Salmon Conservation (Scotland) Bill: Stage 2
Ladies and gentlemen, we are a little concerned about the absence of some members, but that does not prevent us from proceeding.
Today we are dealing with stage 2 of the Salmon Conservation (Scotland) Bill. We have dealt with stage 2 of two previous bills, but I will briefly run through the procedure that we intend to use—I will try to keep everybody in line as we go along.
We have a number of amendments to consider, and I have grouped them for debate. We have six groups of amendments to discuss today; I remind members that we have agreed that we will not proceed beyond proposed section 10B at today's meeting. I will call the member whose amendment is first in each group. That member should speak to and move the amendment, but they also have the opportunity to speak to the other amendments in the group at that time. Other members with amendments in the group will then be allowed to speak to their amendments and to the others in the group. Any other member of the committee who wishes to take part in the debate should indicate so at that point, and they will be invited to participate.
Following debate, I will ask whether the member moving the first amendment in the group still wishes to press their amendment to a decision. If not, they may seek the agreement of the committee to withdraw it. If it is not withdrawn, I will put the question on the first amendment in the group. If any member disagrees, we will proceed to a division by a show of hands. Only members of the committee may vote. It is important that members keep their hands raised until the clerk has recorded the vote. We will then proceed to work through the bill, voting on amendments in the order in which they appear on the marshalled list.
Before section 1
I invite John Home Robertson to move amendment 10, which is grouped with amendment 11.
Amendment 10 would provide for a report to Parliament by 2003 on the operation of the act. As members of the committee will have noticed, this is an interesting case of role reversal. When I last took part in this committee's proceedings, I was here as the Deputy Minister for Rural Affairs to resist an amendment, which was lodged by Jamie McGrigor as a back bencher, to Tavish Scott's Sea Fisheries (Shellfish) Amendment (Scotland) Bill. This time, I am here as a back bencher to move an amendment to an Executive bill, which I submitted to the Parliament.
Perhaps I should explain myself. I have taken great interest in freshwater fisheries policy as a constituency member of Parliament for the past 22 years. I was keen to take the opportunity afforded by my position as fisheries minister in the new devolved Parliament to drag Scotland's freshwater fishing legislation out of the 19th century and into the 21st century. I discussed my ideas with Donald Dewar, who gave me his support. We launched the consultation document "Protecting and Promoting Scotland's Freshwater Fish and Fisheries" in April, and I set out a range of questions about conservation, the management of fisheries and fishing opportunities. I was keen that the process should lead to a better and more inclusive new framework for the management of our rivers and lochs.
We have inherited a weird accumulation of freshwater fisheries legislation dating from Victorian times and before. There is an elaborate body of salmon legislation. The bill that we are considering amends some of that legislation. Different laws apply to trout, including the vexed subject of protection orders under the Freshwater and Salmon Fisheries (Scotland) Act 1976. So-called coarse fish may or may not be covered by common law. Access to riverbanks is another matter altogether and responsibility for other aspects of rivers can involve a range of people and authorities.
Much of the legislation tends to protect vested interests—historically, that is the way in which it has worked. Much of the legislation was introduced in the House of Lords—perhaps the less said about that the better. Devolution and the establishment of the Scottish Parliament is a golden opportunity to tackle the backlog of anachronistic and archaic fisheries legislation in order to introduce urgently needed conservation measures, promote the immensely popular sport of angling—for residents and visitors—and create more inclusive and accountable bodies to manage Scotland's rivers and lochs.
When the bill was first put on my desk, I asked officials to incorporate the new conservation proposals into a comprehensive freshwater fisheries bill, arising from the consultation process that had already started. That would have taken longer, but would have avoided the need for two bills and the need to add, even temporarily, to the draconian powers of boards dominated by landowners and, in areas where there are no boards, to the powers of individual landowners.
At stage 1, I explained that the bill would create further powers that could, under certain circumstances, enable a riparian owner to initiate a statutory order affecting anglers on a river. That order could make it possible for an angler to be convicted in court on the uncorroborated evidence of a bailiff employed by the same riparian owner. In his wind-up speech, Ross Finnie said that I was wrong about that. I wish that I was wrong, but I am afraid that I know what I am talking about. We should be worried about adding to those powers; those unsatisfactory circumstances must underline the case for legislation to reform the constitution of boards as soon as possible.
I am not suggesting that landowners are abusing their power and influence on every district salmon fishery board. Many boards work conscientiously in the public interest. However, their constitution is still fundamentally flawed and unrepresentative. It would have been better if we could have broadened the basis of the boards and updated the rest of the legislation to coincide with the new conservation measure. However, someone somewhere insisted that the bill should proceed in this form immediately. I was persuaded to support the bill because I fully accept that there is an urgent need for new conservation measures and I felt that I would be able to ensure that the rest of the protecting and promoting agenda could be kept on track for legislation in the near future.
Obviously, I am no longer in a position to influence that process directly. Experience leads me to be a little suspicious that some people would be quite content for the issue to fall quietly off the agenda. Amendment 10 would require the Scottish Executive to submit a report to the Scottish Parliament about all relevant aspects of the legislation within two years of the implementation of the bill. That would specifically include reference to the case for altering the constitution or composition of district salmon fishery boards and the boundaries of fishery districts. I hope that the requirement to make such a report will help to keep the momentum for progressive and constructive reform of the management of Scotland's freshwater fisheries.
I am grateful to the committee for listening to me. I hope that former colleagues in the rural affairs department as well as friends on the committee will consider my proposal favourably. I know that Rhona Brankin is aware of the interests of anglers, not least because of her constituency interest in Midlothian. Labour members of the Scottish Parliament were not sent to the Parliament to add to the entrenched powers of riparian owners. We need change and that change might be connected constructively to this legislation.
I move amendment 10.
I call Richard Lochhead to speak to his amendment.
Amendment 11, which is in my name, relates to many of the issues that John Home Robertson has highlighted. I commend him on his speech, because I agree entirely with everything that he said. In Scotland, we are in the strange situation that part of our natural heritage is owned by retired senior military figures and the aristocracy. As a result, there is a lack of democratic accountability and transparency in the ownership structure of fishing rights in Scotland. We are one of the few countries in which those rights are privately owned.
My amendment aims to get some fundamental information into the public domain—information relating to the membership of fishery boards in Scotland. For some spectacular reason, that information is not held centrally by the Government. There is now a Scottish Parliament and we have—hopefully—entered a new democratic age in Scotland. It is important that information that is in the public interest is made available, so that we know who owns Scotland's private fishing rights. I understand that, although the information is not yet held centrally, the Executive is compiling it on a database. That is not quite good enough. Having the information on a database is one thing, but making it available to the people of Scotland in an accessible manner is another. That is what should happen and why I lodged amendment 11.
I will now call for speakers from the floor. I will then give the minister an opportunity to respond to the debate, before allowing the person who moved the lead amendment in the group to reply.
Richard Lochhead said that these rights were owned by retired military officers.
You should not take that personally.
As a retired military officer, perhaps I should declare an interest. However, I can assure Richard Lochhead that I do not own stretches of the River Dee or any other river.
I said senior military figures.
The amendments may be well intentioned, but—as its title indicates—the bill is about salmon conservation. With due respect to John Home Robertson and Richard Lochhead, I believe that to deal here with the constitution or composition of district salmon fishery boards or, in the case of amendment 11, their membership, would be to start down a different track. It is appropriate that these concerns should have been raised and I agree that we should deal with them, but at another time. I hope that the minister will address that issue in her response. However, the bill is about conservation, rather than another issue that we may want to come back to in future.
I support the amendments lodged by both John Home Robertson and Richard Lochhead. The bill is designed to give more powers to district salmon fishery boards, with the aim of conserving salmon stocks. If boards are to have more powers, they should surely have more accountability.
John Home Robertson's amendment does not quite match the quality of his rhetoric. It suggests not that the composition of the boards should be changed now, but that it should be the subject of a report by Scottish ministers within two years. Neither John Home Robertson nor I know what that report would say. It might say that the status quo was fine. The amendment does not argue that the boards should be composed in a particular way. For that reason, I believe that arguments against the amendment are pretty weak. To argue against the amendment is to argue against any review of the composition of district salmon fishery boards.
I am happy to support amendment 10. I listened with care to what John Home Robertson said about his role as a former gamekeeper turned poacher. The committee is interested in the perspective that he can provide. I believe that we should learn and benefit from it. In the spirit of non-partisanship, I hope that his amendment is carried.
Richard Lochhead's amendment simply allows us to know who the riparian owners are. Surely that must be an amendment to which every member of the committee can happily subscribe.
I would like to seek clarification of Fergus Ewing's comments. I understand that the purpose of Richard Lochhead's amendment is indeed to provide details of every riparian owner, but what it actually asks for are details of the membership of every district salmon fishery board. Those are different things. I am a riparian owner—I should declare an interest in this debate for that reason—but I am not on the district salmon fishery board and nor are many of the owners of the river of which I own a stretch. I am afraid that the wording of amendment 11 would not allow me to vote for it. It states something different from what it is seeking to do.
I have to agree with what Alex Fergusson has just said. Richard Lochhead may have intended to find out who owns the river, but amendment 11 will not provide that information. I sympathise with his desire to seek the information, but this is not necessarily the way to do it.
Fergus Ewing said that the bill is designed to give district salmon fishery boards more power. I thought that it was designed to conserve salmon and, in doing so, give ministers powers to make regulations on request by a variety of people. I do not think that Fergus Ewing's representation of the purpose of the bill is correct. However, I would be interested to hear what the minister has to say.
I have some sympathy with some of the points that John Home Robertson has made, particularly on the need to review the legislation on freshwater fisheries and salmon regulations. We are all concerned about that. My only question on his amendment is about how he intends to count
"the numbers of salmon and sea trout in each salmon fishery district",
as proposed subsection (1)(b) under amendment 10 says. I wonder how reliably we would be able to get that sort of data.
John Home Robertson's amendment echoes some of the sentiments that he expressed at stage 1. As we have heard, he has reservations about the fact that members of district salmon fishery boards are entrusted with the management of salmon fisheries. I remind him and other members that the "Protecting and Promoting Scotland's Freshwater Fish and Fisheries" review is the place for discussions about the optimum management structures for all freshwater species, not just salmon. The bill is about giving boards the wherewithal, as a matter of urgency, to introduce conservation measures to ensure that there will still be fisheries to manage in the future.
I fully subscribe to the view that the effects of regulations made under the bill, rather than under the Salmon Act 1986, should be monitored. That will happen, as I assured the committee on 7 November and reiterated at the stage 1 debate—the effect of regulations will be kept under review. We will need to evaluate the effects of the regulations. When district salmon fishery boards or ministers make regulations, we will be looking to see what the intention of the regulation is and how we will evaluate it. That is part and parcel of what the bill proposes.
I am more than happy to give the committee a commitment to come back at an appropriate time to provide members with an update about how many regulations have been applied for, their nature and whether we have seen any effect. Some of the regulations will take at least five years to show an effect but, if the committee would like me to, I am prepared to come back at an agreed time to give members an update on how things are going.
Proposed subsection (1)(b) is difficult. To be in any way achievable, it would require putting a fish counter on every one of Scotland's 390 salmon rivers at approximately £100,000 apiece. Even if funds were limitless and technology were up to the job of tracking every salmon in every river, that would not protect them from what they encounter in the high seas. When I come back to the committee to report on what has been happening—if the committee wants me to do that—we can show the effect that the measure has had on numbers, where they have been monitored by the district salmon fishery boards.
Amendment 11 does nothing to advance salmon conservation. I know that Richard Lochhead and Fergus Ewing have an interest in knowing the membership of district salmon fishery boards, but I do not understand how the provision of that information or a report to Parliament would further salmon conservation, which is the purpose of the bill. I do not think that those measures would further conservation.
I urge John Home Robertson and Richard Lochhead not to press amendments 10 and 11 respectively.
On a point of order, convener. Listening to Rhona Brankin, I found myself reading the amendment that we are debating. It is not the same as the one that I lodged. That gives rise to certain difficulties.
I accept Rhona Brankin's criticisms, as it is obviously quite impossible to produce numbers of salmon and sea trout in every fishery district, but the amendment that I lodged said simply:
"A report under subsection (1) shall include—
information on the application and enforcement of regulations made under this Act,
statistical data on stocks of salmon and sea trout in each fishery district, identifying those districts covered by regulations made under this Act".
Something seems to have been changed in the system.
Life is never simple.
It is bizarre.
I am told that the procedure is that amendments are fine-tuned by the draftsmen and that they are published in the business bulletin for approval.
That presents members who lodge amendments, and others, with some difficulties. I drafted an amendment and took it to the clerk last week. It was fine tuned at that stage. I understood that what was agreed then was what would be considered by the committee. I do not want to make a meal of this, but I am puzzled.
I will say something that may be helpful. Even if the amendment were drafted with John Home Robertson's wording, the same objection would arise. The difficulty lies with requiring information on every river. We receive some information from some district salmon fishery boards and where there are applications to make regulation, we expect feedback on how successful the regulation is.
The difficulty is that such information does not exist for every salmon river in Scotland. Indeed, the Association of Salmon Fishery Boards probably does not have that information. We may want to have such information in the future and I give the undertaking that we will seek to develop as much information as we can on all salmon rivers in Scotland, but that information is incomplete at present.
I understand that statistics that are not available cannot be published. Equally, that suggests that it does not make much sense to make regulations if nobody knows what effect they will have, what they will achieve or whether they will need to be fine tuned in future. That is a serious point that needs to be addressed. The minister has given an undertaking that the best possible statistics will be sought and published—I know that such statistics are generally published in other formats, but it probably should be provided for in the context of fresh legislation.
The fundamental point that I am driving at—apart from the conservation objectives that the bill is to tackle—is that there is a background of messy legislation. Annexe B of "Protecting and Promoting Scotland's Freshwater Fish and Fisheries" contains six and a half sides of A4 that list the body of legislation that we are dealing with, starting with the Solway Act 1804 and running through to the Environment Act 1995, with masses of orders and other pieces of legislation in between. The trouble is that the legislation is based on fundamentally anachronistically composed boards. That is an important point. I am not going to drop this issue and the minister has acknowledged that she is not happy with the situation and that it needs to be revisited.
What I am angling for—if I may use that phrase—is an undertaking that the consultation on "Protecting and Promoting Scotland's Freshwater Fish and Fisheries", which is now complete, will lead to a report in 2001 from which, if it is appropriate, legislation will flow before the conclusion of this session. If I am satisfied that such a report and legislation will be forthcoming, I shall be a happy chappie and will cause no further difficulties in this committee at this stage.
This is an important point. There are powerful forces—and I am not looking over my shoulder or anywhere else—that would like the issue to be dropped. I want the minister to realise that there are even more powerful forces in her constituency, and mine—and in other parts of Scotland and the tourism industry—that would like a better job to be made of this. Can the minister give me some assurance of that?
We are all aware of the need for consolidation in this area and the Executive is seeking to achieve that. I cannot guarantee that we will do so this session, but I shall do my utmost to ensure that we do, as I believe that consolidation is necessary.
I guarantee that I shall keep pushing for that.
I am sure you will.
We have probably said as much about this issue as is constructive at this stage. I am prepared to withdraw my amendment on the basis of the minister's assurances.
Amendment 10, by agreement, withdrawn.
Amendment 11 moved—[Richard Lochhead].
The question is, that amendment 11 be agreed to. Are we agreed?
No.
There will be a division.
For
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Lochhead, Richard (North-East Scotland) (SNP)
Against
Fergusson, Alex (South of Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Johnstone, Alex (North-East Scotland) (Con)
McNulty, Des (Clydebank and Milngavie) (Lab)
Munro, Mr John (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
The result of the division is: For 3, Against 8, Abstentions 0.
Amendment 11 disagreed to.
Section 1—Conservation of salmon and sea trout
The next group of amendments concerns the limits on regulations, in the general sense. Amendment 12 is in the name of Euan Robson and amendment 1 is in the name of Mr Mike Rumbles. I call Euan Robson to speak to both amendments and to move amendment 12.
I declare an interest as a River Tweed commissioner.
The purpose of amendment 12 is to ensure that regulations that are made under the proposed section 10A are made in the context of conserving, protecting and improving salmon fisheries. It draws on words that are used in the 1986 act. Members will recall that, at stage 1, there was considerable discussion about not separating the concept of conservation of salmon from the management of salmon fisheries. I think that several members referred to the impossibility of divorcing the two.
The criticism of section 10A is that it may not allow for the relaxation or change of a regulation that is made for the conservation of salmon even if the stocks or some part of the stocks are able to sustain an increase in fishing. In the future, anyone who is against the concept of salmon fishing could argue that any measure that allows an increase in the number of salmon taken is not consistent with a strict interpretation of "conservation". They could say that the use of words such as "protection" and "improvement" with regard to fisheries and "management" and "conservation" with regard to salmon stocks, which are used elsewhere in salmon fisheries legislation, give substantial backing to their view that the narrow interpretation should be favoured.
Amendment 1 does not address the problem. It clearly separates the conservation of salmon from the management of salmon fisheries; "also" is used in the sentence that reads:
"by reason only that they also have effect in relation to the management of salmon fisheries for exploitation."
That clearly suggests that there are two concepts at work. I do not believe that they can be separated. The conservation of salmon must be considered and interpreted in the context of proper management of salmon fisheries. Amendment 12 would achieve that. I am suggesting, in the words of the old song, that, like love and marriage, conservation and management
"go together like a horse and carriage. . .
You can't have one without the other."
I move amendment 12.
The sentiment behind amendment 12 is the same as that behind amendment 1. It is important to recognise that we cannot conserve fish stocks in our rivers without taking account of the exploitation of salmon fisheries. I have been concerned about the feedback that we have had from the Association of Salmon Fishery Boards, especially that concerning the Dee, which is in my area. That is why I was moved to lodge amendment 1.
There are important differences between the two amendments. Amendment 1 recognises the function of the management of salmon fisheries for exploitation, whereas amendment 12 does not. We are clarifying the meaning of conservation in that context.
The issue of the use of the word "also" is one of degree. How far from the primary purpose of conservation may regulations go when they affect the management of fisheries? The word "also" emphasises the fact that regulations cannot be just about management, but must also be about conservation. We are not redefining conservation, as Euan Robson implied; we are clarifying what it means.
Given that the sentiments behind the amendments are the same, I urge members to accept amendment 1 rather than amendment 12—although I would say that anyway—as my amendment achieves the purpose better.
The purpose of amendment 12 is well understood, but it may go further than Euan Robson intends. Although conservation could not be taken to be in conflict with the management of fisheries for exploitation, as is provided for in the bill, I understand the importance of addressing the perception among interest groups that the two may be incompatible.
Amendment 12 places the needs of fisheries before conservation in a way that may be counterproductive. For example, the protection of fisheries could mean that otherwise sensible restrictions on exploitation would be set aside because the fishery would suffer short-term loss. Fragile fish populations could be fished to extinction, just to maintain an income for the proprietor of the fishery. The focus of the bill is on the fish. If they are properly conserved, the fisheries look after themselves.
It may help the committee to know that the salmon fishery boards already have considerable power to undertake management measures to protect and improve their fisheries. Section 16 of the Salmon Act 1986 empowers them to execute such measures, to do such work and to incur such expenses as they feel are appropriate to protect and improve the salmon fisheries and increase the number of salmon. The bill augments boards' existing management powers. In our view, amendment 12 would give rise to an unnecessary duplication. I would therefore caution the committee against supporting it.
However, I support amendment 1, which has been lodged by Mike Rumbles. It would clarify that regulations made for conservation that involve the management of salmon fisheries will not only be competent, but will serve the best interests of fish and fisheries. The objective of the bill, as I explained to the committee on 7 November and to the chamber during the stage 1 debate on 23 November, is to enable fishery managers to manage their fisheries better. Without fish, there are no fisheries; conservation and management have to go hand in hand.
The fears that regulations made under this bill might sacrifice fishing to a higher conservation objective are entirely unfounded. The bill simply inserts new sections into the main salmon fisheries management statute, the 1986 act. I acknowledge the importance of a positive perception among fishery managers and anglers of the objective of this bill and I believe that it deserves to be seen in such a positive light.
I therefore support amendment 1, which seeks to clarify that conservation and management are in no way incompatible. I urge Euan Robson to withdraw amendment 12 and ask the committee to support amendment 1.
I have heard what the minister said and I have listened carefully to what Mike Rumbles said. There is a consistency of view among us; that conservation of salmon is extremely important. Mine is a narrow point of emphasis—if conservation and management are split, there may be circumstances in which there could be difficulties. Inserting the proposed section 10A into the 1986 act without using phraseology similar to that used in the 1986 act could lead to difficulties.
Nevertheless, I believe that it would be sensible at this stage to seek the agreement of the committee to my withdrawing amendment 12. I will then study what the minister has said and reread some of the legislation. However, in so doing, I do not guarantee that I will not resurrect the matter at a later stage. I seek to withdraw my amendment, rather than delay the committee.
Amendment 12, by agreement, withdrawn.
Amendment 1 moved—[Mr Rumbles]—and agreed to.
We now come to amendment 2, in the name of Rhona Brankin. I invite her to speak to and move that amendment.
I listened with interest to the assertion, made during stage 1 committee meetings, that section 10A could be used to control predators or to make provisions that would affect other policy areas, such as planning or forestry. Amendment 2 clarifies that the areas in which the new power may be exercised are those within the scope of the Salmon Act 1986 and other salmon and freshwater fisheries legislation. It was never intended that the power should have such a wide application as was suggested by some people at stage 1. The intention was that the new power should be as flexible as possible to meet further developments in fishery management, but that does not mean that it should stray into areas covered by other statutes.
Although amendment 2 narrows the scope of the bill to issues specifically related to the 1986 act and to salmon and freshwater fisheries legislation, it still gives us some flexibility to meet future developments. I hope that that will address the issues that were raised by those who are concerned about the broad scope of the original powers.
I move amendment 2.
On first reading amendment 2, I had to puzzle out what it meant. I came to the conclusion that it could mean only that the Executive wanted to narrow the scope of the measures in the bill that would be considered relevant. I presume that that is why the wording refers specifically to salmon fisheries. As the minister explained, the amendment seeks to limit the measures that would be considered relevant.
I oppose the amendment on the basis that I think it is essential that no such restriction should be introduced, and I do so for the following reasons. When we took evidence from five witnesses on 7 November 2000, every one of them stated that the threats to the conservation of salmon lie largely in the marine phase of the salmon's life-cycle. That was also stated in the submission from Andrew Wallace, the director of the Association of Salmon Fishery Boards, who said in his letter to the Scottish Executive rural affairs department:
"The ASFB shares the concern of the Scottish Executive on the matter of migratory salmonid stock declines but wishes strongly to emphasise that only some of the causes of reductions in salmon stock abundance can be attributed to the part of the life cycle over which Salmon Fishery Boards may exercise any control. The Association believes that many of the major drivers of salmon stock abundance are in the marine phase of the species' life-cycle and that further Government resources need to be applied to resolving these problems."
I will not rehearse the evidence given by the witnesses from the Salmon Net Fishing Association (Scotland), the Scottish Anglers National Association, the Atlantic Salmon Trust or the Salmon and Trout Association, but they all emphasised the threats to salmon, including sea lice, drift-netting in England, the level of the seal population and certain sea birds. I believe that the minister has acknowledged that those problems must be considered. Having done so, it seems illogical that she should say that the bill cannot consider all the measures that are necessary to conserve salmon.
A moment ago, Mike Rumbles said that the purpose of the bill is to conserve salmon.
I said that.
I am sorry. It was Dr Elaine Murray. If salmon conservation is the aim of the bill, it seems perverse to deny ourselves the opportunity to conserve salmon. I have lodged an amendment, which is to be debated later—I had expected to make these arguments in debating it. Indeed, I still hope to do so. If the purpose of amendment 2 is to block measures that could conserve salmon, measures that every witness said should at least be considered, it will be inimical to the aim of conserving salmon. The committee would be made to look rather foolish if we vote against the aim of the bill itself.
I hope that the minister will address those concerns. If she is determined to proceed with amendment 2, as I presume she is, it would be incumbent on the Executive to state what other measures it is going to consider, given that all the evidence that we heard indicated that other measures are most certainly necessary.
I would like to respond to a couple of Fergus Ewing's comments. I said that John Home Robertson and Richard Lochhead had raised interesting issues but not the issues that the bill is concerned with. In the same way, I want to point out that if anything is illogical about this debate, it is the view that Fergus Ewing has just expressed. The whole point about the bill is that it addresses the conservation of salmon in the freshwater phase of their lives. If we are going to do something else, let us do it with a different bill.
Rather than lob words such as foolish at other committee members in the hope that they will vote against amendment 2, Fergus Ewing needs to look again at the purpose of the bill. It is quite clearly accepted that the bill is about conservation of salmon in the freshwater phase of their lives. I hope that the minister will emphasise that in her response. I oppose what Fergus Ewing said.
If I could change the temperature of the north Atlantic by 2 deg, believe me I would. The things that Fergus Ewing is talking about are not within the scope of the bill. There are clearly issues to do with the marine environment but, as Mr Rumbles pointed out, they are not within the scope of the bill.
As Mr Ewing already knows, predator control is already covered by other domestic legislation. Scottish ministers have authority under section 16(1)(k) of the Wildlife and Countryside Act 1981 to grant licences to permit the killing or taking of birds for the prevention of serious damage to fisheries. With regard to seal predation, the Conservation of Seals Act 1970 permits the shooting of seals. That is permissive legislation. Mr Ewing may think that it should be used more frequently, but predator control is already covered by that other domestic legislation, so it is not necessary in this bill.
The question is, that amendment 2 be agreed to. Are we all agreed?
No.
There will be a division.
For
Fergusson, Alex (South of Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Johnstone, Alex (North-East Scotland) (Con)
McNulty, Des (Clydebank and Milngavie) (Lab)
Munro, Mr John (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Against
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Lochhead, Richard (North-East Scotland) (SNP)
Abstentions
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
The result of the division is: For 8, Against 2, Abstentions 1.
Amendment 2 agreed to.
Amendment 3, in the name of Rhona Brankin, is grouped with amendments 13 and 19. I invite the minister to speak to and move amendment 3 and speak to the other amendments in the group.
The committee will recall that a number of concerns were expressed by organisations about the broad scope of section 1 as originally drafted. I believe that amendment 3 addresses those concerns, as it narrows the scope to information about the fishery specified in regulations. It also allows for that information to be provided within a time specified in the regulations.
I remind the committee that the regulations in which the details will be set out will be subject to full consultation. Amendment 3 will ensure that management decisions are based on local information, supported by individuals, and will ensure that future management decisions are well informed. The amendment responds to concerns that were raised with us during stage 1 and should therefore be uncontroversial and, indeed, welcomed in many quarters. The bill will require the proprietors of salmon fisheries to supply the district salmon fishery boards with information.
I move amendment 3.
Amendment 13 would add a subsection to
"require a proprietor or owner to allow any person authorised for the purpose by the Scottish Ministers or a district salmon fishery board to enter land or gain access to water at any reasonable time for the purpose of collecting information required under paragraph (a)".
The purpose of the amendment is to specify that there should be such a right of access.
The measure arises from a recommendation in the letter from Mr Andrew Wallace of the Association of Salmon Fishery Boards, which I referred to earlier. We must ensure that such access can be provided for the collection of information, especially scientific information.
I confess that I have a slight drafting difficulty. It was not intended that amendment 19 should be inserted at the end of line 4; rather, like the minister's amendment, it was intended to replace lines 3 and 4. Therefore, I have some difficulty in speaking to it. As happened to John Home Robertson's amendment, something has gone wrong. I am not sure whether I can speak to the amendment, given that it has been inserted in the wrong place. I seek advice on that.
We are working to the published marshalled list of amendments.
In that case, I cannot speak to the amendment. Given the minister's remarks on amendment 3, I am not as upset at not being able to speak to the amendment as I would have been if I did not assume that the minister's amendment will be agreed to.
That is an interesting comment. On the subject of unexpected changes in format to amendments, can I remind members that if there is a problem, there is an option to move an amendment at stage 3.
I am aware of that, as I am aware that the responsibility for the mistake is mine, not having checked the wording more carefully.
Amendment 13 seems to raise some confusion between proprietors and people with heritable rights. A proprietor can have heritable rights without having land—they do not necessarily have to be a riparian owner. If someone was a haaf-netter in Arran, with a heritable right to fish, the amendment suggests that someone authorised by the minister could come into the netter's garden or house to get information on their fishing. I do not understand what the amendment means in relation to proprietors and heritable rights.
I tend to agree with Elaine Murray. My understanding is that, regardless of whether amendment 3 in the name of the minister is accepted, there is a requirement in the bill for the proprietor to provide such information as may be requested. All that Fergus Ewing's amendment would do is reinforce that. Amendment 13 does not add anything to the requirement that is already in the bill. The amendment is unnecessary.
A few months ago, when the Rural Affairs Committee considered the statutory instrument that dealt with the powers of fisheries officers, it was Richard Lochhead alone who vigorously opposed the powers to gain access. I am very surprised to see that he has supported Fergus Ewing's amendment. Perhaps Richard can clarify that.
There is no need for me to clarify that. There are two separate issues. That question is simply mischief making. Perhaps I should make some mischief, too.
I have a genuine question regarding amendment 3. Perhaps the minister could lay out how she envisages sanctions being applied should the information not be given within a certain time scale.
There may be an anomaly here because I understand that the rateable value of any freshwater fishery is based on the annual returns that the proprietors are currently required to make. The figures are adjusted regularly and do not accurately reflect the fishery or the fish taker. There will be some difficulty in ensuring that the returns from the boards and the proprietors are as accurate as we would wish.
Indeed. Furthermore, they do not include those fish that are poached.
Amendment 13 would require proprietors or owners, although the difference between the two is not clear, to allow access to land or water by a duly authorised person so that information can be collected. However, it should be borne in mind that the right to own land and salmon fishing rights are separate heritable titles. It does not follow that the proprietor of salmon fishing rights owns any land.
The requirement is for the proprietor to supply the necessary information. It is not for the district salmon fishery board to go and collect it. The bill does not permit, nor is there any intention that it should, bailiffs or anyone else to enter land or premises for the purposes of collecting log books or catch diaries.
District salmon fishery boards already have wide powers of action to collect information on other matters, such as the distribution of fish in the river. Under section 16 of the Salmon Act 1986, boards may carry out such acts, execute such works and incur such expenses as they deem appropriate for the protection or improvement of salmon fisheries, to increase the numbers of salmon or to stock the river with salmon.
Setting aside the difficulties in the amendment that I have indicated in relation to what proprietors may own, I trust that Mr Ewing will accept that boards will be able to require that they are supplied with the information that they need, within a time scale that is useful, and that failure to supply the information will be a breach of regulations. Indeed, that would be an offence under the new section 10C(1).
I would like to clarify some points in relation to Mr Fergusson's amendment. I realise that one of the intentions is to limit the burden placed on proprietors. We are aware that no one likes to fill in endless forms. However, rational management requires enough information to let managers develop sound proposals—not too much information, but information of the right type. The level of detail that may be requested and how often the information should be supplied are matters that would be more properly dealt with in the appropriate regulation rather than in the bill. All regulations will be subject to full consultation and the burden on proprietors will be one of the factors that will have to be taken into account.
I hope that Mr Ewing and Mr Fergusson will withdraw amendments 13 and 19 respectively and that the committee will support the Executive's amendment 3.
Amendment 3 agreed to.
Fergus, do you wish to move amendment 13?
Having had the benefit of hearing the minister's comments, which explained that sufficient powers exist already under the Salmon Act 1986 to require the provision of access, I presume that amendment 13—which I lodged because Andrew Wallace recommended the lodging of such an amendment—is not required. Therefore, I seek leave to withdraw amendment 13.
You cannot withdraw amendment 13, as it has not been moved. I presume that no one else wishes to move it. Although another member would be entitled to do so, it appears that there are no takers.
Amendment 13 not moved.
Alex, do you wish to move amendment 19?
I do not think that I can move it now, convener. When the minister summed up the debate, I was encouraged by her comments on specifying the information that will be required. That was what was behind my amendment, and I thank her for her comments. I will not move an amendment to which I could not speak.
Amendment 19 not moved.
Amendment 14 is in the name of Euan Robson. I invite Euan to speak to his amendment and to move it, following which I will open up the debate to other members.
The purpose of amendment 14 is to focus on the issue of river and riparian habitat improvement. Amendment 14 would allow the regulations to require district salmon fishery boards and indeed, other persons, to produce a plan to improve the river and riparian habitats of salmon and to deliver those plans to Scottish ministers. I have not lodged the amendment to frustrate, or become involved in, areas in which major efforts are being made to improve river and riparian habitats—there are a number of examples of such efforts already in Scotland.
I will refer to an example—because I know it quite well—that is local to me. Much work has been done on the River Tweed—in particular, its headwaters, but also on other parts of the river—to ensure a better habitat for spawning and for young fish before they become smolts and return to the river. I draw a fundamental distinction between stocking a river with fish from eggs that were developed in a hatchery and stocking through natural regeneration. Natural regeneration can be enhanced by such simple measures as clearing trees from river banks, fencing in river banks to allow them to remain ungrazed, creating ripples in streams and so on. All those measures are well understood and are being implemented in parts of Scotland.
I make it clear that I am not saying that no conservation work is going on; much conservation work and riparian and river habitat improvement is taking place. However, in some places no such work is being done. My amendment seeks to give Scottish ministers a specific power to require the production of such plans. That does not mean that those plans should be implemented as produced—there could be further discussion on how they should be implemented. However, the first and essential stage is for coherent plans to be produced on how the habitats in individual river systems might be enhanced.
I hope that amendment 14 falls within the scope of the bill. It is a specific addition that would make a considerable contribution to the bill. I am not content that the powers that it would introduce exist elsewhere. If they do, they are not being exercised and it would do no harm to stress them again in the bill.
I move amendment 14.
I understood that the bill would enable people who have
"an interest in fishing for or taking salmon"
to apply to ministers to make regulations, which—I imagine—could include a plan to improve a habitat. I thought that that was already possible to some extent for those who have an interest in rivers.
I am a bit concerned about the way in which the requirement is phrased. To my mind, the amendment says that if one has
"an interest in fishing for or taking salmon",
one could be required—whether one liked it or not—to prepare a plan to improve the habitat of the river. That seems to be taking matters the wrong way round. If a person happened to like fishing, the minister could require that person to draw up a plan to improve the habitat. The amendment seems unnecessary, because a similar power is available through application to the minister.
I am extremely sympathetic to the aims of the amendment, but I have a concern, which Euan Robson could perhaps address in his summing-up. In an area where there is no salmon fishery board, there might be a farmer who does not exercise his fishing rights and has no interest in the river that adjoins his land. There might be a case for saying that a national agency should be responsible for maintaining such habitats, but the amendment suggests that that farmer would be picked on to do that. He might not have the cash or the ability to draw up a plan. The amendment falls down in identifying who should be responsible for such plans. Its aims are worth while, but I would be grateful to hear Euan's response to my concerns.
I listened to Richard Lochhead and I agree entirely with everything that he said. [Laughter.]
That means that I have failed.
My point is the same as that which Richard made to Euan Robson. The amendment says that
"persons having an interest in fishing for or taking salmon"
would have to produce the plan. Poachers have already been mentioned but—joking apart—there is a serious point to be made. The amendment would place a legal requirement on everybody who has
"an interest in fishing for or taking salmon"
from a river to produce a plan. As Richard suggested, and as Elaine Murray said, the sentiment is right, but I worry about the phrasing of the amendment.
At the risk of joining the consensus, I agree with what has been said about the interest in fishing. What would happen if there were a dispute about who had the prevailing interest? That question might create a legal minefield.
A point was made about the creation of such plans, through the bill, not being related to their implementation. That gives me doubts about the legislation that we are producing. To produce a plan with no real idea of how it will be implemented or enforced can lead only to bad legislation, and I am against accepting that.
The wording of amendment 14 is rather woolly and could be improved. I take the point that Richard Lochhead made about a farmer who has land that is adjoined by a piece of water that might contain salmon or sea trout. However, if that individual did not have
"an interest in fishing for or taking salmon",
he would not be required to produce a plan, because he would have no interest in the salmon fishery. The wording would need to be altered, because it says that the person must have
"an interest in fishing for . . . salmon".
If the farmer was more inclined to his agricultural activities and had no interest in salmon, he would not be required to produce a plan.
As everybody has said, the amendment seems slightly unclear and uncertain. I have two brief points, one of which is for the minister. First, if a duty in law is imposed, it must be clear on whom it is imposed. The duty of law in the amendment is not clear, so the amendment must fall. Secondly, many people might have an interest in fishing in rivers for which no board has responsibility. Logically, everybody who had such an interest would have to produce a plan. That might mean that 50 or 60 plans would be produced, which I presume is not the intention behind the amendment. However, Euan Robson has made an important point, with which all members seem to sympathise.
I hope that the minister will respond to my next point. If any district fishery board makes an application for additional powers under the bill, it seems to be assumed that it is necessary for an applicant to present a plan to justify the measures that are being proposed. It is probable that such a plan would need to be prepared before the application would be considered relevant and coherent. In that sense, Euan Robson has allowed the issue to be raised in a focused way.
One small consideration has just come to mind, to which the minister might wish to respond. Will the amendment be overtaken by the European Union's water directive, which will make drawing up management plans for habitats and rivers an obligation?
I appreciate that Mr Robson, as a River Tweed commissioner, is well aware of the importance of preserving riparian habitats. Many boards are aware of that, but not all. I commend the work that is done on the River Tweed.
The freshwater fisheries laboratory's remit includes the provision of advice on the full range of fishery issues. Amendment 14 would provide regulations that would require the production of plans to improve river and riparian habitats. Any such plan could have major implications for the owner of the land or river in the area that the plan covered and that owner may or may not have an interest in fishing for salmon.
As has been said, the amendment does not clarify who would be required to produce such plans where no district salmon fishery board existed. The amendment proposes that people who have
"an interest in fishing for or taking salmon"
should draw up the plan. The problem is in identifying who would be included in those categories. That could include the owners of fisheries, local or visiting anglers and anybody who has
"an interest in fishing for or taking salmon"
on the river.
Checks and balances on the ability of boards to introduce regulations under existing legislation are already in place. As I have repeated to the committee and Parliament, the bill would insert sections into the Salmon Act 1986. A case will have to be made for the introduction of any regulations that stem from such insertions. As Fergus Ewing said, a plan will have to be drawn up. That is true whether a board or two proprietors make an application or whether ministers make a proposal.
The bill would augment the abilities of boards to conserve salmon and support sustainable fisheries. At present, sensible river management is conducted with advice from the freshwater fisheries laboratory and the Scottish fisheries co-ordination centre, which is a partnership of boards and tenants. The freshwater fisheries laboratories are working on habitat improvement methods throughout Scotland. As has been said, the water framework directive requires that we take an holistic approach to river management. Section 16 of the Salmon Act 1986 allows boards to carry out necessary habitat works.
Given the difficulties that have been pointed out about who would be responsible for producing a plan, and the fact that details of the effects will have to be given before any regulation can be made, I hope that Mr Robson will feel able to withdraw amendment 14.
The debate has been interesting. I think that there are several misconceptions about the purpose of the amendment. It is meant to enable the Scottish ministers to require a salmon fishery board to make a plan where one does not exist. I was trying to encourage the recalcitrants, not impose duties on those who are already actively involved.
The minister used the word "preserving", but the amendment refers to plans to improve rather than to preserve the local habitat. I am disappointed that members should think that the phrase
"persons having an interest in fishing for or taking salmon"
is inappropriate, because it has already been used in a previous section, although in a slightly different context. If its meaning was not obscure there, I am not sure why members think that it is obscure in my amendment.
Obviously, in exercising such a power, Scottish ministers would not be concerned with an individual farmer who had no particular interest in taking salmon just because a river happened to flow through his land. I hope that the point is not lost that the improvement and, indeed, the preservation of river and riparian habitats are extremely important to the conservation of salmon stocks. I do not think that that issue is being properly addressed throughout Scotland, although it is being done well in certain parts. The purpose of the amendment is to highlight the situation. However, given the fact that there is no support for amendment 14 in its present form, I seek agreement to withdraw it.
Amendment 14, by agreement, withdrawn.
We move to the last and largest group of amendments that we will deal with. The amendments cover the powers of enforcement, entry, search and seizure. Amendment 4, in the name of the minister, is grouped with amendments 5, 6, 7, 20, 21, 22 and 23. I ask the minister to speak to and move amendment 4, and to speak to the other amendments in the group.
It is widely accepted that the bill is needed urgently. However, the regulations that would follow from the provisions in the bill would be of no value if they could not be enforced. This group of amendments would strengthen the bill by ensuring that bailiffs and police officers were given the powers that they need to do their jobs.
Amendment 4 would ensure that powers that are generally available to bailiffs under the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 were not attracted again unnecessarily. The amendment would also provide that an offence was committed if bailiffs or police officers were obstructed in the course of enforcing regulations that are made under section 10A of that act. It is already an offence for a person to obstruct such officers while they are enforcing existing legislation.
Section 26 of the Salmon Fisheries (Scotland) Act 1868 provides powers to enter and remain on land to prevent or detect offences against salmon fisheries legislation. Amendment 5 would extend those powers to water bailiffs or police officers for the purposes of prevention or detection of breaches of regulations that were made under the bill. Amendment 6 would be necessary as a consequence of agreement to amendment 5. This will become very boring for members.
Some regulations that might be made may not provide powers but would impose duties. For example, a regulation might be introduced that made catch and release mandatory in a particular district. That would require anglers to release any fish, or perhaps any fish from a particular class, that they caught. Failure to do so would be an offence. Amendment 7 would provide for enforcement in such cases.
Amendment 20 would ensure that bailiffs and police officers cannot be obstructed in the exercise of their powers of entry and search of premises or vehicles. There must be reasonable grounds to suspect that there has been a breach of a regulation under section 10A of the 1868 act, and there must be reasonable grounds to suspect that relevant evidence will be found. Before a search can take place, a warrant must be obtained from a sheriff or a justice of the peace. Amendment 21 would be consequential to agreement to amendment 20.
Amendment 22 would ensure that enforcement officers could not be obstructed in the exercise of their powers of arrest where a breach of a regulation that was made under section 10A of the 1868 act occurred. Amendment 23 would be consequential to agreement to amendment 22.
It is important to note that the powers that would be provided as a result of agreement to the amendments are in no way inconsistent with those that bailiffs and police officers already have.
I move amendment 4.
Does any member wish to ask a question or has there been an outbreak of consensus?
I will ask the minister a question.
It had to happen.
Like the minister, I never want to disappoint an audience.
The Law Society of Scotland was consulted on the bill. My recollection is that Michael Clancy wrote to say that the society did not think that the bill would have implications for civil liberties. I am mindful that, during stage 1, John Home Robertson raised concerns about the width of powers of water bailiffs. I am sure that we would all be concerned about any possible infringement of civil liberties. Has the minister had a response from the Law Society of Scotland in relation to amendment 4, and the other amendments, which I understand are consequential amendments? Have the implications for civil liberties have been considered fully, given that Mr Wallace has proposed 10 or 15 specific new measures—for example, time limits and the use of different baits and lures—and that a myriad of practical orders regulating the nitty-gritty of fishing could be made if the bill became law. In the light of the substance of what could follow under this bill, has the minister consulted the Law Society of Scotland? If not, will she do so before stage 3?
Who is Mr Wallace?
He is an office-bearer of the Association of Salmon Fishery Boards.
There are two Mr Wallaces in Parliament—I thought that he might be one of them.
He has provided copious advice on the bill to the Executive. I believe that he is acknowledged to be a man of considerable experience in relation to these matters.
If there are no other comments, I invite the minister to respond to Fergus Ewing and to close on this group of amendments.
We have not received a response from the Law Society on the matter, but I understand that the committee consulted the Law Society.
I remember reading that the Law Society had made a submission in response to the bill. I thought that that was submitted to the Executive. It was a one-page document. My recollection of that is that Mr Michael Clancy, I think, said that he did not think that the bill had implications for civil liberties because—I hope that I will not misrepresent him—it would simply extend to the bill powers that were previously held by water bailiffs. I raise the point simply because of the possibility that the amendments might have new implications for civil liberties in a sensitive area.
I assure the committee that the amendments have no further implications. They seek merely to ensure that the powers that exist are applied to the new regulations that would be provided for by the bill.
Amendment 4 agreed to.
Amendment 5 moved—[Rhona Brankin]—and agreed to.
Amendment 6 moved—[Rhona Brankin]—and agreed to.
On a point of order, convener. Could you call for agreement to the rest of the amendments in the group together?
We are pretty close to the end anyway.
Would it meet with the committee's approval to ask the minister to move amendments 7, 20, 21, 22 and 23 en bloc?
Members indicated agreement.
Amendments 7, 20, 21, 22 and 23 moved—[Rhona Brankin]—and agreed to.
I have run through my list of amendments and ticked them off. We have reached the stage that we said we would reach today and we will deal with the remaining amendments to the bill at next week's meeting. I remind members that those who wish to lodge further amendments may do so until 4 o'clock on Friday.