Scotland Act 1998 (River Tweed) Order 2006

rose to move, That the draft order laid before the House on 25 May be approved [29th Report from the Joint Committee]. The noble and learned Lord said: My Lords, may I say in my maiden speech, and as I come from the perhaps more adversarial reaches of the Scots Bar, what a pleasure it has been to experience the warmth of the welcome that one receives in this House? I take the opportunity to note the helpfulness and courtesy that I have received from the officials and staff in this House. This has made the translation from the Scottish courts to Advocate-General for Scotland far easier than I had anticipated. In presenting an order that deals with a natural force that flows majestically from Scotland to England, may I say immediately that I intend no metaphor for the office of Advocate-General for Scotland? Salmon and freshwater fisheries are an important commercial and recreational asset, and it is important that the legislation dealing with them should be clear and effective. It may be helpful to your Lordships if I briefly set out the background to this order. It is sensible, and has long been the practice, for legislation dealing with salmon and freshwater fishery matters to set up a general framework and to enable discrete provision to be made within that framework for the particular circumstances of particular rivers. A ““river”” in this context means the entire catchment area of that river and its tributaries. Prior to devolution, this caused difficulty only in relation to the border rivers—the Tweed and the Border Esk—which of course run through two different legal jurisdictions. Prior to 1857—just the other day—it was agreed that, although the lower reaches of the Tweed and some of its major tributaries lie in England, Scots law should nonetheless apply in relation to that river. Accordingly, historically, the salmon and freshwater fisheries legislation in force in relation to the Tweed, including those parts which are situated in England, has been Scots law, notably the Tweed Acts of 1857 to 1969. Other Scottish primary legislation relating to salmon and freshwater fishing has also routinely been applied to those parts of the Tweed which lie outside Scotland. Similarly, the River Esk catchment area is governed under English law, and the Department for Environment, Food and Rural Affairs has the responsibility for legislation governing that river. With devolution, that convenient arrangement could not continue because, although fishing in rivers is a devolved matter, the Scottish Parliament could not legislate for the parts of the Tweed outside Scotland, and it would be inappropriate for the UK Parliament to legislate, without the approval of the Scottish Parliament, for those parts of the Border Esk outside England. Section 111 of the Scotland Act 1998 provides that Her Majesty may, by Order in Council, make provision for or in connection with the conservation, management and exploitation of salmon, trout, eels and freshwater fish in the border rivers. By virtue of Section 115 and Schedule 7, any such order requires to be approved by both Houses of this Parliament and by the Scottish Parliament. While Section 111 would, in theory, permit any regime to be put in place in the border rivers, the Scottish Executive, Defra and those currently charged with the management of fisheries in the River Tweed—the River Tweed Council—are all agreed that the pre-devolution arrangements should be retained and that the legislation in relation to the River Tweed should continue broadly to correspond to the legislation in force in Scotland. The objective of this order, therefore, is to provide a clear, up-to-date legal framework for the conservation, management and exploitation of salmon and freshwater fisheries in the River Tweed district. While the general provisions of the order largely reflect the consolidation in 2003 of the general Scottish legislation on salmon and freshwater fisheries, the order is not a consolidation exercise, and the opportunity has been taken to review and modernise those areas where there has always been separate provision for the Tweed. The River Tweed Council has been fully consulted about these proposals and it is content with them. I trust it may assist noble Lords if I explain some of the changes and ameliorations. First, the order updates the administration of salmon and freshwater fisheries management in the Tweed, including election and operating rules for the River Tweed Commission. Under previous regimes, every proprietor of a specified salmon fishery in the Tweed was a commissioner and was entitled to vote to elect certain of his fellow commissioners to serve on the River Tweed Council. That seemed unnecessarily complicated. The order therefore removes the River Tweed Council as an entity and replaces it with the River Tweed Commission. Under the order, not every proprietor of a specified fishery will be a commissioner, but he or she will continue to have a vote. Only those elected to represent their fellow proprietors will become commissioners. The definition of ““proprietor”” is clarified in the order. Secondly, the limits of the Tweed district and the estuary have been defined. The geographical extent of what is described in the order as the ““Tweed district”” has been much amended since the Tweed Fisheries Act 1857. The end result of those amendments is that, for the purposes of the administration of fisheries, ““The Tweed”” has since 1863 included not only the river of that name but also all the other rivers flowing into the sea between the border between the local authority areas of East Lothian and the Scottish Borders, in the north, and the Holy Island fisheries, in the south. The order defines the district so that it can readily be drawn on a map. Thirdly, the definitions of methods of fishing have been brought largely into line with those provided in the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003. However, in some cases the opportunity has been taken to go further. For example, the definition of ““rod and line”” has been amended to prohibit catching fish by foul hooking, and the use of anything other than a landing net as an auxiliary to the taking of fish by angling has been prohibited. Fourthly, in relation to enforcement of the legislation, the modernised provisions in relation to enforcement, which were included in the Scottish consolidation on the recommendation of the Scottish Law Commission, have been incorporated into the order. It has been clarified that, in relation to any offence committed in the Tweed district, bailiffs may cross from the Tweed district into adjoining districts, including Environment Agency areas. Reciprocal arrangements for bailiffs from other salmon fishery districts or from the Environment Agency have also been clarified. Finally, power to make subordinate legislation under this order is conferred on the Scottish Ministers. That will enable matters such as annual and weekly close times, provisions as to baits and lures, and any necessary salmon conservation orders, to be dealt with without the requirement for further Orders in Council under the Scotland Act. I hope that noble Lords may have found this explanation helpful and a useful addition to the information contained in the order and the supplementary material. If there are further matters on which your Lordships would wish further detail, I will endeavour to deal with those either by oral or written answer. I suggest that the proposals in the order are a sensible and necessary use of Section 111 of the Scotland Act, and I commend them to the House. I beg to move. Moved, That the draft order laid before the House on 25 May be approved [29th Report from the Joint Committee].—(Lord Davidson of Glen Clova.)