§ Mr. Gordon Wilson
I beg to move Amendment No. 35, in page 5, line 24, after 'a' insert public or'.
Mr. Deputy Speaker
With this we may discuss the following amendments:
No. 45, in page 5, line 24, after 'private', insert 'or public'.
No. 36, in page 5, line 30, at end insert—'( ) Where any public right of sea fishery is interfered with under the authority of subsection (3) above, the person to whom the licence has been granted shall be liable to pay a disturbance payment to the operator of any trawler, drifter or fishing boat, whether registered or not, who shall be as a result of a sea designation order made under section 3 of this Act indefinitely prohibited from or restricted in, fishing in or from and in setting nets or creels or pots in, or adjacent to, an area of water (the said area of water being an area in which or adjacent to which such operator of a trawler, drifter or fishing-boat has in the three years immediately preceding the occurrence of the relevant event habitually or regularly fished, or in or adjacent to which he has habitually or regularly set nets or creels or pots).( ) The amount of the disturbance payment shall be equal to—288
- (i) the annual loss which such operator will sustain by reason of being so prohibited or restricted, multiplied by the multiplier ten, such annual loss being determined as that proportion of the nett average annual profit of such operator, in the three years immediately preceding the making of the sea designation order, as is arrived at by dividing the said nett annual average profit by the number of working days in a year, and multiplying the resulting quotient by the number of working days on which such operator fished, or set nets or creels or pots in, or adjacent to, the said area of water,
- (ii) any redundancy payments which such operator may be required by law to pay to any employee whom he dismisses from his employment as a result of his being so prohibited or restricted, and not otherwise recoverable by such operator, and
- (iii) that proportion of any debt secured over the trawler, drifter or fishing-boat or its gear, equipment and appurtenances operated by such operator as is arrived at by dividing the total of such debts by the same divisor, and multiplying the resultant quotient by the same multiplier, as are referred to in (i) above; and any question of disputed compensation under this subsection shall be referred to and determined by the Lands Tribunal for Scotland.( ) For the purposes of this subsection—
- (a) an operator of a trawler, drifter or fishing-boat shall be deemed to be any person, firm, company or corporation who own, charter, hire or lease a trawler, drifter or fishing-boat and carry on therewith the business of fishing;
- (b) an area adjacent to the area of water referred to in a sea designation order shall be deemed to be any area of water in which if nets, creels or pots are set, such nets, creels or pots may, as a result of the action of all or any of the wind, tide, or marine currents, drift or be carried into the area of water covered by the sea designation order'.
§ Mr. Wilson
Amendment No. 35 is fairly innocuous, but it is related to Amendment No. 36. Here I again take up the cudgels on behalf of public and private rights, this time in relation to fishermen. It is clear from the Bill that those who hold private fishing rights—salmon and sea trout rights, and so on—will be compensated should those rights be interfered with. That principle has been accepted for some time, but dissatisfaction has been expressed in relation to those who fish in the sea, which is a public right of fishery, as the sea is open to all.
If a sea designation order is made, fishermen who have taken advantage of that right may find that their livelihood will be affected if part of the fishing banks or shell fishing areas that they have been accustomed to exploit have been interfered with.
The amendments are intended, first, to give a public right to those fishermen to qualify for compensation and, secondly, to endeavour to lay down a basis on which that compensation may be paid. This is entirely new territory, and I suppose that the first objection to it may be the difficulty of proof. I am informed by a mathematician who looked at this clause that it is capable of being expressed in the form of an equation, and I shall express it in that form later, if so required.
The matter works out mathematically but, speaking as a former lawyer, I know that one difficulty might lie in proving that a certain person had fished in a given area for a requisite period. However, I suggest that in the circumstances of areas likely to be designated as sea areas, it will be possible to do so. We are dealing with small communities in which fishermen well know who is inclined to fish where. Admittedly fishermen are 289 likely to have their own secret places, where they hope to land special catches, but generally in offshore fisheries it is known where somebody lays creels and where he fishes, because it involves inland waters.
Amendment No. 36 puts the onus on the developer to pay for the disruption caused by him as a result of his wish to have an area protected or designated for certain construction activities. I can see no objection to that, in principle. It is not a question of the State being called upon to pay sums out of the £40 million specified in the Bill. It is a reflection of the first part of the provision, which puts the burden on the person who interferes with the private right to pay compensation in regard to any resulting loss or damage suffered. The principle is the same, and there should be no difficulty over it.
The first leg of the calculation is to try to ascertain the amount of compensation or disturbance payment. It involves taking three years as the operating period, during which the net average annual profit can be worked out, and basing that on the number of days in the year when the fisherman concerned is likely to have exploited the fishing bank or area involved. The compensation is directly related to the time which is likely to have been spent by a fisherman in a certain area.
The second leg of the calculation endeavours to cover the fisherman, or the owner or operator of a trawler, drifter or fishing boat, against any additional expenses, such as redundancy payments, which may be incurred through dismissal from employment of somebody who formerly worked in a boat and whose services are to be dispensed with because of the slowing down of a fishing business through the operation of a sea designation order.
Lastly, we come to the proportion of any debts secured on a trawler or fishing boat or its gear. In these days somebody wishing to take over a fishing boat, or to buy one, or to have one built, faces substantial costs. I am informed by my hon. Friend the Member for Aberdeenshire, East (Mr. Henderson), who has specialised knowledge on this subject, that an 80-foot inshore fishing boat costs £300,000, or £3,000 to £4,000 per foot. Most people in envisaging such expenditure 290 would find it necessary to obtain a loan to cover the purchase and running of the boat. Therefore, if the amount of fishing is reduced the catch will be limited and in terms of capital cost the effect will be very serious. I hope that that aspect will be taken into account.
Since matters of this kind, involving compensation, are often disputed, we suggest that there should be the right of access to the Scottish Lands Tribunal. Thereafter it would be a matter of proof, to be defined by the assessors on the Lands Tribunal as to actual loss incurred by the fisherman. It will be for the tribunal to accept or reject evidence brought before it.
I feel that Amendment No. 36 should have particular appeal for Labour Members, in view of complaints made at the Labour Party conference about iniquitous payments made to holders of private salmon fisheries and payments made by hydro boards in past years. Surely there is a strong argument for compensation to be made to working fishermen when loss occurs, in exactly the same way as private fishing rights are compensated when fishing is carried out for pleasure rather than for profit.
§ 8.15 p.m.
§ Mr. Grimond
I wish to support Amendment No. 36 and the principle behind it. If the Government find that they are unable to write into the Bill provisions involving compensation for interference with public rights of fishing, I hope they will at least give the House an undertaking that they will look at the whole question in the context of oil activities.
I should like the Government to give a definition of "public rights of fishing" in certain areas such as Sullom Voe in Shetland or Scapa Flow in Orkney it is likely—whether areas are designated or otherwise—that there will be the gravest interference with fishing. There may even be a Bantry Bay situation, but certainly oil-related industries will gravely impair shore fishing, white fishing and, at certain times of the year, herring fishing.
It is fair to say that companies for whose benefit these areas have been turned over to oil should make some payment to fishermen who are affected by oil operations. The payment may be difficult to calculate and it will not be easy 291 for fishermen to prove their claims, but this is largely due to the fact that we have not given enough thought to these matters. I suggest that there should be an insurance scheme and, that, if that is not acceptable, some compensation should be made available to ordinary fishermen without too much complication being involved. If such a provision is not feasible, the Government at least should say that they are well seized of the situation and will take action in some other context.
§ Mr. Buchanan-Smith
We have had a very good debate on the subject of compensation, and it is apparent that hon. Members are trying to provide a vehicle by which fishermen can be assisted if their livelihood is affected by sea designation orders. The wider implications have been mentioned by the right hon. Member for Orkney and Shetland (Mr. Grimond). We have to consider these matters not merely in the context of sea designation orders but in terms of the upset and disturbance likely to result from the activities of the oil industry.
The House has discussed the complications involved in assessing a claim by a fisherman who may have lost his livelihood. There appears to be no precedent where a public right of this nature has been lost or interfered with and no precedent as to the actual amount of loss suffered and the amount of compensation paid. I appreciate the difficulties.
I have sympathy for the Minister if he puts forward arguments on those lines.
Indeed, I have considerable sympathy with the view put forward by the right hon. Member for Orkney and Shetland, namely, whether, in order to meet some of the worries about which I spoke earlier on fishing, which I will not repeat now, some kind of insurance scheme could be devised, funded in some way by the oil companies and those with direct interests, from which fishermen could benefit because of their loss of livelihood, for damage to gear, and so on. I suggest that that proposal might be pursued as an effective and realistic way of meeting the problem.
Another way might be to have a levy on those benefiting from a sea designation area. Out of the funds provided by those who pay the levy money could 292 be made available to those who could prove that their rights had been interfered with as a result of the designation of an area.
I hope that the Minister will not give us a final answer tonight. There may be practical difficulties of assessment in individual cases. I hope that the hon. Gentleman will be prepared to look at the fishing industry and the oil industry generally to try to find some way of providing compensation for those who may be affected. I am sure that such an assurance would go a long way to allaying some of the anxieties which are felt and would lead to a greater amount of good will between the fishing industry and the oil industry. I have not spoken closely to the letter of the amendment, but I hope that the Minister will accept the spirit of it in that way.
§ Mr. Sproat
I should like to add to what has been said by my hon. Friend the Member for North Angus and Mearns (Mr. Buchanan-Smith). I support the principle behind the amendment that some form of compensation should be paid for loss of livelihood. Whether the scheme suggested by the hon. Member for for Dundee, East (Mr. Wilson) is right or not, I think that he is to be congratulated on having worked it out in detail, because it shows that it is feasible. I do not know whether this is the right answer. However, I hope that the Minister will undertake to carry out the spirit of the amendment by convening a meeting as soon as possible, at which the fishing industry and the oil industry and the Government could be represented, to get both sides to put forward their ideas in an attempt to ascertain whether a way can be found for compensation to be made in a manner acceptable to all.
§ Mr. Millan
The right hon. Member for Orkney and Shetland (Mr. Grimond) and the hon. Members for North Angus and Mearns (Mr. Buchanan-Smith) and Aberdeen, South (Mr. Sproat) have taken us into a rather wider area than that covered by the amendment. I refer to the effect on the fishing industry of the impact of the oil industry generally. I am not being critical. The problems are inter-related. Indeed, they demonstrate that even if we could find an acceptable scheme to deal with the problem relating to sea designation areas it is only part 293 of the much bigger problem of the impact of the oil industry generally on the fishing industry.
This matter is being examined by the fisheries and offshore oil consultative groups. The forum that we established in the summer of last year is available and is being used to discuss these general problems rather than the particular point of compensation for sea designation orders which is dealt with in this series of amendments.
The amendment raises the important point of principle whether a public right should be compensated at all. It is not normal to compensate public rights. If we made compensation available for the inshore fisherman in sea designation areas but not for the deep sea fisherman there would be an immediate anomaly. However, that should not necessarily prevent our looking at a more restrictive scheme. I am not persuaded that the point of principle should be set aside, because it would have implications elsewhere.
If the point of principle were set aside or conceded and an acceptable method were arrived at of working out the loss, the question of the way in which it should be done would not be the most difficult to answer. Therefore, in a sense, to say that it should be done by means of an insurance scheme or levy is putting the cart before the horse. These are devices for paying compensation after getting over the difficulties of principle and of working out an acceptable scheme. I do not dismiss them—they may be perfectly acceptable methods of proceeding—but I do not think that they affect the basic argument which, to give credit to the hon. Member for Dundee, East (Mr. Wilson), is tackled head on in the amendment.
Can we work out an acceptable scheme? The hon. Member for Dundee, East has obviously put a lot of effort into this matter, presumably with advice from those in the industry who know some of the problems involved. However, I do not believe—I do not say this in any spirit of unnecessary criticism—the hon. Gentleman has produced an acceptable solution, even given that we could get the question of principle accepted.
One of the faults in the suggestions brought out in this series of amendments is that the hon. Gentleman has directed 294 his attention more to the profit that a fishing operator was making in a particular sea designation order area. Indeed, it is not only the profit that he was making in a particular area, because Amendment No. 36, perhaps inadvertently, brings into the calculation the profits for the whole of his operations, most of which might be outside the sea designation order area. That is perhaps inadvertent and could be put right.
What is not so easily put right is the calculation of the loss. This is a question not only of identifying the particular part of the profits relating to a fisherman's activities in the sea designation area—that could be difficult enough—but of calculating the actual loss. The loss is not necessarily the profit that he was making when he was able to fish in that area. It depends on a whole lot of factors, including whether there is a similarly acceptable alternative area available to him in which to fish and to transfer his interests. It would be feasible to prove that a fisherman was making a certain profit from a particular area which was now denied to him, but his actual loss might be nil because there was a similar or even better area available to him elsewhere.
Therefore, ingenious as the formula suggested in the amendment is, I do not think we get right to the heart of the matter, which is the annual loss as distinct from an annual loss being calculated on an arbitrary basis and being made equivalent to the actual profit that a fisherman was making from his activities generally.
There are also intrinsic difficulties in relation to proof in the formula. If a formula provides that someone who had been involved in a particular activity in a particular area on so many days, even though that was only a minuscule part of his operations, should get compensation, that would be too generalised and would require considerable refinement. Thus the hon. Gentleman has not worked out a formula.
Even if one could accept the principle, which I am by no means convinced is possible, it would be indispensable to achieve fairness between one operator and another. It would not be right to have a formula which was right for one fisherman 295 but for another produced derisory compensation in terms of his loss and for a third was so generous as to be extravagant rather than just.
I am not criticising the formula simply on technical grounds but because any formula would have to apply fairly to a series of individual circumstances. I am not convinced that this formula does so. Nor have I been persuaded that it is easy or even possible to produce by means of a formula the result that the hon. Gentleman intends. The technical defects could not be put right simply with further drafting in another place.
It would be better to let consideration of this whole question continue in the consultative group. If those discussions produce some generally acceptable solution, I shall certainly be willing to consider it, but there are difficulties of principle and this formula does not produce the right answer. Therefore, I cannot advise the House to accept the amendment.
Mr. Deputy Speaker
Order. If the hon. Gentleman wishes to speak again, he should seek leave of the House, which no doubt will be granted.
§ Mr. Wilson
With leave of the House, I should be glad of the opportunity to reply to the Minister.
The Minister said, first, that there is a question of principle. If he cannot concede that principle, there cannot be much agreement. It is essential that the principle be recognised that interference with an inshore fishing right should lead to compensation. This situation is unusual,
§ but the impact of the oil industry in Scotland will be phenomenal and the Government will gain large sums of money from it. If the Minister could have conceded the principle and suggested some formula of his own, I should have been prepared to withdraw the amendment.
§ Within a year or two, sea designation orders will probably be in force and fishing rights will be interfered with, leading to losses being suffered. There is no guarantee that the alternative legislation on insurance funds will then be in operation. This legislation imposes the liability and it is this legislation which should produce the solution.
§ Mr. Millan
I did not concede the principle because that would be almost meaningless unless one defined how far it extended geographically and otherwise. One must also consider the deep sea fishermen. I can see that, in practice, one could make certain distinctions, but I should have to be persuaded that they were possible before conceding the principle.
That is why I suggest that discussion should continue in the consultative group. If this resulted in a determinable principle which did not apply everywhere and would not be subject to unwarranted extension, I should be willing to consider the principle on that basis. However, I think that it would be premature for me now to say that I was persuaded of the principle. I am sorry, but I cannot say that.
§ Question put:—That the amendment be made:—
§ The House divided: Ayes 23, Noes 180.297
|Division No. 47.]||AYES||[8.35 p.m.|
|Beith, A. J.||Hall, Sir John||Thomas, Dafydd (Merioneth)|
|Brotherton, Michael||Hooson, Emlyn||Thompson, George|
|Budgen, Nick||Howells, Geraint (Cardigan)||Watt, Hamish|
|Clark, Alan (Plymouth, Sutton)||Pardoe, John||Wigley, Dafydd|
|Corrie, John||Reid, George||Wilson, Gordon (Dundee E)|
|Crawford, Douglas||Smith, Cyril (Rochdale)|
|Ewing, Mrs Winifred (Moray)||Sproat, Iain||TELLERS FOR THE AYES:|
|Gray Hamish||Steel, David (Roxburgh)||Mr. Douglas Henderson and|
|Grimond, Rt Hon J.||Stewart, Donald (Western Isles)||Mr. Andrew Welsh.|
|Allaun, Frank||Bates, Alf||Boardman, H.|
|Archer, Peter||Bean, R. E.||Boothroyd, Miss Betty|
|Armstrong, Ernest||Benn, Rt Hon Anthony Wedgwood||Broughton, Sir Alfred|
|Ashton, Joe||Bennett, Andrew (Stockport N)||Brown, Hugh D. (Provan)|
|Barnett, Guy (Greenwich)||Bidwell, Sydney||Buchan, Norman|
|Buchanan, Richard||Hughes, Mark (Durham)||Park, George|
|Callaghan, Rt Hon J. (Cardiff SE)||Hughes, Robert (Aberdeen N)||Parry, Robert|
|Callaghan, Jim (Middleton & P)||Hughes, Roy (Newport)||Pavitt, Laurie|
|Campbell, Ian||Hunter, Adam||Perry, Ernest|
|Cant, R. B.||Irving, Rt Hon S. (Dartford)||Prescott, John|
|Carmichael, Neil||Janner Greville||Price, C. (Lewisham W)|
|Carter-Jones, Lewis||Jay, Rt Hon Douglas||Price, William (Rugby)|
|Cartwright, John||Jenkins, Hugh (Putney)||Richardson, Miss Jo|
|Cocks, Michael (Bristol S)||John, Brynmor||Roberts, Albert (Normanton)|
|Coleman, Donald||Johnson, James (Hull West)||Roberts, Gwilym (Cannock)|
|Colquhoun, Mrs Maureen||Johnson, Walter (Derby S)||Roderick, Caerwyn|
|Cook, Robin F. (Edin C)||Jonea, Bany (East Flint)||Rodgers, George (Chorley)|
|Cox, Thomas (Tooting)||Jones, Dan (Burnley)||Rodgers, William (Stockton)|
|Craigen, J. M. (Maryhill)||Judd, Frank||Rooker, J. W.|
|Crosland, Rt Hon Anthony||Kaufman, Gerald||Roper, John|
|Cryer, Bob||Kelley, Richard||Rose, Paul B.|
|Cunningham, Dr J. (Whiteh)||Kinnock Neil||Ross, Rt Hon W. (Kilmarnock)|
|Dalyell, Tam||Lambie, David||Rowlands, Ted|
|Davidson, Arthur||Lamborn, Harry||Shaw, Arnold (Ilford South)|
|Davies, Bryan (Enfield N)||Lamond, James||Short, Rt Hon E. (Newcastle C)|
|de Freitas, Rt Hon Sir Geoffrey||Latham, Arthur (Paddington)||Silverman, Julius|
|Dempsey, James||Lee, John||Skinner, Dennis|
|Doig, Peter||Lestor, Miss Joan (Eton & Slough)||Small, William|
|Dormand, J. D.||Lewis, Arthur (Newham N)||Smith, John (N Lanarkshire)|
|Douglas-Mann, Bruce||Lewis, Ron (Carlisle)||Spearing, Nigel|
|Duffy, A. E. P.||Lipton, Marcus||Spriggs, Leslie|
|Dunn, James A.||Litterick, Tom||Stewart, Rt Hn M. (Fulham)|
|Dunnett, Jack||Lomas, Kenneth||Stoddart, David|
|Eadie, Alex||Loyden, Eddie||Stott, Roger|
|Edge, Geoff||Lyon, Alexander (York)||Summerskill, Hon Dr Shirley|
|Edwards, Robert (Wolv SE)||Lyons, Edward (Bradford W)||Swain, Thomas|
|Ennals, David||Mabon, Dr J. Dickson||Taylor, Mrs Ann (Bolton W)|
|Evans, Ioan (Aberdare)||McCartney, Hugh||Thomas, Ron (Bristol NW)|
|Evans, John (Newton)||McElhone, Frank||Thorne, Stan (Preston South)|
|Ewing, Harry (Stirling)||MacFarquhar, Roderick||Tierney, Sydney|
|Faulds, Andrew||Mackintosh, John P.||Tinn, James|
|Fernyhough, Rt Hon E.||Maclennan, Robert||Tomlinson, John|
|Fitch, Alan (Wigan)||McMillan, Tom (Glasgow C)||Urwin, T. W.|
|Flannery, Martin||McNamara, Kevin||Varley, Rt Hon Eric G.|
|Fletcher, Ted (Darlington)||Madden, Max||Wainwright, Edwin (Dearne V)|
|Ford, Ben||Magee, Bryan||Walker, Terry (Kingswood)|
|Freeson, Reginald||Mahon, Simon||Ward, Michael|
|George, Bruce||Marks, Kenneth||Watklns, David|
|Gilbert, Dr John||Marquand, David||Weitzman, David|
|Golding, John||Marshall, Dr Edmund (Goole)||White, Frank R. (Bury)|
|Gourlay, Harry||Mellish, Rt Hon Robert||White, James (Pollok)|
|Grant, John (Islington C)||Mendelson, John||Willey, Rt Hon Frederick|
|Grocott, Bruce||Millan, Bruce||Williams, W. T. (Warrington)|
|Hamilton, W. W. (Central Fife)||Miller, Dr M. S. (E Kilbride)||Wilson, Alexander (Hamilton)|
|Hamling, William||Murray, Ronald King||Wilson, Rt Hon H. (Huyton)|
|Harper Joseph||Newens, Stanley||Wise, Mrs Audrey|
|Harrison, Walter (Wakefield)||Noble, Mike||Woodall, Alec|
|Hooley, Frank||Ogden, Eric||Woof, Robert|
|Horam, John||O'Malley, Rt Hon Brian||TELLERS FOR THE NOES:|
|Hoyle, Douglas (Nelson)||Orbach, Maurice||Mr. James Hamilton and|
|Hughes, Rt Hon C. (Anglesey)||Ovenden, John||Mr. John Ellis.|
§ Question accordingly negatived.