Lorna McKay

The practice, however, is not without controversy. There are growing concerns around the environmental impact of burning our moorlands, particularly on wildlife diversity and carbon-storing peatland. As uncontrolled wildfires are on the rise, public attitudes toward controlled burning of moorland are also shifting and there have been increased calls from environmental and conservation groups to restrict or even outright abolish, this practice.

The Wildlife Management and Muirburn (Scotland) Bill 2023

Existing legislation gives powers to the government to set and alter burning seasons (the times of year that Muirburn is permitted) and grant licences for ‘out-of-season’ muirburn. NatureScot are responsible for the current off-season licensing scheme and have published the Muirburn Code which encourages, but does not enforce, safe and environmentally sustainable practices.

Many interest groups, such as the RSPB, believe the current scheme doesn’t go far enough and have been calling for much stricter regulation. Following an independent report into the impact of current moor management practices, a new bill has been proposed in the Scottish Parliament which, if passed in its current form, will overhaul the current regulatory scheme.

The Wildlife Management and Muirburn (Scotland) Bill 2023 seeks to put in place stricter regulation of muirburn practices with the stated intent of ensuring land management practices are carried out in a sustainable way - whilst safeguarding the ecological integrity of Scotland’s moorland habitats and protecting vulnerable species.

The key changes proposed in relation to Muirburn are:

• A new licensing scheme which will require anyone carrying out muirburning to have a licence to do so, regardless of the season;
• Extensive expansion of the limitations of burning on peat land; and
• New powers to modify the rules in the future, as further scientific evidence is developed.

It’s not yet clear what associated costs would come with obtaining and renewing a muirburn licence. There will undoubtedly be concerns from rural landowners, workers and tenants who depend on moorland as a vital source of income and will bear the financial and administrative burden of complying with any new scheme.

Good or Bad?

It would be easy to make a snap judgement on the proposal, whether it’s ‘common sense regulation to put a stop to outdated, ecologically damaging practices’ or ‘ignorant governmental overreach into long-held rural traditions.’

However, the issue is complex and there is no clear scientific consensus on the environmental impact of muirburn. Current evidence suggests it can have both positive and negative effects on carbon storage and release.

With climate change comes the increased risk of uncontrolled wildfires globally, and Scotland is no exception. While some research suggests that wildfires may well be caused by intentional muirburn gone out of control, there is also evidence that controlled burns can mitigate the risk of wildfire spread by reducing fuel load (ie. the amount of flammable dry vegetation which can catch fire) and creating regular fire breaks on moorland.

Scottish Land and Estates have firmly opposed the new legislation, stating that it was “totally incorrect to associate out of control wildfires with muirburn.” Many rural interest groups maintain that most large wildfires in Scotland are caused accidentally by members of the public and not by experienced land managers.

As further research emerges, muirburn will undoubtedly remain a polarising issue as traditional land management practices come into conflict with new attitudes towards environmental protection. We will be closely following the progress of the bill and the development of regulation in this area to provide relevant advice and guidance to our rural clients.

Lorna McKay and Hope McFadden are lawyers in Burness Paull’s rural business team