*LORD BALFOUR of BURLEIGH
rose to ask the Representative of the Scottish Office whether it was the case that certain persons recently convicted in the Sheriff Court at Elgin for illegal trawling in the Moray Firth, and imprisoned in default of payment of fines, had been released without the payment of the fines; and, if so, whether he could, without detriment to the public interest, give any explanation of the reasons which had led to their release; and to ask His Majesty's Government whether they would state what policy they intended to pursue in future regarding trawling in the Moray Firth.
The noble Lord said: My Lords, when I put down this notice last week it was entirely from a desire to gain the information which is asked for in the first two Questions on the Paper. I had then no intention of making any remarks at all on the subject. Owing, as your Lord- 980 ships are aware, to a request on the part of His Majesty's Government, I postponed the notice for a week, and I am bound to say that although a certain amount of more general interest has been aroused in the matter by this time than would have been the case last week, the first two Questions which appear on the Paper have somewhat lost their interest, because we now know, through what are described as the usual channels of information, that the individuals who form the subject of the Questions have been released from prison, and, as I understand it, without the payment of the fines in default of the payment of which they were imprisoned. I think we can also form a fairly accurate guess that their release was owing to friendly representations made by the official representatives of another Power. Since I put down the notice a copy of the local paper has been sent to me which shows that at the time of the conviction the representative of that Power attended the Court and protested against conviction, whether it was to result in the payment of a fine or in imprisonment.
In these circumstances, therefore, the real interest in the matter centres round the third Question standing in my name on the Paper, in which I ask His Majesty's Government whether they will state what policy they intend to pursue in future regarding trawling in the Moray Firth. I think it would probably be not inconvenient to your Lordships if I made a very short statement regarding the history of this matter and the reasons which have induced me to ask for this information. This is no new question. It is one which has been agitated and discussed in various phases at any time during the last fifteen or sixteen years, and as regards the main features of it there is no difference of opinion, as I understand, and certainly no difference of policy, and I believe no possible controversy between the two sides of the House or the representatives of either political party. Whether what has been done is right or wrong we are, up to quite recent times, both in it, if I may use the expression.
The Act of Parliament under which the action was taken was passed by 981 Lord Salisbury's Government in 1889. The first part of the area which was closed against trawlers inside the Moray Firth, namely, the area of the Dornoch and Cromarty firths—was closed by by-law during the tenure of office of my noble friend the late Lord Lothian, who was Secretary for Scotland up to 1892, and the larger part of the area, about which the most controversy can arise, that large portion of the Moray Firth which is outside the territorial limits, was closed under by-law during the tenure of office of Sir George Trevelly an in the autumn of 1892. Since I succeeded to the office of Secretary for Scotland in 1895 no addtion to the area closed has been made up to the present time. I found, so far as the closing of areas was concerned, the status quo which exists at the present time, and my share in the transaction was in endeavouring to administer the conditions which I found existing when I went into office, with this sole exception—I mention it so that the history may be complete—that during my tenure of office the by-law was upset on a technical point by the Court of Session, and I was responsible, under the Government of the day, for renewing it in a form which got rid of that pure technicality. I only mention this circumstance to show that my object is not to raise anything like controversy as to the merits of the closing of this area, because I believe it to be entirely justifiable on many grounds. I am not going into the reasons, because I do not know that they are challenged.
The controversy proceeds to some extent from a difference of opinion between those who are engaged in line-fishing and those who are engaged in the practice of trawling. Two of a trade, as we know, never agree, and the interests of these two classes of fishermen are to a great extent divergent; but, whatever may be said upon one side or the other of that part of the question, the real case for the closing of this area is that it can be established upon scientific evidence that there are areas inside the Moray Firth which are the breeding grounds of certain classes of fish, and for the purpose of protecting the breeding grounds of edible fish it is important that trawling during certain periods of the year should 982 not be resorted to. I personally would be inclined to go further. I am afraid there is strong ground for the assertion that the whole supply of a certain class of the most important edible fish is being greatly diminished, I will not say by trawling alone, but by superior methods of capture which have been resorted to in the last, few years. Lord Eversley, who is not here to-day, took up the case on the other side and wrote an article some years ago to prove that there was no such prima facie case as was alleged regarding the depletion of certain classes of fish. I do not want to raise that controversy upon this occasion. It is not necessary to do so, as it does not enter into the particular question which we have to look at to-night.
As I have said, there has been a prolonged agitation upon this matter. At first the opposition to the policy of the Scottish Office proceeded from those interested in trawling at Aberdeen, who, for a long time, have maintained a kind of unequal contest with the authorities. By several cases, some of them taken on appeal to the Supreme Court, it was established that in law the Fishery Board of Scotland was right, and that British subjects could not fish within the prohibited areas, and they were prevented from landing the fish at Aberdeen. The matter then assumed a different phase. Some of our English friends took up the industry, and by boats largely owned at Grimsby and elsewhere trawled in these forbidden waters. Again cases were taken to the Courts, and the validity of the by-laws and the prohibition against this class of fishing was firmly established. There was, however, no power to prevent them landing their fish at Grimsby. That has been the case up to the present time. But owing to the additions which were made to the Fishery Board's cruisers policing these waters, it became a very hazardous occupation, and the fines imposed were such as to render it not very well worth while. After that another policy was pursued. Some of the boats engaged in trawling, whether owned at Grimsby or elsewhere, I do not know, were by one means or another transferred to the flag of other countries. Some, I believe, were registered in Denmark, and others in Norway, and, for all I know, 983 elsewhere. Again a long contest in the law courts began, and was carried on from stage to stage.
Now I come to the part subsequent to my ceasing to be Secretary for Scotland. In the year 1905 a case was taken in which a trawling vessel, owned under the Norwegian flag, was accused of fishing just outside what we ordinarily would call the territorial limits but inside what is admitted by international law to be waters over which the country close to which they are has a right to exercise control. It is a rather difficult and complicated point, but I think I can make it clear to your Lordships. Across the mouths of Dornoch and Cromarty Firths is not a distance of ten miles. Under these circumstances if the territorial country closes the waters it is allowed to extend jurisdiction to three miles beyond a line drawn from headland to headland. The first case, to which I am now alluding, in 1905 was taken against a Norwegian vessel which was trawling outside the mouth of the Bay but within three miles from the vertical line across from headland to headland. The decision was appealed against, but the Court of Session upheld the conviction. In that case the argument was that the Norwegians were not parties to the North Sea Convention and that therefore they could not be prosecuted; but in that case the master was prosecuted and fined, and I believe the fine was paid.
The next step is that which brings us down almost to current history. A case was taken against a vessel, ostensibly owned under the Norwegian flag, for trawling outside the territorial waters, but inside the closed area of the Moray Firth, and the commander of the vessel was fined in the Sheriff Court. He appealed to the High Court of Justiciary, and having regard to its importance the case was heard by the whole strength of the Court, thirteen Judges sitting together. They gave their decision in July last, and it is round that decision that some of the points of difficulty arise. The point which really had to be decided by the Court on that occasion was this. The words of the Herring Fishery (Scotland) Act, 1889, Section 6 984 Sub-section 3, present the point of difficulty. Therein this provision appears—Any person who uses any method of fishing in contravention of any enactment or of any by-law of the Fishery Board shall be liable—and so on. The controversy ranged round the meaning of the words "any person." The contention of the Foreign Office, as I understood it during all the time I was Secretary for Scotland, and I believe I shall not be contradicted when I say they still hold that view, is that Parliament, instead of saying "any person," ought to have said "any British subject" or "any British person." I submit that we must take the words as they stand, and if Parliament said "any person" we must, I think, believe that Parliament knew what it was doing, and that it intended to place the prohibition, not only upon British subjects, but also upon those who are not British subjects. That is the view which was taken unanimously by the thirteen Judges.
I will not weary your Lordships by many quotations. I hold in my hand a reprint of the judgments in the case in question. Lord Kyllachy, in giving his judgment, said that the Act—declares simply that within a precisely defined area a certain method of fishing, known as beam or otter trawling, shall not be practised.He proceeded—In the first place the scheme and object of the enactment have to be considered….Accordingly it would be, I think, easier to suppose that the Legislature had reached even an erroneous conclusion as to the extent of its jurisdiction, and had legislated accordingly, than that it had resolved deliberately to impose a futile restriction upon its own countrymen and at the same time to create a hurtful monopoly in favour of foreigners.And again, at the conclusion of his judgment, Lord Kyllachy said—I am prepared to consider myself bound to hold—what is sufficient to support this conviction, viz.—that upon its just construction the Act of 1889 asserts the existence, for the protective purposes to which it relates, of the jurisdiction in question, and that that is enough for us sitting here as one of His Majesty's Courts.The individual who was the subject of that judgment was, of course, convicted; the conviction was upheld, and he either paid the fine or was imprisoned, 985 I am not sure which. That was in July last.
During the autumn other cases were taken, and a considerable number of them were tried last month in the Sheriff Court of Elgin. Those summoned were fined, the fines totalling £1,300. They did not pay and were committed to prison. We now know that the Norwegian Vice-Consul protested, and that these individuals were subsequently released. I wish to say distinctly that I make no complaint whatever of the action of Norway in this matter. I believe the Norwegians are thoroughly friendly to us. I believe they did only what we should have done under similar circumstances. But what I want to point out is this, that although these vessels are colourably Norwegian, they are registered fictitiously on the Norwegian register. I believe the ownership is British, the money which is expended in working them is British, and I think I am within absolutely what is right in saying that except for one individual on each ship there is not one person on board who is not a British subject. I venture to say that, whatever Norwegian feeling may be about the prosecution, fining, or imprisonment of Norwegian subjects, there is a strong ground for diplomatic representation that the Norwegian law should not be allowed to be used for what is really a fraud upon British jurisdiction. I hope, therefore, that diplomatic action may be taken which will lead to a better state of matters than obtains at the present moment.
What I do not understand is this—If the Scottish Office and the Government really want to stop this trawling in the closed area, why do they proceed against the one foreigner on these vessels? Why do they not proceed against the British subjects on board? That is a point which seems to me to require explanation. I have sufficient confidence in the discretion of my old Office, in the wisdom of those who are advising it, to assume that there must be some reason for prosecuting the one foreigner on these boats instead of the number of British subjects who are there. I see in his place the noble Lord, I will not 986 say who represents Grimsby in this matter, but who always represents very ably Grimsby's interests (Lord Heneage), shaking his head. He will have an opportunity of telling us what he knows, and I hope he will tell us all he knows, for I am sure he is in possession of a great deal of information that would be extremely useful to me and probably to His Majesty's Government. There is a great deal of sympathy in Grimsby with these foreigners. I noticed inthe newspapers the other day resolutions of profound sympathy with the Norwegians who had been prosecuted and put in prison. I have yet to know why there should be this philanthropic interest in Norwegian subjects at Grimsby, of all places in the world, if there was not something behind it. It may not be entirely Grimsby. Aberdeen may be in it too; but what I suggest to your Lordships is this, that when the Government, backed by Parliament and acting under the authority of Parliament, resolve, for certain purposes, to close a certain area, we are entitled to hope that evasions of this kind, whether from Grimsby, Aberdeen, or elsewhere, in the mistakenly selfish interests of one class of fishermen, will not be allowed to prevail.
I hope, as I have said, that we shall hear that friendly representations will be made to Norway to take care that something is done to prevent the registration of ships for this purpose. I suggest that one method of settling the matter without the necessity for diplomatic action at fill would be to prevent the landing in England as well as in Scotland of fish caught within prohibited areas. My case is, briefly, this. If, as I think, it is right to maintain this prohibition; if, as I think, there is a strong practical case for it, then I say it ought to be made effective. If you do not mean to make it effective, repeal it. The present state of matters seems to me to be perfectly indefensible, both in logic and for any practical purpose. I sincerely hope we shall hear from His Majesty's Government that they mean to make these restrictions effective, and will not allow any supposed interest of one class against another to interfere with what I venture to suggest is their plain duty.
*The UNDER-SECRETARY of STATE for FOREIGN AFFAIRS (Lord Fitzmaurice)
My Lords, I desire, in the first place, to thank the noble Lord who has brought forward this matter, for the calm and temperate manner in which he has presented a question that excites, for natural reasons, a very great amount of feeling in different parts of the country.
In replying to the noble Lord, I feel that I am labouring under a disadvantage, because of the absence, through illness, of the Lord Chancellor, and Lord Carrington, President of the Board of Agriculture and Fisheries, who would have taken part in the discussion. My noble friend, Lord Eversley, who took a great interest in the subject, and drew up the Report of the old Fisheries Commission of 1863, is also absent, unfortunately, for the same reason of ill-health. And may I be allowed to say that I feel that in a discussion of this kind, which involves the most difficult of all legal matters, the conflict of municipal and international law, we on this side suffer by the loss of the noble and learned Lord, whose decease we read of with such deep feelings of regret in the papers this morning.
The noble Lord opposite, who has an almost unrivalled acquaintance with the subject, owing to his long connection with Scottish administration, has justly observed that both sides of the House are, to a certain extent, equally responsible for this legislation. The fact is that these fishery statutes, and the by-laws under them, are part of a long and not, as yet, terminated controversy. As representing the Foreign Office I do not think it is desirable on my part that I should attempt to plunge into the details of that controversy. There are others, far more competent than I can be, to advise on the practical aspects. During the last few days I have heard at the Foreign Office such a number of completely contradictory statements in regard to the position of the fishing interests affected by this legislation, for instance in the case of a great fishing centre like Aberdeen, I have heard such violent statements that the town is entirely for and also entirely against trawling, that I feel that if I attempted to advise your Lordships I should be undertaking a task of the greatest rashness. I will therefore con- 988 fine myself to what may be called the defence of the action of the Foreign Office.
Early in 1906 proceedings were commenced against a Dane, master of the steam trawler "Niobe, "a vessel flying the Norwegian flag, for having trawled within the area specified in the by-law, though it was admitted that the offence took place outside the three-mile limit. The accused was convicted; he appealed, but the conviction was upheld by the High Court of Justiciary. Since this case proceedings have been taken against various other persons, including certain Norwegian and Swedish subjects, for offences against the by-law. Convictions ensued, and the offenders were condemned to pay fines. Certain of the offenders refused to pay, or were unable to pay, the fines imposed, and were in consequence imprisoned. Representations were received from the Swedish and Norwegian Ministers in London with regard to these cases, and the Crown acting on the advice and recommendation of the Secretary for Scotland, remitted the remaining portion of the sentence of imprisonment and ordered the release of the men. The further question of the repayment of the fines which had been paid is under the consideration of the Government. I believe that any feeling on the subject which has been aroused in Scotland is due to the fact that it is thought that the trawlers were really owned by British subjects at Grimsby, and that; the adoption of the Norwegian flag was a device to evade the Scottish Fishery Regulations. I may, however, point out that the transfer of these vessels to the Norwegian flag was, as far as could be ascertained, performed in a perfectly regular manner, and that the facts, from the point of view of the Norwegian Government, were that Norwegian subjects fishing in extraterritorial waters, as they had a right to do, were fined and imprisoned by the authorities of a friendly Power. I have been asked to state whether proceedings were actually taken against a vessel as distinguished from an individual. In one case a trawler was arrested, the "Sando, "and brought into port by the instructions of Captain Wright, of the "Freya," but almost as soon as the trawler arrived Captain Wright received a telegram in 989 reply from the Fishery Board instructing him to allow the master and the boat to go at once, instructions which were carried out. It will be seen, therefore, that in dealing with this matter we are limited entirely to the case of proceedings against persons.
I pass to the position of the Foreign Office. The jurisdiction which is exercised by a State over its merchant or trading vessels upon the high seas is conceded to it in virtue of its ownership of them as property in a place where no local jurisdiction exists. Therefore, the first thing that, in these cases, the Foreign Office has to ask is, Was there or was there not, territorial jurisdiction in the place where the alleged events occurred? In regard to that I can certainly say that according to the views hitherto accepted by all the Departments of the Government chiefly concerned—the Foreign Office, the Admiralty, the Colonial Office, the Board of Trade, and the Board of Agriculture and Fisheries—and apart from the provisions of special treaties, such as, for instance, the North Sea Convention, within the limits to which that instrument applies, territorial waters are:—First, the waters which extend from the coastline of any part of the territory of a State to three miles from the low-water mark of such coastline; secondly, the waters of bays the entrance to which is not more than six miles in width, and of which the entire land boundary forms part of the territory of a State. By custom however and by Treaty and in special convention the six-mile limit has frequently been extended to more than six miles.
The Foreign Office of late years, as your Lordships are aware, has been involved in many important controversies where these questions have been raised—there was the famous decision of the High Court in the case of the "Franconia, "the controversy with Denmark with regard to the fishing rights in the waters of Iceland, and last, but not least famous, the Behring Sea Arbitration. In all these cases the contention of the Foreign Office has been what I have described.
At the time of the Behring Sea Arbitration this fishery controversy had already begun, and therefore it was not unnatural that those who were arguing the case of 990 the United States should take advantage of what they considered might be a damaging admission or confession on our part in regard to the Herring Fisheries (Scotland) Act, 1889. Reference was expressly made to the fact that this Act had been made applicable within a line drawn from Duncansby Head to Rattray Point, and that "any person" who violated it was liable to a penalty. From this it was sought to be argued that the application of the Act beyond the three-mile limit was not therefore limited to British subjects. In the British argument it was pointed out in reply that "any person" was an expression commonly used in British statutes dealing with crimes and misdemeanours, and was never applied except to persons owing obedience to the British Parliament. The distinguished lawyers representing Great Britain stated that—Both in the case of Colonial laws and in the case of English laws the words 'any person' mean 'any person subject to the jurisdiction of the Legislature passing such laws.'That is "subject" in accordance with the principles of international and constitutional law.
I hope your Lordships will understand that I am not presuming for a moment to question the decision arrived at by the High Court of Justiciary considered as a matter of dry law. Indeed, I do not see how the Court could have arrived at any other decision, since it was bound to administer the law as laid down in an Act of Parliament without reference to any external considerations whatever. If I may venture to say so, the Foreign Office would, I think, have acted very unwisely if it had appeared in this controversy to question the decision of a strong Court like this, presided over by so able and accomplished a Judge as the Lord Justice-General.
The principle on which all the judgments proceeded was that, as Parliament had legislated in a definite manner for all persons within a defined area, Parliament must be presumed to have satisfied itself of its power and right to do so before passing the enactment. The passages in the judgments that deal with the territorially of the Firth were apparently introduced to rebut the appellants' contentions that Parliament could not have meant the by-law to apply 991 to foreigners, because the waters were not territorial. The Court, in effect, said, "It is not certain that the entire Firth is not territorial, and as the appellants' construction would reduce the enactment to impotence, we shall not follow it." There is absolutely nothing to justify the idea that there has been a collision of opinion between the Foreign Office and the highest Court of law in Scotland. The Judges while bound for the reasons stated to arrive at the decision they did, clearly saw that there was an international aspect to this question which a Court of law could not deal with under municipal law, but which must be left to the Foreign Office to deal with through the ordinary methods of diplomacy.
Then I have been asked by the noble Lord to state what is the present intention of His Majesty's Government. On behalf of the Scottish Office I am allowed to say that this matter is continuing to receive the attention of the Secretary for Scotland, and that, pending the settlement of the existing intricate diplomatic position, so far as the subjects of Foreign Powers are concerned, he deems it necessary to revise the instructions under which the cruisers are now acting. The principal instruction, therefore, will, in future, run as follows—When the officer commanding a cruiser detects a trawler under a foreign flag trawling within the waters of the Moray Firth, he is to obtain full information as to the operations of the trawler; such information to include all the facts that would be necessary for successful prosecution in the case of a British trawler detected under like circumstances, with this addition, that every person on the vessel, of whatever rank, who uses or assists in the use and the method of fishing known as beam or otter trawling should be included in the report, with a view to his individual prosecution.It is MR. Sinclair's intention, as advised, to take proceedings against all British subjects who can be proved to have acted in contravention of the by-law in any capacity while serving in vessels flying the Norwegian flag. Complaints will, of course, only be served on such persons when in British jurisdiction. That is the reply to the first question of the noble Lord.
The noble Lord further asked if there was any intention to extend the prohibition in force in Scotland against selling fish caught in this manner to England also. I have reason to believe that it is in contemplation that some such 992 measure should be extended, although the manner in which it will be done must be matter for further consideration. It is the desire of the Secretary for Scotland that this feeling which has been excited should be set at rest. Norway, we must bear in mind, is the latest addition to the family of nations of Europe She is bound to this country also by special ties of recent origin. Although she has behind her the great traditions of her naval history, she is none the less new in her established position. That being so, noble Lords will sympathise with the feeling of the Secretary of State that it would hardly have been very creditable to us, if in a matter of this kind, where undoubtedly our diplomatic position in regard to the arrest of these men was to say the least very doubtful, we had appeared to single out Norway at this moment as the Power at whose expense we were to raise the controversy. This feeling will be better appreciated when I state that the whole matter might be regulated by a Convention with Norway in regard to these extra-territorial waters.
Throughout this controversy Norway has never, so far as I am aware, indicated that she would meet any reasonable proposal of this kind with an absolute non possumus. That was an additional reason why the Foreign Office and the Secretary of State felt that it was desirable to move delicately in this matter. In this question of an extension of the territorial waters by a Convention with Norway, the Foreign Office would on general grounds have to move very carefully. The question raises many considerations affecting other interests and other departments than that which I represent; and I must not be understood as giving any pledge on behalf of the Government, the matter being one involving numerous interests other than the fishing interests immediately concerned, as well as the possible claims of other Powers besides Norway. Any Convention might—I do not say that it would—give rise to claims of reciprocity on the part of other countries, which might exclude British trawlers from other and similar areas in the neighbourhood of foreign coasts which are at present open to the exercise of the industry of British fishermen.
From the point of view of the Scottish Office, the interests of the inshore Scottish 993 fisheries are no doubt, and quite rightly, the first consideration. But from the point of view of the Imperial and foreign interests of this country, there are other and larger considerations which would have to be carefully regarded—not only the interests of the whole body of our fishermen in foreign waters and on the high seas, but also the numerous other interests that are connected with, and involved in, matters appertaining to the doctrines which bear on the limits of territorial waters. They are almost infinite in their variety and in their ramifications. Compared with the immediate fishing interests concerned, which not unnaturally loom so largely in the eyes of those who ply their industry on the high seas in circumstances of great difficulty, these national and Imperial interests are as a round shot to a grain of sand.
§ Lord HENEAGE
My Lords, after the challenge which has been thrown out by the noble Lord who raised this question this evening, I think your Lordships will not be surprised if I ask your indulgence while I make a few observations on the subject. Before I proceed to the important question of the interests of the great fishing industry of this country, which I have the honour to represent as president of the National Sea Fisheries Association, I should like to make one or two remarks with regard to certain statements made by Lord Balfour, which, I think, are not altogether accurate.
In the first place, my noble friend led the House to believe that a large number of these vessels were practically British vessels sailing under the Norwegian flag. I must remind my noble friend that when he was Secretary for Scotland he made this very statement to me and complained about it, and I then told him that so long as I was President of the Association I would never be a party to defending any British vessels sailing under a foreign flag, but that at the same time we should do all we could to get rid of the obnoxious and unfair restrictions imposed by Scottish law in the Moray Firth. At that time there was a fleet of twenty-two vessels sailing under the Norwegian flag. They were, as my noble friend has said, practically British vessels. Of those vessels four- 994 teen have been re-registered under the British flag, six have been made over unconditionally to the Norwegians, and what has become of the other two I cannot tell, but they are not fishing anywhere that I know of. I hope that statement will remove the "bogey" of British vessels under the Norwegian flag. I am not aware at the present moment of a single vessel owned by Britishers, and entirely maintained by British money, which is sailing under the Norwegian flag.
My noble friend also made the statement that in these cases the foreigner on the vessel was always taken up and never an Englishman. I was rather surprised that while my noble friend referred so continually to the Norwegian vessels dealt with at Elgin he never said one word about the two men who were taken off two vessels and convicted at Wick. They all come under the same category and the same law. I have a description of those two vessels. The first was owned entirely by Norwegians and chartered by a Danish company. It had a crew of five Danes and five Norwegians, and in that case they naturally took up a Dane. They did not, however, take up the skipper but the first fisherman; why they took him I have never been able to find out. The second vessel was entirely owned by Norwegians, but there was one Englishman on board and he was taken up and convicted. As far as I know, he was the only Englishman on that vessel. He was not the skipper but the first fisherman. With regard to the first of these two vessels the fine has been remitted and the man set free on the application of the Norwegian Government, but in the other case the fine had been paid, and whether it has been restored or not I am unable to say.
I have been connected for nearly a quarter of a century with this industry, and during the whole of that time I think every case of complaint has gone through me to the Foreign Office, and I have been in communication with Foreign Ministers in regard to it; but I have never seen a plea set up by a foreign country that they wanted to extend the three-mile limit. The chief point has been whether the vessel, when taken up by the cruiser, was in the three-mile limit or not. That was the first question, and the second was whether the trawl 995 was up or down; but since the "Lady Godiva" case the question of the three-mile limit has never been raised.
The noble Lord, in bringing forward this question, told us a great deal about Scottish by-laws and the interests of the long-shore fishermen of the Moray Firth, but he did not say one word as to how the present system of international law and comity between the nations of Europe has been brought about and upheld. In 1882 the North Sea Convention was signed by all the maritime Powers of Europe except Norway, and in the following year the Sea Fisheries Act was passed by the British Parliament confirming the North Sea Convention and in its schedule the Convention itself. Article II. of that Convention defines the territorial waters as within three miles from low watermark along the whole extent of the respective countries as well as of the islands and banks. In Article III. the limits of the North Sea are definitely set forth, and in Article XXXI. it is stated that the Convention is to remain in force for five years and then from year to year, unless one of the signatory Powers shall give notice of a desire to withdraw, and it shall then be continued between the remaining Powers.
In 1888 an International Conference was held in London, at which most of the maritime Powers round the North Sea were represented. The year before that the Royal Commission had reported on the subject of trawling, and that Report was taken into consideration. In the Report the Commission recommended no legislation except within the territorial limits of three miles, and they advised that powers should be given to fishery authorities to make by-laws for the regulation and supervision of steam-trawlingor any other mode of fishing within the three-mile territorial waters. The late Lord Londes borough moved a Resolution in accordance with the recommendation of the Report. It was supported by representatives of Grimsby and Hull, and by three representatives of Scotland—Colonel Malcolm, the Hon. R. Bruce, and MR. H. Anstruther. They were all specific on the point that the regulations to be made against trawling should be within the three-mile limits of the territorial water only.
In 1889 the Secretary for Scotland brought in a Bill to prevent trawling by 996 closing the whole of the territorial waters, and on the Second Reading of the Bill in this House he urged that it should be passed without Amendment, stating that it simply and entirely dealt with the waters within the three-mile limit. The Bill was passed. Then, as has been stated by my noble friend, the by-law referred to was made; it was in September, 1892. I have never been able to understand how that by-law could be made, because it enclosed waters outside the three-mile limit. In 1895 the Scottish Office brought in the Scottish Fisheries Regulation Bill. When that measure was under discussion Lord Salisbury repudiated the idea that the Act of 1889 had anything to do with waters outside the three-mile limit, and he maintained the principle of the present International law as set out in the North Sea Convention. Lord Salisbury held that view very strongly, and said there was nothing in the Scottish Fisheries Regulation Bill to prevent there being a stretch of sea in which the foreigner might trawl and the Englishman might not trawl, thereby foreseeing the exact state of things which has since happened.
My noble friend, Lord Balfour, has said that we at Grimsby, and the fishing trade generally, approve of the action of the Government. We do. But we approve of it not for any selfish reason so far as the Moray Firth is concerned. That is an insignificant part of the question. The fishermen of Hull, Grimsby, and Aberdeen go much further afield. What we feel is that if the first maritime nation in the world is to begin playing pranks with international legisla-lationthere may be retaliation and we should have difficulties when fishing outside the three-mile limits in the neighbourhood of another territory. In 1902, when Lord Lansdowne was Foreign Secretary, the question arose with regard to water outside the three-mile limit around Iceland. The Icelandic local Parliament or council brought forward a law extending the three-mile limit to seven miles round their coast. As soon as this came to the knowledge of the National Sea Fisheries Association we made a representation to the noble Marquess. We pointed out what a serious effect this would have on the fishing interests of 997 this country and that it was entirely opposed to the North Sea Convention and to International law. On the representation of the Foreign Office the Danish Government took action and that law was prevented from coming into operation.
Then I come to another point in the speech of my noble friend—the question of closing British ports to foreign vessels. During the whole twenty years I have been connected with the sea-fishing industry the one great thing we have had in view has been to induce foreign countries to show that hospitality to our vessels in distress and to give us those facilities for the sale of our fish in their ports which are extended to their ships in our ports; and if any attempt is made to close the ports of either Grimsby or Hull to foreign vessels and to deny to them the hospitality which we receive in foreign ports, every opposition that the fishing industry can give will be given to it. The whole of the fishing industry of Great Britain view with the greatest consternation what they consider to be a gross breach of international law by the Scottish authorities, and they rejoice that His Majesty's Government have faithfully carried out the obligations of Great Britain as a signatory to the North Sea Convention and upheld the honour and integrity of this country.
§ Lord ASHBOURNE
My Lords, this question is one requiring close attention. It cannot be put aside lightly and without much thought, because it is obvious, from the statements which have been made to-day, that it is complicated and involved and demands careful examination in order to arrive at a solution which would be accepted as wise and reasonable. The question presented to the consideration of the Government is, what is to be their attitude, having regard to the Statute of 1889, the by-laws made under it, and the decisions given with high authority by the High Court of Justiciary in Scotland as lately as July last? I am not sufficiently acquainted with the laws under which the Scottish Court was proceeding to know whether that decision was final, or whether the matter can be brought to your Lordships' House on appeal.
There can be no appeal in the true legal sense, but it is 998 possible that it could come under the jurisdiction of the Privy Council.
§ Lord ASHBOURNE
It is obviously a decision entitled to the most careful consideration on account of the authority of the distinguished Judges who composed the Court. I join with the noble Lord the Under-Secretary for Foreign Affairs in regretting the absence of the Lord Chancellor, and in deploring the death of Lord Davey, a very eminent and distinguished lawyer, in whom the whole House as well as his legal colleagues recognised a great jurist. Those associated with him in the judicial work of the House will long deplore his loss, as I am sure will the rest of the House and the whole country.
I gather that on the subject before the House the views of His Majesty's Government are in conflict with the conclusion arrived at by the Scottish Judges, and that the noble Lord and the Scottish Office are closely considering whether they will make new regulations which will endeavour to do justice with regard to this rather difficult matter, as between Norwegians and British subjects. I understand that communications will be made to the Norwegian Government in reference to the matter having regard to the way in which consideration has been shown to Norwegian subjects. No one in the House would suggest that anything but such consideration should be shown. But of course that does not end the matter, and we come back to the question how to make this consideration and the exercise of the prerogative consistent with the Act of 1889, with the by-laws made under it, and the decisions of the Courts. As I understand, the subject is engaging the close attention of the Scottish Office with the hope to mitigate or remove difficulties in the future, and in the circumstances, before expressing further views, it would, I think, be wise to await further information.
§ *LORD REAY
My Lords, I quite agree with the noble and learned Lord who has just sat down that we shall do well to await the further consideration of this very complex and intricate question. It seems to me impossible to admit that foreigners have rights of fishing recognised by international law which cannot be exercised by our own subjects on 999 account of the law to which they are subject as interpreted by the Scottish Judges. But, as regards the position taken up by the Foreign Office and so clearly explained to-night in the speech of my noble friend the Under-Secretary, I agree that it is of the utmost importance that the liberty to fish outside the three-mile limit should not be interfered with, unless the consent has been obtained of the Powers concerned. As the noble Lord stated, this is an Imperial interest and one which we should carefully guard and maintain. It is obvious that any extension of jurisdiction outside those limits might be attended with very serious results to ourselves as a maritime nation and to our fishermen. I endorse what my noble friend has said in regard to our vindication of liberty on the high seas. As regards the importance of protecting the breeding ground, to which allusion was made, that obviously is a question which should be settled, not only by municipal legislation, but by international arrangement. With regard to negotiations with Norway, it should not be forgotten that Norway and Sweden have by their legislation extended the territorial waters' limit beyond three miles to four miles. When my noble friend approaches the Norwegian Government on the subject I think that argument may be used effectively in favour of a further arrangement. But, in any case, I think the greatest caution in this matter must be observed. These are not merely local interests in which Aberdeen and Grimsby are concerned, but international interests which have a wider and far-reaching importance for a great industry; and I should deprecate any attempt to encroach on the liberty of the high seas beyond the three-mile limit except by an international convention such as the North Sea Convention. I am quite sure that no difficulty will be experienced in making this question plain to those who are interested in it in Scotland which has always shown a great respect for the principles of international law on which the "Scot abroad" has to rely.