In January 2021, George Eustice, the Secretary of State for Environment, Food and Rural Affairs, announced that the Government would introduce new regulations to prevent the burning of heather and other types of vegetation on protected blanket bog habitats. These regulations—the Heather and Grass etc. Burning (England) Regulations 2021 (SI 2021/158)—were made on 15 February 2021 and laid before both Houses the following day.

The regulations are subject to the made negative procedure. This means they do not require approval before becoming law and can come into force at any date after being laid. However, either House can pass a motion within a specific objection period to stop the instrument from having an effect. Unless such a motion is agreed before the end of the objection period on 19 April 2021, the regulations come into force on 1 May 2021.

Peatlands and rotational burning

Peatlands have been identified as both an important store for carbon and a habitat for plant life and animals. In 2019, Natural England estimated that England’s peatlands stored around 580 million tonnes of carbon. It has argued the preservation of peatlands in England was important to combat climate change and to help achieve the Government’s aim to reach net-zero carbon emissions by 2050. Specifically, Natural England has identified “deep peat” sites as important areas of carbon storage. These are areas covered by a majority of peat which is over 40 centimetres deep.

Areas of peatland classified as “blanket bogs” have been identified as particularly important stores of carbon. Blanket bogs are areas that receive all their water from precipitation and typically form across a hilly landscape. They can be found in some upland areas in England, such as Dartmoor. The Government’s explanatory memorandum to the Heather and Grass etc. Burning (England) Regulations 2021 says blanket bog sites constituted 40 percent of England’s deep peat reserves.

Burning vegetation is used in land management, including the management of upland peatlands. This includes creating and maintaining habitats suitable for the supply of grouse for the grouse shooting industry. The Game and Wildlife Conservation Trust has argued rotational burning has several other benefits including supporting livestock grazing and increasing biodiversity.

The burning of heather, rough grass, gorse, bracken and vaccinium species (such as bilberries) on peatland is already restricted under the Heather and Grass etc. (Burning) Regulations 2007. Under these regulations, burning is only allowed during the burning season, which lasts from 1 October to 15 April in uplands and from 1 November to 31 March in other areas. Licences are issued by Natural England for certain types of burning, including burning outside the burning season and burning an area larger than 10 hectares.

The independent advisory body the Climate Change Committee has called for burning on peatland to be banned, arguing the practice leads to an increase in the UK’s carbon emissions. The Royal Society for the Protection of Birds has also called for an end to the practice. However, the Countryside Alliance has argued peatland burning is an important element of moorland management. It has argued the benefits include the prevention of wildfires.

What is the effect of the regulations?

The regulations establish new restrictions on the burning of heather, rough grass and other specified vegetation intended to protect blanket bog sites. The explanatory memorandum provides the following summary of the regulations:

This instrument bans the burning, without a licence, of specified vegetation on peat over 40 centimetres in depth in a site of special scientific interest that is also a special area of conservation (and/or a special protection area). The purpose is to prevent further damage by burning to approximately 142,000 hectares of protected blanket bog habitat. This instrument is not intended to regulate accidental fires of the type and nature caused by military training.

The sites referred to above are covered by the following legislation:

Under the new regulations, the licensing authority will be the Secretary of State for the Environment, Food and Rural Affairs. The Government has said in the explanatory memorandum that it will publish new guidance on the use of burning for the management of protected blanket bog sites. It said this guidance will “identify where and when burning may be appropriate and under what circumstances it may be licensed”. It also said this guidance would be published in “sufficient time” to enable applications to be made in advance of the new burning season on 1 October 2021.

In his January 2021 statement, Mr Eustice argued it was necessary to limit the use of burning on blanket bog sites. He said:

There is a consensus that burning of vegetation on blanket bog is damaging to peatland formation and habitat condition. It makes it more difficult or impossible to restore these habitats to their natural state and to restore their hydrology.

Restoring England’s peatlands is a priority for the Government. It will help achieve net zero carbon emissions by 2050 as well as protecting our valuable habitats, and the biodiversity those habitats support.

However, he also said that burning would still be allowed with a licence on blanket bog sites where other means of wildfire prevention were not practical. He said this would include steep land or land where scree made up half the land area.

What has the reaction to these regulations been?

Reacting to the announcement that new legislation would be introduced, the Moorland Association, which represents the owners of moorland managed for grouse shooting, voiced concerns about the impact of the new requirements. It said:

Heather burning is a vital tool for moor owners and managers who are heavily involved in peatland restoration and tackling climate change. They will be concerned over the impact new legislation and further restrictions may have on their important conservation work.

However, it also said it welcomed the recognition by the Government that burning was an appropriate tool for land management. It said landowners wanted to work constructively with the Government.

Wildlife and Countryside Link, a coalition of environmental and conservation organisations, has argued the regulations do not do enough to protect upland peat habitats from the impact of burning. It has argued the regulations would only protect 30 percent of England’s upland peatland.

Parliamentary scrutiny

The House of Lords Secondary Legislation Scrutiny Committee has drawn the instrument to the special attention of the House on the grounds of its political or legal importance and because it gave rise to issues of public policy that would be of interest to Members. The committee raised the following concerns:

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.

Baroness Jones of Whitchurch, the Shadow Spokesperson for Environment, Food and Rural Affairs in the House of Lords, has tabled the following regret motion which will be debated in the House of Lords on 18 March 2021:

[…] that this House regrets that the Heather and Grass etc. Burning (England) Regulations 2021 (SI 2021/158) do not provide a basis for significantly reducing the amount of peatland burning that occurs in England, in part because the restrictions extend only to certain areas of deep peat; notes that while there are appropriate uses of peat burning, the protection of peatland ecosystems should be prioritised to provide a haven for wildlife, the safe storage of carbon, and the prevention of natural catastrophes such as flooding and wildfires; and therefore calls on Her Majesty’s Government to reconsider its approach to restricting the burning of peatland ahead of the season’s commencement on 1 October.

This is a non-fatal motion, meaning that if the House passed it, this would not prevent the regulations from coming into force.

England Peat Strategy

In 2018, the then Government published its 25 Year Environment Plan. This included a commitment to restore vulnerable peatlands and end peat use in horticultural products by 2030. The then Government said it intended to publish an England Peat Strategy in late 2018. However, the England Peat Strategy has not yet been published. In December 2020, the Government said it expected that the England Peat Strategy would be published in early 2021.

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Cover image by Bryan Ledgard on Wikimedia.