Clause 20.—(PROVISIONS AS TO RIVER TWEED.) (Hansard, 13 February 1951)

§ Mr. Pryde
I beg to move, in page 8, line 17, after "River Tweed," to insert: except within the County of Peeblesshire. Many people in Peebles wish to have the River Tweed taken out of the Bill altogether. Some have jumped to the conclusion that it would then come under English law, but it will be found that provision has been made in a later Amendment for taking care of the River Tweed. At present, from the point of view of the angler, fishing on the Tweed is absolutely intolerable. I have here a membership card of the County of Peebles Angling Improvement Association. I should like to quote from it to give hon. Members some idea of what conditions are like for anglers on the Tweed.
This ticket, or permit, allows a member … to fish for trout from Lyne railway bridge, down stream to the boundary with Selkirkshire on the north bank and to the march between Elibank and Ashiestiel on the south bank, with the following exceptions:

(1) The Peebles town water (both banks);

(2) The south bank within the Kings-meadows Policies, and the north bank opposite Kingsmeadows House, within the wood at the mouth of Soon Hope Burn;
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(3) Both banks from Kailzie Throat to Kailzie Pool;

(4) Both banks from the Cross Dyke on south bank near the head of the Nut Wood Pool to the head of the Girley Pool;

(5) Both banks from the west boundary of the policies of Traguair House to Innerleithen Bridge;

(6) Both banks within the fences at Walkerburn Cauld;

(7) The north bank between the Gate Hope Burn and Holylee Lodge;

(8) The south bank from Elibank railway bridge to the estate march with Ashiestiel

(9) The north bank opposite Thornielee House for a distance of half a mile.
All these positions are marked by notice boards: The holder of this ticket will have the privilege of fishing with single rod and line, on weekdays only, during the period mentioned hereon.

§ Lord Dunglass
On a point of order. With respect, I do not see that the conditions which the hon. Member has read out about association waters have anything to do with this Bill. They would be preserved whether the Bill was brought in or not.

§ The Temporary Chairman
I must admit that I was in some difficulty myself in understanding the quotation, and in deciding whether it is in order or not. Perhaps the hon. Gentleman will continue.

§ Mr. Pryde
I have not come to the point of the hook yet. These rules continue: He must not kill any trout under eight inches or any smolts or parr; No bait fishing during April and September; Club and competitive fishing prohibited; Any member found fishing on the Sabbath will be severely penalised; He must show this ticket to the bailiff, must fish with legal lures only and tell of others fishing illegally; He must not sell his fish, and must not be accompanied by a dog;

§ The Temporary Chairman
Before the hon. Gentleman proceeds, I think he will realise that his Amendment is to exempt the River Tweed within the county of Peeblesshire. Will he therefore explain, very soon, the relevance of what he is saying to the Amendment?

§ Mr. Pryde
Yes, Mr. Bowles. In the county of Peebles there are people who 279 feel that it is intolerable that they should have certain conditions imposed over the River Tweed—

§ The Temporary Chairman
Do I understand that the hon. Member desires that the harsh conditions on certain fishing for certain people should be removed? Is that right?

§ Mr. Pryde
That is right. The last rule is: The season commences on 1st April and terminates on 30th September. No night fishing, except during June and July and none from 1 a.m. to 4 a.m. I think this is an extreme case, so far as my knowledge of the conditions regarding angling in Scotland is concerned; they are found nowhere else. I therefore ask the Committee to take the River Tweed outwith the confines of the Bill.

§ Mr. T. Fraser
My hon. Friend the Member for Midlothian and Peebles (Mr. Pryde) ended his remarks by appealing to my right hon. Friend to take the River Tweed out of the Bill altogether, but his Amendment only proposes to take that part of the river which is in Peeblesshire out of the Bill. He will appreciate that there is no good reason for doing that. There are peculiarities about the River Tweed into which the Maconochie Committee made inquiry, and he will be aware that, in paragraph 54 of their Report, they made certain recommendations about the Tweed to which we are giving effect in part of the Clause which my hon. Friend proposes to amend.
There are no special circumstances in the county of Peebles which justify that part of the Tweed which is within the county of Peebles being taken out of the provisions of the Bill, and, indeed, the mere fact that the Maconochie Committee made this special inquiry into the position of the Tweed and made it the subject of special recommendations leads us to believe that there was a very good reason why we should not do that. I therefore hope that my hon. Friend will not press his Amendment.

§ Mr. Ross (Kilmarnock)
Will my hon. Friend tell us what would be the effect of accepting the Amendment?

§ Mr. Fraser
My hon. Friend wishes to amend Clause 20 (1) because the effect of a recommendation of the Maconochie Committee would be to apply to the 280 Tweed the provisions of the Salmon Fisheries (Scotland) Act, 1868, for the protection of smolts and fry during the whole year, instead of in April and May only, as at present. We are extending the protection to young fish for the whole of the year, instead of two months, as under the Act which is now being amended.

§ Mr. Pryde
The membership card of the Angling Association I have quoted also does that.

§ Lord Dunglass
I should like to say to the Secretary of State that we who govern the Tweed and look after its interests very much welcome Clause 20, because it will give us a much better chance of protecting the young stock and also the sporting fish which come up into the county of Peebles and which are particularly vulnerable in that area. These powers are very much welcomed by the Tweed Commissioners.

§ Mr. Pryde
A great Parliamentarian once said, "The bomber will always get through," and to the noble Lord I quote similar words, though slightly varied—"The poacher will always get through."

§ Mr. Thornton-Kemsley
As the Committee has been reminded, this Clause applies to the River Tweed the provisions of the Salmon Fisheries (Scotland) Act, 1868, and perhaps hon. Members will recollect that one of the provisions of Schedule G of that Act relates to the construction of dams and lades which I do not think will be of very great advantage to the River Tweed. The point lies in the last four words of the bylaws contained in Clause 7, which says that no dam shall be altered so as to create a greater obstruction to the free passage of fish "than at present exists." That is a reference to the year 1865.
It has been found, in practice, that the possibility of effective action against those who may seek the right to raise the height of dams has virtually been ruled out by the presence in this otherwise admirable Schedule of these four words which relate to 1865, because it is quite impossible for anyone to prove in what condition those dams were in that year.
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The Lord Advocate will recollect very well that certain litigation was undertaken by the District Fishery Board of the River South Esk which flows through part of my constituency. The Lord Advocate and the Secretary of State will know that in that case the Board incurred an expenditure of no less than £2,500 in an effort to get an obstruction removed. But they were unsuccessful upon appeal, because they were hampered by these four words. They found themselves quite unable to prove in what condition the dam had been in the year 1865. In giving his opinion in that case, the Lord President of the Court of Session said: It is convenient to take first the case on Bylaw 7 which the Sheriff Substitute "— in the inferior court— held to have been infringed. The bylaw enacts that no dam shall he so altered as to create a greater obstruction to the free passage of the fish than at present exists. The Lord President continued: The instruction thus promulgated in 1865 is to compare the obstruction created by the dam as altered with the obstruction created by the dam as it was in 1865. He went on: This is the only construction which gives the words their primary natural meaning and which accords with the general scheme and policy of the whole body of legislation, namely, to make the position in the years 1862, 1865 or 1868 the norm or standard. He went on to say: The counter view urged upon us was that each and every alteration must be viewed in isolation, and a comparison made between the dam as so altered and the dam as it was immediately before this alteration was made. In dealing with that view put forward in the case, the Lord President of the Court of Session concluded: The short answer to these counter views is that this is not what the bye-law says, and that, to achieve such results, it would require to be very differently expressed. If it be the case, as I readily believe, that a comparison with 1865 is yearly becoming more difficult, that is a reason for enacting a fresh bylaw or new legislation, but not for the court rewriting the bylaw at their own hand. That has been found to be a very great barrier to getting any improvement made to the river. Although I have not put down an Amendment to cover the point, I would suggest to the Secretary of State that between now and the Report stage he should consider the possibility of put- 282 ting down a very short new Clause, the effect of which would be to amend Bylaw 7 of Schedule G of the Act of 1865 by the deletion of the words "than at present exists."

§ Mr. T. Fraser
The hon. Gentleman has put us in a little difficulty because in this Clause we have a subsection providing for the application of Schedule G to waters to which it has not up to now applied. The whole burden of the hon. Gentleman's remarks has been to examine whether or not Schedule G should be continued. It may very well be that we ought to look sympathetically at the case he has just made, but it seems to me that if it were found possible to do anything at all to effect what he wishes, it would be by amending the 1865 Act under which the bylaw to which he takes exception was made. I most willingly undertake to have his case examined and to consider whether or not Schedule G ought to be continued in its present form.

§ Mr. Thornton-Kemsley
I am very much obliged to the hon. Gentleman.