HL Deb 14 June 1977 vol 384 cc96-118

7.5 p.m.

Viscount THURSO

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Viscount Thurso.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Lord ALPORT in the Chair.]

Clause 1 [Power to limit the import etc. of fish and fish eggs]:

Viscount THURSO moved Amendment No. 1: Page 1, line 5, at beginning insert e' without prejudice to section 1(1) of the Diseases of Fish Act 1937 and subject to subsection (1A) below,")

The noble Viscount said: In moving Amendment No. 1, may I first of all thank your Lordships for the reception given to this Bill at Second Reading, which has emboldened me to avail myself of the help which the noble Lord, Lord Kirkhill, offered, and for which I am most grateful. In preparing these Amendments, I am most grateful both to the noble Lord, Lord Kirkhill, and to the officials of the Scottish Office, who have helped in bringing these Amendments forward and in drafting them in order to put muscle into the Bill and to carry out the intention of it.

The first Amendment, which is to insert the words: Without prejudice to section 1(1) of the Diseases of Fish Act 1937 and subject to subsection (1A) below", is because the Diseases of Fish Act 1937 imposes an absolute prohibition on the importing into Great Britain of live fish of the salmon family", and these are defined in Section 10(1) of the 1937 Act as including, all fish of whatever genus or species belonging to the family Salmonidae". The Amendment ensures that the provision contained in Clause 1(1) of the Bill which overlaps the 1937 Act provision does not prejudice the latter. The Amendment also relates the provisions of the new subsection (1A) to the making of an order in terms of Clause 1(1) of the Bill. The new subsection (1A) requires the Secretary of State to consult the Nature Conservancy Council, which we shall discuss later on—and this provision was introduced because of criticisms of the Bill which were made at Second Reading—and any other person with whom he considers consultation appropriate before deciding whether or not to make an order under Clause 1(1). The Nature Conservancy Council has a duty, of course, to advise the Secretary of State on the development and implementation of policies for or affecting nature conservation in Great Britain "— Section 1(1)(a)(ii) of the Nature Conservancy Council Act 1973 refers. I beg to move the first Amendment.


I might at this stage indicate the Government's view that we should like this Bill to he given a fair wind. We are, generally speaking, in support of it; and certainly, of course, we support Amendment No. 1.


On this first Amendment, I simply want to remind your Lordships that at Second Reading I said that I supported the principle of the Bill and would commend it to your Lordships' House, but that I believed that quite a lot of work on the drafting of the Bill might be necessary before it was enacted. We now find that the Amendments down in the name of the noble Viscount, Lord Thurso, expand the Bill from about half a page to about four pages, with no less that (I think it is) four new clauses. Clearly, the noble Viscount has sought the services of skilled draftsmen, and I congratulate him on doing that. We assume that the changes that this and other Amendments are making will better bring about the purposes for which the Bill has been introduced and given a Second Reading. There are some particular Amendments which we may wish to discuss separately, but otherwise I would support the Amendments which have the effect of improving the drafting of the Bill and carrying out its purpose.

I would point out that there are some Amendments which make considerable changes and additions, such as powers of entry and inspection, creating offences and so on. If these are necessary, then no doubt they will have to go into the Bill if it is to have any effect; but at this stage I can see that by this Amendment and others the noble Viscount is simply trying to improve the Bill without changing its purpose, and I see no reason to dissent from the Amendment.

On Question, Amendment agreed to.

Viscount THURSO moved Amendment No. 2: Page 1, line 5, leave out ("for Scotland").

The noble Viscount said: The purpose of this Amendment is obvious. It is a common error that one falls into—I have fallen into it before in this House—to forget that "Secretary of State" means any Secretary of State and it is not therefore necessary to specify which one. I beg to move.

On Question, Amendment agreed to.

7.11 p.m.

Viscount THURSO moved Amendment No. 3: Page 1, line 6, leave out from ("forbid") to end of line 7 and insert ("either absolutely or except under a licence granted under this section, the import into, or the keeping or the release to the wild, in Scotland of live fish, or the live eggs of fish, of a species which is not native to Scotland and which in the opinion of the Secretary of State might").

The noble Viscount said: I understand that the noble Lord, Lord Campbell of Croy, would like his two Amendments (Nos. 4 and 5) to be discussed along with my Amendment No. 3. The reason for this is that if we were to pass my Amendment it would leapfrog his Amendments Nos. 4 and 5. Therefore we might appropriately, if your Lordships agree, discuss the whole question that evolves around these three Amendments in one discussion at this stage.


If I may intervene, I was in error in not telling the Committee that if Amendment No. 3 is agreed to I should be unable to call Amendment No. 4.


Perhaps I might at this stage assent to what is suggested because not only do Amendments Nos. 4 and 5 deal with the same substance but also those Amendments would be eliminated from discussion if Amendment No. 3, as I would expect, is accepted.

Viscount THURSO

The purpose and effect of Amendment No. 3 is to provide for both an absolute prohibition and also a prohibition except under licence granted by the Secretary of State. The licensing powers will permit controlled entry, for example, for experimental purposes, of live fish or eggs of a species which might otherwise be excluded. In its wording, it also substitutes the word "keeping" for the word "rearing". This, in my view, is an important substitution because rearing is too narrow a word for the purposes of the Bill. I would readily agree that the word "keeping" with its wider implication, is much more in line with the intention of the Bill which is, if necessary, to he able to remove dangerous fish from within Scottish waters whether they are on a fish farm or, in a wider context, on a loch or a lake or something like it. This removes the possibility of persons not being subject to the controls which the Bill provides because they are keeping material or fish in circumstances not accepted as involving rearing.

Amendment No. 3 also restricts control under the Bill to species not native to Scotland; otherwise the control could relate to imports of native species such as sea trout, brown trout or Atlantic salmon, and this is not the intention of the Bill. It is to deal with what one might think of as more exotic species than those. It also substitutes the word "might" for the word "could" in line 7 in relation to the opinion to be arrived at by the Secretary of State before he may make an order under Clause 1(1). This part is a drafting Amendment, the word "might" being considered more appropriate as indicating more clearly the test to be applied by the Secretary of State before making an order. Those are the purposes which my Amendment No. 3 has in mind. Perhaps, at this stage, I should leave it to the noble Lord, Lord Campbell of Croy, to talk to his Amendments.


We are grateful to the noble Viscount for explaining how the new wording suggested would improve the Bill. Certainly, the use of the word "keeping" (also to he inserted in the Title) does, I think, cover more clearly what the noble Viscount intends in his Bill. Amendments Nos. 4 and 5 which I have tabled are probing Amendments. I am concerned about the interpretation of the Bill and the subsequent enforcement of the Act and whether it has been thought out.

In Amendment No. 4 I have suggested leaving out "to the wild" because the phrase in the Bill is releasing to the wild May I take the example of the fish farm? I presume that the ponds and waters used by a fish farm would not come within the definition of "the wild". On the other hand, I know only too well that small fish can escape from fish farms. Most fish farms are beside a river or have running water passing through them and are based on a stream or a river. I must make it clear that for 10 years there has been a fish farm on the other side of a river adjoining my property in Scotland. Many a new rainbow trout has come into that river because of the water level suddenly rising or because of some other unexpected event. Some of the fish escape unintentionally into the river. Presumably, that is being "released to the wild" although unintentionally. I give that example. I am sure noble Lords will be able to think of others.

In the case of the rainbow trout I should add that those who fish for salmon in that river are disturbed about it because some have said that the adult rainbow trout eats salmon parr and, therefore, the unintentional release of those rainbow trout from the fish farm into the river—which can easily happen, because the whole fish farm is based on an old mill lade with water running through it—could be said to be damaging the salmon fishing in that river.

Noble Lords will be able to think of other situations which might be difficult to interpret. For example, ponds or ornamental ponds, if fish were put into them, might not be interpreted as "the wild". On the other hand, in certain circumstances they might be so interpreted, depending on where they were situated. Again, if fish escape by a stream passing through the pond they would then be out of control. I would ask the noble Viscount and the Government whether they are happy about that wording. I have not sat down to try to improve upon it but simply have put down probing Amendments to indicate that there could be difficulties about enforcement or interpretation of the wording as it is at present.

My Amendment No. 5 draws attention to the words "compete with". The Secretary of State has to consider whether a new species of fish, or a species of fish to be newly introduced into Scotland, might compete with an indigenous species. We can understand quite easily the other words—"displace, prey on or harm the habitat of"—but all these appear to be alternatives. The Secretary of State could decide that the new species of fish would not "displace, prey on or harm the habitat of"; but it might well "compete with" other fish. This would be difficult to interpret unless the Government are very clear about it and regulations are issued or there is circular guidance of something like that. Almost all fish compete for food; and where there are more fish than there is food available they can be said to be competing with each other.

I think there are some difficulties in the wording of this Bill. Someone who wished to prevent a neighbour from introducing some species of fish from abroad because he was worried and frightened about it, might well argue about whether this new species was going to "compete with" indigenous fish simply in its ordinary existence by eating and surviving. We all know that from the fish that hatch from the ova a very small proportion eventually reach maturity. I ask the noble Viscount and the Government whether they are happy about the wording of the Bill on these two counts.

7.20 p.m.


It may be helpful to the Committee if I indicate at this stage that the Government are perfectly content with Amendment No. 3, and entirely content with Amendment No. 4. The Government are less than content with Amendment No. 5. The noble Lord, Lord Campbell of Croy, has in fact beautifully described the brief which is before me. His analysis is absolutely first class and might well have emerged from the Government machine.

But the Government draw a different conclusion from that of the noble Lord. On the Government side, we should like the phrase to be retained; it gives the Secretary of State the opportunity to examine a case at an earlier stage than if he had to wait until characteristics of displacement preying upon or harmful to habitat emerged. It is for that reason that the Government prefer the phrase to be retained, and fully acknowledge the example which the noble Lord has given—that there is competition for food, for example.


I have had no communication with the Scottish Office at all about this subject. It is simply that we have both been thinking on the same lines in examining this Bill. I am glad to think that our conclusions have been much the same. The noble Lord has explained the words, "compete with" from the point of view of the Secretary of State. I understand that, because it is a blanket phrase which will enable him to put a stop on the fish being imported before he has to consider some of the other matters.

I want to point out that it could also cause considerable argument—I will not say" "litigation"—if there is a difference of opinion among those in Scotland about whether the fish under consideration and about to come into the country is going to benefit or in some way be damaging to the species already existing. The noble Viscount will agree with me that there is no subject which can cause more controversy in Scotland than the question of fishing and fish.

There is some controversy with the particular fish which has given rise to this Bill, the coho salmon, but so far I have not become involved in it. I am aware that some people are worried about that fish. They may have no reason to be worried. I recognise that this can cause great apprehension. In those circumstances individuals, with their legal advisers, might well be worried about the phrase, "compete with" if they thought that fish were being let in.

Obviously, they Would be very pleased if the Secretary of State of the day used the words "compete with" to stop the fish coming in. The noble Lord has indicated that the way the Government see it being used is to stop fish coming in. But if fish are allowed in, I foresee there could be some trouble because people will say: "They are competing. They may not be doing damage to the habitat but they definitely are competing and causing a reduction in the stocks of other fish". This is a difficult point which we want to sort out as soon as we can.


I do not think that the Government can argue a council of perfection in this case. But on a balance of probability and possibility, and so far as can be envisaged at this stage, the wording seems reasonably effective.

Viscount THURSO

I do not think this Bill, however satisfactory we get the drafting, is going to solve the Secretary of State's problems for him when he has to make a decision about whether or not to grant a licence, allow an import or allow the continuance of the keeping of a species of fish. What it is designed to do is to give him the power to intervene and control matters if he thinks that some other species of fish is liable to cause grave danger to an important native species. He will then have powers, whatever the circumstances may be, to deal with a situation which may be thought liable to get out of hand. He will also, as we shall see later on, be given powers to carry out experiments to ascertain how far it may be sensible to allow the import of certain species of fish.

I take Lord Campbell's point in his Amendment No. 4. I take it more on the ground that it is tautological to talk about releasing "to the wild". If we are to give this Bill enough muscle to carry out the task which it has to carry out, and to give the Secretary of State enough powers to carry out the intention of the Bill, then he has to be able to not only control the keeping of the fish within a farm or experimental tank situation, he has also got to have power to control the keeping of the fish in a wider context. He has also got to have power to stop people simply pulling the plug out, emptying the pond and saying: "There you are, the fish have got out anyway and there is nothing more that you can do about it, it is not my fault".

We have to cover the question of release of the fish because if the fish were to be deliberately released, this could cause the very damage which this Bill is being put before your Lordships to try and prevent I take the point that perhaps the words "to the wild" may be tautological, but I would hope to keep the word "release" because I think this is important. We should not allow the deliberate release of fish which might otherwise be banned by the Secretary of State because of their danger to native species.

In relation to Lord Campbell's Amendment No. 5, the phrase, "compete with" is a most important consideration for the Secretary of State. It is probably the most important consideration for him in deciding whether to allow any species into the country. Most of the game fishes of the country are territorial in habit. It is the fact that a fish takes up a territory and commands a territory within the water that allows it to obtain the food supply which lets it grow more favourably than its neighbours. If one were to allow in a fish which is known to have an aggressive territorial habit, then one would be endangering species which have a less aggressive territorial habit.

This matter should be considered by the Secretary of State and he should be given powers to forbid the import of a species on those grounds. Therefore I move my Amendment No. 3 and I hope that the noble Lord, Lord Campbell of Croy, will withdraw Amendments No. 4 and 5. In return, I should be happy to reconsider the words "to the wild" and perhaps move another amendment at a later stage to delete them.


I should like to support very strongly what the noble Viscount, Lord Thurso, has said about the phrase, "compete with". This is a most important phrase to insert. Importation of livestock, using the word "compete" is different according to whether the animals are domesticated or wild. If one imports cattle of a foreign breed, they will certainly be competing and they are being imported in order to compete with the existing breeds. Whether or not they compete successfully, is another matter. It would be wrong of us to refuse the importation because they competed with the existing breeds in the country.

On the other hand, where you are dealing with a feral species of animal, the argument put by the noble Viscount, Lord Thurso, is absolute to my mind, that the animal is competing for the available food and is not competing primarily on quality. He is competing for the available food and, to that extent, it may well lead to the extermination of the existing species which was of a better quality. Therefore I hope the Committee will agree to retain the word "compete" in the Bill.


I indicated at the beginning that my Amendments Nos. 4 and 5 were probing Amendments. Indeed, what my noble friend Lord Balerno has just said very much confirms what I said in moving my Amendments, that it was a question of competing for food that I was concerned about. It is not so much a matter of removing the words as their interpretation. As I said, I think there could be trouble with people claiming that almost any fish was competing with the existing species. It is the interpretation that I think may be difficult. I am grateful to the noble Viscount, Lord Thurso, for considering sympathetically my Amendment No. 4. As your Lordships will see, I have not included the word "release", so that word would remain in the Bill. If the noble Viscount, with the assistance of the draftsmen, can take that into account in any Amendment he might like to bring forward at the Report stage, I shall support it wholeheartedly. However, as I said, my object in putting down these Amendments was simply to draw attention to the use of these words and to explore how they were to be interpreted. I am grateful both to the noble Viscount, Lord Thurso, and to the noble Lord, Lord Kirkhill, for having given their explanations.

On Question, Amendment agreed to.

7.32 p.m.

Viscount THURSO moved Amendment No. 6: Page 1, line 8, leave out from ("any") to end of line 9 and insert ("freshwater fish, shellfish or salmon in Scotland")

(1A) Before determining whether or not to make an order under this section, the Secretary of State shall consult the Nature Conservancy Council and any other person with whom the Secretary of State considers that consultation is appropriate.

(1B) The Secretary of State may grant a licence to any person to import or keep live fish, or the live eggs of fish, of a species specified in an order under this section.

(1C) A licence under this section may be granted—

  1. (a) subject to the payment of such fee as may he prescribed in regulations made by the Secretary of State by statutory instrument after consultation with the Minister for the Civil Service; and
  2. (b) subject to such other conditions as the Secretary of State thinks fit.").

The noble Viscount said: This Amendment is designed to clarify the species which are to be protected. "Freshwater fish, shellfish, or salmon in Scotland" is considered to describe more accurately those fish which the Bill is intended to protect. The use of the adjective "acclimatised" may give rise to doubts as to whether, for example, a rainbow trout were to be protected. The new subsection (1A) requires the Secretary of State to consult the Nature Conservancy Council and any other persons he considers appropriate before deciding whether or not to make an order under Clause 1(1). This is a direct result of the Second Reading debate, where a suggestion was made that the Nature Conservancy Council should be named and that there should be provision for consultation of suitable or interested bodies.

The new subsection (1B) enables the Secretary of State to permit under licence the entry and the keeping under controlled conditions of live fish or eggs of species which are otherwise subject to prohibition under orders made in terms of Clause 1(1). This will enable him to license imports, for example, for experimental and research work, where he is satisfied that the work can be done safely in prescribed conditions.

I hope that this Bill will not be considered in any way as just a means of banning every kind of progress in the examination of fish species. I myself, having done research relating to the Bill, have become extremely interested in several varieties of fish, for which I may at some later stage find myself applying to the Secretary of State for a licence to import. In the first instance, I think it is probably proper that the Secretary of State and his scientific advisers should have the power to do the sort of experiments that might be necessary to establish whether or not certain species were safe to import.

Paragraph (a) of subsection (1C) enables the Secretary of State to charge a fee for giving a licence, as is normal practice; and paragraph (b) enables him to attach such conditions as he considers fit to the licence, which would allow him to ensure that not only does an import meet the strict health requirements before entry but also that it can be confined in satisfactory conditions and that the disposal of any progeny can be effectively controlled. I beg to move.

On Question, Amendment agreed to.

Viscount THURSO had given Notice of his intention to move Amendment No. 7: Page 1, line 15, after ("made") insert ("or licence granted").

The noble Viscount said: I do not propose to move Amendment No. 7 because I am advised that the drafting is not entirely apt; but I would propose to put down another, more suitable, Amendment later which would be aimed at achieving the same purpose—that is, enabling licences granted under Clause 1 to be varied or revoked. It may be that it will be more appropriate to bring that in under the new subsection, stating that the power to grant would include the power to vary or revoke.

7.38 p.m.

Viscount THURSO moved Amendment No. 8:

Page 1, line 15, at end insert— ("(3) In this Act— eggs" includes milt; fish" includes shellfish; freshwater fish "means any fish living in fresh water including eels and the fry of eels, but excluding salmon; salmon" includes all migratory fish of the species Salmosalar and Salmo trutta commonly known as salmon and sea trout respectively; shellfish" has the same meaning as in section 22(1) of the Sea Fish (Conservation) Act 1967.").

The noble Viscount said: This Amendment contains definitions which are necessary for the purposes of the Bill. I would draw attention to the fact that "eggs" include "milt", the sperm of the male fish. Without control of import of milt, it would be possible, using modern keeping techniques, to produce hybrids by importing milt which might prove a danger to native species. Therefore, I think it is wise for this to be included. It is necessary to extend the definition of fish to include shellfish, in order to ensure that they are covered by the terms of the Bill because shellfish are also found and the same provisions which apply to the fish could apply to shellfish for the purpose both of controlling non-native species and of protecting our own species. Freshwater fish and salmon are separately defined, which is normal practice in salmon and freshwater fish legislation, because of the different provisions attaching to each. The practice is preserved here in order to avoid confusion. Between them, the two definitions embrace all fish inhabiting our inland waters. I beg to move.


It seems that for clarity it is necessary for these definitions to be included, but at this point I should like to ask the noble Lord, Lord Kirkhill, about a matter of which I have given him notice, because we have discussed in this Chamber the future of fish farming. I am one of those who believe that there must be advances in fish farming. I know there are great difficulties over controlling diseases, and so on, but I believe it will be an important source of future protein. When we have had debates on this subject previously—and I am thinking of one held a year or two ago—we discovered that in Scots law fish are treated differently from South of the Border. On one side of the Border they are included in the definition "livestock", and on the other side of the Border they are not. I wonder whether the noble Lord could tell us whether this apparent anomaly, which came up sometime ago, still exists and whether we still have to cope with the difficulty that fish are "livestock" in one part of the United Kingdom but not in another part. If the noble Lord has not been able to get to that point in the time available, I shall quite understand; but it is an anomaly which I think should be put right at some stage.


The difficulty is not that this noble Lord has not been able to get at or near to the point. In fact, I have a voluminous and copious note. The difficulty is that, historically speaking, as the noble Lord, Lord Campbell of Croy, probably knows, the definitions of the words "fish" and "livestock" have posed problems, particularly in agricultural legislation. However, my advisers have been discussing this in depth and I will write to the noble Lord once I have assessed a number of competing opinions which have been placed before me within the course of the last two days or so.


I am grateful to the noble Lord. I should simply like to point out that in bringing these definitions in the Amendment into this Scottish Bill, we are dealing with definitions which draftsmen, and those who have to operate Scots law, understand. But there is this considerable difficulty in dealing with United Kingdom legislation, about the difference between the law North and South of the Border. I hope that this will be looked into and remedied in future.


Perhaps I should have explained—I may have been rather peremptory—that my advisers cannot at this time detect a significant difference in terms of Statute relating to definitions North and South of the Border. But that, of course, is only one nuance of what is a more general and complex problem. However, after I have formed an opinion, I will write to the noble Lord.

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

7.42 p.m.

Viscount THURSO moved Amendment No. 9: After Clause 1, insert the following new clause:


.—(1) If an order is made under section 1 of this Act forbidding absolutely the keeping of live fish, or the live eggs of fish, of a species, any person who on the date on which the order came into force and on 10th May 1977 was keeping live fish or the live eggs of fish of that species in Scotland shall, subject to subsection (2) below, be entitled to receive from the Secretary of State compensation in respect of any financial loss which he may suffer by reason of the prohibition contained in the order:

Provided that the compensation payable to a person under this subsection shall not in any case exceed the amount which would be payable to him if he had, at the date when the order came into force, possessed only the same number of such fish or eggs and the like structures and equipment as he possessed on 10th May 1977.

(2) A claim for compensation under subsection (1) above shall be made within 3 months after the date on which the order came into force; and any question in dispute as to whether compensation is payable under this section, or as to the amount of compensation so payable, shall be determined by a single arbiter to be appointed, in default of agreement, by the Lord President of the Court of Session.

The noble Viscount said: This clause provides for compensating anyone who is legitimately keeping fish or fish eggs in Scotland on 10th May 1977, when Her Majesty's Government made known their support for the principle of control. If the destruction of those fish or fish eggs were subsequently necessitated as a result of an order being made under Clause 1 of the Bill and there was financial loss to those concerned, it would allow for compensation. I may say that I hardly envisage great financial loss, because if what is said by those people who might be affected is true, their product should be so valuable by the time it was ordered to be destroyed that they would probably make a profit. Nevertheless, it is only right that this Bill should not cause unfair loss to anybody. From now on, anybody who may wish to import a species of fish which comes under the jurisdiction of this Bill will be forewarned, and therefore will have carried out their import in the full knowledge that at some stage there may be an order made to dispose of or destroy the fish. But somebody who has innocently and legally brought fish into this country should not suffer undue loss. I beg to move.


While the noble Viscount, Lord Thurso, was explaining this clause, I was wondering whether, procedurally, there may be some difficulty about a Financial Resolution. This is something which could affect another place, because it is often difficult with Private Member's Bills to get the Government to bring forward a Financial Resolution, and this clause involves the Secretary of State being in a position to produce money for compensation. So that while I understand the purpose of the clause, and commend the fairness which the noble Viscount is holding out in it, I wonder whether the Government can tell us if they can produce a financial resolution in another place, if it is needed.

Viscount THURSO

I do not know whether the noble Lord—


If the noble Viscount will keep on speaking for a moment or two, I shall be delighted to reply to that point.

Viscount THURSO

I shall be delighted to keep speaking for a while. I do not think that this clause will cost very much if these fish are reared to the point at which they are of an appropriate size. At that stage they can be sold as food and, according to their sponsors, they will have a fairly good value. So I do not think that I, for one, would feel that there was likely to be a case for a very great sum in compensation.


I do not want to extend—


There is a procedural point here, which affects the whole of the United Kingdom. If the procedural point has any basis, then I should have thought this was an ideal case for following your Lordships' normal procedures which allow Bills to be looked at again on Report, or even to be amended on Third Reading. If this procedural point has any basis, it ought not to be answered with a quick nod and a wink between the Box and the noble Lord who is doing his very best to deal with it. Now that the point has been raised, we should use the normal procedures and look at it on Report rather than now.


That is what I was rising to say. I did not intend to extend the proceedings, and it was not meant to be a fast ball. But I saw that the clause requires the Government to produce money, which always raises difficulty on Private Member's Bills. I certainly did not want to delay the proceedings in order for the noble Lord to produce an answer, and I simply wanted to register the point, because it is very much one which could affect the future of the Bill and whether it will go through in this Session.


I take the point which the noble Lord, Lord Harmar-Nicholls, has just made, and I would not attempt a "quickie" if that would in any sense mislead the Committee. It was not a point to which I had addressed myself before coming to your Lordships' House today, but I am advised that there is a specific Treasury agreement on this Bill, so that procedurally it would proceed in the other place.


I am grateful, because I think that the noble Lord has, in principle, given us an answer now. If it has the financial blessing of the Government, then no doubt this important point on which Bills have failed in the past will be looked after. But I would not want to take up the time of your Lordships' Committee by pursuing this point now, when we have occasions to consider it in more detail later.


Before we entirely leave this general matter, I wonder whether the noble Viscount is certain that his provisions for compensation are not rather more open-ended and potentially more expensive than he suggested. I do not want to elaborate now, but "loss" could be loss in the years to come, and I wonder whether he will look at this point in the meantime.

Viscount THURSO

I am certainly glad to look at this point between now and the next stage, and if I see any difficulties or dangers in it I will certainly raise them on Report.


I would just say in passing, purely as a preliminary comment, that I am of the opinion that the Government would wish to resist that suggestion. We can discuss this later, but I can see difficulties in pursuing the suggestion of the noble Lord, Lord Gray.

On Question, Amendment agreed to.

7.49 p.m.

Viscount THURSO moved Amendment No. 10: After Clause 1, insert the following new clause:

"Powers of entry and inspection

.—(1) While an order under section 1 of this Act is in force, any officer commissioned by the Commissioners of Customs and Excise, a police constable or a person duly authorised by the Secretary of State may at all reasonable times, on production of his authority if so required, enter and inspect any land occupied by a person holding a licence granted under that section and any other land upon which he has reason to believe that live fish, or the live eggs of fish, of the species specified in the order are being kept or may be found.

(2) In this section "land" includes land covered with water."

The noble Viscount said: This Amendment is to give powers of entry in order to enforce the controls provided by the Bill. It follows the normal practice in such cases; for example, Section 6(2)(b) of the Diseases of Fish Act 1937, which provides for powers of entry on to land which would be required for enforcement. I beg to move.


This clause, and the new clause which we shall discuss after it, are related, inasmuch as they introduce into the Bill offences and powers of entry and inspection to see whether the offences are being committed. As Parliamentarians, all of us wish to avoid introducing new offences if we possibly can. Moreover, we wish also to reduce to the minimum the occasions upon which any official needs to exercise powers of entry and inspection. At this stage, therefore, I would ask the noble Viscount or the Government only to tell us that they have looked at the point and are satisfied that the Bill could not be operated and enforced without having in it these two new clauses. I understand that if the Bill is passed and contains no powers of enforcement we are all wasting our time. On the other hand, one is reluctant to introduce clauses of this kind unless they really are necessary.

Viscount THURSO

I think the clause is necessary. One of the criticisms of the Bill at an earlier stage was that it did not have muscle and teeth and that it was unable to carry out its own purposes. Without offences, clearly it would be difficult, if not impossible, to enforce some of the provisions, especially if some- body were tempted to take a chance, try to circumvent the law and bring in a species of fish sub rosa. The penalties and powers have to be there. Having said that, I do not envisage the powers being used to that extent. The real power in the Bill will be the power of the Secretary of State to make orders prohibiting imports, preventing things happening and stopping the fish, eggs or whatever getting into the country. This is the important point, and I am sure that it is the one at which control will take place.

We shall have to give these powers to the Customs officials; they may very well have to be used at the point of Customs inspection. However, the powers require to be there in case something is discovered about a fish that has been imported and it is necessary to deal with it because it is a danger. If new evidence is found which makes it necessary to deal with it, the Secretary of State should have that power. Also, if somebody gets around the Customs in some way and it is found that these fish are being kept in Scotland, then it would be necessary to have the powers in order to deal with the situation. However, I do not envisage the powers being used frequently, or being used unless an order is made or a licence enforced.


Control of disease is one of the objects of the Bill. I question whether any Act has been passed by Parliament for the control of disease in livestock that has not contained sanctions, some of them very heavy, against those who infringe the law. Therefore I believe that we must have these sanctions in order to fulfil the purpose of the Bill.

On Question, Amendment agreed to.

Viscount THURSO moved Amendment No. 11: After Clause 1, insert the following new clause:

Offences etc.

.—(1) Subject to subsection (2) below, any person who—

(a) imports or attempts to import into, or keeps or releases to the wild, in Scotland any live fish, or the live eggs of fish, of a species specified in an order under section 1 of this Act—

  1. (i) in a case where the order forbids absolutely such import, keeping or release,
  2. (ii) without having a valid licence granted under the said section 1 authorising such import or keeping, in a case

where the order forbids the import or keeping except under such a licence;

  1. (b) being the holder of a licence granted to him under the said section 1, acts in contravention of or fails to comply with any term of the licence;
  2. (c) obstructs any person from entering or inspecting any land in pursuance of section (Powers of entry and inspection) of this Act,
shall be guilty of an offence under this Act and shall be liable on summary conviction to a fine not exceeding £500.

(2) A person shall not be guilty of an offence under this Act in respect of any act if he does the act on behalf of the Secretary of State for some scientific or research purpose authorised by the Secretary of State.

(3) The sheriff by whom any person is convicted of an offence under paragraph (a) or (b) of subsection (1) above shall order any fish or eggs in respect of which the offence was committed to be forfeited and destroyed.

(4) Any person who is empowered to enter land under section (Powers of entry and inspection) of this Act may seize any fish or eggs with respect to which he has reason to believe that an offence under paragraph (a) or (b) of subsection (1) above has been committed, and may detain them pending the determination of any proceedings to be instituted under the said paragraph (a) or (b), or until the Secretary of State is satisfied that no such proceedings are likely to be instituted.

The noble Viscount said: This Amendment relates to the question of making it an offence to contravene an order made or the terms of a licence granted, or to obstruct anyone entering or inspecting in pursuance of powers granted to him under the new clause. Without such offences, I submit that the Bill would not have the powers to carry out the purposes for which we are considering it. Subsection (1) also provides for the maximum penalty on summary conviction to be a fine of £500. This is in line with the maximum penalties at present proposed under the Criminal Law Bill for similar conservation offences under the Conservation of Seals Act 1970 and the Salmon and Freshwater Fisheries Act 1975.

Notwithstanding the offences made by the new subsection (1), the new subsection (2) permits action connected with the carrying out of scientific or research work done on behalf of the Secretary of State and authorised by him. The absence of this exemption would in effect rule out the making of absolute prohibition orders, as their making would cut out any possibility of research work being carried out aimed at obtaining full or definite informa tion on the effect of certain species on our native stocks. I feel that we must leave the Secretary of State with powers to do research, and this particular part of the Amendment is designed to deal with that point. Licensed entry and keeping can provide for experimental work being carried out, subject to appropriate control, by private persons or firms; but it is necessary for the Government in the national rather than the private interest to be able to do these things, too, even when it has been decided that commercial interests must be overridden by a total prohibition.

The new subsection (3) directs the sheriff, on convicting anyone of an offence under the new subsection (1), to order the forfeiture and destruction of any fish or eggs connected with the offence. The provision is proposed, having in mind not additional penalties on the offender but the fact that this Bill is a conservation measure. The prime object of the provision is to stop the escape to the wild in Scotland of species of fish which might have a detrimental effect on our established species. It is therefore imperative that the fish or the eggs involved are not allowed to escape. One must have a definite instruction at this point so that the sheriff knows what to do in the interests of conservation.

The new subsection (4) empowers the seizure and detention of the fish or eggs whenever an offence is suspected. Obviously this is necessary to provide for the initial immediate closing of the door, so that their escape does not take place while the offence is being proved. The door itself would, of course, be finally locked if the offence were proved. This is in line with similar powers in Section 1(4) of the Diseases of Fish Act 1937.


The Government support this Amendment and commend it to your Lordships' Committee.

The Earl of KINNOULL

I wonder whether the noble Viscount could describe to me very briefly the system of licensing. I imagine that the licence will or could have a commercial value. I imagine also that it will be a personal licence and that there will be a period of time during which the licence will operate. May I ask the noble Viscount whether the Secretary of State will have the power to withdraw that licence at any time? Will there be any right of appeal by the licence holder if the licence is withdrawn, and will there be any compensation provision if he suffers loss because of the withdrawal of the licence, albeit that withdrawal is legal?

Viscount THURSO

I do not envisage compensation being paid for the loss of the licence. Before a licence was granted, the full conditions upon which it was given and the risks of accepting them would have to be made clear by the Secretary of State to the interested party. If there were a risk that at a later stage, after the fish had been brought in, the Secretary of State might be forced to declare a ban upon them and order their subsequent destruction, this would require to be made clear to the party obtaining the licence before it was given to him.

I am sure that the licence conditions would vary from time to time in the light of experience, in the light of scientific knowledge at the time and in the light of the circumstances in which the fish were being kept. The circumstances might vary as between one applicant and another. One applicant might have better conditions for holding the fish than another. Also, one applicant might be in a more dangerous situation, in that he is more likely to have an accident whereby fish could escape. Therefore, his licence might require instruction before he could obtain it, and so on.

As I see it, it is quite clear in the Bill that the Secretary of State can design the licences for the circumstances. The idea of the licences is that although it may be desirable in general terms to ban a species of fish, it may also be desirable in particular terms to allow the import of certain species in certain controlled conditions. I do not want this Bill to be unduly restrictive, and certainly I do not want it to restrict progress but clearly not to allow progress in a careless manner. Therefore, I think the Secretary of State has wide discretion as to how he can design this and clearly he would obtain as much advice on it as he possibly could.

On Question, Amendment agreed to.

8.1 p.m.

Viscount THURSO moved Amendment No. 12: After Clause 1, insert the following new clause:


. Any expenses incurred by the Secretary of State under this Act shall be defrayed out of money provided by Parliament.

The noble Viscount said: This is in fact the new clause which has in mind the possible payment of compensation as already provided for, but the implementation of the Bill is not expected to require additional manpower and therefore it is not expected that any other expense is liable to fall upon the Government as a result of the passing of this Bill. I beg to move.

On Question, Amendment agreed to.

In the Title:

Viscount THURSO moved Amendment No. 13: line 1, after ("import") insert (", keeping").

The noble Viscount said: This is a drafting Amendment to make the Title reflect the Amendments which we have already been discussing and so avoid possible doubt as to the intention of the Bill. It will be noticed that this Amendment suggests the insertion of the word "keeping" in order that the word "keeping" may be in the Title as well as where we have already inserted it by way of amendment. If I may now speak to Amendment No. 14, that is also a drafting Amendment to include the words, live fish or shellfish or the live eggs or milt of fish or shellfish of certain species", which is in line with the definitions which we have already discussed. I beg to move Amendment No. 13.

On Question, Amendment agreed to.

Viscount THURSO moved Amendment No. 14: Line 2, leave out ("certain species of fish or fish eggs") and insert ("live fish or shellfish or the live eggs or milt of fish, or shellfish of certain species").

The noble Viscount said: I beg to move Amendment No. 14, to which I have already spoken.

On Question, Amendment agreed to.

Title, as amended, agreed to.

House resumed: Bill reported with the Amendments.