Clause 11.—(POWERS OF SEARCH.) (Hansard, 24 January 1951)

§ Mr. T. Fraser
I beg to move, in page 4, line 42, to leave out "officer," and to insert "person."
It is desirable that Clauses 10 and 11 should be consistent in their wording. In Clause 10 (5), it will be seen that reference is made to any person appointed by the Secretary of State whereas in Clause 11 we refer to any…officer appointed by the Secretary of State. It is desirable to make the wording consistent, and therefore we propose to continue the word "person" throughout.

§ Mr. Pryde
I beg to move, in page 5, line 15, to leave out subsection (4).
The subsection reads: Where a water bailiff has reasonable grounds for suspecting that an offence against section three or section four of this Act has been committed.… I wonder whether the Lord Advocate would explain just how far it will be possible to estimate what the water bailiff considers to be "reasonable grounds."

§ The Lord Advocate
The expression "reasonable grounds for suspecting" is in common form. We must allow discretion to a person who is exercising powers of this nature. If a person who is given such powers uses the powers wrongly and invades the property of a third party, he will become liable in the civil courts for damages for that invasion of the property rights. Therefore, at the end of the day it might be a question for the courts to determine whether he had exercised his powers reasonably and whether he had reasonable grounds for suspecting, but unless we give a person latitude which is in common form, such as we have used in this Clause, it is completely impracticable for him to carry out the powers.
We say that if he has reasonable grounds he may do these things, albeit as a result of the search it is found that there is no evidence to justify a subsequent charge; but those and just the sort of powers the police have at the present time. Therefore, we must allow such a man the latitude of having reasonable grounds for suspicion. On the other hand, if he carried out a search and the person aggrieved could satisfy the court that no reasonable individual could have had grounds for suspecting him and that the man had abused his powers under the subsection to inflict damage on him by the invasion of his property, he would be able to obtain a civil remedy and damages. It must be left on that basis. To try to make it any more restrictive would make the Clause quite inoperable.

§ The Deputy-Chairman
Does the hon. Gentleman the Member for Midlothian and Peebles (Mr. Pryde) seek to withdraw his Amendment?

§ Mr. Pryde
I do not wish to press the Amendment, though I would remind my hon. and learned Friend that he is creating a section of society comparable to the 237 Ogpu in Russia. I beg to ask leave to withdraw the Amendment.

§ Mr. N. Macpherson
I beg to move, in page 5, line 18, to leave out "private."
The subsection reads: …evidence of the commission of the offence is to be found in any vehicle on any private land adjoining any water within his district. As I understand the Clause as drafted, a water bailiff may search a vehicle parked on private land and stop, if he can, and search a vehicle moving on private land, including, I presume, a private road; but what he cannot do is search a vehicle parked on a public road or on public land and far less stop a suspected vehicle on a public road. This seems to be an open invitation to anyone taking active preparatory steps for any kind of large-scale expedition to avoid parking a vehicle on private land.
Considering, first, that the vehicle is in any case most likely to be parked on a public road so that it can get away quickly, if need be, without calling excessive attention to itself; second, that in remote parts the water bailiff would have the greatest difficulty in conveying a description of the vehicle to the police in time to be of any use at all; and third, that even if he could do so the evidence would by that time almost certainly have been destroyed, there seems to be a strong case for allowing a water bailiff powers to search vehicles parked on the highway or on public land—that is, just off the highway. I suggest that the Lord Advocate should look into this to see whether words can be devised to make that possible. I cannot see how any abuse could arise therefrom.

§ Mr. T. Fraser
This Amendment goes a little too far. After all, we and giving the water bailiffs considerable powers in giving them the power to search a vehicle which happens to be parked on private land. The vehicle in most cases would be there without any authority or right. They and given here the power to search that vehicle, but to give them the right to search a car on the public highway really seems to me to run a serious risk. I should have thought that no private citizen who has occasion to be driving along a country road which happens to run alongside a river in which there is 238 salmon or trout being poached should be in a position to be held up and to have the vehicle searched by someone who is not a uniformed constable, someone who has not normally the authority of the law to search.

§ Mr. N. Macpherson
rose—

§ Mr. Fraser
The hon.…Gentleman talked about the power—

§ Mr. Macpherson
Even as the Amendment is proposed there is no power to stop the vehicle, and someone even in uniform would have difficulty in doing so.

§ Mr. Fraser
Yes, but if we accepted the Amendment, it would give the water bailiffs power to search a vehicle on any land. The hon. Gentleman surely has in mind that they would have the power to search a vehicle standing on the public highway.

§ Mr. Macpherson
Or adjoining any waters.

§ Mr. Fraser
Or adjoining any waters. We have said "on any private land" because we believe that the vehicle which the bailiff might properly be given the right to examine and to search would be one which would be found on private land in the vicinity of waters that were being poached. To give that person the right to search vehicles on the public highway seems to me to be a different thing. Whether or not he could successfully stop the motorist driving along the highway, I do not know, but if he accosted the motorist who was parked on the public highway, I think as often as not the driver of the vehicle would resent this non-uniformed person demanding the right to search his vehicle and there would in many cases be a serious altercation between the non-uniformed person who is a water bailiff and the owner or driver of a car.
We have gone so far in this Bill that we run the risk of serious abuse of motorists being troubled unnecessarily, and we would be accused of being irresponsible if we gave the water bailiff the right to search a vehicle on the public highway. Therefore, I beg the hon. Gentleman not to press his Amendment.

§ Mr. Thornton-Kemsley
This is not a great matter, but the Joint Under-Secretary of State has made rather a point about the public highway. One envisages 239 a large arterial road, but what happens in so many places in Scotland is that a farm road of secondary importance runs down to a river. It is a public road, but it is on private property. Of course, no water bailiff would have a power of search unless the terms set out in the subsection were complied with, namely, that he had reasonable grounds for suspecting that an offence had been committed. He must have those reasonable grounds for suspecting an offence before he exercises the power of search.
8.45 p.m.
My hon. Friend who framed the Amendment suggested, very reasonably, that he was not entirely wedded to the particular words of his Amendment, and he asked the Government to look at this matter and see whether some such words could not be incorporated in the Bill. That seems a reasonable request, bearing in mind that so many of these small secondary roads which run down to rivers in Scotland and not private roads but and roads which belong to the inhabitants at large. It is on exactly that kind of road that a car would be parked, and we think it reasonable to give to water bailiffs the power of search if they have reason to suspect that an offence has been commit-ted in respect of that car or vehicle. I support the Amendment.

§ Sir D. Robertson
My hon. Friend the Member for Angus, North, and Mearns (Mr. Thornton-Kemsley), did less than justice to the Amendment when he said that access roads, like farm roads, running down to the river, and those which and mainly concerned. The public highway, which has been built up throughout the ages invariably follows the course of a river through the valley; that applies all over Scotland, and I could give countless instances.

§ Sir D. Robertson
I see that the Ministers on the Front Bench agree with me. This question is worthy of a little further thought for that reason. The power of search is qualified by the fact that the bailiff must have reasonable grounds for suspecting an offence and that the search must be on land adjoining the river where the offence is suspected to have taken place.
240 As one who took some minor part in locating a consignment of stolen salmon, I should inform hon. Members that that salmon was detected, not on the public highway, but on the railway. I had some little difficulty in persuading the railway authorities to meet my request to open the suspected packages, which contained, not white fish, as had been supposed, but salmon. For those reasons, I appeal to the Government Front Bench to give this matter further thought before making a final decision.

§ The Lord Advocate
In view of the success of the hon. Member for Caithness and Sutherland (Sir D. Robertson) in tracing lost property some time ago, we might invoke his assistance in relation to some more recent lost property: Hon. Members will appreciate that there and difficulties in this matter. As the hon. Member for Caithness and Sutherland pointed out, many of the roads concerned and main roads which follow a river. An instance which leaps to my mind immediately in connection with a salmon river is the road from Ballater to Braemar, which is a very popular road and more or less follows the river the whole way between those places.
If, however, people using that road by car, and who stopped to look at Balmoral or other beauty spots, were liable to have their cars searched by a water bailiff who had no uniform but merely produced something which might look like either a warrant of authority or a season ticket for a football ground, there might arise a great deal of difficulty and not a few breaches of the peace. That is our great difficulty in the matter.
On the other hand, we quite appreciate that cars may be available adjoining the part of the river where the poaching has taken place and be accessible as a means of quick getaway. It is difficult to reconcile the two points of view. We will certainly look at the matter before the Report stage, but I impress upon those who have spoken that by giving in, as it were, to one side we should be taking away rights which should be enjoyed, not by the other side, namely, the poacher, but by the side which is represented by the members of the public, who and not concerned in poaching or even, perhaps, its discovery. The proposal might mean too much of an invasion of the normal rights of the normal individual when, 241 although the bailiff may have reasonable grounds, it still creates a certain amount of inconvenience, although the person who is inconvenienced may not want to go to court to assert his civil rights, even though he has been inconvenienced and annoyed. The position must be looked at from this point of view also. I cannot guarantee that we will give effect to this Amendment, or even anything like it, but we will certainly look at it again between now and the Report stage.

§ Mr. N. Macpherson
In view of what the right hon. and learned Gentleman has said—and we all appreciate the difficulties he has pointed out—I beg to ask leave to withdraw the Amendment.

§ Captain Duncan
1 beg to move, in page 5, line 19, to leave out "adjoining any water" and to insert: in the ownership of a riparian proprietor. If hon. Members will look at the Clause with this Amendment they will see that it reads: Where a water bailiff has reasonable grounds for suspecting that an offence…has been committed and that evidence of the commission of the offence is to be found in any vehicle on any private land in the ownership of a riparian proprietor within his district or any district adjoining thereon the said water bailiff may search that vehicle. I am no lawyer but it is thought by those who have some legal experience that the word "adjoining" may be too restrictive and may be interpreted in a court of law as the bank of a river and nothing else. I have tried to draft a form of words which would be less restrictive but not so wide as to include the public highway and public paths. This is a little wider but not unduly wider because it has to be in the water bailiff's district and, therefore, cannot be on a riparian owner's land at the top of a hill 10 miles away.
It has to be within the district and also on private land and it seems to me that within those restrictions it meets what I should have thought was the purpose of the Bill, namely, to give the water bailiff power over private land near the river—appandntly the word "near" is not a good legal expression, but he would have power to search vehicles where there is reasonable cause to suspect that an offence has been committed.

§ Mr. T. Fraser
The hon. and gallant Member said he had tried to find words which were less restrictive than "adjoining any water" and that he thought he had found words less restrictive. We think the words open far too wide a field. Although the hon. and gallant Member says there is a restriction in the words he has used, nevertheless I am inclined to think that in some parts of the country there would be the right of search over a very wide area. One has only to think of some of the large estates of some of the landowners in Scotland, one thinks, for instance, of the Duke of Buccleuch—

§ Captain Duncan
It has to be within the district.

§ Mr. Fraser
Yes, but one would find that in the district the water bailiff would exercise his authority over far too wide an area, extending for many miles from his normal area of operation from the riverside. It would be within his district, but many miles from the riverside and we think this much too risky. I think the land on which the vehicle is found, and which the water bailiff has a right to search, must be reasonably near water and must not be five or 10 miles away from the water. I am not sure that it could not be at a much greater distance yet still on the private land of a riparian proprietor.
What I have said of an owner in the south of Scotland could equally be said of an owner in the north of Scotland, where some own very large estates. To say that within his district, and within the land owned by the riparian owner, the water bailiff shall be given power to search vehicles many miles from the water's edge is going too far, and we had better stick to the words "adjoining any water."

Captain 'Duncan
I should like to ask the Lord Advocate to have another look at this point. It has been suggested to me by persons with legal knowledge that the words "adjoining any water" mean a river bank and nothing else. That is the whole point of my Amendment, to try to avoid that point arising in a court case and the prosecution losing the case on a technical point about the meaning of a bank of a river or what "adjoining any water" means. My attempt to provide against that may not be a good way. I think it is quite a good way, but if it does not meet with the approbation of 243 Members of the Committee I am quite prepared to accept other words, if they can be found. I want an assurance from the Lord Advocate that he will look into this point and see that the words "adjoining any water" and not too restricted in that they mean only the river bank.

§ Mr. T. Fraser
We think that our words will be better than those of the hon. and gallant Member. He has, however, expressed an opinion held by some persons who and knowledgeable in the law that "adjoining any water" means only the river bank.

§ Captain Duncan
Might mean.

§ Mr. Fraser
That would seem to make nonsense of an earlier Amendment. If the land "adjoining any water" included only the river bank I should not have thought that there was any need to amend, as the previous Amendment proposed, by the deletion of "private," the power to search land. The Lord Advocate has given an undertaking that we will have another look at this Clause from the point of view of the land in respect of which water bailiffs and to be given the power to search a vehicle. In making that examination we will, if the hon. and gallant Member will agree to withdraw his Amendment, also take into account the proposition he has put forward in moving his Amendment.

§ Captain Duncan
In view of that undertaking, I beg to ask leave to withdraw the Amendment.

§ The Lord Advocate
I beg to move, in page 5, line 20, at the end, to insert: (5) Any person appointed by the Secretary of State in pursuance of the last foregoing section may exercise in relation to any water the powers conferred upon a water bailiff by virtue of this section. This is, in a way, a formal Amendment. We feel sure that the Committee will accept the point that a person who has been appointed by the Secretary of State to exercise powers equivalent to those of a water bailiff under Clause 10 should have similar powers to those conferred on a water bailiff by Clause 11, namely, the right to search vehicles on private land when he suspects, or has reasonable ground for suspecting, that an offence under Clauses 3 or 4 has taken 244 place. Unless we make provision for that, no person other than a police constable could have those powers in an area where there is no district board.

§ The Lord Advocate
I beg to move. in page 5, line 21, to leave out "warrant issued under," and to insert "search authorised by."
At present the requirements of Clause 11 (5) that a female shall be searched by a female—

§ The Deputy-Chairman
I would draw the right hon. and learned Gentleman's attention to the fact that the Amendment I called was that standing in the name of the Secretary of State for Scotland, in page 5, line 21.

§ The Lord Advocate
Yes, that is the one with which I was intending to deal.

§ Brigadier Thorp
On a point of order. Is not the mistake due to the fact that a new subsection has been inserted and that therefore the subsection we and talking about should now be subsection (6)?

§ The Deputy-Chairman
I thought that the Amendment I called was in line 21, to leave out, "warrant issued under," and to insert. "search authorised by."

§ The Lord Advocate
And I thought I was dealing with that. I am afraid it was just the preamble to my remarks which led to the misapprehension.
At present, subsection (5) provides that a female shall be searched only by a female, but that applies only to a search carried out under the authority of a warrant under subsection (1) of Clause 11. But a search of a person may be made by a constable without a warrant under Clause 11 where it is impracticable for him to apply for one. This Amendment secures that a female will not be searched except by a female in such a case. If we do not make provision for this, what would happen would be that under the Bill a female could only be searched by a female in a case where a warrant had been issued; but a female could be searched by a male in a case where a warrant had not been issued. In those circumstances we feel that is too dangerous a power, and therefore we and seeking this authority in order to protect the rights and interests of the poacheress.

§ Brigadier Thorp
I wish to make my usual probe. Does this subsection apply to England, and if so, is it an alteration of the English law?

The Lord
The point is that if the offence takes place in an area which is covered by the provisions of this Bill, then this Clause will attach. Search will be available provided that the conditions set out in the Clause have been observed. I quite understand that there is a certain amount of disquiet in the mind of the hon. and gallant Member about restrictions, but I am sure that on reflection he will think they and well observed.

§ Brigadier Thorp
Is this an alteration of the English law as applied to the district outwith Scotland?

§ The Lord Advocate
As the hon. and gallant Member knows, the River Tweed has always been regarded in its entirety as in Scotland for fishing purposes—

§ Brigadier Thorp
Yes, but not for searching females.

§ The Lord Advocate
It is because I have a heart that we have inserted this Amendment.

§ Brigadier Thorp
Is it a new law?

§ The Lord Advocate
Of course it is a new law so far as the whole Bill is concerned. That is the purpose of our being here tonight.

§ Brigadier Thorp
The Lord Advocate is not being quite fair. A short time ago he referred to the question of one instead of two witnesses and admitted that that was an alteration of the Scottish law. Now I am asking him, quite simply, whether this Clause or subsection alters the English law?

§ The Lord Advocate
It is enacting new law—

§ Brigadier Thorp
For England. in a Scottish Bill?

§ The Lord Advocate
For the purposes of this Bill; and this Bill, like all other Bills, embraces—if that is the appropriate word—that part of the Tweed in England.

§ Mr. C. Williams
Then we really have on interesting submission. Here we have a Bill which apparently is to affect the law with regard to certain English females who and not under Scottish law in other 246 circumstances. I think my hon. and gallant Friend is quite right in drawing attention to this. I would say right away that, as we have this interference in English law and the customs of English life, I hope we shall not have to take it further and set up a real measure of Home Rule for England to prevent encroachments on English law.

§ Mr. Pryde
I wish to appeal to my right hon. and learned Friend to take women out of this Bill altogether. I am sure that no one can visualise the girls from the Peebles weaving mills going on poaching expeditions. While it may be true to say that up in the North of Scotland the people do not lead such a cultured life as those in Midlothian and Peebles, I do not see why it is necessary to go to the expense of appointing female searchers simply because there is a likelihood that women may be caught salmon poaching. Is it not possible to cut women out of this Bill completely? It is bad enough to make war on the men of Scotland, but surely a Labour Government should not make war on the women.

§ Mr. Pryde
I beg to move, in page 5, line 22, to leave out "except by a female."
This Amendment would have the effect of making it impossible for a woman to be searched in pursuance of any warrant issued under this Clause. However, the Lord Advocate has pointed out that it would be possible for a woman to be searched without a warrant. I have already appealed to him to try to cut women out of the Bill completely. I hope that he will consider my suggestion and not make us the laughing stock of the whole country.

§ Mr. Carmichael
I am rather uneasy about the procedure to be adopted under this Clause, which allows any justice of the peace to grant a warrant authorising any bailiff, constable or officer appointed by the Secretary of State to make a search. I am disturbed by the fact that a week may elapse before this is done. If we allow that time to pass, surely the bailiff, if he has any evidence, will have 247 time to go to the appropriate authority, which is the police, to lodge his complaint. They have the power to make the necessary representations to the sheriff. It is bad at any time to give power to anybody other than the authorised body. the police, to make a search.
While I recognise that the sheriff would be careful before he granted a warrant, there is power here for a justice of the peace to grant a warrant. I do not hold anything against justices of the peace. I am one myself. But I do not think that in many country places a justice of the peace is an appropriate person to have this power.

Mr. McKie
Why not?

§ Mr. Carmichael
I will try to explain. This may be an exaggeration, but a landlord who has a bailiff who wants a warrant may well be the justice of the peace. I do not think that anyone would like the law of Scotland to get into such a state that the landlord would be able to grant a warrant to his own bailiff to make a search. I ask the Lord Advocate to give us guidance. I consider that, as a period of one week is permitted, it would be wise to lay down that the bailiff should go to the appropriate police authority and let the police make representations to the sheriff. Then the process of issuing a warrant could be carried out under the well-established practice in Scotland—through the police authority.

§ The Lord Advocate
My hon. Friend has expressed the view that we would not like to make it part of our legislation that a landlord or landowner who was a justice of the peace had a right of giving a search warrant to a water bailiff. In the first place. I do not think that a landlord would exercise that power if he had an interest in the matter. I think it would be contrary to his judicial duties, but, in so far as a justice of the peace may give a warrant to a water bailiff. there is nothing new in that, because, according to my computation, that has been going on in Scotland for 82 years It just shows that our educational process is continuous.
We and not altering the law, but. substantially, merely re-enacting the law to extend the rights contained in the warrant to cover the new conditions which we find 248 in this Bill. Since the Salmon Fisheries (Scotland) Act, 1868, there has been power for a sheriff or justice of the peace to issue a warrant to a water bailiff or constable to enter premises and seize gear or fish illegally taken.
In the Clause we and extending this power further in one respect, because we and covering the various circumstances provided for by Clauses 3 and 4 of the Bill. The reason why we give the right to a water bailiff is simply because he may be the person best able to get the evidence before it disappears. My hon. Friend points out that a warrant will have a life of up to one week and that it can be exercised within that period. The reason for that is that we must make it run for a certain period, because it may not be possible to ingather immediately all the evidence desirable under the warrant.
It may be that the premises and not accessible, and that some time is taken before we can get to the vehicle or store which we wish to search. In those circumstances, the warrant obviously has to have a period of life, and we think that a period of one week is the proper period in those circumstances. In the normal case, one wants to get the evidence as soon as possible, and, therefore, the warrant would be exercised at the very first available opportunity.
My hon. Friend asks why we do not leave it to the police constable, but, in these cases, and particularly in the scattered areas, it may not always be possible to find the constable available at the time to exercise the warrant efficaciously, and if one had to wait for the arrival of a police constable the available evidence might disappear and be lost. In these circumstances, following the precedent which has existed since 1868, we feel that it is perfectly justifiable that the power should be given to people other than constables.

Mr. McKie
I want to say how very glad I am that the Lord Advocate resisted what I might presume to call the preposterous suggestion of the hon. Member for Bridgeton (Mr. Carmichael) in seeking to impugn the good faith of a justice of the peace in Scotland, who may be called upon to give a search warrant in this respect. I declare that I have no interest in this matter. The hon. Member for Bridgeton said he was a justice 249 of the peace. I am not, so perhaps I can be relied upon to give a more unbiased point of view than the hon. Gentleman. I think it is a very sad state of affairs when a Scottish hon. Member comes here and suggests that a fellow justice of the peace, in certain circumstances, could not be relied upon to discharge his duties without any motive of self-interest, and I hope the hon. Gentleman will take these words to heart, because he must reflect that such a suggestion may very likely prove to be a boomerang. He is at once calling down similar criticisms upon other justices of the peace in Scotland, and perhaps elsewhere.

§ Mr. Manuel
There is one short point with which I ask my right hon. and learned Friend to deal. While it is quite true that he has said that the provision he mentioned is a re-enactment, it is also true to say that there is a completely new departure from what we have hitherto known, that is, the giving of the power of search to bailiffs as such. That is something completely new, and it is a great extension of their powers. I want my right hon. and learned Friend to consider for a moment this aspect of it.
I think there will be at any rate a possibility of more prosecutions, and perhaps more serious prosecutions, arising from the fact that the bailiffs have this power of search. We know that the village constable or a member of the police force has a certain respect paid to him. The uniform is recognised, and there is no dubiety about it. But I can well imagine some of our Ayrshire miners, for instance, resenting very seriously being searched by water bailiffs, and I cannot imagine them being at all amenable to being subjected to search by these civilians. While it is quite true to say that these people are appointed and have certain powers, I feel that it would be much safer and that we should be in a much stronger position if this power of search were confined to police constables.