Clause 16.—(PENALTIES.) (Hansard, 13 February 1951)

§ Mr. Niall Macpherson (Dumfries)
I beg to move, in page 7, line 11, to leave out from "exceeding," to "fifty," in line 13.
262 The purpose of this Amendment is twofold: first, to bring the Clause into line with the law in England, that is, Section 74 of the English Act of 1923: second, to bring it into line with the recommendation made by paragraph 64 of the Maconochie Report. There seems to be little justification for having a separate law applying to the two sides of the Border or, as in my own constituency, to two parts of the same constituency.
I need not say much about this Amendment except possibly to anticipate an argument that may be put forward by the Lord Advocate. The right hon. and learned Gentleman said during the Committee stage that he intended to set up, as it were, three tiers of punishments. This Amendment would not affect to any extent the three tiers except to make it possible, though not mandatory, to impose a higher penalty for a first offence. It will also clear up the wording of the Clause where it is not clear whether it is possible or not to impose imprisonment for the first offence. So far as indictment is concerned, the difference between the two penalties will, of course, remain —the penalties imposed for the graver offences of using noxious materials, explosives, and so forth.
I feel that it is a little fussy to have two separate penalties and to insist on this step in the three tiers. I hope, therefore, that the Lord Advocate will accept the Amendment, knowing full well that the courts will not impose an excessive penalty on the first offence unless there is a really good justification for it.

§ The Lord Advocate
The hon. Member for Dumfries (Mr. N. Macpherson) has already given in substance the answer to this Amendment. It is no use saying that we should bring this Clause into line with the English Act of 1923 because that Act had in it an omnibus section dealing with the penalties for offences against that Act. As I explained to the House on Second Reading, and to the Committee later, the entire structure of this Bill is different with regard to penalty, both from the English Bill and from the recommendations of the Maconochie Committee. There, again, the Committee suggested an omnibus penalty Clause, but we felt it was justifiable to differentiate between the various offences contained in the Bill and to have a graduated scale of punishment in rela- 263 tion to the offences, mounting as they became more serious. We have given effect to that in the structure of the Bill.
Having regard to that fact, we see no justification for altering the Clause, as is proposed in the Amendment. We are dealing only with a first offence and the maximum fine for that is £20. What are the offences which are attracted by this Clause? They are the offence of fishing for salmon or trout or freshwater fish otherwise than by the prescribed methods under Clause 2, the taking of dead salmon or trout, the obstructing of a water bailiff or some similar person in the exercise of his powers, and the failure to mark packages of salmon and trout.
These are the offences for which we are providing by this Clause. We think that a maximum fine of £20 for a first offence, if it is not serious, is reasonable. Otherwise, if we take the argument of the hon. Gentleman to its ultimate conclusion, we would always have an extraordinarily high limit in all penalty Clauses. We do not propose to do that. If it were a really serious offence against any of the Clauses to which I have referred, the case could be taken on indictment and thereby attract the heavier penalties envisaged further in the Clause. For these reasons we cannot accept the Amendment as being justifiable.

§ The Lord Advocate
I beg to move, in page 7, line 19, after "on," to insert "conviction on."
This is a drafting Amendment because the penalty imposed follows on conviction on indictment and not simply on indictment.

§ Lord Dunglass
I beg to move, in page 7, line 31, at the end, to insert: (4) The whole or such proportion as the Secretary of State may by order specify, of any fines or moneys recovered under this Act on the complaint of a district beard. or of any officer of or person authorised by a district board, shall (unless the court for some special reason otherwise order) be paid to the district board, to be applied by them for the purposes of their functions under this Act or any other Act. The Secretary of State is aware that under previous practice river boards have 264 collected the fines allocated as a result of prosecutions. Under the Bill the proposal is that these fines shall go to the Crown. The stream of thought of the Secretary of State has been so clear on this matter generally that I hope that no Treasury influence has crept in. I understand that under the general law damages awarded against any person do not go to the party aggrieved, but to the Crown—

§ The Lord Advocate
Not damages. fines.

§ Lord Dunglass
I beg pardon; yes, fines go to the Crown. I do not intend to press that we should keep the present procedure, but I suggest to the Secretary of State that as river boards have, in practice, been getting moneys from these fines, and that as, in face of rising prices, they find it extremely difficult to employ the number of bailiffs who should be employed to protect the river, the right hon. Gentleman should take it upon himself—or the appropriate authority should—to allocate such part of these fines to the river boards as might seem appropriate.

The Secretary of State for Scotland (Mr. McNeil)
I am grateful for the kindness of the noble Lord toward me throughout these debates, but I plead with him to realise that I cannot be expected to accept this highly unusual principle—I do not put it higher than that. I confess that I have personal prejudices against fines trickling back to some other institution than the Exchequer. I am, of course, aware of the difficulties of the district boards, but I put it to the noble Lord that they will have their task eased by the discharge of the Bill.
We have tried to make it easier to define offences and, consistent with just practice, to secure convictions. We are asking for powers to nominate officers, and I think that the protection which the district boards and those interested in certain fisheries have a right to expect, will be afforded. I think it would be unreasonable to ask, in addition, that we should depart from the normal processes of our courts and from the normal observance of principles by subventing fines to the boards. I hope that the noble Lord will not press the Amendment. I regret that, for the reasons I have given, I cannot accept it.

§ Mr. Gerald Williams (Tonbridge)
There are some very important factors involved in this matter. First, the Bill might not be necessary if we had plenty of water bailiffs to look after the rivers, and if encouragement was given to water bailiffs now it would mean that the Bill would be carried out to far greater advantage than otherwise. Even if the proposal contained in the Amendment is against the conscience of the Secretary of State, surely it would be much better, if he thinks of it, to prevent things happening rather than to have to fine people after offences are committed.
Under our proposal, when somebody is fined the money would be used for good purposes, and the appointment of more water bailiffs would prevent these things happening. This prevention would be far better than that fish should be killed instead of going up the river to breed. Such prevention would be a much better job on the part of the right hon. Gentleman than trying to cure the trouble when the damage has been done. Furthermore, our proposals would keep the water bailiffs up to the mark. It would give them a commission on their alertness, so to speak, and also an incentive. This is a thoroughly good suggestion, and I ask the right hon. Gentleman to look at it once more.

§ Mr. M. MacMillan
One of the things that worries me very much about the Amendment is that it would keep the bailiffs very much up to the mark and very much on the job. In fact, it might be putting a premium on all kinds of little abuses which it has not been too difficult to see in the minds of hon. Gentlemen opposite at various stages of the Bill. I do not want to see the principle of getting cheap law, which has been the purpose of so many of the Amendments from the other side of the Committee, extended any further. There is no doubt that that has been the motive behind quite a number of their Amendments, and it is only right that the Committee should not pander to that kind of wish on the part of hon. Members opposite or their representatives.
The acceptance of the Amendment would put a premium upon too much zeal being practised in order to collect fees and fines on behalf of a private organisation, already far too highly privileged, against all the laws of nature 266 and the natural laws of people asserting certain of their rights. Having already dealt with these in the case of the private poacher on Second Reading, I shall not go over them again now. It would, however, be a dangerous thing to allow the district boards to go out prosecuting, and then to collect their dues and to employ people on the proceeds of a number of cases—a sort of payment by results basis. It would be a thorough abuse of their function and is to be discouraged at all costs.

§ Mr. Thornton-Kemsley (Angus, North and Mearns)
I hope that the Secretary of State will not be adamant in his refusal to look favourably at the Amendment, which is thought to be very reasonable by all the district fishery boards in Scotland. After all, they have being doing this work for 80 years and no one has suggested that they have not done the job very satisfactorily.

§ Mr. Manuel (Central Ayrshire)
Except poachers.

§ Mr. Thornton-Kemsley
Exactly. We want to get as many local people as possible interested in keeping down the poachers.
The cost of providing water bailiffs is rising. It already means that proprietors of fishing rights have to pay something like 5, 10 or 20 per cent., and in some cases even in excess of 20 per cent., of the annual values of the fishings as their subvention to the district fishery board. Those costs are going up, and the Maconochie Committee recommended that the proposed inducement should be given to the district fishery boards, that they should be allowed to collect the increased fines which would follow from the adoption of their recommendations as a contribution towards the increased costs of the water bailiffs and their other heavy expenses.
When recommendations of that kind are made by an influential committee, and when the district fishery boards have been carrying out these functions to everybody's satisfaction—except, of course, that of the poacher, as the hon. Member for Ayrshire, Central (Mr. Manuel), said—for the last 80 years, there seems very scant reason for taking those powers from them.

§ Brigadier Thorp
When the Secretary of State made his remarks about my hon. Friend's Amendment I felt a little doubtful about it, but since the speech of the hon. Member for the Western Isles (Mr. M. MacMillan) I have no doubt about the Amendment being right. It seems to be generally the case that speeches from the benches opposite convince one that his own side is perfectly right.
The hon. Member said that the proposal would tend to make bailiffs too efficient. Surely, we want efficient bailiffs; we do not want to employ men who are not efficient. He also talked about compensation, but this, of course. is not a question of compensation to a bailiff, but of fines, which would go to the district boards, being used to employ more bailiffs to look after interests properly.
From their speeches, it is obvious that hon. Members opposite do not wholeheartedly support the Bill.

§ Mr. M. MacMillan
rose—

§ Brigadier Thorp
They are always hankering after what they call the "legitimate" poacher.

§ Mr. M. MacMillan
On a point of order. I have been misrepresented. The hon. and gallant Member is not at liberty to misrepresent what I said.

§ The Temporary Chairman (Mr. Bowles)
It is in order for the hon. Member for the Western Isles (Mr. M. MacMillan) to reply to the speech of the hon. and gallant Member if he wishes to do so.

§ Brigadier Thorp
Thank you, Mr. Bowles. Naturally, I was not inclined to give way, because the hon. Gentleman can always speak again if he catches your eye, which is not difficult when we are in Committee. Obviously, I touched the hon. Member on a sore spot and he does not like it. I feel strongly that this is a good Amendment, and I hope that the Secretary of State will consider it again.

§ Mr. Carmichael (Glasgow, Bridgeton)
I am extremely grateful to my right hon. Friend for resisting the Amendment. I am amazed that a hard-headed business man should at first not be interested in the Amendment but should be suddenly converted into recognising it as a very valuable addition to the Bill. The atti- 268 tude of the hon. and gallant Member for Berwick-upon-Tweed (Brigadier Thorp) reminds me of his attitude in connection with the Iron and Steel Bill, when he had the audacity to say that the shareholders were the nation. He is equally well-informed on the present Bill.

§ Brigadier Thorp
I have never spoken on steel and am not a business man, so I do not know whether the hon. Member is referring to me.

§ Mr. Carmichael
I agree that the hon. and gallant Member did not make a speech on the Iron and Steel Bill; he made one of his silly interjections. Had he been as quiet at that time as he was during the rest of the entire proceedings on the Bill, he would have given the impression that he had some knowledge of the subject.
Even the noble Lord, in moving the Amendment, admitted that he was not very enthusiastic about it. I have been accused of defending the poacher on one or two occasions and if that is an offence I plead guilty. Here, we are not dealing with the poacher but trying to frame a Bill in the conditions of the law as it stands, with certain people possessing land and water of which some of us would like to see them dispossessed. We have to deal with the facts as we find them. If we permitted this Amendment to be made it is quite possible that bailiffs would be working overtime. The idea that, because they are responsible for the arrest of people committing an offence, they should have the fines handed to them would lead to a very nice state of affairs. [Interruption.] Hon. Members opposite do not seem to be over-pleased with some of the things I am saying.
I think it would be a serious departure in the law—I am speaking as a layman—if the people responsible for arrest had, by some means or other, to have the fines transferred to the boards or authorities for whom they were working. I hope that whatever else is said the Secretary of State. will continue to resist this Amendment. I am reminded by my hon. Friends that, as the Bill stands, a person can be convicted on the evidence of one person without corroborative evidence. What kind of a mess would we be in in that case if the Amendment were adopted? I hope my right hon. Friend will oppose this to the last.

§ Mr. Hector Hughes (Aberdeen, North)
I, too, want to oppose the Amendment, which is a thoroughly vicious proposal. It is utterly wrong to give the private citizen a financial interest in securing convictions in public prosecutions. It is quite contrary to the whole spirit of our law. Last Friday a Bill was introduced from the other side of the House to abolish that infamous person, the common informer. This is an attempt, by a side wind to introduce a common informer in this sphere. It is utterly wrong and all the arguments adduced last Friday against the common informer are equally applicable to this Amendment.

§ Mr. Pryde (Midlothian and Peebles)
I hope and trust that the Secretary of State will not have anything to do with this Amendment. I wish to quote from a letter I have received from a Peebles constituent: The Tweed Commission and riparian owner crowd have never played the game with us. Private stretches everywhere; all the best water confiscated; trespassers will be prosecuted,' etc.; and with the approach of every new season another favourite cast lost, roped off by some so-and-so. The Amendment is saturated with class bias and I hope that the Government will give it short shrift.

§ Mr. M. MacMillan
I want to correct a point which the hon. and gallant Member for Berwick-upon-Tweed (Brigadier Thorp), obviously did not want me to correct. We do not desire inefficient bailiffs; we desire efficient bailiffs. But we like the people who enjoy the privileges to pay for them and I cannot see what objection the hon. and gallant Member can have to the board paying for their own bailiffs. I hope the hon. and gallant Member will be good enough to acknowledge that that is what I said.

Mr. McNeil
Nothing that has been said in this genial discussion causes me to alter my view. The hon. Member for Angus, North (Mr. Thornton-Kemsley), caused great confusion. The purpose of the fine is never related to the operation of apprehending the offender. It is an attempt to deter the offender and it would be an odd argument that these fines should be related to the people who had the job of apprehending. There are a great many avenues along which the principle he advocates might be extended. Are we to give a bonus to the guard in 270 the bank in terms of the fine imposed on a thief? Are we to be put in the extraordinary position that the district board and a water bailiff would rather see a man fined, although he has hundreds of convictions, than sent to prison?
I am very much aware of the functions which the district boards discharge. They have a right to recover the cost of their operations, but that should not take place by recovery of a fine. It should take place by the raising of rates or the raising of prices for the sale of fish. I think the noble Lord was diffident and very conscious of its qualifications in offering the Amendment. I hope he will stick to those qualifications and persuade his hon. Friends to support him because this is a principle which I personally find a bit repugnant and it is quite plain from the speeches of my hon. Friends that they uniformly feel in the same way.

§ Lord Dunglass
My diffidence almost disappeared in face of some of the speeches made by hon. Members opposite, but not quite. I think that possibly the Secretary of State is right and that we could not ask him to make this exception to the ordinary practice of the law. He will, I know, bear in mind that the river boards are finding it extremely difficult to employ bailiffs and to do the job as they should. Provided we have impressed that on his mind, we shall look forward to some future occasion when he can help us in that respect. I beg to ask leave to withdraw the Amendment.