Forty Eighth Report Contents

Forty Eighth Report

Instruments drawn to the special attention of the House

Heather and Grass etc. Burning (England) Regulations 2021 (SI 2021/158)

Date laid: 16 February 2021

Parliamentary procedure: negative

This instrument bans the burning, without a licence, of heather and other vegetation on protected blanket bog habitats. The instrument also specifies when the Secretary of State, as the licensing authority, may grant a licence for burning, for example when this is considered necessary to reduce the risk of wildfire. A submission we have received from Wildlife and Countryside Link criticises that the ban is limited in scope and raises concerns about the licensing regime, in particular that key aspects of the decision-making process are to be provided in future guidance, and about the wider context of the UK hosting the global climate conference (COP 26) later this year.

We are concerned that as key aspects of the Secretary of State’s decision-making in relation to licences will be set out in guidance there is limited time available for the Department to consult on the new guidance before licensing applications can be made ahead of the start of the burning season on 1 October.

We also take the view that the Department should have been clearer about the size of the areas of peatland that will be affected by the ban on unlicensed burning, as the different metrics and reference points used in the Explanatory Memorandum are a source of confusion. Given the environmental significance of England’s peatlands, and that the Department regards the instrument as a “crucial step in delivering the aims of the England Peat Strategy and to meet nature recovery and climate change mitigation and adaptation targets”, the House may wish to examine these issues further.

The instrument is drawn to the special attention of the House on the ground that it is politically or legally important and gives rise to issues of public policy likely to be of interest to the House.

1.This instrument has been laid by the Department for Environment, Food and Rural Affairs (Defra) with an Explanatory Memorandum (EM). The instrument bans the burning, without a licence, of heather and other vegetation on protected blanket bog habitats.1 The instrument also specifies the grounds on which the Secretary of State, as the licensing authority, may grant a licence for burning, for example where this is considered necessary to reduce the risk of wildfire.

Background

2.Defra explains that England’s peatlands are the nation’s largest carbon store, as well as a haven for rare wildlife, an important part of the cultural heritage and natural providers of water regulation. While the UK’s blanket bog is also of global importance, accounting for 13% of the world’s blanket bog, only around 12% of peatlands are in a near natural state, with the remainder having been degraded by practices such as rotational burning. According to Defra, rotational burning is used as a land management tool on moorland and blanket bog and involves controlled burning on patches of heather during winter months, typically on an eight to 12-year rotation.2 The practice is used to support grouse shooting, as burning of heather promotes young shoots, which grouse feed on.3 Defra says that there is a consensus that burning on blanket bog is environmentally damaging, making it more difficult to restore these habitats to their natural state and to restore their hydrology.

3.The Department says that rather than absorbing and storing carbon, degraded peatland currently releases approximately 11 million tonnes of carbon dioxide equivalents annually, equivalent to 24% of the emissions reported for the UK’s agriculture sector in 2017. As peatland restoration will contribute to the Government’s targets on nature recovery and help to achieve net zero carbon emissions by 2050, the Government have committed to restore 35,000 hectares of peatlands by 2025, and to publish England’s first comprehensive Peat Strategy later this year.4

Changes made by this instrument

4.This instrument bans the burning, without a licence, of specified vegetation, such as heather, rough grass, bracken or gorse on peat over 40 centimetres in depth in a protected blanket bog habitat. This is defined as a Site of Special Scientific Interest (SSSI) that is also a Special Area of Conservation (SAC) and/or a Special Protection Area (SPA). The instrument also sets out the grounds on which the Secretary of State, as the licensing authority, may grant a licence for burning. This may be, for example, where it is considered necessary or expedient to reduce the risk of wildfire or for conservation purposes, or where the land is too steep or rocky to use machinery.5 According to Defra, the instrument does not make provision for the regulation of accidental fires, such as those caused by military training.

5.Defra says that new guidance will specify where and when burning may be appropriate and under what circumstances it may be licensed. The guidance will also set out the licence application process and the evidence applicants will need to provide if seeking to burn on protected deep peat. The guidance will build on the Heather and Grass Burning Code 20076 and on Natural England’s position statement on burning as a tool for restoration.7 Defra says that the guidance will be published in sufficient time to enable applications for licences to be made before this year’s burning season starts on 1 October.

6.According to Defra, around a third of protected blanket bog currently has consent for rotational burning and previous voluntary measures to cease burning have not worked, primarily because of the reluctance of landowners to adopt more sustainable practices. Defra says that this instrument will protect around 142,000 hectares of deep peat, equivalent to 90% of the SSSI designated blanket bog habitat and 40% of the upland deep peat, and that the measures are a “crucial step in delivering the aims of the England Peat Strategy and to meet nature recovery and climate change mitigation and adaptation targets”.

Submission by Wildlife and Countryside Link

7.We have received a submission from Wildlife and Countryside Link (WCL)8 which criticises that the ban is limited in scope and raises concerns about the licensing regime and the wider context of the UK hosting the global climate conference (COP 26) later this year. We are publishing WCL’s submission and Defra’s response in full on our website.9

Scope of the ban

8.WCL says that only 109,043 hectares of English upland peat meet the specifications of the ban, out of a total of 355,000 hectares, so that “the maximum application of the ban would see it protect approximately 30.7% of English upland peat”, while “At least 69.3% of upland peat is excluded from the ban as it is outside the specification for a designated site”, adding that “changing the specification for designation to a site being in an SSSI or a SAC or SPA would widen the proportion of upland peatland protected by the ban.”

9.We put this concern to the Department, which responded that:

“It is correct to point out that the proposed regulations will only apply to [SSSI] that are also [SAC] or [SPA]. It is, however, important to recognise the current regulatory landscape. As it currently stands, a third of protected blanket bog have consents for rotational burning, having been granted these consents when the scientific consensus on the effects of burning was less known. This land is held by 124 landowners/land managers whilst the remainder is managed by other methods. Since 2017, the Government has worked with landowners and land managers to promote alternative management practices to burning, and to achieve a voluntary cessation of rotational burning on protected blanket bog sites. At the time of writing, 47% of consents to burn have been removed and approximately half of the remaining consents are in perpetuity. The Government has previously stated that if voluntary measures to cease burning on blanket bog did not work it would put in place legislation to achieve this. These Regulations are the result.

The regulations directly address the issue of burning of vegetation where a valid consent is held but, importantly, does not seek to replace or supplant existing regulatory measures designed to prevent damaging land management practices. It instead seeks to regulate the most damaging practices on our most protected sites.”

10.We note the additional explanation about the scope of the ban but take the view that the Department should have been clearer about the actual size of the areas covered by the ban and the peatlands currently subject to rotational burning as well as those areas where consent to burn has already been removed: the mix of percentages, hectares and other metrics and the use of different reference points, such as “protected blanket bog habitat”, “peatlands” or “upland deep peat”, are a source of confusion and make it difficult to assess the extent and impact of the ban on unlicensed rotational burning.

Licensing regime and guidance

11.WCL criticises that while the instrument gives the Secretary of State the power to grant a licence to permit burning in a designated site on a number of specified grounds, the instrument does not contain an evidence threshold which licences made on these grounds will have to meet, and that “even in the 30% of upland peat habits covered, the protection offered can be revoked by a licence”. WCL says that because there is no specified standard of evidence that an application for such a licence must meet to be successful, this “constitutes an incomplete and imperfect protection for upland peat”. WCL adds that “requirements to meet a tight definition of inaccessibility, to provide evidenced support from the local fire authority for wildfire prevention burning, and to provide evidenced support from Natural England for conservation burning, would provide a standard of evidence for burning licence applications to meet.”

12.Defra responded that in addition to the circumstances where the Secretary of State will have the power to grant a licence, “there is also the power of the Secretary of State to refuse to grant a licence or to issue a licence with conditions”, and that it is:

“worthwhile noting that in making any such decision, the Secretary of State will be obliged to receive and consider the advice of Natural England and consider the requirements of the Conservation of Habitats and Species Regulations 2017. Whilst the Secretary of State must consider the advice of Natural England, he may also seek the advice of other stakeholders and interested parties, including the local Fire and Rescue Service, for example.”

13.The Department added that:

“much of the detail of how this regulation will be administrated will be set out in new guidance. […] We consider that this guidance is the proper place to detail the evidence that is required upon which the Secretary of State may grant a licence; including such detail within the regulations would restrict our ability to respond with agility to changes in the scientific and environmental consensus. We have always planned to seek the views of stakeholders such as those represented by [WCL], to ensure that the guidance that is developed supports and encourages sustainable land management practices that reflect our ambitions to restore and protect our peatlands. We will also be engaging with the Chief Fire Officers Association to ensure that their expertise is available to the Secretary of State when they come to make their determinations under the regulations.”

14.We have previously criticised a blurring of the distinction between guidance and legislation and have raised this with the Leader of the House of Commons10 who told us that “as a general principle, legislation needs to be detailed and clear enough that guidance does not need to be relied upon for the purposes of interpretation”. We acknowledge that the licensing of rotational burning on protected blanket bog is site specific and involves complex assessments, but the House may wish to press the Minister further about Defra’s explanation that including detail in relation to the evidence that will be required for the Secretary of State to grant a licence for burning in the instrument would have restricted the Department’s ability to respond quickly to changes in the scientific and environmental consensus. This raises questions about the extent of the Secretary of State’s discretion in the decision-making process, in the absence of the guidance which is yet to be published and which the Committee was therefore unable to scrutinise. We also draw to the attention of the House our concern that the timetable appears to be very tight: the Department intends to consult with key stakeholders on the new guidance which needs to be in place before licensing applications can be made ahead of the start of the burning season on 1 October.

COP 26

15.WCL says that while COP 26 will see the Government champion nature-based solutions to climate change, this advocacy “will be undermined if it takes places against a backdrop of burning on our peatland habitat.”

16.The Department responded that:

“We have always been clear of the need to phase out rotational burning of protected blanket bog to conserve these vulnerable habitats. […] These regulations represent a crucial step in meeting the Government’s nature and climate change mitigation and adaptation targets, including the legally binding commitment to reach net zero carbon emissions by 2050.

In developing these regulations, the Government has sought to recognise that burning, in strictly limited circumstances, can represent an effective and legitimate approach when used as part of a cohesive restoration or wildfire management plan. Indeed, the need to protect our peatlands from the threat of wildfire is greater than ever and action to address the threat, both short term removal of fuel load and longer-term restoration of these sites, has required greater consideration. The licensing regime represents a means of ensuring that burning only take place in the right place, at the right time and for the right reasons. […]

The proposed regulation will bring an estimated 62% of the blanket bog habitat in England under regulatory protection from burning; it will do this by making both a consent from Natural England and the requirement for a licence from the Secretary of State a legal requirement, whilst addressing the issue of consents held in perpetuity by landowners.”

17.Defra concludes that:

“The new regulations represent a significant step forward in protecting peat and we recognise that efforts to restore and protect peat extends beyond this specific regulation. All peat is important, and we are committed to the sustainable management of England’s peatlands. The Chancellor announced in March 2020 that as part of the Nature for Climate Fund, 35,000 [hectares] of peatland restoration would be achieved over the next 5 years. We have also commenced a project to map England’s peatlands so that we can better understand where our restoration efforts can be best deployed and, critically, can most effectively focus our protection measures. These actions represent significant steps forward in our restoration and protection efforts and will require us to continue to work closely with a wide range of stakeholders.

The Government will be setting out further measures to restore, protect and manage England’s peatlands this year as part of a package of measures to protect England’s landscapes and nature-based solutions.”

Conclusion

18.The submission we have received from WCL raises a number of concerns about the Government’s approach to the protection of England’s peatlands, including about the limited scope of the ban on rotational burning and the licensing regime, in particular that key aspects of the Secretary of State’s decision making on licences will be set out in guidance rather than in this instrument. We draw to the attention of the House this matter and also that concerning the limited time available for the Department to consult on the new guidance before licensing applications can be made ahead of the start of the burning season on 1 October. The House may wish to examine these matters further.

19.We also take the view that the Department should have been clearer about the size of the areas of peatland that will be affected by the ban on unlicensed burning, as the different metrics and reference points used in the Explanatory Memorandum are a source of confusion. Given the environmental significance of England’s peatlands, and that the Department regards this instrument as “a crucial step in delivering the aims of the England Peat Strategy and to meet nature recovery and climate change mitigation and adaptation targets”, the House may wish to examine these issues further as well.

20.The instrument is drawn to the special attention of the House on the ground that it is politically or legally important and gives rise to issues of public policy likely to be of interest to the House.


1 Blanket bog is mostly an upland habitat where peat has accumulated.

2 Defra, Press Release, England’s ‘national rainforests’ to be protected by new rules, 29 January 2021: https://www.gov.uk/government/news/englands-national-rainforests-to-be-protected-by-new-rules.[accessed 25 February 2021].

3 See the Committee on Climate Change, Land use: Policies for a Net Zero UK, (January 2020): https://www.theccc.org.uk/publication/land-use-policies-for-a-net-zero-uk/ [accessed 25 February 2021].

4 While peat used in horticulture is not subject of this instrument and is extracted from areas which are not covered by these Regulations, we note that the Department intends to address the horticultural use of peat separately. Defra says that while there has been some progress, voluntary targets to phase out the horticultural use of peat in the amateur sector by 2020 and the professional sector by 2030 have not succeeded: The total volume of peat sold in the UK was 25% lower in 2019 than in 2011. The Department therefore intends to consult later this year on further measures to end the horticultural use of peat.

5 The specified grounds are (a) for the conservation, enhancement or management of the natural environment for the benefit of present and future generations; (b) for the safety of any person; (c) to reduce the risk of wildfire; or (d) because the specified vegetation is inaccessible to mechanical cutting equipment and any other method of management is impracticable.

6 See: Defra and Natural England, The Heather and Grass Burning Code, 2007 Version: http://gfmc.online/programmes/natcon/UK-DEFRA--Heather-Grass-Burning-Code-2007.pdf [accessed 25 February 2021].

7 Natural England, Burning as a tool for the restoration of upland blanket bog: Position Statement from Natural England (UPS01), 4 November 2020 : http://publications.naturalengland.org.uk/publication/6647144950005760 [accessed 25 February 2021].

8 WCL brings together 57 organisations, including Client Earth, Friends of the Earth, the RSPCA, Greenpeace, the National Trust, the WWF and the RSPB.

10 Letter from the Rt Hon. Jacob Rees-Mogg MP, 14 February 2021, regarding guidance and legislation: https://committees.parliament.uk/publications/4929/documents/49319/default/.




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