HL Deb 28 January 1993 vol 541 cc1397-417

5.15 p.m.

Lord Cameron of Lochbroom rose to move to resolve, That this House calls upon Her Majesty's Government to revoke Regulations 2 and 8 of the Salmon (Definition of Methods of Net Fishing and Construction of Nets) (Scotland) Regulations 1992 (SI 1992, No. 1974).

The noble and learned Lord said: My Lords, in speaking to this Motion this evening I remind your Lordships that as long ago as 1861, by a decision of your Lordships' House, the principles of what constitutes net and coble fishing at common law in Scotland were identified and set down and that in accordance with those principles courts have since that time struck down attempts to extend those principles—what might be termed abuses. For instance, again in your Lordships' House in 1900, a method known as "toot and haul", and also hang or driftnet methods were declared illegal as methods of fishing in Scottish rivers. In 1919 the Court of Session struck down another method which was known as fleeting.

In 1951 Parliament prescribed the legal methods of fishing for salmon in any inland water as rod and line and net and coble; and in 1986 additional provision was made for the present lawful methods of salmon fishing in Scottish waters by Section 21 of the Salmon Act of that year.

In the course of discussion in your Lordships' House in Committee during the passage of the Salmon Bill it was said that the term "net and coble" was not defined except by judicial decision. That is a not unusual situation in the common law. But the essential of the net and coble method of fishing has been put thus: taking a grasp of a portion of a river during which time only as is required for the boat to row round the net".

It is therefore a form of fishing which is essentially shore based. It has to have a continuous sweep of the net. It requires the net being continuously paid out from the stern of the coble or boat and the other end of the net to be attached to a rope which is continuously moved down by hand from the launching point to the shore landing ground. The principle of the act is that the fish are guided by the movement of the net towards the shore landing ground and are not simply enmeshed in the net.

It has been put in another way in a legal textbook of considerable authority: Thus the net is not to be fixed or stinted or in any manner settled or made permanent in the river, but it is to be used by the hand, and is not to quit the hand and is to be kept in motion during the operation of fishing". In that it refers to both ends of the net as being hand held.

I was alerted to the terms of the regulations with which this Motion is concerned after they were laid before Parliament in August of last year. I was so alerted by a colleague who has a close association with the Salmon and Trout Association, of which I am also a member. But I have to say that today I speak on my own account.

My concern at that stage was with what were then Regulations 2 and 8 of the draft regulations and more particularly with the definition of net and coble in what is now Regulation 2 and with the prohibition in Regulation 8 as being limited simply to monofilament netting. I understand that these concerns were not limited to the Salmon and Trout Association and that while the draft regulations were before Parliament representations were made by other organisations. I understand that it was accepted by government that there was merit in those objections. They related in the first place to Regulation 2. I remind your Lordships of the words of sub-paragraph (a): fishing for or taking salmon by net and coble means the use of a sweep net, paid out from a boat, whereby the salmon are surrounded by the net and drawn to the bank or shore".

It will be observed that in that definition, which is quite general and replaces the common law definition, there is no reference whatsoever to the shore end. It does not connote that the net has been launched from the shore, nor does it connote that it has there to be hand held. Indeed, on one reading of the regulation it may give rise to an extension of the definition of net and coble at common law to encompass a widespread abuse in the past in the Forth estuary by use of a floating buoy attached to one end of the net. It may even be argued that such extension of the common law is not within the powers of the Minister granted by the 1968 Act.

In relation to Regulation 8, which was limited to a prohibition on monofilament netting—no doubt because of its invisibility—in the debates in this House in 1986 (of which I have some little recollection) reference was made to the fact that multifilament netting could be equally invisible. I considered this regulation to be too restrictive in its effect. I put down a Motion attempting to bring this matter before your Lordships' House but unfortunately omitted to count the necessary number of days within which the Motion should be debated in accordance with your Lordships' procedure. That being so the regulations came into force on 1st January of this year.

The Government have indicated a preparedness to consider with some sympathy further representations with regard to the regulations. Indeed, they have indicated a willingness to amend them. I received a copy of a letter from the Scottish Office indicating that there was a proposal to amend the net and coble definition and introduce a new Regulation 8A. That letter was dated 23rd November 1992, which was at about the end of the period during which the draft regulations would have been before your Lordships' House. It was perhaps unfortunate that the Government did not have the courage of their convictions and at that stage withdraw the regulations before they took the force of law. So be it. The regulations are there, but it appears it is intended that they will be further amended.

They are also regulations which are intended to form the basis for prosecutions. I suggest that to change the goal posts with such rapidity in the regulations is not the best way forward in dealing with the criminal law. Criminal prosecution requires certainty, not uncertainty. For example, is the Lord Advocate to await the new regulations before launching prosecutions in relation to net and coble fishing because it is likely that amending legislation is in prospect which may have an effect on the terms of any charges to be laid against individuals?

I should like to deal with the suggestions made in the consultation letter. The proposal is to introduce a new Regulation 8A on the following lines: No net used in fishing for salmon by net and coble or by bag net, fly net, or other stake net shall be designed or constructed for the purposes of catching fish by enmeshing them". Since the proposed amendment would make clear that the net is not to be used and therefore designed or constructed, for the purposes of catching fish by enmeshing them—that is to say, that it also deals with the general issue that net and coble fishing is not to enmesh but simply to surround fish - to that extent my concerns about Regulation 8 are stilled. However, I should still like to know from government what they would wish to do about multifilament nets and why that matter could not have been included within the regulations as they were.

My principal concern remains the definition of net and coble. If, as is now acknowledged by government, there are difficulties in achieving a satisfactory definition of net and coble, it suggests to me that what is now in force in the regulations remains unsatisfactory. The question is whether what is proposed as an improvement is in any sense a better solution. I have already read to your Lordships the present regulations. What is now proposed is to add to the definition at the point where reference is made to a sweep net paid out from a boat the words, and worked from the bank or shore or from waters adjacent to the bank or shore".

That is an attempt to bring in a reference to the rope attached to the other end of the net from that which is paid out from the coble. I pause to observe that no reference to "hand held" appears in the proposal.

I pause also to observe that this is a general definition, as is perfectly plain from its terms. It makes reference to, worked from the bank or shore or from waters adjacent to the bank or shore".

What does "adjacent" mean? The dictionary tells us that it means to "lie near" or "close". Is the same test to be applied where it is the bank of a river as it is to the shore of an estuary; that is to say, in exact length, breadth or degree? Is that to mean that, where commonly the operation has been carried out from the bank and without a boat other than the coble, the operation can now be extended into the water adjacent to the bank and also extended further by the use of a boat at that point? It may be some other thing such as a floating buoy.

I make that point because, as I understand it, there is a concern that the present practices should be preserved and so far as possible not departed from. But that certainly would not simply reflect the present practice in the width to which it extends.

The point is even stronger because the 1986 Act was passed and authority was given to the Secretary of State to define by the use of regulation the section which is now Section 2A of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951. It specifically provides as follows: The Secretary of State may by regulation define fishing for or taking salmon by net and coble and may make different provision as respects inland waters from that as respects other waters".

That is to say, that the provisions so far as definition of net and coble can be different for inland waters, rivers and tributaries as opposed to estuaries. No doubt it will be said with some force that some of the innovations on what might be called the understood practice have been in reference to estuaries. It appears to me that not only are there in the present regulations a most unsatisfactory degree of uncertainty in the definition but even what is suggested now in the consultation paper is equally objectionable.

I suggest to the Minister that there is another approach which might be adopted and one which has been adopted in the common law since 1861, and indeed before. It is to rely on the principles which are to be derived from our common law and judicial decision and to seek to use the regulations to outlaw those operations or methods which would fall out with the common law. That is precisely what the courts have done since 1861 with success and it is equally the manner in which they proceed forward securing certainty and at the same time dealing rapidly with the abuses as they appear. It is for those reasons that I beg to move.

Moved, That this House calls upon Her Majesty's Government to revoke Regulations 2 and 8 of the Salmon (Definition of Methods of net Fishing and Construction of Nets) (Scotland) Regulations 1992 (SI 1992, No. 1974).—(Lord Cameron of Lochbroom.)

5.34 p.m.

Viscount Thurso

My Lords, we should be grateful to the noble and learned Lord, Lord Cameron of Lochbroom, for drawing our attention to this matter and giving us the opportunity to discuss it on the Floor of your Lordships' House. But I very much hope that at the end of the day we shall not upset the arrangements which have already been passed into law by the Statutory Instrument and which have taken a great deal of effort and co-operation between the various interested parties and the Agriculture and Fisheries Department in the Scottish Office. Indeed, it has been a kind of co-operation which is all too rare and which we have been very glad to see in this instance.

Before going too far I should explain that I have quite a wide interest in this matter. I am the principal shareholder and chairman of a company which owns and operates rod fishing on the whole of the River Thurso. It also owns and operates a sweep net in the estuary of the Thurso. It also owns and operates bag nets in Thurso Bay. In addition, I have been for many years the chairman of the Thurso District Salmon Fishery Board. About three years ago I was able to persuade my neighbours that it would be advantageous to us all if we got together and formed a wider board, which we did. We have now joined all the rivers of Caithness together into one Caithness District Salmon Fishery Board. We find that it works very well and that it has helped us in our task of trying to enforce the law and to improve and uphold the quality of the fisheries in the area.

What the noble and learned Lord, Lord Cameron, is asking us to do, it seems to me, is to gralloch the statutory instrument. We are being invited in this instance to tear all the vital organs out of the instrument in the shape of Clauses 2 and 8, which really contain the vital parts of the instrument. In other words, we are being asked to throw out the instrument which has been the law since the beginning of the year. Yet we know that discussion has taken place between Scottish Office officials and the Minister, Sir Hector Monro, members of the council of the Association of Scottish District Salmon Fishery Boards, and representatives from the Salmon and Trout Association and from the Atlantic Salmon Trust. As a result of representations which we have all put to the Scottish Office, I understand that there are amendments to be brought forward to the regulations which I have no doubt the Minister will tell us about later.

We are confident that these adjustments to the instrument are going to be satisfactory. The Association of Scottish District Salmon Fishery Boards gave an assurance that we were in favour of the instrument and of the adjustments which were due to be made to it. We believed that we were speaking for the salmon industry as a whole, including the rod fishermen and the netsmen, both the sweep nets and the fixed engines. We believed that, as such, we were expressing a consensus of opinion. We were therefore very disappointed to find that, notwithstanding the great efforts which have been made, the noble and learned Lord, Lord Cameron of Lochbroom, and the honourable and learned Lord, Lord Marnoch, have questioned the wisdom and validity of the decisions which have been reached.

It is important that we get this matter sorted out. At the moment, relying solely on common law, it is difficult for the various people who are responsible for enforcing the law to be sure of their position before taking cases. It is immensely desirable that the various methods of netting for salmon should be defined and put into some form of statute. We feel that this should be done by the proper discussion which has already taken place.

We do not think that common law has been extended. Defining exactly how a net and coble should be worked is an immensely difficult process. In fact, net and coble fishing is done ever so slightly differently on nearly every river because the shape of rivers and their banks and the way fish approach are all slightly different. However, the principle remains the same. The noble and learned Lord, Lord Cameron of Lochbroom, has ably described the principle of encircling the fish, rounding them up and bringing them to the shore, but it is extremely difficult to define how that is actually done.

Is the method employed, for instance, on the Oykel going to be acceptable to the noble and learned Lord, Lord Cameron? There ropes are not held in the hand, but on a winch, which is then wound. Is there something wrong with that? In our case, for instance, it is impossible to launch the boat from the shore so the boat has to ride in the estuary, attached to a buoy. The net is not unfurled at this point. It is loaded on the stern of the boat and is held with a rope which is not pulled. The rope is not released until the boat starts to shoot. When the boat shoots, it shoots continuously and people on shore start to haul in.

On the other hand, if a shore is covered with bushes, one has to have some other means of taking the shore rope down to the point of haulage—and this is where a boat in waters "adjacent to the shore" has to be used. There are all sorts of different local conditions which have to be dealt with. We might have been wiser to have given powers of adjustment to these regulations to the individual boards so that local arrangements could have been taken into account. However, I accept that defining fishing methods has to be done on a country-wide basis, so I do not quarrel with the way in which this has been done.

With regard to the question of whether the Lord Advocate has to wait before launching prosecutions, perhaps I should point out that he will not want to launch any prosecutions for a little while yet because the netting season is not open. There is plenty of time to get the new wording out before the netting season opens. Many rivers will not be netting and most of the coast will not be netting yet. It is rather early in the year for that to be taking place. Therefore, there is plenty of time and we do not need to worry about that. I am sure that the department will get the new regulations out in good time.

I have a feeling that if we agree to this Motion, we shall not so much be throwing out the baby with the bathwater as throwing out the bathwater before we have had a chance to put the baby in it. It seems to me that we need to allow the regulation, which is now the law, to be used and, if it is found that the shoe pinches, there will be plenty of time to adjust the regulations later. Certainly, the adjustments which have been agreed will arrive in time for no great harm to have been done.

The whole question of netting has to be seen in perspective. There has been an enormous decrease in the amount of netting carried out around our coasts —not always with advantage to the rivers. A great deal of this is due to buy-outs and to nets being taken off deliberately, but much of it is due to the low price ruling for salmon in the market and to the much bigger danger of netting on the high seas, which is depressing the market for salmon. We would be wise to hope that the noble and learned Lord, Lord Cameron of Lochbroom, will not pursue his Motion to the ultimate and that, at the end of the day, he will be persuaded to withdraw it so that we can allow this instrument to take effect and allow the amendments which have been agreed among many parties to be added to it. I hope that the noble and learned Lord will listen to my plea.

5.46 p.m.

Lord Sanderson of Bowden

My Lords, I start by congratulating the Government on daring to put their toe in the water in this very fraught area of netting regulations. I, for one, know a little bit about this and I am well aware that there are those more learned in the law than I who can deal with this matter. The only area that I wish to raise in the presence of my noble and learned friend the Minister of State is that relating to the definition of netting and coble, which was referred to eloquently by the noble and learned Lord, Lord Cameron of Lochbroom. It relates to paragraph 2(a) and to the phrase, "or from waters adjacent to the bank or shore".

I am sure that the Government understand the importance of what they are trying to do in attempting to define in statutory language the definition of fishing by "net and coble". As a layman, I thought that the general principle of the existing law is that the shore end of the net should be operated from the shore. It is true that there has been one case where, in tidal waters, it has been held permissible for the shore end of the rope to be hand-held by a man sitting in a boat, dropped down on a fixed rope on the line which he could have waded at low water. However, I repeat that there has been only one case, which I believe must have persuaded the Government now to seek, by their wording, to make it a general rule by stating that the net may be worked from the bank or shore "or from waters adjacent to the bank or shore".

I am told—and I am not at all surprised—that that wording is so vague as to be totally unenforceable in a court of law. If that is the case (and the reason that I have risen to speak is that), having had a bit of experience of the troubles in the Forth estuary some years ago, I am advised that that wording could give legislative authority to some of the practices and activities that have taken place on that river quite recently, in relation to which the fisheries protection department of the Scottish Office had great difficulty in bringing prosecutions.

We have to ask the Government what is meant by the phrase, "or waters adjacent to the bank or shore"? What distance from the bank or shore is to be permitted? Would this not vary, as the noble Viscount, Lord Thurso has said, depending on whether we are talking about a river a hundred yards wide, an estuary a mile wide or even the shores of the Irish Sea? It is true that criminal prosecutions must be as certain as possible if they are to be effective. I realise the difficulty in codifying existing law. Therefore, is it not better to let the law develop rather than pre-empt it by having in code the very worst situation as regards the rod fishing industry?

My own view is that a net operating from the shore would allow a man to wade close to that shore, in which case no special wording is required. I see no reason—I entirely agree with the noble Viscount—why the other provisions of the statutory instrument should not remain, but I believe that this particular phrase should be looked at again before cases are brought before the courts which, in the end, noble and learned Lords like the noble and learned Lord, Lord Cameron of Lochbroom, have to dismiss because the law is inconclusive.

5.51 p.m.

Lord Moran

My Lords, as an Englishman living in Wales, who on this question is speaking for himself and not representing the views of any organisation, I feel diffident about embarking on what is obviously an exclusively Scottish matter and, moreover, to a large extent a Scottish legal matter. I took part in the debates on the Salmon Bill in 1986 which the noble Lord, Lord Belstead, who I see is in his place, will remember all too well. I found that during the passage of that Bill there were a number of questions requiring legal expertise, so I asked my noble and learned friend Lord Denning whether he was prepared to lend a hand, which he very kindly agreed to do. He took a prominent part in the debate, but when he got involved in the Scottish law I remember that he was taken to task by my noble and learned friend Lord Cameron of Lochbroom, who was then Lord Advocate. So if such an enormously distinguished legal luminary could get into difficulties with Scottish law, a mere layman like myself must obviously be hesitant.

This statutory instrument derives from Section 21 of the Salmon Act 1986 which, as I understand it, states that the Secretary of State for Scotland may define lawful netting methods for catching salmon in inland and coastal waters. That was nearly seven years ago, so it has taken some time for the Secretary of State to do that, but the statutory instrument that we are now discussing is the result of it. Most of it, as a result of the consultation process described by the noble Viscount, Lord Thurso, is generally agreed, but my noble and learned friend Lord Cameron of Lochbroom has questioned two of the regulations. I understand that the problem about Regulation 8 is on the way to resolution, so I shall say nothing about that. We are left with Regulation 2 which seeks to regulate net and coble fishing. This has caused great difficulty, but it is of great importance because net and coble fishing is, as we know, the only legal method of fishing for salmon in Scottish rivers, apart from the Solway, and when the fish have moved into the confines of their native rivers they must clearly be protected from methods of fishing which would unduly exploit the stock.

When the Department of Agriculture and Fisheries for Scotland, as it then was, put out what seemed to me a very sensible consultation paper in May 1988, it foresaw that this problem would be difficult. It said in that consultation paper that in deciding particular cases the courts had described the essential features of fair net and coble and went on to say: It is therefore possible to contend that there is no need for a new definition as 'net and coble' in the new sub-section (1)(A) would take the meaning of the same words in sub-section (1) whose meaning has been set by case law. Moreover, a potential disadvantage of a statutory definition would be that, if it was held to comprise the whole law on the meaning of net and coble, it could leave loopholes unless it covered every point of current and likely future importance that has been decided in past cases". I understand that there were prolonged discussions on the question of defining this method of fishing, but it has evidently not been possible to reach general agreement and the Scottish Office, as has been said, proposed in November amended wording which included this wording, that it should be the use of a sweep net, paid out from a boat, and worked from the bank or shore or from waters adjacent to the bank or shore". I agree with the noble Viscount, Lord Thurso, about the need for clarity which is so necessary, for enforcement, but, although I am no lawyer, it seems to me that those words— waters adjacent to the bank or shore —are hopelessly vague.

Adjacent to the bank or shore", might mean four metres or four miles. It seems to me that, if a court were asked to enforce that in a case, it would be in an impossible position. In general, the statutory instruments emanating from your Lordships' House should be clear, intelligible and unambiguous.

Very sadly, this proposal has split the organisations concerned with wild Atlantic salmon. The view of the Salmon and Trout Association is that this proposed new wording would be a quite unwarranted extension of the existing law and is, in any event, so vague as to amount to a charter for serious abuse. However, the Association of Scottish District Salmon Fishery Boards takes a different view and, being I hope a fair-minded person, I asked to see its briefing note, of which I have a copy.

In essence, it makes, as I understand it, two main points. First, the wording, although it may not be very satisfactory, is the best that can be achieved. Efforts to improve on it have failed. In other words, it is not very good but there is no way of having anything better. Secondly, if the Motion were pressed to a Division and the Government were defeated, the organisation says that there is, little doubt that the wild salmon lobby would be at a major disadvantage in future discussions with the Scottish Office when it comes to more important future legislation on issues such as the regulation of fish passes and the requirement of fish screens to protect juvenile and adult salmon at all abstraction points". It also makes one or two other points.

That seems to be a very strange suggestion because it implies that, if the matter were to be pressed and the Government were defeated, the Scottish Office would, so to speak, sulk and, just to spite the salmon organisations, would not help them on anything else. That seems to me to be both insulting to the Scottish Office and ridiculous. I hope that when the Minister comes to wind up he will be able to dismiss that suggestion.

Viscount Thurso

My Lords, I hope that the noble Lord will accept that the President of the Association of Scottish District Salmon Fishery Boards—me—did not make that point.

Lord Moran

My Lords, those were the two points in the brief that the association put out.

As I understand it, there is a firm requirement, and there has been for many years, that one end of the net should be held by a fisherman. I have seen a copy of a textbook, Tait on The Game and Fishing Laws of Scotland, second edition (1928), which states: It will be noticed … that when the net is in the water it is constantly in motion", and that, one end never leaves the hand of the fisherman". Later it says: It was not legal to fish with a net unless when the net continued in the hand of the fisherman. The net must not quit the hand, and the net must be in motion during the operation of fishing". The question of the net being in motion is fully covered, but as far as I can see the question of the net being held in the hand is not covered in the statutory instrument or the proposed amendment. Why not? Why is it not laid down that, apart from tidal waters, the shore end of the net needs to be held on the shore? That is a point that was made by the noble Lord, Lord Sanderson of Bowden.

It is clear that the doubts expressed in the original 1988 consultation paper, which I quoted, about the wisdom of trying to define net and coble fishing were well founded. The details given to us by the noble Viscount, Lord Thurso, of the varying practice of net and coble fishing in different rivers reinforce that view. There is clearly a deep division of views about the existing wording and the proposed amendment. Eminent legal authorities, of which my noble and learned friend is one, have serious doubts about it.

The answer must he to delete Regulation 2. As I see it, it is not necessary to define "net and coble". It can be left, as it has been up to now, to the common law of Scotland. If there is any doubt as to how it should be understood and enforced, surely the Inspector of Salmon Fisheries in Scotland can seek clarification or development of the law by instigating test cases where appropriate. I hope therefore that the Government will consider carefully the arguments put forward today and will be disposed to take away Regulation 2 and think some more about it.

6.2 p.m.

Lord Kimball

My Lords, I think I am right to say that the situation is unsatisfactory. What are we being asked to do? We are being asked to leave on the Table an order and not vote it down on the understanding that it will be amended. That in itself may be all right. Some of us were told—certainly in the brief produced by the Association of Scottish and District Fisheries—that it is all right to leave the order now because the amendment has been agreed. We now find that there is no agreement among fishing interests on one part of the amendment. I believe that we all agree that there is no problem with those parts of the order that deal with the type of net and what I would call the enmeshment of fish and the size of net used. The problem arises over what I choose to call the anchor end of a net fished out of the back of a coble, whether it is held by a man or tied to a rock on the shore.

We are looking to clarify the regulations which affect what in fact is a dwindling legitimate practice throughout Scotland. Many river boards no longer operate their nets, and many people have given up netting as it is no longer economically viable. However, it is important that the amendment should be clear and should make it possible to enforce the regulations. The words that are causing trouble, as the noble Lord, Lord Moran, has said, are: or from waters adjacent to the bank or shore". As someone who for many years has operated a sweep net out of the back of a coble, I can think of certain circumstances where one needs the support of that definition. There can be severe winter gales and the mouth of the river from which one operates one's coble fishery may change. One may not be able to draw the boat right into the bank. One may well have a chap wade out, probably in thigh waders, and hold the end of the net there. There may be moving sand bars and alterations to the river mouth. The noble Lord, Lord Moran, has probably not operated a net from the back of a coble because he said that a man could be half a mile out in the estuary. The first thing that would happen is that the moment the man leaves the shore the net will no longer work because the fish will go between the man and the shore.

There is a problem while doing that because the river is running down and the fish are running up on the upcoming tide. So some motion must be kept on the net or it will go slack and the fish will all escape. The idea that one can move far away from the shore with one's net and coble is unrealistic because the whole of the operation depends upon the spiesman—the chap who sits up on the bank. When he sees the shoal of fish coming in on the incoming tide he gives a signal to the boatman to pull away and pull the net around him. What nearly always happens, and why it is an inefficient method of fishing, is that the spiesman sees the first two fish coming, he becomes overexcited, he drops his hand, they roll out the net, they get about 12 fish encircled in the net and another 50 go by. It is not a constructive method and it would not work if the anchor end —I do not want to be tied down as to whether it is attached to a buoy, because as we all know it would not work with a buoy—was fixed because the net must be moving with the tide against the river coming down. It is not an efficient way of fishing.

The proposed definition is one that we should support. I should like to add to what the noble Lord, Lord Moran, said. The president of the Association of District Fishery Boards should see that a better brief is sent to noble Lords. The brief was incompetent and inadequate. I shall seriously think about my future subscriptions to the noble Viscount's association.

6.7 p.m.

Baroness Strange

My Lords, we are all grateful to the noble and learned Lord, Lord Cameron of Lochbroom, for introducing this Motion, because it means that we have a chance to compliment my right honourable friend Sir Hector Monro and the Scottish Office on the really excellent job they have made of this statutory instrument on which they have worked for some years, defining the various methods of net fishing and construction of nets to the satisfaction of most of those involved in the industry, in fishing, in conservation, certainly to the satisfaction of the Salmon Net Fishing Association of Scotland, the Association of Scottish District Salmon Fishery Boards, and the Atlantic Salmon Trust among others. Perhaps I might say to the noble Lord, Lord Moran, that also being a fair-minded person I also have the brief from the Salmon and Trout Association which was produced in Fishmongers Hall, which I too have read. I am also grateful to the noble and learned Lord for giving me a rare, and possibly unique, opportunity to disagree with him totally.

The situation on paragraph 8 is relatively simple, so I will deal with that first. There is already a working party set up by the Scottish Office on the construction of nets, whose report should be ready by the end of March. The important thing is that all twine should not be below a given thickness.

Before I tackle the complexities (to a layman) of net and coble fishing, I should perhaps first establish my own credibility. My husband for some years ran a small netting station at Kinlochbervie, on the north west coast of Scotland, and latterly at Auchmithie, near Arbroath, which was worked by one of our sons living in a caravan on the site, assisted by a local fisherman.

As the noble and learned Lord, Lord Cameron, has stated, coble and net fishing is a net with two rope ends which is heaped up at the back of a small rowing boat or coble. (Although it is spelt with one "b" it is pronounced as though it had two). One fisherman holds the shore rope while the other pays out the net from the boat and walks along the edge of the shore to meet up with the coble when it comes into land, and the two ends of the rope are then hauled in.

I have sat in the back of the boat, paying out the net, not always with success. It has to go out smoothly and evenly and not in lumps. I shall never forget the excitement of seeing the nets pulled in and finding one or perhaps more huge shining salmon inside the net.

The words in the proposed Government amendment, or from waters adjacent to the bank or shore", which have been so objected to by Lord Marnoch, and by the noble and learned Lord, Lord Cameron of Lochbroom, the noble Lord, Lord Moran, and my noble friend Lord Sanderson are the best words that can be devised in view of the complications of the Bermoney boat. The Bermoney or Beardmoney is simply a second boat which runs along the line between two fixed points like a tramcar and is only used at high tide when the bank is too steep for a fisherman to walk along towing the rope. It was invented in 1821, but was not used before 1843.

The Bermoney boat was first mentioned in the famous case of Hay v. Perth Magistrates on 12th May 1863. As Mrs. Charlotte Elizabeth Richardson Hay and her husband, who were the pursuers and suspenders, or appellants in the case, were my great, great uncle Henry Maurice Drummond and his wife, I can claim a family knowledge of the case.

They owned the fishing on the Tay below their house at Seggieden. At low tide they were able to fish it with net and coble in the usual way, but when the tide came in (the Tay is tidal up to Perth) there was a gravel bank which became covered and ran too steeply into the Tay for a man to walk along it. That was when the Bermoney boat, which, as I have stated, was like a cable car, was employed. There was a stake at either end and a rope in between. The Lord Provost, council and magistrates of Perth, representing the salmon conservation, and the heritors of salmon fishing higher up the river brought a case against them in the Court of Session, and removed the stakes, declaring that the use of the Bermoney boat was illegal. They won the case.

However, Mrs Charlotte Hay and her husband were not so easily downed. They appealed to the House of Lords. They said that their method of fishing was not contrary to common law; it was not prohibited by statute; it struck at a previous judgment, and it was substantially net and coble fishing.

The then Lord Chancellor gave a judgment which is as clear today as it was 130 years ago. He stated that there were three main objects in keeping the river clear: (1) To ensure to the salmon a full and unimpeded access to the upper reach waters which are the natural spawning grounds of the fish; (2) to secure the unimpeded return to the sea of the smolts or young fry of the salmon; (3) to prevent the killing of unclean fish within the river mouths. For that purpose it is unlawful to erect any cruives or weirs in waters where the sea ebbs and flows". However, he went on to say that to object to the Bermoney boat and staves was to put too narrow an interpretation on net and coble fishing; that: It would in effect confine the fishermen to the old practice, introduced centuries ago, and handed down from generation to generation". Charlotte and Henry Drummond-Hay won their case, the Lord Provost's judgment was overturned, and they were given costs.

This statutory instrument, which has been law since 1st January this year, since there were no objections during the 40-day period, will make it easier for those who enforce the law in an activity which, although legitimate, is, like so many of our traditional activities, on the way out.

6.13 p.m.

Lord Carmichael of Kelvingrove

My Lords, I am sure that noble Lords will wish to thank the noble and learned Lord, Lord Cameron, for coming amongst us again, as we have not lately seen a great deal of him. As one would expect, he has raised more of a legal case than an expert case on the catching of salmon in rivers.

I was interested to hear the noble Lord, Lord Kimball state that he did not like the brief that he received. I would have felt considerably better if I had received a brief. I had to find something on my own. I do not have any specialist knowledge of this subject. I was involved with the Bill originally and we spent many evenings on it, sometimes well into the night. I have no specialist knowledge of the standing orders. I have not understood from the debate why revocation is sought, apart from the fact that the noble and learned Lord, Lord Cameron, stated that it was deficient in some way and that it should not be passed for that reason. The Government have been under pressure to produce an order and they are under an obligation to do so under the 1986 Act.

Many complaints have been made about delay. The statutory instrument states that the Secretary of State has consulted widely. I think I, having a scant knowledge of the subject, am entitled to ask how wide the consultation was under Regulations 2 and 8 in conformity with the views that were expressed after the consultation? I should like to know what minority views were not accepted by the Secretary of State, the reasons for not giving credence to them and why they were not included in the explanatory notes. An explanation is not normally given, but a rough indication could be helpful to noble Lords.

Regulation 2 appears to meet current views on desirable river fishing practice, which is to conserve stocks and prevent illegal methods of fishing which reduce stocks. I should like to know whether the objection to the terms of Regulation 2 is based on practicalities or supervision problems leading to non-enforcement. Were the details put to the persons who were consulted or was an amalgam of views expressed? If they were composite, do they make a workable whole? Perhaps the noble Lord, Lord Fraser of Carmyllie, could express a view on that matter.

I am puzzled by the objection to Regulation 8. I understood that caring fishers dislike monofilament netting. On the last occasion that subject was discussed at great length and I thought that the noble Lord, Lord Kimball, stated that monofilament net was satisfactory. As a layman, I thought that I had learned something from the last debate, but perhaps I need to unlearn that point. I thought that it was because the nets strangled the fish. The fish were not able to see the nets because they were rather thinner and, therefore, could cut the fish. I shall read with care the noble Lord's speech to see exactly what he said. Is there any connection between the catching rules in Regulation 2 and the prohibition in Regulation 8?

The debate has given the noble and learned Lord, Lord Fraser of Carmyllie, an opportunity to explain this order. However, perhaps he will also tell us that there will be wider consultation in future before another order such as this is laid before the House. Although the general feeling is that this order should be agreed to, as the noble and learned Lord will realise, it has taken considerable time to discuss this matter. A little more time spent in other ways would have reduced the time taken on the Floor of the House. I shall listen with great interest to the noble and learned Lord's reply. The longer I am in your Lordships' House, the more I become further educated in the ways of the wild Atlantic salmon.

The Minister of State, Scottish Office (Lord Fraser of Carmyllie)

My Lords, first, I thank the noble and learned Lord, Lord Cameron of Lochbroom, for providing this opportunity to debate the 1992 Scottish salmon netting methods regulations. I express my appreciation also to other noble Lords who have contributed to such a stimulating debate. The noble and learned Lord, Lord Cameron, was not only my devil master before I was called to the Bar but was my distinguished predecessor as Lord Advocate for Scotland. I am sorry that on this occasion I shall be disagreeing with him.

However, I am sure that we both agree that the wild salmon is of great importance to Scotland, as all noble Lords who have participated in the debate will acknowledge. Apart from the valuable contribution which it makes to our rural economy, it is also a major asset within our natural heritage. It is important therefore that every effort is made to preserve and conserve our native stocks.

Fortunately, in Scotland, we have always recognised the importance of this. A great deal of well focused research, particularly by the Scottish Office salmon and freshwater fisheries scientists has been undertaken in this field. Much help is also now provided through organisations like NASCO and the Atlantic Salmon Trust, for example, and it is to their great credit that they do so. The guidance and expertise of the Salmon Advisory Committee is also of much benefit. Important as these contributions undoubtedly are, it is on our district salmon fishery boards that we depend for the local protection and management of the resource. I wish to acknowledge the good work that those boards have done.

It is to Parliament and the Scottish Office that we must look to create the necessary legislative framework. However, for the legislation to be practically effective, it must have the support of the main Scottish salmon interests and particularly of those who have the task of enforcing it. Ensuring such support can sometimes take time, and can on occasion give rise to difficulties. However, I know that my honourable friend the Parliamentary Under-Secretary, Sir Hector Monro, is prepared to go to considerable lengths to achieve a consensus and where consensus is reached, to take action when that is desirable and practicable. I can assure the noble Lord, Lord Moran, that he will not be sulking in his tent should this House indicate any disagreement with the way in which the matter has been taken forward.

I now turn to the substance of this debate on the 1992 salmon netting regulations. The starting point for the regulations was our Committee stage debate on the 1986 Salmon Bill, to which reference has been made. My noble friend Lord Gray of Contin proposed an amendment to the Bill inserting a new subsection (2A) into Section 2 of the 1951 Salmon and Freshwater Fisheries (Protection) (Scotland) Act giving the Secretary of State for Scotland powers to make regulations defining the lawful methods of salmon netting. This was in response to strong arguments, notably from the noble Viscount, Lord Thurso, and my noble friend Lord Lansdowne, in favour of precise definition of the permitted methods of salmon net fishing. It was reasoned at the time—and that reasoning is as sound as ever—that, specifying the methods and defining them would also have a significant effect in making enforcement easier and letting fishermen know more clearly what was allowed". For example, these regulations, which are widely drawn, permit the Secretary of State to define what constitutes fishing by net and coble and to make, different provisions as respects inland waters from that made as respects other waters". I shall return to that point later.

With the 1986 Salmon Act in place, the Government consulted the salmon fishing organisations and others with a view to making regulations containing such definitions. I can assure the noble Lord, Lord Carmichael, that that consultation was as wide as it could possibly be with interested parties. The consultations dealt not only with the detailed content of possible regulations but also specifically asked the consultees whether they were in favour of introducing statutory definitions as opposed to relying on case law. The overwhelming majority of Scottish salmon interests and the enforcement authorities supported this. Consultations on the detail of the proposed regulations proceeded. It was made clear throughout—and this was accepted—that the regulations would, as appropriate, seek to encompass the breadth of the relevant judicial decisions. As I have indicated, this was well within the powers of the 1951 Act. It was also made clear —and again this was accepted by the main interests—that the legislation should not disadvantage lawful fishermen, whether anglers or netsmen.

This debate will have demonstrated that this is a complex area in which to legislate. Therefore, the consultations were detailed, patient but protracted. Last summer, the regulations were duly laid before both Houses of Parliament, it having been thought that their content satisfied Scottish salmon interests. Once the regulations were laid, however, my honourable friend the parliamentary Under-Secretary received representations on two aspects. There was a strong body of opinion calling for the ban on the use of monofilament netting twines, as set out in the regulations, to be extended to include multifilament twines. There were also some who advocated strongly that the net and coble definition should be altered by requiring the operation in every circumstance to be controlled from the bank or shore and that the net must be held in the fisherman's hand.

Given my honourable friend's desire to found the regulations on consensus within the main salmon interests, he was concerned at the strong feelings behind these representations. His response was to consider amending regulations to take account of the two areas of anxiety and to consult salmon fisheries interests on their content. But let me explain in more detail the substance of anxiety on the two issues, and the prompt and constructive response to dealing with them.

First, and possibly less controversial, as regards netting twines, it is possible to define monofilament netting, as is done in the regulations. Real practical difficulties arise if that is extended to multifilament twines. In view of that, my honourable friend established a time-limited specialist working group to look again into whether it would be possible to devise an acceptable and enforceable minimum gauge for salmon netting twines. As a more immediate measure my honourable friend also authorised further consultation, which has now been completed, on the inclusion of a provision in amending regulations which would make it clear that salmon nets must not be designed or constructed for the purpose of catching fish by enmeshing them. As there was widespread support for this my honourable friend is now considering incorporating the provision in amending regulations which of course would come before this House.

My honourable friend's response to representations on the net and coble definition was equally prompt and constructive. It is very important that this House understands that no real problem has arisen over the fundamental characteristics of net and coble fishing as defined in the regulations. The fundamental characteristics of net and coble fishing are those set out in the regulations. They are that, fishing for or taking salmon by net and coble means the use of a sweep net, paid out from a boat, whereby the salmon are surrounded by the net and drawn to the bank or shore with several provisos to ensure the net is kept in unchecked motion and not used to obstruct the passage of fish but to enclose them. My noble friend Lord Kimball has practically and graphically explained how that is undertaken.

What was at issue therefore, as I explained, was the case for clarifying control by the fisherman of the operation from the bank or shore. This has been reflected in the main issues to emerge in the debate. First, let us consider whether two boats should be used only in tidal waters. As I understand the argument, it is only in tidal waters that one might legitimately use two boats to come within net and coble fishing. It is understandable how this conclusion has been reached since the major cases dealing with the use of two boats have been in the broader tidal stretches. However, the principles of net and coble do not in any way limit their application to tidal situations. It would be very difficult indeed to make a distinction between a fisherman who uses a boat in tidal waters to convey him when the tide is in, and one who, in non-tidal waters, might need one because the water happens to be deeper than normal at the place where he usually wades. An even more compelling reason why no such distinction can be made in the regulations is that the 1951 Act does not allow a distinction between tidal and non-tidal inland waters.

Secondly, let us look at whether there is justification for limiting the scope of a two boat operation. It has been argued that any net and coble operation involving two boats must be confined to the foreshore. Some net and coble stations operate broadly on that basis. There are perfectly sound practical reasons for doing so. The bank or shore acts as a natural obstruction and hence an aid to the fisherman when encircling the fish. This lessens the chance of them escaping. This should not lead to the conclusion that the boat carrying the shore end of the net should be restricted in this way.

In support of this I wish to follow the remarks of my noble friend Lady Strange in mentioning the case of Hay v. Lord Provost of Perth (1863). She said somewhat modestly that she had only a family knowledge of this case. However, she gave the most lucid explanation of the case that I have ever heard. In that case the Lord President of the Court of Session in Scotland had correctly expressed the rational interpretation of the law in his opinion that, it is not illegal to start the boat at a point further out into the stream, and that it is not illegal to convey the tow rope from that point to the place where the net is hauled in by a boat instead of over a man's shoulder, he walking in the river. That and similar judgements confirm in my mind that the judicial decisions do not support such a restriction.

Finally, let us consider whether the shore end of the rope should be hand held. It has been argued that at all times this should be a fundamental requirement of net and coble fishing. Indeed I understood my noble friend Lord Sanderson of Bowden to express that view. Again I accept that this is the general practice but it is not universally so. For example, the Bermoney boat, which has been mentioned, has a small winch on board to which the shore end of the rope is attached. While the rope is under the effective command and control of the fisherman at all times, it is not always in his hand. This is supported in the case of the Duke of Atholl v. Glover Incorporation where Lord Davey commented: The mere fact that the fisherman is holding one end of the net whilst the net is left to catch or impede the passage of fish of itself is not what was meant; and, on the other hand, the fisherman might conceivably attach the end of the net to his boat, and move the net by rowing the boat, and yet be within the rule. What I understand to be meant is that the net must be under the effectual command and control of the fisherman, and be kept in motion by him for the purpose of enclosing the fish within its sweep". I draw the following conclusions from these points. It is both inappropriate and ultra vires to draw a distinction between tidal and non-tidal waters. Case law simply does not support any limitation on the distance from the shore at which a boat carrying the shore end of the net may operate, within fair net and coble. Finally, provided the shore end of the rope is under the effective command and control of the fisherman, there is no need for it to be held by hand at all times.

My honourable friend the Parliamentary Under-Secretary was conscious of these points when faced with representations to change the net and coble definition. The only real scope for constructive action which would help meet their wishes was to limit the distance from the shore at which a boat carrying the shore end of the net should operate within fair net and coble. As I have indicated, such a provision would also have to take account of the fisherman who may walk along the shore or wade into the water if he chooses to do so. Accordingly, he consulted on the basis of altering the net and coble definition in the 1992 regulations by incorporating in amending regulations the requirement that net and coble fishing should be carried out "from the bank or shore" or "from waters adjacent to the bank or shore". As I understand it, virtually all Scottish salmon interests are content to proceed on this basis. That includes the Association of Scottish District Salmon Fishery Boards, who not only represent angling and netting interests but who would also have the task of enforcing such a provision.

Much has been said about the word "adjacent". Of course it is accepted that "adjacent" is not a precise term. But the circumstances in which net and coble fishing is legitimately practised at present are not precise in that sense either: for example, it is not possible to specify a fixed distance from the bank or shore. Circumstances differ from place to place. In this situation it is important that the word "adjacent" should be interpreted within the context of the definition as a whole and not be considered in isolation. Again I turn to the practical explanation that my noble friend Lord Kimball has given.

If a fisherman observes all the fundamental requirements of net and coble as set out in the definition but an enforcement authority has doubts over the adjacency of the operation then the grounds for a prosecution would have to be assessed carefully and in the light of the particular circumstances that applied at the time. The district boards were consulted on this point. I believe it has been confirmed this evening that they are content to proceed on this basis.

The debate has been useful and enlightening. Some of the points made are indicative of the uncertainty that led to pressure for statutory definitions in the first place. In that sense they confirm the need for legislation in this area. The 1992 regulations fulfil this need. The regulations by and large have been accepted. It is now acknowledged that they could stand clarification and greater definition in two respects; that is, on netting twines and on the net and coble definition. Consultations have been carried out recently on both matters. A consensus has now been reached in support of amending the regulations. I suppose I have to acknowledge that if there is a possibility of amending the regulations, there could be further amendment should that prove necessary. I do not believe that that would be the case, but we look forward to having the amending regulations introduced as soon as possible.

On the basis of that explanation I hope that the noble and learned Lord, Lord Cameron, will not feel it necessary to divide the House and will accept that in bringing this matter before the House he has enabled all those who have a keen interest in it to express their views.

6.40 p.m.

Lord Cameron of Lochbroom

My Lords, I am most grateful to all noble Lords who have taken part in the debate. I was struck by the fact that the Minister was able to define net and coble fishing from the common law without having to try to redefine it in a statutory instrument. I found that particularly interesting because I was waiting to hear from the noble and learned Lord why that definition was unsatisfactory. Nothing that I have heard tonight suggests that there have been difficulties in bringing prosecutions within the definition. I waited for some indication of anxieties that particular methods which were thought to be unjustified within the common law definition of coble and net fishing had been the subject of unsuccessful prosecutions. I heard nothing to that effect.

Moreover, I am grateful to the Government for the fact that they have consulted further, particularly in relation to monofilament netting, and that in relation to multi-filament regulations a working party has been set up. It appears that a satisfactory outcome will result. However, I remain concerned about Regulation 2(a), partly for the reasons which I have already mentioned but more particularly in view of what has emerged from the debate.

The noble Viscount, Lord Thurso, expressed concern because local conditions, in terms of the river pattern and geography, impose different constraints upon the form of fishing. However, net and coble fishing extends beyond the inland waters to estuaries. I accept entirely the Minister's point about the distinction between tidal and non-tidal waters in respect of inland waters and estuaries, but those are the phrases which are used in the Act.

The noble Lord, Lord Kimball, described a particular form of fishing which he pursues on his river in the north of Scotland. However, that is a particular operation on a particular river. It seems to me that at the end of the day what is required and what we all seek is a law which is clear, intelligible and unambiguous and which will form the basis for proper prosecutions and provide clear guidance to the prosecutor. Therefore, to include a phrase such as adjacent to a "bank or shore" in the regulations as a generality serves merely to confuse and make it yet more difficult to determine at what point a particular method of fishing falls foul of the question of adjacency, depending on whether a bank or a shore is involved. Nothing that has been said by the noble and learned Lord has in any way eased my concern on that point. I should have been happier if he had been able to suggest, for example, that his noble and learned friend the Lord Advocate, wearing his prosecution hat, would be happy to draft a complaint on the basis of a regulation which contained such a general phrase and which applied to the generality of this method of fishing.

In an area such as this, when one is dealing with the need for certainty for the purposes of prosecution, I should have hoped that we could hold in mind the old Latin tag, festina lente. Even seven years is nothing in order to get the matter absolutely right. I have suggested one way forward and I should have hoped to hear rather more from the Minister.

However, I recognise that this is a matter on which debate can continue. I trust that it will, because we want to get this right. I have no intention of dividing the House on the matter. This Motion has served as a means of securing the debate which I had hoped to see take place at an earlier stage. However, through my own incompetence in not being able to determine what the Minister and I would recognise as clear days, I was unable to initiate a debate before the regulations fell to be approved.

I am most grateful to all those noble Lords who have taken part. I am particularly grateful to the noble Lords, Lord Sanderson and Lord Moran, for their support. I recognise the other points of view which have been expressed by the noble Viscount, the noble Lord, Lord Kimball, and the noble Baroness, Lady Strange, who comes to the matter with a degree of familiarity which I cannot endeavour to achieve even after five readings of the case of Hay against the magistrates of Perth, both in the Court of Session and in your Lordships' House.

In those circumstances I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.