Second Schedule.—(ENACTMENTS REPEALED.) (Hansard, 22 February 1951)

§ The Lord Advocate
I beg to move, in page 12, line 10, column 3, to leave out "Section thirty-three," and to insert, "The whole Act."
This Amendment would repeal the whole of the Annan Fisheries Act of 1841 and not merely Section 33. Section 33 of that Act, which deals with poaching, is superseded by the provisions of the present Bill. It is the only Section of that Act which has been invoked for many years. The remaining Sections have been redundant over that period. In these circumstances, we feel justified in repealing the whole Act and not merely Section 23.

§ The Lord Advocate
I beg to move, in page 12, line 16, column 3. after "thirty-nine," to insert "fifty."
The result of this Amendment will be to repeal Section 50 of the Tweed Fisheries Act, 1857, which made it an offence for any person not entitled to fish for salmon in the Tweed to have in his possession within five miles of the river any net or engine for the purpose of taking salmon, except for the purpose of manufacturing or repairing the same. However, in view of the terms of Clause 7, it will be unecessary to retain this provision, because Clause 7, which deals with illegal possession, is sufficiently wide to cover the provisions of Section 50 of the Act of 1857. Accordingly, we now seek to repeal Section 50.

§ Lord Dunglass (Lanark)
The Lord Advocate has said what I hoped that he would say, and his remarks might be taken as guidance in future cases brought under this Bill. In the area of the Tweed we have made considerable use of Section 50 of the Act of 1857. We were anxious that the powers which we have had should not be diminished in any way. Poachers on the Tweed show great ingenuity in the construction of nets; and the fact of having certain nets in their possession has meant that we have had, practically speaking, automatic convic- 1485 tions. If the Lord Advocate is certain that Clause 7 really does not diminish in any way the powers which we exercised under Section 50 of the Act of 1857, we are agreeable to this change.

§ The Lord Advocate
Under Clause 7 of this Bill it will be a matter for the court to determine for what purposes an accused person was deemed to have possession of the nets or other instruments. That is only fair. It would be wrong to have a system whereby a person was automatically convicted because he had certain instruments or gear in his possession. It is clearly laid down in Clause 7 (2) that it will be for the court to determine whether it is a reasonable inference that a person in whose possession the instruments or gear are found had them for the purpose of contravening one of the Clauses of this Bill. I think that, substantially, it has the same effect as Section 50 of the old Act.

§ The Lord Advocate
I beg to move, in page 12, line 18, column 3, after "sixty-three," to insert, "sixty-four."
The effect of this Amendment will be to repeal Section 64 of the Tweed Fisheries Act, 1857, as well as Section 63. Section 64 made it an offence for any person to have in his possession within five miles of the river any leister spear, or similar engine, used for the killing of salmon. Here again, we are satisfied that Clause 7 of this Bill covers that position and there is no need to keep this Section in existence any longer.

§ The Lord Advocate
I beg to move, in page 12, line 26, column 3, at the end, to insert:

22 & 23 Vict. c. lXX The Tweed Fisheries Amendment Act, 1859 Section seven, fourteen and fifteen.

The Committee will recollect that Clause 13 prescribes the weekly close time for Scotland and the whole of the River Tweed. Section 7 of the Tweed Fisheries Amendment Act, 1859, which prescribes the weekly close time in the Tweed, will accordingly require to be repealed. Section 14 of the Act of 1859 which prohibits the use of pout net or rake hooks is already covered by Clause 2 of this Bill 1486 and should be repealed. Section 15 of the 1859 Act which made fishing for salmon without permission—that is the rather polite way of referring to poaching—an offence in the Tweed, is unnecessary in view of the general provisions of this Bill.

§ Lord Dunglass
Was not it a fact that Section 15 made provision for the seizure and forfeiture of rod and line in certain cases, at any rate for the purpose of evidence to be brought before the court? In the Scottish courts, this may be all right. But the English courts, which cover part of the Tweed, have a habit of asking for this evidence. Is that position covered? Is there any provision in the Bill that seizure is allowed in order to produce evidence before the court?

§ The Lord Advocate
We have already discussed this question very fully indeed in relation to various Clauses in the Bill. I do not think I should detain the Committee by repeating the arguments. I am pleased to say that in the past few years we have been improving the legal education of the English by getting them to adopt many of our Scottish practices and customs. I am glad that my right hon. and learned Friend the Solicitor-General is here, so that if he were not aware of the fact in the past, he is aware of it now. No doubt that education will continue in England. We discussed this matter at great length when we were considering the forfeiture Clauses. We discussed the reason why, under Clause 1, it was not necessary to attract forfeiture, apart from the fish, whereas under the other Clauses, general forfeiture would be possible.

§ Lord Dunglass
I am not sure that the Lord Advocate appreciates my argument. In the English Courts where perfectly plain cases have been brought, there has been a demand for factual evidence and the production of nets or whatever it may be. We have been able to do this under this section of the old Act, and we do not want to give it up now. We should be inclined to resist the repeal of this section unless we could be satisfied that that procedure will not be necessary in future. Otherwise, we shall lose a great many perfectly good cases in the English courts.

§ The Lord Advocate
I have been trying to resist the temptation to discuss the 1487 merits of this matter. When we discussed this question earlier, I pointed out that the right of forfeiture under this Bill extended to every type of offence, except an offence under Clause 1 when the forfeiture powers were restricted to the fish in question. If we were dealing with nets and articles of that nature, that would constitute an offence not under Clause 1 but under Clause 2. Clause 2 attracts the general forfeiture provisions. Accordingly, it would be possible to seize these various instruments if an offence against Clause 2 took place—in other words, it would not be a case of fishing without permission but a case of fishing by illegal methods. According to the statement of the noble Lord the type of case he had in mind was that of fishing by illegal methods where nets and cleats and other instruments were used. He need have no fear, because we have retained the power of forfeiture and seizure in relation to cases of that type.

§ Lord Dunglass
I thank the right hon. and learned Gentleman. The matter is now perfectly clear, and we are quite satisfied.

§ The Lord Advocate
I beg to move. in page 12, column 3. to leave out lines 31 to 36, and to insert: seven so far as it relates to the weekly close time, and section. In view of the new Clause 13, Section 7 of the Salmon Fisheries (Scotland) Act, 1862, should be repealed, so far as it refers to the weekly close time. Hence this Amendment.

§ The Lord Advocate
I beg to move, in page 12, column 3, to leave out lines 31 to 36, and to insert: Section seventeen. In section eighteen the words from the beginning of that section to the word 'fishing.' Section twenty-five. Section twenty-eight. Section 17, Section 25 and part of Section 28 of the Salmon Fisheries (Scotland) Act, 1868, are already mentioned in this Schedule, but the Amendment adds the words in Section 18 prohibiting the use of salmon roe for fishing. This will be no longer necessary after the passing of this Bill, owing to the Amendment 1488 to the definition of the expression "rod and line" in Clause 22 with which the Committee are now fully familiar. This Amendment also repeals Section 28, and the effect of that is to withdraw the rights of members and officers, if any, of the district board, other than the water bailiffs, to exercise the powers set out in Clause 10, regarding which we had a very full discussion and on which the Committee came to a decision. I do not think I should weary the Committee with the reasons why we restricted these powers to the persons mentioned in Clause 10, but this Amendment is really consequential on the decision we reached on Clause 10.

Mr. McKie (Galloway)
Before this Schedule is agreed to, may I ask the Lord Advocate one question relating to it in connection with the proposed first repeal in the Schedule referring to the Solway Act, 1804, so far as it refers to salmon? Perhaps the right hon. and learned Gentleman will be good enough to give a word or two of explanation on why it was necessary to include this repeal in the Bill.
May I also express the hope that, if we do agree to this repeal—and no doubt we shall—it will not in any way prejudice the rights or interests of those who engage in the Solway salmon fishing industry, in regard to the one witness? I declare a personal as well as a constituency interest in this matter. The Lord Advocate will remember that, when we were discussing Clause 9, I asked him to clear up the position of the Solway salmon fishers in regard to the provisions concerning the one witness, as at present contained in the Bill.
I am well aware that the Lord Advocate was in trouble with many of his hon. Friends behind him with regard to the whole matter when the Clause was under discussion previously, and he agreed to give further consideration to the point if his hon. Friends would allow the Clause to go forward as it then stood. We have not yet reached the Report stage, and I do not know what discussions have been proceeding between the right hon. and learned Gentleman and his hon. Friends.
1489 However, I could not allow this Schedule to be added to the Bill without expressing the hope that, whatever decisions the right hon. and learned Gentleman and his hon. Friends may reach regarding the one witness, the Solway salmon fishers will not have their rights concerning the one witness, which they have enjoyed since 1804, prejudiced in any way. If the right hon. and learned Gentleman will say a word or two on those points, I shall be much obliged.

§ The Lord Advocate
I hope I can satisfy the hon. Gentleman in a few short sentences. The reason for the repqal of these parts of the 1804 Act is that they are now unnecessary and redundant in view of the terms of the Bill. Section 9 relates to poaching, which is the whole purpose of this Bill. Section 16 deals with the use of disguises for the purpose of poaching, and is no longer required in view of the provisions of the present Bill. So far as Clause 7 of this Bill is concerned, that is a matter for discussion. We had a very full discussion on it earlier, and no doubt it will be raised again at a subsequent stage.