Clause 33 (Hansard, 4 March 1981)

§ Mr. A. J. Beith (Berwick-upon-Tweed)
I beg to move amendment No. 32, in page 27, line 1, leave out clause 33.
It must be unusual for an hon. Member to find in a Bill a clause which relates exclusively and wholly to his constituency. I am almost tempted to inquire whether this might be a hybrid Bill on that account and thus take us back into the area in which we were with the Aircraft and Shipbuilding Industries Bill.
One of the distinctive features of this clause is that it brings a piece of Scottish law into England. There are precedents for that and I shall refer to them in a moment. I am sure that it is something that appeals greatly to the leader of the Scottish National Party, the right hon. Member for the Western Isles (Mr. Stewart). It is not the sort of thing we normally expect from the Government, as I shall argue in a moment, although there is reasonable precedent for some of the things that they are trying to do. What is perhaps most puzzling and surprising is that it has nothing to do with the White Fish Authority, with sea fisheries or with fish farming. Therefore, everybody was slightly surprised to find it in this Bill at this stage.
When I consulted the court officials and solicitors in Berwick, they were horrified to find that this piece of important legislation affecting them might have escaped their notice entirely, because at least one of them admitted frankly to me that he would never have dreamt of looking at a Bill which changes the constitution of the White Fish Authority for the latest definition of the law on the river fishery of salmon in the Tweed. That is what this clause is about. It is perhaps a warning that we should be careful about how we carry out legislative work of this kind in order to ensure that those involved can check the legislation.
The Minister has just referred to representations that he received on a previous clause. He has very properly responded to the representations and as a consequence has modified what could have been a technical difficulty. That is right and it is a natural process of government. It is very hard to do that if a clause affecting a wholly different area is introduced not on Second Reading but at Committee stage, especially when it arises very late in the Committee stage and is picked up only if hon. Members are particularly zealous to watch for things of this kind. Therefore, I am bound to ask why the clause was not in the Bill on Second Reading. If the Government recognised the need for it, they could surely have included it in the Bill on Second Reading.
They did not see fit to consult anybody about it. The Secretary of State, who is in his place, defended his decision on the ground that he was correcting an oversight. 361 The fact that a new clause corrects an oversight is no excuse for not consulting anybody about it, otherwise one runs the risk of compounding the oversight with even more oversights and making the matter even worse than it was to start with. I hope that he will not erect that into a principle of Scottish Office practice.
That reminds me that it is the Scottish Office which deals with the bit of England with which we are concerned. When I table questions hoping for a reply from the always cheerful hon. Member for North Angus and Mearns (Mr. Buchanan-Smith), I find that they are all transferred to the Secretary of State for Scotland.
I have said that the Minister said that he did not need to consult anybody because this clause merely corrected an oversight. He cannot get away with that. It was not an oversight at all. My hon. Friend the Member for Inverness (Mr. Johnston) pointed out on Second Reading of the Freshwater and Salmon Fisheries (Scotland) Bill in 1975 that it applied only to the Scottish and not to the English parts of the Tweed. My right hon. Friend the Member for Roxburgh, Selkirk and Peebles (Mr. Steel) dealt with it in detail in the Committee stage of that Bill.
The Minister, who was, I think, the hon. Member for Glasgow, Provan (Mr. Brown), defended in some detail the fact that the Government had made the decision not to extend the provisions of that Bill to the English part of the Tweed. At that stage I made inquiries of the Government and of the Clerks of the House because I was concerned that penalties could be applied to citizens of England by means of a Scottish Bill which was dealt with in this House entirely through Scottish procedures—the Scottish Grand Committee for Second Reading and the Scottish Standing Committee for the Committee stage. Quite rightly, no attempt was made to extend to England that Scottish Bill which was going through exclusively Scottish procedures. It would have been foreign to the procedures of the House had that been done.
The then Government took the view that uniformity was not necessary along the Tweed and that the progress of the Bill would be impaired if they had to use United Kingdom procedures and thereby widen its scope. It could not be claimed to have been an oversight. It may have been a misjudgment; it was not a mistake. Everybody knew what was happening and realised what the consequences might be. Indeed, they were fully pointed out by several Liberal members at that time.
The clause involves the practice of treating a piece of England for salmon fisheries purposes as if it were in Scotland. That is not new. It has been done in River Tweed legislation over many years. The Freshwater and Salmon Fisheries (Scotland) Act 1976 could be said to be a departure from the practice which had gone before in that it applied penalties exclusively on the Scottish side and left the English law unchanged with different penalties and slight differences in the definition of offences. It is not unreasonable that the Government should now propose to change that situation by putting the English side of the Tweed on the same basis as the Scottish side.
When I discovered that that was the Government's intention, I had to try to obtain information on how they intended to draft the clause and its implications. That had to be done hastily by written questions in four or live days. I reiterate that is not a helpful way to introduce complicated legislation. The Minister, whilst recognising that his staff would have to move fast to answer some of those questions, must also have recognised that fishing 362 was a sensative issue and that salmon fishing was a very sensitive issue. The risk of the slightest error giving rise to enormous complications must be avoided in legislating in this area. I had many queries about it which I had to pursue by means of written questions. It was important to establish that, for example, it did not affect drift net fishing beyond the mouth of the Tweed and that it did not create new offences of a wholly different kind. We certainly ought not to take the risk of an oversight the other way. The effect of the clause as it now appears will be to increase fines for offences in the English parts of the Tweed. However, it will also remove custodial sentences from punishments. There will no longer be the sanction of a person being sent to prison for a second offence in certain categories as was the position previously. This may be the Scottish Office's contribution to the Home Secretary's campaign to reduce the prison population. Perhaps I should not comment on that. However, that is a feature of the legislation to be noted. It removes the risk of a custodial sentence for a second offence of poaching and the option of trial in the Crown court except on appeal.
It is sensible that the laws regulating salmon fishing on the Tweed should be uniform along the whole length of the river which is in part in Scotland and in part in England and represents the boundary between England and Scotland. It is obvious that it is one river. Therefore, we should organise the regulation of fisheries in it on the basis of a single corpus of law. I do not object to that principle. However, the Government must recognise that hon. Members have a duty to look after their constituents' interests. The process of legislation ought to ensure that that can be done in a reasonable way and not rushed, as. I feared.
That is why I tabled this probing amendment. I shall not seek to prevent the retention of the clause in the Bill.

§ Mr. Buchanan-Smith
I am grateful for the spirit in which the hon. Member for Berwick-upon-Tweed (Mr. Beith) moved the amendment. I should like to make it clear right away, as I think he will accept, that there was. no intention of being discourteous to him by not consulting him and others in his constituency about this matter. If the hon. Gentleman has been inconvenienced in any way I apologise to him and, through him, to any of his constituents who might have felt that we were jumping matters on this issue.
I find myself in a slightly invidious position as a Member representing a Scottish constituency on the north side of the Tweed and a Minister in a United Kingdom Department supporting a clause that extends Scottish legislation to the south bank of the Tweed.
The notes which have been drafted for me to use in answering the amendments are interesting. I am advised to advise the House that this is not a significant Scottish encroachment. That is a rather felicitous way of putting it. Therefore, I hope that the House will not feel that I am encroaching on England by having had to move this provision in Committee, or by having to defend it now on the Floor of the House.
The hon. Member for Berwick-upon-Tweed (Mr. Beith) is right in saying that no indication of this provision was given on Second Reading.

§ Mr. Buchanan-Smith
The reason why there was no indication was that it was only as a result of a relatively recent decision by the Berwich magistrates' court that the anomaly regarding the 1976 Act was brought to our attention. There were specific representations about that matter, some of which we did not receive until after the Bill was drafted, and some of them not until after the Second Reading. Given the fact that a Fisheries Bill is going through the House and that there is a gloriously long title anyway, covering everything from sea fish authorities to regulations, to fish farming, to cetaceans and all sorts of other interesting things, this is obviously a sensible way to try to correct the matter.
Like the hon. Member for Berwich-upon-Tweed, I can only guess at the intentions of those who drafted the legislation and put the legislation through the House in 1976. As a Minister in a successor Government, I have no means of finding out what those intentions were. I can only guess, as the hon. Member did, that in legislative terms it was intended to keep the River Tweed as a single entity on both banks, because the River Tweed has been treated as one river system coming under Scottish legislation from as long ago as 1868 and 1902, and more recently in 1951. 364 In the 1976 Act the penalties applying to the south bank of the Tweed appear to have been overlooked when that legislation was drafted. The hon. Member saved me having to go through my brief tonight by answering and ackowledging the reasons.

§ Mr Beith
We should place on record the fact that the Act of 1976 could not have extended penalties to any part of England unless it had been put through different procedures. For the protection of my constituents, we should make it clear that someone did not forget to include those provisions but that it was recognised that to extend the Act to England would involve different procedures. Those procedures were not used.

§ Mr. Buchanan-Smith
I note the hon. Member's point. However, I do not intend to go into the merits of that matter. I explained it in Committee and the hon. Member acknowledged the reasons why that had taken place, and believed that they were sensible and right.
I apologise to the hon. Gentleman if he has been inconvenienced by the way in which the matter has been handled. I thank him for the spirit in which he moved his amendment, in anticipation that he will ask leave to withdraw it.

§ Mr. Beith
I thank the Minister for his courteous reply. I beg to ask leave to withdraw the amendment.