§ 4.12 p.m.
§ Order of the Day for the Second Reading read.
§ THE PARLIAMENTARY SECRETARY, MINISTRY OF WORKS (LORD MORRISON)
My Lords, the purpose of this Bill is to amend and strengthen the present law against the poaching of salmon and trout in Scotland, and to in-crease the weekly close time for the taking of salmon otherwise than by rod and line. It seeks by these means to protect and, if possible, to improve the stocks of fish. Your Lordships will remember that last year we had a most interesting debate on the Motion of my noble friend Lord Strabolgi, dealing with the subject of illegal fishing for salmon, and particularly with the depredation of gangs descending on our salmon rivers, often from a great distance. On that occasion there was a general consensus of opinion that legislation to strengthen the law was urgently required. Accordingly, in submitting this 408 Bill to your Lordships I do so with every confidence that it will be welcomed in principle as a necessary and desirable measure.
The salmon fisheries of Scotland are an asset of great value. It is estimated that in 1950 they produced about 1,450 tons of fish, valued at about £1,000,000. In addition to the value of the fish actually caught, the fisheries provide a substantial amount of employment, both directly and indirectly. Therefore, their conservation is a matter of considerable economic importance. In the past few years there has developed in many parts of the country a practice of poaching on a commercial scale and by the use of indefensible methods. Gangs of men have gone by car, often over long distances, to parts of rivers where fish are lying waiting for a chance to go up the river to spawn; and have then, using nets and often explosives or poison, taken large quantities of salmon for profitable disposal in the black market. The harmful effect on our stocks of salmon of poaching on this scale requires no emphasis by me. It is not only the loss of the actual fish which are poached. These fish are taken when they are moving up river from the sea to spawn. If they are prevented from doing this, the long-term consequences to the stocks of fish will be much more serious than the immediate reduction in the season's catches.
In 1948, a Committee, under the chairmanship of Sheriff R. H. Maconochie, K.C., was appointed by the Secretary of State for Scotland to inquire into the situation, and to make recommendations for the protection of salmon and trout stocks. After exhaustive consideration of the evidence and a careful review of the existing law, the Committee made unanimous recommendations in favour of strengthening very greatly the present penalties, particularly for poaching and illegal fishing of the indefensible kind which does greatest injury to the stocks. The present Bill is based broadly upon the recommendations of the Committee, and the Government are much indebted to its members for the care and assiduity with which they addressed themselves to their terms of reference. In a code of law so complex as that which deals with poaching and illegal fishing, it is almost inevitable that, in the reduction of suggested amendments to legislative form, it 409 should be found necessary to differ in some respects from the specific proposals made by the Committee. But, in fact, the only substantial recommendations of the Committee to which effect has not in one way or another been given in the Bill are those which relate to the licensing of all persons dealing in salmon and trout, and the keeping by dealers, catering establishments and cold storage plants of detailed records of all their transactions. The recommendations have been given a great deal of consideration, but it is considered that the burden of administration and record-keeping, which would clearly need to extend to England as well as to Scotland, would be out of proportion to any results which might ensue. The proposals contained in the Bill, therefore, are concentrated on making the other machinery for the enforcement of the law as efficient and effective as possible.
Under Part I of the Bill, offences will in future fall into four main categories. Clause 1 makes it an offence to fish for salmon without legal right or written permission from a person having such a right. It has not been thought necessary to make it an offence to fish for trout without legal right, although this will remain, as at present, a breach of the civil law, which can be dealt with by interdict at the instance of the proprietor. The maximum fine which can be imposed for fishing without legal right is being increased from £5 to £10; and, as previously, the fish caught, though not the rod, will be liable to forfeiture. This clause is aimed at the ordinary proacher, using ordinary methods of fishing. Having regard to the special and very severe penalties provided in the following clauses for the kind of illegal fishing that is seriously damaging the stocks of fish, it has been thought sufficient in this type of case merely to double the existing monetary penalty. Ordinary poaching is an offence which deserves appropriate punishment; but it is an offence very different in gravity and effect from gang poaching or the use of explosives.
Clause 2 deals with fishing by illegal methods. The effect of the first sub-section of this clause is to make it an offence to fish for salmon in inland waters except by rod and line or net and coble, subject to a proviso which preserves existing rights. The second subsection of the clause makes it an offence to fish for 410 trout except by rod and line, subject to the existing rights of proprietors, if they are all agreed, to net in a pond or loch. Summary conviction of an offence under this clause carries, under Clause 18, a maximum penalty of £20 for a first offence and £50 or three months' imprisonment, or both, for a second or subsequent offence. Conviction on indictment enables the court to impose a fine of £100 or two years' imprisonment, or both. For a continuing offence, a further penalty of £10 a day in a summary case, and £20 a day in a case taken on indictment, may be awarded. Under Clause 19, fish and implements may be forfeited, and on conviction on indictment the court may also order the forfeiture of any vehicle or boat used in the commission of the offence. These provisions should provide a sufficient deterrent against illegal fishing by methods—for example, by the use of nets—which are not specially dealt with in the two following clauses.
I now come to fishing by gangs and the use of explosives, poison or electrical devices. Clauses 3 and 4 strike at the most serious abuses. The former makes it an offence for two or more persons, acting together, to poach or to fish by illegal methods. It is aimed at the gang which, acting together, proceeds to clean up a pool—for example, by the use of nets. Clause 4, which makes it an offence to use explosives, poison or electrical devices, is aimed at the unscrupulous kind of poaching to which many gangs have been found to resort. These are the types of offence for which it is clearly right to reserve the most severe penalties. Clause 5, therefore, empowers the court on summary conviction to impose a fine of up to £50, or imprisonment up to three months, for a first offence; for a second or subsequent offence the maximum penalty is a fine of £100 or six months' imprisonment, or both On conviction on indictment, the maximum penalty is £500 or two years' imprisonment, or both. In addition, of course, the same powers under Clause 19, in regard to forfeiture, as are applicable in the case of fishing by illegal methods are available. It is hoped that these provisions, taken together and vigorously enforced, will provide an effective deterrent against the graver forms of abuse.
The remaining provisions of Part I of the Bill are really complementary to those 411 which have been described. In order to put a further check on the operations of poachers who use explosives, it is being made an offence under Clause 6 for an unauthorised person to take dead salmon or trout from any waters; and as a further means of suppressing illegal practices persons found in possession of fish and instruments, explosives or poison, in circumstances which give reasonable ground for suspecting that an offence under Clauses 1 to 4 has been committed, may, under Clause 7, be charged with unlawful possession, and may be dealt with as if an offence had been committed. In isolated parts of the country where poaching offences are usually committed, a constable or water bailiff may be unaccompanied. It is accordingly proposed that a person may be convicted under this clause on the evidence of one witness. It will, of course, remain for the court to decide whether or not there is sufficient evidence to justify a conviction. Provision is made in Clause 9 to ensure that scientific investigations and the improvement or development of stocks of fish are not hampered because the steps which it is proposed to take for these purposes are illegal under the other provisions of the Bill.
This brings me to the powers of water bailiffs. Under subsections (1) to (3) of Clause 10 the existing powers of water bailiffs are re-enacted and the bailiffs are given the right to exercise them in districts adjoining their own. Subsections (4) and (5) enable a constable, or a person appointed by the Secretary of State, to exercise similar powers; and subsection (6) penalises anyone who obstructs a water bailiff, a constable or a person appointed by the Secretary of State in the exercise of his duties.
If there is reasonable ground to suspect that evidence of the commission of an offence under Clauses 3 and 4—that is, of poaching by gangs or by the use of explosives, poison, or electrical devices— is to be found on premises or in a vehicle, a water bailiff, a constable or a person appointed by the Secretary of State will be able to obtain a search warrant from a sheriff or justice of the peace entitling him to search the premises or vehicle and also any person who is found in, or who he has reasonable ground to believe has recently left, or is about to enter, those 412 premises or that vehicle. If, by reason of urgency, a constable (but not a water bailiff or a person authorised by the Secretary of State) finds it impossible to obtain a warrant to search a vehicle, he may nevertheless search the vehicle and anyone in it, or entering or leaving it, provided he has reasonable grounds for suspecting that an offence against Clauses 3 and 4 has been committed and that evidence of its commission is to be found in the vehicle. Under subsections (4) and (5) water bailiffs and persons appointed by the Secretary of State are given a similar power to search a vehicle (but not a person) on private land.
I now come to powers of arrest. It is proposed that, in future, powers of arrest for the enforcement of the Salmon Fisheries Acts and of the Bill should be given only to constables, water bailiffs and persons appointed by the Secretary of State. In future, offences of poaching or illegal fishing will be ordinary criminal offences and will be prosecuted as such by the criminal authorities. The system of private prosecutions is not being continued for offences created by the Bill. It accordingly seems appropriate that the statutory powers of arrest should conform as nearly as possible to those which apply in the case of other criminal offences of comparable gravity.
I should now like to say a few words about the extension of weekly close time. In the interests of stock conservation, annual and weekly close times, during which fishing is not permissible, have been laid down. The weekly close time for salmon fishing otherwise than by rod and line extends for thirty-six hours from 6 p.m. on Saturday to 6 a.m. on the following Monday. This period was fixed nearly a hundred years ago and its value as a means of conserving the stocks of fish is beyond question. It is proposed in Clause 13 of the Bill to extend the weekly close time by six hours, making it run from 12 noon on Saturday till 6 a.m. on Monday morning. It is believed that in this way a substantially increased number of fish will be able to ascend the rivers, and that accordingly the spawning, and consequentially the stocks of fish, will be improved. This extension was not recommended by the Maconochie Committee—the subject was outside their terms of reference—but it is believed to be a constructive suggestion which is fully justified, and it has been included in the 413 Bill with the general agreement of the salmon fishery interests. The operation of the new arrangements for the weekly close time will, under Clause 14, be subject to investigation after an initial period. It is proposed in Clause 15 to give statutory authority for undertaking scientific investigations into salmon and freshwater fish and for the collection of statistics of salmon catches. This provision is necessary in order that we may have a solid basis of facts on which to build our future policy for the protection and development of the fisheries.
Clause 16 provides that salmon, sea trout or trout is not to be sent by any common or other carrier unless the package containing it is marked conspicuously with the word "Salmon." "Sea trout" or "Trout" and with the name and address of the sender. Power is given to persons appointed for the purpose by the Secretary of State, to officers of district boards and to constables to open any package suspected of containing salmon, sea trout or trout; and, if the package is found to contain salmon, sea trout or trout and is not marked, it may be detained pending proceedings for an offence against the Act. These powers should greatly facilitate the detection of offences and also act as a deterrent against the marketing of fish which have been illegally come by. The remaining provisions of the Bill— with the exception of those in Clauses 18 and 19 relating to penalties and forfeiture, which have been described incidentally— are for the most part of a minor or procedural character. Clause 17 removes the limit of the assessment which can be imposed by district boards. Clause 20 provides for the disposal of fish which have been seized under the provisions of the Act. Clauses 21 and 22 deal with the position of the River Esk and the River Tweed—the Esk is to be regarded as wholly in England and the Tweed as wholly in Scotland. I hope that I have explained the provisions of the Bill to your Lordships' satisfaction. The Schedules are generally formal, and I need add only that the Bill will come into force on the day it receives the Royal Assent. I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a.— (Lord Morrison.)
§ 4.31 p.m.
§ LORD BALFOUR OF INCHRYE
My Lords, I am sure that your Lordships are 414 grateful to the noble Lord, Lord Morrison, for his clear exposition of this Bill. Did they but know it, I think it is a happy day for the salmon swimming in the sea, because this undoubtedly is a most helpful Bill and we are grateful to the Government for having brought it forward in their legislative programme. It is a non-Parly Bill. It has been the subject of careful scrutiny in another place, where it went through a Committee stage which lasted some three days. The best service that we can do to the salmon industry and to the salmon themselves is to get the Bill on the Statute Book at the earliest possible moment. I cannot pass from this matter without saying that I feel that your Lordships' House has played a considerable part in initiating the necessary action for the Bill. It was the enterprising action and informative speech of the noble Lord, Lord Strabolgi, last June, which brought this matter to a head. I know that the Government were seriously concerned about the matter before that time—successive Governments have been concerned about it—but it was only the Motion of the noble Lord, Lord Strabolgi, which, I think, tipped the balance in favour of Government action.
The Bill is not a perfect Bill. It is, to some extent, a compromise Bill. Later on in this debate noble Lords will no doubt draw attention to various points which they regret have not been dealt with. I personally regret that Sheriff Maconochie's strong recommendations with regard to the licensing and control of dealers in salmon have not been introduced. But, on the other hand, I appreciate the administrative difficulties which would be involved. On balance, I think it is better to get a Bill without those provisions than to stick out in order to try and get those provisions at some later date. Equally, I regret, so far as fishing is concerned, that the retail sale of this valuable substance, Cymag, has not been dealt with more stringently in this Bill. There was in another place an Amendment to Clause 4 which was not called, and which would have had that effect. I must say that we have had the courtesy of the advice of the noble Lord's departmental officers. I appreciate that efforts to tighten up the retail sale of Cymag would not be appropriate to this particular Bill, and that it would be necessary to go back to the food and poisons legislation. I think the Pharmacy 415 Act of 1933 would have to be amended, and agricultural interests would have to be assured of their necessary supplies of Cymag. I believe it could be done if we all put our shoulders to the wheel and co-operated. However, it would be a long business before further legislation could be introduced, and it would undoubtedly delay this Bill. I say again that this Bill does not give us everything we want, but I should prefer to have what the Government are giving us now rather than run any risk of delay.
I am glad that the Bill will heavily increase the penalties for the wicked blowing up of salmon pools with gelignite. I should like to read to your Lordships an extract from a letter I received from a very respected fisherman—an old gentleman now—who has fished for many years the River Teith in Scotland. He was kind enough to let me stand in the ice-cold water for two days at Easter. He writes as follows:No wonder you got no fish when you were with us. The pool at Deanston, the 'Ladder' pool was gelignited about two days before, and I fear a large proportion of the Spring run destroyed as usual. This pool, as I explained to you, is vital. It is a big and a deep pool and has an old ladder by the weir which works well when the water gets to about 44 degrees. But at 38 degrees. no fish will go near it. So they collect and collect and collect in this pool until the geligniters think there are enough for their purpose and in goes the charge. This has been going on to my certain knowledge ever since I first fished Cambusmore in 1919.He finishes his letter in this way:We have had another blank week. I always associate the blowing up of the Spring run with two other events. During thirty years the sequence has been, (1) the blasting of the ' Ladder' pool, (2) the Liverpool Grand National, and, (3) the University Boat Race. None of these have ever yet failed.This is the first major Scottish legislation on this subject for twenty-eight years. The problem is a grave one and has become increasingly threatening. Indeed, it has been increasingly harmful to the industry, the value of which there is no need for me to stress in this House. I should like to associate myself and, I am sure, all other noble Lords, with the expression of thanks to Sheriff Maconochie for the fine work he did in investigating and preparing his Report. Whether your Lordships are fishermen or whether you are not, I feel you will appreciate the purpose and value of this Bill.
416 Those of your Lordships who are fishermen may agree with the sentiments expressed in that little verse which reads:Of all the world's enjoymentsThat ever valued were.There's none of our own employmentsWith fishing can compare.On the other hand, there are some of your Lordships who may feel like Samuel Johnson:A fishing rod is a stick with a hook at one end and a fool at the other.You may take your choice of the way in which you regard the person who indulges in the art and sport of angling. Nevertheless, irrespective of what your Lordships' views may be, I feel sure that noble Lords on all sides of the House will agree that this is a valuable Bill for which we are grateful to the Government, and we hope to see it passed into law at the earliest possible date.
§ 4.38 p.m.
My Lords, may I first thank the noble Lord, Lord Balfour, for his very complimentary remarks about myself, although he did me too much honour. I only happened to bring the matter forward in your Lordships' House, and I was very strongly supported by noble Lords in all parts of the House. Really, the main thanks of your Lordships are due to my noble friend Lord Morrison, who I know has taken a strong personal interest in this matter, and I think we are indebted to him in large part for this very valuable legislation. The noble Lord who preceded me spoke about this being a good day for the salmon. I know his great love for salmon and, especially I suppose, he loves the monster who gets away— but I know what he means. After all, the salmon need not take our lures; he need not take our flies, however skilfully cast. But the poor wretch in the pool, with his spawn inside him, who is dynamited or gelignited, has not a chance. That is something which affects not only the salmon going up to spawn but all other fish and insect life in that part of the water, and anything that can hamper and hinder these misdeeds will, I am sure, command your Lordships' welcome and support.
According to my noble friend, the Bill is to be effective from the day of the Royal Assent. Therefore I would support the noble Lord, Lord Balfour of 417 Inchrye, in pleading that we should pass it as soon as we can. I hope there will be no Amendments, because that would mean more delay—and every day counts, especially at this time of the year. It happens to be a late season for salmon in Scotland, owing to the cold water and other factors. The next weeks will be vital for the next spawning season, on which salmon production will depend for some years ahead. Therefore if we can get this Bill through your Lordships' House as soon as possible, I am sure it will be all to the good. May I welcome the extension of the provisions regarding increased close time for netting? I am sure that this is an admirable step, and one which will bring about a great improvement. Perhaps I may be allowed 1o draw the noble Lord's attention to what happened on the River Wye some years ago when there was overnetting. Those interested took action; the nets were reduced; and the Wye returned to its position of being the finest salmon-fishing river in England. There is one other matter about which I feel anxious, and that is how the provisions of this Bill are to be publicised. I hope that the Scottish Office and His Majesty's Government will take care to make known its provisions by means of short and simple posters, placed in post offices and else-where in the river districts. The obligation, for example, to label packages containing salmon or trout is very important, and the ordinary person may not know about it. I think it will be necessary to make a special effort to make known this and the other provisions of this valuable Bill.
I regret that the Bill was not introduced in your Lordships' House in the first place. I think we should have dealt with it, if I may say so without offence, in a more realistic manner than in another place. It has been "knocked about" a little, in another place, but still it is a valuable Bill. I hope that a similar Bill to this will be introduced for England and Wales. These highly organised commercial poachers may come away from Scotland and turn their attention to rivers in England and Wales, and I should like to see provision made to meet this danger. There is already a good deal of poaching in these countries; I would mention only the beautiful county of Devonshire. I am sorry to see that the noble Earl, Lord Fortescue, the Lord 418 Lieutenant of the county, is not here to-day, for he could say that he knows well that poaching is rife in Devonshire. On the whole, it is not at present commercial poaching; but if the commercial gangs shift their activities to Devonshire or to Wales a great deal of mischief may be wrought. I hope that the Government will consider a similar Bill with the necessary variations for England and Wales; I am sure that it would be of great value. I am glad that Lord Balfour of Inchrye has welcomed this Bill on behalf of the Opposition. I join with him in congratulating my noble friend Lord Morrison and His Majesty's Government on introducing it.
§ 4.45 p.m.
THE EARL OF HADDINGTON
My Lords, I feel there is little I can add to the commendations of this Bill made by the two noble Lords who have preceded me. Like them, I feel that the most important thing of all in connection with the Bill is that it should pass into law as expeditiously as possible. As the noble Lord, Lord Strabolgi, has just said, in this case time is not on our side; every hour of delay may mean more grievous damage to our fish stocks in the rivers of Scotland. Therefore, although we may not feel that this is a perfect Bill, it has been well sifted in another place and, to my mind, is a most useful Bill. I know that that is the view of the Scottish Landed Proprietors' Federation, and I believe that I am voicing the views of most river proprietors in Scotland in saying that they would like to see it go straight through without any amendment or any Committee stage.
I should like to congratulate the noble Lord, Lord Morrison, on his moving of the Second Reading of the Bill. The Bill seems to go a long way towards countering the menace of the organised poaching gangs which, I remember, were described by the noble Lord, Lord Balfour of lnchrye, in a previous debate on this subject, as "commando raids" on our rivers. I thought that was a most apt description. At the same time, the Bill deals in a lenient fashion with the ordinary average poacher—who emerged from the previous debate in your Lordships' House with something very like a halo round his head. However, it is right that we should make a clear discrimination between these two kinds of 419 poacher. There is a great deal of sympathy with the man who goes to get a fish either for the sport, or to supplement the family larder, or for both purposes. And, my Lords, in case anyone thinks that this ordinary rod-and-line poacher has been harshly dealt with by having the maximum fine stepped up to £10, let him remember that there is no provision now for the forfeiture of the poacher's rod and line and gear. That is an important point, because a £10 maximum fine without the forfeiture provision represents a much lighter penalty than the old £5 maximum with forfeiture of the rod and line—simply because of the difficulty of replacement of these things to-day.
There are one or two points which I should be grateful if the noble Lord could explain, since his doing so may allay certain anxiety among owners in Scotland. In Clause 7, subsection (3), it is provided that a person charged with being in possession in suspicious circumstances of a salmon or trout, or of the explosives or instruments which are used illegally to kill them, may be convicted on the evidence of one witness. We have no quarrel with the provision for only one witness in such cases, but does it mean that under other clauses of the Bill two witnesses will be required to obtain a conviction? That would not be quite fair. I hope the noble Lord will be good enough to clarify that.
Clause 11 deals with the powers of search. Under subsection (4) water bailiffs are empowered to search vehicles on "any private land adjoining any water." Is that to be interpreted in an elastic manner or not? That is important. Does this subsection mean that a vehicle may be searched only on or close to a river bank? It seems to me that an intelligent gang of poachers—and I imagine that most of these gentlemen have their wits about them—would toe the last to leave their vehicles anywhere near the river. I should have thought that they would hide them away as far from the river as possible, and carry their fish away to the vehicles under cover of darkness. It has been suggested that water bailiffs have no right to search on any land in their fishery board district or on any highway which appears to be restricted to constables, as in subsection (3). It 420 all depends on what the word "adjoining" is intended to mean.
I now pass to Clause 12 which, so far as proprietors in the remoter areas of Scotland are concerned, has given more anxiety than any other clause in the Bill. This clause deals with the apprehension of offenders, as the noble Lord, Lord Morrison, pointed out to us in his opening speech. Under it the power of arrest which they enjoyed under the Act of 1868, is taken away from proprietors and keepers, and is vested now only in water bailiffs. constables and "persons appointed by the Secretary of State." In many of the sparsely populated and remoter districts of Scotland, water bailiffs are very few or, in some cases, nonexistent—because in some places there are no district boards, no fishery boards; and in these remote districts very few constables are available. It appears, therefore, that unless the power of arrest is given to persons other than these water bailiffs and constables the depredations of these poaching gangs will continue— indeed, they may increase, because the gangs will always try to operate where there is the greatest opportunity and the least likelihood of their being caught: the more scattered the area, the greater the opportunity. If it is intended that the owners or their employees are to come within the scope of this Clause 10, so that they will be included amongst the "persons appointed by the Secretary of State," the position can be satisfactory. But I do not see any definite undertaking that they will be so appointed. Can the noble Lord give us an assurance on that point when he winds up?
Let me assure him again that I want to do nothing to impede the swift passage of this Bill into law. I hear it commended on all sides as being an excellent Bill, and most important for the future of our fishing stocks. The extension of the weekly close time has been mentioned by the noble Lord, Lord Strabolgi. We expected this provision to be strenuously opposed, particularly by the netting industry; but, on the contrary, I have heard it commended, in some cases by fishermen themselves, as being likely to improve the fishing stocks of the rivers. So I think that that also is a good provision. It takes a long time for salmon to grow to maturity. As was pointed out during 421 the last debate on this subject in your Lordships' House, it takes five to six years for a salmon to attain maturity, so it may well be some time before we can fully appreciate to what extent the damage done in these post-war years by these organised raids on our rivers has affected our fish stocks. But at least we should congratulate ourselves that we are now doing something to ensure that even if they are not stopped, at least they will be greatly curtailed. We should congratulate His Majesty's Government on having acted so speedily and energetically on the recommendations of the Maconochie Committee.
§ 4.55 p.m.
My Lords, I should like to add my voice to those which have uttered appreciation of this Bill. I speak not as an owner but as a man who is keen on fishing, and I propose to dwell rather on the economic and food position of salmon. As the noble Lord, Lord Morrison, said at the start, the salmon fishing industry is of great value, not only from the point of view of rod fishing but also of net fishing which takes place in the mouths of our rivers and in the sea. It is from the economic viewpoint that I ask your Lordships to consider a point that I have to make in regard to the operations of the Hydro-Electric Board as they have affected the Perth County Council, as the rating authority. As a result of the work of the Hydro-Electric Board, the Perth County Council have already lost a large sum of money, running into five figures, in the reduction of rateable values. We shall look to the protection and preservation of salmon to maintain rateable values in Perthshire.
The salmon on the Tay, and particularly those on the Tweed, represent probably one of the biggest rateable values in Scotland, because of the value of the letting of the salmon fisheries. As your Lordships know, we have completed one large scheme, the Tummel-Garry Scheme, which is now commencing to work, though not yet fully developed. This scheme means the provision of a large number of new dams, sluices and salmon ladders. It also means the destruction of a large number of spawning beds. I should like to give full credit to the fisheries committee of the Hydro-Electric Board, and to the experts employed by 422 the Scottish Office, for the great care they took in doing all that was possible to preserve the salmon. But, as the noble Earl, Lord Haddington, has just said, it will be five years at least before we know the effects of these schemes on the survival of the salmon. Five years is a long period, and I should have liked an assurance that the Hydro-Electric Board would wait and see how the present hydro-electric scheme affected salmon fishings and the quantity of salmon in the river before they proceeded further. But now an important further scheme, the Breadalbane Scheme, has been announced. The scheme has been laid on the Table of the House, and I think there are another three or four months within which people can object to it. If approved, that scheme will mean a greatly increased number of dams and ladders, and the destruction of more spawning grounds, and will represent a further danger to the survival of the salmon in the Tay.
As I say, in these days we can hardly ask the Hydro-Electric Board to wait five years, or even more, until they know the effect on salmon fisheries of the Tummel-Garry Scheme. I suppose, unless some objectors get their way, that the Breadal-bane hydro-electric scheme will proceed. As a private individual, I cannot help wondering how this scheme will affect the rateable value of the Tay, and the important food supply that the Tay salmon afford. As your Lordships know, every day a special train carrying Tay salmon comes to the London market. It would be a sad loss to Londoners if they did not have their Tay salmon day by day.
A small point has been made by the fishery boards with regard to these dams, sluices and ladders that I have mentioned. Under the Bill, the right of members of these boards to visit these dams and the various operations of the hydro-electric schemes, will be taken away, and the Tay Fishery Board have asked that their members may still have the right to visit these dams on the river. I may say that that proposal is supported by the Association of District Salmon Fishery Boards. As we all want to preserve and protect the salmon, it would seem to be wise to listen to the advice of the people who are in daily contact with the problem, and who probably know the best way of securing 423 What we all want. I hope that His Majesty's Government will consider this request from the district fishery boards, and will give their members the right to continue visiting the works of the Hydro-Electric Board. It would be simple to allow that under Clause 10. I suppose that it might be possible under this Bill to make the fishery board members water bailiffs, but I doubt whether that would be a convenient solution. I entirely agree with what has been urged by the noble Lord, Lord Balfour, that we do not want to take advantage of this Bill, but I hope that this point will be considered by His Majesty's Government.
§ 5.3 p.m.
§ THE EARL OF SELKIRK
My Lords, I feel sure the noble Lord, Lord Morrison, wishes that every Bill that he produces in this House may receive the warm welcome which to-day has been given to the Bill now under consideration. It is astonishing to find that in regard to salmon fishing, which must have been under the consideration of Parliament for many years, perhaps even for more than a century, it is nevertheless necessary to produce a Bill which is entirely different from anything that has gone before, and one which, in itself, is not a very simple Bill. That emphasises the complexity of the matter, and therefore we appreciate all the more the manner in which the Government have handled this very complex subject. The Bill is based on the Maconochie Report. We have expressed fully our appreciation of all the Sheriff has done in this matter, and I think we should also express our appreciation of the extension of the close time, which the Secretary of State has said was his own idea. We are grateful to him for having brought in that innovation.
There are one or two points connected with the Maconochie Report to which I might make reference, but I do not propose to do so because I think we all want to see this Bill on the Statute Book as soon as possible. Nevertheless, I think it is fair that we should have one or two explanations, and I am going to press the noble Lord to see whether he cannot answer one or two points, either now or perhaps even on Third Reading. One point raised by the noble Lord, Lord Kinnaird, dealt with the position of members of a fishery board who are not to be 424 allowed even to visit their own river. That is outrageous. It may be that the Secretary of State will be able to get round the difficulty by giving a certificate to all members of the fishery board. I shall be glad if some explanation can be given about that matter. Then there was the point raised by Lord Haddington on Clause 7 with regard to the provision relating to a single witness. That provision would seem to apply only to the clause referring to illegal possession, but subsection (2) is of a somewhat complicated character, and it appears to me to draw within its orbit the full force of Clauses 2, 3 and 4; therefore the provision regarding one witness would apply equally to all the major offences outlined in this Bill. That is my interpretation of it, and I should be glad if the noble Lord could say whether it is correct, because the crime of unlawful possession is only part of the whole matter. I now come to the point about labelling parcels. What is the position with regard to a parcel which has come into the Post Office and is under the control of the Royal Mail? Can the water bailiff step in and ask to see packages under the control of the Royal Mail? I ask that question merely for information, because I do not know how the matter stands. Naturally, the Royal Mail stands high in our regard.
I pass to the other point which I should like to raise—namely, the question asked by Lord Haddington in regard to apprehension; that is to say, the arrest of people who are found immediately committing some offence under the Act. This is an important matter owing to the extremely isolated nature of the places in which these offences are likely to take place. I could not help feeling that some erratic remarks were made in another place in the course of the discussion on this Bill, and I was not very impressed with the reasons given by the noble Lord, Lord Morrison, for giving up these powers. He said it was because under this Bill private prosecution was to be discontinued. Personally, I entirely agree with the principle that prosecutions should be conducted by the Crown. But that has nothing whatever to do with the question of arresting a man caught in the flagrant committal of some crime. The two things were connected in the noble Lord's speech, and they appear to me to have no 425 connection whatsoever. As I understand it, a civilian has precisely the same duties as a policeman in regard to arresting without warrant. My authority for saying that I take from Dicey's Law of the Constitution. With your Lordships' permission I will read from page 289, where it says:It is also clear that a soldier has, as such, no exemption from liability to the law for his conduct in restoring order. Officers, magistrates, soldiers, policemen, ordinary citizens, all occupy in the eye of the law the same position; they are, each and all of them, bound to withstand and put down breaches of the peace.I am wondering whether or not the law is materially changed by amending the Act of 1868.
Dicey's work is, of course, concerned with England, and it is possible that it may not be considered to apply to Scotland. Therefore I have made reference to Hume on Crimes, which relates to Scotland. Dicey has the character of explicit writing, and Hume may not be quite so explicit, but I will read what Hume says at page 74:The same power of arresting which a magistrate or constable has, when present at an atrocious felony, or on certain information from those who saw the thing done—the same is permitted by the law, for the advancement of justice, to those persons themselves who are present on such an occasion, immediately on the fact, and in situations where the delay of applying to a magistrate or constable would enable the malefactor to escape.That deals with substantially the same position, and I feel that we are entitled to some form of explanation. A situation which it is relevant to mention in this connection occurred only this week in Sloane Street in broad daylight. A car drew up at a jeweller's shop and four men got out to make a raid. A policeman in plain clothes happened to be passing, and he intervened. He was struck over the head with a crowbar, but two civilians arrested one of the malefactors. Would not the position be the same if I or anybody else were to see someone placing a lump of gelignite in an outlying loch? Would not I or the other person who witnessed this action have the right and the duty to arrest such a person and at the first opportunity to hand him over to the police? Is that not right by Common Law in this country? I should be grateful if the noble Lord would tell us whether that is so or not, because this is a matter of some importance. I will not delay your Lordships longer except to say that 426 we should like to see this measure become effective as soon as possible—that is to say, on the day on which the Royal Assent is given. We want to expedite it as much as we can, and we ask the noble Lord now only to give us some explanation of these points on which, with great respect, I think we are entitled to some information.
§ 5.11 p.m.
§ LORD MORRISON
My Lords, with the leave of the House I should like to reply to some of the points which have been raised in the debate on this Bill. In the first place, I must tell the noble Lord, Lord Strabolgi, that he is entirely wrong in suggesting that there is any credit due to me for the provision of this Bill. It is true that after the debate which he initiated in your Lordships' House I took the opportunity of going up to the far north of Scotland and trying to find out as much as I could about the situation on the spot. I certainly came back with a great deal more knowledge of what was happening than I had before. But it is quite wrong to suggest that I am responsible in any way for the Bill, though it has been my great good fortune to hear many more complimentary things said about me in this House then I have ever heard on a previous occasion when Scottish legislation was under consideration.
The noble Lord, Lord Balfour of Inchrye. raised a question concerning the sale of Cymag. I think he will agree that he practically answered the question himself. This is a. matter which could not be suitably incorporated in this Bill. Cymag is a commercial preparation containing calcium cyanide. It is sold for the destruction of agricultural pests, chiefly rabbits and rats, and it is subject to the provisions of the Poisons Act of 1933, which provides that it can be sold rightly only by an authorised seller of poisons on premises registered under the Poisons Act. The sale must be by or supervised by a registered pharmacist, and purchasers must be known by him or by some registered pharmacist in his employment or have a certificate in accordance with the requirements of the Poisons Act. The seller must also make an entry in his poisons register—and so on. I think that is further evidence that the noble Lord was quite correct in accepting the position that, however much it may be necessary 427 to tighten up provisions regarding the sale of Cymag, it could not be done in a Bill which deals with salmon and fresh water fisheries.
That brings me to the noble Lord, Lord Strabolgi, who raised two matters. In the first place, he said that he hoped there would be adequate publicity for this Bill, so that its provisions might become well known. I would remind him that the Bill has already received very wide publicity in Scotland. After it becomes law every effort will be made to make sure that its provisions are not only known but understood. In the second place, the noble Lord made a suggestion—also a useful one—that a Bill on somewhat similar lines applying to England and Wales should be brought forward. I will see that that suggestion is passed to the right quarter. Now I come to the interesting questions asked by the noble Earl, Lord Haddington. His first question—if I followed him aright—was whether a rod and line could be forfeited for production in court as evidence, and thereafter, if thought necessary, returned to the owner.
THE EARL OF HADDINGTON
The noble Lord will excuse me for interrupting. That was a question which I sent to him in writing. I omitted to mention it in my speech.
§ LORD MORRISON
The answer is that it is true there is no provision for forfeiture of gear under Clause 1; therefore the Bill does not provide power of seizure. But when a police constable arrests a person he seizes with him any property in his possession at the time of arrest. It is within the discretion of the constable whether any of the property taken should be retained pending court proceedings as evidence of the charge libelled. The next question related to Clause 7 of the Bill, and it was whether two witnesses will be required. The noble Earl, Lord Selkirk, also referred to this matter. The noble Earl, Lord Haddington, is right, and except for Clause 7 (3) the rule of Scottish law which requires at least two witnesses to secure a conviction, will hold. Under the Bill the right of arrest is limited, as the noble Earl has said, to constables, water bailiffs appointed by the district boards and persons appointed by the Secretary of State. The statutory right 428 of "any" person to arrest a poacher is withdrawn. A prosecution for poaching has now to be taken in the public interest, but it is considered that power of arrest should be brought more closely into line with the general law. Further, there are objections to the power of arrest being exercised by any person without either uniform or written authority.
The noble Earl, Lord Selkirk, seemed to have considerable doubts upon this point, and he has quoted two legal luminaries with whom the noble and learned Viscount, the Lord Chancellor, of course, has a much closer acquaintance than I have—Dicey and Hume. Inadvertently, no doubt, the noble Earl omitted to tell me that he was going to bring forward this heavy armour, and I confess at once that I have not read the observations of the two gentlemen in question on this matter. All I can say now is that at a later stage of the Bill—if there should not be a Committee stage owing to no Amendments being put forward, then on Third Reading—I will do my best to give the noble Earl an answer. For that purpose I will consult the legal people who are versed in such matters. I would draw attention to the fact that a similar proposal to extend the power of arrest was debated at length in another place, and it was firmly resisted by the Lord Advocate himself. I need not tell the noble Earl that I am not myself experienced in the law, but I will endeavour to get an answer from people who are competent to supply one on the points which the noble Earl has raised. If he cares to bring them up again on the Third Reading, I can assure him that I will give him as satisfactory a reply as possible on that point.
Lord Haddington asked how far from the water search will be permissible—in other words, what is a reasonable distance. I am advised that it is not possible to make any general statement on the distance from the water that would be covered by the words in the Bill "private land adjoining water," as it will depend on the circumstances of each case. The courts will interpret those words in the light of the circumstances of any case brought forward. I am advised, however, that, speaking very broadly, the term would seem to include any private land physically adjoining water and connected with the water by 429 the circumstances of the suspected offence.
§ LORD MORRISON
If the noble Earl will look closely at that answer, I think he will find it satisfactory. The noble Earl also asked me whether enough persons would be appointed in sparsely populated districts. The answer is that in the exercise of the power conferred on him, the Secretary of State for Scotland will no doubt take into account the requirements of the neighbourhood and also the reasons, if any, why a district board cannot or has not been formed in that district. Where a district board can be formed, the Secretary of State's powers to appoint persons will be exercised only in exceptional circumstances.
The principal point raised by the noble Lord, Lord Kinnaird, was in regard to the possible effect upon salmon fishing of hydro-electric undertakings in Scotland. The question whether any hydro-electrical scheme should be held up because of possible damage to the salmon fisheries seems to me to be one for consideration in every particular case, and the statutory provisions under which the Hydro-Electric Board operate secure that the interests of fisheries are fully considered before any works can be commenced. The noble Lord probably knows this matter better than I do, but I would remind him that before the Hydro-Electric Board can undertake any work they must submit a scheme for confirmation to the Secretary of State. There is a statutory opportunity for objections, and for inquiry if necessary; and if the scheme is confirmed, it has to lie before Parliament, subject to a negative Resolution, for a period of forty days. Further, there is a statutory Fisheries Committee to advise the Secretary of State and the Board with a view to avoiding damage to salmon stocks so far as possible. The Committee includes persons experienced in salmon fisheries and water engineering. Of course, I am not able to prophesy what effect all the hydro-electric schemes in Scotland will have, but I can say—and perhaps the noble Lord may derive a little comfort from this—that the Galloway scheme, which has been in operation for a long time, has not resulted so far in damage 430 to the stocks of fish in the district. I am sure the situation will be closely watched.
With regard to the noble Lord's difficulty about the rights of inspection of members of district fishery boards, I think I have already covered this point. There is no restriction of the freedom of members of the boards, except that they are not given a statutory right to inspect dams. There is no question of their being prevented in any way from going to see the dams for which they are responsible. But they are not given a statutory right to inspect them. If necessary, the Secretary of State can appoint a member of a board, or, as Lord Kinnaird said, a district board can themselves appoint a member, as an officer for the purpose of inspecting dams. What is withdrawn is the general right of all members of the district boards to become inspectors of dams. I have endeavoured to answer most of the points which have been raised, and as there is further Business before the House, also connected with fishing, I will rot detain your Lordships further. I thank noble Lords for the friendly reception they have given to this Bill. It is a pleasure to me to move the Second Reading of a Bill which has been commended in all parts of the House, and I conclude by hoping that we shall soon see it on the Statute Book.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.