Clause 18.—(DISPOSAL OF FISH SEIZED UNDER THE ACT.) (Hansard, 13 February 1951)

§ Mr. N. Macpherson
While one may agree in general with what the Secretary of State said about fines, whether that should apply to forfeitures seems a different proposition. Fish are taken out of a river and may be sold and the proceeds become part of the forfeiture, and that goes entirely to the State. That seems to be stretching things too far. In so far as the river is an asset to the owner he has been deprived to that extent of that asset, and it is not only the poacher who is forfeiting but it is the landlord who is being mulcted because someone has poached his water. In common reason that seems a very odd proposition, and I hope that the Secretary of State will have something to say about it.

§ Mr. M. MacMillan
I would ask the Secretary of State to consider the suggestion of the hon. Member for Dumfries (Mr. N. Macpherson). It seems that if we are to recognise the law of private property at all, this is a case where a salmon virtually stolen from the landlord might well be returned to the person to whom it belongs.

Mr. McKie
I hope the Lord Advocate will be in a position to say something on this point. What has been said by the hon. Member for the Western Isles (Mr. M. MacMillan) emboldens me to say that the whole Committee is indebted to my hon. Friend for raising the point and we ought to congratulate him on his perspicacity. I hope the Lord Advocate will reply, because it seems that what is given with one hand is being taken away with the other. So far as I remember—I have not the advantage of the wording of the Clause before me—in certain circumstances there may be no possibility whatever of arresting the person who seizes the forfeited fish and sells it to the fishmonger. I ask the Lord Advocate why it has been necessary to include this at all, because the whole Clause is rendered somewhat unnecessary by the consequent proviso.

§ The Lord Advocate
I am rather surprised that the hon. Member for Dumfries (Mr. N. Macpherson) should question the validity of this Clause, because 272 whenever he finds it convenient he prays in aid the recommendations of the Maconochie Committee. This Clause is phrased in the exact terms of the recommendations of the Maconochie Committee, and I would invite the hon. Gentleman to read the report. It is very interesting.
The purpose of this is that when the fish is seized, it is desirable that it should not be retained, necessarily, until it is finally disposed of by order of the court. There are hygienic and sanitary reasons for that. Accordingly, power is given by this Clause for a person in whose possession the fish is, to sell it, if it is so desired. It may be of interest to the Committee to know that there is no property in the fish in the river. A person who takes a fish out of the river may be guilty of a statutory offence, but he is not guilty of stealing. Therefore it is not a question of taking something away from the owner of a particular part of the stream, because he has no legal title to it. While it is in the river it is a wild fish, but when it gets to the fishmonger's and is stolen, then it is no longer a wild fish and it is stealing.

§ Mr. Macpherson
What the Lord Advocate said is quite true, but he knows that he is not telling the House, as I think he should, that the right to take the fish out of the river is a property and that there is property possession in that.

§ The Lord Advocate
I did so. I said it was a statutory offence to take the fish out of the river. The hon. Member really should follow my argument. But I said there is no property possession while the fish is in the river; and accordingly we are following the recommendations of the Maconochie Committee in saying that when the fish, which is the subject of forfeiture, is in the possession of any person entitled under the Bill to seize the fish, it may be sold for the reasons I have explained.
The reason for the proviso which exercised the mind of the hon. Member for Galloway (Mr. McKie), is again merely following out the recommendations of the Maconochie Committee, thus: A person who is empowered under the major part of the Clause to sell the fish may, for some reason, not sell it; and it is to give him an assurance against any action being taken because he had not done so that the proviso has been included. This matter 273 was fully considered by the committee and I do not think it fair to say that we have not accepted the recommendations of the Maconochie Committee. We have accepted them by and large. What we have done is to put a new structure on to the Bill, which I consider improves the Bill. With that explanation, I hope the Committee will accept the Clause.

§ Mr. Boothby (Aberdeenshire, East)
Knowing a good deal about fish, I have come to one general conclusion, and that is that the sooner a fish—any fish—is sold the better for everybody concerned. Therefore I support the Government on this occasion.