§ 5.6 p.m.
§ The Minister of State, Scottish Office (Lord Gray of Contin)
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Salmon Bill [H.L.], has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
§ I beg to move that this Bill be now read a third time.
§ Moved, That the Bill be now read a third time. —(Lord Gray of Contin.)
§ On Question, Bill read a third time.
§ Clause 1 [Salmon Fishery Districts]:
Lord Gray of Contin moved Amendment No. 1:
Page 1, line 11, leave out ("low water mark") and insert ("mean low water springs").
§ The noble Lord said: My Lords, it might be for the convenience of the House if I deal with Amendments Nos. 34 and 35 with this one. At Report stage my noble friend Lord Burton drew our attention to the fact that the reference in Clause 1 to the seaward extent of a salmon fishery district being three miles from low water mark was not quite right. I am grateful to the noble Lord for bringing this to our attention. I have looked at the matter again, as I promised to do, and have concluded that we should have three miles from mean low water springs. "Mean low water springs" is delineated on the Ordnance Survey maps and is therefore readily ascertainable. It is a more precise description and should avoid some of the difficulties described at the Report stage. Amendment No. 1 gives effect to this change.
§ My noble friend also drew attention at Report to the reference to "low water mark" in Section 1 of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951. It is also appropriate to change that to "mean low water springs". Amendment No. 34 will do that.
§ With regard to Amendment No. 35, which is a consequential drafting amendment, I must make it clear to the House that even draftsmen in the Scottish Office are human, and I have to point out to the House that in fact there is a mistake in that Amendment No. 35 contains a very minor error. The reference should be to line 4 and not to line 6. I want to point this out to the House in order that it may be corrected. I beg to move.
§ Lord Burton
My Lords, I am most grateful to my noble friend the Minister for this amendment. He has brought forward a number of amendments during the course of our deliberations and here we have one more, which I am sure your Lordships will accept. It really makes the situation much more suitable than it was when we started work on the Bill. I hope it will be accepted.
On Question, amendment agreed to.
§ Clause 3 [Regulations]:
§ Lord Burton moved Amendment No. 2:
Page 4, line 6, at end insert—
("( ) the use of tackle, lures or bait in rod fishing.").
§ The noble Lord said: My Lords, this amendment was put down by the noble Viscount, Lord Thurso, on Report and he received a great deal of support for it. My noble friend the Minister said that he was sympathetic and was still looking at it, so I have just put it down in case it might have eluded his gaze. It does, however, throw up the need for boards to be able to make by-laws. We had an amendment down for this at Report, but unfortunately my noble friend rejected it. I am drawing attention to it again now because there are several items which would be very much better administered through by-laws and perhaps in another place they may look at this point. My Lords, I beg to move.
§ Viscount Thurso
My Lords, I am delighted to see that the noble Lord, Lord Burton, has taken up this point, which I twice put before your Lordships' House at different stages of the Bill. I am sure that the noble Lord, Lord Gray, is still sympathetic, but it would help us all very much if he could tell us exactly how sympathetic he is and how he intends to dispense and disperse his sympathy towards us.
§ Lord Gray of Contin
My Lords, I think I can be a little more helpful to my noble friend Lord Burton and the noble Viscount, Lord Thurso, in connection with this amendment. During the Report stage, I indicated that I was sympathetic, and that certainly remains the position. My officials will be meeting with the Scottish Anglers' National Association on 18th March, which is the earliest date that could be arranged. Thereafter I would hope to reach a conclusion. The present amendment would not, in fact, achieve what noble Lords have in mind. It would allow of a single set of fixed rules on a national basis, but not the local variations which were described as being necessary. On this explanation, and with the assurance which I have given, I trust that my noble friend will be prepared to withdraw the amendment.
§ Lord Burton
My Lords, in the later stages of the Bill the other night. I commented on the rush to which we had been submitted in getting through this Bill and there were some comments from the Front Bench. But I think this bears out the fact that though we have gone through three stages of the Bill we still do not have an answer. But I am most grateful to the Minister for having offered to look at the matter again. My Lords, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Gray of Contin moved Amendment No. 3:
Page 4, line 20, after ("(f)") insert ("of subsection (2)").
§ The noble Lord said: My Lords, this amendment provides for a drafting change pure and simple. It makes it clear that the reference in Clause 3(5) of the Bill to "paragraphs (c) or (f) above" is, in fact, a reference to paragraphs (c) or (f) of Clause 3(2). My Lords, I beg to move.
§ On Question, amendment agreed to.976
§ Clause 5 [Enforcement of regulations]:
Lord Gray of Contin moved Amendment No. 4:
Page 5, line 37, after ("offence") insert ("; and section 19 of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 (forfeiture of fish, instruments, articles, vehicles or boats) shall apply in relation to persons convicted of an offence under this section as it applies to those convicted of an offence under Part I or section 13 of that Act" ")
§ The noble Lord said: My Lords, at Report stage I assured my noble friend Lord Burton that I was sympathetic to the purpose of an amendment that he was seeking to make to Schedule 4. I am grateful that he withdrew that amendment to give time for further consideration. Having considered the matter fully, I am now moving this amendment, which I am sure meets my noble friend's objectives. I hope your Lordships will agree that it is not unreasonable that anyone who commits an offence under Section 15 shall be liable, if a court so decides, to forfeiture of the fish he took illegally and any of the equipment, vehicles or boats used. Indeed, he is already liable to such forfeiture under Sections 13 and 19 of the 1951 Act for fishing during the weekly close time and for offences under Part I of that Act. My Lords, I beg to move.
§ On Question, amendment agreed to.
§ Clause 14 [Financial powers and duties of district salmon fishery boards]:
§ 5.15 p.m.
§ Lord Gray of Contin moved Amendment No. 5:
Page 13, line 24, leave out subsections (1) and (2) and insert—
("( ) Each year, a district salmon fishery board shall prepare—
§ The noble Lord said: My Lords, I am bringing forward this amendment as a result of the genuine concern expressed by several noble Lords at Report stage that the boards should be required to be more accountable to the fishery interests they represent. Though the Bill as drafted would not have prevented the calling of annual meetings and annual presentation of accounts, I fully recognise and accept that a requirement to do so is more in keeping with the active proprietorial participation in salmon affairs which we have in mind.
§ The method of calling the annual meeting has been left open, so that it will be possible for the clerk to the board to select the method most appropriate to his particular district. For example, it might be right in some districts to give notification through a notice in the press. In others, where there are few proprietors, it might be more suitable to give individual notice to each proprietor. I trust that the amendment meets the wishes of your Lordships' House. My Lords, I beg to move.
§ Lord Burton
My Lords, it is most satisfactory that the Minister is managing to accept all these 977 amendments. I hope that this procedure may continue and that your Lordships will accept this amendment.
§ On Question, amendment agreed to.
Lord Burton moved Amendment No. 6:
Page 14, line 1, after ("assessment") insert (", including interest thereon at a rate of 2 per cent. over bank rate on subscriptions over three months in arrears,").
§ The noble Lord said: My Lords, the position here is that, having raised the matter in Committee and again on Report, my noble friend the Minister having drawn attention to a drafting error on Report, which I hope has now been corrected, and having given him a little more time as he requested, I hope that he will now be able to accept this amendment.
§ It is very necessary for the fishery boards to be able to try to get their money in in time and the best penalty to ensure this is to impose interest on any overdue accounts. After all, all the other proprietors suffer for anyone who is late in paying his assessment. If my noble friend is not able to accept this wording, I hope that he will be able to put in something similar. My Lords, I beg to move.
§ Lord Gray of Contin
My Lords, I understand fully why my noble friend has moved this amendment and I am very sorry that I cannot yet either accept his amendment or table an alternative. This in no sense reflects lack of interest in the point, but indicates that the matter is not as straightforward as may appear at first sight. As I indicated at Report stage, we have to consider, for example, the need to have a power to impose an interest charge before there can be a power to recover arrears of interest. Because of this and the uncertainty about the meaning of "subscription" in this context, my noble friend's amendment is defective. I can, however, give the noble Lord the assurance that I am sympathetic to the principle of what he has in mind and hope that it will be possible to produce an acceptable form of words. I trust that in view of this he will be prepared to withdraw his amendment.
§ Lord Burton
My Lords, I again thank my noble friend very much and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Viscount Ridley moved Amendment No. 7:
After Clause 19, insert the following new clause:
§ ("Restrictions in time of low water flow.
§ .Within three years of the passing of this Act, the Secretaries of State for Scotland and Wales and the Minister for Agriculture, Fisheries and Food shall lay before Parliament measures which would permit water authorities or district salmon fishery boards to introduce restrictions on salmon netting operations in periods of low water flow in rivers or estuaries for which they are responsible. Such restrictions shall be subject to approval by the relevant Secretary of State or Minister.").
§ The noble Viscount said: My Lords, I should apologise for bringing this amendment forward in exactly the same wording as for Report stage, but as I myself was unavoidably prevented from staying to the end of that debate, and as my noble friend Lord Trenchard withdrew it very quickly before it could be 978 debated, I think it is important that this very important matter should be discussed today.
§ The arguments in favour of what I am suggesting in this amendment were very well rehearsed and discussed at some length, both on Second Reading and at Committee stage, and were supported by a great many of your Lordships who spoke on both occasions, so I do not propose to go through them again. I think your Lordships will agree, however, that on this occasion what I have produced is a very modest, and indeed only a permissive, amendment in that the regulations suggested will allow a board, or in England and Wales an authority, to do something only if they feel it is really necessary, and even then it would be subject to the total approval of the Government through the person of the Secretary of State or the Minister. So they could not do these things if it were not thought to be right.
§ The point is that in no two estuaries of this country do salmon behave in the same way. Probably in no two estuaries does water behave the same way. Some rivers lack an estuary altogether. In others, such as the Tay, the tidal water is up to 40 miles long. We have ample evidence from rivers all over the country that in periods of low water fish enter some estuaries, move up and down on the tide and are very vulnerable to heavy netting. In other estuaries they do not go near the mouth of the river and they are probably not vulnerable. For instance, the Spey, which may claim to be the best if not the biggest river in Scotland, has no estuary whatever. The water goes through a hole in the shingle; and obviously this amendment would have no validity for that river. It is perhaps noticeable in the Spey that fish will run it in very low water indeed. I have seen this happening.
§ I am sorry that at the Committee stage the noble Viscount, Lord Thurso, was unable to support the amendment on the simple argument that on one river which he controls, the Thurso, it would not be necessary. I am sure he would agree on reflection that what may not necessarily be correct for the Thurso may well be very important for other rivers. Therefore, the permissive nature of this amendment should be stressed. I have no doubt that the Government will say that there is no evidence of the necessity for this; or they will say that it is not effective in doing what it seeks to do; and we shall come back to whether or not it is impossible to define drought or low water. But the three-year period which I put forward gives us all a chance to think again and time to solve all these problems by consultation and discussion. I hope that the Government will look at it in this light.
§ I do not know how much the Government or any ministry in England or Scotland have consulted the relevant authorities on these matters, and whether or not they have up-to-date advice. I believe it is probable that after the 1976 drought, which caught the whole country unawares, there was considerable debate about it; but I very much doubt that there have been consultations since then with the relevant authorities. A great deal has happened, not least the departure of the fish from a great many rivers and a decline in the number of salmon. I should like to know whether modern consultations have been held with these authorities and what they may think about it. If it has not been done, I suggest that it is done before we finally 979 decide the matter. Furthermore, have the Government had time to consult their own scientific experts at the Pitlochry Fresh Water Fisheries Laboratory, who are presumably there for the very purpose of advising the Government on matters such as these? If they have been consulted, I should like to know what answer was received; and if not, why not, and can that be done?
§ The three-year period also coincides with the Government's own very welcome amendment, Amendment No. 26 in the name of my noble friend Lord Belstead, to which we shall come shortly, on the review of drift netting and other coastal netting. The three-year period which I am suggesting means that the review of all such netting could be extended to review the necessity of otherwise of taking steps to try to control netting and the catching of salmon on periods of low water. I very much hope that my noble friend will be able to include my wishes in his amendment when we come to it, or better still take on board the amendment of my noble friend Lord Lansdowne, Amendment No. 25.
§ With those brief words I should like to ask the Government to give serious thought to doing something, if not tonight, which is probably impossible, certainly in another place. I end by saying that it is proposed, as I have said so often and as so many of your Lordships have said, in the interests of demonstrating to all the world that we are serious about having a conservation policy for salmon in the British Isles. I beg to move Amendment No. 7.
§ Lady Saltoun of Abernethy
My Lords, perhaps I may add just a word or two to what the noble Viscount has already said. There is one more reason why it is becoming increasingly important to be able to take action of the kind proposed in this amendment should it be necessary. Water abstraction has already depleted many of our rivers, and this situation can get only worse with time with the additional demands of industry and of households for even greater water supplies. For example, in 1986 the Dee will be providing up to 31.5 million gallons per day; yet in the summers of 1983 and 1984 the total residual flow was not much more than double that figure. When it is realised that salmon will not run the river below approximately 150 million gallons per day, the seriousness of the situation can be realised. The Dee is by no means unique.
Even if the Minister cannot accept this amendment I really do implore him to consider very carefully whether something cannot be done and perhaps to persuade his right honourable friend to introduce some amendment in another place.
My Lords, I shall be extremely brief. My noble friend has made an excellent case for this new clause; and I think noble Lords will agree that the suggestion is a modest one. I think it will also be agreed that of all the hazards that the Atlantic salmon has to run, the only one for which there is absolutely no escape is netting in rivers or estuaries in low water. They may be lucky not to get disease; they may be lucky when they are on the high seas; they may be lucky when they are swimming around the coasts and crofters are trying to pick up a few fish for the pot; they are almost certain to be lucky when I am using a fly 980 and when other noble Lords are, or even a spinner or a spoon; but when they are passing up a river, having run all these hazards, and netting goes on in low water in the estuaries or in the river mouths, they have absolutely no escape.
I think it is recognised by everyone that the figures which are returned for the weight of salmon netted in the rivers seriously underestimate the numbers of fish that are actually taken. This therefore emphasises the importance of this amendment. There can be no doubt that the breeding stock of Atlantic salmon is threatened—this has been agreed all through our discussions—and that they are as much threatened by netting in low water as by anything else. The figures quite clearly show that. Therefore, I strongly support the amendment.
§ Lord Biddulph
My Lords, I must support the amendment of my noble friend Lord Ridley. I have personal experience of these very severe drought conditions. During the spring and summer months of 1983, the Western Isles and the west coast of Scotland experienced a very extended period of drought. In particular, there was no measurable rainfall from mid-April to 7th August. Some noble Lords might well remember that Fort William, which I think has the highest average annual rainfall in Great Britain, actually introduced water rationing. Loch Rhea, which is the estuary of the River Grimersta and the River Blackwater on the Isle of Lewis, had literally thousands of salmon in it at that time. They were unable to run the river and move up and down with the tide for a period of about three months. They had to wait for the rain to come. All the time the numbers of salmon were increasing. Fortunately, the Grimersta Estate owns the netting rights in Loch Rhea, and no netting at all took place during this period. If other parties had either leased or owned the netting rights in the estuary—particularly in the estuary—they could have made a killing. They could literally have netted the entire stock of salmon belonging, not only to Grimersta but to the River Blackwater as well. Needless to say, because of the concentration of salmon, poaching became a major problem and the water bailiffs had to mount a day and night long watch to make sure that the salmon were not annihilated. I very much support the amendment of my noble friend.
§ 5.30 p.m.
§ The Marquess of Lansdowne
My Lords, I should like as a latecomer in agreeing to this amendment to say that I have done quite a bit of research into this matter since the amendment was first put down. Although my own experience on the Tay is that the amendment would not really be so necessasry, I can see that for other rivers, where conditions are different, it is vital that the amendment should be carried. I therefore hope very much that the noble Lord, Lord Gray, will give it very serious consideration. If he is not able to accept the amendment tonight, then I hope he will do something about it. This matter is much more serious than I originally realised. As a late recruit to that belief, I am hopeful that my opinion will now add some weight to the important amendment moved by my noble friend Lord Ridley.
§ Lord Moran
My Lords, I, too, strongly support this amendment, which seems to me to be moderate and sensible and to contain all the necessary safeguards. In Wales, there is certainly a problem in drought conditions, when salmon are concentrated in the estuaries and in pools. I believe that in many parts of the country there is also a problem immediately after drought conditions, when salmon are running up on the first flood after a drought. All that can be looked into during the three years that are proposed for consideration in the amendment, which I hope very much will command the support of the House.
§ Viscount Thurso
My Lords, unlike the noble Marquess, Lord Lansdowne, I have not seen any blinding light on the road to Damascus. I fear that I must take the noble Viscount, Lord Ridley, to task for not reading what I said at Committee stage more fully. I did not base my conclusions simply on my observations in Thurso. I gave a full description, with which I shall not trouble your Lordships tonight, of how all salmon behave in all estuaries all over. The noble Viscount may shake his head but I am certain that scientists are more likely to support my assessment of the behaviour of salmon than that made by many other noble Lords.
I must also gently take to task the noble Lord, Lord Chelwood. I understood him to say that the legal netsmen in the estuaries and rivers were known to falsify their returns. I do not believe that is so. I am convinced that the legal netsmen provide full returns to the Secretary of State and that therefore the figures of fish caught by legal nets within rivers are pretty accurately known. They certainly are so far as concerns all the rivers of which I have any knowledge. I feel sure that the Secretary of State would quickly mount an investigation if he felt that there was serious falsification of returns of salmon caught.
To turn to Amendment No. 7, it might work in England but I do not believe that it would do so in Scotland. My reason for saying that is that after this Bill becomes an Act, if it is passed, nine out of 10 district boards in Scotland will be in the majority hands of upper proprietors. The netsmen will undoubtedly feel themselves to be at the mercy of the upper proprietors, and it is the netsmen who would be told to stop fishing at the whim of the upper proprietors. I believe it would be found that legitimate netsmen up and down the coast of Scotland would all feel themselves very very hard done by. They may have bought their materials, paid for their leases to the Crown, equipped their boats, and so forth, and then, on going to fish for salmon, it may suddenly be said that the water level is such that the district board intended to close their fishery altogether, without any warning that such was going to happen. That might be done without any possibility of the rebate of the rents they had paid to the Crown.
Amendment No. 7 would be a very dangerous amendment to pass. I do not believe that, technically, it would achieve the benefits that are hoped for it. I trust that the noble Lord, Lord Gray of Contin, will resist the amendment, although I hope that he will give continued consideration to the general method of conservation and to the methods by which nets are fished. That might mean longer close times or a slight 982 variation. However, the total closure of nets because of drought conditions is a totally illusory objective. I do not believe that it would work or that it would produce the results that the movers of the amendment suggest, and it would be wrong of me not to say so in your Lordships' House.
§ Viscount Trenchard
My Lords, first I must apologise to my noble friend Lord Ridley for withdrawing his amendment when he was absent during Report stage and before anybody else had a chance to speak to it. Secondly, let me quickly support his amendment now. Perhaps, I may refer first to the remarks of the noble Viscount who has just sat down. As I have said before, I have enormous admiration for his knowledge of salmon, not only in Thurso but all over. I know that the noble Viscount has travelled all over and has made a real subject of this matter. However, he would not claim to be a complete encyclopaedia about the movement of fish under the surface of the water, where science has made a contribution but only a limited one at this stage.
At the Report stage, my noble friend Lord Belstead said that there was no scientific evidence of droughts in past years causing undue damage to stocks—or words to that effect. He has since been kind enough to write to me, as he promised he would, and has repeated that such is the view of the ministry. Having received my noble friend's letter, I took a little counsel with water authorities. I discovered that the ministry did indeed ask water authorities, after the 1976 drought, whether they had any scientific evidence of undue damage to stocks. To that question they quite rightly replied that they had no such evidence; they had not been asked to look at that particular aspect; they had not the resources to examine it; and even if they did have the resources, possibly it was the type of question that is almost impossible to prove.
If one asks scientists in water authorities what they think in common sense terms, in the absence of any scientific proof that is relevant, then they tend to reply that in a drought year, fish have a very difficult time reaching the spawning beds at all. In many of our estuaries the fish also die, and so there is an extra threat to their mortality. In terms of sheer common sense, it is a period when the few fish that remain should be given the best possible fair wind.
In some estuaries there is no doubt that fish do stay. There may be four or five rivers running into the same estuary and fish do move up and down them. It is probably true, as the noble Viscount, Lord Thurso, said, that many fish clear off into the open sea and that those who have not come into a very low estuary probably will not enter it. However, there is definite evidence that in long estuaries—certainly in England and Wales—fish do come in and run up and down.
I can say without any fear of contradiction that, in years where there is a further threat because of drought to our already diminished stocks, scientists among the water authorities of England and Wales would strongly support the need for a power such as that proposed in the amendment. In fairness, one must say that they would also like at the same time power over angling. However, as my noble friend Lord Home has pointed out, we believe that that is best achieved by limiting methods rather than by banning completely angling by 983 rod and line. In any event, trying to catch fish on a fly in a drought is not likely to do a great deal of damage to stocks.
Therefore, I support this amendment. I hope that if the Government do not like the amendment they can make noises to suggest that as a result of the debate and in spite of the remarks of the noble Viscount, Lord Thurso, they have accepted that there is a need for the water authorities, which they themselves believe, and for the district salmon fishery boards to be able to restrict or even ban fishing in such conditions, with stocks as they are at present.
§ Lord Ross of Marnock
My Lords, to my mind this is a very modest amendment. It surprises me that the amendment proposes that we wait three years before taking action when, so far as the debates in this House are concerned, the general opinion is that the power is necessary. I am sorry about the noble Viscount, Lord Thurso, who seems to be on his own on this occasion, but he need not worry. If he looks at the power which is asked for he will see that it is a power to permit district salmon fishery boards to take action if they want to. Everything is so beautiful and wonderful in the noble Viscount's area—and we know the influence that he declared he has in that district salmon fishery boards—that they do not need to apply.
The noble Viscount spoke about the behaviour of salmon. I think that the behaviour of salmon is dictated by the state of the water. That is part of our concern. There is also the behaviour of the netsmen. It is interesting to hear that the dominant factor in respect of the district salmon fishery boards in future will be the upper proprietors. May I tell the noble Viscount that that will be a change, but we will wait to see what happens. However, agreement must be obtained before action is taken.
The noble Viscount has been a great proponent of getting proper management from the district salmon fishery boards. If we give them this power it will be up to them. Even before they can exercise that power they must have the support of the Secretary of State. Indeed, when the orders eventually come forward to give that power they first have to be laid before Parliament. I think it is a very reasonable amendment. If we mean what we say about conservation it is time we did something, and this is the least we can do.
§ The Earl of Perth
My Lords, as we all know, this Bill is about the saving or conservation of salmon. Here is an amendment which deals with a particular period of time when the rivers may be very low and the salmon are in great danger. All your Lordships who have spoken and who have such great knowledge of this problem have said, with the exception of the noble Viscount, Lord Thurso, who I shall come to in a moment, that this is a very worrying situation. Noble Lords have not said that it must be done at once: they have said that it should be done within three years. That gives a lot of time for thought. In the light of that, in the light of all the experience, and in the light of the purpose of this Bill, I beg the noble Lord, Lord Gray, to accept the amendment or something very like it.
The only voice against the amendment has been that of the noble Viscount, Lord Thurso, who speaks 984 in particular, naturally, about his own area, where he knows about conditions. He said that the netsmen would suffer and that the rods will benefit; that that will happen very easily because the district boards are controlled by upper riparian owners. No, that is not what would happen. Those restrictions cannot be brought in easily; they must be subject to the approval of the Secretary of State.
The noble Viscount went on to say that a lot of the nets have paid money and they will suffer. However, there is a similar situation relating to wild-fowling. There have been times when people have taken expensive wild-fowling throughout the country and then something very similar to what we are talking about here has happened; namely, very hard weather. The Secretary of State can, in his judgment alone, decide that there shall be no more wild-fowling while the hard weather continues. It is too bad that people may lose out, but they all recognise the facts. Therefore, I do not think that the argument that some people will suffer is a good one. It is the luck of the weather, or of what you will, but it is certain that something like the amendment is necessary for our main purpose, which is the conservation of salmon. Therefore, I hope that the noble Lord, Lord Gray, will accept the amendment in the spirit in which it has been offered.
§ Lord Burton
My Lords, in Committee I proposed a similar amendment on a number of technical grounds. I did so with great reluctance because I feel, as the noble Earl, Lord Perth, has said, that there is a need for something like this. However, every river will be different. One aspect not mentioned is that of the temperature. Low water certainly has an effect but the temperature of the water perhaps has an even greater control over whether or not the salmon will run.
There are many difficulties, and I feel that the answer is, again, by-laws. Should the district salmon fishery boards be able to enact by-laws they could, in their own particular circumstances, impose this sort of restriction. I feel it is most important that inserted somewhere in the Bill there should be the power for district boards to make by-laws.
§ The Minister of State, Ministry of Agriculture, Fisheries and Food (Lord Belstead)
My Lords, as the Government said earlier in debates on this Bill, following the droughts of 1976 and 1984 the Government asked water authorities in England and Wales for evidence that salmon stocks had been damaged due to commercial fishing. I repeat in answer to this short debate that no evidence has yet been provided. Indeed, the generally accepted scientific assessment is that the 1976 drought did no long-term-damage to salmon stocks. It is too early to assess the long-term effects of the 1984 drought, though it was, of course, less severe than the 1976 drought in many parts of the country. In reply to the noble Viscount, Lord Ridley, I would say that consultation was carried out into the position with the Scottish Fresh Water Fisheries Laboratory.
For the Government to consider taking powers to allow the restriction of netting in times of drought we 985 would need evidence that the powers are necessary in order to conserve salmon stocks. After all, the restriction of netting would have to be justified on conservation grounds, and it is on that point that this short debate has turned. But I put it to your Lordships that, certainly speaking from the point of view of England and Wales, one would not be able to interfere with a public right and a legal occupation without a convincing case that stocks are at risk.
My noble friend Lord Lansdowne said that it is vital that this should be done, and in the past few minutes many noble Lords have spoken in the same terms. On the other hand, we had speeches made in Committee and now on Third Reading from the noble Viscount, Lord Thurso. I think I also remember a speech made by my noble friend Lord Kimball at the Committee stage. Both speeches questioned the basis on which an amendment could be put into the Bill. I remind your Lordships that my noble friend Lord Trenchard very fairly said in his speech a few moments ago that although the water authorities have said to my noble friend that they would like a power over nets at times of drought, they would also like a power over rods—a matter on which this amendment is entirely silent for reasons which I understand perfectly well.
The difficulty we are in, therefore, is that expressions of view have been put forward by noble Lords who clearly know a very great deal about this subject. I respect that, but I have to say that so far as concerns evidence we are in a position where we simply do not have any from the water authorities. By that I mean—if I may be absolutely blunt—that authorities, speaking from an English and Welsh point of view, have not come to us and said, "We believe that damage results from our failure to be able to act in this matter".
Nonetheless, if there is evidence to support the concern which has been expressed this afternoon, I say to your Lordships that we should be very happy to receive it and to consider it, and if the worries which have been expressed are demonstrated to be valid, we would certainly take action; but to write an amendment with the intention of meeting a need for which evidence has not been produced, is really asking a lot at the stage of Third Reading of a Bill in your Lordships' House.
Several noble Lords have asked whether the Government will nonetheless consider this point in another place. I certainly give an assurance this afternoon that our mind is not totally closed on this matter. To be consistent, if we find that the concern which has been expressed this afternoon is supported by evidence, then of course the Government in another place will be prepared to listen with the greatest care to what is being said. However, I really cannot go any further than that this afternoon so far as the Government are concerned on this particular matter.
§ The Earl of Onslow
My Lords, before the noble Lord sits down, I wonder whether he can answer this point. If really hard evidence were to come up in say 18 months' time that this was absolutely necessary, do the Government have powers to act without amending this Bill?
§ Lord Belstead
My Lords, if it were done as a result of the review of drought legislation then it would need to be dealt with through primary legislation.
§ Viscount Ridley
My Lords, I am not sure whether I am allowed to speak for a second time, but if so I shall not detain your Lordships for more than a minute. I am disappointed with the reply but understand that the door has not been finally shut. I hope that the noble Lord will realise how difficult it is to obtain hard evidence and I trust that those who are in a position to do so will immediately set about obtaining it. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 21 [Offence of possessing salmon which have been illegally taken, killed or landed.]
The Lord Advocate (Lord Cameron of Lochbroom) moved Amendment No. 8:
Page 19, line 25, leave out from ("who") to end of line 26 and insert (" —
§ The noble Lord said: My Lords, it may be for the convenience of the House if, in speaking to this amendment, I also speak to Amendments Nos. 16, 20 and 22, and at the same time talk also in respect of Amendments Nos. 9, 10, 11, 17, 18, 19 and 21.
§ At the outset I should like to express my regret that I was unable to be present for the consideration of Clauses 21 and 28 on Report. But my noble friend Lord Belstead and I have since had the benefit of further discussions—I think I can describe them as vigorous, and I trust that they were good humoured—with a number of noble Lords who are present this afternoon, including the noble and learned Lord, Lord Denning, the noble Lord, Lord Moran, and the noble Viscount, Lord Trenchard. We are well aware of the disquiet which remains in relation to the wording of these two clauses and, in an attempt to offer some assistance in relation to these difficulties, government amendments to both clauses have been tabled. As I have said, I hope that it will be for the convenience of the House if I speak to all these amendments, since they seek the same end.
§ It was clear from our discussions that many noble Lords took the view that, on the wording of the clauses as they presently stand a prosecutor would require to prove that the accused himself suspected that the salmon in his possession had been illegally taken. Though I do not myself subscribe to that opinion, I accept that legislation should be drafted in such a way as to avoid any possibility of ambiguity. The views which noble Lords have expressed have caused us to consider whether a clearer statement of the intention could be achieved, and these amendments are the result of that consideration.
§ If I may take the Scottish case—and I deal here with what would be paragraph (b) in Amendment No. 8—the prosecutor will first have to prove that the accused had salmon in his possession and secondly that the circumstances were such that it would be reasonable for the accused to suspect that those salmon had been illegally taken. This is not the same thing as proving 987 that the accused did so suspect. If the prosecution can prove that the accused ought to have suspected from the circumstances that the salmon had been illegally taken, the court will be entitled to convict. It will not, however, be so entitled, where it would be unreasonable to expect the particular accused to have recognised the circumstances as suspicious. To take a very extreme example, evidence of gill marks alone would not convict a blind man, nor indeed, as I mentioned when we considered the clause in Committee, would it convict an ordinary housewife. It would not be reasonable to expect her to recognise these particular circumstances as suspicious.
§ I hope therefore that these amendments will be seen as useful clarification. However, I would say that this is so far as the Government are prepared to go. My noble friend and I have considered very carefully what has been said by noble Lords, and in particular I am grateful both to the noble Viscount, Lord Trenchard, and to the noble Lord, Lord Moran, for having set out on paper some of their continuing concerns.
§ This is not a poaching offence; it is an offence far wider in its compass. It may be committed by any person, not simply by the catcher of the fish. A suspected offender may be identified in a city car park, an hotel, or at his own front door. Clause 21 and its counterpart for England and Wales operate in their respective jurisdictions irrespective of where the salmon were originally taken, killed or landed. Even in the much more limited Scottish offence which was created in Section 7 of the 1951 Act and which is only available against the poacher, it is necessary to establish that the suspicion on which the offence proceeds is referable to the activities of the accused himself and none other.
§ I might perhaps remind noble Lords of the effect of Section 7. It provides that a person may be convicted on the evidence of one witness of unlawful possession of salmon where he is found in possession of salmon in circumstances which afford reasonable ground for suspecting that he has obtained possession of the fish as the result of his act of poaching.
§ I suggest to your Lordships that it is even more essential, where the salmon is out of the hands of the poacher and within the comprehensive cover of the new possession offence, to relate the commission of the offence to the individual accused person. I think that noble Lords are in general agreement with this. We are not prepared to make simple possession of salmon an offence and to require an accused person to prove that the salmon had been legally taken; nor can we accept that evidence of circumstances which appear suspicious to an enforcement officer, as indicating that the salmon had at some time been illegally taken, should be sufficient on its own to enable a court to convict the accused. The accused person, if he is to be convicted, must be in a position in which he believed or ought reasonably to have suspected that the salmon in his possession had been illegally taken; that is, it must be shown that there is some element of guilty knowledge on his part which would clearly suggest that he had been an accessory to a forbidden act, that is, the act of poaching.
§ To aproach the clause in any other way would be to put innocent persons at risk and I have to tell your 988 Lordships that we are not prepared to do this. In particular, to take the words "for him" from the clause as we seek to amend it would allow the court to convict where it had heard no evidence to show any guilty knowledge or suspicion on the part of the accused person. Indeed, I should also make the point that without the requirement to show an element of guilty knowledge or suspicion the value of Clause 22, which can in appropriate circumstances allow conviction on alternative charges, would be severely limited since all the alternative offences require evidence to be related to the accused person.
§ 6 p.m.
§ I should also add that from the standpoint of a prosecutor the clauses represent a major advance on what we have at present. I think that all of us here are aware of the enormous difficulties in obtaining direct evidence of when, where or by whom salmon have been illegally taken. In the new offences the prosecutor will not need to prove that the salmon were illegally taken; indeed, it would be almost impossible for him to do so. He may instead prove possession or handling in suspicious circumstances which the accused recognised or ought to have recognised as such. That should not be difficult in a variety of circumstances. We are confident that we are giving the courts an effective weapon against those who deal in any way with illegally taken salmon.
§ If the poacher is only guilty where the circumstances reasonably give rise to the suspicion that he took the fish illegally, there can surely be no justification for suggesting that a person who subsequently comes into possession of those fish, or any of them, is guilty of an offence when he may be ignorant of the fact that the fish had been poached or where there was not even reason for him to suspect so in the circumstances. That would be the position if Amendment No. 9 to this amendment, Amendment No. 8, and the similar amendments sought to Clause 28, were to be given effect to.
§ On the other hand, if the accused believes, or it was reasonable for him to suspect, that the fish were illegally taken, and the prosecution establishes so much, it is surely reasonable that in order to avoid conviction it should be for the defence to have to show that the fish were not taken illegally; that is to say, that the belief or reasonable suspicion were mistaken in fact.
§ As against what we are suggesting from these Benches would be the proper way in which to proceed to clarify the problem that has been identified by all your Lordships in discussion, we have also been afforded the amendments which in particular are put forward by the noble and learned Lord, Lord Denning, and I think that these are of a character similar to those put forward by the noble Viscount, Lord Trenchard. Let me deal with Amendments Nos. 9 and 11 and the similar amendments, Amendments Nos. 17 and 21. I think I have already explained why it would be unreasonable in the context of the Government amendments to agree to the removal of the words "for him" which are forecast by Amendments Nos. 9 and 17, since those would allow a conviction on the basis of circumstances which would appear suspicious to an enforcement officer but where the accused himself could not reasonably have been expected to recognize 989 those circumstances as indicating an illegal origin for the fish.
§ Amendments Nos. 11 and 21 also provide for an additional defence. If they were to be carried, the accused would avoid conviction if he could show that he had no reasonable grounds to suspect that the salmon had been illegally taken. I would ask your Lordships to bear with me if I attempt to investigate how that might work in practice, along with Amendments Nos. 9 and 17.
§ The prosecution would have to show beyond reasonable doubt that the circumstances were such that it was reasonable to suspect that the salmon had been illegally taken. If the accused can cast doubt on that element of the prosecution's case, then the further defence is unnecessary. Otherwise, he must rely on proving a proposition which is both negative and subjective; that is, that he was not the sort of person who could have reasonably suspected illegality in those circumstances. How is he to do that in practice? Proof of the defence must satisfy the court on the balance of probabilities. It is not simply a matter of casting doubt on the prosecution's case.
§ Let us take an example. We have a commercial traveller from England, and he buys three salmon, let us say, from a van on a quayside on Loch Inver. All those salmon have gill marks, but those are not recognised by the commercial traveller. Though he does not know it, he pays a price which is less than the usual market price. He proceeds on his way home happy in the knowledge that he is to give his wife a pleasant surprise. However, there is an unpleasant surprise waiting for him in Inverness. He is stopped. He explains about the fish which the constable recognises as having gillnet marks on them. He explains the circumstances. The constable well knows that he has paid less than the market price. That would, because the enforcement officer, the constable, would immediately and reasonably suspect that the fish had been unlawfully taken, lay him open to a charge because the circumstances are sufficient for him to be suspicious, and on those facts a conviction could follow unless he could prove that the circumstances did not give rise to his suspecting that the fish had been taken illegally; that is to say, he would have to go into the witness box to show that those circumstances did not give rise to his suspicion.
§ I would suggest that he could not rebut the constable's suspicion that the fish was unlawfully taken. Equally, it would be up to him to show positively that he did not have knowledge of the significance of the gill marks or the price of the salmon. That would require him to go into the witness box to give evidence. I am unable to see how such a provision could operate in the interests of justice. The defence is unusual in placing a burden, as I say, on the accused to prove to an accepted standard a negative proposition which is likely to relate to his state of knowledge, when nothing that the prosecution has to do relates to such a state of knowledge. That is not a reasonable basis on which to decide whether a person is guilty or innocent of a criminal charge, and particularly one that carries with it the penalties that would be in this Bill.990
§ Not for the first time I would invite your Lordships to consider carefully the degree of risk presented to the ordinary citizen, innocent of any criminal intent, by making convictions dependent on suspicion, albeit reasonable suspicion, aroused in the mind of a constable or bailiff. The Government are not prepared to accept that the handling of illegally caught salmon justifies such a draconian provision. I hope that your Lordships will consider carefully what I have said on the matter. As I said, I trust that my noble friend and I have devoted considerable effort to explaining to noble Lords concerned exactly how the offence will be created and how the provision will operate. I believe that the Government have gone as far as they can in easing the burden on the prosecution. To ease it further would only produce injustice, and I do not think that that would be proper here.
§ I am confident that with the clarification of the amendments set down in the names of my noble friends Lord Gray and Lord Belstead to Clauses 21 and 28, those clauses will make an important contribution to discouraging illegal fishing by stopping up outlets for illegally caught salmon. I beg to move.
Lord Denning had given notice of his intention to move, as an amendment to Amendment No. 8, Amendment No. 9:
Line 5, leave out ("for him").
§ Viscount Trenchard
My Lords, I believe that I am in order, and the noble and learned Lord, Lord Denning, has asked me if I will speak generally on this subject and also to my amendments, which could not be called if either Amendment No. 8 stands or it came about that Amendment No. 8 was amended by Amendment No. 9. At his request and for the convenience of the House, it is perhaps best that we should debate all these matters now.
The need to fill a gap in the laws of the country in relation to the epidemic of salmon poaching has been made out for quite a long time by the water authority associations and others trying to enforce our present poaching laws. I should like to talk first about the need and, secondly, about the means of achieving this purpose without upsetting any of the legal principles mentioned by my noble and learned friend the Lord Advocate. This would be the best way, I believe, of handling the matter. I shall not repeat information that has been given on previous occasions. The Welsh Water Authority report shows the full extent of what it believes to be undetected poaching as well as detected poaching that is going on. The authority believes, in fact, that the catch exceeds all legal catches put together.
I can certainly vouch that this is also true in the South-West of England. I mentioned at Second Reading a period of a fortnight, although I am told that I got the figures wrong when in fact, 17 nets were discovered in 14 days. No convictions resulted although, on several occasions, salmon which the enforcement authorities were virtually certain had come from those activities were discovered. In this day and age, because of changes in the type used, the nets are nearly invisible certainly to those driving along the river and even to those walking on the river bank. The nets are easy to carry. The gangs are very well 991 organised. They have studied the law in considerable detail. They have their getaway cars which, conveniently, do not contain nets or other equipment. This is happening on a huge scale.
When the Bill was published, it was claimed, perhaps not by the Government but on behalf of the Government, that this new offence would change the onus of proof. In fact, our debates at Committee stage and at Report stage have shown that this has not happened. The Government have advanced their reasons for not going further towards changing the onus of proof. The Bill does not change the onus of proof. Nor does the amendment that my noble and learned friend the Lord Advocate has just described change the onus of proof to the extent required to cope with the huge gaping hole in our existing enforcement laws.
I believe that Amendment No. 8 says almost the same. I accept the statement of my noble and learned friend the Lord Advocate that it is not quite the same. But it is almost the same. If the optional defence of saying where the fish came from is not used, the only ground for the offence remains proof that the person apprehended as a result of suspicious circumstances, which led to the enforcement officers stopping cars on a particular road, whether from Scotland to Billingsgate or elsewhere, knew about the circumstances or could have known about them. We have suggested many different ways of meeting this need to plug the gap without any risk of the innocent being convicted. The Government have not liked any of them.
We would have much preferred that the Government had suggested ways of meeting the need. I hope still that they will recognise that they have, at the very minimum, an unsolved problem. This is not a question of my opinion on a difficult legal question. It is the view of all enforcement officers to whom I have spoken in both Scotland and England. I have spoken to many of them, to their representatives and to their legal advisers. I have also spoken to solicitors and barristers. I have spoken to two Queen's Counsel practising in the criminal law. I chose deliberately to speak to one who is not a fisherman for fear that we fishermen are over-anxious to save our fish. With the exception of a noble friend in this House, who may or may not take part in the debate, I have not found a legal opinion which believes other than that this clause will make things either no better or so little better as to make no difference. Furthermore they believe that there are various other ways, including the proposals contained in my two amendments, drafted by a Scottish counsel, that could meet the need without offending the principles of British justice.
Why do I say that the existing clause or the suggested change to it in the Government's amendment, Amendment No. 8, do not meet the need? The most recent advice that I received from a criminal law Queen's Counsel was that we might as well pack up and go home as the clause would never achieve a conviction. The reason, as explained to me, is that the clause is based upon Theft Act principles including the Latin mens rea which I had to be assured was not the 992 old man's disease but which is a vital part of the law of the land to to ensure that innocent people are not convicted for receiving or possessing stolen goods.
As my noble and learned friend the Lord Advocate said, there is, in the majority of cases, proof of possession of stolen goods; namely, that the goods are stolen, that the jewellery matches the description of a recent robbery, that the motor car has an engine number that coincides with that of the car that was stolen and that the silver at a certain house exactly matches the description. For a conviction—I understand from Queen's Counsel in criminal law that these matters may come up in any order—you have to prove possession, that they are the stolen goods, and—mens rea—prove that the accused must have known that they were illegally come by. In these situations, both at apprehension by the police officer and at court, the accused is confronted with the fact that he was in possession of goods known to be stolen. Whatever the technical term may be as to where the onus may lie concerning the remainder of the proof that he knew about it, once it is clear, both on apprehension and later in court, that he has been in possession of goods which are known to have been stolen he has some explaining to do. Whether it is a cock and bull story which cannot be disproved, or whether it is a real story, he is almost bound to state, and I understand virtually always does, how he came by them.
I am aware that even in these circumstances a large number of people are acquitted. It is no easy situation. This is undoubtedly the price paid for maintaining the essential ingredient for conviction—I entirely agree with my noble and learned friend the Lord Advocate—namely, that he had some knowledge that the goods he held were stolen.
We now come to the great difference. My noble and learned friend the Lord Advocate has already said that because one salmon looks like another—legally-caught salmon will have gill marks on them just as well as illegally caught salmon—the Bill does not require the proof that the salmon were poached because that would be impossible. However, because it is impossible the accused, or the person apprehended, both when he is apprehended and again later in court, is not confronted with the situation that the salmon of which he has been found in possession are poached salmon. He is confronted only with the situation that he is in possession of salmon.
At that point perhaps I may take this under two headings—the officer apprehending him and later in court. I would suggest a conversation which may take place. The officer has a tip-off that there is known to be poaching in the district. He stops a motor car 20 miles from the river because it was thought that that was the way the getaway car had gone. He finds salmon in it. The officer says, "I'm very sorry to stop you, sir, but we believe that poaching has been going on in this area and we find now that you have salmon in your car. Would you please tell me where they came from?"
The man says, "Yes, officer—they are lovely salmon, aren't they? I have a friend who is in touch with all the local netting companies in the estuary and from time to time he asks me to take a consignment of these down to another friend of his. He is a very 993 respectable gentleman. These are not the poached salmon: these are salmon from one of those netting companies. I do not in fact know which netting company he got them from on this occasion". This is at a time in the season when lots of salmon are being caught.
At that stage the officer or the water bailiff has to scratch his head as to whether he dares to take a court case under the Bill as it is even though the knowledge available to him is such as to make him pretty sure that this is phoney and that the chap has not given a proper explanation. He decides to chance his arm and go to court. The man or his counsel at some stage say, as he said to the officer, "No, these are not poached salmon; they came from a very respectable friend of mine who is in touch with all the netting companies in the estuary and often gets them at this time of the year, and I take them down to another friend of his in Plymouth".
If the prosecution at that stage tries under the Bill—even with the Government amendment—to bring in the fact that they only stopped the car because they knew of poaching in the area, suspected the getaway had gone in that direction and put a patrol on it, the prosecution would be prevented (I am assured by all the legal advisers to whom I have spoken) from bringing into the court any of the circumstances known to them about why they had in the first instance stopped the car. The accused's counsel can shut all that out quite effectively as inadmissible. He can simply say, "My client says that they were not poached salmon". This is the point my noble and learned friend the Lord Advocate has made clear. It cannot be proved because one salmon looks like another. "My client says that he got them from a respectable friend and is quite confident that they were not poached. Would the prosecution please keep to the point of proving that there were any circumstances in relation to my client which are in the least bit suspicious?"
If either the amendments of the noble and learned Lord, Lord Denning, or my own were part of the Bill, and if the circumstances which were known to the enforcement officers were able to be presented in court to the jury, again both at the apprehending stage and in court there would be greater pressure—not as great as in the receiving of stolen goods where the goods are proven to be stolen—and greater suspicion on the accused if he did not use the optional defence open to him to state where those salmon came from. It will become extremely fishy as to why he will not give the name of his friend or allow the police at apprehending stage to see his friend and find out which netting company. They will not bring a charge until they have investigated the story. But the whole pressure of being confronted with the fact that the circumstances were (to repeat the pun) fishy will certainly help the jury to make up their mind.
Let me turn to look at this the other way round. Let us consider the innocent. I accept that there may well be a coincidence that an innocent person may be passing through an area where poaching is going on and where the authorities are trying to catch poachers. He may be stopped by a police post which by coincidence was not set up for him at all. My noble and learned friend the Lord Advocate has mentioned 994 a commercial traveller. At previous times in these discussions we have heard about the housewife. My noble friend Lord Belstead has suggested that a housewife might be visiting somebody, well out of her home area where she would be known and probably her story accepted straightaway. My noble and learned friend the Lord Advocate has produced the suggestion of the commercial traveller who is in Aberdeen, who buys, quite legally, at the dockside, and is then apprehended on his way to London. I have referred to the housewife visiting a friend and buying legally in MacFisheries, a shop which does not know her and does not remember her when the police go to ask about the matter, and the commercial traveller who buys from netsmen or at the dockside from people who have never seen him before and who may not remember him. Neither I nor the lawyers whom I have consulted believe that by incorporating Lord Denning's amendments or my own amendments would such a man or lady be convicted. They would tell their story immediately and probably they would never even be brought to court because investigations would take place and it would be found, for example, that the commercial traveller had been in Aberdeen or that the lady had been visiting a friend even though she was not local—these are fairly extreme coincidences. It would also be found that the shop which she mentioned—MacFisheries—sold salmon on that day, but whether or not anyone could remember her actual purchase will be another matter.
As regards the commercial traveller, whom the noble and learned Lord the Lord Advocate suggested, it would be found that he was in Aberdeen and that the particular place where he mentioned he bought his salmon does, in fact, sell salmon. I believe that in any court the absence of proof of knowledge—that is the absence of the mens rea element—would lead without any doubt to an acquittal.
I do not believe that we are challenging the need for the mens rea element. What we are challenging is the difficulty of getting any real evidence bearing on whether the accused knew, unless you can at least confront him with all the circumstances and unless, therefore, there is—whatever may be said officially about onus—an onus on him to say from where he obtained the salmon. The innocent intermediate of a commercial nature who is taking a van load, which has been paid for from Bloggs and Co. Netting Company to Jones of Plymouth, London or wherever, will virtually certainly immediately say from exactly where he obtained them and will almost certainly have a consignment note on board. Clearly he will not even be charged.
If the Crown or a water authority were to bring a case in circumstances where they could not in the end prove that there were reasonable grounds for suspicion available to the individual, then obviously they would go down with possibly heavy costs. In a nutshell, what I am saying—if we can move away for a second from the erudite principles of law and the basis of British justice—is that of the comparatively few people who handle whole salmon, the innocent will readily and immediately state from where they obtained them; the 995 guilty will not state from where they obtained them if they can possibly avoid doing so.
Under the Government amendment I am assured by all leading lawyers that the guilty will successfully be able to avoid showing from where they obtained the salmon. It may be that it is slightly suspicious that an apparently innocent person does not want to go beyond saying, "I got them from a friend". However, if you bear in mind that there is no evidence that those particular salmon were poached, then I am assured by those in the water authority associations who carry out these prosecutions that a good counsel will close-off all the other circumstances and that it will be very hard to resist the guilty man's statement that he obtained them from a respectable person. It is because the salmon are not proven to be stolen that there is a major difference. I shall leave the noble and learned Lord, Lord Denning, to give legal examples. I mentioned previously offensive weapons, drugs, the situation at Customs. Outside the criminal law altogether, I mention taxation. I have on many occasions mentioned salmon out of season. I have referred to the game Acts particularly in the context of deer.
I do not believe that by these amendments we cut out mens rea. I do not believe that we run the slightest risk of convicting the innocent even if we run into one of those extraordinary coincidences to which I have referred. I suppose it could be argued that under all legislation there remains a tiny risk of convicting the innocent. Indeed, there are cases where that has happened. However, I believe that in relation to the particular situation of salmon the risks are less than in other cases. A QC suggested to me recently that in his view we should have done it a better way. He suggested that we should leave the offence as stated in the Bill, but make the defence of showing where the salmon came from obligatory rather than optional. Your Lordships will remember that we tabled amendments to that effect at previous stages, but the Government did not like them.
I do not believe that the Bill, even as amended by the Government in Amendment No. 8, will effectively move the situation—which is quite out of hand—forward one iota. I have consulted over 10 different lawyers of varying degrees of qualification. I am perfectly prepared to tell my noble and learned friend the Lord Advocate who they are—indeed some he will recognise as very leading lawyers in the criminal law. They believe, first, that this will make no real contribution; and secondly, that there are ways in which the need, which we have explained, can be met.
Because of the technicality that if the Government's amendment is accepted either as it is or as amended by the noble and learned Lord, Lord Denning, I am unable to move my amendments to the Bill, I ask all those noble Lords who have indicated to me that they will support my amendments to switch with me their support to those of the noble and learned Lord, Lord Denning. His amendments are not precisely the same as mine, but they are very nearly so. If the Government do not like the exact detail and wish to meet the need in another way, then they will have the chance to do so in the other place.
If they are prepared to do so in another place and are prepared today to state that they will meet the need 996 which they have set out to meet but which they have not met, then it would be my advice to the noble and learned Lord, Lord Denning, (if he wants any advice) not to move the amendments. However, we must have a statement from the Government to the effect that the need will be met by some means or another, otherwise I, and I hope my noble friends and indeed noble Lords on all sides of the House, will support the amendments of the noble and learned Lord, Lord Denning, on this issue.
§ Lord Denham
My Lords, before the noble and learned Lord gets up, I point out that the noble and learned Lord's amendment has been called and therefore, for my noble friend Lord Trenchard to put himself in order, he must move it on behalf of the noble and learned Lord.
§ Viscount Trenchard
I thank my noble friend the Chief Whip very much for keeping me in order. I have pleasure in stealing the noble and learned Lord's fire by officially moving his amendment for him, though I know that he will now speak to it and the others. I beg to move.
§ Lord Denning
My Lords, I am most grateful for having been given the opportunity first to hear my noble friend Lord Trenchard and now perhaps to treat you to a little dry law. This is a problem of the burden of proof in criminal cases. It is a problem I have been used to all my life. I wrote an article about it 40 years ago in the Quarterly Law Review which has often been quoted, and we have discussions about the legal burden, the evidential burden, and goodness knows what. It is a technical subject.
First I want to draw to your Lordships' attention the problem in hand. Hitherto both in England and Scotland the only offence punishable by the criminal law was the illegal taking or landing of salmon. You had to get the actual poacher and prove it against him. That does nothing to meet the evil and mischief of today, which is the traffic in salmon, largely from Scotland into England, by criminal organisations of men. The poached salmon in their twenties or hundreds are illegally taken and then put into maybe a van, and taken down by the organisation—it must be a big organisation, and there may be changed vans or changed drivers—to the hotels or markets in England, and there sold.
The organisation is criminal in disposing of and handling poached salmon; never before was this made an offence in England or Scotland. Surely it is right that we should have a new offence so as to curb this criminal activity. The difficulty with such an activity is to get the evidence to prove it. At the moment the law of Scotland is different in many ways from the law of England. I will quote from our Law Commission in England. When drawing up a new criminal code it says:The criminal law of Scotland is very different from that of England and Wales, both in content and in theoretical and practical tradition. The philosophy and general approach of Scots law is different from English law".We are going to consider clauses which are going to apply both in Scotland and England.
May I pause for a moment to draw a distinction not on the very point in issue but on these two clauses in 997 the Bill? In Scotland you get only the man who is in possession of the salmon. That is the word. In England you not only get the man, you get the man who at any time receives the salmon, or undertakes or assists in its retention, removal or disposal by or for the benefit of another person, or if he arranges to do so.
Under the English clause you get every person in that criminal organisation—everyone who assists, contracts, and all the lot of them. In the Scots law you get the man only if you prove him in possession. That is the difference between English and Scots law.
The Lord Advocate, I have no doubt rightly, viewing it from the point of Scots law, says, "Yes, you must not only prove possession of the salmon, you must prove the guilty mind". That is still in the new clause, as they put in the amendment, whether it is "reasonable for him to suspect".
The prosecution have to prove, or give some evidence of, a guilty mind—that he himself suspected that he had unlawful salmon on him. There is the rub. Let it be if Scots law insists on proof of a guilty mind, I should like to tell your Lordships that in the cases with which we are now dealing the law of England does not insist on the prosecution proving the guilty mind.
I am reading now from the 11 th Report of the Criminal Law Revision Committee:There are many cases where, in order that the accused may be acquitted, an issue must be raised in his favour on some particular matter. Many enactments provide in one form or another that the burden of proving certain matters should lie on the defence. These usually relate to such matters as lawful authority or excuse for the possession of certain articles or some other matters which are likely to be within the peculiar knowledge of the accused".6.45 p.m.
I shall give some illustrations. In Cross on Evidence, the latest edition at page 125—and this is the standard textbook—states:The policy underlying statutes which place a burden on the accused is justifiable, because in the absence of such a provision a number of unmeritorious submissions of no case to answer would have to be accepted".That is just what one fears here if the Government clause stands even with its amendment. As my noble friend Lord Trenchard says, you will have the eleven accused saying, "You haven't proved that I knew anything about it; that I had any suspicions".
Let me take what I hope may be almost a typical case. Salmon are poached illegally in Scotland. They are loaded on to a van. They are apparently seen by a little boy who takes the number of the car, or maybe by a policeman, and it is whistled along and soon there is a message down the Great North Road, "Watch out for that car with that number". The car is stopped. In the back you find salmon, and you find marks of netting, or the like. Under our English law it is clear that the water bailiff, or the constable, has power to arrest the driver and seize the salmon under our own statute, the 1975 Act, he has power to arrest and seize him, and take him and the salmon too. He has not got to prove anything against the man. He has only to show that the circumstances are such that it is reasonable to suppose that those salmon were illegally taken, and he has plenty of evidence to show that.
998 Suppose he then takes the man to court. He proves how he stopped the van and looked at the back, saw this load of salmon, and the man said, "I didn't know anything about that. I only bought them now." As I suggest, there is sufficient evidence to bring the case against him. That is all you can prove for the prosecution. Put the case against him that they stopped that van and they found in it 20 to 100 illegally taken salmon. Does that not really raise a prima facie case? Is it not then on the man in possession—ought it not in law to be on him—to say how he came by the salmon?
Now let me give some illustrations in our English law where time after time Parliament has, in circumstances where articles are suspicious, put the burden of proof on the man who has them. The first case I have is in the books under the Prevention of Crime Act 1953. It is an offence for a person to have an offensive weapon with him in a public place,without lawful authority or reasonable excuse, the proof whereof shall lie on him".An offensive weapon is,any article made or adapted for use for causing injury".Then for 120 years we have had the statute that if a man is found in possession of housebreaking implements by night without lawful excuse the proof of that excuse shall lie on such person. Then we have the case in the books of going into a pavilion early in the morning at a quarter past five. They found a bricklayer with his chisel and a screwdriver. He was in possession of housebreaking implements by night. The onus was on him. He managed to discharge it in that case. He said, "I was on my way to work", and that was accepted. That was done according to the statute book.
Now I come to perhaps the most telling illustration of all. It is in relation to the Misuse of Drugs Act of 1971. Under Section 5 it is an offence for a person to have a controlled drug in his possession, which may be in the back of his car, on the seat and so forth. In those circumstances it is an offence and he has no defence except this. Under Section 28 (2) and (3) he has to prove that he neither believed, nor suspected, nor had reason to suspect that the substance or product in question was a controlled drug. That is the situation. A man has a drug, maybe in the back of his car or in his pocket. The car is stopped by the police and a controlled drug is found in it. Under the provisions of the statute such a man is guilty unless he proves that he neither believed, nor suspected, nor had reason to believe that the substance in question was a controlled drug. Is that not an exact parallel to the situation here?
Is it not almost an equivalent offence? Here, one has poached salmon, illegally obtained. No one can identify them, no one can say they were stolen. A person has them and they have been illegally obtained. It is not too hard a burden. If it is all legal or if he had no suspicion, let him prove it. It is the same as in a drugs case.
I have given those illustrations to show your Lordships that throughout our English law, in case after case where articles are found in suspicious circumstances, Parliament has said, "Let the man be charged; let him get away with it if he can prove it". Thus I am saying that the principle for which I am 999 contending in this clause and in these amendments is in complete conformity with English law. There have been many precedents in favour of it. I do not know about Scots law; I do not know anything about Scots law, but at all events I should say that with those ample precedents your Lordships can give effect in the Bill to the amendments which I have suggested. That is to say, strike out "for him" as a burden on the prosecution. On the other hand, let him get away with it if he had no reason to suspect.
It is a perfectly simple and practical proposition which enables the water authorities and the police to do something to curb this practice. As I read out from one of those textbooks, the policy behind it is this. Unless the burden is put on the defendant, one will find in case after case that a man who has really no defence submits—I do not know whether they do it in Scotland but counsel regularly do it here—to the judge, "No case, my Lord", or, to the magistrates, "No case, your Honour", because the burden has not been put on the defendant. To avoid defendants getting away with those unmeritorious defences, Parliament has time after time put the burden on the defendant.
I have looked into this matter in some depth. I am much indebted to the noble and learned Lord the Lord Advocate for his help in the consultations which we have had. As a result of that, I hope your Lordships will accept these amendments which we are putting forward. The amendment of the noble Viscount, Lord Trenchard, is along the same lines as mine. In these amendments, we are putting the burden where it ought to be. The circumstances are such that we want to catch the whole gang, from the drivers, all the way down; I want to catch those from the organisers, the chiefs at the top, all the way down. I want to bring them all before the court. In those circumstances, I hope that we shall do something to uphold the law and catch these people who are parties to this illegal traffic. I hope your Lordships will accept my amendments.
Lord Home of the Hirsel
My Lords, to be sandwiched between my noble and learned friend the Lord Advocate and the noble and learned Lord, Lord Denning, is not a very enviable position, particularly when part of the disputation is the difference between Scottish and English law. I do not feel that at this stage I can add very many words to the argument that has already taken place in Committee and at Report stage and the words that we have heard from my noble friend Lord Trenchard this afternoon. I think I can understand the Lord Advocate's insistence that there is a principle of law inolved; namely, that the individual brought to court must have the chance to convince the court, if he can, that he did not believe, that there were no circumstances in which it would have been reasonable for him to suspect, that he had obtained the salmon in his possession from an unlicensed source.
Therefore greatly daring, I am bound to say I should have had doubts about the amendment of the noble and learned Lord, Lord Denning, to remove the words, "for him". However, I think it must be clear to my noble and learned friend the Lord Advocate that there is still a lingering doubt in the House that if the words in Clause 21, even as now amended this 1000 afternoon, are the only test in the Bill, it will be more difficult than need be to bring culprits to justice. As that is one of the purposes of the Bill, these words may not be strong enough to achieve that. This is part of the case of the noble and learned Lord, Lord Denning.
I want to make clear at once that I shall listen to what my noble and learned friend the Lord Advocate has to say in reply and shall read tomorrow what he has just said. I am bound to say that the Government have been so helpful during the passage of this Bill through the House, and the Bill has been so much improved as a result, that I should not now feel justified in voting against the Government on Third Reading.
However, I hope that my noble and learned friend can keep this issue alive and discuss with the law officers in another place whether, before the Bill leaves another place, words can be found which will not offend against any principle upon which it is proper for the law to insist—I quite understand that—but will meet part of the difficulty which has so much worried so many of your Lordships here. For example, cannot the obligation be placed on the individual to say where he obtained the fish? To the layman, that would seem to be reasonable. Therefore, as I say, I make plain my own personal position on this amendment at this time. I should not feel justified in supporting it but I hope my noble and learned friend the Lord Advocate will be able to say that he will keep the issue alive.
Viscount Colville of Culross
My Lords, I hope the House will follow the advice of my noble friend Lord Home and not accept this amendment tonight. It is my misfortune that I am the only lawyer to whom my noble friend Lord Trenchard has spoken who does not agree with him. It is an even greater misfortune that I have to disagree with the noble and learned Lord, Lord Denning. My comfort lies with my noble and learned friend on the Front Bench.
Perhaps one of the reasons for this is that I approach this matter from the point of view of Parliament taking very seriously the way in which it creates a new criminal offence. I think we must be exceptionally vigilant that, however serious the mischief may appear to some people to be, we do not create something which is completely out of line with the kinds of criminal offences that occur in broadly similar circumstances.
The analogy of the handling of stolen property has already been used. I must confine myself to the law of England and Wales because it would be rash to venture into the law north of the Border. I am afraid my noble friend Lord Trenchard got it wrong. The law on handling as it now stands in England and Wales is that once one has established that the goods were stolen, one has to prove that the defendant either knew or believed that the goods were stolen. It is wrong to say, as my noble friend did, that he must have believed or that he ought to have believed, because that has already been dealt with by the courts and they have said that that is not the test. It is the test of whether he knew or believed: in other words, a purely subjective test to him.
The Government have already gone beyond that in connection with illegally taken salmon. They are not 1001 using that test at all. They are making it much more difficult for the defendant. As the Bill now stands, and as the amendment in the name of my noble friend Lord Gray would equally keep it, the test would be not what he believed himself but what a reasonable man in possession of the facts that he knew about ought to have believed or would have believed. In other words, it is the test that my noble friend was talking about. This defendant must have believed or ought to have believed in all those circumstances that these fish were poached. That in itself is a very substantial advance upon the normal criminal burden in England and Wales for the handling of any other stolen goods that I know of.
It is now suggested that we should go even further; and this is the purpose, as I understand it, of the two amendments. We should not go upon what that defendant ought to have known, given the facts that were available to him as a reasonable man. Oh, no. It is suggested that he should be convicted and this should be part of the offence on the basis of what anybody else knew were reasonable suspicions, even if he did not know that they were suspicions at all himself and was completely innocent of any such knowledge or belief.
The noble and learned Lord, Lord Denning, referred to a misuse of drugs; and there was indeed a very famous case which came before this House sitting judicially in 1970. It was the case of Sweet v. Parsley and it concerned what was, on the face of it, an absolute criminal offence to do with keeping a house in which cannabis was being smoked, even if one did not know about it and had no way of knowing about it. The noble and learned Lord, Lord Diplock, said this, if I may quote very briefly—this is, of course, relating to the way in which the courts interpret this sort of statute: the authorities,laid it down as a general principle of construction of any enactment, which creates a criminal offence, that, even where the words used to describe the prohibited conduct would not in any other context connote the necessity for any particular mental element, they are nevertheless to be read as subject to implication that a necessary element in the offence is the absence of a belief, held honestly and upon reasonable grounds, in the existence of facts which, if true, would make the act innocent …This implication stems from the principle that it is contrary to a rational and civilised criminal code, such as Parliament must be presumed to have intended, to penalise one who has performed his duty as a citizen to ascertain what acts are prohibited by law … and has taken all proper care to inform himself of any facts which would make his conduct lawful".With the amendments as they are proposed, we are going beyond that. We are attempting to make criminal conduct something of which the person concerned could not have known and of which he was innocent.
Then the noble and learned Lord, Lord Denning, says that the way round it is to place an onus upon the defence which no doubt he could easily fulfil. I am sorry. I stick before that. I stick upon the proper construction of the test that the prosecution has to provide before the court. I believe that this is not a case where we are dealing with dangerous drugs, with firearms or with any of the other things contrary to public safety or to public health or to morals, which are the areas where this normally, if it appears at all, applies. We are dealing with salmon. And they are not immoral. They arc not to do with public safety and 1002 they are not to do with public health. I do not believe that we ought to go beyond what the Government have already conceded, which is a very considerable extension of the law of handling as it applies to anything else.
§ Lord Moran
My Lords, may I say a word about this, as a layman, from a strictly practical point of view. I have listened with care to the speech by the noble and learned Lord the Lord Advocate and I should like to thank him and the noble Lord, Lord Belstead, for their patience and courtesy in listening to the doubts that we expressed and in explaining the thinking behind the wording they have chosen. Lord Belstead's Amendment No. 16 is, I think, a very slight improvement on the original wording but not much more than that. When at our meeting the Lord Advocate told us of this proposed change, I at once asked him if the words "for him" could be left out, which would have made the proposal acceptable to me. But for reasons which he has explained in his speech earlier this evening, he could not agree and that change is now in Lord Denning's amendment No. 70.
I have throughout been primarily concerned with the situation in England and Wales. That is why I put my name to Amendments Nos. 17, 18 and 21. I have argued at earlier stages of the Bill the need for these clauses to be clear, unambiguous and acceptable to the water authorities as likely to be effective in making, as the noble and learned Lord the Lord Advocate claimed, an important contribution to deterring illegal fishing. It is essential that it should be deterred. I spoke about the magnitude of the problem at earlier stages of the Bill. It is a very serious problem all over Great Britain and we really ought to have an effective clause to deal with it.
I am not competent to argue with the noble and learned Lord the Lord Advocate on legal points; but if the Government wording really does what he claims for it, why is it that so much legal opinion and all the water authorities still think that it will not work? The water authorities wrote to the Lord Advocate and to other Ministers concerned with the Bill on 20th February reminding them of the doubts that they had expressed at the end of January when they asked for—and I quote their letter:a more simple form of wording which obliges those persons handling salmon in suspicious circumstances to explain themselves to the satisfaction of the courts. We continue to be concerned about the wording of this clause".They go on to say:we are solely concerned as to whether we will be able to obtain prosecution in magistrates' courts in England and Wales".The following day the chairman of the Water Authorities' Association, Fisheries Committee, wrote to the noble Lord, Lord Belstead, saying:We are troubled that the burden of proof in court is still very substantially with the prosecution to prove either a state of mind or reasonable grounds for a state of mind. The experience of our prosecutors in court is that magistrates do not find it easy to accept that the prosecution has discharged the burden of affording this proof and we consider that if government are indeed prepared to reverse the onus in such cases, the law must say so in clear and precise terms".He went on to say in that letter that he had read it in draft to a meeting of the South West Water Authority's Regional Fisheries Advisory Committee 1003 and that a number of senior magistrates present at that meeting endorsed the views expressed.
That is what has worried me all the way through on this Bill, that we are putting in a clause which is to deal with a vital problem, a clause which those who are near to the problem at the sharp end and who are having to deal with it do not think will work. It is like sending up a pilot in a plane in which he has no real confidence. I wish it could have been redrafted altogether in plain English, as I suggested at Report stage. But, failing that, I support the amendment tabled by my noble and learned friend Lord Denning.
§ The Earl of Onslow
My Lords, as a total layman who does not understand very much law, I think I have been totally persuaded by my noble and learned friend on the Front Bench, and the matter has been further elucidated for me by my noble and indeed very learned friend Lord Colville of Culross. The idea seems to me extraordinarily dangerous that this House, from its position of privilege and from its wide experience of owning and fishing salmon rivers, should pass a law which if it is amended (as both my noble friend Lord Colville and my noble and learned friend on the Front Bench say) by Lord Denning's clause is so draconian that it becomes practically a matter of merely looking at one of Lord Lansdowne's fishes being sufficient to get you sent straight to Australia! I think this is wrong, frankly. It is miles too strong. It will look like very heavy sectional class interest and that is something we should not in any circumstances tolerate.
Somebody mentioned drugs and offensive weapons. I suppose you can sock somebody at the base of the skull with a wet salmon and I suppose you could possibly distil salmon and inject it, but I do not think that one should really compare the ownership of a stolen salmon with that of either drugs or offensive weapons. I think the Government have gone absolutely far enough—I suspect even verging on the slightly-too-far. I think we should congratulate the Government on all the things they have listened to in respect of this Bill and also on the fact that they have been sensitive and civilised over this whole issue.
§ Lord Ross of Marnock
My Lords, I may say that I, too, have had my doubts about this particular clause, and my doubts have swayed between the difficulties of proof and making it far, far too easy to find someone guilty of a new offence. And let us remember this when we are talking about "blackguards", before ever you begin to try them and before ever the noble and learned Lord, Lord Denning, gets them into court all these epithets derogatory to the individual are not very good, I think, from the point of view of looking at justice.
This is a new offence; that is the point. Nobody has to prove that the salmon has been illegally caught. The offence is proof of suspicion. You have to be very careful in respect of a new offence like that, and I want to express my thanks to the Lord Advocate and to the noble Lord, Lord Belstead, for the care they have taken. I was a sceptic until we had (believe it or not) 80 minutes—and we are on Third Reading! We had nearly as long as that in private on this same one thing. I started by being sceptical but finished up on the side 1004 of the Lord Advocate. He had gone as far as he could. May I also express my appreciation of the advice that was given by the noble Viscount, Lord Colville of Culross (if he does not mind the Scottish pronunciation)? I think he made clearer the importance of the decision we are going to take.
I think the balance is just about right. I am not going to argue all the legal niceties, but I think that to leave out "for him" makes it far too easy for a miscarriage of justice to occur. We have got to guard against that. I think the balance is about right. The Government have tried hard, and it may well be they will continue to think about it. But, for my part, I am prepared to support the Government in their stand on this one.
§ The Earl of Perth
My Lords, I am in no way able to judge the legal arguments one way or the other, but something which the noble Lord, Lord Home, said rang a bell. I understood it. He said that at least one should be able to ask where the person got the fish. I would perhaps add, "and when he got the fish".
If the Government were able to say to us, "We will consider whether we cannot get the ability to ask just those questions before the Bill goes to another place", I for one would be happy. Without that, there seems to me to be such an enormous weight one way or the other. What the noble Lord, Lord Home, has said is really what any reasonable person would expect; namely, to be told, "Oh, I got it from so-and-so yesterday."
§ Baroness White
My Lords, I do not wish to detain the House, which I am sure wishes to come to a conclusion. I would only say that I entirely support what the noble Earl, Lord Perth, has just said.
§ 7.15 p.m.
§ Lord Cameron of Lochbroom
My Lords, we have had a very useful debate, and may I say at the outset that I am grateful to all those who have spoken on this matter. I should like to dispel one or two concerns which noble Lords have had and, in particular, the one given voice to by the noble Lord, Lord Home: that is, the concern about an obligation to explain where the fish came from.
Of course, we have today been considering the question of the prosecution itself and what will happen when the case comes to court. We are not concerning ourselves, and have not been doing so, with what happens beforehand, but may I just take up the example which the noble Viscount, Lord Trenchard, raised—the question of the officer stopping the motor car 20 miles from the river? Before he could do that, he would himself have had to have some reasonable suspicion that an offence had been committed. As the noble Viscount accepted, that suspicion may not of course be material which at the end of the day, when it comes to court, will be susceptible of being admissible evidence.
However, he has a reasonable suspicion, and he stops the car. According to this, he asked various questions, but the one question he did not appear to have asked is, "Who is your friend?" He is perfectly entitled to ask that question, and if he receives a blank refusal then if that conversation were to be retold in court along with other material circumstances which 1005 must have been known to that individual that may well be just the very kind of circumstance which at the end of the day could lead a court to convict that person properly on the evidence.
That is why I say that the issue of when you should account for yourself may well arise at an early stage, long before you came to court, when the explanation given then may be so incredible as to be exactly one of those circumstances upon which the prosecutor could rely as showing that the individual believed, or that any reasonable person looking at the circumstances would have suspected, that the fish had been taken illegally, though not necessarily by that person.
Nevertheless, I think it is only right to say that I recognise that the noble Lord, Lord Home, has put a specific and important point. I would be happy to say that whether, in another place, we could consider requiring a person in those early stages to give an account as to where the salmon had come from, might be an issue to be looked at, and I would be ready to ask the law officers to consider that point seriously in another place.
However, that does not detract from the point upon which I have, I hope, been standing quite clear and quite firm so far as the offence is concerned and so far as concerns the evidence to be led in court. May I just remind your Lordships of what was said by a Scottish court upon that very matter? The court said:The circumstances on which the police suspicions are based may not be the same as the circumstances spoken to by the witnesses in court, where the laws of evidence prevail".It is the latter we are concerned with so far as the offence is concerned.
There is little else that I wish to say, but one or two concerns were expressed by noble Lords so far as differences between England and Scotland are concerned. First, I should like to make it quite clear to the noble and learned Lord, Lord Denning, that the word "possession", so far as Scots law is concerned, comprehends all the various individual circumstances which appear in the English clause. Secondly, we have the principle, as it is known, of art and part; that is to say, any person who is party to the possession—maybe all the kinds of persons that the noble and learned Lord was speaking to—can equally be held to be guilty in the circumstances of a general possession, if it is of the group which the noble and learned Lord was considering.
I think the noble and learned Lord gave the impression—and he may have misunderstood what I said—that the phrase,circumstances in which it would be reasonable for him to suspect",imports the objective test which we were all concerned to have. I wish to make that abundantly plain. It is what a reasonable person, looking at these circumstances in the position of the accused, would have suspected. I think that the noble and learned Lord instanced the case of a car being seen by a little boy and thereafter being stopped some considerable number of miles on. If I was the prosecutor, I would be leading the evidence of the little boy as much as the evidence of those who stopped the car. If you put all those factors together in the way in which the noble and learned Lord related them, I should have thought 1006 that there might be little difficulty in the court reaching a favourable view so far as the prosecution was concerned.
The noble and learned Lord pressed me on the issue of other cases, but may I say that, when one is dealing with housebreaking implements in a person's possession at night, those very facts speak for themselves. They are redolent of suspicion. Those are the very circumstances at which we point in the Bill. If the prosecution can establish those, then the court may convict unless the accused person shows that, having ignored the suspicions which any reasonable man would have that the fish had been taken illegally, those suspicions were incorrect because the fish themselves were not taken. It is in that respect that we have, as it were, placed a burden of proof upon an accused person if he sees fit to accept it.
In conclusion, there was reference made to an offensive weapon. All I can say is that anyone can recognise an offensive weapon. It does not take very much to do that and, in my submission to your Lordships, that is no true analogy. For those reasons, I urge your Lordships to accept these amendments as they stand.
§ Viscount Trenchard
My Lords, I understand, having consulted the Clerk, that I have hijacked the right of the noble and learned Lord, Lord Denning, to speak to what was originally his amendment, as a result of his request that I should speak first. I have inquired as to whether I can relinquish that right in his favour and am told that I cannot. That being the case, I should just like to make two very short points.
My noble and learned friend the Lord Advocate said that the one question that I did not suggest that the court could ask was, "Who is your friend?" If on reading Hansard I find that I did not do that, I apologise for being far from clear. But it is because of the ability of the apprehended, or the accused, to maintain that those salmon were not poached at all that he can politely say, "I don't want my friend bothered about that kind of thing. As I have told you, he often does this for me." So I suggest that, again because you cannot tell that the salmon are poached ones, the problem is there.
The problem would be answered according to the formula that my noble friend Lord Home suggested—namely, that in some way we find a method of requesting or putting an onus on the apprehended or the accused, where there is suspicion, to say where he got his salmon from. In this respect, the licensing provisions, in regard to which we are extremely grateful to my noble friends on the Front Bench, produce a situation, certainly in England and Wales and conceivably in Scotland too, where only licensed people can either take by rod and line or net or buy and sell salmon. This, I suggest, makes it very much easier for the request of my noble friend Lord Home to be met, because only authorised people will be in possession of salmon.
So, with that suggestion and hoping that I am not betraying the noble and learned Lord, Lord Denning, whose amendment I hijacked, I should like to withdraw the amendment, on his behalf and on behalf of my noble friends who put their names to my amendment, against the definite statement that the 1007 Government will think again and will ask law officers to see whether there is any way of meeting this, particularly in the context of licensing and providing a complete chain. I beg leave to withdraw the amendment.
§ Amendment to the amendment, by leave, withdrawn.
§ On Question, amendment agreed to.
§ Lord Denham
My Lords, I think it will probably be for the convenience of the House to break now. I beg to move that further proceedings after Third Reading be now adjourned until 8.15 p.m.
§ Moved accordingly, and, on Question, Motion agreed to.
§ [The Sitting was suspended from 7.28 to 8.15 p.m.]
§ The Deputy Speaker (Lord Hayter)
My Lords, as Amendment No. 8 was agreed to, I cannot call Amendment No. 10.
§ [Amendment No. 11 not moved.]
Lord Gray of Contin moved Amendment No. 12:
Page 21, line 6, after ("(4)") insert ("—(i)").
§ The noble Lord said: My Lords, it may be for the convenience of the House if I take with Amendment No. 12 Amendment No. 13.
§ My noble friend Lord Burton has brought to our attention in earlier discussions the difficulties which can be caused by the lack of power for a water bailiff to search a vehicle on the public road where he suspects that an offence has been committed, and evidence may be found therein. The bailiff already has this power in relation to a vehicle found on private land adjoining waters in his or a neighbouring district. It does not seem reasonable therefore that if the vehicle is parked on a road, or in a layby near water, the power should not be available. I have therefore tabled this amendment to extend the exercise of the power to a vehicle parked on a road adjoining or near waters in the bailiff's district.
§ I know that there is, rightly, concern about any extension of the powers of water bailiffs. I should therefore make it clear that this extension does not give the bailiff a free hand. He must have reasonable grounds for suspicion that an offence against specified provisions of the 1951 Act has been committed and that the evidence of the commission of the offence is to be found in the vehicle. The vehicle must be parked on private land adjoining water in his own or a neighbouring district, or on a road adjoining such water or such land. The amendment does not give the bailiff power to stop a moving vehicle. It simply removes a somewhat illogical restriction on his powers where a suspicious vehicle is found parked on a road. It goes no further, and should not be regarded as a major extension of a bailiff's powers. It will nevertheless be helpful in particular circumstances and I hope that it will find support. I beg to move.
§ Lord Ross of Marnock
My Lords, it is a great pity that the noble Lord, Lord Burton, is not with us right at the moment. I do not know whether he hopes to be with us.
1008 There is no doubt about it, it will be considered an extension of the powers of the water bailiffs. I can think of people in Scotland who are more popular than water bailiffs, particularly in certain parts of Scotland. But bearing in mind that we are now talking about organised poachers who do so with vehicles, if the water bailiff is worth his salt they will not come on to private land with their vehicle. They will have it elsewhere. The only question that arises relates to the quality of water bailiffs, a subject which my noble friend Lord Carmichael has raised before. Despite all that is said they could be not the most trustworthy people. I am glad to see the the noble Lord, Lord Burton, is now with us. I am delighted.
§ Lord Ross of Marnock
My Lords, if I give the noble Lord time to sit down by saying a couple more sentences, he will be able to get up and congratulate the Government for having accepted his ideas which he pursued right from Second Reading.
A question arises in respect of water bailiffs. I know it was meant as a bit of joke, but someone put forward and had accepted as a water bailiff for a salmon district board a person who was actually in prison and who was serving that imprisonment for murder. That shows that there is a certain amount of slackness somewhere. I hope that that kind of incident is not repeated.
I do not know what the Government can do about this, but if the powers of the water bailiff—which the constable already has—are to be extended, then it becomes all the more important to ensure that one is dealing with trustworthy people. Most of the water bailiffs I know in the Ayrshire area are highly respectable people. Indeed, many of them are professional people who undertake such work voluntarily because of the poverty of the authorities who, if they want any protection, very often have to provide it themselves.
The only other point that arises is the definition of the word "adjoining" in respect of a public road. How does it adjoin? There might be a weakness there unless there is an adequate definition of the phrase.adjoining such water or such land".It may be easy to understand the limitations of that provision if the road is going through such land, because then it is obviously adjoining such land. But if it is separated from that private land—for example, if it is on the other side of the road—does that mean it is still adjoining? It is very important to get that right. I am perfectly sure that the noble Lord, Lord Burton, will be able to put that point far better than me, since it was the noble Lord who first raised it.
§ Lord Burton
My Lords, all I was going to do was to congratulate my noble friend on having found an amendment that was satisfactory after we had reached the third stage of this Bill. Clearly this provision is required in respect of a vehicle standing at a lay-by. After all, people are not going to drive on to a field or on to someone's private land; they are much more likely to park at a lay-by. Therefore, I should like once more, as on many previous occasions this evening, to thank my noble friend for having introduced this amendment.
§ Lord Gray of Contin
My Lords, the noble Lord, Lord Ross of Marnock, asked me about a definition of the word "adjoining". I cannot give him a more accurate description than that which I am sure he and I would agree upon. The vehicle must be parked on private land adjoining water. My interpretation of that is alongside such water. My interpretation of the words,his own or a neighbouring district, or on a road adjoining such water or such landis, again, alongside such water or such land.
§ Lord Ross of Marnock
My Lords, I do not want to nit-pick, but the Minister used the words "private land". He did mean to say "public land", did he not?
§ Lord Gray of Contin
My Lords, the words are:adjoining water in his own or a neighbouring district".
§ On Question, amendment agreed to.
§ Lord Gray of Contin moved Amendment No. 13:
Page 21, line 8, at end insert (";
(ii) after the word "thereon" there shall be inserted the words—
or in any stationary vehicle on
§ On Question, amendment agreed to.
§ [Amendment No. 14 not moved.]
Lord Belstead moved Amendment No. 15:
Before Clause 28, insert the following new clause:
§ ("Dealer licensing in England and Wales.
PROVISIONS APPLYING TO ENGLAND AND WALES
§ (1) The Minister of Agriculture, Fisheries and Food and the Secretary of State may by order made by statutory instrument make provision for the purpose of prohibiting persons, in such cases as may be specified in the order, from—
- (a) dealing in salmon otherwise than under and in accordance with a licence issued in pursuance of the order by such person as may be so specified; or
- (b) buying salmon from a person who is not licensed to deal in salmon.
§ (2) Without prejudice to the generality of subsection (1) above, an order under this section may—
- (a) prescribe the manner and form of an application for a licence to deal in salmon and the sum, or maximum sum, to be paid on the making of such an application;
- (b) specify the circumstances in which such an application is to be granted or refused and the conditions that may be incorporated in such a licence;
- (c) authorise the amendment, revocation or suspension of such a licence;
- (d) create criminal offences consisting in the contravention of, or failure to comply with, provisions made under this section;
- (e) provide for matters to be determined for the purposes of any such provision by a person authorised by any such provision to issue a licence; and
- (f) make provision, whether by applying provisions of the Salmon and Freshwater Fisheries Act 1975 or otherwise, for the purpose of facilitating the enforcement of any provision made under this section.
§ (3) An order under this section may—
- (a) make different provision for different cases; and
- (b) contain such incidental, supplemental and transitional provision as appears to the Minister of Agriculture, Fisheries and Food and the Secretary of State to be necessary or expedient.
§ (4) Except in the case of an order to which subsection (5) below applies, no order shall be made under this section unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.
§ (5) A statutory instrument containing an order under this section which relates exclusively to the sum, or maximum sum, to be paid on the making of an application for a licence to deal in salmon shall be subject to annulment in pursuance of a resolution of either House of Parliament.
§ (6) In this section "deal", in relation to salmon, includes selling any quantity of salmon, whether by way of business or otherwise, and acting on behalf of a buyer or seller of salmon.").
§ The noble Lord said: My Lords, at Report stage I said that the Government would be introducing an amendment to give my right honourable friends powers to establish a dealer licensing scheme in England and Wales. Amendment No. 15 is the amendment promised, and to a large extent I believe that it speaks for itself.
§ Your Lordships will see that the clause is drafted to give all the necessary powers to establish a dealer licensing scheme. They include powers to determine who shall issue licences and to which classes of trader; to create offences and penalties; and to grant appropriate powers of enforcement. The powers are broadly described, since, as your Lordships will have recognised at Report stage, such powers are necessary in order to enable the Government to establish the details of the scheme in consultation with those concerned. The order introducing the scheme will be subject to the affirmative resolution procedure, which will enable both Houses to debate the scheme's details when the order is laid before Parliament.
§ The clause enables my right honourable friends to fix licence fees, or maximum rates of fee, by negative resolution procedure. In essence, those powers parallel those taken in relation to Scotland in Clause 19, allowing for the differing statutory framework there. We shall of course be consulting interested organisations about the form of the new scheme with a view to getting things moving as soon as the Bill becomes law. The clause will provide the basis for us to do so. I hope that your Lordships will feel that it meets the commitment given to your Lordships' House. I beg to move.
§ Viscount Trenchard
My Lords, at this stage someone ought to record our thanks to my noble friend Lord Belstead and to his colleagues involved in the Bill for producing in record time a thorough description of the enabling powers that he plans to take. I have only one very small point to raise, relating to the very long debate we had on the need for a possessor of salmon to say where he obtained them.
In subsection (1)(b) of the proposed new clause, where there are the words,buying salmon from a person who is not licensed to deal in salmon",I should like my noble friend to confirm that, when interpreted into a scheme, that provision can mean buying salmon from a person who is not licensed either to take or to deal in salmon. I imagine that since those are broad enabling powers, such will be possible.
If the chain about which I have spoken so often is to be effectively created, then we must have also the requirement for any buyer of salmon to buy from a licensed person. That point overlaps very much the 1011 question of how far it is possible to go on requiring individuals found in possession of salmon to say where they obtained them.
§ Lord Burton
My Lords, I should also like to thank my noble friend for introducing this amendment. I have one question to put to him. When the proposed clause refers to salmon, as it does at a number of places, does that include sea trout, or fish of the salmon species, or both?
§ Lord Belstead
My Lords, the answer to my noble friend Lord Burton is, Yes, sea trout are included. To reply to my noble friend Lord Trenchard, whose generous acceptance of this amendment I very much appreciate, he will forgive me if I do not give him an exact answer. Although it is the case that the Government are on record as wishing to introduce a licensing scheme that will provide as strong a chain as possible, from the time when the salmon starts to change hands until it reaches the consumer, it has to be a matter now of consultation—as I said in my opening remarks—with the interests concerned, as to where precisely the dealer licensing system ought to begin and end.
Therefore, we have to undertake consultations with all interests, including, obviously, hotel, wholesaling and retailing interests. I hope that my noble friend will therefore forgive me if I simply say that I have taken on board the concern he has expressed. We will certainly do our best to ensure that the chain is as strong as possible, without making it unduly onerous.
§ Viscount Trenchard
My Lords, with the leave of the House, I asked my noble friend whether the provision as he has tabled it will prevent it from including the need to buy from the holder of a licence to take as well as of a licence to deal. If the answer is "No, it would not prevent him", I can well understand that there are still many problems as to what is actually done.
§ 8.30 p.m.
§ Lord Belstead
My Lords, again, the answer to that is, as I think my noble friend very well knows, that the position is different in Scotland from England and Wales. I can give my noble friend the assurance that he seeks as regards England and Wales that nothing is ruled out in this respect. I understand from my noble friend Lord Gray of Contin that the same answer refers to Scotland; that it is now a matter for consideration in Scotland as it will be in England and Wales.
§ Lord Moran
My Lords, I should like to add my words of welcome for this clause and to thank the Minister very much indeed for having responded to the views of the House so swiftly and introducing this clause. If Clause 28 can be improved in another place, together the clauses will do something effective to cope with the problem of illegal fishing, I am most grateful.
§ On Question, amendment agreed to.
§ Clause 28 [Handling salmon in suspicious circumstances]:
§ Lord Belstead moved Amendment No. 16:
§ Page 24, line 3, leave out ("believing or having reasonable grounds for suspecting") and insert ("at a time when he believes or it would be reasonable for him to suspect.").1012
§ The noble Lord said: My Lords, the arguments for this amendment are exactly the same as those put by my noble and learned friend the Lord Advocate on Amendment No. 8. In formally moving Amendment No. 16 I repeat that the undertaking given by my noble and learned friend when winding up the debate on Amendment No. 8 will hold good for Amendment No. 16. I beg to move.
§ On Question, amendment agreed to.
§ [Amendments Nos. 17 to 19 not moved.]
Lord Belstead moved Amendment No. 20:
Page 24, line 17, leave out ("reasonable") and insert ("the").
§ The noble Lord said: I move this amendment formally; it goes with Amendment No. 16. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 21 not moved.]
Lord Belstead moved Amendment No. 22:
Page 25, line 7, leave out from ("landed") to end of line 12.
§ The noble Lord said: My Lords, this amendment is consequential on Amendment No. 16. I beg to move.
§ On Question, amendment agreed to.
Lord Belstead moved Amendment No. 23:
After Clause 28, insert the following new clause:
§ ("Introduction offish into fish farms without consent.
§ . In section 30 of the Salmon and Freshwater Fisheries Act 1975 (prohibition of introduction of fish into inland waters without the consent of the water authority), at the end there shall be added the words "or he introduces or, as the case may be, intends to introduce the fish or spawn of fish into a fish farm (within the meaning of the Diseases of Fish Act 1937)." ").
§ The noble Lord said: My Lords, this amendment gives effect to the commitment given by my noble friend Lord Gray to your Lordships during the discussion on Report of what is now Clause 23 of this Bill.
§ Section 30 of the Salmon and Freshwater Fisheries Act 1975 makes it an offence to introduce fish or spawn into any inland waters in England and Wales without the prior written consent of the relevant water authority. In the 1981 consultation paper on the review of inland and coastal fisheries in England and Wales, the Government proposed that these controls should no longer apply to introductions of fish into fish farms in England and Wales. This amendment gives effect to that proposal and, as my noble friend said on Report, will provide for a similar approach on both sides of the Border. I beg to move.
§ Lord Moran
My Lords, I must say that I am somewhat concerned about this amendment. The Minister will know that the water authorities are not happy about it and have told the Government that the proposed change has been met with considerable concern by the fisheries advisers of the water authorities. They think that there have been no changes in circumstances which would justify the amendment proposed and that the day-to-day relationships between water authorities and fish farmers work reasonably well.
When this proposal was first made, as I understand it, in the Government's discussion paper of 1981 the 1013 National Water Council, as it then was, pointed out to the Government that Section 30 of the Salmon and Freshwater Fisheries Act stemmed from a need for power to stop the introduction of,alien, undesirable or diseased fish".That was in the Bledisloe Report, paragraph 98. It said the spread of commercial fish farming has not reduced that need. Sensibly the powers were given to water authorities. They added:The Council would advise strongly against any changes in section 30 which might withdraw control over movement of any species, in any state, into enclosed waters however defined".They continued:WAs need the information afforded by their section 30 function for their general fisheries conservation purposes".The Water Authorities Association believes that nothing has changed since 1981 and that it is still therefore sensible that the introduction of fish into fish farms should require the consent of the water authorities.
§ Lord Belstead
My Lords, I understand the point which the noble Lord, Lord Moran, is putting to the Government in that the water authorities have expressed concern that there might be a disease implication so far as concerns this amendment. But while notifiable fish diseases are suspected or confirmed, movement controls may be applied by order under Section 2 of the Diseases of Fish Act 1937. This is done by the Government and not by the water authorities.
These orders may regulate the movement of live fish, eggs, fish or foodstuffs for fish into or out of the site designed by the order, or within the site. In addition, late last year the Government introduced a requirement that all inland fish farms in Great Britain must be registered. Registered fish farms must keep records of all live fish or fish eggs being moved to or from the site. They must also make annual returns to fisheries departments. This strengthens our ability to monitor and apply fish disease controls.
Therefore, I believe that the removal of the requirement under Section 30 of the 1975 Act for water authority approval for the introduction of fish into fish farms will not have any implications regarding disease. The change that we are asking the House to accept would simply remove a bureaucratic control which is not of any assistance to the water authorities with their many important duties, or indeed to the fish farms because it is a control which is covered in other ways.
§ Lord Moran
My Lords, with the leave of the House, may I ask the Minister this? I understand the point about disease, but as most fish farms are connected with rivers is there not a danger that alien species introduced into fish farms might find their way into British rivers?
§ Lord Belstead
My Lords, with the leave of the House, I would not deny that there is obviously a danger that something of that kind could happen, but that is precisely the reason that the order-making power under Section 2 of the 1937 Act exists.
§ On Question, amendment agreed to.1014
Lord Belstead moved Amendment No. 24:
After Clause 29, insert the following new clause:
§ ("Servants and agents authorised by fishing licences.
§ .—(1) For paragraph 9 of Schedule 2 to the Salmon and Freshwater Fisheries Act 1975 (persons treated as servants and agents of licensee for the purpose of being entitled to use an instrument under the authority of the licence) there shall be substituted the following paragraph—
§ "9.—(1) A person who uses an instrument of any description for fishing in an area in relation to which an order under section 26 above limiting the number of licences for fishing with instruments of that description is in force shall not be treated for the purposes of section 25(3) above as the duly authorised servant or agent of any holder of a licence to use an instrument of that description unless, at the time that person uses the instrument—
- (a) his name and address are entered on the licence in accordance with the following provisions of this Schedule; and
- (b) he is not himself the holder of a licence to use an instrument of that description in that area; and
- (c) he is accompanied by the licensee or has the consent of the water authority to his use of the instrument in the absence of the licensee.
§ (2) A person who uses an instrument of any description for fishing in an area in which no such order as is mentioned in sub-paragraph (1) above is in force shall not be treated for the purposes of section 25(3) above as the duly authorised servant or agent of any holder of a licence to use an instrument of that description unless, at the time that person uses the instrument—
- (a) his name and address are entered on the licence in accordance with the following provisions of this Schedule; or
- (b) he is accompanied by the licensee; or
- (c) he has the consent of the water authority to his use of the instrument otherwise than where there is compliance with paragraph (a) or (b) above.
§ (3) The consent of a water authority shall not be given under this paragraph except—
- (a) in the case of a consent for the purposes of sub-paragraph (1)(c) above, in relation to a period which appears to the water authority to be a period throughout which the licensee will be unable through illness or injury to accompany his servant or agent;
- (b) in the case of a consent for the purposes of sub-paragraph (2)(c) above, where the giving of the consent appears to the water authority to be required by the special circumstances of the case."
§ (2) Accordingly, in section 25(3) of that Act, for the words from "not exceeding" onwards there shall be substituted the words "subject to the provisions of paragraphs 9 to 13 of Schedule 2 to this Act".").
§ The noble Lord said: My Lords, the Salmon and Freshwater Fisheries Act 1975 currently permits the holder of a salmon net licence to have entered on that licence the names of duly authorised servants or agents, who may then fish the licensed net on his behalf. As your Lordships well know, these servants or agents are popularly known as "endorsees". Where licences are a scarce commodity, because on conservation grounds the number which may be issued is strictly limited by an order under Section 26 of the 1975 Act, there have been reports of fishermen paying sizeable sums to be "endorsed" on a licence and so have the right to use it in a manner which is, in effect, independent of the licensee.
§ In the case of the North-East of England drift net fishery, in particular, it was felt that this practice—which was clearly not envisaged when the provisions of the Act were originally drafted—was leading to excessive use of the licensed nets in a way which was contrary to the conservation considerations which caused the nets to be limited. My honourable friend the Minister of Agriculture therefore announced last November that among the new 1015 measures to be introduced in the North-East fishery would be orders requiring the licensee to be present when the servants or agents—the "endorsees"—were working the net, unless the licensee was sick or injured.
§ Since that decision was announced, we have had discussions with water authority representatives who have suggested that the modifications to the rules governing the activities of "endorsees" in fisheries where the licences are strictly limited should not be confined to the North-East but should extend to all such fisheries. We agreed with that and this amendment is designed to carry that suggestion into effect.
§ I shall just add that the amendment modifies the conditions for being treated as a duly authorised servant or agent set out in paragraph 9 of Schedule 2 to the 1975 Act in such a way as to enable them to use the net only when the licensee is present, if they operate in an area where an order limiting the number of licensed nets is in force. The only exception to this rule will be in the case of genuine illness or injury, when the water authority may authorise an "endorsee" to fish without the licensee being present. The position in areas where licences are not restricted for conservation reasons will, however, remain unchanged. I hope that your Lordships will feel that this is a useful strengthening of the rules. I beg to move.
§ Lord Burton
My Lords, I should like to raise a question here because my noble friend referred to paragraph 9(c) where there was a special dispensation which the water authority granted. I understood that these fisheries would only be allowed to be used where the licensee was in fact in the boat, but it seems that there is a loophole here. Perhaps my noble friend could explain this.
§ Lord Belstead
My Lords, if I may say so to my noble friend. I think that I covered that point when I introduced this amendment just now. The exceptions are in the case of genuine illness or injury to the licensee.
§ Viscount Trenchard
My Lords, I think that our thanks are again due to my noble friend Lord Belstead for bringing this measure forward into the Bill. I am sure it is a very useful extra provision in areas where there is a desire to reduce the number of legal nets in an estuary.
§ On Question, amendment agreed to.
§ 8.45 p.m.
The Marquess of Lansdowne moved Amendment No. 25:
After Clause 29, insert the following new clause:
SALMON CONSERVATION IN THE UNITED KINGDOM
§ .—(1) Three years after the coming into force of this Act, with a view to formulating a national policy for salmon conservation, the Minister of Agriculture, Fisheries and Food shall lay before Parliament a report on a review of the salmon fisheries of the United Kingdom. This review shall cover, in particular, the operation of net fishing on the north-east coast of England, the east coast of Scotland and the effect of the restrictive measure imposed by this Act on the English and Welsh drift-net fisheries.
§ (2) In deciding whether it is necessary to introduce further restrictive measures in order to conserve the stock of British-bred 1016 salmon, he shall have regard to the international responsibility of the United Kingdom as a member of the North Atlantic Salmon Conservation Organisation.").
§ The noble Marquess said: My Lords, in rising to speak to my amendment I should like to put on record my appreciation of the great pains taken by my noble friends the Ministers in charge of this Bill to examine the very numerous suggestions made by your Lordships on all sides of the House and, wherever it seemed wise and practical to them, to write them into the Bill. I want to put on record my gratitude to them for this.
§ Having said that, at this Third Reading of the Bill I must reiterate my concern that Her Majesty's Government have not yet addressed themselves to the problem of the British salmon fisheries as a whole. I believe that good progress has been made over the question of the management of the salmon rivers of Scotland, and certainly credit is due here to the noble Viscount, Lord Thurso, who presented a Bill last year on the composition of district river boards. I think we should all be grateful to him for that. I think that we have made good progress over the means of control of the illegal taking of salmon—laborious but good progress. I welcome the undertaking to introduce licensing schemes both in Scotland and in England and Wales. The strengthening to the broadening of the composition of district river boards in Scotland I also warmly welcome.
§ However, I am bound to say that it seems to me that Her Majesty's Government have so far missed the opportunity of taking the necessary steps to conserve and enhance the stock of United Kingdom-bred salmon and to show to our partners in the North Atlantic Salmon Conservation Organisation that we wish to co-operate fully with them. The salmon is a considerable economic asset to the United Kingdom. In Scotland alone it was estimated in 1981–82, when a survey was carried out, that the expenditure by salmon fishers was of the order of £34 million.
§ The review that has been promised is certainly a step in the right direction but surely it should cover the whole of the United Kingdom. I believe that this will not be such a formidable task as it may at first appear. The statistics produced by the Ministry of Ariculture, Fisheries and Food, and the Department of Agriculture and Fisheries for Scotland, are detailed and complete. My only criticism of them is that they are not published soon enough.
§ My noble friend Lord Belstead undertook to look into ways of accelerating publication. I should have thought that these statistical bulletins should be published within six months of the end of net and rod fishing. So far as I know there is no net fishing after August and no angling after November, so at worst I should have thought that June would be a possible date. It seems to me that the review which we have been promised will be based largely on data collected by the Government's statistical department—I think it is called the Government statistical service. It will probably mean therefore that the review could not, and I believe should not, be available to both Houses of Parliament until six months after the completion of the third fishing season after the coming into force of this Bill.1017
§ I mentioned the figure of £34 million as the estimated annual expenditure of salmon anglers in Scotland during the period 1981–82. These figures were estimated by a group from Edinburgh University who did a survey of three areas of Scotland. Unfortunately, because of the limitation of funds available, the sample taken was rather small and the area covered was not particularly large, though I think it was reasonably wide and covered the main ideas of what goes on in the fishing in Scotland. The prime objective of the study was to evaluate the economic value of salmon fishing in three selected areas of Scotland and if it were feasible—a big "if"—to make estimates for the whole of Scotland.
The areas covered were the Kyle of Sutherland, the Tay between Perth and, it so happens, my home, Meikleour, and the Spey between Grantown and Ballindalloch. Quite clearly that survey was no more than what one might call a pilot scheme, but it had great possibilities had more money been made available so that it could have been complete. The conclusions of those who made the survey were that:
Resources should be put toward establishing reliable statistics on rod days",
The fishing districts of Scotland"—
it only referred to Scotland—
should be classified (for example, by rod days let or amount charged), and the whole of Scotland stratified".
In all our discussions on the important question of the salmon, its conservation and, I believe, the possibility of its enhancement in the United Kingdom, I have had a feeling that perhaps a number of noble Lords may not have had access to all the available statistical material. When I wanted to get hold of a copy of the bulletin of the Fisheries Laboratory, Lowestoft, in your Lordships' Library, no copies were available. We are well supplied with information in your Lordships' House and it seemed extraordinary that we were approaching this important subject and there were no copies of the English statistical bulletin.
§ In asking Her Majesty's Government to look ahead and think bigger, if I may say so, it seems essential that the review that we have been promised should be in depth. I much regret that when I put a question to my noble friend Lord Belstead, who has been so helpful throughout the Bill, he felt obliged to tell me of the limitations of the survey. I bitterly regret that. It ought to cover the whole of the United Kingdom. We have a wealth of statistical information available already. I do not believe that it would be beyond the wit of man to have a proper survey of the United Kingdom salmon fishery industry.
§ That has been done in other countries. Canada is doing it. I have here a report of its management plan for the Atlantic salmon. Ireland has produced an admirable little brochure which I have been reading. It is taking quite a lot of trouble and doing a lot of statistical work to see exactly where it stands with its salmon asset.
§ All that my amendment is designed to do is to draw the attention of your Lordships and Her Majesty's Government in particular to the economic and recreational importance of maintaining and, if possible, enhancing—and I believe that it is 1018 possible—the United Kingdom stocks of salmon; and I am talking about salmon bred in the United Kingdom.
§ I alluded to this before and I feel that I must again. In June of this year NASCO will be having its important annual meeting. I was in Edinburgh the other day and took the opportunity of going into its office. It is clear from the conversations that I had there that our partners in the organisation are looking to us to see what we are doing. I doubt whether anything less than we have done could possibly please them and make them want to co-operate with us.
§ I am grateful to the two noble Lords for everything they have done to make what appeared to me to be an inadequate Bill into one of considerable importance. But I hope—and I do not expect the noble Lord, Lord Belstead, to say anything definite to me tonight—that in another place the question of the review that we have been promised being extended to the whole of the United Kingdom may be given careful consideration.
We have had a long debate and I do not want to detain your Lordships, but in closing I want to allude to one matter from overseas. In my hand I have an information sheet issued by the Department of Fisheries and Oceans in Ottawa, Ontario. I have no doubt that the noble Lord, Lord Moran, is familiar with it. There are many points in it. It is called 1984 Atlantic Salmon Management Plan: Major Elements. It is a press release. One statement is:
The Department of Fisheries and Oceans will continue to seek a reduction in the quota for the West Greenland salmon fishery".
We shall continue to do exactly the same, but our chances of success are small unless we can show that we have seriously considered the salmon fishery industry of the whole of the United Kingdom, the conservation of the salmon and its enhancement, if possible, in the whole country; Scotland, Wales and England. I beg to move.
§ Lord Moran
My Lords, I have put down a more modest and limited amendment, so I should like to speak only briefly on the amendment put down by the noble Marquess. I support what he says, particularly about the need to formulate a national policy for salmon conservation, as is stated in his amendment, and all that he has said about NASCO and our relationship with it, which I think is absolutely right and very important.
I should like to mention one aspect that I have discussed with the Minister. It seems to me that our debates in this House have brought out the need for someone to take an overall look at the whole problem of salmon conservation. There ought to be a body to do that. I asked the Minister whether a national body could be set up to monitor salmon stocks and promote the three objectives so admirably set out in the Government's 1981 consultation paper. He told me that he did not think that such a body was required; that the fishery departments already carry out scientific research into salmon conservation and they also collate and publish fairly detailed statistical reports each year. He said, and I am glad about this:I am assured that the reports will in future be published during the year following that to which they relate".1019 That will certainly be a great improvement. He said that those reports provided the necessary basis both for government scientists and private bodies to monitor salmon stocks.
All that I accept, but I think it would help us greatly, now that this has become an international problem in which we need to play our part more effectively than we have done in the past, to have a national body able to co-ordinate and to recommend what our policy should be on all these matters. Had there been such a body, I am sure that the Bill would have started off in a very different shape.
§ The Earl of Perth
My Lords, the noble Marquess has moved his amendment. I find myself very much in agreement with it. I would express myself totally in support of it but for the fact that the noble Lord, Lord Belstead, has an amendment that in many respects covers the same ground. However, there are two points which are not covered in Lord Belstead's amendment. The first is that it does not cover the whole of Great Britain. It is important that this aspect should be considered perhaps on the lines suggested by the noble Lord, Lord Moran. Secondly, there is the word "statistics". It is of the greatest importance that statistics for all the rivers—nets, rods and so forth—should be published as quickly and as regularly as possible. Only in that way shall we be able to assess matters to see how they are progressing against the three year period that is the subject of Lord Belstead's amendment. With those comments on the noble Marquess's amendment, I would wish to await what comes later.
§ 9 p.m.
§ Lord Belstead
My Lords, I should like to thank my noble friend Lord Lansdowne for his generous words when he began to move his amendment. Indeed, I should like to thank my noble friend for promoting my right honourable friend the Minister of Agriculture, Fisheries and Food in the amendment, putting him in charge of fisheries not only in England but also in Wales and in Scotland and I think, also, in Northern Ireland—a small defect in drafting which nonetheless does not detract from the discussion that we are having.
The noble Earl, Lord Perth, referred briefly to Amendment No. 26, the Government amendment, which I hope to move shortly, about the review for east coast salmon fisheries. As your Lordships know, at earlier stages of the Bill, a fair amount of concern was expressed on that subject. I hope that Amendment No. 26, when we come to it, will show that the Government have taken that concern seriously. Having tried to make that effort, I have to say that the amendment of my noble friend Lord Lansdowne goes well beyond the concept of a review of east coast fisheries and would take us into the complex issue of a national salmon policy. It has always been Government policy that salmon conservation measures in all parts of the country should have a common foundation. The work that scientists carry out in the fisheries departments, in close co-operation, ensures that we have a common understanding of the problems. However, the precise measures necessary to 1020 manage salmon fisheries may, I submit, vary from area to area depending on local conditions. The legal form in which they are expressed has to vary between England and Scotland as we have seen during the passage of the Bill because of the different historic rights and the different legal framework in the two countries.
If my noble friend Lord Lansdowne will forgive me saying so, although he was good enough to mention to me that the amendment was appearing on the Marshalled List, it has been rather short notice to start a debate on the issue of a national salmon policy. The Bill, I submit, is making its own contribution in the way that it is creating similar offences in Scotland and in England and Wales, and bringing in the whole concept of dealer licensing on both sides of the Border. I have to say, however, that the purpose of the review that we still have to come to relates to the north-east coast. I understand entirely why my noble friend raises this matter now, but I do not believe that it is possible to go very much further than that specific issue—so far as the Government are concerned, that specific issue—to which we set our hand following the considerable amount of criticism and concern expressed about the conservation of salmon stocks on the north-east coast earlier in the Bill.
I hope that I can give my noble friend rather more satisfaction in relation to another matter mentioned also by the noble Lord, Lord Moran, I refer to the publication of statistics. I have said in correspondence to the noble Lord that in future we hope to publish during the year following that to which the statistics relate. I hope that my noble friend feels that this takes the matter of the collection of statistics, which, I accept, is crucial to the successful outcome of a review, rather further forward.
There is one other issue to which I should refer. The amendment refers, as some noble Lords have done, to the organisation, NASCO. Before we come to the specific amendments relating to NASCO, I should say a word of warning. Express reference to the views of NASCO has not been included on the face of the Bill partly because the fisheries that we are talking about are strictly out with NASCO's remit, being fisheries within coastal waters of an originating member state, and partly because we do not believe it appropriate to commit ourselves in advance to views that may develop in NASCO or in any other organisation over the next three years. That is not in any way to cast doubt on our commitment to NASCO and its objective of controlling the high seas interceptory fisheries. When my noble friend Lord Lansdowne calls in his amendment for the Government to have regard to the views of NASCO in these matters, I should like to give an undertaking on the Floor of your Lordships' House that we shall certainly bear in mind the international implications when conducting the review to which I hope to come shortly on Amendment No. 26.
§ Viscount Ridley
My Lords, my noble friend said that it was rather short notice to talk about a national salmon policy. This matter was raised by several Members of your Lordships' House repeatedly at earlier stages. We cannot allow my noble friend to go entirely unchallenged on that matter. I am sure that it 1021 was raised both by myself and by the noble Lord, Lord Ross, more than once. I hope that my noble friend will look back at Hansard and agree that I am right.
§ Lord Tryon
My Lords, it was indeed a major part of my Second Reading speech. It was dismissed at that stage by the noble Lord, Lord Gray of Contin, on the grounds that it was rather complicated and would muddle up English and Scottish law. But the matter was indeed raised.
§ The Marquess of Lansdowne
My Lords, I should like to thank my noble friend Lord Belstead. I confess that this is a question of there being short notice. Yes, one could call it short notice because the amendment which I put down only reached your Lordships' House by post yesterday morning.
What I am trying to convey is that this Bill—which I criticised at the outset as being a "wee tim'rous beastie"—was a Bill which I think was conceived in haste. I think we owe a great debt of gratitude to my noble friend Lord Gray for getting the Bill in at all. I rather think that it was a question of fitting the Bill into an available slot. It may have been for this reason that insufficient thought—and I say this with great respect to the noble Lord and his department—was given to the Bill. The Bill seemed to me to concentrate on too many parochial details and not to have thought big enough and wide enough. Fortunately for us it was not just a Scottish Bill. It became a United Kingdom Bill. It is for this reason that we were perfectly at liberty to talk about a national policy for salmon.
I know that at this hour it would be ludicrous to expect the matter to go any further in your Lordships' House, but I wish to put on record that I hope the opportunity has not been entirely lost and that when this Bill goes to another place rather wider thinking will apply and that the difficulties which may appear at first about having a national review can probably be demolished.
All we would be doing is tinkering. I must confess that I could not help a degree of impatience when I listened for 81 minutes to the niceties of the legal points of the onus of proof. It seemed to me that a really important matter is to conserve the salmon. In order to conserve the salmon we have to have a national policy. We have to take the trouble to find out exactly what is going on. We have very able scientific advisers, marine biologists who know a very great deal and have a great contribution to make. We have an admirable statistical service both in Scotland and in the United Kingdom.
My amendment is put forward in order to beg Her Majesty's Government to think bigger about the value of the salmon asset in the United Kingdom. I want to say no more tonight but I hope that Her Majesty's Government in another place—we cannot take it further here—may realise that they have the power to save something which we can very easily lose.
I reminded your Lordships of other European countries—we are a European country—who have lost their salmon, who have lost their asset, simply through maladministration. We could very easily do the same. I do hope that we do not. I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.1022
Lord Belstead moved Amendment No. 26:
Before Clause 30, insert the following new clause:
§ ("Review of certain salmon net fishing.
§ .—(1) The Minister of Agriculture, Fisheries and Food and the Secretary of State shall, as soon as practicable after the end of the period of three years beginning with the passing of this Act, prepare a report which, in the context of the need to ensure—
- (a) that sufficient salmon return to spawn in the rivers wholly or partly situated in the areas and districts specified in subsection (3) below; and
- (b) that fishing for salmon by means of nets is properly managed in those areas and districts,
§ (2) A copy of the report prepared under subsection (1) above shall be laid before each House of Parliament.
§ (3) The areas and districts referred to in subsection (1) above are the areas of the Yorkshire and Northumbrian water authorities and the salmon fishery districts from the River Forth to the River Ugie, the River Tweed being deemed for the purposes of this section to be included in those areas and districts.").
§ The noble Lord said: My Lords, in our debate upon an amendment moved by the noble Lord, Lord Moran, at Report stage of this Bill I gave an undertaking to your Lordships that the Government intended to include in the Bill a review of the salmon net fisheries of the north-east of England and those of the Scottish east coast areas, those rivers which most of the salmon caught in the north-east English fishery are returning to.
§ This amendment fulfils that commitment. I should like very briefly to explain the effect of the new clause. Subsection (1) sets out the timescale for the review. It is to be done as soon as practicable after the period of three years from the time this Bill has been passed. Subsection (1) also describes the basic consideration of salmon conservation and fisheries management which will underlie the review. Clearly there will be a number of issues to be considered. It is quite possible that some factors will assume greater prominence in three years' time than they do now, while others may assume less prominence. We believe that the commitment contained in this clause ensures that the basic issues will be considered while allowing for the possibility of unforeseen developments.
§ Subsection (2) requires that a report of the review shall be laid before both Houses of Parliament. Subsection (3) defines the fisheries within the scope of the review which are those which I have already mentioned. The commitment in this clause is clear. I hope that your Lordships will believe that that is so. I beg to move.
The Earl of Perth moved, as an amendment to Amendment No. 26, Amendment No. 26A:
Line 5, after ("which") insert ("taking into account the activities of the North Atlantic Salmon Conservation Organisation in the conservation of salmon and").
§ The noble Earl said: My Lords, first, I should like to say to the noble Lord, Lord Belstead, how very grateful I am to him and to the noble Lord, Lord Gray, for having put this amendment down following the Report stage. When the noble Lord, Lord Moran, proposed the amendment I put my name to it and I think it would be wrong to do anything else but say thank you very much for having gone as far as your Lordships have done.1023
§ Having said that, I wish to move my amendment which gets the word "NASCO" into the Bill. My reasons for moving the amendment, despite what the noble Lord, Lord Belstead, has just said, is that, although I know that NASCO's activities are outwith the area covered by the Bill, nonetheless the two are closely related. I hope that my amendment, which has taken into account the activities of NASCO but nothing more, will meet the point which the noble Lord has made.
§ However, my main reason for asking that NASCO be part of the Bill is this. It is all very well for us in this House, perhaps in the other place and even in the papers to know that the activities of NASCO will be taken into account in any review. What matters far more is that the other members of NASCO know about it. Their activities are crucial to us all. If we take, for example, the people of Greenland, the people of Iceland or the people of other areas where heavy salmon fishing is taking place, they will ask, "What have you done?" We shall say, "Oh well, we have done this, that and the other", and we shall understand it. But we cannot actually say to the members of NASCO, "We are aware of what you are up to and we are doing our part not only as members of NASCO but also in our own more restricted but very important areas".
§ Therefore, I beg the noble Lord to find some method of introducing the name of this organisation, because I believe that it would be of real value, when we have to go to NASCO or to other countries and argue that we are doing all that we can if we could say, "Look the very fact is in the Bill". I beg to move.
§ 9.15 p.m.
§ Viscount Trenchard
My Lords, I welcome the amendment of my noble friend Lord Belstead. I, too, as my noble friend Lord Lansdowne made clear, regret that we have been unable to spell out clearly the need for a national policy for conservation against the background of all that was said on Second Reading about the degree to which our stocks have been reduced. I believe that the Government are a little frightened that if they use the phrase "a national policy for conservation" it follows—and it would have followed as regards the amendment of my noble friend Lord Lansdowne—that they must carry out a detailed review all the way around the United Kingdom.
Other countries have national policies and will not have studied half as much as has already been studied or produced in statistics and records about our salmon fisheries. I suggest that there is no amendment put forward that can do that and so we shall have to say goodbye to the Bill to the other place. However, I ask my noble friend to think again about introducing somewhere a phrase concerning the need for a national policy for conservation, and not to be inhibited by the need for a review of exact netting activities all around the coast. A great many figures are known and I believe that we could more than justify such a course. It is very important from the international negotiations point of view and I believe it will signal the beginning of a policy to conserve properly.
1024 I wish to raise one detailed point on the amendment which my noble friend has put down. He says in subsection 1(a):that sufficient salmon return to spawn in the rivers".Again perhaps when the Bill goes to the other place my noble friend will ask his right honourable friend or his officials in his Ministry to consider the possible substitution of, "the optimum number of salmon return to spawn in the rivers." We are well down in stocks, and in many rivers more than half down. Although it is hard to prove possibly as regards stock levels we are much further down than the catches show, and we have a long road of return before we have the optimum number of salmon in our rivers to make the contribution to the national economy which my noble friend Lord Lansdowne mentioned. This is a small point in addition to the bigger one of somehow inserting the phrase, "a national policy for conservation": however, in the amendment as tabled, let us have, rather than "sufficient salmon", which is rather vague, "the optimum number of salmon".
§ Lord Belstead
My Lords, perhaps I may briefly repeat the views which I expressed about NASCO a few moments ago in reply to the noble Earl, Lord Perth. We have not included an express reference to NASCO partly because these fisheries are strictly outwith NASCO's remit, being fisheries within the coastal waters of an originating member of the European Community, and partly because we do not think it appropriate to commit ourselves in advance to views which may develop in NASCO over the next three years.
I repeat that this in no way casts doubt on our commitment to NASCO and its objective of controlling the high seas interceptory fisheries. When the noble Earl, Lord Perth, calls in his Amendment No. 26A to take into account the activities of the North Atlantic Salmon Conservation Organisation, may I repeat on the record that we shall certainly be bearing in mind the international implications when conducting this review?
My noble friend Lord Trenchard regretted that there is no mention of conservation, and of course my noble friend put it in a national context in the way that Amendment No. 25 of my noble friend Lord Lansdowne did a few moments ago. I would say two things on that. First, it is true that we have not used the word "conservation" itself, although I have said before now in your Lordships' House that we would endeavour to do so if we could. In the end we have not because I am advised that the word is imprecise, sometimes meaning different things to different people. But the expressions we have used relate both to the maintenance of adequate spawning stocks, which, after all, is very much the essence of conservation, and to the management of net fishing. We hope that this gives a clear indication of the underlying issue of the review.
I was interested that my noble friend recommended that we should consider in another place using the word "optimum" instead of the word "sufficient". I notice that when we look at the Marshalled List at Amendment No. 27 we see that the noble Lord, Lord Moran, is going to advise the House that we should use the word "adequate". There are various points of view 1025 as to what the adjective ought to be. The conclusion I come to, for what it is worth, is that this is something that everybody ought to think about and perhaps it can be returned to again in another place.
§ Viscount Ridley
My Lords, before my noble friend sits down, can he inform us where the River Ugie is in subsection (3)? Does it mean that it covers the whole of the east coast of Scotland and the north-east coast of England, or is there a gap somewhere?
§ Lord Belstead
My Lords, there is not a gap. If my noble friend looks at subsection (3) of Amendment No. 26 he will see that the areas to be covered by the review will be the Yorkshire and Northumbrian—which my noble friend knows so well—water authorities, and then the salmon fishery districts including the River Tweed and from the River Ugie to the River Forth. I am advised that the River Ugie is in the Fraserburgh area, but the point I need to get on the record is that there is not a gap.
§ Lord Belstead
My Lords, I am going to break the rules of the House by rising again and saying that I am most grateful to the noble Lady.
My Lords, before the Minister sits down, may I ask him whether he will take on board for the record the point raised about sufficient salmon? I think it would be fair to say that in the Tweed we have sufficient salmon in the autumn, but the time when we do not have sufficient salmon is in the spring and summer, which are the times of year when people come to fish in nice weather, come to hotels, and come to spend money in our part of the world. It is vital to try to improve the fishing in the spring and summer.
§ Lord Stodart of Leaston
My Lords, may I say one thing, not having used my voice on this subject since the first stage of the Committee? I wish to congratulate my noble friend on what he has managed to achieve with this amendment. I speak with some feeling in that some 12 years ago the matter was under consideration and we found, whenever one thought about salmon fishing and one was thinking of the salmon that were returning to the rivers on the east coast of Scotland, that the east coast fisheries, or the north-east coast of England fisheries, stood out like a sore thumb. As I found to my cost, if I may mix metaphors, this sore thumb proved an extremely hard nut to crack. I say with great feeling that I think my noble friend has achieved a very great breakthrough in what he has managed to do.
§ Lord Tryon
My Lords, as, I suppose, one of the greatest hawks against drift netting, this amendment seems to be all I am going to get. I cannot say a very loud "Thank you" for it, but I strongly believe that when we come to talk about this again in three years' time—and if the Government do not find time we will scream for time to talk about it in three years' time—attitudes may have changed and circumstances may be different. Thus, before I slink away defeated on 1026 this part of the Bill, perhaps I may thank the noble Lord for at least going this small way.
§ The Earl of Perth
My Lords, I shall not press further my amendment about the North Atlantic Salmon Conservation Organisation. I would ask the Government again, having thought about what I have said and about what others have said, which is in many of the amendments, to see whether they would not be wiser to put it somewhere in the Bill with the knowledge that it will help them and help the general problem of conserving the North Atlantic salmon. With that, I beg leave to withdraw my amendment.
§ Amendment to the amendment, by leave, withdrawn.
Lord Moran moved, as an amendment to Amendment No. 26, Amendment No. 27:
Line 6, after ("spawn") insert ("to maintain and, where appropriate, restore adequate stocks.")
§ The noble Lord said: My Lords, the thought behind this amendment has already been discussed a good deal. Before I say anything about it, perhaps I may express my own warm thanks to the Minister for bringing in his Amendment No. 26, which I think is a very great step forward and which I personally warmly welcome. All of us should be very grateful to him.
§ This amendment is a very small one because I thought the wording of Amendment No. 26 was perhaps defective in talking simply about sufficient salmon returning to spawn. Obviously, that is a fundamental consideration, but from the point of view of the maintenance of any river for, for example, rod fishing, in order to make it an economic asset for employment and tourism, as so many of these rivers are, it is necessary to have a good many more salmon running up the river than are strictly necessary simply to reproduce the species. It was with that in mind that I had a shot at some wording which I thought might express this generally.
§ However, the alternative wording suggested by the noble Viscount, Lord Trenchard, I think would also fully meet the case. I very much hope that the Government will be prepared to agree to some such wording, simply to define the rather greater number of salmon we all need in these rivers. I beg to move.
§ Lord Belstead
My Lords, as I have said, I think that further consideration as to whether "adequate", "sufficient" or "optimum" should be the right word is something which perhaps ought to be looked at in another place. At the moment we think that "adequate" is the right word, but I think that it perhaps needs another look and I do not think that I ought to say anything more about it than that this evening.
§ Lord Moran
My Lords, I am glad that the Minister is prepared to have a look at it and to consider the word that I have suggested, "adequate". In view of that, I beg leave to withdraw the amendment.
§ Amendment to the amendment, by leave, withdrawn.1027
§ 9.30 p.m.
The Earl of Perth moved, as an amendment to Amendment No. 26, Amendment No. 27A:
Line 8, after ("(3)") insert ("and (4)").
§ The noble Earl said: My Lords, with the leave of the House, may I take Amendment No. 29A at the same time, because otherwise the one is not intelligible without the other. The purpose of my two amendments is very simple. As things stand as I read it at the moment, this review is to cover the outcome of the nets up and down the coast from North Yorkshire to near Aberdeen. But those are the sea nets. At other times during consideration of the Bill we have suggested that it would be wrong for the salmon which are caught on the sea nets being reduced, with the estuarial, the river and the coastal netting benefiting therefrom.
§ The purpose of my amendment is to ensure that in the review what has happened in those nets—that is to say, the river nets, if I may put it that way—is also known; because at this time the netting which is being restricted or controlled very carefully at sea is not necessarily going to do what we want and the netting elsewhere is, in a sense, the netting which is (shall I say?) the rich netting. It would be unfortunate if what one might argue is the poor man's netting is at stake or is controlled whereas the other netting is advantaged. My amendment is to ensure that the other netting is also part of the review and is covered so that the whole area may be looked at together, not just one small part of it. I beg to move.
§ Lord Belstead
My Lords, the noble Earl has made clear that he is concerned that the effects of all netting in rivers, estuaries and coastal waters on salmon returning to spawn in the rivers concerned should be covered in this way in the review. I can assure the noble Earl that the clause tabled in Amendment No. 26 provides for this. Subsection (1) of Amendment No. 26 says that all fishing for salmon by means of nets in those areas will be reviewed. I hope that, with that explanation, the noble Earl will feel that the matter which he has raised is fully covered.
§ The Earl of Perth
My Lords, I am glad to hear it and I think that I can ask no more. My amendment is clearly unnecessary and I beg leave to withdraw it.
§ Amendment to the amendment, by leave, withdrawn.
Lord Moran moved, as an amendment to Amendment No. 26, Amendment No. 28:
Line 10, at end insert—
("( ) that the United Kingdom takes adequate conservation measures in home waters so that the North Atlantic Salmon Conservation Organisation may make progress in securing agreement on international measures to conserve Atlantic salmon;" ).
The noble Lord said: My Lords, this again is an amendment to spell out something which I think the Government fully believe in. In a letter that he sent to me recently the noble Lord, Lord Belstead, was good enough to say:
We shall certainly bear in mind the international implications when conducting the review".
He said as much earlier this evening in this House. But there is at present nothing about the international aspects in the Bill itself and I think that these are so important that they ought to be spelled out.
§ I fully understand that NASCO has no authority to concern itself with coastal waters and therefore I am no longer asking that the Government should take into account the views of NASCO but they should do what I think they are already seeking to do, which is to take adequate conservation measures so that NASCO may make progress.
§ Time is against us because the fact is that Greenland set its own quota in 1985 at 852 tonnes, which is getting on for the total catch in Scotland by all means, which I think is something of the order of 1,000 tonnes. They caught the whole of that in 10 days' fishing; and at the next NASCO meeting in June they are likely to ask for an increase in that quota and we shall have great difficulty in resisting it unless we are seen to have taken adequate conservation measures. If it were spelt out in the Bill, as I have suggested in this amendment, I think that would help us very much.
§ I might say to your Lordships that I have learnt, and have told the Minister, that new salmon feeding grounds off East Greenland have recently been discovered, so there is likely to be greater destruction of the stocks by the Greenlanders. There is also increasing concern throughout the world about interceptory fisheries as such. In fact, the Russians have now joined their voices to those saying that it ought to stop. A statement was made recently by the deputy chief of the science and technology department of the USSR Ministry of Fisheries, saying that Soviet scientists believe that salmon should be caught only after they have returned to rivers for spawning. So I think it is important that this aspect should be covered in the Bill, and I very much hope that the Government will be prepared to accept this amendment. I beg to move.
§ Lord Belstead
My Lords, the amendment which the noble Lord, Lord Moran, has moved would appear to make progress in securing agreement on international measures to conserve salmon dependent on the outcome of the review which is the subject of Amendment No. 26. The noble Lord has been a very distinguished diplomat, and I am sure he would be the first to say to me that it would be to take up a totally false negotiating position for us to start off our negotiating stance in that sort of way. Incidentally, we have a better record on salmon conservation than many countries and I believe that what we are doing in this Bill, despite certain remarks which have been made this evening, will be recognised internationally as enhancing our contribution. The adoption of the noble Lord's amendment could, I suggest, delay progress in reducing the Faroese and Greenland catches, because they could argue that they would wait to see what further restrictions we would be offering them.
The fact of the matter is that we are taking action: we are taking action by the tightening up of the rules on the North-East English drift-net fishery and on the introduction of the review which is the subject of Amendment No. 26, to which the noble Lord's amendment is an amendment. For the reasons which 1029 I have given, I really do not think this would be a very prudent way of proceeding with international negotiations, and I hope that perhaps I might have persuaded the noble Lord that on this occasion I am correct in that assumption.
§ Lord Moran
My Lords, I am not sure that I agree with everything the Minister has said, but I recognise that the wording of my amendment may well be defective. What I would ask is that the Government should consider very carefully whether it would be possible in another place to insert some wording which required the review to take account of the international considerations, bearing in mind that they themselves have said that this is what the review will do. It would be very helpful if that could appear in the terms of the Bill itself. Subject to that, I beg leave to withdraw the amendment.
§ Amendment to the amendment, by leave, withdrawn.
Lord Moran moved, as an amendment to Amendment No. 26, Amendment No. 29:
Line 10, at end insert—
("( ) that the three objectives set out in the consultation paper "The Review of Inland and Coastal Fisheries in England and Wales", issued by the Ministry of Agriculture, Fisheries and Food and the Welsh Office in 1981, are properly reflected in the management of British salmon fisheries;").
§ The noble Lord said: My Lords, this again is a paragraph designed to go in Amendment No. 26 as part of the context of the review. All it does is to refer back to the admirable three objectives which the Government themselves spelled out in their consultation paper in 1981, and which I quoted when I spoke on Second Reading. Again, I think it would be very helpful if the review had these three excellent objectives to the fore when considering this question. My Lords, I beg to move.
§ Lord Belstead
My Lords, it is indeed gratifying that our 1981 consultation paper is recalled so warmly by the noble Lord that he wishes to enshrine part of it in legislation. However, I suggest that it is one thing to describe policy objectives in a consultation document, a Green Paper, which is designed to provoke discussion, and it is another thing to enshrine them in precisely the same form in legislation.
The three objectives to which the noble Lord refers are, first, to establish a salmon management system which maximises the numbers of exploitable salmon available—and there are other words added to that; secondly, to provide as far as possible for a reasonable distribution of the exploitable resource between sport and commercial interests; and, thirdly, to maximise the effectiveness of measures to prevent the illegal taking of salmon at sea, in estuaries and in rivers in the light of available resources.
I would just very briefly say, as to the second one, that the distribution of exploitable salmon resources between sport and commercial interests is a very important question, but it is also a highly controversial one. As we all know, what is one man's view of what is reasonable is very often unreasonable from another man's point of view. Although it is sensible and proper 1030 to raise it as a matter in a consultation document, it really would not be prudent to use it in a statute whose interpretation could be the subject of considerable controversy.
The effectiveness of measures against illegal salmon fishing is, I agree, an even more important question, on which a number of clauses in this Bill have a hearing. It is not, however, the subject of the review provided for in Amendment No. 26, to which this is an amendment, and Amendment No. 26 is essentially concerned with legal methods of net fishing. I do not consider that the wording of the clause would be improved by adding a reference to these 1981 objectives. I think that they would be either imprudent or, in the last case, not relevant to the review. I thank the noble Lord for raising the matter. I hope he will forgive me if I resist putting them in a statute.
§ Lord Moran
My Lords, I follow what the Minister says. I hope that what he said does not mean that he is turning his back on the 1981 objectives, all of which seem extremely important and very valid today. But I recognise that in some respects they are not wholly relevant to the review and, in the circumstances which he has explained, I am content with what he has said. I beg leave to withdraw the amendment.
§ Amendment to the amendment, by leave, withdrawn.
§ [Amendment No. 29A not moved.]
§ Lord Ross of Marnock
My Lords, I think that this is an appropriate point at which to ask a question about the original amendment moved by the noble Lord, Lord Belstead. But if I may make one comment, the latent concern of the House for the future of salmon has been clearly shown by the attempts made to drag into the debate on this amendment, important as the amendment is on its own—and we were all satisfied to get that amendment on its own—all sorts of things which may be important but quite frankly (and I speak as one who has had quite a lot to do with legislation) are quite irrelevant and indeed probably detract from the actual importance of what we are doing here. What we are doing here is getting action on something that has troubled us for decades. It may not be as much as some people wanted, but I think it is an indication that the Government are looking at the importance of the effect—the possible effect, let us say—of drift netting in the North East.
What have we been promised? We have been promised a review,as soon as practicable after the end of the period of three years beginning with the passing of this Act".Mind you, during some amendments I thought it was going to be perhaps three or four years before we got to the end of this Bill.
§ Lord Ross of Marnock
My Lords, I am not guilty on this occasion. I do not think that I have made a speech longer than two and a half minutes. I might exceed it now.
What does that mean? We are talking about a review in three years. What are we going to get? We are going to get statistics. We already know how difficult it is to get statistics from the Scottish Office at the present moment in relation to salmon stocks. It is about two years after the end of a year before we get the statistics. Then the statistics have to be analysed and an assessment has to be made of whether it has had some effect—a good effect or a bad effect. How long will that take? I reckon that by the time the review is over it will be at least five years before we get a report. Let us remember that all we get is a report. There is no guarantee that Parliament will discuss that report. There is no guarantee that having discussed the report Parliament will take any desirable action upon it, even if it points a particular way. Let us not be too euphoric about what we have achieved. We have achieved something but it is to my mind the very minimum.
But I want to congratulate the Government on having made this effort at this time. It is not easy to do all the things that you would like to do, because it is a practical proposition of interfering with people's livelihoods. It may well be necessary to let people start to think there is a possibility that after five years more important changes will be made. As we know from what the noble Lord, Lord Belstead, said, that will mean further primary legislation.
§ Lord Belstead
My Lords, perhaps I may very briefly thank the noble Lord, Lord Ross, for what he has said and simply make two points. First, I am already on the record as saying that statistics—I am speaking at the moment for the Ministry of Agriculture, Fisheries and Food and also, after consultation, with the Welsh Office, as I understand it—would be published in the year following the year to which those statistics relate. That is an improvement for this side of the Border in the sense that, although we have provisional statistics coming out the year following, we do not have the official statistics until a year after that. So we intend to try to do that.
Secondly, the fact that Parliament will have to return to the matter is the great merit of the case. The great danger which I think your Lordships' House perceived is that once this Bill had left the House the whole matter of the North-East fisheries would be gone until there was more primary legislation on salmon. Because of Amendment No. 26, if your Lordships' House agrees to it, your Lordships will have the assurance that, although, as I hope, the Bill will become an Act very soon, nonetheless both your Lordships' House and another place will be able to return to the important question of the North-East fisheries, both drift net and estuarial netting fisheries, in the context of the review when that review is made. That will be one of the great advantages if Amendment No. 26 is agreed to.
§ On Question, amendment agreed to.
§ Clause 33 [Citation, commencement and extent]:
Lord Belstead moved Amendment No. 30:
Page 28, line 12, leave out ("section 29 of this Act, the said sections 28 and 29") and insert ("sections (Introduction of fish into
fish farms without consent) to (Servants and agents authorised by fishing licences) of this Act, sections (Dealer licensing in England and Wales) to (Servants and agents authorised by fishing licences) of this Act").
§ The noble Lord said: My Lords, Amendments Nos. 30, 31, 36 and 37 are all drafting and consequential amendments. I beg to move.
§ On Question, amendment agreed to.
Lord Belstead moved Amendment No. 31:
Page 28, line 16, leave out ("30").
§ On Question, amendment agreed to.
§ Schedule 4 [Minor and consequential amendments]:
§ [Amendment No. 32 not moved.]
Lord Gray of Contin moved Amendment No. 33:
Page 36, line 42, at end insert—
(". In the said section 19, for the word "wilfully" there shall be substituted the word "knowingly".").
§ The noble Lord said: My Lords, this minor amendment to Section 19 of the 1968 Act goes some way to answering the point raised by my noble friend Lord Burton when the Bill was considered on Report. Section 19 creates offences where a person wilfully takes, destroys or injures smolt or salmon fry, or wilfully injures or disturbs spawn or spawning beds.
§ Although I could not accept the removal of the word "wilfully", since that could allow conviction of a person who was unaware that the effect of his action would be, for instance, to injure spawn or spawning beds, I am prepared to go some way to that which my noble friend has in mind. Amendment No. 33 replaces the word "wilfully" with the word "knowingly" in Section 19. The prosecution will still be required to prove that the accused knew that his action would result in injury of spawn or spawning beds, but there will be no need to show wilful intent or design on his part. I beg to move.
§ Lord Burton
My Lords, I am not entirely happy with this amendment but at least it is a move in the right direction. It comes very near the end of the Bill, and I am happy to thank my noble friend and all his officials for the way in which they have helped us. The number of amendments and improvements we have made strengthen the Bill considerably and I cordially thank all concerned for what they have done.
§ On Question, amendment agreed to.
Lord Gray of Contin moved Amendment No. 34:
Page 37, line 2, at end insert—
(" . In section 1 of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 (prohibition of poaching), for the words "low water mark" there shall be substituted the words "mean low water springs".").
§ The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 1. I beg to move.
§ On Question, amendment agreed to.
Lord Gray of Contin moved Amendment No. 35:
Page 37, line 3, leave out from ("of") to ("saving") in line 4 and insert ("that Act").
§ On Question, amendment agreed to.1033
§ In the Title:
Lord Belstead moved Amendment No. 36:
Line 3, after ("Scotland") insert ("and in England and Wales").
§ On Question, amendment agreed to.
§ On Question, amendment agreed to.
§ An amendment (privilege) made.
§ Moved, That the Bill do now pass.—(Lord Gray of Contin.)
§ Viscount Thurso
My Lords, perhaps I may take this opportunity of adding my congratulations to those that have already been voiced in your Lordships' House to the noble Lords who have steered this Bill through its various stages, and particularly through this latter stage when we have seen a very real attempt by the Government to meet the general wishes expressed through our debate.
That measure of willingness to listen to points put from all parts of your Lordships' House has done much to transform this Bill from being a small local measure into potentially a large national measure. I say "potentially" advisedly, because at the end of the day we have to look back at what this Bill really achieves. What this Bill really does is enable things to be done: it does not itself provide for things to be done. It does not provide money. It enables district salmon fishery boards to get together in order to improve their strength and ability to operate, but it does not give them the money to carry out the conservation and development measures they may very well want to carry out.
It is quite clear that without money no effective results will be achieved. I hope that when this Bill goes to another place there may be opportunities to look into such matters as the way in which money is siphoned out of the salmon industry, particularly by heavy rating, and so forth, and to look at ways in which, as discussed at Second Reading, money might be found, for instance, for district salmon fishery boards through the European Community, or other means. Without money none of the high-flown ideals which we have managed to enshrine in this Bill will ever take place.
One of the finest examples of salmon conservation which has taken place in this country is just outside our windows. I refer to the Thames, where the Thames Water Authority spent money on cleaning the river. The Thames Water Authority has spent money on conserving the fish stocks within the Thames and with a little help from their friends has actually reintroduced salmon into this great river. If pressure is put on the Thames Water Authority to cut back, that programme will be cut back. Without money no progress will be made.
We must remember that however well we have designed the structure for the salmon industry of Scotland through this Bill, however well we have 1034 designed the power to conserve the salmon which come up our rivers and off our coasts by preventing poaching and by controlling netting, without money there will be no progress towards these ideals. I know that in your Lordships' House we cannot talk about money or where it shall come from, but I sincerely hope that in another place this will form part of the discussion on the Bill.
I come back to thanking the noble Lords, Lord Gray of Contin and Lord Belstead, for the very helpful and co-operative way in which they have dealt with the suggestions which have come from all parts of the House and for having allowed this Bill to grow from a good measure to a pretty good measure. I hope that when it goes to the other place the progress will continue and we shall see it back here in good shape in due course.
§ Lady Saltoun of Abernethy
My Lords, may I, too, add my grateful thanks to the noble Lord, Lord Belstead and Lord Gray of Contin, and to the noble and learned Lord, Lord Cameron of Lochbroom, for their understanding, sympathy and help in meeting our anxieties over this Bill.
It has been a very pleasant Bill because it is about the only Bill I can remember that has been totally devoid of any party-political controversy. I have had immense pleasure in finding myself in agreement with one or two noble Lords with whom I seldom do find myself in agreement. It did not start out as a perfect Bill, and it is not yet a perfect Bill, but it has come a very long way and I have great hopes for it.
§ 10 p.m.
§ The Earl of Perth
My Lords, I have already said a little but I should like again to thank the noble Lords who have listened to us with such care and have raised what I think the noble Marquess called a "poor timorous wee beastie" into something which has become a promising youngster covering the whole of the country. I, too feel that this has been an extraordinary example of collaboration and working together in a way which I cannot recall has happened in a long time. I think that our thanks are due for the understanding and help that we have had from the noble Lords who represent the Government.
§ Lord Carmichael of Kelvingrove
My Lords, I should like just very briefly on behalf of my noble friend Lord Ross of Marnock and myself to thank the noble Lords, Lord Gray of Contin and Lord Belstead, for the great patience and forbearance which they have shown during this debate.
I was somewhat surprised at the idea that it had been totally sweetness and light. If it had been, I am afraid that I should have failed in doing part of my duty because, as the noble Lord, Lord Gray of Contin, in particular will remember, I was, and I still am, very concerned about the powers and the appointment of the water bailiffs, and more particularly about the appointment than the powers.
I should hate the Bill to go through without that being properly recorded and without also warning the noble Lord that I have alerted one or two of my colleagues at the other end and I am sure that this will be coming up again. But both the noble Lords and the 1035 noble and learned Lord the Lord Advocate gave masterly performances today, if I may say so, on the question of Scottish and English law. They have been extremely tolerant, forbearing and understanding during what has been a very long session for a Bill of this nature and I, personally and on behalf of those on this side of the House, should like to thank them for the consideration that they gave to our arguments.
§ Lord Gray of Contin
My Lords, I should like particularly to thank the noble Viscount, Lord Thurso, the noble Lady, Lady Saltoun, the noble Earl, Lord Perth, and the noble Lord, Lord Carmichael of Kelvingrove, for what they have said this evening. Indeed, I should like to express my thanks to all Members of your Lordships' House who have participated in all stages of this Bill. The Bill has not been without its controversy, and indeed from a Minister's point of view it has been an experience worth having to find most of the controversy on one's own side. One expects to be criticised from the other side of the House; indeed, I am indebted to the noble Lord, Lord Ross of Marnock, for his sympathy on occasion, which I have appreciated very much indeed.
The fact that we have had extensive discussion of the Bill since it was introduced is significant and I am glad that a number of your Lordships have mentioned that Ministers have listened. Indeed we have listened, to the tune of 59 amendments during the period in which we have been considering this Bill. I know that we could not get it right in everybody's eyes, but I think we have improved the Bill significantly and I am most grateful to all those who have helped us to do so.
NASCO has been mentioned quite a lot and, although we have not been able to write into the Bill a reference to NASCO, I am quite sure that those who are connected with that organisation and will read our deliberations will see that we have certainly taken due note of the views that have been expressed on its behalf. I was interested during our deliberations this evening to hear what my noble friend Lord Lansdowne had to say about the study of selected areas of Scotland. I merely mention to him that that study was, in fact, paid for by the Department of Agriculture and Fisheries in Scotland. So far as concerns the publication of statistics, we depend of course on individual owners for their co-operation in gathering those statistics, and with the limited resources available to them it is not surprising that sometimes they are a little slow in providing the necessary figures.
The Bill will now go to another place and if any changes are made to it there we shall have an opportunity of considering them in due course. I should like to thank all noble Lords very warmly for their participation in our consideration of this Bill, and I move that the Bill do now pass.
§ On Question, Bill passed, and sent to the Commons.