Salmon Bill [H.L.]

HL Deb 13 February 1986 vol 471 cc295-351

3.39 p.m.

Report received.

Clause 1 [Salmon Fishery Districts]:

Lord Burton moved Amendment No. 1: Page 1, line 11, leave out ("low water mark") and insert ("the base line referred to in section 1(1) of the Fishery Limits Act 1976").

The noble Lord said: My Lords, this is quite straightforward. The problem is that the low water mark is largely undefinable. The low water mark is not a fixed mark. As a result of this problem of low tides a vast number of criminals have, I am informed by the lawyers in Edinburgh, escaped conviction because this is an undefinable mark. It would be better if the definition was as in the amendment: the base line referred to in section 1(1) of the Fishery Limits Act 1976"— which is a quite clearly defined mark. If that was not accepted—I sincerely hope that it will be—it should be the "low mean" water mark. I think that is the right wording. I think it is quite clear that, as the Bill is currently worded, the low water mark is not a definable mark and we want something better than that. I beg to move.

Lord Gray of Contin

My Lords, the effect of this amendment would push the seaward limits of some salmon fishery districts far out to sea because the base line referred to in the Fisheries Limits Act 1976 goes around the outside of the Outer Hebrides. It is not appropriate that district boards should have responsibilities and duties in, for example, the whole of the Minch. I do, however, take the point that "low-water mark" is not very precise. The term "mean low water springs" might perhaps be better, given that it is delineated on the Ordnance Survey maps.

I think I can best deal with this matter if I say to my noble friend Lord Burton that I will look into this before Third Reading with a view to making a change. I hope that on this explanation my noble friend might be prepared to withdraw his amendment.

Lord Burton

My Lords, with that undertaking, for which I thank my noble friend on the Front Bench, of course I should be very happy to withdraw it. I think this could well resolve the situation.

Amendment, by leave, withdrawn.

Viscount Thurso moved Amendment No. 2: Page 3, line 21, at end insert ("and in relation to a district designated in accordance with section 1 of this Act, may by order vary the provisions of Schedule 2 to this Act.").

The noble Viscount said: My Lords, this is essentially the same amendment which I moved at Committee and which received support from all sides of your Lordships' House. The noble Lord, Lord Gray of Contin, kindly undertook to take it away and look at it to see whether he could meet the wishes of noble Lords in this connection. Unfortunately, I am advised by him that he has not seen a way of meeting the wishes expressed at the Committee stage.

I also looked at the amendment to see whether there was some other way in which we could deal with this problem. The problem is that not every river is the same, or not every district will be the same, and it may be desirable that we should have power to vary the shape and composition of district boards in order to meet particular conditions of size, complexity, or whatever. In particular, I cited examples which showed that it might be necessary to protect the interests of smaller rivers which were grouped under the shadow of larger rivers with very strong voting powers and where the interests of the smaller rivers might never be adequately represented without changing the constitution.

I looked at the possibility of introducing an amendment in Schedule 1 where the proposals for a designation order are being brought forward to the Secretary of State, asking for a new district to be designated, and considered whether it might be possible to put in some mention of proposals to be brought forward by the rivers concerned at that point. However, the more I looked at that route, the less I liked it. I felt that it was going to produce far too many requests to be different and was really going to encourage people to argue that they were different, instead of trying to get district boards all off on the same footing, which I recognise is the right idea.

The more I looked at it, the more I came back to the original amendment, which was simply to empower the Secretary of State to vary the provisions of a designation order if he was so advised in a particular instance. If the powers are there, then it is surely open to people to come forward with proposals or to approach the Secretary of State and say, "We have a difficulty. In our particular area the method of representing rivers and so forth is not working fairly and we would like to have it altered". If the Secretary of State is empowered to consider this and, if so persuaded, to place an order before Parliament, then I think that the needs of different districts will be satisfied. Thus, the more I look at it, the more I come back to the original amendment which I proposed in Committee and which I have now put down again here for your Lordships' consideration. The amendment reads: Page 3, line 21, at end insert ("and in relation to a district designated in accordance with section 1 of this Act, may by order vary the provisions of Schedule 2 to this Act.")

My Lords, I beg to move.

Lord Burton

My Lords, perhaps I may say how much I welcomed this amendment. I only hope that it is effective and that my noble friend will be able to accept it. I have very strongly felt all along that there must be room to make these boards different sizes. The Tweed has a great many more people in its set-up at the moment than any of the fishery boards. It is quite ridiculous that a river such as the Tay or even the Spey should have a similar number of people on its board as the Thurso has. Therefore, I very much hope that my noble friend will be able to accept this flexibility.

3.45 p.m.

Lord Gray of Contin

My Lords, from the note which was given to me earlier, I understand that we are also considering Amendment No. 28 along with this amendment. In case there has been any complication about that note, as I think we found during an earlier stage in the Bill, I wanted just to give my noble friend Lord Lansdowne the opportunity of speaking, if he wished to speak to his amendment along with this one, since the amendments are grouped together.

Amendment No. 28: Clause 13, page 13, line 16, at end insert ("and any such order may vary those provisions in different ways for different districts").

The Marquess of Lansdowne

My Lords, I really put down this amendment in the hope of helping my noble friend Lord Gray. I know he wants to help us over this difficulty. My amendment really seeks exactly the same end. Therefore, thank you, but there is really no need for me to speak to it.

Lord Gray of Contin

My Lords, I am grateful to my noble friend. Schedule 2 provides standard rules for the election and co-option of members of district salmon fishery boards. The noble Viscount, Lord Thurso, has discussed his proposals with my officials, following Committee, and I am sure that he had a useful discussion with them. I venture to suggest that the rules in the schedule are complicated enough without, as the noble Lord has suggested, making them variable for different districts.

I am satisfied that the arrangements in Schedule 2 will work and I hope that your Lordships agree. Apart from anything else, it would be wholly inappropriate to subject what would be an essentially local order to full parliamentary procedure. I am fortified in all of this by the fact that if boards, constituted in the way the Bill provides for, wish to involve a wider group of people, then there is absolutely nothing in the Bill to prevent their having advisory or consultative committees or the like. I believe this already happens in some districts at present. I really think—and I ask the noble Viscount, Lord Thurso, to consider very carefully what this entails and to bear in mind what I have said—that there is absolutely nothing in the Bill to prevent their having advisory or consultative committees if they so desire.

Much the same considerations apply to Schedule 3, which the amendment of my noble friend Lord Lansdowne also covers. That schedule allows for the orderly transition of existing boards into new boards. I cannot see the need for a power to vary the procedures on a district by district basis. I hope that the noble Viscount, Lord Thurso, and my noble friend will agree to withdraw their amendments. I fear that on this occasion, if they were not prepared to do so, I should have to ask the House to reject them.

Lord Ross of Marnock

My Lords, if the schedule is as perfect as the Minister would have us believe and it does not require any variation, why has he taken the power to vary the schedule—because that is what is given in Clause 13(10), which says: The Secretary of State may by order vary the provisions of Schedule 2". It is already in the Bill. What has he in mind, if he thinks that it is so perfect, in taking this power? What has he in mind that could be varied?

Lord Gray of Contin

My Lords, I think that what I tried to explain earlier was that there was nothing in the Bill to prevent the noble Viscount, Lord Thurso, from achieving what he seeks to achieve by way of consultative committees or the like if various boards wished to have them. The power to which the noble Lord, Lord Ross of Marnock, refers is just a protective power which is there in case, for one reason or another, the Secretary of State wished to implement it. I should not have thought that this case would be one in which it would be justified because, as I explained, the boards can do this if they wish. I think it would be a mistake to write this into the Bill. It is much better to leave it as it is, where the boards can do so if they seek to do SO.

Viscount Thurso

My Lords, I am very puzzled by the noble Lord, Lord Gray's, reaction to this. The noble Lord, Lord Ross of Marnock, has pointed out that the Secretary of State is to have powers to vary the whole thing. But it is then going to be a matter of everybody changing courses when this variation takes place. The Minister has already admitted that the present set-up may have areas where the shoe pinches. Now let us suppose that these areas where the shoe pinches are on just one toe, as it were, on just one district. Why should that district go on in perpetuity having a set-up and a constitution on a statutory foundation which suits every other board in Scotland but not this one?

It seems to me entirely wrong that if there is going to be power to vary the thing at all there should not be power to vary it flexibly in individual cases. I would point out to the noble Lord, Lord Gray, that there is a very large difference indeed between a consultative committee and enfranchisement. I do not think that we should like it very much if we lived in a country like Russia, where we could have a consultative committee but we could not vote on who was to represent us. Likewise, I do not think that the smaller rivers in a district are going to like it if they think that they are being forever totally disfranchised by the weight of the valuations of the larger rivers within the district.

I do not want to prolong this point. We have a very busy agenda here. I still think that there is more support in the House for my amendment among people who know about and are interested in salmon legislation than there is for the wish of the noble Lord, Lord Gray, to throw it out. But I do not want to waste your Lordships' time in dividing the House if there is still room to discuss this, and if there is still room perhaps to bring in an amendment along these lines in another place. Therefore, while, with the greatest reluctance, I will not divide the House on this matter, I beg the noble Lord, Lord Gray of Contin, to listen to the argument and to realise that there may be individual cases where it would be helpful if the power existed to vary district by district. There is power to vary all of the districts, as I see it, but not district by district.

Lord Ross of Marnock

My Lords, there is no limitation on the power of the Secretary of State to vary the provisions of Schedule 2. It is without limitation in the statute.

Viscount Thurso

My Lords, perhaps the noble Lord, Lord Gray, could advise us on that.

Lord Gray of Contin

My Lords, by leave of the House, perhaps I could just point out that this is a general power for the whole schedule and is a standard provision. What the noble Viscount, Lord Thurso, seeks to do is to vary individual elements virtually on an ad hoc basis. That is what I am not prepared to do. I have made it clear that there is nothing to prevent individual boards, having consulted the committees, if they seek to do so, but I made it clear at the outset that I cannot accept this amendment.

I note that the noble Viscount intends to withdraw it and there is no reason why it cannot be discussed in another place; but I think the House would agree that I have listened very carefully throughout our earlier stages. I have accepted a great many amendments and taken many things back which will result in amendments today. But, on this particular issue, I have made the position of the Government quite clear. I am sorry but I cannot accept the noble Viscount's amendment.

Viscount Thurso

My Lords, I realise that the noble Lord, Lord Gray of Contin, is not going to accept this amendment and that the only way that I could put it across would be to divide the House. I do not intend to waste your Lordships' time by doing so, but I intend to go on pressing this principle by all the means in my power. I hope that perhaps those in another place may be able to persuade the Department of Agriculture and Fisheries to see sense over this matter. With the leave of the House, I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

Clause 3 [Regulations]:

Lord Gray of Contin moved Amendment No. 3: Page 3, line 31, leave out ("Act") and insert ("section").

The noble Lord said: My Lords, perhaps it would be for the convenience of the House if, along with this amendment, we take Amendments Nos. 15, 18, 19, 20, 27, 34 and 74.

Amendment No. 15: Clause 6, page 6, line 18, leave out ("Act") and insert ("section").

Amendment No. 18: Clause 9, page 8, line 28, leave out ("Act") and insert ("section"). Amendment No. 19: Clause 11, page 11, line 6, leave out ("Act") and insert ("section"). Amendment No. 20: Page 11, line 23, leave out ("Act") and insert ("section"). Amendment No. 27: Clause 13, page 13, line 11, leave out ("Act") and insert ("section"). Amendment No. 34: Clause 14, page 14, line 14, leave out ("Act") and insert ("section"). Amendment No. 74: Clause 26, page 23, line 37, leave out ("Act") and insert ("section"). These amendments all relate to references in the Bill to "the commencement of the Act". During the Committee stage, Clause 32 (Citation, commencement and extent) was amended to provide that the new Clause 20 (Permitted methods of fishing for salmon) could come into force on a different date from the rest of the Bill. There is therefore no longer a single commencement date for the Bill as a whole.

The effect of the amendment is to change references to "the commencement of the Act" to references to "the commencement of the [relevant] section". I beg to move.

On Question, amendment agreed to.

Lord Gray of Contin moved Amendment No. 4: Page 4, line 2, at end insert— ("; (f) the construction, alteration and use for the control of the passage of salmon of—

1. (i) screens in off-takes from inland waters; and
2. (ii) structures associated with such screens.").

The noble Lord said: My Lords, perhaps for the convenience of the House we could discuss Amendments Nos. 8 and 9 along with this amendment.

Amendment No. 8: Page 4, line 15, leave out ("subsection 2(c)") and insert ("paragraphs (c) or (f)"). Amendment No. 9: Page 4, line 19, leave out ("made under that power") and insert ("so made").

This amendment honours the undertaking I gave to the noble Lord, Lord Burton, at Committee to consider how the access of smolts to off-takes might be restricted under the Bill. I am attracted to his proposal which follows naturally from the 1862–68 Act provisions regarding the safe passage of salmon at mill-dams. This amendment goes a little further than the amendment which the noble Lord withdrew. It allows my right honourable and learned friend to regulate by statutory instrument the construction, alteration and use of screens in off-takes from inland waters. Regulations would ensure that salmon, including salmon smolts, may not be drawn into off-takes at a river bank. The power is wide enough to allow control of the placing of screens in order to ensure a safe passage of salmon and may be used to ensure that alternative escapes for the salmon from an off-take may be required when a screen is not fitted at the entrance to the off-take itself.

Amendment No. 8 allows exemption to be made in the regulations for specified categories of works. For example, it would be possible to exempt screens in off-takes too small to permit the passage of salmon or off-takes which were otherwise the responsibility of a statutory undertaker who may already be obliged to make appropriate safeguards. The regulations will not apply in the case of streams not frequented by salmon.

Amendment No. 9 is a consequential drafting amendment. These amendments achieve what was asked for and, indeed, go a little further in safeguarding the passage of salmon. I beg to move.

4 p.m.

Lord Burton

My Lords, I am most grateful once again to my noble friend for having put in this amendment. I am a little apprehensive about one point he was making, in that it does not appear to apply to statutory undertakers, and where a lot of highland rivers have the Hydro Board (which may be covered under something else I had not appreciated, as I have not had a chance of checking this) or even the Caledonian Canal drawing off water, there may well be other statutory undertakers, and it would be unfortunate if they did not have to screen off any abstraction points, I hope that this was very carefully looked at.

Lord Gray of Contin

My Lords, by leave of the House, perhaps I could just answer the noble Lord, Lord Burton. This can apply, but there is a discretion to exempt.

Perhaps I should also mention that I did not indicate that we were considering Amendment No. 84 as well. Amendment No. 84 is consequential on the principal amendments and provides a definition of "inland waters".

Amendment No. 84: Clause 29, page 26, line 17, at end insert— (" "inland waters" has the same meaning as in the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951;"). On Question, amendment agreed to.

Lord Biddulph moved Amendment No. 5:

Page 4, line 2, at end insert— ("( ) sand and gravel extraction; ( ) the abstraction of water, to ensure sufficient riverflow for the passage of migratory fish".).

The noble Lord said: My Lords, in the course of the Second Reading of this Bill the noble Viscount, Lord Thurso, and several other noble Lords, expressed concern about the extraction of sand and gravel from rivers and also water abstraction. The noble Lord the Minister in his concluding remarks on the debate indicated that we might have a chance to discuss this later.

Again, in response to the manuscript amendment tabled at the Committee stage by the noble Earl, Lord Haig (who cannot be with us here today as he has a previous engagement in Russia), the noble Lord, Lord Gray, said: "We look forward to hearing from him at a later stage". I am sure we are all well aware of the importance of gravel beds for fish spawning and of the desecration of river life which can result if these are dug up. Such interference with the river can also afflict fishing itself. Again, I am, sure that the anglers among us can all quote examples of fishing being ruined by the arrival of discoloured water from abstraction activities upstream, whether from sand and gravel extraction, river bank protection or general river work.

In England and Wales the regional water authorities have control over such activities, but as there is no equivalent body in Scotland I would anticipate that the noble Lord the Minister would argue that control would be exercisable through the regional planning authorities. I would subscribe to the role of the planning authorities if I believed their remit could adequately cover river conditions; but although they consider a wide range of issues they are concerned primarily with land development, and therefore have to rely heavily on others regarding the conditions for protecting the river systems and how these are complied with.

Pollution control measures are exercised by the river purification board, and that body would be anxious to ensure that the stream life was not affected by any extraction. Redress would also be available under common law, But what my amendment seeks to do is to give the Secretary of State power after consultation with all legitimate interests—and here I would most strongly include the district fishery boards—to make regulations controlling sand and gravel extraction.

My amendment is in no way restrictive because it would allow full dialogue to develop so that plans can be drawn up to determine such things as the quantities of sand and gravel available for extraction, the method, timing and period of extraction, etc., to minimise damage to fishing and to fish life.

By taking these powers upon himself, the Secretary of State would ensure that a proper overview of such extraction was required to safeguard fish and fishing. This is a view which I am sure was accepted by the district fishery boards and river purification boards in Scotland.

Turning now to the question of extraction, my views here are quite simple. At present in Scotland if any body or individual is the riparian owner of part of a river he can make an abstraction from that river, subject only to control under common law action from a downstream proprietor, or by the very back-door control whereby the river purification board might impose a volume restriction on any subsequent discharge. But, of course, not all abstractions are returned to rivers as discharges. The sensible management of the river system depends upon the balance of the discharges to the river and the amount of water available for their dilution. If any abstraction takes place, this reduces the amount of dilution water available; and, indeed, the abstraction itself might add to the pollution load by being discharged back to the river as an effluent.

It is a commonly held view that in Scotland there is sufficient water to make abstraction controls unnecessary; but the apparent adequacy of water belies the difficulties that can and do arise as, for example, in the developments in the recent past of some of the fish farms where lengths of particular rivers were almost denuded by uncontrolled abstraction of water.

In England and Wales, the regional water authorities already have the advantage of control of abstraction, and yet there are parts of England, and certainly of Wales, where the adequacy of water is no less than in parts of Scotland. With the passing of the Control of Pollution Act 1974 there is now one pollution Act covering the whole of the United Kingdom, and it would seem to me highly iniquitous that the river life in Scotland should be in a less favourable position than it is in England and Wales merely by the difference in abstraction control afforded by earlier legislation. My amendment seeks to remove this glaring anomaly by giving the Secretary of State power to control abstraction of water by making regulations, and it is based on the philosophy of river management and the importance of consultation thereon with all interested parties. Again, I would like to list the district fisheries board and the River Purification Boards as two of the prime bodies concerned with abstraction control

In conclusion, I would remind the noble Lord, Lord Gray, that in introducing the Second Reading of the Bill, at Clause 3, he advocated the use of regulations to make changes which at present would require primary legislation. I would hope that he still held to that view for this amendment. Additionally, under Clause 3(b), the Secretary of State is able to make different provisions for different areas, which in respect of my amendment would allow him the ideal opportunity of responding to the need for sand and gravel extraction and of water abstraction control as circumstances dictate, without the criticism of the blanket use of these powers. My Lords, I beg to move.

Lord Gray of Contin

My Lords, I am grateful to my noble friend Lord Biddulph for outlining his thinking behind this amendment, and I would say that my noble friend Lord Haig did indicate to me that he would be unable to be with us on this occasion.

I am aware that this is a subject of considerable interest not only in this House but among salmon bodies outside. My first difficulty with the amendments is that a Salmon Bill is not the place for any change in planning and related procedures. The amendments would enable my right honourable friend, as part of his power under Clause 3, to make regulations relating to fisheries. This could well conflict with powers available in planning legislation.

Turning to suggestions that have been made that district boards should become statutory consultees in relation to sand and gravel extraction and water abstraction, I think that the significance of this for boards could well be exaggerated. It is arguable; but it is most unlikely that because of the advertisement requirements and the interest these arouse the proposals for sand and gravel extraction would escape the attention of district boards. There is nothing at all to prevent boards, although not statutory consultees, objecting, and even if they were statutory consultees, there is no guarantee that their views would be heeded by the planning authorities.

On water abstraction, the existing common law and specific statutory arrangements make provision for control of a particular river or a stretch of river, allowing the local circumstances to be taken fully into account. They also provide extensive safeguards for the rights of all persons and bodies with an interest in the river; and new provisions in favour of the salmon fishing industry relating to the control of water abstraction would almost certainly lead to claims for similar consideration by others.

The report of the Scottish River Purification Advisory Committee on the control of water abstraction from surface and underground waters in Scotland, published in 1978, concluded that the volume of evidence was not such as to justify the introduction of a comprehensive system of licensing abstractions. While individual cases of difficulty, including those affecting the salmon fishing industry, have been drawn to our attention since then there is no evidence that general control provisions such as are proposed in the noble Lord's amendment are required.

In short, I am not persuaded that there is a real case for extension of the already complex statutory consultation arrangements. As I have said, these are not issues to be dealt with in the Salmon Bill. However, in view of the interest in this I would, as a separate exercise, be glad to have officials organise a meeting with bodies such as the Association of District Boards to discuss the matters more fully. I hope that perhaps on this note the noble Lord will feel able to withdraw his amendment.

Lord Burton

My Lords, I am very disappointed with that reply. I am not clear how the fishery boards are expected to know about all the planning applications; they are not all advertised. One point which was not mentioned but which is extremely important for fisheries is not so much the pollution aspect but the digging up of salmon reds where they have spawned or are likely to spawn. That can have a very material and long-lasting effect on a salmon river.

The purification boards——and as a member of one of them I know this is correct—are most anxious that these powers should be taken. The planners do not propose adequate protection. They are not fishery experts: nor are they purification experts—we have purification boards for that purpose—and it really seems quite wrong that this kind of abstraction, which could cause purification troubles and pollution because of the digging up of gravel, should not go to the requisite board concerned. It does not go to the purification board and it is quite wrong that these powers should be left entirely with the planners. It may well be that this Bill is not a satisfactory Bill in which to impose this, but in that case I would ask my noble friend whether he would not come forward with a Bill to amend the planning Acts so as to include this. It is something which is definitely needed.

4.15 p.m.

The Earl of Perth

My Lords, I go along very much with the two noble Lords who have spoken to this amendment. I understand that the noble Lord, Lord Gray, says in relation to the first part of the amendment that it interferes with the ordinary planning authorities. On the second part, he says that we do not want general control of the abstraction of water. That is all very well, but what we are seeking to do in this Bill is to ensure that the conservation of salmon is a key thought for all the bodies who have something to do with the rivers. I do not think it is enough to say, "We will see if we cannot have a talk", as the noble Lord, Lord Gray, said. I would have thought it was possible to say somewhere, even in this Bill perhaps, that those who are concerned about this shall have a definite right to have their voices heard both in the abstraction of water and in regard to sand and gravel extraction. If it is known as a specific part of the work of the planning authorities, and so on, then I think we are very much better off. But really, as I understand it, just to say, "I will have a discussion, but things are not really going to change", does not seem to me to be good enough.

Lord Gray of Contin

My Lords, by leave of the House, perhaps I may very briefly deal with the two points which have been raised. The noble Lord, Lord Burton, suggested that if it was not possible to include the amendment in this Bill we should come back to the House with another Bill to do so. Obviously, I cannot give an answer to that; but I should have thought that the suggestion I made could be helpful. I said that we could have a separate exercise and that I would be glad to organise a meeting with officials and with the appropriate bodies such as the Association of District Boards (although it need not be restricted to that association and others could be included) in order to discuss this matter more fully. There is no reason why in due course that might not lead to further legislation; but certainly I would not be in a position to give any guarantee on that matter.

The point made by the noble Earl, Lord Perth, is answered really by what I have said to the noble Lord, Lord Burton. I appreciate the concern which noble Lords have expressed on this matter, but I do not think that it would be right to include in this legislation a provision such as they request. However, I am perfectly happy to make the necessary arrangements for further discussion to take place so that a reasonable conclusion can be reached.

Lord Ross of Marnock

My Lords, before the noble Lord sits down, can he give us any information about the complaints which have been made to the Scottish Office as regards sand extraction? I remember making them in respect of the effect on fishing in, I think, the River Irvine, but I do not know that it would require a change in the legislation to get the business put right.

The other point which concerns me was this. I wonder how many of the noble Lords who have been listening to the debate have the right to extract water themselves, because it is a very tricky point. I can remember one particular Bill that we had, which entertained me for a few Fridays, in which we dealt with the extraction of water. The number of people who have the right to extract water was amazing. Would I be right in thinking that it would be much more complicated to deal with the second part of this amendment than with the first part?

Lord Gray of Contin

My Lords, I am grateful to the noble Lord, Lord Ross of Marnock. With his wealth of experience in Scottish Office matters, he may well have come across difficulties in regard to this issue. I think that he is probably correct; the second half of the amendment would be every bit as difficult to accommodate as the first. However, I think I made it clear that I would not be considering accepting either part of the amendment, and of course the second part could equally well be included in the discussions which I have proposed. With that suggestion, I wonder whether the noble Lord would consider withdrawing his amendment.

Lord Biddulph

My Lords, I am not terribly impressed by the strength of the Minister's argument against including my amendment in this Bill. The problem I have illustrated will always remain and I shall be pleased to hear from him where and when he would anticipate that the problem should properly be taken care of.

I am not particularly pleased with this, but, on the other hand, the noble Lord the Minister has given me assurances that he will have meetings with the appropriate bodies to see what comes of this. So far as I am concerned I shall, with your Lordships' leave, withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Thurso moved Amendment No. 6:

Page 4, line 2, at end insert— ("( ) the use of tackle, lures or bait in rod fishing.").

The noble Viscount said: My Lords, when I moved a similar amendment in Committee I think I used the wrong wording for the amendment and on the invitation of the noble Lord, Lord Gray of Contin, I withdrew the amendment, full of hope because he said at the time that he would like to give further consideration to the matter and that he was sympathetic to what I had in mind.

I have introduced into the amendment now words which I think he could accept in that I am suggesting that power be given to regulate the use, of tackle, lures or bait in rod fishing".

This does away with the objectionable word "adequate" which was, as we saw in Committee, an inadequate word. I am hopeful that the noble Lord, Lord Gray, will continue his sympathy to this power to control lures and bait and so forth. Therefore, I put the amendment before your Lordships.

The Marquess of Lansdowne

My Lords, the noble Lord, Lord Gray, took so many things away to consider that I am not surprised that he perhaps overlooked what I think is a very important amendment. Now that the objectionable word "adequate" has been removed, I hope that the noble Lord, Lord Gray, will feel able to accept this amendment. I think it is a really important one and I speak from personal experience. I hope very much that the amendment of the noble Viscount, Lord Thurso, will be acceptable.

Lord Home of the Hirsel

My Lords, before my noble friend replies, I would be in favour of this amendment in certain conditions. We were talking about it before in relation to very low water when nets and rods might reasonably be expected to alter the methods of fishing. This, I think, applies to the river at all times: the river board ought to be able to intervene and, let us say, order that bait of any kind should not be used. This, I think, could have a pretty serious effect on tenants taking fishing, they might find themselves in great difficulty. I should like to hear my noble friend's reaction.

Lord Gray of Contin

My Lords, I am conscious that the subject of control of baits and lures interests a good many of your Lordships and I agreed to look again at whether it would be possible to provide appropriately in the Bill for the sort of control that seems to be desired. One of the points to be considered particularly carefully is the type of control and the arrangements for introducing and enforcing it. I think this is what my noble friend Lord Home has in mind.

The amendment of the noble Viscount, Lord Thurso, would have the effect of adding control of lures or baits in rod fishing to the list of general regulatory powers of the Secretary of State as prescribed in Clause 3(2) of the Bill. It was made clear, however, in our earlier discussions that such a power could be effective only if capable of being used on a local or district by district basis, whereas Clause 3, with one exception, provides for regulations to be made on a national basis. As an alternative to the procedure in Clause 3, there may be other possibilities.

As I said at Committee, I am sympathetic to the general principle that Lord Thurso has in mind, but it is proving to be by no means a straightforward matter. I require, for example, to consult with salmon bodies, particularly the angling interests, who would be directly affected by such restrictions on their activities. Therefore, despite the plea from the noble Viscount, Lord Thurso, and from my noble friend Lord Lansdowne, and with the assurance that I am still looking at the matter closely, for the reason which I have given regarding consultation it has not been possible for me to come forward in a position either to accept the amendment of the noble Viscount today or to bring one of my own. With the assurance that I am still looking at it and am sympathetic to it, I wonder if the noble Viscount would consider withdrawing his amendment.

Viscount Thurso

My Lords, I am very pleased to know that the noble Lord, Lord Gray, is still considering this matter. I think it is important and I hope he will come up with a solution, taking into account what the noble Lord, Lord Home of the Hirsel, also said. I think this is a power that should be used locally with discretion; it should be a reserve power, as it were, rather than one which would be constantly and capriciously used.

But with all the assurances which the noble Lord, Lord Gray, has given me, I am happy to leave matters as they stand until we see what progress he can make. Therefore, with the leave of the House, I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

Viscount Thurso moved Amendment No. 7:

Page 4, line 2, at end insert— ("( ) the placing of cages to hold fish in any river, loch or estuary.")

The noble Viscount said: My Lords, this again was an amendment which I introduced in Committee and I think people had rather a short time to consider its implications. I know that the noble Lord, Lord Gray, had rather a short time to consider its implications, and it is for that reason that I reintroduce it at this stage.

It seems to me that there is a grey area where there is no control over the placing of the net cages. When I say "control", I mean supervision so that pollution, the spread of disease, interference and all such things do not take place. To a certain extent, this amendment is still a probing amendment and I hope by now the noble Lord, Lord Gray, will have had a chance to look at this matter in greater depth and with great care because I think there is an important point here. So it is in the hope of eliciting some more information about the plans the noble Lord and indeed the whole department have that I move this amendment.

Lord Gray of Contin

My Lords, I am conscious that a number of your Lordships spoke in general support of the reasoning behind the amendment tabled by the noble Viscount, Lord Thurso, at Committee. For this reason, I agreed to take the point away for further study, although I think I made it quite clear at the time that I did not feel I would be able to come back with an amendment to the Bill which would satisfy the noble Viscount and others.

My study of the matter since Committee has confirmed my view that this is indeed a very complex area involving local planning authorities, river purification boards, the Crown Estate Commissioners, and the National Farmers' Union on behalf of fish farmers.

The position, as I understand it, is that cages sited in fresh water lochs to rear rainbow trout and salmon smolts require specific planning consent with the local planning authority consulting the purification boards and others.

4.30 p.m.

Applications for planning permission are advertised. In short, the development of such cage farms is controlled through the planning Acts. More normal is the practice to use seawater cages for ongrowing salmon smolts to market size. These cages need deep salt water reasonably sheltered from storms and not subject to fast tides. The cages need to be moored on the seabed and this is owned by the Crown. Some confusion may have arisen in our earlier discussion about whether parts of the seabed in estuaries had been given off by the Crown through private charters. These references may have been to areas of the inter-tidal foreshore given off by the Crown to private ownership. But these are not really suitable for salmon cages.

As regards the seabed in ownership by the Crown, all known fish farms' cage sites are subject to Crown leases or licences, so far as I am aware. The Crown Estate Commissioners can impose conditions which in themselves may help to meet some of the concerns of other interests. In addition, my officials are considering with the Crown Estate Commissioners what further consultations the Commissioners should conduct before new leases are granted, and it is hoped that these new procedures will help towards a better local understanding of what is involved in the siting of fish farm cages.

Our assessment is that the sea water cages at present in use are less likely than may be thought to cause difficulties for wild salmon fisheries. There is, so far as I am aware, no firm evidence of lateral transfer of fish disease from caged to wild fish and the most probable danger to wild stocks would be from escapes of farm fish. The important point here is that the only certain losers from such escapes are the fish farmers themselves who lose valuable stock. They are conscious that it is very much in their interests to make every effort to prevent escapes.

I hope I have explained that the position in relation to fish farm development is much less loose than might have been inferred from our discussions in Committee. I know that the fish farming interests, through the National Farmers' Union of Scotland, are concerned at the prospect of further controls on their activities and I can certainly appreciate that.

As I have indicated, there is already control depending on where the cages are sited by local planning authorities and the Crown Estate Commissioners, with established consultation procedures. I think that the best way forward is to continue to develop these procedures as separate exercises, and I remain quite unconvinced that this Bill would be an appropriate measure to interfere with planning and other legislation. Therefore, I hope that with that explanation the noble Viscount, Lord Thurso, will feel able to withdraw his amendment. I am afraid that if he insists on pressing it, I shall have to resist it.

Lord Burton

My Lords, once again I find that a most unsatisfactory answer. After all, it was fish farms which caused UDN—I believe that it came from southern Ireland—which absolutely devastated salmon stocks all round the country. There is now practically no control. One of the sponsors of this amendment was the purification boards. My noble friend said that things are referred to them; but they are not in any way referred to them. The purification boards have no say whatsoever in this matter and I think we would all feel a lot happier if they had. Only last week, someone in Skye asked my advice because the Crown was about to let fresh sites in front of an existing fish farm, and there was much concern about it. As we said on the netting rights, the Crown do not seem to mind terribly to whom they let fishings, nor are they concerned about to whom they let fish farms. All they are concerned with is how much revenue they can derive from exploiting these matters. It is most unsatisfactory and I hope that my noble friend will look very seriously at this again.

The Earl of Perth

My Lords, may I, as a sometime First Crown Estate Commissioner, say to the noble Lord, Lord Burton, that it is not true that the Crown Estate is interested only in the money that it can get out of these things. It has many other considerations in mind, which are essentially those of a responsible body with the fishing interests very much in its thoughts. So I hope that that idea is totally removed from what your Lordships may think.

It is quite true—I was very much encouraged to hear this and not surprised—that the Crown Estate Commissioners will be talking with the appropriate body. But I think I am also right in saying that on the seabed around Scotland the Crown Estate has no more than between 60 and 70 per cent. of the rights. The rest of them have over many centuries been granted by charter to other interests. It is perhaps very important since it is such a large percentage—

Lord Ross of Marnock

My Lords, may I interrupt the noble Earl? Will he make it perfectly clear that it has not only been granted by charter? There was a failure of the Crown Estate Commissioners timeously to appreciate that other people were exercising rights. I think that if they exercised those rights for 14 years, without any objection from the Crown Commissioners, they were allowed to continue. Most of the seashore rights which the Crown Commissioners lost were lost in that way and not by the granting of rights.

The Earl of Perth

My Lords, I do not want to get into too much argument. There is some degree of truth in what the noble Lord, Lord Ross of Marnock, says. But they used to have to exercise a right over 40 years, and not 14. The sequel to that was that it was almost impossible for the Crown to police the whole area around the coast, which is very large. There have been large areas granted by charter which has nothing to do, in a sense, with the Crown Estate but was to do with the times when the kings were in control.

However, I say to the noble Lord, Lord Gray, that he has given an answer only in relation to between 60 and 70 per cent. of the whole and there remains 30 or 40 per cent. which, in areas, is very important. For example, I think of Nigg Bay. The ownership of part of that estuary is in private hands and that, I suspect, is an important salmon area. So it is not enough to say that the Crown will collaborate. There remains a large other body which ought in some way to be brought into the net, which is perhaps the right word to use.

Lord Gray of Contin

My Lords, by leave of the House, may I say how grateful I am to the noble Earl, Lord Perth, for drawing our attention to that point, which I shall answer in a moment. I do not think I should get involved in a discussion about the Crown Commissioners with two people so knowledgeable about their functions as the noble Earl, Lord Perth, and the noble Lord, Lord Ross of Marnock. But I think the points have been well made, and I have no doubt that my noble friend Lord Burton has taken them on board.

With regard to the fact that there are others involved, apart from the Crown Commissioners, I think that the position is as I described it, and I am concerned at what my noble friend Lord Burton has said. My understanding is that cages sited in freshwater lochs to rear rainbow trout and salmon smolts require specific planning consent, with the local planning authority consulting the purification hoards and others. My noble friend Lord Burton has taken issue on that. If he has specific cases in mind which he can draw to my attention I shall investigate them further. But it seems to me that there is provision for the local purification boards and others to be consulted. Of course, the applications for planning permission are advertised and, in short, the development of such cage farms is controlled through the planning Acts. I do not think I can add more to what I have already said. I am afraid that I cannot accept the amendment.

Viscount Ridley

My Lords, before my noble friend sits down, can he inform us whether these fish farms pay rates either to the local authority or to the fishery board?

Lord Gray of Contin

My Lords, I am afraid that I cannot answer that question without a little reference, but I shall keep talking until the advice arrives and I shall then give it to my noble friend. I am quite sure that I shall get useful information in a moment. Perhaps I may write to my noble friend. It appears that he has bowled a googly which has fooled not only me but the Box as well. I shall let my noble friend know in due course.

Viscount Thurso

My Lords, the noble Lord, Lord Gray, has said enough to show that there was and still is a problem in this area. A whole lot of things are still unresolved. There is the 30 per cent. or 40 per cent. of non-Crown seabed. There is the question of whether the Crown Estate Commissioners, willing though they be to police and monitor these matters, would have the expertise to police and monitor what was going on where a cage was sited. There is the question in my mind of whether a cage sited within a fresh water loch for a part of the year would need planning consent. If it were moored for a short time, would it need planning consent? If it did, surely every keep net along the Thames and along the canals of this country would require planning consent. I do not know at what point planning consent and so on is required. I have brought up before the difficulty of monitoring and policing the terms of planning consent.

All these grave difficulties surround the whole question of net cages. I readily accept, though, that my amendment will probably not solve this problem, but I hope that the noble Lord, Lord Gray, will take seriously the questions which underly what has been said and will initiate within his department serious discussions with a view to trying to solve this problem by means other than the Bill which is now before your Lordships' House. On that understanding, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Gray of Contin moved Amendment No. 8: [Printed earlier: col. 300.]

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Following is the text of the amendment (No. 8): Page 4, line 15, leave out ("subsection 2(c)") and insert ("paragraphs (c) or (f)").

Lord Gray of Contin moved Amendment No. 9: [Printed earlier: col. 300.]

The noble Lord said: My Lords, I beg to move formally.

On Question, amendment agreed to.

Following is the text of the amendment (No. 9): Page 4, line 19, leave out ("made under that power") and insert ("so made").

Lord Burton moved Amendment No. 10: Page 4, line 20, leave out ("subsection (2)(d)") and insert ("subsections (2) and (3)").

The noble Lord said: My Lords, once again I am grateful to my noble friend for having accepted at least part of this amendment. He has accepted the part to which we refer in the next four amendments—"part of a district" or "parts of districts"—but this amendment goes a little further. It asks that regulations should be in the hands of the Secretary of State not only on the question of meshes, materials and so on but also with regard to close time, the construction and use of cruives, and dams and obstructions. The amendment is generally rather wider than the actual part or parts which, as I said, I am pleased he has accepted. I feel that the Secretary of State should have such powers. If he is going to have to have powers for the actual materials, why cannot he have powers for things such as the construction of obstructions? I beg to move.

4.45 p.m.

Lord Gray of Contin

My Lords, I understand that it is for the convenience of the House to discuss along with Amendment No. 10, Amendments Nos. 11, 12, 13 and 14.

Amendment No. 11: Page 4, line 22, at end insert ("or different parts of a district"). Amendment No. 12: Page 4, line 22, at end insert ("or parts of districts"). Amendment No. 13: Page 4, line 24, after ("district") insert ("or part of a district"). Amendment No. 14: Page 4, line 24, after ("district") insert ("or parts of districts"). As the Bill is drafted, regulations under Clause 3 will be applied to the whole of Scotland, apart from those in respect of the meshes, materials and dimensions of nets, where it is thought that there might be room for local differences. Any regulations made under Clause 3 will be subject to the negative resolution procedure, which is wholly appropriate to such national regulations. The noble Lord's amendments would have the effect of enabling all these national regulations to be made for individual districts or parts of districts and would subject the local regulations to the negative resolution procedure, which, I am sure your Lordships will agree, would not be appropriate.

On the other hand, I can quite see why the noble Lord, Lord Burton, and the noble Marquess would wish to extend the possibility of making regulations for the meshes, materials and dimensions to parts of districts as well as whole districts. This might be of particular advantage following the creation of a larger district out of two or more smaller districts. I am advised, however, that the amendments are not appropriately worded and I have therefore brought forward appropriate government amendments, Amendments Nos. 11 and 13. I hope that the noble Lords will be prepared to accept these amendments and will withdraw their own amendments. I cannot accept Amendment No. 10 for the reasons I have given, and, with these explanations, I trust that the noble Lords will withdraw their amendments, which are either not appropriate or cannot be accepted and accept my amendments instead.

Lord Burton

My Lords, in view of the fact that half the amendment will be accepted by my noble friend's next amendment, and in view of the fact that I shall require further time to consider what he has said on the first part, I beg leave to withdraw the amendment. I think that my noble friend is taking back a number of things which may come up again on Third Reading and I cannot guarantee that I will not bring back this first part again.

Amendment, by leave, withdrawn.

Lord Gray of Contin moved Amendment No. 11: [Printed above.]

The noble Lord said: My Lords, I beg to move.

On Question, amendment agreed to.

[Amendment No. 12 not moved.]

Lord Gray of Contin moved Amendment No. 13: [Printed above.]

The noble Lord said: My Lords, I beg to move.

On Question, amendment agreed to.

[Amendment No. 14 not moved.]

Clause 6 [Annual close time]:

Lord Gray of Contin moved Amendment No. 15: [Printed earlier: col. 299.]

The noble Lord said: My Lords, I beg to move.

On Question, amendment agreed to.

Following is the text of the amendment (No. 15): Page 6, line 18, leave out ("Act") and insert ("section").

Lord Burton moved Amendment No. 16: Page 6, line 33, leave out ("two proprietors of salmon fisheries") and insert ("a proprietor of a salmon fishery").

The noble Lord said: My Lords, this is a little difficult. It is only a fairly small point but it refers also to Amendments Nos. 17 and 88.

Amendment No. 17: Clause 7, page 7, line 33, leave out ("two proprietors of salmon fisheries") and insert ("a proprietor of a salmon fishery"). Amendment No 88: Schedule 88, page 28, line 9, leave out ("two proprietors of salmon fisheries") and insert ("a proprietor of a salmon fishery").

Some of the smaller districts may have only two proprietors. Where we have a single-proprietor district there is no trouble but where there happen to be two, or there might be two, only one of whom may want some kind of alteration in the annual close time or in the estuarial limits or may want to apply for a designation order, it would not be possible for the one proprietor to put his views forward to the Secretary of State because the other one would not agree. We are therefore suggesting in these amendments that it should be possible for the Secretary of State to consider matters even if only one of the two proprietors wished to do so. I beg to move.

The Marquess of Lansdowne

My Lords, I should like to support Amendment No. 16, to which I have added my name. The particular difficulty with which it deals does not apply in my own area but I know that it may do so in others. It seems to me that it would be unfair if one of two proprietors were not allowed to have his say, and so I hope that the noble Lord, Lord Gray, will feel able to accept the amendment.

Lord Gray of Contin

My Lords, there is no particular reason why we chose to give the role of a board to two proprietors in a district where there is no board, although there is clearly a loose tie with the provision in Schedule 2 to the Bill that it takes at least two proprietors in a district to set in motion the procedures for creating a board.

It seems to me not unreasonable to take the line that, before my right honourable and learned friend is required to consider an application for an annual close time order, an estuary limits order or a designation order, he should be assured that there is at the very least a modicum of agreement within a district. Some might argue that applications for orders of that kind should come only from a board and therefore that proprietors should have to form a board if they feel that changes are called for. I myself do not propose that, but reducing the requirement from two proprietors to one would be a step in the wrong direction. I can understand what it is that my noble friends seek but I suggest to them that to reduce the number from two to one would not be the right way to go. In the light of what I have said, I hope that my noble friends will withdraw the amendment.

Lord Burton

My Lords, again I am not happy. It is not as though it is a question of setting up the board; the board might already exist. One of the members might die, or someone else might buy over one of the properties, and some new person might come in by that way. There could be a considerable feud between two landlords; that has not been unheard of before. It is only a small point and it applies only where there are just two proprietors on a board. But where it does apply, it does not seem unreasonable that one of those two people should have the right to go to the Secretary of State: that is all. The Secretary of State might say "No", but as the clause is worded at the moment it disfranchises such a person. I hope that my noble friend will take a further look at this point, but it is a small matter and one that is not worth pressing further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Estuary limits]:

[Amendment No. 17 not moved.]

Clause 9 [Application of regulations and annual close time orders to the River Tweed]:

Lord Gray of Contin moved Amendments Nos. 18, 19 and 20 en bloc: Amendment No. 18: Page 8, line 28, leave out ("Act") and insert ("section"). Amendment No. 19: Clause 11, page 11, line 6, leave out ("Act") and insert ("section"). Amendment No. 20: Page 11, line 23, leave out ("Act") and insert ("section").

On Question, amendments agreed to.

Clause 13 [District salmon fishery boards]:

The Marquess of Lansdowne moved Amendment No. 21: Page 12, line 2, leave out subsection (1) and insert— ("(1) A committee elected by qualified proprietors in accordance with Schedule 2 to this Act shall he the district salmon fishery board for that district; and the purposes of that board shall be the protection and improvement of the fisheries within that district").

The noble Marquess said: My Lords, I found great difficulty in understanding why there is a need to have two organisations—the association and the board. However, it appears from the way that the Bill is worded that the formation of an association of proprietors in a salmon fishery district is a prerequisite for electing a salmon fishery board. It is not clear to me that the association even has to be one of all the proprietors in the district.

I suppose that some people could agree to join an association at the sheriff's meeting and that others might decide that they did not want to do so. But that association would appear to be sufficient to proceed with the election of a board.

After a board is elected, presumably the association then continues in being. I cannot see the purpose of that. The association is made redundant because the board that is elected in accordance with Schedule 2 will have the powers and duties conferred upon it by the Act. The status of the board in the absence of the association of proprietors is that of an unincorporated association, which is the same status as that of the existing board. I can see no reason to establish the association, which would merely be to create a superfluous and potentially confusing body. I feel sure that the noble Lord, Lord Ross, will be able to explain my confusion. I beg to move.

Lord Home of the Hirsel

My Lords, the noble Lord is not present in the Chamber and so he is unable to do so.

Lord Gray of Contin

My Lords, I hope that I may be able to explain this matter to my noble friend, even if the noble Lord, Lord Ross of Marnock, is not with us at present to make his contribution. Amendment No. 21 relates to a number of other amendments, all of which are designed to remove the association of proprietors, whose committee may become a district board, from the Bill. I appreciate that the structure we have created is complex, but I hope to be able to persuade noble Lords that it serves a very real purpose. Existing district boards constituted under the 1862 and 1868 Acts enjoy a somewhat doubtful legal status, and their powers are limited to what statute provides for them. In the new structure we expect a board, in its character as a committee of a voluntary association, to avail itself of the common law powers appropriate to such a body, as well as the additional powers given to the board in the Bill. Likewise, the underlying scheme allows for ease of transfer between boards where districts amalgamate, and also removes any possible vacuum that might arise when a board lapses. It is important therefore that the board retains its capacities as the committee of a voluntary association, and the Bill has been carefully drafted with that in mind. I hope that explanation will satisfy my noble friend.

The Marquess of Lansdowne

My Lords, that was a very clear exposition by the noble Lord, Lord Gray. I only moved the amendment because the existing wording seemed unnecessary and therefore rather confusing. If that provision is absolutely essential—as well as very confusing—then of course I beg leave to withdraw the amendment.

Lord Grimond

My Lords, before the noble Marquess does so, I may say a word in support of his amendment. I must confess that I, too, listened with great attention to what was said by the noble Lord, Lord Gray, but my mind, which is not as sharp as that of the noble Marquess, remains confused.

The reason why we have to keep in being a voluntary society in case a board goes out of existence, and the advantage of having a committee of that voluntary society, have so far escaped me. However, this is the amendment of the noble Marquess and if he is satisfied and clear in his own mind about what we are doing, and if we really are making legislation clearer and not more confusing—which I doubt very much—then I would not for one moment oppose the amendment being withdrawn.

Amendment, by leave, withdrawn.

[Amendments Nos. 22 to 24 not moved.]

5 p.m.

Lord Gray of Contin moved Amendment No. 25: Page 12, line 42, at end insert ("; but, for the purposes of the winding-up of such an association, any assets of the former board remaining after the settlement of the liabilities of the former board shall be distributed amongst all the proprietors in the district who were liable to the fishery assessment immediately before the date on which the committee ceased to be such a board, according to the valuation of each fishery as entered in the valuation roll at that date").

The noble Lord said: My Lords, during the Committee stage of the Bill my noble friend Lord Burton tabled an amendment which was designed to ensure that when a district board is finally wound up any assets remaining should be divided among the proprietors in the district in proportion to the value of their fisheries on the valuation roll. I told my noble friend at that stage that I was attracted by his suggestion. I have given further detailed consideration to the matter and have brought forward this amendment which will meet the point.

The amendment makes clear that on a winding up, once all liabilities of the former board have been settled, the assets will be divided among the proprietors in the district according to the valuation of their fisheries. This is sensible and fair and I hope that noble Lords will be prepared to accept the amendment. I beg to move.

Lord Burton

My Lords, once more I am most grateful to my noble friend on the Front Bench. I hope that your Lordships will accept the amendment. I think that we are nearly 50–50 now on agreement and disagreement. I should like very much to thank my noble friend.

On Question, amendment agreed to.

[Amendment No. 26 not moved.]

Lord Gray of Contin moved Amendment No. 27: [Printed earlier: col. 299.]

On Question, amendment agreed to.

Following is the text of the amendment (No. 27): Page 13, line 11, leave out ("Act") and insert ("section")

The Marquess of Lansdowne had given notice of his intention to move Amendment No. 28: [Printed earlier: col. 297.]

The noble Marquess said: My Lords, I simply tabled this amendment in order to give a greater degree of flexibility. It seemed to me a sensible thing to do. I believe that there should be a little more flexibility. However, I do not want to speak at any length.

Lord Gray of Contin

By leave, my Lords, I dealt with this amendment when dealing with Amendment No. 2 and I think it has been covered.

The Marquess of Lansdowne

My Lords, I thank my noble friend. It is covered. I shall not move the amendment.

[Amendment No. 28 not moved.]

Clause 14 [Financial powers and duties of district salmon fishery boards]:

Lord Burton moved Amendment No. 29: Page 13, line 20, leave out subsection (1) and insert— ("(1) A district salmon fishery board shall, each year, hold a meeting of qualified proprietors in that district and shall at that meeting present annual accounts together with a report of the board's activities during the previous year. The annual meeting shall take such steps as they think proper for auditing and attesting the accounts of the board.").

The noble Lord said: My Lords, this is just a tidying up of the matter. As the Bill stands at the moment the proprietors, tenants, or whatever, will have only one occasion in three years on which to take their board to any task. It must be well understood that a number of these existing fishery boards are not the height of efficiency and it seems to be right that, as in most organisations, there should be what amounts to an annual general meeting at which the accounts must be produced.

It is quite wrong to have to wait three years before proprietors or owners of fishing can see from the accounts what their board is doing. This is accentuated in view of the fact that my noble friend is proposing that we should now be able to take on heritable property. That is most welcome but if the boards are to be efficient, they must be scrutinised at least once a year. I beg to move.

The Marquess of Lansdowne

My Lords, I do not want to delay your Lordships with an unnecessary speech but I should like to add a few words in support of the amendment. I am the chairman of a district river board and I have always felt that it would be much better if we were obliged to meet annually. Accountability is of course very important. In addition, it would give an opportunity for riparian owners and interested parties to say what they have to say to one's face, as it were, instead of, as at the moment, having to ask for a special meeting to discuss a subject. I would not be inclined to refuse a special meeting because they are very good things to have, but I think it would be sensible and wise if we were obliged to meet annually. With those few words, I support the amendment in the names of my noble friend Lord Burton and myself.

Lord Carmichael of Kelvingrove

My Lords, I hope the Minister will look sympathetically at this amendment. It seems wrong that important powers should be given to a board to represent such a valuable asset without having a meeting at least once a year. If this, or a similar amendment, is not accepted it would mean, as I see it, and according to the noble Lord, Lord Burton, that meetings would be held only every third year. I know that the Minister usually finds that the wording of amendments is not quite what he wants but perhaps he can indicate that he is, in general, sympathetic to it being part of the duties of the board to meet at least once a year to let people know what is happening and to give a report of their stewardship for the year. I think that this is the least that can be done in such a Bill.

Viscount Ridley

My Lords, I add my support. It would be of enormous good to the salmon industry. If there is suspicion of the board's activities this would go a long way for riparian owners to have a chance to be heard, as my noble friend Lord Lansdowne said. If my noble friend is not able to accept the amendment, will he undertake to discuss with the Association of Fishery Boards a similar amendment which would enable them publicly to meet their constituents, so to speak, annually in some way or another? It would do a considerable amount of good to the whole salmon scene.

Lord Gray of Contin

My Lords, I can well understand the thought and the reason behind this amendment. It seems very reasonable that boards should have a means of communicating with the fishery interests they represent and that their accounts should be prepared annually. Indeed, I understand that a great many boards already have regular meetings and that some publish annual reports.

However, given the wide variety of circumstances in which boards are constituted and operate it would not perhaps be appropriate to require them by statute to have meetings according to a set pattern. Boards depend upon proprietors for their election and I would expect them to respond to the wishes of their proprietors by calling meetings at times suited to local conditions and wishes.

I am not prepared to accept this amendment. I hope that my noble friends will consider withdrawing it. However, I am certainly prepared to accept what I consider to be a very reasonable suggestion made by my noble friend; that I draw the attention of the district boards to this matter. I think the best way forward would be for the district boards to encourage this practice but because of the very wide variation in circumstances which exist in different board areas I am reluctant to write into legislation that they should be required to have meetings according to any set pattern.

In the light of that suggestion, and in the knowledge that I am prepared to raise this matter with district boards, perhaps my noble friends would be prepared to withdraw the amendment.

The Duke of Atholl

My Lords, before my noble friend withdraws the amendment, I should like to say that I am somewhat disappointed with the reply of my noble friend the Minister for the very reasons given by the noble Lord, Lord Carmichael. I feel that the smaller boards are probably the most likely to transgress and regard an annual meeting as being unnecessary. I do not think that will happen in the case of my noble friend Lord Lansdowne and his board but I do think it might happen with some of the smaller boards.

While one must accept that there are many different conditions and sizes of boards, I think there should be something somewhere in this Bill laying down that they must allow their shareholders, or ratepayers to meet them once a year to hear exactly what they have to say for themselves.

The Earl of Perth

My Lords, I go along with the problem, but I wonder whether instead of the mandatory "shall" in the amendment we could perhaps use the word "should" and go on to say something like: but if there is some reason why the board does not feel it appropriate it should so notify the Secretary of State. The Secretary of State, or whoever might be the right authority, could then decide. If the noble Lord understands me, I wonder whether that might meet all our worries.

Lord Gray of Contin

My Lords, I sense that there is a genuine concern about this matter. In view of what has been said, I take the point that the noble Earl, Lord Perth, has made. I was perfectly prepared to discuss the matter with the Association of District Boards. If it is the general wish that we should go further than that, then I shall, without commitment, take this back, have a look at it again, and perhaps return to it at Third Reading.

Lord Burton

My Lords, I am grateful to all noble Lords who have put forward suggestions. I am particularly grateful to the noble Earl, Lord Perth, for putting forward a very worthwhile suggestion. Between us we seem to have persuaded the Minister to change his mind. That is very satisfactory. I hope that this will continue, that my noble friend the Minister will take it back, and that he will come forward on Third Reading with a suitable amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 30 not moved.]

Lord Gray of Contin moved Amendment No. 31: Page 13, line 32, leave out from ("district") to the end of line 34.

The noble Lord said: My Lords, it will perhaps be for the convenience of the House if with this amendment I take Amendment No. 35.

Amendment No. 35: Page 14, line 34, leave out subsection (10) and insert— ("(10) In carrying out its purpose, a district salmon fishery board may authorise expenditure, including expenditure for the acquisition of heritable property, out of sums accruing to it from—

1. (a) the fishery assessment;
2. (b) the exercise of the power, under subsection (8) above, to borrow; or
3. (c) any other source;

but it shall not pay to any member of that board any salary or fees for his acting in any way as a member of or under that board.").

The noble Lord said: My Lords, these two amendments, which have to be read together, stem from the discussion during Committee stage about the purchase of heritable property. Several noble Lords argued strongly that the proposed restriction on the purchase of heritable property should be relaxed and I shall in fact be moving an amendment on that specific point later. The purpose of these two amendments is to make it clear that a board may meet the costs of carrying out the purposes given to boards under the Bill from any source of money available to it, whether that money comes from the statutory powers of assessment and borrowing, from capital transfers at amalgamation or from transactions in the ordinary course of its business.

The amendment also provides that a board which, in its capacity as the committee of a voluntary association, can purchase heritable property, may meet the costs of such purchase from any of the funds available to it as a board.

The amendments maintain the provision that a board shall not pay any of its members any salary or fees for acting as a member of the board or for it. Noble Lords will remember that I pointed out during the Committee stage debate that this provision does not prevent a board from paying travelling expenses to members if it so decided. These are minor amendments, clarifying some of the board's powers. I beg to move.

On Question, amendment agreed to.

Lord Burton moved Amendment No. 32: Page 13, line 36, leave out ("or rates").

The noble Lord said: This is more a probing amendment. The Bill as currently worded says: The fishery assessment shall be assessed at such uniform rate or rates as are determined". I thought that these boards would set a rate. I cannot see where the word "rates" comes in. My amendment suggests deleting the words "or rates". I beg to move.

Lord Gray of Contin

My Lords, I can understand the concern of my noble friend regarding this question that district board rates should be applied to all fisheries in the district equally. I can see that the use of the words "rate or rates" would give rise to the impression that differential rates were envisaged. The purpose of using "rate or rates" is to ensure that a board can impose a supplementary rate or a special rate in addition to any regular assessment if it so decided. The possibility of this being interpreted as allowing differential rates was anticipated. That is why the word "uniform" was inserted in the clause immediately before the words "rate or rates", to make sure that the assessments could not discriminate between fisheries of different sorts. I am assured that the subsection as drafted has that effect. I hope therefore that, with that explanation, my noble friend will feel able to withdraw the amendment.

Lord Burton

My Lords, I must congratulate the drafter of the Bill. As it is drafted, it has foxed us. It is, however, very sensible and I have pleasure in asking leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

Lord Burton moved Amendment No. 33: Page 14, line 1, after ("assessment") insert ("including interest thereon").

The noble Lord said: My Lords, this amendment is again concerned with the question of interest. I thought that at Committee stage my noble friend was going to look at this. I had rather hoped that he might have proposed what I am now suggesting. As matters stand, there are from time to time inclined to be people who are very slow in paying their assessment, often a very small one. To take them to court costs a lot of money. If they pay up before going to court, you have lost out on legal expenses. It is all rather unsatisfactory.

The situation could easily be overcome if the boards were able to impose an interest charge should the rates not have been paid within a certain time. When it is a matter of local authority rates, this is quickly put into the sheriff officer's hands and one obtains an extra 10 per cent. charge straightaway. I do not believe that this applies to fishery board assessments. It is essential, in my view, that the matter should be tightened up. I beg to move.

The Marquess of Lansdowne

My Lords, I should like to support the amendment. We have often found this difficulty in my board. The position should be tightened up. Quite a number of letters have to be written on certain occasions. This wastes the clerk's time and the board's money. The matter should be tightened up and interest thereon added. I hope sincerely that the noble Lord will accept the amendment.

Lord Gray of Contin

My Lords, perhaps at the outset I can point out to my noble friend Lord Burton that his amendment is defective inasmuch as there is no specification of rate of interest and there is no indication of when interest would be due. Nevertheless, I am grateful to my noble friend for moving the amendment and thus keeping the interesting suggestion before us.

I did say in Committee that I would consider the implication of this proposal. I have not yet completed that consideration and I would be grateful for a little more time. There is, for example, the question of the need to make specific provision for the charging of interest, not simply the recovery of arrears, and whether or not a statutory rate should be laid down. I hope that with this explanation my noble friend will consider withdrawing his amendment.

Lord Burton

My Lords, on that assurance, one has little option. It is, however, rather difficult to fix rates at this time because rates are liable to alter. I beg leave, however, to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Gray of Contin moved Amendment No. 34. [Printed earlier.]

On Question, amendment agreed to.

Following is the text of the amendment (No. 34): Page 14, line 14, leave out ("Act") and insert ("section").

Lord Gray of Contin moved Amendment No. 35: [Printed above.]

Lord Burton

My Lords, if this amendment is agreed I think that probably it will not be possible to take my Amendment No. 39 because it will aready have been dealt with.

Amendment No. 39: Page 15, line 5, at end insert— ("( ) Reference to the acquisition of heritable property shall include references to the purchase or lease of heritable property and where heritable property is acquired title shall be taken in the name of the chairman of and clerk to the district salmon fishery board for the time being as trustees for the board.) This amendment contains a slight addition to what appears in the amendment of my noble friend. I hope that he will examine it. It relates to the question: if there is a heritable title, in whose name should the property be held? The suggestion is that it should be the chairman and the clerk of the fishery hoard concerned. But it may be that there should be someone else. If I do not raise it at this juncture, there will not be an opportunity later on.

The Deputy Speaker (Earl Cathcart)

My Lords, we are discussing amendment No. 35.

Lord Gray of Contin

My Lords, the noble Lord made reference to Amendment No. 39. At this stage, we are dealing with Amendment No. 35. All I can say is that I have noted what the noble Lord has said.

On Question, amendment agreed to.

Following is the text of the amendment (No. 35): Page 14, line 34, leave out subsection (10) and insert— ("(10) In carrying out its purpose, a district salmon fishery board may authorise expenditure, including expenditure for the acquisition of heritable property, out of sums accruing to it from—

1. (a) the fishery assessment;
2. (b) the exercise of the power, under subsection (8) above, to borrow; or
3. (c) any other source;

but it shall not pay to any member of that board any salary or fees for his acting in any way as a member of or under that board.")

Clause 15 [General powers and duties of district salmon fishery boards]:

Lord Burton moved Amendment No. 36: Page 15, line 1, at end insert— ("(d) research into the state of salmon runs in its district").

The noble Lord said: My Lords, this is quite a simple little matter. I really cannot add to what is on the Marshalled List. I beg to move.

Lord Gray of Contin

My Lords, I am grateful to the noble Lords for this amendment. It gives me this opportunity to assure your Lordships' House that district boards will under this Bill be able to carry out research and meet the expenses of it from their funds provided that the research is relevant to the good management of the stocks and their district.

I am advised that research of that sort could be undertaken within the power that boards will have under Clause 15(1)(a). That is: the protection or improvement of the fisheries within their district". We have deliberately tried to draft the general powers of the boards as widely as possible in order to give them the broadest flexibility of action within their general purpose. I hope on the assurance I have been able to give that my noble friends will feel able to withdraw their amendment.

Lord Burton

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker

My Lords, in calling Amendment No. 37, I should inform your Lordships that, if it is agreed, I cannot call Amendment No. 38.

Lord Gray of Contin moved Amendment No. 37: Page 15, leave out lines 2 to 5.

The noble Lord said: My Lords, noble Lords will remember that when an amendment on the purchase of heritable property was being discussed at Committee stage, it was suggested by several noble Lords that the limitation requiring the consent of proprietors of fisheries totalling four-fifths of the total value of the fisheries in the district should be relaxed. The noble Duke, the Duke of Atholl, suggested as an alternative that the purchase of heritable property should be subject to one-fifth of the proprietors not objecting to it. That suggestion poses some difficulties in that it would be necessary to ensure that all proprietors knew of the proposed purchase so that they had the opportunity to object to it if they were so minded.

Those who were present at the Committee stage may also recall that the noble Lord, Lord Ross of Marnock, suggested that a government amendment relating to purchase of heritable property be withdrawn because I had agreed to review the position. Events have proved the noble Lord to be right on this occasion, as on many others.

In considering all the points made in the debate at Committee stage, and accepting the general thrust of the debate, I have decided that the limitation on the power to purchase heritable property should be removed altogether. The purchase would have to be for the purposes of the board—that is, the protection and improvement of salmon fisheries in the district. There is a limitation on the board's power to borrow money. That would apply to the borrowing of any money for the purchase of heritable property. If, however, a board already has enough money, or can borrow enough money within the limitations imposed by the Bill, then it should, I think, be as free to purchase a garage or a house as it is to purchase a vehicle or to pay a water bill. I beg to move.

The Duke of Atholl

My Lords, perhaps it might be for the convenience of the House, if I were to say a word about Amendment No. 38, even though I shall not be able formally to move it, assuming that the Government's amendment is accepted.

Amendment No. 38: Page 15, line 3, leave out from ("board") to first ("or) in line 4 and insert ("if objections to the acquisition are lodged with the clerk to the district salmon fishery board by proprietors of fisheries which together amount to one fifth"). I feel that we must have been over-persuasive at the Committee stage and have got the noble Lord the Minister to move rather too far in the direction that he has moved. This is quite all right for the smaller boards, but some of the larger boards have a very substantial income and, if they can spend twice their rateable income in any one year on buying heritable property, they will be able to buy very considerable amounts of land.

I should have thought that the Bill as originally drafted was in this way quite a good idea because it would put some control on them. As it is now proposed, provided that they do not exceed this twice—or, I suppose if they are really clever they could make it by deferred payments which would mean the cash could be spread over two or three years—they could, theoretically, buy up to six times their annual income if they spread it over three years. I am not sure that this is a good thing. I think that it is unlikely to happen because we must have faith in the boards that we are setting up and believe that they will not go ahead and become mini-financiers in this way. However, I should like to utter a warning that perhaps we have moved a little too far in the direction of freedom.

Having said that, I shall not oppose in any way the amendment of my noble friend. I very much hope that it will be carried.

Viscount Ridley

My Lords, I should like to thank the noble Lord the Minister for giving way so gracefully to an amendment which was strongly supported at Committee stage.

On Question, amendment agreed to.

[Amendment No. 38 not moved.]

Lord Burton had given notice of his intention to move Amendment No. 39: [Printed earlier.]

The noble Lord said: My Lords, I raised this matter before. I think the amendment is probably now defective and should not be moved. I feel it is important that we should bear in mind in whose name any property that is acquired should be taken. I would ask my noble friend to look at this. I do not know whether he can answer this point tonight, but I think this provision will be required in the Bill.

[Amendment, No. 39, not moved.]

[Amendment No. 40, not moved.]

Viscount Thurso moved Amendment No. 41: Page 15, line 8, leave out ("co-opt") and insert ("appoint").

The noble Viscount said: My Lords, with Amendment No. 41 I should also like to speak to Amendments Nos. 51, 95, 103, 104, 105, 106, 108, 109 and 111.

Amendment No. 51: Clause 17, page 17, line 10, leave out ("co-opting") and insert ("appointing"). Amendment No. 95: Schedule 2, page 32, line 13, leave out ("co-opting") and insert ("appointing"). Amendment No. 103: Page 33, line 9, leave out ("co-opt") and insert ("appoint"). Amendment No. 104: Page 33, line 10, at end insert— ("( ) the clerk of the Board shall give notice at least once in each of two successive weeks by advertisements in a newspaper circulating in the district

1. (a) indicating the intention to hold elections for the appointment of representatives of salmon anglers and tenant netsmen;
2. (b) indicating arrangements for the nomination of candidates;
3. (c) appointing a time and place for the holding of elections; and
4. (d) including provision for voting by post.")

Amendment No. 105: Page 33, line 13, leave out ("co-opted") and insert ("appointed"). Amendment No. 106: Page 33, line 15, leave out ("co-opted") and insert ("appointed"). Amendment No. 108: Page 33, line 19, leave out ("co-opted") and insert ("appointed"). Amendment No. 109: Page 33, line 20, leave out ("co-opt such persons") and insert ("hold elections"). Amendment No. 111: Page 33, line 21, leave out ("co-opted") and insert ("appointed").

I think those are all the amendments I would wish to speak to now. They relate to a wish to enfranchise the representatives of anglers and tenant netsmen. I am quite ready to admit that I may have got the drafting wrong in this instance, but I think the principle is right. It is important that anglers should not only be part of the district board structure but also made to feel part of it and made to feel that they do not come to the district board owing their appearance there to the generosity of the proprietors; and they should in some way be able to determine who of their number should represent them in the district boards.

The object of this series of amendments is to remove the word "co-opt" and substitute "appoint". At the end of the series, your Lordships will notice that there is to be provision for elections of angling and tenant netsmen representatives. When the anglers and tenant netsmen have held their elections and decided who they wish to be their representatives the existing boards would appoint those persons.

5.30 p.m.

The whole object of this series of amendments is to try to achieve this state of enfranchisement for the anglers and the tenant netsmen. It is important in this connection that justice should not only be done but be seen to be done. The value of district boards is that they are, and will be, a forum where different sides and different opinions within the whole salmon industry will meet and discuss policy in relation to specific rivers and coasts. It is important that all possible voices should be present at these discussions and should feel themselves to be properly placed there, and properly able to make their views heard and make their presence felt. That is the purpose which underlies these amendments.

I hope that the noble Lord, Lord Gray of Contin, will be able to give us some comfort along these lines; some idea that the angler and tenant netsman will not be a second-class citizen but just as first-class a citizen as any other person who has an interest in a salmon river or the coast off which salmon migrate. I beg to move.

The Earl of Onslow

My Lords, this amendment seems to me to have one major flaw. The flaw is: how do you define an angler? Are you going to have a series of weighted votes? Is somebody who just takes one day rod on the Dee going to have a vote the same as someone who owns a stretch and fishes it all his life?

It is impossible to have a reasonable basis for an angler or rod electorate. Therefore, I think that the proposal falls down not because it would not be quite nice to have voted in rod members, but because the practicality of defining what is an angler presupposes that it is inherently nonsensical.

Lord Kimball

My Lords, I hope that the Government will resist the amendment, because as I understand the position anybody with a rateable value of £500 in a watershed is entitled to a seat on a district fishery board. I am confident that that is the position. It seems a sensible position to maintain. I do not know how otherwise you would select, from all the people who fish your river, who would be a member of the district fishery board, and I hope that the Government will leave the situation as it is at present. I appreciate the liberal sentiments of the noble Viscount, Lord Thurso, but I do not think that his suggestion will be an improvement.

Lord Ross of Marnock

My Lords, I hope that the Government will not take the advice they have been given by the two noble Lords who have just spoken. We had better accept that the anglers are an important aspect of fishing in the modern day. I do not think for a minute that any board would appoint someone (even if they knew who he was) who had been up there for only an hour and never reappeared. That is not likely to happen. We have to be realistic about it. By the way, that is why I did not like the word "appoint". I wanted appointments from nominations of the angling associations themselves. They should have a say.

On the drift of what the noble Viscount, Lord Thurso, says, he has certainly got my approval. They have to be there, if you are going to be fair to all the interests who have the well being of salmon fishing at heart. The district board will not have the authority it should have unless it is representative of all the real interests in fishing on the whole river.

The Marquess of Lansdowne

My Lords, I should like to add a word on this subject. I spoke about it on a previous occasion and I used the expression, "second-class membership". I am strongly against any suggestion of second-class membership. I am equally strongly opposed to the idea of disenfranchised members.

The amendment seeks to deal with this, and I share the view of the noble Lord, Lord Ross, but I cannot go the whole way with him. Of course the anglers are very important indeed, and as the years go by we shall realise that they are becoming increasingly important. I shall have a word to say about that later this evening in another context. But I feel that those who have continuing interests in the river should have the major say. That is why I would wish to support the idea of the anglers and the tenant netsmen not having parity with the others; that they should be two in number rather than three.

I hope that something along the lines suggested by the noble Viscount, Lord Thurso, can be brought about. It is all very well for the noble Lord, Lord Kimball, to oppose it out of hand, but as the noble Lord, Lord Ross, said on an earlier occasion, we have to think of the salmon fishing industry in rather a different way these days. That is why it is immensely important that the angler and the tenant netsman should be considered, and that his voice should be heard.

I hope that your Lordships will think again about this. It is an important amendment. It may have imperfections, I do not know, but I should be pleased if the noble Lord, Lord Gray, who is in charge of the Bill, could give us some assurance that he would at least attempt to see whether it is possible to work out some means whereby the suggestion of the noble Viscount. Lord Thurso, can be implemented.

Lord Gray of Contin

My Lords, your Lordships will see that I have tabled a number of amendments relating to co-option. I think that these enable us to see the general idea rather more clearly. I have looked again at the proposals of the noble Viscount, Lord Thurso, for election of angling and tenant netsmen representatives other than co-option, but I remain of the view that co-option is the best course.

One of the amendments I have tabled requires a district board to consult as it sees fit in the process of co-option. I should make it clear that the Bill does not preclude a board from making its own arrangements for holding election meetings from which co-option could be arranged, and such an arrangement could readily be linked to the consultation provided for in the amendment I have tabled.

However, I am clear that, particularly given the removal of the ban on co-optees voting on fishery assessments, the final decision as to who comes on to the board as representative of the angling and tenant netting interests should be for the board itself. Quite apart from the financial point to which I have just referred, it is possible that an attempt by a board to hold elections could be unsuccessful and that the board would have to take its own steps to co-opt directly in the absence of names coming forward as part of a consultative process.

I hope that, particularly bearing in mind the other changes to this part of the Bill I now propose to make, the noble Viscount, Lord Thurso, would see fit to withdraw his amendment. If not, I am afraid I must ask the House to resist it.

Viscount Thurso

My Lords, before addressing myself to what the noble Lord, Lord Gray, has said, may I put at rest the fears of the two noble Lords opposite, the noble Earl, Lord Onslow, and the noble Lord, Lord Kimball. I suggest in this series of amendments methods by which elections could be held. If they had looked at Amendment No. 104 they would have seen that there was a method by which the clerk of the board would give notice of the type of election to be held, how it would be done, and the arrangements which would be made.

To allay any fears that the noble Lord, Lord Kimball, might have that by electing anglers one would somehow elect vast numbers of small proprietors—which I simply do not understand—the point of all these amendments and all of this Bill is that equal numbers of the different parties that find their way onto a district board would be elected in every case so that there would be the same number of angler representatives as of tenant netsmen representatives and of upper and lower proprietors. In other words, there would be four pillars holding up the structure: upper proprietors, lower proprietors, anglers and tenant netsmen.

With regard to what the noble Lord, Lord Ross of Marnock, said, I used "appoint" because I think I have made it clear that an elective process would produce the names and they would have to be accepted by the boards. I should have liked to use "elect" but, without completely redrafting the Bill much more violently than I was seeking to do, it was difficult to fit it in. It was easy to fit in the elective process by changing "co-opt" and "appoint".

The noble Lord, Lord Gray of Contin, has given me some cause for hope because he said that his amendments will completely unshackle the representatives of anglers and tenant netsmen who find their way onto the board. Whether they be co-opted or whether they be elected, they will become full participant members of the board. I believe I am right in taking that from what he said. That goes a long way towards meeting the problem which I felt in my mind.

It also goes a long way towards meeting my fears that he said that there is nothing to preclude a board from running elections if it so wishes. Even if I withdraw these amendments I shall not withdraw my adherence to the elective principle. There will be at least one district fishery board where elections will take place to find out who the anglers are. I hope it may prove to be a shining example to the noble Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Burton moved Amendment No. 42:

Page 15, line 15, at end insert— ("( ) make byelaws in furtherance of the purposes referred to in subsection (1) above, which byelaws may make different provision for different parts of a district and shall be subject to the confirmation of the Secretary of State:").

The noble Lord said: My Lords, this is a suggestion that the district boards ought to be able to make by-laws for the protection or improvement of the fisheries, which they are instructed to do. There may be cases where it is difficult for the board to enforce certain things which it might like to do; for instance, we have spoken about restrictive methods of fishing which may be for the benefit of a particular river. The by-laws, according to the amendment, would be subject to the confirmation of the Secretary of State who, if he felt these were not reasonable, could turn them down. Places such as country parks can insist that a dog be put on a lead, and that is not unreasonable; but where these fishery boards are looking after their fishing and for their fishing interests only they should be allowed to make by-laws which would be enforceable. I beg to move.

Lord Gray of Contin

My Lords, the purpose of Clause 15 is to give a district salmon fishery board power to take action at its own hand for the purposes specified therein. Examples of the kind of action it might take under Clause 15(1) are given in Clause 15(4). In addition, under Clause 15(1)(a) and (b) a board might decide to construct and operate a hatchery for the purpose of increasing stocks.

The Bill has been constructed on the basis that the power to take action on certain other matters connected with the protection and improvement of stocks, and particularly those which affect private rights, should rest with the Secretary of State. For example, Clause 3 gives the Secretary of State power to make regulations with respect to the construction and use of cruives, and the extent of, and due observance of, the weekly close time. It is therefore neither necessary nor appropriate for the boards to have by-law powers for the purposes of this clause. Moreover, it could lead to confusion and conflict, given that the appropriate powers are given to the Secretary of State.

I should add that I am advised that the first amendment is defective in that the additional words do not flow properly from the end of line 15 which includes the words "by agreement". The second amendment is in similar terms to Section 29 of the 1862 Act which we are repealing because, when regulatory powers are given, it is considered preferable for suitable offences and penalties to be prescribed, with enforcement in the criminal courts. Perhaps with that explanation my noble friend will consider withdrawing his amendment.

Lord Burton

My Lords, I am not entirely happy with that, but I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

Lord Burton moved amendment No. 43:

Page 15, line 20, at end insert— ("( ) A district salmon fishery board shall be deemed to have an interest in any fishery within its district for the purpose of instituting court proceedings including without prejudice to that generality proceedings to interdict any act which may be detrimental to the interests of any of the fisheries within its district.")

The noble Lord said: My Lords, the position here is that one proprietor can take an interdict action but it is unreasonable that one proprietor should have to indulge in expense for the protection of a general fishery. As the Bill is worded the board will not have powers to introduce any court proceedings. As my noble friend turned down something like the extraction of gravel, it might be important that the board should have powers of interdict which should be taken out in the names of all the proprietors and the cost shared among them. I therefore beg to move this amendment.

Lord Gray of Contin

My Lords, although the noble Lord has argued forcefully in support of this amendment, I must point out that Clause 15(5) of the Bill already allows a district salmon fishery board to sue or be sued in the name of its clerk. The Bill places no restriction on the types of action which a clerk may raise on behalf of a board.

Thereafter, it is, quite properly, left for the court to decide, in the circumstances of any action, including an application for interdict, whether the action is competently raised. There could be circumstances where a court would consider it acceptable for a board to seek interdict to prevent damage to fisheries but there could be other circumstances in which it would not be appropriate for the board to do so. Each case should be judged on its own merits, and the discretion should remain with the court to decide on competency in the particular circumstances. I therefore cannot support this amendment and trust that the noble Lords will withdraw it.

Lord Burton

My Lords, I took it that the ability to sue was to allow someone to be pursued, such as a poacher, who might be prosecuted by the fiscal. But if this is extensive I should be happy to withdraw the amendment. I feel this is something which needs further attention. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 44 not moved.]

Lord Gray of Contin moved Amendment No. 45:

Page 15, line 34, leave out subsection (3) and insert— (" (3) At any meeting of the board, each member shall have one vote, subject to the following exceptions—

1. (a) the chairman, in his capacity as such, shall have both a casting and a deliberative vote; and
330
2. (b) a person who is both an upper proprietor and a lower proprietor by virtue of section 10(5) of this Act shall have a vote in either capacity or in both capacities according to the capacity or capacities in which he has been elected or co-opted.").

Following the interesting discussions on the whole question of co-option which took place in Committee I have, as I undertook to do, given further thought to the general position and rights of co-opted members of a district salmon fishery board. As noble Lords will be aware, I have tabled a series of amendments making relatively minor but important adjustments in this area. I have accepted that there is no real need to restrict the voting rights of co-opted members so that they are unable to vote on the co-option or removal of members or even on the fishery assessment. But in any event, the system as proposed in the Bill builds in a proprietoral majority in normal circumstances by virtue of the chairman's deliberative and casting votes, and in the light of the mandating provisions.

In these circumstances, there is no reason why co-opted members should not exercise the same voting rights on these matters as elected members. This amendment therefore removes the retrictions originally placed on voting by co-opted members. No distinction will now be made between the votes of elected and co-opted members on any board business. I had originally thought that this was desirable, particularly in the case of the fishery assessment, since co-optees are not required to make any financial contributions to a board. My Lords, I beg to move.

Lady Saltoun of Abernethy

My Lords, I have one reservation about this amendment and about the method of selecting the chairman. That is because when river stocks are as low as they are, no angling proprietor is ever going to vote for netting interests, and no netting proprietor is ever going to vote for angling interests if he thinks netting activities might be curtailed. If the chairman does not have an extra casting vote, there is stalemate; and if he does, as long as he is chairman, there may be partiality. I myself do not mind as long as he is partial to angling interests. However, I wonder whether it would not be better to have an impartial chairman appointed by the Secretary of State, who had neither angling nor netting interests. Perhaps the noble Lord, Lord Gray of Contin, can comment on this.

Lord Gray of Contin

My Lords, perhaps I may very briefly answer the noble Lady. I certainly should not be happy about the involvement of the Secretary of State in the appointment of the chairman of every district board. Indeed, I can think of many reasons why that would not be desirable. Of course, the points which the noble Lady has made are perfectly justified. There is always a difficulty where there are conflicting interests. However, I believe that the solution which we have spelled out in the Bill is the fairest we could have chosen. I certainly should be unhappy about the Secretary of State being directly involved in the appointment of a chairman.

On Question, amendment agreed to.

Clause 17 [Tenure of Office]:

Lord Gray of Contin moved Amendment No. 46: Page 16, line 26, leave out from beginning to ("the") in line 28.

The noble Lord said: My Lords, perhaps for the convenience of the House with this amendment I can speak also to Amendment No. 47.

Amendment No. 47: Page 16, line 32, at end insert ("; and at that meeting each member of the board shall resign.").

Although Clause 17 was agreed by the House at Committee, I have looked at it again and consider that it can be improved upon. The intention of subsection (1) is that before a board reaches the end of its three year life the clerk to the board should call an electoral meeting. At that meeting each member of the existing board will be required to resign and the procedure for election of a new board will operate thereafter. Amendments Nos. 46 and 47 are, I hope, a useful clarification—there are no subtleties so far as the policy is involved. I beg to move.

On Question, amendment agreed to.

Lord Gray of Contin moved Amendment No. 47: [Printed above.]

The noble Lord said: My Lords, I beg to move.

On Question, amendment agreed to.

Lord Gray of Contin moved Amendment No. 48: Page 16, line 40, leave out ("elected members") and insert ("hoard").

The noble Lord said: My Lords, for the convenience of the House, with this amendment I shall speak also to Amendment No. 49.

Amendment No. 49: Page 17, leave out lines 1 to 11 and insert— ("(5) Where a vacancy in their number occurs, the board shall, so far and so soon as is reasonably practicable, fill that vacancy by—

1. (a) the electing by the elected members from amongst themselves of a new chairman;
2. (b) the appointing by the elected members of a qualified proprietor in the district as a representative of qualified proprietors according to the rules in Schedule 2 to this Act regarding the balance between upper and lower proprietors; or
3. (c) the co-opting by the board of a representative of salmon anglers or of tenant netsmen in accordance with that Schedule").

The substitution of "board" for "elected members" in subsection (3) gives to the board, as a whole, the role of removing members who no longer satisfy the requirements of membership and do not resign voluntarily. This was previously reserved to the elected members. There is no reason why co-opted members should not participate here and to extend their powers in this way is consistent with the other approach I have already taken to the position of co-optees in other amendments before your Lordships' House today.

The amendments to subsection (5) retain the elected members' role in the filling of vacancies in the positions of chairman and elected members. Co-opted members are not given a role in the filling of these vacancies for the simple reason that they were not involved in the elections for the filling of those positions in the first place. On the other hand, there seems no reason why the board as a whole should not have a say in the filling of vacancies occurring among co-opted members and this is recognised by the amendment to subsection (5)(c).

One of our aims in this Bill has been to allow for greater democratisation in district board matters. These two minor but useful amendments represent further steps in this direction. I beg to move.

On Question, amendment agreed to.

The Deputy Speaker

My Lords, in calling Amendment No. 49, I must say that if it is agreed, I cannot call Amendments Nos. 50 and 51.

Lord Gray of Contin moved Amendment No. 49: [Printed earlier.]

The noble Lord said: My Lords, I beg to move.

Viscount Thurso

My Lords, I feel that I must speak to Amendments Nos. 50 and 51 and the other amendment which follows on them, Amendment No. 112.

Amendment No. 50: Page 17, line 4, leave out ("elected"). Amendment No. 51: Page 17, line 10, leave out ("co-opting") and insert ("appointing"). Amendment No. 112, Schedule 2: Page 33, line 22, at end insert— ("( ) The members of a district salmon fishery board shall elect from amongst their number a person to be chairman of the said board."). I think these amendments would have gone some way towards meeting the wishes of the noble Lady, Lady Saltoun of Abernethy. My experience of sitting on a board where divergent interests were represented was really with the Red Deer Commission. On the Red Deer Commission, one could hardly seek for more diverse opinion and interests. Represented were conservation, stalking interests, agricultural interests, hill farming interests, and so on. My experience of that body was that however diverse were the constituencies and the people who found themselves up for the board, once these people came on to the board they became aware of the task which lay before them and they conscientiously applied themselves to trying to obtain the best result which their board could obtain. I think that this is what will happen if district boards are well and democratically appointed.

Up to this point, one of the difficulties with district boards was that there was a built in chairmanship, a built in and perpetual chairmanship. I fear that in moving towards the new method of election, although we shall do away with one method of making the chairmanship perpetual, we shall substitute for it another method.

My amendments are really designed to try to produce a proper, democratic structure within the board. I am suggesting, by this series of amendments, that first of all the upper proprietors should be together and elect their representatives, then the lower proprietors should get together and elect their representatives. Then these representatives, which at that stage become equally balanced, meet and choose from among their number the one on whom the majority of them can rely for a fair-minded control of the board during the conduct of its business.

I do not believe they would fail to find some person like that from among their number. I am sure that they would. Of course, this would do away with the position which will obtain under the provisions of this Bill, which is that the party with the largest valuation will still have the largest number of votes and will therefore probably automatically have the choice of chairman. We move from a situation which is clearly all wrong, clearly undemocratic, to a situation which is partially wrong and partially undemocratic. I think that we should go the whole hog and go for something which is not partially wrong but is clearly democratic. That is why I have put forward this series of amendments.

6 p.m.

I think that the Government should consider this very carefully. I am sure that there will be occasions when there will be letting interests that will have the majority as a result of this method of appointing the chairman just as there will be occasions when the upper proprietors will have the majority. But it would be much better if, instead of making sure that one set of interests has a built-in majority, the people who are going to have to work on the board choose from among themselves the person whom they wished to lead them in what is obviously going to be their joint task, and upon whom they could all rely for fair-minded and efficient control of the board.

I think that it will be very sad if we let this go by default but if your Lordships approve Amendment No. 49 then that is what will happen. I feel that I must rely on something being done in another place to democratise the election of the chairman because I feel that there is still need for the chairman to be elected in a more balanced way than is provided for in this Bill.

On Question, amendment agreed to.

Following is the text of the Amendment (No. 49): Page 17, leave out lines 1 to 11 and insert— ("(5) Where a vacancy in their number occurs, the board shall, so far and so soon as is reasonably practicable, fill that vacancy by—

1. (a) The electing by the elected members from amongst themselves of a new chairman;
2. (b) The appointing by the elected members of a qualified proprietor in the district as a representative of qualified proprietors according to the rules in Schedule 2 to this Act regarding the balance between upper and lower proprietors; or
3. (c) The co-opting by the board of a representative of salmon anglers or of tenant netsmen in accordance with that Schedule").

Clause 19 [Additional powers in respect of licensing and regulation of salmon dealing]:

Lord Ross of Marnock moved Amendment No. 52: Page 17, line 24, after ("salmon") insert ("shall be").

The noble Lord said: My Lords, now we get away from the appointment of the district boards and we come to the one great new power that is supposed to help us with the poaching problem in Scotland. The first thing that I think I should point out is that this is very much a fall-back position. There are many people who would have preferred as much more effective a system of tagging of salmon. Here we have this system of additional powers in respect of licensing and regulation of salmon dealing.

The one thing that I must first point out is the purpose of my amendment. Page 17, line 24, presently reads: an order as respects dealing in salmon made under that section",— and that is Section 44 of the Civic Government (Scotland) Act— may". When you go to the Civic Government (Scotland) Act you discover that it is not mandatory; that it "may" be introduced. Here again, we have got the word "may", which refers not to the introduction of the order but to what is in the order. I thought that we really ought to make it mandatory and ensure that we have got it. That is the purpose of my amendment. It will then read: "an order as respects dealing in salmon shall be made under that section". The word "may" remains, but the word "and" comes before it: "and it may". The point is that the introduction of an order has to be mandatory. I do not interfere with what should be actually in the order. It is a fairly simple amendment, I think, but it is one which is desirable because of all the hedging around with "mays" that we have already got.

While I am on my feet, I should like to point out that we did not discuss this clause in Committee. Indeed, I was very angry about it, for I think that we should have had a "Clause stand part" discussion that was worthy of the new power that was taken.

Section 44 of the Civil Government (Scotland) Act is rather a curious section. That is the only reference we have got. Clause 19 begins: Without prejudice to the generality of Section 44 of the Civic Government (Scotland) Act …". something shall be done. But the first thing in these additional activities that is introduced into the licensing systems for the local licensing authorities in Scotland is the fact that Section 44 divides the thing into two: (a) or (b). I do not know whether the order is to be introduced under (a) or under (b). If it is under (a) then, first of all, there has got to be a resolution by the local authority that they want to introduce this.

So there is another stumbling block to the scheme coming in. If it is under (b) as an activity for which a licence shall be required and which shall be regulated in accordance with the provisions specified in the order", that is straightforward. The Government can go straight to it. But if it is the other one, then I do not think that many of your 'Lordships would accept it as desirable that there should be another stumbling block to the introduction of this scheme of regulating the dealing in salmon by means of licensing.

So could we have that? Is it one of the optional or one of the new specific activities that require licensing? I think that that is important to know. I will raise further points later on in respect of the curiosities of Section 44. I beg to move.

Lord Gray of Contin

My Lords, I gather that it is for the convenience of the House that I deal with Amendments Nos. 52, 53, 54, 55 and 57 together.

Lord Ross of Marnock

My Lords, what I have got says only Amendment No. 52, 53 and 54 separately. I thought it would be for the convenience of the House to take Amendments Nos. 52 and 53 together because they make sense. The other points are entirely different.

Amendment No. 53: Clause 19, page 17, line 24, at end insert ("and")

Lord Gray of Contin

My Lords, I am perfectly prepared to go along with that. The noble Lord did not say that he was taking No. 53 along with No. 52 when he started. I thought that we were going by the original list, but I am perfectly happy to deal with Nos. 52 and 53.

Amendments Nos. 52 and 53 seek to impose on the Secretary of State a duty to introduce a dealer licensing scheme by order under the Civic Government Act. The effect of this amendment is presentational only. In practice, it imposes no stricter requirement on the Secretary of State than the existing wording. It would be equally possible to challenge the negligent non-exercise of the discretionary power existing in Clause 19 as it would be to challenge the non-performance of the statutory duty created if these amendments are accepted.

Nor can I support the amendments on technical grounds. I should point out that a further effect of the substitution of a duty for a power in this clause is to disapply the provisions of the Interpretation Act 1978 which allows powers to make orders to include by implication powers to amend, revoke or re-enact those orders. Where a duty to make an order is imposed there is no implied extension of this kind and further specific provisions would be required. I can, however, assure noble Lords that it is my intention to introduce a dealer licensing scheme following discussions with interested organisations. It would be possible to introduce the scheme both under the powers requiring further resolution by the local authority and under the powers which do not require such resolution. It is intended, however, to introduce this scheme under the latter power. With that explanation, I wonder whether the noble Lord. Lord Ross of Marnock, would be prepared to withdraw the amendment.

Lord Ross of Marnock

My Lords, I am not prepared to argue at this stage of the game about what is desirable or not because we could tie one another in knots. One has only to read Section 44 to realise that. I have it here. What we want is the pledge that it will be done. We accept that. Then, of course, it having been done, we shall see it, because—although it does not say it here—in fact there is a reference to how the order is to proceed through Parliament in respect of anything done in Clause 19 (3).

We have to go to the Civic Government (Scotland) Act, to Section 44 (3) to get to the real nub of the thing. I think this is relevant to what we may be discussing later: No order shall be made under this section unless a draft of it has been laid before and approved by a resolution of each House of Parliament". So we are going to have it. When we have it, then we shall have an opportunity of debating it. I think that is a reasonably good justification for my withdrawing the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 53 not moved.]

Lord Ross of Marnock moved Amendment No. 54: Page 18, line 5, leave out from ("exceptions") to ("as") in line 8.

The noble Lord said: My Lords, this is an entirely different point. It is just one for clarification. I propose to move to leave out certain words in paragraph (d) after "… subject to such exceptions"; that is, the words: in respect of acts or omissions by a person lawfully in possession of salmon lawfully taken by him or, in the case of salmon reared in a fish farm, reared by him there". Is it necessary to have these words? Why not just say "such exceptions as may be specified in the order"? That does not limit the power of the Secretary of State. I beg to move.

Lord Gray of Contin

My Lords, I do not see that removing the words which the noble Lords wish to remove will achieve very much, but neither do I see that their retention is necessary. I am therefore disposed to accept the amendment on the basis that those such as fish farmers, who may be excepted specifically in terms of the clause, may still be excepted following the amendment.

Lord Ross of Marnock

My Lords. I am grateful. This saves four lines of drafting. In terms of the thousands of copies of this Bill which have to be reprinted later on, we have saved four lines. The Government have done a good job now.

On Question, amendment agreed to.

6.15 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 55: Page 18, line 15, leave out ("water bailiffs and").

The noble Lord said: My Lords. I make no apologies for returning to this subject again. At the Committee stage perhaps I was rather clumsy in the way I put down an amendment, and I hope this clarifies it sufficiently to enable the Minister to appreciate what I am trying to get at.

The point of the amendment is that, as I believe, the powers being given to water bailiffs by the nature of their appointment are far too great. The whole of this Clause 19 is based on the Civic Government (Scotland) Act 1982. I took some time to look through the Civic Government (Scotland) Act which gives powers to local authorities, let us remember in most cases elected members, frequently decided at open meetings. Sometimes the duty is imposed on them under the Civic Government (Scotland) Act actually to advertise the names of people who are going to be given licences, and sometimes they must consult with the local police authorities. I quite readily accept that to ask the Secretary of State to do it is too onerous a task considering the number of water bailiffs, but surely at least there could be something more than merely a clerk to the board or the board itself.

To get back to the Civic Government Act, the types of people who need a licence and need to be referred, as I have said, either to a local authority committee or a chief constable, or to advertising, are those dealing in scrap metal, itinerant metal dealers, secondhand goods dealers, street traders. Then there are public entertainment licences, late hours licences. A window cleaner requires a special licence, with all the procedure I have described; a market operator, no matter how big; someone hiring out a boat must get authority and a licence. Even in our present Bill, to deal in salmon you must have a licence from the licensing authority. But to be able to break into someone's house, to break open their car, to make all sorts of serious charges against people, to detain them if necessary, does not need any powers at all except the appointment by the clerk to the board of the area; or perhaps he would need the authority of the salmon board. Nevertheless, there is no statutory control, there is no elective control, there is no wider control on who shall be appointed.

I believe that the people in Scotland do not really yet appreciate just how much power is given to water bailiffs under this Act and, I agree, under earlier Acts, but this is the first real opportunity we have had to raise this subject.

At the Committee stage I gave the Minister an example—and I suggested that as far as I knew there could be many other examples—of totally unsuitable people appointed to act as water bailiffs. I wonder whether the Minister has looked at that particular case I suggested to him; if he has found any others; and if, on reflection, he does not feel that it is far too important a duty to impose on any individual without at least consulting either the representative local authority or the chief constable for the area, and whether he would not seriously consider this amendment. He may have different wording, but I would hope he would consider it with great seriousness.

Lord Burton

My Lords, I hope my noble friend will resist this amendment. I quite appreciate the noble Lord, Lord Carmichael's concern about this, but there are also difficulties. The police are not infallible. Only last week we had the godfather of all the local poachers "in the bag", but one of the policemen started blethering on the wireless and the trap was sprung. It is important that the bailiffs do have the powers, that they know what they are about, and they have an opportunity of catching these people. To remove any of their powers would be the greatest mistake. I know there was a lot of fuss made about one or two appointments that were made in the Western Isles, and I know there have been troubles there, but overall I do not think this applies. It is a case very often of the water bailiffs being a lot of idle ones, rather than being over zealous, I hope my noble friend will resist this amendment.

The Marquess of Lansdowne

My Lords, I would just like to say a word about this. The noble Lord, Lord Carmichael, raised this question before, and I fully appreciate what he is driving at. The work of bailiffs is important and responsible, but the members of the board who appoint the bailiffs are also responsible people. The bailiffs are not appointed by the clerk, though the clerk is a responsible person as well I can assure the noble Lords that great pains are taken in the appointment of bailiffs. Of course mistakes can be made, and sometimes they are made. A man who is not satisfactory could be appointed. But I think it is necessary—and I am sure the noble Lord, Lord Carmichael, will appreciate this—not quite so much in my own district perhaps, because we do not always have to operate in remote areas, but in a remote area if the bailiff has to get a search warrant—perhaps I have misunderstood, but the way the Bill is drafted it gives the bailiff the power of entry. That is an important power because if he does not have the power of entry he has to refer to a magistrate or someone else. I may be wrong—

Lord Carmichael of Kelvingrove

My Lords, I accept that there are special circumstances, particularly in remote areas, where it would be very difficult. I am merely concerned that the individual who is appointed should be someone who is approved by someone other than merely the board. To be giving these powers to someone who is appointed by an unrepresentative board—every other example I gave involved at least the local authority or the Secretary of State: even to be a window-cleaner you must get the local authority's approval and you must probably have your name passed over the chief constable's desk in order to get the approval. All I am suggesting is that that should be the minimum. After they are appointed and approved, they have the same powers as the noble Lord is suggesting are vital for a water bailiff.

Lord Gray of Contin

My Lords, I have listened very carefully to what the noble Lord, Lord Carmichael, has said. I know he feels very strongly about this matter; but with regard to the powers of entry and search for water bailiffs in connection with the dealer licensing scheme, I would make the point to him that the power is purely permissive and will, like all other such powers, be subject to discussion with interested organisations, including CSLA. The order which will introduce the dealer licensing scheme will, in terms of the civic government Act, be subject to the affirmative resolution procedure. That should be sufficient safeguard for the proper consideration of the rights of those who are likely to be affected by powers of entry and search.

The noble Lord asked whether I knew of the particular instance he had raised earlier. I know of that particular situation and I know of no other similar to it. Therefore I feel that the Bill takes account of the concern which the noble Lord has; and the fact that this is subject to discussion with all the interested organisations, including CSLA—and I know he is particularly interested in local authorities—goes a great deal of the way towards what he seeks to achieve. I am afraid I cannot accept his amendment and I hope that he might consider withdrawing it.

Lord Ross of Marnock

My Lords, I do not think it is quite as simple as all that. These additional activities are carried on under Section 44 of the civic government Act and of course that takes in the other aspects of licensing. Under licensing there—and this will now be included—powers of entry and search are given to a constable and to an authorised person. The authorised person is the person authorised by the local licensing authority. I presume that will pertain when we proceed to license the dealing in salmon by the local authority.

When we come to paragraph (f), it says: "provide as to the exercise of powers of entry and search by water bailiffs and persons appointed by the Secretary of State under section 10(5)". I hope that means that the existing powers under Section 10(5) of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 are the powers that will apply in respect of dealing in salmon. There has been a lot of loose talking and a loose acceptance that somehow or other there is a new power. As I read it, there is no new power and I think the noble Lord, Lord Burton, sees that there is no new power because the power to enter land is very carefully laid down in Section 10: 'land' includes land covered by water, but does not include a dwelling-house or any yard, garden, outhouse and pertinants belonging thereto or … enjoyed therein. And "land" is land within his district; when it comes to anything outside that you have to go to Section 11, which is not here mentioned. Even there, the powers of search can be exercised only by warrant of the sherriff or a JP who is satisfied by information on oath or suspicion of the requirement to search the premises or vehicle. Even there, the water bailiff can search a vehicle only on private land or on any land within his own district or adjoining it. So there are very considerable limitations, as I read it, if it is limited purely to Section 10. The power certainly is there for a constable.

My Lords, let me get it clear, because at the moment the powers for the water bailiff or constable under Section 10 are to— examine any dam, fixed engine or obstruction, or any lade on any land within his district and stop and search any boat … and examine nets … basket, pocket, … receptacle … [and] seize any fish", and so on. But the limitations in respect of the land are on any private land.

What I want to have from the Minister is that there is no extension of the powers under Section 10 that have been given. Indeed, all it says in what is proposed is: provide as to the exercise of powers"— that is, as to how they are to be exercised; not that they are new powers. They already have them and this is concerned with how they are to be exercised in respect of salmon dealing. It is a very important point and it is an important point which has been raised by my noble friend. You cannot laugh away the fact that here we have the suggestion by the noble Marquess, Lord Lansdowne, that all these things are examined carefully and that nobody is appointed indiscriminately without examination. Here we have the actual fact. It probably is a joke but, just to try it out, somebody put forward the name of a murderer who is presently in prison and it was accepted without question. That is incredible and it certainly gives the lie to the fact that there is an examination of the worth of the persons who are put forward.

I do not know whether my noble friend is satisfied with what has been given to him so far, but I think it merits some kind of explanation. I should be very glad if the Minister would clear up the point about the actual powers that the water bailiffs and persons appointed by the Secretary of State are going to have in respect of dealing in salmon.

Lord Gray of Contin

My Lords, by leave of the House perhaps I may answer the noble Lord, Lord Ross of Marnock, on two points which he raised. First, on the existing powers in the Civic Government Act which he spoke about, constables and local authority officers will have powers under the Act; the Bill allows additional powers to be given to bailiffs if it is decided to do so following consultation, but only after consultation.

The noble Lord asked me about the 1951 Act and its relevance. The 1951 Act powers apply only for the purposes of that Act, they will not be used in relation to a dealer-licensing scheme.

Lord Carmichael of Kelvingrove

My Lords, I think that when we read Hansard we shall find that the Minister has not fully answered the question put by my noble friend Lord Ross of Marnock. On my own amendment, again I find it very confusing that the Minister does not appear to have grasped the point I was making. I was not concerned at that stage in this particular amendment with the powers of the bailiffs and their ability to search and to do all these things. I was concerned about the type of person appointed and the fact that I had thought it was quite inadequate that only the boards should appoint people. Once they are appointed, the powers stay as they are in the Act. It was merely the one point that there should be consultation with the chief constable or the Secretary of State or someone before any individual should be given these great powers.

This question will be raised here repeatedly and also frequently in another place, but, having heard the Minister again and he having heard me again, perhaps he will appreciate better what I am trying to get at. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.30 p.m.

The Marquess of Lansdowne moved Amendment No. 56:

Page 18 line 17, at end insert— ("(g) provide that it shall be an offence for any person to be found in possession of salmon without being able to produce sufficient authority for such possession".).

The noble Marquess said: My Lords, I think this amendment is self-explanatory and there is no need for me to speak to it. My Lords, I beg to move.

Lord Grimond

My Lords, before we depart from this amendment which has been so eloquently moved, may I just ask one or two questions of the Government? I have no idea whether the Government have been totally persuaded by the speech of the noble Marquess to accept it, but at Committee stage and on Clause 22 I raised some questions relating to the legal provisions of this Bill. I should be most grateful if the Government, whatever they do to this amendment, could answer one or two rather elementary questions which are in my mind.

Your Lordships will be well aware that salmon fishing as a subject is viewed with suspicion in some quarters in Scotland. Salmon are regarded as a laird's perquisite and Bills for the protection of salmon are sometimes thought to be for the protection of the privileged classes. If your Lordships have any doubt about that, you should read an article which appeared in the Glasgow Herald quite recently in relation to this Bill.

I do not share that view at all, I think this Bill is protecting a very important Scottish national interest, it is protecting a commercial interest, a recreational interest and indeed the conservation of one of Scotland's great natural resources. Nevertheless, I think we should take care that we do not appear to be putting those who transgress in any more serious position in regard to the law than is strictly necessary. I think we should be careful not to appear to be departing any further than necessary from established principles of British law. One of these principles is that it is for the prosecution to prove its case and prove the accused guilty. It is not for him to prove his innocence. There are one or two places in this Bill, and this amendment would be one of them if we accepted it, where we might well depart from that principle.

The other point I should like to raise is this. Can the Minister say whether he thinks that the existing law regarding reset and similar laws are really incapable of safeguarding the interests of those who wish to preserve the salmon in Scotland? Does it need the rather drastic amendments to which it is suggested it should be subject? If the Minister is of the opinion that the existing law is inadequate, can he tell us in regard to what other goods there are precedents for this type of amendment and for other amendments suggested which really shift the onus from the prosecution to the accused? I think it would be helpful in getting this Bill into its proper perspective, so far as the public in Scotland are concerned, if we could be reassured that there are really sound grounds for departing from well-established principles of law in regard to salmon. Can we be told what are the precedents in regard to other goods which may be illegally acquired?

Perhaps I may finish by apologising to the Government for being unable to attend a meeting on the subject of licensing to which I was very courteously asked yesterday. Unfortunately, a previous meeting went on too long.

Viscount Trenchard

My Lords, I understand that it would be convenient to my noble friend on the Front Bench if we spoke to Amendments Nos. 63, 70 and 71 at the same time as Amendment No. 56 and the two other amendments of my noble friend Lord Lansdowne, Amendments Nos. 64 and 65.

Amendment No. 63: Clause 21, page 20, line 7, leave out from beginning to end of line 10 and insert— ("7A.—(1) The burden of proving that any salmon bought, sold, exposed for sale or in the possession of any person for sale has been obtained from a person authorised to take salmon or sell them shall lie on the person buying, selling or exposing it for sale or having it in his possession for sale. Such person shall be guilty of an offence if he cannot so prove, unless he can show reasonable grounds for believing that the said salmon had been legally taken or acquired by the person selling to him. If found guilty of an offence under this section a person shall be liable—"). Amendment No. 64: Page 20, line 7, leave out ("and believes or has") and insert ("in circumstances which at the time of his coming into possession afford"). Amendment No. 65: Page 20, line 7, at end insert ("at the time of coming into possession"). Amendment No. 70: Page 20, line 8, leave out ("has") and insert ("could reasonably be expected to have had"). Amendment No. 71: Page 20, line 16, at end insert— ("( ) For the purposes of subsection (1) above, failure to possess or supply specific information as to where and from whom the salmon were received shall be regarded as constituting reasonable grounds for suspicion."). In a nutshell, what we are speaking to at this stage is the question of the onus of proof if someone is found with salmon in Scotland. Clause 21(1), (7A)(1) mentions, A person who is in possession of salmon and believes or has reasonable grounds for suspecting that a relevant offence has … been committed". As the noble and learned Lord, Lord Denning, said at the Committee stage, this brings in the question of proving what was in the possible offender's mind.

My noble friend the Lord Advocate has been extremely helpful since the Committee stage, when he spoke at some length in reply to the noble and learned Lord, Lord Denning, on this subject. I have had the benefit of attending a meeting and listening to a further long argument between the noble and learned Lord, Lord Denning, and my noble and learned friend the Lord Advocate. That alone makes me believe that magistrates may be perplexed by this wording and by the problem of proving that somebody was in possession of salmon—and one salmon can look very much like another: there is no identifying mark on it—and the policeman will be even more perplexed as to whether he dare arrest a suspect or seize a salmon that he finds in a van for fear of wrongful arrest.

A great deal was said at Committee stage about the liberty of the citizen in this country and the fact that possession on its own cannot be an offence. Although in Amendment No. 63 I follow a proposal which perhaps gets quite close to possession being an offence—subject, of course, always to the chap proving that he came by the salmon legally—nevertheless I think that we shall probably not want to press on the Government that full clause which is based on the Salmon and Freshwater Fisheries Act 1975. I believe that something more on the lines of the amendments that I have down, Amendments Nos. 70 and 71 and, later, on the lines for England and Wales which the noble Lord, Lord Moran, and the noble and learned Lord, Lord Denning, have down is more what we are trying to press on the Government.

We accept and understand the argument of the liberty of the citizen. But I must ask: what citizens are we talking about? If the Government have some hope that they may meet us to a degree on licensing not only in Scotland but in England, which we have not yet discussed, then there will be only certain people who are legally entitled to have salmon. I suggest that those who are legally entitled to take or deal in salmon would be the first to agree that their liberty should be impinged upon to a small degree, by having some requirement to prove that the salmon they have are legally held or have been legally caught.

I have done more reading since Committee stage. Not only do we have the section that I quoted many times at Committee stage in the Salmon and Freshwater Fisheries (Protection) (Scotland) Act, but we have in the game laws of this country—which I am not pressing the Government to follow wholesale—powers to search and seize game found, if the enforcement officer who apprehends a man has reasonable grounds to suspect, and not if the man he apprehends has reasonable grounds to suspect. He has powers to demand the production of a game licence.

Throughout our lives, there are other examples of this. The more obvious are in regard to dangerous things like firearms and motor-cars, for which licences must be produced on demand. Even a dog licence must be produced on demand to show that you own your dog. You are allowed to possess only two gallons of petrol. There are masses of exceptions to the general Theft Act provisions about the chattels of the average person. The other main difference, as I have said, is that one salmon is very like another. Perhaps the best example is the Customs and Excise. Because of the problem of stopping smuggling, you have to prove when you return from abroad that what is in your case has belonged to you for some while and has not just been bought.

I ask again: the liberty of which citizen? Only certain people have legal authority at any time to take salmon by net or by rod and line and I trust that only certain people will have reason to deal in them. Therefore, I do not believe that Amendments Nos. 70 and 71, if I may now speak to them, put any undue onus on the individual citizen which every citizen who has a right to a salmon would not gladly accept.

Amendment No. 70 suggests that the word "has" in Section 7A(1) of Clause 21 should be deleted and that the words could reasonably be expected to have had should be inserted. This turns the situation in the mind of the officer considering an apprehension from "Did the chap think that these salmon were poached?" to "In my opinion, could he have had reasonable grounds?" I then go on in Amendment No. 71 to say: For the purposes of subsection (1) above, failure to possess or supply specific information as to where and from whom the salmon were received shall be regarded as constituting reasonable grounds for suspicion". I am quite sure that the entire community which at times has a right to handle salmon would have no objection whatever to that so-called impingement.

Therefore, I suggest that we should not lean too far over backwards, in our British way, towards being completely and absolutely fair to a deaf and dumb driver. If he is a deaf and dumb driver, and he is taken down to the station because he cannot explain where he got the salmon from, he can write down who sent him and can answer the question. A telephone call can be put through. Our police force are not tyrants. Before the odd case ever got to court, they would find out whether the driver of a van was totally innocent and was ignorant about the salmon. It is hard to conceive of such a case, but such a person would be off the hook very quickly. But the man who sent him would be on the hook.

6.45 p.m.

Lord Denning

My Lords, if we are discussing the onus of proof generally, perhaps I may try to explain the position in Scotland and in England. The poaching and handling of salmon stand on a very special footing. Up till now, the law in Scotland and in England has aimed at the poacher himself. We have to have a new offence in this Bill of handling, receiving, carrying and dealing in salmon which have been illegally taken. In Scotland, there has been Section 7 of the 1951 Act which has been considered by the courts of Scotland and of England and let me tell your Lordships what the result is. The operative words in Section 7 were that you had to look at the circumstances which afford reasonable ground for suspecting that someone has obtained possession unlawfully.

I will tell your Lordships about two cases in 1963. The one in the Court of Session was, in a way, quite simple. Twenty salmon were found in a butcher's shop in the high street at Canons Wood. They showed traces of having been taken or destroyed by the use of poison. The shopkeeper was charged with unlawful possession under Section 7 of the 1951 Act. The sheriff substitute dismissed the charge, because there was no evidence that the man had taken or poisoned the salmon himself, which was true. That case went to the Court of Session and Lord Clyde held that that was the wrong interpretation of the statute, which was a very special statute. I remember Lord Clyde; I stayed with him and he was a very good judge. It was the case of Aitchison v. Bartlett in 1963, Scots Law Times, page 65. He said: These illegal operations against salmon are usually conducted in remote places in the hours of darkness when no outside person is present to witness the commission of an offence and it is, consequently, impracticable to produce evidence of eye-witnesses to establish either the precise time or the precise place when the offence was committed. It is to meet this defect that Section 7 was enacted. It is a most important addition to our statute book". Then he said what the defence can do: After hearing the charge, the accused has the opportunity of establishing that suspicious circumstances have an innocent explanation". This runs through the whole of the judgment. Let him give an explanation if he has one; and if he has not, he can be convicted. The Lord President went on: The charge proceeds on the suspicious circumstances. The conviction follows if the suspicion is not explained away but is confirmed by the evidence". That is the Scottish case.

In the same year the English court had a case under the Scottish Act because it concerned that little sector of Northumberland where the Tweed runs towards tributaries. The case was dealt with by the magistrates in England and the judges of England had to construe that same section. In this case, a motor van was parked near Canties Bridge, near Berwick-upon-Tweed. I do not know it myself, but there it was. The van was locked up but inside the bailiffs found a wet sack. Inside the wet sack was a hand net fully mounted with gear for taking salmon; all the things were there. There were no fish in the net. The men said that they had found the net 300 yards upstream and had just brought it into land. They said that they had not taken anything or dealt with it wrongly and were going to take it away.

They were charged under Section 7 in the English courts, as I say, before the English magistrates in Northumberland. I am afraid that the magistrates found there was no reasonable grounds for suspecting that the defendants had the net with the intention of netting salmon. The charge against them was dismissed. But it went up to the Divisional Court before the Lord Chief Justice, Lord Parker. He cited Lord Clyde's judgment in the Court of Session and said: Lord Clyde was not dealing with this as a matter of shifting the onus of proof but he is saying that if what are reasonable supspicions are not explained away and are indeed confirmed by the evidence, a conviction will follow". As I read the interpretation which the courts of Scotland and of England have given, if there are circumstances which reasonably suggest that the salmon has been unlawfully taken or unlawfully handled, whatever it may be, when you find the man it is up to him to give an explanation. He may explain the situation if he can. If he cannot explain it away innocently, a conviction will follow. Without going into onus of proof, that, as I understand it, is the result of those English and Scottish cases.

The problem arises: does that principle apply in regard to the new clauses which we now have in the Bill? As I read the first one, I do not think it does. I think it is necessary to bring in the words which my noble friend Lord Trenchard has put in. At the moment, in Section 7A, on page 20 of the Bill, we have the words: A person who is in possession of salmon and believes or has reasonable grounds for suspecting …". That is Section 7A because it has to follow Section 7 of the 1951 Act, so it ought to be interpreted according to the same principles.

The amendment of the noble Viscount, Lord Trenchard, puts the position exactly in accord with the decisions of the Court of Session—if there are circumstances which reasonably suggest that someone has taken it unlawfully, or is handling it unlawfully, it is up to him to explain it. If he does not explain it, he can be convicted. It is not a question of the onus of proof but of the way the statute is interpreted so as to meet this great—almost evil—difficulty which the prosecution are in when proving illegality completely. If reason suggests that the salmon has been taken unlawfully, let the man give his explanation: if he gives one, all well and good; if he cannot, he can be convicted.

I suggest that the amendments proposed by my noble friend Lord Trenchard carry out that interpretation and they should be accepted so as to make the law consistent all the way through. I shall say a little more on the English clause later on but that needs consideration by itself. For the moment, I have said what I would wish to say on the onus of proof.

The Earl of Onslow

My Lords, before the noble and learned Lord sits down, perhaps I may ask him a question. Is he saying that the clause as drafted by the Government will not work as the Government want it to, but that if the amendments of my noble friend Lord Trenchard are attached to it it will work as the Government want it to? That is the part which in all honesty I do not follow.

Lord Home of the Hirsel

My Lords, these matters which involve the possible interpretation of words in the statute by the court make it very difficult for the non-lawyer. The noble and learned Lord, Lord Denning, is clearly worried at the prospect that the wording we are talking about now, as applied to Scotland, would involve proving the state of a man's mind. That is a very difficult, if not impossible, thing to do. The noble and learned Lord the Lord Advocate, unless I have him wrong, suggests that the words of the Bill are adequate because it is possible to infer the state of a man's mind from, first, the facts as they present themselves, for example, to a bailiff; and secondly, from the man's attitude when he was questioned—in other words, if he was asked the question, "Where did you obtain the fish?", and he refused to answer, those would be the suspicious circumstances justifying the bringing of a case.

The noble and learned Lord, Lord Denning, has told us about the prosecution which took place in the Court of Session under the 1951 Act. The noble and learned Lord the Lord Advocate would argue that that is a precedent which the courts are likely to follow in the future. I ask myself whether it is enough to rely on one precedent. Is it not very possible that the obscurity of the words could deter water bailiffs from acting against a suspected poacher? Without any derogation of my two noble friends on the Front Bench, I wish that the noble and learned Lord the Lord Advocate was here. I should like to have heard him on this case. I should like in particular to have heard the contest between the noble and learned Lord, Lord Denning, and the noble and learned Lord the Lord Advocate.

I suppose it would not be possible to postpone these amendments until Third Reading so that the noble and learned Lord the Lord Advocate could be here. I do not know whether the Government would feel that that is possible; but it would be a way. It would certainly help me. I could not vote for these amendments at the moment, although I am attracted by them. I should like to vote for them in a way, but I find it extremely difficult to do so without having heard the noble and learned Lord the Lord Advocate himself. That is my dilemma. I do not know how it affects others of your Lordships, but it is an awkward situation to be in.

Lord Burton

My Lords, perhaps we may return to Amendment No. 56 of my noble kinsman Lord Lansdowne. I am afraid that I cannot support him on this one. I should like to suggest that if he was in a car on his way home from fishing and had the misfortune to have a car accident, and a policeman came along and found a salmon in his car, the policeman would say, "Oh, my Lord, you have a salmon in here. Can you show sufficient authority for having this in your possession?" It is most unlikely that he would have any written authority with him, and so the officer might say, "My Lord, I am sorry but you have created an offence and I shall have to take you in". I should not like to see that happen, and so I cannot support his amendment.

7 p.m.

Lord Gray of Contin

My Lords, I also have sympathy with my noble friend Lord Home. On the other hand, I am bound to say that my noble and learned friend the Lord Advocate went into considerable detail at Committee stage in order to try to persuade those of your Lordships who needed persuading of the merit of the wording in the Bill. In addition, I understand that he went to a considerable amount of trouble to meet outside this Chamber certain noble Lords who still held reservations about the point we are now debating. Again, I understand that he failed to persuade those noble Lords of the merit of the wording in the Bill—although I believe he felt that he had made progress.

I am concerned only with the Scottish aspect of this matter. I listened very carefully, as I always do, to everything that was said by the noble and learned Lord. Lord Denning. I was able straightaway to fix upon a point of common interest, when he referred to Mr. Bartlett. I take great pleasure in telling the noble and learned Lord that Mr. Bartlett is a native of Contin. We therefore have something in common. Nevertheless, I would need to be much more persuasive than that to convince the noble and learned Lord of the merits of the existing wording of the Bill.

My noble friend Lord Lansdowne either felt so confident about the wording of his amendment, or presumed that so many others would participate in the debate that he did not wish to waste the time of the House, that he believed his amendment spoke for itself. Indeed, to a great extent it does so. It seems to me that his amendment is an attempt to allow the creation of an offence of unlawful possession of salmon, where the onus of proof on the accused would be much more severe than has been provided for in Clause 21.

I appreciate that the offence would apply only to a situation where a dealer licensing scheme is in place. Even so, I think that it would not be appropriate. There are many circumstances in which a person may be in possession of salmon that has not passed through a licensed dealer—for example, an angler, netsman, salmon farmer or any person given a salmon as a present, etc. And, with regard to those salmon that had passed through a dealer, it would require those buying from dealers to retain receipts or other proof of purchase. That is not a reasonable burden to place on the general public. My noble and learned friend elaborated upon that point on the occasions to which I earlier referred. It is especially unreasonable in that that burden could apply to parts of a salmon as well to the whole fish.

I hope it will be accepted that Clause 21 is the proper place to deal with the unlawful possession offence. While I can understand why my noble friend Lord Lansdowne has moved his amendment to the dealer licensing clause, I cannot accept it.

We are dealing here with a number of amendments. Amendment No. 70, in the name of my noble friend Lord Trenchard, has a certain merit to it. I fully appreciate the intention of that amendment and can reassure him that the wording of Clause 21 as it stands at present will allow a court to convict in the circumstances where it is satisfied that the accused could be expected to have had reasonable grounds for suspicion. The existing clause is, as I have said, designed to allow conviction on an objective test, while retaining the need to relate the suspicion to the individual accused. I hope therefore that my noble friend will be prepared to withdraw Amendment No. 70.

His second amendment seeks to constrain the court in its interpretation of "reasonable grounds for suspicion". It requires the court to be satisfied that an accused has reasonable grounds for suspicion if he does not possess or supply information as to the origin of the salmon. It is not clear from the amendment whether the court could satisfy itself as to reasonable grounds in any other way. It would be inappropriate to fetter the discretion of the court in that manner and could at the end of the day be more restrictive than I imagine my noble friend intends.

It would also effectively amount to a requirement to keep records of all salmon; that would apply generally to every person in possession of salmon. While that might be reasonable in the context of a dealer licensing scheme, it certainly would not be appropriate to impose it generally. For that reason, I cannot accept Amendment No. 71 either.

My noble friend and others who have joined in the discussion have expressed serious doubts about the likelihood of successful convictions for the offence under Clause 21 of the Bill. Indeed, we dealt with that question in some depth at an earlier stage. The alterna-tive they propose would place the burden of proving innocence squarely on the accused, although it would offer him alternative ways of demonstrating his innocence. I must resist that amendment since in principle I cannot accept that it is right to introduce a direct reversal of the burden of proof in such circumstances.

I understand that since the Committee stage my noble and learned friend the Lord Advocate and my noble friend Lord Belstead have both been involved in the discussions to which I referred earlier on this and other matters. I am sorry that, even after those discussions, the effectiveness of Clause 21 is still so much in doubt. I particularly say to the noble and learned Lord, Lord Denning, that I can assure him that the wording of Clause 21 was not something hastily cobbled together. In Scotland, this matter has been considered for years. My noble and learned friend the Lord Advocate himself took a leading part in the consideration given to the appropriate wording.

We in Scotland believe that Clause 21 will be an effective weapon against both the poacher and the receiver. It places the minimum demands on the prosecutor consistent with the need to avoid the possibility of convicting the innocent. Where a prosecutor can show that the accused ought to have suspected that salmon in his possession were taken, killed or landed illegally, in order to avoid conviction the accused must prove that the salmon were not so taken. The burden of proving that defence is on the accused. It is not appropriate or necessary to go any further.

I fully accept that I am not able perhaps to be as persuasive or to answer so effectively as my noble and learned friend the questions your Lordships may have on this highly technical and detailed matter. However, noble Lords have already received the explanation of my noble and learned friend the Lord Advocate. Noble Lords have had meetings with him, when he has most forcefully gone into the problems in great detail. As far as the law in Scotland and the situation there is concerned, we believe that we have got it just about right, and as near to being absolutely right as is humanly possible.

I accept fully what has been said by my noble friend Lord Home: there is a possibility that the amendments might be withdrawn and that we may deal with them in due course when my noble and learned friend the Lord Advocate is available. That is the pleasure of those who have tabled the amendments. I hope, if they withdraw the amendments tonight, that they will be gone for good and that we will not see them again. But if they decide not to withdraw the amendments, then I am perfectly happy for my noble friends to resist them, if necessary in the Lobby.

Viscount Trenchard

My Lords, I speak with the leave of the House. I do not know whether we are still on Amendment No. 56 or whether we can come back to it, whichever is to the convenience of the House. However, I intend to move Amendments Nos. 70 and 71 unless my noble friend can go a little further in reply to the very fair question put by my noble friend Lord Home.

I have three sets of legal opinions apart from those mentioned in this House. My noble and learned friend the Lord Advocate promised, after the meeting which was referred to, that he would think about the problem again. I can find no evidence that he has. Therefore, I think the very minimum would be a request to support the suggestion of my noble friend Lord Home that time be allowed, and not that we be threatened by my noble friend who says: "Do not bring them back ever again, dear noble friends". We should be allowed a fair wind, and perhaps by then I will have another three legal opinions and have time to tell your Lordships about all six legal opinions.

The only other question I leave in your Lordships' minds is: who could object to these restrictions on the individual citizen? My noble friend Lord Burton made an amusing jibe concerning my noble friend Lord Lansdowne and a salmon in the boot. It is possible that in the opinion of my noble friend Lord Lansdowne he might have to go down to the police station, although I do not think so from the wording. He certainly would not have to go there under my wording.

I am suggesting only that the chap has an obligation to say where he got the salmon from. It is all very well to talk about conviction in court at a later stage, but the wretched constable has to decide whether to act against someone who is doing the skilful thing and saying nothing. The constable must feel confident that he will not be charged with wrongful arrest.

Therefore, unless my noble friend can be a little more co-operative in giving way to the request of my noble friend Lord Home that we be allowed to discuss this matter fully and without pressure at Third Reading, I shall feel bound to move Amendments Nos. 70 and 71 when we come to them.

Lord Home of the Hirsel

My Lords, I can only say a few words by leave of the House because we may make only one speech on each amendment. I listened to my noble friend Lord Gray, but I was not one of those who had the advantage of hearing the Lord Advocate in private, although I heard him in Committee. I was not entirely convinced by him, but when we come to these Scottish clauses I think we have to accept the Lord Advocate's opinion on Scottish law. Therefore, if the noble Lord can let us talk about these matters again on Third Reading that would be fine as far as I am concerned, but it might inconvenience the House and perhaps be better to come to a decision now.

Lord Denning

My Lords, may I just add a few words?

Noble Lords

Order!

Viscount Davidson

My Lords, I hate to interrupt the noble and learned Lord, but we are at the Report stage.

Lord Denning

My Lords, I was going to say only a few words. I do not think there is any difference of opinion between the Lord Advocate and myself as to what we intend the clause to effect. I agree with the clause as interpreted by the Lord Advocate but I think it might be stretched against us. As I understand them, these amendments have been tabled simply to make the matter clear so that magistrates in lower courts are not confused. However, I shall not waste the time of the House any further.

7.15 p.m.

The Earl of Perth

My Lords, I may have misunderstood the noble Lord, Lord Gray, but he seemed somewhat to threaten us. With the noble Lord, Lord Home, and others, I feel very much that the right thing to do is to allow consultation, with the thought that at Third Reading the Lord Advocate will be present and there will be discussion, rather than the House now being told: "you cannot have it, it is finished."

Lord Gray of Contin

My Lords, with the leave of the House, I wish to clarify one point to the noble Earl, Lord Perth. I can assure him that there is absolutely no question of a threat. What I said expressed a purely personal feeling that if the amendments are withdrawn they will not be tabled again. We are talking about Scottish law and about the position in Scotland, to which my noble friend Lord Home also referred and indicated that as regards Scotland he is of a mind to take the advice of the Lord Advocate. I hope that that is the advice which prevails.

If the amendments are withdrawn it is, of course, entirely up to those who originally tabled the amendments, and who withdrew them, to decide whether or not they should table them again. My hope is that they will decide against such a course; but I am in the hands of the House and rightly so.

Lord Ross of Marnock

My Lords, I think this is a rather strange way of doing things. I have read many definitions of offences and I must say that this is one of the strangest. I would not have been quite so happy as the Minister of State was in saying that this was the perfect way of putting it. He cites the Lord Advocate. I remember when the Lord Advocate was Lord Clyde and was in another place on the Scottish Grand Committee. Scottish Bank-Benchers are quite un-awed by the dignity of the titles of "Lord Advocate" and "Solicitor-General". Very often we proved that they were very wrong.

I think this clause probably could be improved. I can see what the Government are trying to get at and I probably prefer the clause as it stands to some of the suggestions which have been made, but I hope the Government will have another look at it. You cannot jump to the conclusion that it will be easy to satisfy yourself that someone believes something or other. All that person has to say is he did not believe it.

It is difficult to prove what someone believes—or what he should have believed; that is not easy either. After all, that implies a certain measure of mental ability that the person may not have; that there is reasonable ground for suspecting. There is the person who has offended. You have to prove that a person had reasonable ground for suspecting. That is very difficult to prove. Therefore, I think that the Crown Office and the draftsman should have another look at this. In the meantime, we rest on the absent Lord Advocate and trust that he will be here to satisfy us at the next stage of the Bill.

The Marquess of Lansdowne

My Lords, I moved Amendment No. 56. The noble Lord on the Liberal Benches congratulated me on the way I supported him. The object of my amendment is to put in what I call absolutely plain English the reverse onus of proof. This was dealt with summarily and I accept completely what my noble friend Lord Gray said. As regards the point made by my noble friend Lord Burton, fortunately if I were likely to be arrested at home it would be by my own water bailiffs, so I think I might get away with it.

Naturally, I do not wish to press my amendment. I think we are in an extremely difficult and complicated sphere. I have great sympathy for Amendments Nos. 70 and 71 tabled by my noble friend Lord Trenchard. While withdrawing my own amendment which, in a way, achieved what I hoped it would, I should like to reserve my position and say that when Amendments Nos. 70 and 71 come up, unless very strong reasons against them are explained to me, I shall be supporting them. So, with the leave of the House, I beg leave to withdraw Amendment No. 56, and perhaps it might be convenient if I say now that I shall not be moving Amendments Nos. 64 and 65.

Amendment, by leave, withdrawn.

Viscount Davidson

My Lords, this seems a convenient moment to break for dinner, and I suggest that we do not resume the Report stage before 8 15 p.m. I beg to move that consideration of the Report stage be now adjourned.

Moved accordingly and, on Question, Motion agreed to.