§ 4.47 p.m.
§ Report received.
§ Clause 1 [Increased access to, and protection for, freshwater fishing]:397
§ The DUKE of ATHOLL moved Amendment No.1:
§ Page 1, line 30, at end insert ("and of persons and clubs who have, or anticipate being granted in the event of the protection order being made the right to fish for freshwater fish in inland waters in Scotland.")
§ The noble Duke said: My Lords, I think it is only right for me to apologise both to this House and to the noble Lord, Lord Kirkhill, first, for the fact that I was not able to be in my place when this Bill was considered in Committee, and, secondly, for putting down these Amendments somewhat late. As they are all my own composition, I am sure that it will surprise no one if I say straight away that I suspect that they are defective in their drafting, but I have put them down largely as a basis for discussion.
The first Amendment which stands in my name would add to the end of paragraph (b) of Clause 1(3):
and of persons and clubs who have, or anticipate being granted in the event of the protection order being made, the right to fish for freshwater fish in inland waters in Scotland.
§ If this Amendment were accepted, it would mean that before the Secretary of State could make a protection order he would not only have to consult with the somewhat nebulous body which is already mentioned in paragraph (b) of subsection (3) but would also have to consult with any tenants or potential tenants of the waters over which the protection order was to be made.
§ I think this is only right, as there could be a case where a tenant, an angling club, for instance, already has the right to fish in waters. The owner of those waters might wish a protection order to be made over them. The body mentioned in paragraph (b) might think this a good idea and raise no objections. Then, as the Bill now stands, the Secretary of State would be able to go ahead and make a protection order. But the members of the angling club who were already lessees of that water might well have some objection to this. For instance, they might consider that the owner was suggesting a rent which was too high, or that he was going to take out the brown trout and put in rainbow trout instead, or something like that, and their members might like fishing for brown trout rather than for rainbow trout. I feel that it is only right that the Secretary of 398 State, before making a protection order, should consult with the existing tenants of the waters over which he is going to make his order.
§ Of course the owner is covered because the owner has to suggest the protection order in the first place, and so he is in no difficulty. If he does not wish to have a protection order made over his waters he simply will not put forward the proposal. It seems to me that the existing tenant could be in an underprivileged position when protection orders are being considered. Equally, I feel that many owners will, when they apply for a protection order, have already made arrangements for an angling club to take over the administration of the waters over which they propose to obtain a protection order. In this case I should have thought that it was only right that the angling clubs which are going to benefit from a protection order, if it is made, should have the right to be consulted by the Secretary of State before he makes the protection order. It seems to me that they could well add something useful to the representations to which the Secretary of State will listen before he makes a protection order. I beg to move.
§ 4.52 p.m.
§ Lord KIRKHILL
My Lords, the Government would seek to resist this Amendment. The purpose of paragraph (b) of subsection (3) is to ensure that all types of persons wishing to fish for brown trout are given proper representation and full opportunity for their views to be made known to my right honourable friend when he is considering the making of a protection order. The weaknesses in the representative hierarchy in trout angling became obvious during the passage of this Bill through another place. Not only must the Government ensure that those anglers who are organised in clubs and associations have their views fully made known, but there are moreover the views of those many individual anglers—people who often prefer not to be organised in their comings and goings—which must be conveyed to my right honourable friend, if he is fully to appreciate the views of the trout angling community as to whether the benefits to be derived by that community merit, in their eyes, the giving of protection to trout fishing in the area.
399 I am not for one moment suggesting that anglers will be debarred from membership of the group if they happen to hold fishing rights—or even hope to hold them at some future date. But no one section of the angling community could properly be given any special right to selection for the group other than that general right stemming from their wish to fish. It is for that general reason of principle that I have to ask your Lordships to resist the noble Duke's Amendment.
§ Viscount THURSO
My Lords, there seems to me a point here of some importance. It is not clear from what has been said at any stage in the debate on this Bill as to how frequent or how important are the powers of holding a local inquiry before a protection order is made. We ought to seek to find this out from Her Majesty's Government because if, in fact, it is going to be the rule rather than the exception that an inquiry precedes the making of an order, then I do not think that anybody need fear that he is going to have a chance of making any representations he may wish to make before a protection order is made. But if, in fact, a local inquiry, or a public inquiry, is going to be the exception, then it is going to be very important to make sure that people have a right to make their views and their positions known before the Secretary of State considers the matter.
So far as I am concerned, and I think those of us on these Benches, we should like to see the public inquiry the rule rather than the exception, because I do not think that anybody need have anything to hide in this matter. We want to see, when a protection order is being laid down—and this will be a new thing which we shall see happening for the first time after this Bill is passed—the matter properly threshed out in public in every case. I should hope that inquiries would be the rule rather than the exception. It would be most helpful if Her Majesty's Government could let us known how they envisage how this part of the Bill is likely to work.
§ Lord KIRKHILL
My Lords, it is not Her Majesty's Government's intention at this time to proceed overtly and frequently by way of public inquiry. The Secretary of State will consider representations.
§ Viscount THURSO
My Lords, in that case may I ask whether any representations can be made and, if so, will they all be considered, or just those that the Secretary of State is obliged to listen to?
The Duke of ATHOLL
My Lords, before the noble Lord answers that may I ask whether, when applications are made for a protection order, they will be publicised fairly extensively so that people will be in a position to make representations?
§ Lord KIRKHILL
My Lords, I should, in perfect equity and fairness, have qualified my initial reply to the noble Viscount, Lord Thurso. I should explain that of course if objections are made then a public inquiry would be held. I do not think that the Secretary of State would proceed to a discretion if objections were made. I was assuming that if no objections were put to him then of course he would accept and listen to representations from a number of sources.
The Duke of ATHOLL
My Lords, could the noble Lord answer the question I asked? How much publicity will be given to the proposed protection orders when they are submitted to the Secretary of State?
§ Lord KIRKHILL
My Lords, I cannot answer that question at this stage, but I am very willing to answer on a future occasion.
§ The Earl of MANSFIELD
My Lords, with respect, should not the noble Lord be in a position to answer my noble friend's question? We are now getting to the penultimate stage of the Bill. It has already been through another place. If the noble Lord is not going to answer my noble friend's question now when, may I ask, is he going to answer?
§ Lord KIRKHILL
My Lords, Schedule 1 makes provisions as to the publication of the various protection orders. The noble Duke asked for a specific detail from me as to the full extent of publicity. I shall look into that matter and reply to him.
The Duke of ATHOLL
My Lords, in the light of what the noble Lord the 401 Minister has said, I think it is only right that I should withdraw this Amendment. I still feel that the existing tenant, or potential tenant, should be given consideration, and of course my Amendment would not have stopped the Secretary of State from consulting with the body set up under subsection (3)(b). I appreciate the noble Lord's difficulties in acceding to my request, and I put down this Amendment very late, for which I. must again apologise. In the circumstances, I should like to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.58 p.m.
§ The DUKE of ATHOLL moved Amendment No. 2:
§ Page 2, line 42, at end insert ("and").
§ The noble Duke said: My Lords, I hope it will be for the convenience of the House if we take Amendments Nos. 2, 3 and 4 together. Amendments Nos. 2 and 3 are purely paving Amendments for Amendment No. 4.
§ The DEPUTY SPEAKER (Lord Derwent)
My Lords, may I interrupt the noble Duke? If he is going to talk about Amendment No. 4, may I say that it is wrongly put down on the Marshalled List. It should read:Page 3, line 1, leave out paragraph (h)".
The DUKE of ATHOLL
My Lords, I thank the noble Lord. Amendment No. 4 would leave out the top two lines of page 3:(h) any other matters which the Secretary of State considers relevant.
I have put this down not because I particularly object to the Secretary of State's considering any other matters which he might consider relevant, which it seems to me is a perfectly reasonable thing for him to do, but to find out what other matters he might consider relevant. It seems to me that paragraphs (a) to (g) of subsection (5) are so comprehensive that there cannot really be any other matters which could be relevant. I should be interested to know what the Government think might be covered by (h) or whether it is purely a safety net in case they and I have forgotten something. I have always been told that if one is to have a general 402 provision like that, one should particularise beforehand. It seems that we have a lot of particularisation before we get to the general phase at the finish.
§ Lord HUGHES
My Lords, I should have thought that the answer to the noble Duke's question was that if the Government had known the other matters which might be relevant they would have proceeded through the alphabet after the letter "g". It is reasonable for the Secretary of State to say, in effect, "Should anything else turn out to be relevant which has not occurred to me up to now, I should have power to take it into account".
§ Viscount THURSO
My Lords, one matter which must be relevant is the question of proposals for the improvement of fisheries, and I do not see that mentioned. We have references to charges, tackle, the number of fish, rods, the size of fish and so on but nothing relating to the actual improvement of the fisheries, although presumably that is what the Secretary of State might have in mind.
§ Lord KIRKHILL
My Lords, I think that the noble Duke's assessment of his Amendment is quite accurate, and his assessment has had at least a partial confirmation from my noble friend Lord Hughes. The items specified in (e) to (g) are, of course, items to which my right honourable friend the Secretary of State will require to pay some attention, but other matters will be represented to him, and (h) permits him to give his further and wider consideration in just the manner which has been outlined. The provision (h) is really a saving one and is no more than that. Perhaps I should mention to the noble Viscount, Lord Thurso, that subsection 4(c) covers the point he raised.
§ The Earl of MANSFIELD
My Lords, before my noble friend the Duke of Atholl withdraws his Amendment—or does not, according to his inclination—may I ask the Minister a question about which I shall sympathise if he cannot answer immediately because he may not be in a position to do so. I must apologise for not bringing the matter forward in Committee; I was undertaking a certain public duty in Scotland and was prevented from so doing. The considerations to which the Secretary of State must have regard 403 under subsection 5(b) include the permitted methods of fishing or tackle and the maximum number of fish that may be caught. Since this matter came before your Lordships, I have carried out my own personal straw poll, if that is the expression, during the Easter Recess up and down the banks of the Tay. Perhaps I should mention that I have an interest therein, or in certain parts of it, as a trustee. The inquiry which was made of me by persons who were employed as fishermen was: who is to say what the permitted methods of fishing or tackle are to be if a protection order is to be made and, above all, what is to happen if somebody flouts the regulations?
In that part of the Tay—I realise that this is a very subjective view of the situation where I come from—the word is that the large brown trout have already been fished out because those who came, and particularly those who do not know the water very well, use, for example, minnows. The large trout are attracted to them, perhaps more than they should be, as opposed to a fly and they have all been caught and there are no more brown trout of that particular size. If a protection order is made, one assumes that the riparian owner, club or whoever it is who is setting the scene for future angling, is entitled to say, "You must fish with a fly and not with a minnow because that is unfair", and I do not suppose that the noble Lord or his advisers would demur from the proposition in proper instances rules may be made.
Bearing that in mind, I should like to know, first, how the Secretary of State is to interpret that and, secondly, what is to happen if the permitted methods of fishing or tackle are flouted. Can an ephemeral permit be revoked by the riparian owner? Can the wardens enforce the rules which accompany the permit which is issued, and what is to happen if they are broken? I appreciate that I have brought this matter up at a somewhat late stage. If the Minister wishes to raise it as part of the Third Reading debate on this measure, or if he prefers to write to me, I shall understand.
§ Lord KIRKHILL
My Lords, with the leave of the House I will reply to the noble Earl. These are interesting points—
§ Lord KIRKHILL
They are vital and interesting points of arresting detail, my Lords. I can say at this stage that it will be for the owner or occupier to lay down a permanent method or methods. His sanction will, of course, be the withdrawal of the permit in the event of his decision not being adhered to. Perhaps there is a slight misunderstanding in the noble Earl's interpretation of the point he raised. The provision requires the Secretary of State to have regard to certain matters with a view to satisfying himself that an order may be made by him. The protection order, when made, will not specify anything other than a provision against unpermitted fishing; it will not specify anything more than that. However, I will write to the noble Earl further on this point of detail.
§ Viscount THURSO
My Lords, is it the Minister's interpretation, therefore, that by using a method not permitted on the stretch of water, the person holding the permit automatically invalidates the permit and thereby becomes a person fishing in breach of the protection order? Is that the noble Lord's interpretation?
The DUKE of ATHOLL
My Lords, I am grateful to the noble Lord, Lord Kirkhill, for helping us to clarify this somewhat complicated subject. I am not entirely convinced that the noble Viscount, Lord Thurso, is right in his question about the improvement of fishings because as I read the provision to which he referred, it simply enables the Secretary of State to take account of conditions in areas other than the one to which the proposed protection order will apply. In that case I should have thought that whether and in what ways the areas round about would be improved is not very relevant and therefore it is probably right for it not to be mentioned in this provision. I have no rooted objection to the safety net of "any other matters" which the Secretary of State may consider to be relevant. I tabled the Amendment to try to find out whether the Government had any other matters in mind or whether it was just a safety 405 net. Lord Kirkhill has answered the question at any rate to my satisfaction and I therefore beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.10 p.m.
§ Viscount THURSO moved Amendment No. 5:
After Clause 1 insert the following new clause:
Access to fishings in protected areas.
On making a protection order the Secretary of State shall make up a list of all owners of land to which pertains a right to fish for freshwater fish in any inland area to which the protection order applies, and any occupier of such right, who did not apply in writing to the Secretary of State, in relation to the improvement of, or the giving or availability of access to, fishings; and may specify for such fishings after consultation with all owners or occupiers so listed the circumstances in which fishing is made available in respect of the matters listed in section 1(5) of this Act.
§ The noble Viscount said: My Lords, in moving this Amendment, I would refer again to what I said earlier about the Bill —that I believe it has flaws. The Amendment is designed to remove one flaw which clearly exists in the Bill and which was tacitly recognised by the noble Lord, Lord Kirkhill, in the Second Reading debate. It is that, if the Bill is passed as it stands, it would be possible, for persons who in no way contribute to the improvement of the quality or quantity of, or the access to, fishings, to participate in the benefits resulting from having a protection order within an area in which their fisheries lie. For instance, on a particular stretch of river, there may be one riparian owner who makes no move at all when the protection order is mooted, who does not appear at any inquiries and who offers to make no improvements and no increase of access to his fisheries. If all the ninety and nine just persons who own the rest of the river system agree on having a protection order, I assume from the way in which the debates have gone that the Secretary of State would not withhold it if one person had not come forward to take part in the inquiry or offered to take part in anything envisaged in the granting of the protection order. Once the order was granted for the sake of the ninety and nine the hundredth person would, in fact, receive protection. He would be able to regard 406 his fishery as a heritable property. He would be able to sell it and to do so as a piece of property on which there was no obligation to give anybody access. It would become very valuable for those who wanted to be restrictive.
§ I feel, and I believe that most reasonable people would feel, that it is wrong that anybody should be given such an advantage. It is against the spirit of the Bill that such an advantage should be acquired without the owner having had to contribute in some measure to what is being given to the general fishing public in exchange for the advantages gained under a protection order.
§ I quite see that there could be people who might simply, through default, absence or the fact that they were not aware of what was going on, miss the opportunity of being heard when the protection order was being considered. We have heard today that it will not in general be the practice, unless there is an objection, for a public inquiry to be held. In such a case, it would clearly be unfair to force such people to accept some form of condition along with a protection order without consulting them in some way. So far as I can see, if a person stays quiet, there is no machinery for actively consulting him.
§ The Amendment therefore seeks to lay upon the Secretary of State when making a protection order the necessity actively to consult anybody who has not come forward or has not been consulted up to the time when the Secretary of State is to make the order. It provides that the Secretary of State must make a list of such people and include them along with those who have asked for a protection order. Having listed and consulted them, they should be included and the part which they are to play specified in the general scheme which the protection order would envisage.
§ I do not believe that any reasonable owner of a fishery or any reasonable angler could object to this. If a river system is to have a protection order throughout its length, or if a drainage basin or a section of a river or drainage basin is to have a whole protection order applied to it, I believe that that protection order should apply to every part of it in an equal manner. Unless we specify something in this regard, I do not see how 407 we are to avoid the loophole whereby, simply by keeping his head low, somebody in the system can get away with all the benefits without any contribution to the improvement or increased availability in return for which the protection order is made. For that reason, I beg to move.
Lord CAMPBELL of CROY
My Lords, I think that the noble Viscount has greatly helped your Lordships' House and that we should be grateful to him for giving us this opportunity of further discussion of a point which, although it was raised during the earlier stages of the Bill, has not, I believe, been satisfactorily explored. The Amendment also gives the opportunity for the Government to explain how they think the scheme will work in practice.
I must remind the House that, in my White Paper Cmnd. 4821 of November 1971, which set out the proposals of the Government at that time, not only on brown trout but also on the reform of the fishery laws in Scotland as a whole, I described the scheme which was then proposed. There was a major difference from what has been adopted by the present Government in the proposals of that White Paper, in that it was not intended that protection orders should be only for whole catchment areas or large parts of catchment areas. The Government have made it clear that protection orders made under the present Bill must be for the whole or a very large part of a river, not for individual lochs or small stretches of river. That was one of the main differences, because in my proposals it was intended that protection should be extended gradually as conditions were satisfied by owners. As owners contributed by stocking and maintaining brown trout and by meeting other conditions which one would expect in return for protection, they would be granted protection.
I recognise that there could he an objection to such a method. The Government have argued that that would lead to a patchwork and would cause a considerable amount of detail to have to be worked out. However, I believe that there will in any case be a great deal of detail involved in these schemes. Dealing with a very large area through one protection order will not relieve those concerned of having to 408 look into the particular circumstances in different parts of the area. However, because the Government have adopted this difference and have decided that protection orders must be for very large areas, a situation could arise, as was pointed out earlier and as the noble Viscount has again underlined, where there could be owners within an area who had no wish to co-operate, no wish to be protected, and no wish to make any contribution to the stocking and maintenance of brown trout in their waters. They could then find themselves enjoying the benefits of protection without making a contribution, and indeed without even wanting the protection, because they were in the large area which the protection order covered. Those are the loopholes to which the noble Viscount referred.
When we were discussing this at the Committee stage I asked the noble Lord, Lord Kirkhill, how the process of application for a protection order was started. Under the Bill it needs only one applicant, one landowner, out of perhaps 200 or more in a catchment area to start the process. The noble Lord replied that once that had happened the Government would have the duty of getting in touch with all the other owners in the area, which could be very large. All those other owners would be approached and that would start the consideration of a protection order for the catchment area or river.
The noble Lord has drawn attention to the difficulties about this because it would be a coincidence if every single one of those 200 owners happened to have the same view, and there could be a small number of them who were not interested in making a contribution or who, for some reason, simply were not in a position to do so. They might be in great financial difficulties, due to bereavements or one knows not what, or they may be abroad and not able to cope with the whole business of stocking and maintaining their waters, and simply not be able to co-operate, while others might not wish to co-operate. Under the Government scheme instead of extending gradually, admittedly in a patchwork, protection orders would be granted to a large area all at once and every body in that area would get the protection order whether or not they wanted it and regardless of whether they had applied for it.
409 Besides being a loophole I think that this could be a cause of some grievance among anglers because they could well resent the fact that an owner was doing nothing in a particular part of the area but was, none the less, enjoying protection, even though he had not wished to have protection. That is another aspect of the matter which could be unsatisfactory. But with regard to the new clause which the noble Viscount, Lord Thurso, has just moved, I am not sure what he means by the word "specified". He is suggesting that there should be a list of all the owners in the area of a protection order, and then it is stated that the Secretary of State… may specify for such fishings after consultation … the circumstances in which fishing is made available in respect of the matters listed in section 1(5) …".
Section 1(5) is the one we have just been discussing about the amount of charges, the permitted methods of fishing or tackle, the maximum number of fish which may be caught, and so on.
§ I am not sure whether the noble Viscount is intending that an owner who does not want to make a contribution and does not want to be part of a scheme, and who makes that clear when approached, would then get less protection or, in fact, no protection and so would then be exempted from the scheme. That would seem to be the logical conclusion from drawing up a list. One could tick off the names of all those who wanted to be included in the scheme and who were prepared to make the necessary contribution to the scheme, while those who were not so prepared would have their names crossed off. But it is not clear whether they would then be deprived of protection or whether they would get less protection. I am not precisely clear what the noble Viscount, once he has got the list, is proposing should be done by the Secretary of State, though what his new clause has done is to draw attention to this difficulty when there is a scheme covering a very large area and some unwilling owners, or odd men out, cannot, for one reason or another, join in and contribute.
§ Lord FORBES
My Lords, I should like to issue a word of warning and a little caution over this matter. I do not believe that all owners of rivers will have the same 410 view over improvement, especially in relation to stocking a river. The noble Lord, Lord Kirkhill, will know as well as I do the River Don in Aberdeenshire, and he will probably also know that after the war that river had its poorest trout fishing. The reason for that was that it was not fished during the war and there were far too many small fish. It was not until some years after the war, when the river had been properly fished, that the trout fishing improved immeasurably. Thus, do not let us think that everyone stocking a river will be the answer to improving trout fishing on a river.
The Duke of ATHOLL
My Lords, first I should like to make clear that I think the Government are quite right to have what I might call area protection orders rather than individual orders for individual stretches of river, simply because I believe that the latter would have been unenforceable and that it is far more convenient to have, if possible, whole rivers as protected order areas. But I believe that the Amendment of the noble Viscount, Lord Thurso, raises difficulties, because there are bound to be many places where, for very good reasons, people do not want access to be available for fishing. For instance, if one has a river at the bottom of one's garden it is not unreasonable to say that one does not want people fishing that part of the river from one's garden. There may be places where rather shy birds nest, and one would not want fishermen going up and down the river bank in such an area. Some provision must be made for what one might loosely describe as the awkward customers who are not prepared to enter an improvement scheme even though the stretch of water they own may be in an area which is to he protected. This is a difficult problem, and I believe that on the whole the Government have come fairly close to getting this part of it about right.
§ Lord KIRKHILL
My Lords, in responding I should like, initially, to reiterate yet again the Government's general view of this proposition in the Bill, fully appreciating that the noble Viscount, Lord Thurso, and many other people would like to create a new situation in which the Government would be empowered to require access to be given to fisheries when this is not volunteered. I appreciate that there are strong feelings 411 about landlords who may hope to achieve protection without any contribution, and I shall touch upon this aspect of the matter shortly. However, the Government have made it clear that they are not in this Bill seeking compulsory powers over property and fishing rights. We are founding on a principle which I thought might be attractive to the noble Lord; namely, giving the protection of the law in return for voluntary co-operation. With respect to the noble Lord, I think that it would be a mistake at this stage to go for a mixture of the voluntary and the compulsory. In practice it would be a substantial administrative job to go out and identify every owner or occupier of fishing rights in a large catchment area, and it would be an awkward requirement to ensure, before taking action, that every last one of these people had been consulted.
If we were to go to such expensive lengths then there would be an unquestionable argument for making the whole thing compulsory; indeed, a very great many people would approve of that. One of the practical arguments that has held us off that course is that it would involve Government in considerable additional public service manpower commitment. In the first place there would be the work of identifying the owners and occupiers and the processes of creating a register, and after that there would be the processes of up-dating. Unquestionably, if the State were using compulsory powers there would be continuous traffic of appeals and complaints to be dealt with. All in all, the Government have decided that the time is not ripe for bringing the whole of freshwater sport angling facilities—and I suppose this would include salmon as well—under State control.
That is, I think, a restatement of the overall Government position, but a number of points were raised in the course of remarks in your Lordships' Chamber and perhaps I might deal with one of the points which the noble Viscount, Lord Thurso, made initially. While agreeing that he gave a very fair explanation of what the Bill provides and how it stands as it has been debated thus far, I think, if I understood him aright, that he misunderstands the concept of the protection order. I should say to him that 412 the protection order will apply to the whole area which it specifies. Any other effect would, in the Government's view, result in piecemeal application of the law; and it is for that reason that no promise can be given that the benefits of the Bill will be withheld from the non-participatory owner—and, of course, this is the point of which the noble Lord, Lord Campbell of Croy, has just spoken. Lord Campbell's own system was supported by provision for fishery boards, and these boards were to cover the whole country. I had already said that this was certainly, in the long term, desirable, but, in the Government's view, at this particular stage public sector commitments of an extent and nature of this character are considered to be too expensive, and they will not take them on board meantime.
The noble Lord, Lord Campbell of Croy, spoke of the notification of non-proposing landowners, and I think he indicated that I had given an intimation that the Government would notify other landowners. If I gave such an indication and left it in bald manner like that, then I require certainly to condition that at this time. The provisions for publication of proposals are in Schedule 1. There is no requirement on the Government to notify individuals. The noble Lord, Lord Campbell of Croy, also quoted me as saying that one applicant can apply, and of course the Government would require to find out about the others. This is not quite accurate. I doubt if I put it exactly in those terms, but so that the Record may be absolutely clear let me say that there is nothing in the Bill to prevent a plurality of applicants. The main thing is that at the end of the day the Secretary of State will be satisfied that, over an area to be specified by him, demands for fishing from persons wishing to fish can be met on reasonable terms.
I would of course agree with the noble Lord, Lord Campbell of Croy, that his scheme was to give protection only when access was offered, but I have already indicated that this Government have set their face firmly against piecemeal protection such as has been mentioned. It would lead to a situation where anglers did not know the state of the law in any one place; nor would wardens always know whether they should act or not. In addition, the administrative effort 413 required would be much heavier than for schemes for area protection, and this, of course, is one of the reasons why area protection finds favour with the Government. It would also require a very large number of orders to deal with the many different pieces of water involved. I freely acknowledge that the noble Lord, Lord Campbell of Croy, introduced a White Paper in 1971, but I cannot resist the temptation to say that this Government have introduced a Bill.
§ Viscount THURSO
My Lords, I am delighted that my Amendment has at least provoked a good deal of discussion on this important flaw, if I may say so, in the Bill. To take some of the points which have been made, the noble Lord, Lord Campbell of Croy, suggested a patchwork approach. I must confess that I agree with the Government in the blanket approach. I think this is a better approach. I think the patchwork approach would be difficult to administer and would be a great problem. Certainly I would say that without the area boards it would be impossible to administer. Therefore, if, as we have discovered already in debating this Bill, it is going to be impossible to get any area boards out of the Government, it is obviously hopeless to try to get a patchwork quilt to cover us as well.
The noble Lord, Lord Campbell of Croy, asked me what was meant in this Amendment by "specify". I meant and I mean, and I take the works to mean, that the Secretary of State would lay down
for such fishings after consultation with all owners or occupiers so listed the circumstances in which fishing is made available in respect of the matters listed in section 1(5) of this Act".
In other words, he would seek to make those who had stayed out of the discussions at the earlier stage take part in the final arrangement, whatever the final arrangement was; because if we are to regard a whole drainage basin or a whole river as one for the purposes of protection, we must also consequently regard it as one for improvement and accessibility. You cannot regard it piecemeal for improvement and accessibility purposes and at the same time regard it as one for protection. I think you have to grasp the nettle, and this is a nettle which the Government are firmly refusing to grasp.
I really think they ought to grasp it; otherwise, the Bill, when it becomes an Act, will possibly come into disrepute.
Lord CAMPBELL of CROY
My Lords, I thank the noble Lord for giving way and also for answering the questions I put to him, because what it means is that in the case of those particular owners who, for one reason or another, were not prepared to co-operate in a scheme the Secretary of State would have compulsory powers, but he would be specifying that they must do something, whereas I was asking whether there would also be the alternative, where he would just specify that those owners would not get protection. Because, as I think my noble friend Lord Forbes indicated, there could be places where, for one reason or another, it was just not possible for the owner to do what the Secretary of State was specifying. It would be easier for the Secretary of State to omit protection in that case, although, unfortunately, if there were many of them, one would then get a patchwork.
§ Viscount THURSO
My Lords, as to what the Secretary of State is going to demand of people, I think I am right in assessing that what is in the Government's mind is that it should be fairly simple. The Secretary of State would not turn round and demand highly expensive and complicated schemes out of owners of fisheries; he would simply demand good housekeeping, good management and a reasonable share of access being given to those who might desire to fish upon those waters. I would hope that what would be specified by the Secretary of State in relation to any part of a protection order would be a thing which would be thoroughly acceptable by any reasonable person on any part of the area covered by that order. I am not expecting any unbearable conditions to be placed by the Secretary of State. I do not think his advisers would advise him so to do. I think that anybody wishing to see this Bill work when it becomes an Act is going to start by having conditions that are reasonable, so I do not think anything unreasonable will have been specified. But I think we may well run into difficulties if we cannot in some way coerce people who are going to get benefits to come forward to the table and discuss the position before the benefits are given. This is one thing that would certainly happen if we had this clause in 415 the Bill: that people who were seeking to stay out of the whole thing would be made to come forward and discuss it, and might even be constrained to object and, therefore, call down a public inquiry and have the whole thing aired in public.
Now the noble Duke, the Duke of Atholl, brought out some points which really might well have been brought out in the discussion on his Amendment, because these surely come under (h). The protection of birds and the protection of privacy are matters which come under paragraph (h), which the Secretary of State will in any case be considering in relation, we hope, to every fishery which has sought protection. I really think that if he is going to be sensible and reasonable about the way in which he specifies for a protection order, we could assume that in relation to somebody who required privacy on his front lawn, he would not enforce busloads of people to come and fish off somebody's front lawn. This would be unreasonable. Nor would he wish to disturb shy species of birds. I do not think that question will arise.
The noble Lord, Lord Kirkhill, on behalf of the Government has referred again to the question of area boards and to the question of the expense of Area Boards. I was at some pains to say that I was sure that area boards could be made to exist without expense. Certainly, I hope that if and when we have a protection order on the Thurso we shall be able to produce a voluntary Area Board for him to see in action. We shall try to get something like this going. He also referred again to the question of wardens. Without Area Boards it is going to be difficult to know where the powers of wardens are going to be exercised; because it sounded as though he was envisaging wardens acting all over the protection area whether they acted on the fishing of the person or persons who employed them or not. I should be surprised if that would produce good will and a spirit of voluntary co-operation. What he was most at pains to point out was that this was to be an Act that depended on voluntary co-operation and not on State control. I am not asking, when I ask for Area Boards, for State control. I am asking for voluntary co-operation and for a slight tickle of the whip for those lagging in coming forward to co-operate 416 when the opportunity is given.
I think that the Committee have only to look at the existing position with salmon fishing to see that the district fishery boards do a lot of controlling and helping with management and have wide powers of management, of running hatcheries and so forth, without in any way exercising State control, and doing it entirely by voluntary co-operation.
I think that there is still a point here which ought to be looked at. I would ask the noble Lord, Lord Kirkhill, to look at this yet again. I do not feel that he has fully answered the problem here and I feel that there could be something done to improve this flaw in the Bill. Therefore, in the hope that he will look into this further, I will ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 [Appointment of wardens to secure compliance with protection order]:
§ 5.44 p.m.
§ Lord CAMPBELL of CROY moved Amendment No. 6:
§ Page 4, line 5, at end insert", and where he has reasonable grounds for suspecting that evidence of the contravention is to be found in any vehicle on any private land adjoining any water within the prescribed area, the said warden may search that vehicle."
§ The noble Lord said: My Lords, I beg to move Amenement No. 6 in the name of my noble friend Lord Mansfield and myself. This deals with the subject of wardens which we discussed in general at the Committee stage, on whether the clause shall stand part?, in order to elicit from the Government their views on how the system would work. The Amendment which I have tabled reads:
… and where he has reasonable grounds for suspecting that evidence of the contravention is to be found in any vehicle on any private land adjoining any water within the prescribed area, the said warden may search that vehicle.
§ When we had the earlier discussion, the noble Lord, Lord Kirkhill, said that the Government were aiming for powers to be possessed by the wardens limited to inquiring into the legal right of an angler to fish and to seizing tackle, provided the tackle was visible. There were no powers of search. As the noble Viscount, Lord Thurso, and I pointed out at the time, that meant that the wardens were powerless if the tackle was invisible.417
§ When this Bill started in the Commons it had powers of search in this clause. It went through five days of Committee in another place and still had powers of search. It was only in the closing hours of the last day in another place that the change was made by Government Amendment which removed those powers. The powers of search which then existed were to search a boat, a basket, pocket or other receptacle. I would point out that to search "pocket" meant being able to search a person. I should like to ask the Government why at the last moment in another place they decided to take those powers of search out of the Bill.
§ The result has been that problems and anomolies can arise and especially with the functions of the water bailiffs who are already enjoying certain powers under the 1951 Act, including the powers of search. The water bailiffs and the new trout wardens will, no doubt, be operating in the same areas or in overlapping areas or on opposite banks of a river. My Amendment would give the trout warden the same right of search of a vehicle, including the boot of a car, as is possessed by the water bailiff. The noble Lord will notice that I have taken the wording of Section 11(4) of the 1951 Act and adapted it. I suggest that this is the minimum of search that he needs. Your Lordships may think that he ought to have more powers of search; but as I am going to persuade your Lordships, I hope, the minimum power which I think he ought to have is the power to search a vehicle.
§ I would remind your Lordships that the 1951 Act gives protection to salmon and sea trout. It does not give protection to brown trout if fished for by rod and line; but it makes certain methods of taking brown trout illegal, methods such as netting or poisoning with cyanide. So the 1951 Act protects trout from certain methods of fishing which are thus illegal. Therefore, anomolous situations could arise like this. A water bailiff can at present search a basket, pocket, or vehicle in certain circumstances. He is not concerned with finding only salmon or sea trout. He is also looking for brown trout if he has reason to think that the brown trout were taken illegally, for example, by poisoning, so that trout are mentioned in Section 10 of the 1951 Act as well as salmon and sea trout. If he finds, say, 20 brown trout and a container of poison, he can 418 act. Even if he finds no salmon or sea trout, he can act on brown trout because he has complete evidence that they have been taken by illegal means. That is a power possessed by the water bailiffs at present. If he finds only brown trout in a reasonable number, say three or four, and a rod or line in the boot of a car, at present he takes no action; because trout are not protected provided they are fished for by rod and line.
§ But once this Bill is enacted, if the person who owned the car was not permitted to fish in that protected area, he would have discovered a contravention of this Bill when it had been enacted. If he were to find these trout and a rod and line and the owner had denied that he had been fishing or that he had caught anything and it was clear he had no legal right or written permission, what does the bailiff do? He is not a warden under this Bill, but he has discovered a contravention of it through using the powers of searching the vehicle, a power which is not possessed by a trout warden under this Bill.
§ I put this question because it is an example of the anomaly which may arise. Similarly, the bailiff's power of search of a pocket and a basket could produce the same situation. He may find no salmon or sea trout, but clear proof that brown trout have been taken in an area by rod and line but without authority because the person concerned did not have a legal right or written permission. Another anomaly can arise because the wardens are not only controlling whether anglers are fishing with permission with rod and line. If this Bill is to be effective when it has been enacted, the wardens must be equipped with enough powers to deter and detect major poaching raids by gangs, probably during the night, and probably using nets or poison. This can happen to a loch or stretch of river. During the night a gang who know what they are doing can take an enormous amount of fish; they can clean out a stock of trout in a loch.
§ If a warden arrives at the scene it might be obvious what is happening. If all that is visible by the time he has reached the spot is a vehicle and some men then, under this Bill, there is nothing he can do. Perhaps the men have discarded the net at the bottom of the loch or had time to get it into a vehicle before the warden arrived. If he had the power to look inside the boot 419 of the vehicle, if it is a motor car, he would find ample evidence. He would probably expose sacks of trout and a large net, or perhaps containers of poison.
§ If he were a bailiff under the 1951 Act he could take action to inspect the vehicle, to search it; but as this Bill is now drafted, the trout warden could not do so. He is helpless in that situation. That is no encouragement to the stocking of lochs and rivers in Scottish waters with trout in the future; that, after all, is what those of us supporting this Bill wish to see happening. Moreover, it is likely to lead to over-dependence on the water bailiffs who already have powers under the 1951 Act. They are the only people who in fact have these powers of search.
§ So we could find when this Bill is enacted—depending upon the answer we are going to get from the Government to the questions I have put—if the answer is the bailiff can take action that there may be a move for an increase in the number of bailiffs, extending their areas and generally overworking them. Clearly, this is not the intention of the Government otherwise they would not be putting forward proposals for trout wardens. I ask the Government to look again at this matter. This is not a subject in which in principle they have very decided views because they did have the powers of search in the early version of the Bill until the last moment before it came to this House. Unless the Minister can give us an adequate explanation of what is to happen in the circumstances I have described, I hope that before Third Reading they will think again about restoring at least some of the powers of search, particularly the one concerning a vehicle. I beg to move.
§ 5.54 p.m.
§ Viscount THURSO
My Lords, I have some sympathy with the noble Lord, Lord Campbell of Croy, and the noble Earl, Lord Mansfield, in their Amendment. The noble Lord, Lord Kirkhill, was party to a discussion today which illustrated the problem that will arise. The type of problem that will undoubtedly arise is that people will use spinners on fly-only water. This is disturbing to the fly-only angler but is something which undoubtedly will happen. The noble Lord has clearly 420 answered my question and said that in his view if somebody was spinning on fly-only water they would be in breach of their permit and would therefore be in contravention of the law. It would be almost impossible to prove because all that the man has to do is to break off his spinner and put it in his pocket. Nobody will be able to prove a thing against him. The fact he was using a spinning reel could not be held against him because it is perfectly possible to fish a cast of flies off a spinning reel. He can claim he was doing this and say there was nothing on the end of his cast because he had broken his fly.
I have great sympathy with this problem; on the other hand, I find it difficult to see how one is to give greater powers to wardens without having a satisfactory body to supervise them. The great thing about water bailiffs, salmon bailiffs, is they are supervised by a district fishery board and they have probably a river superintendent or head bailiff over them who is responsible for seeing that they behave in a responsible manner. It is clear that although we may not have a patchwork system of protection, we are certainly going to have a patchwork system of wardens, good, bad and indifferent, large and small, all over the place. In these circumstances, it is going to be very difficult to support the powers of search of a vehicle any more than it is going to be possible to support powers of search of the person who is thought to be contravening the Act.
§ Lord BURTON
My Lords, I feel that my noble friends on the Front Bench have asked for the very minimum here. I see two slight difficulties in their Amendment which I hope can be overcome. One is that a warden could be placed in an invidious position. What is "adjoining"? I am not sure that there is a clear definition of what this might be. That presumably could be put right fairly simply. The other difficulty arises with the phrase "any vehicle on private land". Only fairly recently road authorities started acquiring the land on which they were carrying out building work. It may be that a vehicle parked in a lay-by may be on public land or private land, depending on what age the land was and when the roadworks were completed. I feel this ought to he extended further. It seems pointless that if a vehicle is in a 421 lay-by near a loch the warden might not be able to search it. I hope that the principle of the Amendment can be accepted and perhaps on Third Reading we can tidy it up a little.
§ 5.59 p.m.
§ Lord KIRKHILL
My Lords, I understand that the noble Lord, Lord Campbell of Croy, the noble Earl, Lord Mansfield, the noble Lord, Lord Burton, and also the noble Viscount, Lord Thurso, are worried about what can be regarded as the somewhat anomalous position of a water bailiff warranted under the 1951 Act who finds, for example, brown trout in the boot of a car and is unable to pursue the owner of the car respecting a suspected offence under Clause 1 of the Bill. Whatever one may think of this—and I do not really think it is the end of the world—the bailiff would nothave been searching the car boot unless he had suspected something far more serious than fishing for trout without permission. He must have suspected that the user of the car—if we are to continue with this example—was guilty of either gang poaching of salmon or taking salmon or trout by certain illegal methods, including, in some cases, the using of explosives, poison or electrical devices; otherwise he had no right to search the car.
So if he found brown trout in the boot he may have found evidence relevant to a charge under Section 3 or Section 4 of the 1951 Act. Whether he suspected that the trout had been taken without permission would seem of little moment in these circumstances. If he was also an appointed warden, in terms of this Bill, he could also produce the trout as evidence of an offence under Clause 1 of this Bill, if he had reason to suspect they had been taken without permission. However, I hope your Lordships will take the point that there is a great difference between poaching with explosives, and so on, and angling without a permit, and I do not think we should contemplate mixing them up. I also understand how it might be easy for a poacher with a motor-car parked conveniently near the spot to hide his tackle and his catch in that car and so frustrate a warden in proving that he had committed an offence under this Bill. But invasion of privacy is most serious and in the Government's view there is enough of it these days 422 without extending it unduly, except where the seriousness of the suspected crime would fully justify it.
No one could seriously argue that the taking of a few trout without permission constituted a sufficiently heinous offence to merit this serious step being taken. I do not think we should be mistaken about the offence to which we are referring. It is not that of taking trout by an illegal method, such as netting, gaffing or the use of explosives or poison. The 1951 Act, as I have just mentioned, already covers that for trout as well as for salmon and I understand that the relevant section is Section 2(2). The Government are not here aiming at the amendment of that legislation without full consideration of all the details, so I think we can forget about that point.
§ Viscount THURSO
My Lords, before the noble Lord leaves that point may I ask him this. If a warden finds a person netting, gaffing or otherwise illegally taking trout, what does he do?
§ Lord KIRKHILL
My Lords, it is of course open to a warden to report the fact to his employer. I was talking here of the angler, the man fishing by a perfectly legal method; that is, by rod and line, but without the permission of the holder of the fishing rights. I think that distinction has to be made.
It was to answer intense and continuous pressure in another place that the less biting powers of searching boats, baskets, pockets, and so on, have been taken out of the Bill. The noble Lord, Campbell of Croy, who is associated with Lord Mansfield in this Amendment, mentioned that the Amendment narrows the provision in Section 11(4) of the 1951 Act. This is true so far as it goes, but I would submit that it misses the significant point that the powers in Section 11(4) are available to the water bailiff only where there is suspicion of poaching by concerted persons, for example, gang poaching or the use of poisons, explosives or noxious substances to take fish. These are substantial offences even in the salmon-fishing world, and in my view they probably argue themselves out of the world of brown trout fishing, which is still generally regarded as a fairly innocent sport.
423 The noble Lord, Lord Campbell of Croy, mentioned the question of action by wardens against gang poaching. This is not a new offence. It is dealt with by the Act of 1951 and is a matter for the police and bailiffs, but not, I would submit, particularly for wardens. The noble Viscount, Lord Thurso, asked a question regarding fishing with a permit but using a non-permitted method. For the Record, I should say that an angler who has a valid fishing permit and uses a legal method will not be breaking the law—which is not quite what I inferred earlier, and I therefore apologise to the noble Lord. May I just finish this by saying he will not be breaking the law even if, for example, he is spinning when the permit does not allow spinning, but the owner will be entitled to withdraw the permit.
§ Viscount THURSO
My Lords, it seems to me that this cuts right across what the noble Lord has told us at every other previous stage of this Bill. The assurance he gave me on Second Reading concerning this point was that one would be able to prohibit the use of certain implements and methods of fishing which might, in other areas, be considered legal. The noble Lord now tells me that, notwithstanding this, we are back to square one and that one has to catch the man doing the thing before he can be stopped from doing it.
§ Lord KIRKHILL
My Lords, presumably there was an element of confusion between the noble Viscount and myself. In my own mind, I was not making a distinction between different types of fly and such things, but I have tried to be as specific as I can on this occasion. The noble Viscount also asked: what does a warden do if he comes across a case of illegal fishing? I have to tell him that the warden would do nothing. He can, of course, report the matter to the police and, as I suggested earlier, to his employer as well.
The Duke of ATHOLL
My Lords, I hope very much that my noble friends will pursue this Amendment because it is extremely important. I agree with the noble Lord, Lord Kirkhill, that someone without a permit fishing for brown trout in a large river probably will not do any great harm, and that this does not really 424 matter. I do not think the warden in the normal way would search a vehicle under those circumstances. If however, someone without a permit fishes a fairly small and recently-stocked loch, he can remove anything up to two-thirds or three-quarters of the trout with which the loch has just been stocked. This is extremely discouraging to the owner or to the club which has gone to great trouble to stock the loch and will have stopped members fishing in it for a considerable period afterwards so that the fish may have the chance to become acclimatised. This is normal fishing practice in such cases and it gives the fish more of a chance, which I think is in the best British tradition.
However, we do get people who come along and fish these lochs before they are ready—and of course I mean unauthorised people and not members of the club which has fishing rights on the loch and not people who may have got a day ticket from the club. These are the people we want to get at, and the only possible way to prove they have committed an offence is by having the power to search either their car or any haversack they may be carrying, because once they have caught their fish they do not leave them lying on the bank. They are going to put them in some sort of container and, if they know the law, they will soon transfer the fish to the boot of their car where they cannot possibly be seen. I think this Amendment is extremely important and in many cases the whole Bill will fall down unless this Amendment, or one like it, is incorporated into the Bill.
§ The Earl of MANSFIELD
My Lords, since my name appears on this Amendment, perhaps I might contribute a little to this debate, which I have found profoundly depressing and indeed most unsatisfactory. If nothing else, it clearly shows this Bill for what it is becoming—that is to say, a nonsense. I do not want to be over-contentious or over-controversial and I should like to separate, if I can, the feeling which exists, not so far as the noble Lord, Lord Kirkhill, is concerned, but so far as some of his friends in another place are concerned, and also those behind them in the Golden Lion and other public houses. There are simply not enough salmon or trout or indeed any other fishable fish in Scotland for everybody who wants to fish at any particular 425 time and by any particular means to hoick them out. That is a law of nature and however enlightened or nationalised the fishing or riparian owners have become, this fact cannot be altered. There has to be some regulation of fishing, as otherwise there will not be any fish. I have already said that by the use of unfair methods over part of the Tay the large brown trout have been reduced to the point of disappearance; they do not exist any more. That is a fact which the noble Lord or any of his advisers cannot gainsay, if they have the faith and the necessary knowledge.
At the same time, one must realise if one is reasonable that there are many folk in Scotland who like to fish, who do not have access to fishing in the ordinary course of events, and who are concerned—and I should be the last to blame them for this—that what they regard as their traditional rights should be preserved in the future. They regarded this Bill as being a possible unjustified fetter or limitation of their rights. One has every sympathy with that point of view, and any enlightened riparian owner or secretary of a fishing club, or anybody who has the management of freshwater fishing for ordinary fish in Scotland, would agree with that point of view. But when one looks at Clause 1(5) and the various paragraphs under it, and at Clause 2 dealing with the powers of the wardens, one sees that because of the political feeling behind the tabling of the Bill, and more especially the Amendments on Report and Third Reading in the other place, the nonsense is revealed.
I want to go into less dramatic examples than my noble friend Lord Campbell, who talked about people with dynamite, poison or huge nets. But as my noble friend and kinsman has said, there will be examples of lochs which have nothing to do with salmon, which do not have bailiffs and will never have them in the ordinary course of events, and which will be stocked with fish for the public to try to catch. In Clause 1(5) we have the maximum of fish that may be caught and the permitted times of fishing. That is not just an archaic condition; in many cases it is vital to the proper preservation of a loch. There will be people who are not the jolly Lincolnshire poacher types who have been painted, and who merely wish to exercise the right of every Highland gentleman to seize a brown trout. They will be people who 426 flout the regulations, who take too many fish, who take them by unfair methods of tackle and—let us not beat about the bush—who take them at the wrong time and in the wrong manner, and by so doing they cheat other people who pay for the privilege of taking those trout. Therefore, this is not a case of some hard-faced riparian landowner preventing proper enjoyment of fishing. We are talking about people who are concerned to organise fishing in a just and, at the same time, efficient manner.
What are the powers of the warden? If he comes upon a crowd of men in the middle of the night and does not catch them in the act of fishing, although they may be fishing beyond the permitted hours, there may be too many fish or they may be using the wrong tackle, what is he to do? One has to ask oneself that question. If the men are in a position to put the offending tackle and the fish in the boot of their car, then according to the noble Lord, Lord Kirkhill, they can laugh, and that is what they will do. I see that the noble Lord shakes his head and I am very grateful to him for having the honesty to admit it. But is a Bill in this unsatisfactory state the kind of Bill that the noble Lord and his friends wish to see go forth upon the Statute Book?
I have no doubt that in all probability, for the purposes of today's debate, my noble friend Lord Campbell will withdraw this Amendment put down in our joint names. But there is still time for the noble Lord, Lord Kirkhill, and his advisers to consider this matter, not in the spirit of vindictive landlords wishing to exercise ancient territorial rights over unfortunate citizens who happen to be out to try to catch a fish, but in the sense that persons who are charged with the management of fisheries to be improved under this new Bill will merely be trying, through the wardens whom they employ, to stop cheating. If the noble Lord views the matter in that light, maybe at the very last stage of this Bill, the Third Reading, we could have an Amendment which would commend itself to the House and also to the Government.
§ 6.15 p.m.
Lord CAMPBELL of CROY
My Lords, I think the debate on this Amendment has brought out the fact that there is a serious lack of powers where wardens 427 are concerned, if there is to be a satisfactory warden system. The noble Lord, Lord Kirkhill, has indicated that the reason why the Government changed their minds and took away certain powers just before the Bill reached your Lordships' House was pressure in another place. But it looks as though the wardens will find it very difficult to carry out their job. My noble friend Lord Burton inquired about the wording of the Amendment. I would say straight away that it is not perfectly drafted and I did not expect it to be accepted as such. I indicated that I had taken the language of the 1951 Act, and I took it precisely. Therefore, the words "vehicle on any private land adjoining" are taken from the 1951 Act, and if the principle of the Amendment were accepted by the Government it might need to be redrafted for this Bill, or there might need to be definitions put into it.
The noble Lord, Lord Kirkhill, said that it was not the end of the world if someone was caught fishing in a protected area, therefore contravening this Bill when it is enacted. Of course we agree with that, but in so far as the main purpose of the Bill is to protect trout we are now seeking to make sure that it is carried out. This is a conservation measure and I was drawing attention to an anomaly—in fact, to two or three anomalies. So I agree with the noble Lord that it is not nearly so serious as using illegal means to catch salmon. But I pointed out that in the course of his duty in investigating whether some more serious offence had been committed, a water bailiff could discover that there had been a contravention of this Bill, and in painting that picture I reminded your Lordships that only in defined circumstances could a water bailiff use his power to search in the boot of a car. I did not spell out all of them, but if in the course of his duties he suspects that illegal fishing has taken place then he can search a vehicle.
In the course of searching the vehicle, he may find an offence under the Bill. What does he do '? The noble Lord answered that question, and it seems that if he is simply a water bailiff he does nothing officially but he can let the owner of the land know. But if he also has the second capacity of warden, then he can take action under the Bill. So we did get from the noble Lord a clarification for which I am grateful; but all it did 428 was underline the anomoly, and I am sure that those who read the record of this discussion will see that it would be a good thing if water bailiffs were also made wardens, where that could conveniently be done.
However, because my Amendment was taken out of another Bill and not drafted to fit exactly into this Bill, but was tabled in order to draw attention to this matter and in the hope that the Government will look at it again, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ The Duke of ATHOLL moved Amendment No. 7:
§ After Clause 3 insert the following new clause:"Introduction in inland waters of species of freshwater fish not normally resident in such waters
- .—(1) Any person who releases in inland waters in Scotland, over which a protection order has been made, a species of freshwater fish not normally resident in those waters shall be guilty of an offence and liable on summary conviction to a fine not exceeding £50, or, in the case of a second or subsequent conviction, to a fine not exceeding £100 or to imprisonment for a term not exceeding 3 months.
- (2) Notwithstanding subsection (1) above the Secretary of State, after consultation with such bodies as he considers relevant, may issue a licence for the releasing of any species of fish in waters over which a protection order has been made, and no offence shall be committed by so doing."
§ The noble Duke said: My Lords, perhaps we move now into rather more tranquil waters. The object of my new clause is to prevent people from introducing unsuitable species of fish into waters which have been protected and which are being stocked. If I could take a small example, because this is the easiest way to deal with the point, there is a loch which is partly in my ownership and partly in that of the Forestry Commission. Both of us let the angling in the loch to a local angling club. With the agreement of both proprietors and the angling club, the Freshwater Fisheries Laboratory at Pitlochry are doing experiments on this loch, first to reduce the number and try to increase the size of the brown trout by preventing them from spawning in several of the streams which run into the loch, and secondly to introduce a species of fish called American brook trout, which looks as though it has a great future in Scotland as a stocking fish. I will not 429 go into the reasons why this fish appears to have such a great future. It is most interesting that the American brook trout has not been much used until now for stocking Scottish lochs, but it appears to have all the ingredients needed for stocking Scottish waters, including being very tasty when it is caught and put on the table.
§ By my Amendment the laboratory would have to obtain a licence from the Secretary of State in order to introduce into this loch the American brook trout, but I do not anticipate that there will be any difficulty about this. Equally, if suddenly I took a vicious dislike to the angling club, to the Forestry Commission and to the Freshwater Fisheries Laboratory and decided to do down their experiment at the moment, there is absolutely no reason why I should not introduce pike into this loch, which would, of course, reduce the experiment to a nonsense.
§ All I am suggesting in this Amendment is that it should be illegal for me to introduce foreign fish into a loch or, for that matter, into a river to which a protection order applies. I think that this Amendment is essential, because I foresee cases of two people who owned different parts of a river or loch pursuing totally different stocking policies. There is also the danger that too many trout might be introduced into a valuable salmon spawning ground. I admit freely that probably this point would not be covered by my Amendment. I find it difficult to think of a form of words which would cover this circumstance, but it is a danger and I should like to bring it to the attention of the noble Lord, Lord Kirkhill. I am sure that an Amendment on these lines would be helpful, in that it would prevent people from putting unsuitable fish into lochs and rivers which are situated in protection areas. We have only to look at the grey squirrel to see just how disastrous the introduction of foreign animals can be in the animal kingdom. I think it could be equally disastrous in the fish kingdom. I beg to move.
§ Lord BURTON
My Lords, I should like to support my noble friend the Duke of Atholl. He is absolutely correct in what he has said about pike. I believe that pike are not indigenous to the North of Scotland and that one can trace the 430 monastic settlements by the areas which were stocked with the pike which they needed for their Friday fish in the winter. They fished in various places as the fish moved up or downstream. It is very important that restrictions should be placed on people to prevent them from putting into rivers or lochs any kind of fish; therefore, I believe that this Amendment is well worth considering.
§ Viscount THURSO
My Lords, may I support the noble Duke, the Duke of Atholl, in this Amendment. Not only can you do damage by putting the wrong kind of fish into inland waters; you can do damage by carelessly introducing disease into inland waters—disease which might come out of a hatchery bred fish which did not exist in that drainage basin. In certain waters this would be a very important point, and some kind of control over the introduction of fish into inland waters is very desirable, especially if one is to have a protection order.
Lord CAMPBELL of CROY
My Lords, with his example my noble friend the Duke of Atholl has raised an important point, and I hope that the Government have taken it on board. It was referred to at earlier stages of the Bill but no proposal as to how it might be dealt with was put before us. At an earlier stage my noble friend the Duke of Atholl said that his Amendments had been drafted by himself, and he has just told us that he has had to wrestle with the words to try to find a way adequately to add to the Bill in order to cover the case which he has described. With his ingenuity, I can see that my noble friend has used the words "fish not normally resident in those waters"; but whether or not these words would apply to pike is difficult to say. From the point of view of interpreting the Bill afterwards, that form of words might be difficult. However, it is quite clear that my noble friend has raised this as a general point which needs attention. As the Government have been given notice of this Amendment, albeit fairly short notice, I hope that they can comment now upon it and consider the matter seriously hereafter.
§ Lord KIRKHILL
My Lords, the Government are sensitive to the contributions which have been made this 431 afternoon in your Lordships' Chamber on this point and they see the attraction of the ideas underlying the Amendment of the noble Duke. The introduction of exotic species of fish presents hazards and should be done only with circumspection. It is not unreasonable to envisage some form of authoritative control eventually in Scotland, as elsewhere. There is, however, already a form of control on the disease side. The Diseases of Fish Act 1937 both prohibits the import of live salmonid fish and controls the import of live salmonid eggs. Also it regulates the movement of all live fish and eggs of fish within Great Britain.
The most notable disease of cultivated fish is, I am advised, infectious pancreatic necrosis. It is not rampant in Britain. Only seven fish farms in Scotland are known to be infected. In each case the disease situation is under control. The sale of live fish from any of these farms is prohibited by order under the 1937 Act. Such orders will not be lifted until the farm has been free from infection over a period of two years. Similar controls are exercised elsewhere in Britain. I believe that the disease situation is well in hand and I have no reason to suppose that it will get out of hand as a result of the stocking of natural waters.
As to the potential hazard from exotic fish as predators or competitors with native species, again I acknowledge that there is a potential risk, but I do not think it is a severe risk which is at all likely to result in widespread or sudden change in our fish population. If we had been at the stage where it was right to introduce a local administration—the idea we referred to as the Area Boards—then I think we might well have given the boards a power to control by licence the introduction of exotic species of fish, but I would remind your Lordships' House, as I have said on several occasions, that this is a first stage Bill. The Government are making a move in the direction of the protection order and at this time they are not going beyond that point in the Bill. But as I am attempting to indicate, that would have stood to be debated in the course of a more extensive Bill, and would have implied, in the Government's view, the necessity to create an administrative machine. Therefore, it follows from what I have said, and 432 because we are at the stage in the consideration of the Bill when it would not be possible—although the Government are not insensitive to the underlying thought behind the Amendment—that it is impossible for the Government to accept it.
§ Lord BALERNO
My Lords, I hope the noble Lord will give further consideration to this. I was greatly impressed by the point made by the noble Duke that the loch which he gave as an example is working in conjunction with the Government Fishery Research Department at Pitlochry. Their work could be completely negatived by the introduction of pike or anything else. It could completely upset the results, which might be and almost certainly would be, of great scientific interest.
A second point along the same lines is that it is greatly to the natural advantage, and also to the advantage of fishers, that lochs should be differently stocked; that is, that they should not come down to one common denominator of the same proportions of fish in the lochs. It is a great advantage that the lochs should show variation of stocking and this Amendment is worthy of much greater consideration than appears to have been given to it.
The DUKE of ATHOLL
My Lords, I am very grateful for the support which I have received for this Amendment, even from the noble Lord, Lord Kirkhill, because although he did not say that he would do anything about it he appeared to show some sympathy towards its intention. I very much hope that he will reconsider this matter before the Third Reading. I appreciate that, having tabled this Amendment comparatively late yesterday afternoon, he has not had sufficient time to consider it fully. It obviously raises some difficulties, although I do not think that the difficulty he instanced—that is, that one needs Area Boards in order to administer this—really applies, because presumably the body which the Secretary of State would normally consult, would be the Freshwater Fisheries Laboratory at Pitlochry. They have extensive knowledge of nearly all freshwater and its fish in Scotland and, I think, would easily give the Secretary of State extremely good advice about the 433 introduction of exotic species or, for that matter, any species. I do not think the pike is exotic but certainly the pike or the roach—a predator—could be a great disadvantage in what, until then, had been a loch that contained only trout.
I think this is a matter of some importance. Unlike the last Amendment, I think it is absolutely non-controversial. I agree that there are probably few occasions when people would attempt to introduce totally unsuitable fish into Scottish waters, but I still think that the grey squirrel is an example which we cannot ignore. The grey squirrel was introduced as a lovely little pet by, I believe, a noble Duke—I regret to say in order to improve the appearance of his park, and in my opinion the results of the introduction of the grey squirrel have been quite disastrous.
I appreciate that my Amendment is probably defective. I think no Member of this House or another place can possibly compose an Amendment running to 13 or 14 lines without it being defective. Therefore I have no hesitation in withdrawing it this evening, while at the same time expressing the hope that the Government may come back at Third Reading with an Amendment which does not have the defects of this one. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 2 [Penalties for offences against enactments relating to salmon and freshwater fisheries]:
§ Lord BURTON moved Amendment No. 8:
§ Page 11, leave out lines 9 and 10.
§ The noble Lord said: My Lords, I know that this matter has been mentioned several times before in another place and also in your Lordships' House but there is still considerable concern about it. Section 23 of the 1868 Act is of course now out of date and we are told that it cannot be amended in this Bill because it is a trout bill and not a salmon one. However, the penalties are being amended and I suggest that we should delete the increased penalties and leave the situation as it is. If we increase the penalties here, we appear to imply to the procurator fiscals that they ought to enforce this Section of the out-of-date Act. I would far rather this was deleted and perhaps some directive given to procurator fiscals that until such time 434 as it is possible to amend the 1868 Act any anomolies which might occur under this should be left in abeyance. I feel that by putting this in and drawing attention to it we are encouraging what could make, particularly net salmon fishing, extremely difficult.
§ This was discussed at some length during the Committee stage and I do not want to go further into it now, but I should like to hear what guidance the Government intend to give to the procurator fiscals on this matter. I beg to move.
§ Lord KIRKHILL
My Lords, I do not know whether I can quite answer the noble Lord in all that he asks of me. Certainly he has made clear his purpose in moving this Amendment and I fully understand his reasoning. Section 23 of the Salmon Fisheries (Scotland) Act 1868 requires proprietors and occupiers of fisheries during the close season to remove all boats and oars, nets, engines and other tackle used in salmon fishing so as to prevent their being used in fishing until the end of the close season. Under the existing law, which of course has remained unchanged since 1868, any person who neglects to do this is required to forfeit anything not so removed. In addition, for every day during which he so neglects he is liable to a penalty of f10. In the Schedule the Government are putting in place of that daily penalty, the single penalty with a maximum of £ 100 for a first offence and £200 for a second offence. I do not think I can add anything to that.
§ Lord BURTON
My Lords, are we not therefore encouraging procurator fiscals to take action under that? I would point out that the law says that you must remove these things, but there is nothing to say that you cannot put them back 24 hours later, which shows how ridiculous it is. In this position surely we are wrong to increase the penalties.
Lord KIRK HILL
With the permission of the House, the Government's view is that penalties which have remained unchanged since 1868 require revision, and the Government have not been unreasonable in their revision.
§ On Question, Amendment negatived.435
§ 6.39 p.m.