Subordinate Legislation Committee, 03 Oct 2000

Meeting date: Tuesday, October 3, 2000

Official Report 75KB pdf

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Salmon Conservation (Scotland) Bill

The first item on the agenda is scrutiny of the delegated powers in the Salmon Conservation (Scotland) Bill, on which we have received an extensive legal briefing. Do members have any comments?

I accept the invitation to kick off, convener. Our legal advisers made the point that the measures to conserve salmon which the bill seeks to introduce are not immediately obvious, nor is it clear how those measures would work. We would welcome clarity on that. Although the policy memorandum refers to various conservation methods, the bill as introduced does not say which methods will be pursued; indeed, it might simply mean a more liberal regime for specifying annual close times.

We have previously raised a general point about bills that appear to leave almost everything to subordinate legislation. Unless there are extenuating circumstances, that is not the direction in which legislation should be going. As Fergus Ewing pointed out, once the bill is passed, it will not be abundantly clear to anyone who reads it how salmon will be conserved in Scotland.

Although proceeding by subordinate legislation is appropriate in this case, I do not object to the Executive providing greater clarity on the powers that it would expect to use.

The principal change that the bill introduces is that ministers will be able to initiate subordinate legislation, instead of waiting for the district salmon fishery boards to apply to them, as the Salmon Act 1986 stipulated. It is entirely appropriate for ministers to use their powers to bring an early close to the season or to restrict types of bait and lure if there is evidence that salmon stocks are depleted. It would not be a sensible use of parliamentary time to use primary legislation to introduce such measures. However, although I am comfortable with the general principle of using delegated legislation in this instance, I am also quite comfortable with asking for greater clarity on some points.

Furthermore, we should seek clarity on new section 10A(4) under section 1 of the bill, which says:

"Scottish Ministers shall have regard to any representations made to them by any person having an interest in fishing for or taking salmon, or in the environment."

Perhaps we should ask the Executive which bodies or organisations

"Scottish ministers shall have regard to"

before they make regulations.

I have two more brief points. New section 10A(5) under section 1 of the bill seems to be intended as a long-stop provision. The powers under the bill would be used as a long stop only where existing powers are inadequate. From a very limited trawl, it seems that the existing powers are under section 6(4) of the Salmon Act 1986, which says that regulations can be introduced at the promotion of a district salmon fishery board or of two riparian owners. Is the bill intended only as a long-stop provision if adequate conservation measures are not promoted through the existing channels?

Secondly, the provisions in new section 10A(4) under section 1 of the bill seem rather vague and ambiguous. Although I have never fished for salmon in my life, I certainly have an interest in doing so before my life is over. As a result, I will have a right to sue under the terms of the bill. I also have an interest in the environment and, frankly, do not know anyone who does not. Does the Executive intend that everyone should be able to make representations to which the ministers must have regard; or do ministers intend to listen only to some groups or voluntary organisations? Much more clarity would be appreciated. A legal duty is imposed upon ministers, and the extent of that duty and to whom it is owed must be made plain.

In the spirit of consensus that we hope will prevail during the committee's meeting with Executive officials that follows this one, I suggest that we write to the Executive and say that although legislation of this nature usually raises concerns because of its all-encompassing powers, we seek clarification about the possible scenarios that are expected and the possible actions that will be taken. From other forms of legislation that come before us, we are aware of the necessity to act quickly without taking the matter to the chamber.

We should also seek clarification of the additional powers of enforcement, entry, search and arrest in new section 10B(2) under section 1 of the bill. Given that people often raise concerns about members of the Special Air Service Regiment guarding fishing rights in the north of Scotland and so on, we should ask about the exact nature of the additional powers and who will have them, and see what response we receive.

For example, the Executive would not want water bailiffs who were also councillors.