
91.The same notice requirements apply to decisions to revoke (i.e. withdraw) or suspend a person’s muirburn licence. In addition, section 16 restricts the circumstances in which the licensing authority can decide to revoke or suspend a licence.
92.Revoking a muirburn licence is only allowed if the licensing authority is satisfied that the licence holder, or another person involved in managing the land that the licence relates to, has committed an offence under Part 2. The licensing authority has only to be satisfied to the civil standard of proof, which is that it is more likely than not that one of those persons committed such an offence, and can therefore be satisfied of that even if the person in question is never found guilty in a criminal court (where the higher evidential standard of proof beyond reasonable doubt applies). Of course if a person were found guilty by a criminal court that would be a sensible basis for the licensing authority to be satisfied that the person committed the offence.
93.Suspending a muirburn licence is an alternative option for the licensing authority in the same circumstances as those in which it could revoke.
94.Section 16(5) states that a muirburn licence is of no effect while suspended. As mentioned in the explanation of section 12, this means that for the duration of the suspension it would be an offence under that section to cause or permit anything to be done for which a muirburn licence is required.
95.Subsection (6) of section 16 requires a court that convicts a person of an offence under Part 2 to notify the licensing authority of that fact. This is so the licensing authority can decide whether to suspend or revoke a muirburn licence in light of the conviction, and can take it into account in considering future licence applications.
96.Section 17 requires the Scottish Ministers (or if they delegate the function, Scottish Natural Heritage) to approve training courses. Before applying for a muirburn licence, a person is required to complete an approved training course and must provide evidence of having done so when applying for a muirburn licence. The section allows the relevant authority to make provision such as determining training requirements, accrediting courses and trainers and the minimum criteria for the successful completion of courses.
97.Section 18 requires the Scottish Ministers (or if they delegate the function, Scottish Natural Heritage) to prepare and publish a code of practice on making muirburn safely and appropriately and thereafter to review it on a 5 yearly cycle. The legal purpose of the Code is to act as a set of norms to which muirburn licence holders are required to have regard as a condition of their licence (see section 15(2)(a)). Moreover, when a new licence is applied for, the extent of the applicant’s past compliance with the code will fall to be considered in deciding whether it is appropriate to grant the new licence (see section 14(1)(a)).
98.It is a condition of every muirburn licence that a person intending to make muirburn must comply with this section (see section 15(2)(b)(iii)). This section sets out the detail about to whom, and how, notice is to be given.
99.The persons to whom notice are to be given are:
the owner of the proposed muirburn site
an occupier of any land situated within 1 kilometre of the proposed muirburn site (however, there is different provision (see subsection (3)) where there are 10 or more such occupiers and, instead of giving each owner individual notice, the person intending to make muirburn may instead notify those occupiers by placing a notice in a newspaper or by such other method as the Scottish Ministers may specify).
100.Notice has to be given at least 7 days before muirburn is made and contain information such as the proposed muirburn site and approximate extent of the proposed muirburn. Notice under this section may either be given in accordance with section 26 of the IRLA 2010 (which has to do with the service of documents), by leaving it at the address of the person being notified or, where the identity of the occupier is unknown, by affixing a notice (addressed generally to “Any occupiers of the land”) to a conspicuous object such as a gate.
101.A muirburn licence only allows muirburn to be made for certain purposes during the muirburn season. Section 20 defines the muirburn season.
102.It further empowers the Scottish Ministers to modify what constitutes the muirburn season by regulations if they consider it necessary or expedient to do so in for the reasons set out in section 20(3). Any regulations changing what constitutes the muirburn season will be subject to the affirmative procedure. The affirmative procedure is defined by section 29 of the ILRA 2010. Before making any regulations to change the muirburn season, Scottish Ministers must also consult Scottish Natural Heritage and such other persons as they consider likely to be interested in or affected by the making or muirburn which includes persons involved in managing the land on which muirburn is made.
103.Section 21 allows the Scottish Ministers to delegate, by written direction, several of the functions Part 2 confers on them to Scottish Natural Heritage. This includes functions in relation to muirburn licencing and the Muirburn Code.
104.Section 22 defines terms used elsewhere in Part 2.
105.It also empowers the Scottish Ministers to change the definition of “peat” and “
106.Section 23 modifies the Hill Farming Act 1946 in consequence of what the rest of Part 2 does.
107.The rest of Part 2 largely supersedes the Hill Farming Act’s regulation of muirburn. Accordingly, section 23 modifies that Act in the following ways:
Sections 23 to 23C are repealed. They banned making muirburn outwith its muirburn season except with a licence.
Section 24 is modified so that a tenant’s making of muirburn in contravention of the terms of a lease is made lawful only if, in addition to fulfilling the other conditions specified in that section, the muirburn is made in accordance with the new rules of Part 2.
Sections 25 and 26 are repealed. They were part of the legislative scheme criminalising the making of muirburn in certain circumstances, and criminalising a failure to give proper notice of an intention to do so, which is superseded by the new licensing regime of Part 2.
Section 26A, which sets out how notice is to be given, is modified to remove its references to notices under provisions that are being repealed. The whole section is not repealed though, because it will continue to govern the giving of notice for the purpose of section 24.
Section 27 is repealed because it set out the penalties for the offences in the repealed sections 25 and 26.
Section 27A, which deals with the application to the Crown of the muirburn provisions, is modified to remove the references to the sections that are being repealed.