§ Mr. Deputy Speaker (Mr. Michael Morris)
With this, it will be convenient to take the following amendments: No. 2, in page 2, line 8, leave out from beginning to 'and'.
No. 6, in clause 3, page 3, line 29, at end insert—'(5B) Where an officer has seized any vehicle or equipment under subsection (5A) above, the owner or charterer of the boat or the owner of the vehicle or equipment, as the case may be, if he is not the person on board the boat or in charge of or in or on the vehicle or equipment, shall be notified of the seizure as soon as practicable and informed of how the matter will be proceeded with.'.
§ Mr. Luff
The intention of the amendment is to enable the House to consider whether an owner of a vehicle or piece of equipment should automatically be guilty of an offence even though he or she may have no knowledge that such an offence has been committed. I believe that rather different issues apply to the owners of fishing vessels, as I shall seek to explain later, but the automatic extension of that offence to deal with the particular problems with which the Bill is concerned needs to be considered carefully.
§ Mr. Nigel Spearing (Newham, South)
I am grateful to the hon. Gentleman for giving way at this early point in his speech, but he made some remarks publicly on the radio yesterday about his amendments, and referred to the importance, which we all appreciate, of the natural environment, and in particular the activities and advice of the Royal Society for the Protection of Birds. Will he tell us whether any of the amendments that he is about to move, or any others, had the support of that society? Will he tell us why he thinks membership of that society is incompatible with public office? I declare an interest as a member of that society.
§ Mr. Luff
I do not for a minute believe that membership is incompatible with public office. Sadly, the pressures on one's time in the House mean that one must make choices about what one does with one's time. I found that there just was not time to read Birds magazine. That is a great sadness for me. I concentrate—I make no secret 'of it—in my spare time on my interest in railways rather than birds. But that does not mean that I have lost my interest in birds. The hon. Gentleman makes an important point. In fact, I was about to set my amendments in precisely the context that he sought to do in his intervention.
§ Mr. Oliver Heald (Hertfordshire, North)
Before my hon. Friend moves on, I should like him to clarify something. During the Committee proceedings on the Bill, is it or is it not correct that it was the hon. Member for Dumbarton (Mr. McFall) who raised the issue with which my hon. Friend's amendments deal, and that, in trying to 1037 tackle this difficult issue, my hon. Friend is protecting not only the interests of the environment, but the interests of Hertz and Avis car rental companies, on behalf of whom the hon. Gentleman spoke?
§ Mr. Luff
My hon. Friend anticipates some remarks that I wish to make later when I talk about amendment No. 2, to which the remarks in Committee of the hon. Member for Dumbarton (Mr. McFall) are relevant.
The Bill was drawn to my attention as a direct result of the publicity surrounding the campaign of the RSPB and its concerns for the protection of marine life generally. I believe that the Bill and the amendments that we are discussing provide a very rare opportunity to debate the protection of marine life and, specifically, bird life. My study of the Bill, as a result of that publicity, revealed other concerns, to which the amendments—and those that were not selected for debate—are relevant. That study revealed that, although the primary reason for the Bill was an environmental concern, it also affected the livelihood of farmers and contained some rather worrying aspects of enforcement provisions.
§ Mr. Nigel Waterson (Eastbourne)
I wish to clarify one point that applies to amendments Nos. 1 and 2. According to the Inshore Fishing (Scotland) Act 1984—perhaps matters have been updated since—quite significant sentences are available for breaches of the provisions: fines of up £5,000 on summary conviction, and without limit on conviction and indictment; and in some cases confiscation of equipment, boats and the like. Does not that underline my hon. Friend's point that one must be very careful about people unwittingly breaching the proposed law?
§ Mr. Luff
Again, my hon. Friend anticipates remarks that I intend to make later. I have concerns, and will express them to my hon. Friend the Minister on Third Reading, about the levels of fines. They might not be high enough for some of the greater breaches of the regulations. They are certainly too high for those who are caught by accident under the provisions of the Bill and the Act to which it refers. My hon. Friend is right to make those comments and I hope that he will make them at greater length later.
The main purpose of the Bill, and it is important to understand this to understand the amendment, was adequately summarised in the Scottish Wildlife and Countryside Link magazine in April 1993. It said:Attempts to regulate the Solway cockle fishery highlight another drawback of the existing system. Using tractors to harvest molluscan shellfish at low water also takes place in the Solway Firth. It has an impact on shellfish stocks and can also disturb resident bird populations. The regulation of these fishing activities does not, at present, come under the control of the Inshore Fisheries (Scotland) Act. For effective regulation of the Solway fishery to occur, Local Authority by-laws to control tractor-dredging must be introduced to complement the Scottish Office Agriculture and Fisheries Department controls on dredging from boats. However, these controls can only be introduced to control nuisance rather than to protect the ecosystem or fishery, although the Secretary of State has indicated that they will change the Act in the near future.It is my understanding that the Bill, which is a private Member's Bill, but which was, I believe, drafted with the assistance of the Government, seeks to meet precisely that commitment from the Secretary of State.
I must emphasise that neither these amendments, nor any others that were not selected for debate, form part of 1038 any attempt to wreck the progress on this Bill or any other Bill on today's Order Paper. I have to say in all honesty that, if that had been my aim, I could have tabled many more amendments to the Bill. I have some concerns, about which I have not tabled amendments, that I shall raise with my hon. Friend on Third Reading to seek assurances on a number of important points.
§ Mr. Roger Berry (Kingswood)
It is not the number of amendments that matter, but the length of time spent debating other matters on the Civil Rights (Disabled Persons) Bill that is the cause of concern for many disabled people.
§ Mr. Luff
I can understand that, but, as I said, this is a very rare opportunity for the House to discuss these issues, and it is one which we should not pass up lightly. The RSPB is taking a very close interest in our proceedings and welcomes the interest that the House is taking in this important measure. It is certainty not a Mickey Mouse measure in any sense.
§ Mr. Peter Atkinson (Hexham)
Many rural jobs and much income are tied up with the activity. If the hon. Member for Kingswood (Mr. Berry) dismisses the subject because he has an interest in another Bill, that is unfair.
§ Mr. James Paice (Cambridgeshire, South-East)
Will my hon. Friend comment on the fact that the hon. Member for Kingswood (Mr. Berry) has just said that the number of amendments did not matter and that what mattered was the length of speeches. I have tabled a few amendments on the Sale and Supply of Goods Bill about which I feel strongly and which I hope we shall reach. Will my hon. Friend comment on the complete contradiction between the words of the hon. Member for Kingswood and those of the hon. Member for Huddersfield (Mr. Sheerman), who referred to an onslaught of amendments that had been tabled.
§ Mr. Luff
I think that you, Mr. Deputy Speaker, would rightly take me to task if I speculated on amendments to other Bills. It may help the House and the hon. Member for Kingswood to know that it is not my intention to remain beyond the completion of proceedings on the first Bill, which is the only one that concerns me today. I take note of what my hon. Friend said and I think that the House will find much in what he says with which to agree.
The amendments seek to eliminate unfairnesses in the Bill and to improve it. The Bill is small but vital and must complete its passage today. If I am advised by my hon. Friend the Member for Kincardine and Deeside (Mr. Kynoch) or my hon. Friend the Minister that the effect of the amendments will be to destroy any of the Bill's purposes, I will not to proceed with them, but I hope that that will not prove to be the case. I do not intend, during the debate on the amendments, to steal the thunder of my hon. Friend the Member for Kincardine and Deeside (Mr. Kynoch)—I know that he wishes to explain to the House in greater detail the importance of the measure.
It is important that amendments Nos. 1, 2 and 6—and the Bill on Third Reading—should be properly scrutinised. The Bill has had precious little scrutiny in either House. Unfortunately, it received a brief Second Reading in another place and an equally brief Committee stage.
§ Mr. Barry Sheerman (Huddersfield)
Did the hon. Gentleman amend the Bill in Committee? Did he apply to be a member of the Standing Committee? I know that he has diverse interests. When I look at the Register of Members' Interests, I see that he is associated with Tim Bell, Visa and Avis—[Interruption.] Well, let me say that the hon. Gentleman has a large number of interests. I should have thought that if those interests were so high a priority with him he would have applied to be a member of the Committee and would have amended the Bill in Committee, which he knows that he can do even if he is not a member of the Committee.
§ Mr. Luff
The hon. Gentleman cannot have been listening to what I said earlier. The Bill received only a formal Second Reading in the House before it was referred to a Standing Committee—a Scottish one to be precise. I was unaware of the Bill's passage through the House and became aware of it only—as the hon. Gentleman would have known had he been listening—when the campaign of the Royal Society for the Protection of Birds on marine life—
§ Mr. Deputy Speaker (Mr. Geoffrey Lofthouse)
Order. It would be for the convenience of the House if the hon. Gentleman dealt with the amendments.
§ Mr. Luff
I am grateful for your help, Mr. Deputy Speaker. I do not think that the remarks of the hon. Member for Huddersfield (Mr. Sheerman) were entirely relevant to the amendments. In view of the vindictive campaign being waged by some Opposition Members against individual hon. Members, I shall answer one question posed by the hon. Member for Huddersfield that is relevant to the amendments and shows why I am interested in the Bill.
The hon. Member for Newham, South (Mr. Spearing) mentioned my membership of the RSPB. I have spent time in the Solway firth, watched the bird life there and derived great pleasure from doing so. He will know that I regularly speak on marine issues in the House. He may not know —this is relevant to the enforcement proceedings that we are about to discuss—that my family is now, and has been, involved in fisheries protection, and my brother-in-law served on a fishing vessel that was taken up from trade used in the Falklands war. Therefore, fishing issues are of great interest to me. I have absolutely no commercial interest in the Bill. My motives are entirely concerned with the Bill's enforcement provisions and the protection of marine life.
Today's debate on the amendments is timely. The amendments relate to the use of tractor dredgers on the foreshore to take cockles—an activity not covered by the 1984 Act. We need to regulate shore fishing to conserve the stocks. As my hon. Friend the Member for Hexham (Mr. Atkinson) said, cockles provide a source of income for the fishing industry, food for shops and restaurants and essential food for birds. It is important that the regulations exist and are effectively enforced.
The new-style tractor dredgers—the equipment referred to in clause 2—can collect an average of 1.5 tonnes of cockles per hour. It is significant equipment. In the process, the ecology of the foreshore is destroyed. It is important that the Bill and the clause should ensure that the provisions are enforced. The consequences for bird life are serious as the ecology of the foreshore is wrecked—the marine organisms dry out and there is not enough time for them to be rewatered by the incoming tide.
1040 The Bill's draftsmen have not recognised the fact that the clause not only deals with problems caused by cockle fishing, but goes wider. The Bill catches in its net—if I may use a fishing metaphor—all fishing activities because it refers to boats at sea as well as activities on the foreshore. It is important to take this opportunity to consider the wider significance of the amendment and the clause.
Amendment No. 1—
§ Mr. Deputy Speaker
The amendment deals with vehicles or equipment subject to hire and the hirer, not the Bill in general.
§ Mr. Luff
Amendment No. 1 extends the guilt of an owner in relation to fishing boats in section 4 (1) of the 1984 Act to vehicles and equipment owners. It is more likely that the owner of a fishing vessel will be party to illegal fishing. It is difficult to see how such an owner could let a boat go to sea without knowing what it was going to do. There are strong logical reasons for the provision to cover sea fishing. It is much more likely that vehicles and equipment—to use the phrase in the Bill—could be involved without the owners' knowledge and consent. That is precisely my worry.
We all know that farmers share tractors. If the clause is unamended, we could encounter problems in relation to tractors in shared ownership. An owner could lend a tractor believing it to be for one purpose and find that the person borrowing the tractor intends to engage in an activity that, as a result of the Bill, is illegal. The owner of a tractor could use the claim that he thought that the tractor was being used for another purpose as a defence against prosecution, which would make the law unworkable.
The same is true of other equipment, but probably not the dredging equipment, which is highly specialised. The absence of any definition of equipment is a problem in the Bill. Section 9 of the Act could have usefully been amended to include a definition of equipment. The fact that there is no such definition makes it more difficult to discuss the clause meaningfully. If my intention were to destroy the Civil Rights (Disabled Persons) Bill, I could have done so. I hope that my hon. Friend the Minister or my hon. Friend the Member for Kincardine and Deeside will give a specific assurance on the subject of definition.
I am seeking to remove—
§ Mr. Luff
The hon. Gentleman makes comments from a sedentary position that I have already answered in response to interventions from hon. Members on both sides of the House. I do not want to repeat those responses as that would incur the wrath of the Chair and the House. I am seeking to be courteous and not to waste the time of the House and it would he helpful if the hon. Gentleman desisted from making sedentary observations.
Clause 2 is well intentioned but goes too far. It makes someone guilty of an offence that he or she could not have known was to be committed. Amendment No. 2 relates to similar issues. It would effectively delete line 8 on page 2 of the Bill relating to the vehicle or equipment subject to hire and the hirer. Concern was expressed in the Standing Committee that new section 4(1A)(c) of the Inshore Fishing (Scotland) Act 1984, inserted by clause 2 of the Bill, may make a person guilty of an offence if she or he hires a vehicle and it is used without his or her knowledge 1041 to commit an offence. The purpose of the amendment, which deletes the reference to such hirings, is to enable an exploration of the issue.
As has already been mentioned, on 9 March the hon. Member for Dumbarton referred to the problems of companies such as Hertz and Avis. He asked:Would the offence relate solely to the person renting the car or could it relate to Hertz or Avis? Despite legal opinion, I was asked to raised the matter in our debate on the clause. My understanding is that the provision relates only to the person who rents the car and that the hirer would not be affected. Will the hon. Gentleman comment on that for the sake of those who may be affected?In response, my hon. Friend the Member for Kincardine and Deeside said:I shall certainly get back to the hon. Gentleman … but I understand that the provision would not cover a car parked alongside the dredger; it would cover the equipment that is doing the damage.My hon. Friend the Member for Ayr (Mr. Gallie) then said:Following the comments made by the hon. Member for Dumbarton, it may be more appropriate to refer to a tractor than to a car. A tractor and a dredging unit could be hired from separate sources. The hirer of the tractor may have no connection with the hirer of the dredger."—[Official Report, Second Scottish Standing Committee, 9 March 1994; c. 6.]My hon. Friend the Member for Kincardine and Deeside provided limited reassurances in response to that matter, but the essential point is that he promised to get back to the hon. Member for Dumbarton. He will know that, since the Pepper v. Hart judgment, what is said during our proceedings can be taken into account by a court of law, but, to the best of my knowledge, this aspect of the Bill has not been put on record in the House. We would appreciate it if my hon. Friend the Member for Kincardine and Deeside could give further reassurances on this point. That would be a great comfort.
Amendment No. 6 is the most substantial in terms of text and it is also of great importance in the context of cockle fishing, the specific issue covered by the Bill. Although my principal concern relates to the owners of vehicles or equipment, I am also concerned about the owners of boats who are currently covered by the Bill. Amendment No. 1 would remove owners from automatic prosecution and amendment No. 6 would give them some rights over their property especially if—for whatever reason—they were not aware that their boat, vehicle or piece of equipment was being used to commit an offence. It would impose a simple duty on fishery officers to let an owner know what was likely to happen to his property as a result of their action.
It is essential that the House protects the property rights of innocent parties. There is a risk of the abuse of such rights under the 1984 Act unless amendment No. 6 is accepted, although there is less risk of boats being used without their owners' permission. I fully accept the importance of fishery officers being able to seize fishing vessels or equipment. If the Bill is to protect marine life effectively, the officers must have such power.
If a skipper is apprehended by fishery officers, he can anticipate a heavy fine, as my hon. Friend the Member for Eastbourne (Mr. Waterson) said. He can also anticipate confiscation of his catch and, more important, the confiscation of his gear which means that he has to return to his home port to replace it. That is a major inconvenience, especially for foreign vessels. Confiscation of equipment is an extremely effective deterrent against sea 1042 fishing abuse, but, unless amendment No. 6 is accepted, the Bill will widen the definition of what can be confiscated. It is therefore important that we consider the amendment carefully.
The most obvious vehicle that could be detained under the Bill would be a tractor; but to whom might a tractor belong? What if it has been stolen or borrowed without authorisation? What if it has been taken without the owner's knowledge due to a simple misunderstanding by the person who has committed an offence? It is essential that we protect the property rights of innocent parties to an offence. I accept that confiscation is a powerful deterrent and I am seeking not to remove that power but to temper it by letting the owner know what is happening. He can at least then plan for his needs even if he cannot get his equipment back.
Amendment No. 6 is reasonable. I ask only that fishery officers notify an owner of the seizure of his vehicle or equipment as soon as is practicable. I am not seeking to place an onerous duty on their shoulders. The amendment underlines my other concern, to which I shall return on Third Reading, which is to ensure that all powers provided under the Act are used properly and fairly.
§ Mr. Peter Atkinson
When my hon. Friend the Member for Kincardine and Deeside (Mr. Kynoch) or the Minister responds to the points made by my hon. Friend the Member for Worcester (Mr. Luff), I hope that they will consider the use of, for example, minibuses by cockle fishermen. Those who have seen the cockle harvest in Wales will know that it sometimes resembles the Klondike. Hundreds of people appear on the foreshore having travelled to the scene by minibus.
As I understand it, under the Inshore Fishing (Scotland) Act 1984 the Scottish inshore waters over which the fishery officers have jurisdiction stretch only from six miles out to the mean high water mark. A gang of people who come to the foreshore in a hired minibus often park, not unreasonably, on the road which is, of course, above the mean high water mark. In England and Scotland, if one is caught poaching with the use of a vehicle, the magistrates or sheriffs can confiscate it, but, in this case, the fishery officer would have no power to confiscate the vehicle because it would not be within his jurisdiction—it would be in the jurisdiction of the police or the byelaw enforcement officer.
It appears that there could be a lacuna in the law and I should be grateful if my hon. Friend the Member for Kincardine and Deeside could explain clearly what would happen in such circumstance.
§ Mr. Paice
I shall not detain the House very long, but I am concerned about the very points to which the amendments tabled by my hon. Friend the Member for Worcester (Mr. Luff) relate. He rightly mentioned the need to protect the innocent owner, but the technical issue of who the owner of a vehicle is also needs to dealt with.
In today's world, it is highly likely that the owner may be a financial institution that has retained the property rights of the tractor or whatever vehicle may be used. We must recognise that the ownership and use of various types of equipment and vehicles can be quite separate. Many years ago, I was prosecuted for owning a vehicle with defective tyres although I had had nothing to do with the use of that vehicle. Fewer people now own outright the 1043 equipment that they use and that fact must be reflected in the law. That is why I was pleased that my hon. Friend tabled the amendments.
Like my hon. Friend, I fully support the motives of the Bill. I am a firm and active supporter of the Royal Society for the Protection of Birds and welcome its initiatives to encourage the Government's proposals introduced in the Bill. I in no way want to delay or detract from the Bill, but I am anxious to ensure that innocent parties who unwittingly find that equipment in which they have a proprietorial interest has been used to commit an offence should not suffer and incur the penalties to which my hon. Friend the Member for Eastbourne (Mr. Waterson) has already drawn our attention. I am sure that my hon. Friend the Member for Kincardine and Deeside (Mr. Kynoch) or the Minister will be able to deal with that issue.
§ Dr. Liam Fox (Woodspring)
I disagree with some of the points made by my colleagues. My interest in the Bill arises from the time that I have spent on the Solway firth, not least one or two liquid new years at Drummore. The attraction of that part of the country is its traditional environment. It is an example of a delicately balanced ecosystem. If the Bill is to be effective it must firmly regulate the dredging in such parts of the country, but I believe that the amendments would weaken the proposed enforcement.
In another place, Lord Campbell set out clearly the background to the Bill. For years, traditional cockle picking has been part of the local way of life and has been carried out in balance with nature. The mudflats support large numbers of birds, and I spoke to representatives of the Royal Society for the Protection of Birds this morning. Increased prices will inevitably mean more dredging by tractors—that is a simple fact. The Inshore Fishing (Scotland) Act 1984 is not sufficient in scope to stop it, but can we introduce sufficiently restrictive measures?
The reservations expressed by my hon. Friend the Member for Worcester (Mr. Luff) are entirely understandable. To put the matter in context, we must realise what sort of community we are talking about. Unless we give the police specific powers to stop and search and to confiscate, it is difficult in a small community for a local policeman, who knows everyone in the area, to say, "I have a reasonable suspicion that you are doing this." It is much easier for the police if they have a more clearly defined power in law. Amendments Nos. 5 and 3, although attractive in terms of introducing the idea of reasonableness, might make it more difficult to enforce the legislation on the ground.
There is a more general point about the amendments. If we introduce environmentally protective legislation, it must be meaningful. If we water it down, as proposed in the amendments, we are in danger of making the legislation relatively meaningless. If we are to protect ecosystems, we must make the powers rigorous. To introduce, as the amendments do, the idea of doing things that are reasonably necessary to facilitate a search simply waters down—
§ Mr. Deputy Speaker
Order. The hon. Gentleman is straying on to non-selected amendments. Amendments Nos. 5 and 3 have not been selected.
§ Mr. Sheerman
On a point of order, Mr. Deputy Speaker. Would not it help progress if, when the Whips organised a filibuster like this, they briefed their hon. Friends a little better than they have done?
§ Mr. Peter Atkinson
On a point of order, Mr. Deputy Speaker. The Bill is of considerable concern to people in Scotland and to people who are interested in the environment. That is true of people in my constituency, which is situated near the Solway firth. During the progress of the Bill, we have been subjected to endless heckling from sedentary positions about filibusters. Some of us are concerned about the provisions of the Bill.
§ Dr. Fox
I was referring to amendment No. 6. It might seem reasonable that we should make clear who owned what equipment at what time. However, in small rural communities, it will be extremely difficult to enforce the legislation. We would not want people outside the House to feel that, in trying to be reasonable in the amendments, we were giving less environmental protection than was initially intended.
The surveys carried out by the marine laboratory of the Department of Agriculture and Fisheries for Scotland have shown a massive diminution in the biomass of cockles in the Solway firth. We must give as much protection as we can. Although the amendments are well intentioned, they would not achieve that because they would make the enforcement of a rigorous Bill more difficult. I hope, therefore, that my hon. Friend the Member for Worcester will address that point when he replies and that my hon. Friend the Minister will take those points on board.
§ Mr. Waterson
Like other hon. Members who have commented on the Bill, I believe that it is a small but important measure. It deserves the whole-hearted support of the House. It is important for the people of Scotland and for people who live near the border. I represent a seaside constituency where these issues are important. I understand that the powers that we are discussing are already within the bailiwick of the fisheries committees in England and Wales. The Bill proposes to put right a position that was never envisaged in 1984 when the Inshore Fishing (Scotland) Act, which the Bill would amend, was passed.
I support the amendments tabled by my hon. Friend the Member for Worcester (Mr. Luff) and the thrust behind them. Speaking as a lawyer, I have to say that it is important that when the House considers criminal penalties—we must be in no doubt that we are talking about criminal penalties—it must be sure that they will be applied fairly and against people who are aware, or who have the possibility of being aware, that they are committing the offence covered by the Bill. The amendments, especially amendment No. 6, open up the discussion about the rights of owners who may not be aware that their boat, vehicle or other equipment is being used to commit an offence.
The amendments are sensible and fair. We are all anxious to make progress this morning, so, like other hon. Members, I shall try to be brief.
1045 One only has to glance at the Inshore Fishing (Scotland) Act 1984 to see that there are significant penalties. That is the thrust behind the amendments. My hon. Friend the Minister may be able to correct what I am about to say; I have not had a chance to discover whether in the intervening years a regulation or another Act has amended and, no doubt, increased the possible penalties.
Under section 4 of the 1984 Act, a person guilty of an offence can, on summary conviction in a magistrates court, be liable to a fine of up to £5,000. As I have said, for all I know, that penalty may have already have been increased by the House through secondary legislation. On indictment, a person can be liable to a fine with no limit. That is bad enough. My hon. Friend the Member for Worcester has already touched on the other, rather more draconian, penalties that are contained in the 1984 Act. They include the rights of officers to enter dwelling houses and other premises, to search premises, to seize documents and to issue warrants for the impounding and sale of boats, gear and other equipment. People have to forfeit such equipment. Those are, rightly, very serious penalties to attach to very serious matters.
We all know the importance of such a conservation measure. We have debated at great length in the House—it is also an issue in my constituency—the Sea Fish (Conservation) Act 1992. We know that feelings run high, but we also know that if legislation is passed and enforced, the stocks can be built up again in a relatively short time. That is especially true of cockles. There can be a great surge of regeneration which produces abundant stocks again.
It is important that the penalties are serious and that they are taken seriously by those who consider breaking the regulations. However, I urge my hon. Friend the Minister and my other hon. Friends to consider seriously the force behind the amendments. They are designed to ensure that unwitting people cannot stray into breaking the regulations and into criminal convictions, with severe penalties attached to them and with draconian powers of search, detention and confiscation, without being aware that they have done so. That is why hirers and owners who may have no connection with the current use of the piece of equipment concerned should be protected as much as possible. I believe, and I urge the House to accept, that the amendments are absolutely accurate and spot on about the issue. I commend them to the House.
§ Mr. George Kynoch (Kincardine and Deeside)
This has been an interesting debate on important amendments. I draw attention to the fact that there are no Scots spokesmen present on the Opposition Front Bench. I know that the hon. Member for Dumbarton (Mr. McFall), who is a firm advocate of the Bill, would have liked to be here today. With the greatest of sympathy from Conservative Members, we are well aware that he is attending the funeral of John Smith. I know that all Scottish Conservative Members have great sympathy for John Smith's family at this time and our feelings are with them today.
I shall deal first with amendments Nos. 1 and 2 and then with amendment No. 6, which is slightly different. Amendments Nos. 1 and 2 raise the question whether the owner of a vehicle or equipment should be criminally liable, without proof of complicity on his part, if the vehicle or equipment is used in breach of an order under 1046 the Bill. Amendment No. 2 raises the question whether such an owner should be criminally liable if he has hired out his vehicle to another person. Rightly, those are issues of concern to my hon. Friend the Member for Worcester (Mr. Luff) and I am grateful to him for providing the opportunity to explain the intention of the measure. The House will know that the Inshore Fishing (Scotland) Act 1984 already contains, in section 4(1), a similar measure in relation to fishing boats. Where a fishing boat is used in the commission of an offence under that Act, the master, the owner and, if there is one, the charterer are all guilty of an offence.
The purpose of clause 2, which the amendments seek to alter, and, indeed, the purpose of the Bill as a whole is simply to mirror the existing provisions of that 1984 Act. The purpose of the proposed new subsection 4(1A) is therefore to ensure that owners and hirers of vehicles and equipment are in no different position from the owners and hirers of fishing boats. The principle on which both measures is based is that while, in either case, those persons may not directly be conspiring to bring about the commission of an offence, they may directly or indirectly make profit from its commission. I am anxious that the Government have as complete an arsenal of weapons as possible to assist them in policing those measures. To deprive them of recourse against owners and hirers would leave open a major loophole of enforcement. We may find that the minnows are caught, but the big fish swim undisturbed.
It is also part of my consideration that persons should not be able to avoid liability under the law by the subterfuge of entering into contracts of hire with the operators of their vehicles or equipment, leaving those operators to face prosecution even though the bigger fish may still, through indirect routes, be the ultimate beneficiaries of fishing activity. In fact, I have heard many stories of the shore at Southerness on the Solway firth, where numerous vehicles have been seen ploughing up the beach suction dredging, and I have been told that a person arrives in a car with a wad of bank notes and pays those people for the services. That person, who, presumably, owns the equipment, should be responsible if there is a breach of the Act.
I hope that my hon. Friend the Member for Worcester will accept that careful consideration has already been given to the issues that he has raised today. I fully appreciate that his concern may rest with entirely innocent owners or the hirers of vehicles or equipment, but he must bear in mind the fact that that may be the position of owners or charterers of fishing boats as well. He should also bear it in mind that, on the whole, we will be dealing with specialised vehicles and equipment which may have to be adapted for that purpose. It would also be fair to say that, in exceptional cases of complete disconnection between an owner and the commissioner of an offence, the investigating authorities, the prosecuting authorities and, of course, the courts will have some discretion in the matter of responsibility. Of course, the Crown will have regard to public interest and the courts to culpability in reaching their respective conclusions. Therefore, it is my intention to close any loophole by ensuring that owners of vehicles and equipment and persons who take them on hire continue to be liable under the measure.
I hope that my hon. Friend will accept my arguments and recognise that the circumstances which cause him concern will be rare—if, indeed, they arise at all. The 1047 benefits of the proposed measure clearly outweigh any disadvantage which he envisages. He referred to the point raised by the hon. Member for Dumbarton in Committee, with particular reference to Avis, Hertz and cars. I said in Committee that the equipment had to be an integral part of the equipment carrying out the dredging operation and, therefore, that an innocent car parked on the foreshore, which clearly was not part of the dredging operation, would not be affected.
§ Mr. Kynoch
If my hon. Friend would bear with me and, also, to save time, I should like to put on the record a letter from my hon. Friend the Minister to the hon. Member for Dumbarton on 15 March. I shall refer only to the section that applies to the matter and not include the introduction. It states:The proposed powers under clause 1 of the Bill could only be used where a vehicle played an active part in fishing activity, such as pulling and dredging equipment along the foreshore. Any other use would not come within the purview of the Bill.The Bill proposes that hirers should also be liable where fishing has taken place from their vehicles partly to mirror the powers already available against charterers of vessels and partly to prevent parties from avoiding the consequences of liability by contracting out equipment. The Bill was carefully drafted to meet that concern without drawing in vehicles which were innocently using the foreshore. I hope this clarifies the issue for you.
§ Mr. Luff
I appreciate my hon. Friend's point, but I am still concerned about what happens to a car that is being used to transport people to the beach to take part in illegal activity, unwittingly, for example. Would that be caught in the provisions of the Bill? It may be a technical point. I do not think that he has answered my point about a tractor that is being unwittingly used. I still feel very nervous about those points.
§ Mr. Kynoch
I thank my hon. Friend for expanding on that. A vehicle transporting people to the beach would not be covered. The purpose of the Bill is to cover the equipment concerned. That means the equipment involved in the dredging. To consider a tractor is a fair point, which was raised by my hon. Friend the Member for Ayr (Mr. Gallie) in Committee. However, if a tractor were connected to the dredging equipment, it would be part of the equipment and therefore should be part of the process of seizure. Therefore, the owner of that tractor should already also come under the auspices of the Bill, being similar to the charterer of a vehicle.
§ Mr. Paice
The point that my hon. Friend has just raised was precisely what I was trying to get at in my short intervention. Today, the vast majority of farmers and others do not buy tractors outright, but use a range of different financing methods and leasing is increasingly popular. As I understand the law, for vehicles or equipment bought on lease, the title does not transfer to the operator, but remains with the financial institution. My hon. Friend's proposals are made for worthy reasons and I understand everything that he has said so far, but it means that the big finance houses would find themselves liable, as owners of title, for tractors that were used.
§ Mr. Kynoch
My hon. Friend raises a valid point, but I would argue that a similar situation exists in relation to boats. Very few boats are bought outright and the purchase 1048 of them involves finance companies as well. I agree that an innocent farmer may well unwittingly rent out his tractor to someone else, but I argue that, if he knows that there are restrictions on cockle fishing in an area, it is his responsibility to find out the purpose for which his tractor is being rented.
I shall move on to amendment No. 6, in relation to clause 3. That would impose a requirement on an officer who has seized a vehicle or equipment to inform its owner, if the owner has not been present at the seizure, of that fact and how matters proceed. The Bill intends to give power to British sea fishery officers to seize vehicles or equipment which, in their opinion, have been used to commit an offence under the Bill. The purpose of that power is not permanently to deprive the owner of the vehicle or equipment, but to ensure in cases in which it is appropriate to do so that the vehicle or equipment is available as evidence to be put before the courts to make out a case. It often happens that the only proper evidence that the law will accept is the offending article itself.
§ Mr. Waterson
May I clarify one point, which I covered in my short speech? Under section 8 of the 1984 Act, there is also a power for what is called poinding—rather than being a typographical error, I assume that that is a Scottish legal expression—and sale of the boat and its gear and catch. Is my hon. Friend saying that it is not envisaged in the Act, as amended by this provision, that there can be permanent deprival of equipment? It may not be a question that my hon. Friend can answer on his feet, but in the 1984 Act, which is our starting point for the debate, poinding, whatever that is, and sale are envisaged.
§ Mr. Kynoch
I would not dare to embark on the difference in the detailed legal terminology between Scotland and England, but I can confirm that what my hon. Friend says is absolutely correct. There is no intention of permanent seizure.
To return to the point about tractors and leasing companies, as I said earlier, the procurator fiscal has some latitude in whether he pursues the owner. Obviously, he would not cause an innocent owner to be pursued. However, the provisions for the owner to be included have to be in the Bill.
I was about to explain that the evidence of the equipment is usually known as the best evidence rule. Seizure should therefore be seen as an evidential matter rather than as a form of summary justice. Powers to detain fishing boats and to seize fishing gear are already available under the provisions of the Inshore Fishing (Scotland) Act 1984 and other provisions of sea fishing legislation. I believe that such powers are used sparingly and only where circumstances demand, particularly in the case of the tying up of a fishing boat. I envisage that the proposed powers would be similarly sparingly and intelligently used by those who exercise them.
At present, there is no equivalent provision to that proposed by my hon. Friend the Member for Worcester in any of the sea fishing legislation of which I am aware. That omission does not appear to have given rise to a problem. Owners of boats or gear have always seemed to find out about their detention or seizure—believe it or not, in no time at all. Obviously, word travels very quickly if something is seized and there has been a contravention of the law.
1049 10.30 am
I recognise the concern of my hon. Friend the Member for Worcester, but I wonder whether the provision would do all that he expects of it, or whether it is entirely necessary to be included in the Bill. My hon. Friend may believe that the provision encompasses boats. That is not the case because it refers only to equipment.
The ownership of a vehicle may be difficult to determine. The vehicle may be the subject of a hire contract and the appropriate person to notify may be the person who has taken it on hire, as opposed to the leasing company or hirer. By the time that the appropriate person to notify has been found, the purposes of the provision may have been rendered unnecessary. Although the appropriate person may be known, that person may not be able to be traced in good time.
For those reasons and more, which I am sure may occur to my hon. Friends, I am reluctant to see the measure included in the Bill. However, I am aware that in many respects the Scottish Fisheries Protection Agency, which will primarily be concerned with the enforcement of the Bill, currently carries out its various duties in such a way as to least upset lawful fishing activities, so far as that is practicable. Indeed, in line with the Government's citizens charter commitments, it has produced a code of enforcement practice which, among other things, specifically commits itself to carrying out its duties in that way.
In the spirit of that policy, I understand that the agency might see the merit of some form of notification being made by the agency in the case of seizure of vehicles or equipment where circumstances merited it—for example, where it was clear that those responsible for the equipment or vehicle on the spot were unable to do so.
When the Under-Secretary of State for Scotland, my hon. Friend the Member for Eastwood (Mr. Stewart) responds to the debate, I wonder whether he will be able to offer a commitment in relation to notification in those circumstances. If that is the case, I hope that my hon. Friend the Member for Worcester will be prepared to withdraw his amendment, which I fully understand and appreciate, but which I believe to be unnecessary.
§ The Parliamentary Under-Secretary of State for Scotland (Mr. Allan Stewart)
My hon. Friend the Member for Worcester (Mr. Luff) raised several important points which, as he said, were referred to by the hon. Member for Dumbarton (Mr. McFall) in Committee. To underline the point made by my hon. Friend the Member for Kincardine and Deeside (Mr. Kynoch), we entirely understand why the hon. Member for Dumbarton and his colleagues and colleagues in the minority parties from Scotland are in Scotland today and not here for this debate. However, it would be appropriate to say that they are fully supportive of the Bill in principle.
Hon. Members may also wonder why I am responding to the debate rather than my hon. Friend the Member for Dumfries (Sir H. Monro), who has been very closely involved with the Bill both as the fisheries Minister and as a constituency Member. Hon. Members will be aware that Lady Monro has been in hospital for a few days. I have to tell the House that she died late last night. I am sure that the whole House will wish to extend its sympathies to my hon. Friend the Member for Dumfries.
My hon. Friend the Member for Worcester raised genuine issues. However, at the end of my remarks, I hope 1050 that he will follow the advice of my hon. Friend the Member for Kincardine and Deeside and withdraw the amendment. As my hon. Friend the Member for Kincardine and Deeside said, the Inshore Fishing (Scotland) Act 1984 contains a similar measure in relation to fishing boats. Where a fishing boat is used in the commission of an offence under that Act, the master, owner and—if there is one—the charterer are all guilty of an offence.
The purpose of clause 2, which the amendments seek to alter, and indeed the essential purpose of the Bill as a whole, is to mirror the existing provisions of the 1984 Act. The purpose of proposed new subsection 4(1A) is therefore to ensure that owners and hirers of vehicles and equipment are in no different position from owners and hirers of fishing boats. I emphasise that that was very much the view of the fishermen themselves.
§ Mr. Michael Fabricant (Mid-Staffordshire)
I understand my hon. Friend's argument and the fact that he wants consistency between the ownership of fishing vessels and the ownership of tractors, and so on. However, does he accept that the financial provisions that are available now are different from those that were available in 1984? In particular, leasing then was not such a widespread means of operating a vessel or a tractor as it is today. As a consequence, the law should reflect that.
§ Mr. Stewart
I accept that my hon. Friend has a point. However, we are talking about very specialised equipment. We are not talking about someone hiring a car or a van, or even a tractor, and going out for a picnic. It is fairly obvious what the hirer's purpose would be.
§ Mr. Paice
I want to clarify the point, as my hon. Friend the Minister seems to misunderstand slightly. There is a definite distinction between hiring and leasing. The point that I raised, and the point to which I believe my hon. Friend the Member for Mid-Staffordshire (Mr. Fabricant) is referring, is leasing—using the money of a finance house to lease a vehicle or a piece of equipment for several years, just as I lease my computer equipment here in the House of Commons instead of having to pay for it upfront. It is a form of purchase, but the title remains with the finance house.
§ Mr. Stewart
I accept that my hon. Friend has a genuine point, to which I shall return. I agree with my hon. Friend the Member for Kincardine and Deeside that the enforcement authorities will have no interest in prosecuting an innocent person who has perhaps leased a vehicle in complete innocence of its purpose. However, on balance, he was right to say that the Government should have as complete an arsenal of weapons—to use his phrase —as possible to assist them in policing these measures. To deprive the Government of recourse against owners and hirers would leave open a fairly major loophole in enforcement.
I do not want to mix metaphors, but the minnows might be caught while the big fish would swim undisturbed if that were the case. It is clearly possible that there could be subterfuge in respect of those entering into contracts of hire with the operators of the vehicles or equipment leaving the operators to face prosecution even though the people behind the activity might be the ultimate beneficiaries of the activity.
1051 I hope that my hon. Friend the Member for Worcester will accept that we have considered the matter carefully. However, there are two arguments. The first relates to the owners or charterers of fishing boats. We are bringing the provisions of the Bill into line with that. Secondly, in exceptional cases—which is the point raised by my hon. Friend on leasing—where there is a complete disconnection between the owner and the commissioner of an offence, the investigating authorities, the prosecuting authorities and, ultimately, the courts—
§ Mr. Kynoch
Does my hon. Friend accept the point that I made earlier—at present, boats are frequently leased and the operation does not seem to cause any problems in the existing Act?
§ Mr. Stewart
My hon. Friend is correct to refer to the 1984 Act. The provisions of that Act do not seem to create any problems; there is no evidence that there is a problem with the Act. Where there is a complete disconnection between an owner and the commissioner of an offence—which is, essentially, my hon. Friend's point—the investigating authorities, the prosecuting authorities and the courts have discretion with regard to their responsibilities. The Crown will have regard to the public interest and the courts will have regard to culpability in reaching their respective conclusions.
§ Mr. Luff
May I be clear on what my hon. Friend is saying? Is he saying that, notwithstanding the fact that clause 2 saysWhere an offence is committed by way of contravention of any order … each of the following persons shall … be guilty of an offence",the courts will have discretion? If so, that would be a real comfort to me in considering what I should do with my amendments. It seems to be clear that there is no discretion. However, if my hon. Friend is saying that there is discretion, that is extremely welcome.
§ Mr. Stewart
I am grateful to my hon. Friend—obviously, it is an important point. Perhaps I can confirm exactly what I am saying: the courts will have some discretion in the matter for their own responsibilities. The Crown will have regard to the public interest and the courts will have regard to culpability in reaching their respective conclusions. I hope that that reassures my hon. Friend.
In conclusion, I understand entirely the points made by my hon. Friends with regard to amendments Nos. 1 and 2. However, I hope that they will agree that the benefits of the proposed measure—because of the assurances that I have been able to give with regard to the powers of the courts—outweigh the disadvantages, which they envisage.
I shall refer briefly to some of the other points made by my hon. Friends with regard to amendment No. 6. I can confirm that vehicles on the foreshore would not be covered unless they were actively involved in fishing activities. If someone hires my motor car, or that of my hon. Friend, and goes to the beach for a picnic, that would not be subject to the provisions of the Bill. Vehicles innocently using the beach would not be affected; nor would vehicles being used only to transport fish from the beach to processing plants or fish markets. Under the Bill, the vehicles must be specialised. The equipment is 1052 extremely specialised. I assure my hon. Friend that car hire companies would be unlikely to be affected by the provisions of the Bill.
My hon. Friend the Member for Kincardine and Deeside rightly pointed to the best evidence rule with regard to seizure. It is right to underline his point that seizure should be seen as an evidential matter. It is not a matter of summary justice; it is simply an evidential matter. What we are doing is creating a level playing field between fishing boats and fishing gear on the one hand and land-based fishing activities on the other.
I hope that I have been able to reassure my hon. Friend the Member for Worcester on those matters. He has raised legitimate points, as were raised in Committee.
§ Mr. Luff
I will be reassured if my hon. Friend is able to give an assurance that fishery protection officers will exercise their powers carefully and responsibly, and consider taking steps to notify owners, even if the owners are not party to an offence. If my hon. Friend can give me that assurance, I will be greatly reassured.
§ Mr. Stewart
My hon. Friend makes a valid point, which was also raised by my hon. Friend the Member for Kincardine and Deeside. We have been in touch with the Scottish Fisheries Protection Agency on that matter. I understand that it has given that assurance on the way in which it will handle such matters, so I can give that assurance to my hon. Friend. In the light of the assurances that I have been able to give, I hope that my hon. Friend will feel able to withdraw his amendment and not push it to a vote.
§ Mr. Luff
I am extremely grateful to both my hon. Friends the Member for Kincardine and Deeside (Mr. Kynoch) and the Minister for their remarks. I think that I am largely reassured. Ideally, I should have liked more time to test these amendments in Committee than I have had the opportunity to do today. However, I am anxious not to delay the House any further.
As to amendments Nos. 1 and 2, the assurance that I have been given that there is some discretion to the courts with regard to public interest is important. I am glad that that is on the record, and I am glad that it will be borne in mind in the future. As to amendment No. 6, what my hon. Friend the Minister said at the end of his remarks gives me precisely the reassurance that I was looking for. Therefore, I beg to ask leave to withdraw the amendment.
§ Question put, That the amendment be made:—
§ The House divided: Ayes 0, Noes 28.1053
|Division No. 247]||[10.47 am|
|Tellers for the Ayes:|
|Mr. Dennis Skinner and|
|Mr. John Austin-Walker.|
|Arbuthnot, James||Fabricant, Michael|
|Arnold, Sir Thomas (Hazel Grv)||Fishburn, Dudley|
|Atkinson, Peter (Hexham)||Fox, Dr Liam (Woodspring)|
|Banks, Matthew (Southport)||Heald, Oliver|
|Bottomley, Peter (Eltham)||Hughes Robert G. (Harrow W)|
|Conway, Derek||Kirkhope, Timothy|
|Cope, Rt Hon Sir John||Kynoch, George (Kincardine)|
|Evans, Roger (Monmouth)||Leigh, Edward|
|Luff, Peter||Townsend, Cyril D. (Bexl'yh'th)|
|McLoughlin, Patrick||Waterson, Nigel|
|Montgomery, Sir Fergus||Wheeler, Rt Hon Sir John|
|Newton, Rt Hon Tony||Wood, Timothy|
|Shepherd, Colin (Hereford)||Tellers for the Noes:|
|Stern, Michael||Mr. David Clelland and|
|Stewart, Allan||Mr. Greg Pope.|
§ It appearing on the report of the Division that 40 Members were not present, MR. DEPUTY SPEAKER declared that the Question was not decided, and the business under consideration stood over until the next Sitting of the House.
§ Mr. Stewart
On a point of order, Mr. Deputy Speaker. I wonder if you could give the House guidance on what now happens.
Every political party in Scotland has supported this Bill—
§ Mr. Sheerman
On a point of order, Mr. Deputy Speaker. The Bill has been killed by the Government and their tactics because they were unable to control the filibuster—
§ Mr. Stewart
On a point of order, Mr. Deputy Speaker. I do not want to raise the temperature in the House today of all days, but would you not rule that the Bill has been universally accepted by political—
§ Mr. Deputy Speaker
Order. With great respect to the Minister, I have already ruled. We must go on to the next business.
§ Mr. Deputy Speaker
Is this a point of order on the same subject? If it is, I have already ruled on the matter.