House of Commons Hansard Debates for 20 May 1994

Mr. Waterson : Like other hon. Members who have commented on the Bill, I believe that it is a small but important measure. It deserves the whole-hearted support of the House. It is important for the people of Scotland and for people who live near the border. I represent a seaside constituency where these issues are important. I understand that the powers that we are discussing are already within the bailiwick of the fisheries committees in England and Wales. The Bill proposes to put right a position that was never envisaged in 1984 when the Inshore Fishing (Scotland) Act, which the Bill would amend, was passed.

I support the amendments tabled by my hon. Friend the Member for Worcester (Mr. Luff) and the thrust behind them. Speaking as a lawyer, I have to say that it is important that when the House considers criminal penalties--we must be in no doubt that we are talking about criminal penalties--it must be sure that they will be applied fairly and against people who are aware, or who have the possibility of being aware, that they are committing the offence covered by the Bill. The amendments, especially amendment No. 6, open up the discussion about the rights of owners who may not be aware that their boat, vehicle or other equipment is being used to commit an offence. The amendments are sensible and fair. We are all anxious to make progress this morning, so, like other hon. Members, I shall try to be brief.

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One only has to glance at the Inshore Fishing (Scotland) Act 1984 to see that there are significant penalties. That is the thrust behind the amendments. My hon. Friend the Minister may be able to correct what I am about to say ; I have not had a chance to discover whether in the intervening years a regulation or another Act has amended and, no doubt, increased the possible penalties.

10.15 am

Under section 4 of the 1984 Act, a person guilty of an offence can, on summary conviction in a magistrates court, be liable to a fine of up to £5,000. As I have said, for all I know, that penalty may have already have been increased by the House through secondary legislation. On indictment, a person can be liable to a fine with no limit. That is bad enough. My hon. Friend the Member for Worcester has already touched on the other, rather more draconian, penalties that are contained in the 1984 Act. They include the rights of officers to enter dwelling houses and other premises, to search premises, to seize documents and to issue warrants for the impounding and sale of boats, gear and other equipment. People have to forfeit such equipment. Those are, rightly, very serious penalties to attach to very serious matters.

We all know the importance of such a conservation measure. We have debated at great length in the House--it is also an issue in my constituency--the Sea Fish (Conservation) Act 1992. We know that feelings run high, but we also know that if legislation is passed and enforced, the stocks can be built up again in a relatively short time. That is especially true of cockles. There can be a great surge of regeneration which produces abundant stocks again.

It is important that the penalties are serious and that they are taken seriously by those who consider breaking the regulations. However, I urge my hon. Friend the Minister and my other hon. Friends to consider seriously the force behind the amendments. They are designed to ensure that unwitting people cannot stray into breaking the regulations and into criminal convictions, with severe penalties attached to them and with draconian powers of search, detention and confiscation, without being aware that they have done so. That is why hirers and owners who may have no connection with the current use of the piece of equipment concerned should be protected as much as possible. I believe, and I urge the House to accept, that the amendments are absolutely accurate and spot on about the issue. I commend them to the House.

Mr. George Kynoch (Kincardine and Deeside) : This has been an interesting debate on important amendments. I draw attention to the fact that there are no Scots spokesmen present on the Opposition Front Bench. I know that the hon. Member for Dumbarton (Mr. McFall), who is a firm advocate of the Bill, would have liked to be here today. With the greatest of sympathy from Conservative Members, we are well aware that he is attending the funeral of John Smith. I know that all Scottish Conservative Members have great sympathy for John Smith's family at this time and our feelings are with them today. I shall deal first with amendments Nos. 1 and 2 and then with amendment No. 6, which is slightly different. Amendments Nos. 1 and 2 raise the question whether the owner of a vehicle or equipment should be criminally liable, without proof of complicity on his part, if the vehicle or equipment is used in breach of an order under

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the Bill. Amendment No. 2 raises the question whether such an owner should be criminally liable if he has hired out his vehicle to another person. Rightly, those are issues of concern to my hon. Friend the Member for Worcester (Mr. Luff) and I am grateful to him for providing the opportunity to explain the intention of the measure. The House will know that the Inshore Fishing (Scotland) Act 1984 already contains, in section 4(1), a similar measure in relation to fishing boats. Where a fishing boat is used in the commission of an offence under that Act, the master, the owner and, if there is one, the charterer are all guilty of an offence.

The purpose of clause 2, which the amendments seek to alter, and, indeed, the purpose of the Bill as a whole is simply to mirror the existing provisions of that 1984 Act. The purpose of the proposed new subsection 4(1A) is therefore to ensure that owners and hirers of vehicles and equipment are in no different position from the owners and hirers of fishing boats. The principle on which both measures is based is that while, in either case, those persons may not directly be conspiring to bring about the commission of an offence, they may directly or indirectly make profit from its commission. I am anxious that the Government have as complete an arsenal of weapons as possible to assist them in policing those measures. To deprive them of recourse against owners and hirers would leave open a major loophole of enforcement. We may find that the minnows are caught, but the big fish swim undisturbed.

It is also part of my consideration that persons should not be able to avoid liability under the law by the subterfuge of entering into contracts of hire with the operators of their vehicles or equipment, leaving those operators to face prosecution even though the bigger fish may still, through indirect routes, be the ultimate beneficiaries of fishing activity. In fact, I have heard many stories of the shore at Southerness on the Solway firth, where numerous vehicles have been seen ploughing up the beach suction dredging, and I have been told that a person arrives in a car with a wad of bank notes and pays those people for the services. That person, who, presumably, owns the equipment, should be responsible if there is a breach of the Act.

I hope that my hon. Friend the Member for Worcester will accept that careful consideration has already been given to the issues that he has raised today. I fully appreciate that his concern may rest with entirely innocent owners or the hirers of vehicles or equipment, but he must bear in mind the fact that that may be the position of owners or charterers of fishing boats as well. He should also bear it in mind that, on the whole, we will be dealing with specialised vehicles and equipment which may have to be adapted for that purpose. It would also be fair to say that, in exceptional cases of complete disconnection between an owner and the commissioner of an offence, the investigating authorities, the prosecuting authorities and, of course, the courts will have some discretion in the matter of responsibility. Of course, the Crown will have regard to public interest and the courts to culpability in reaching their respective conclusions. Therefore, it is my intention to close any loophole by ensuring that owners of vehicles and equipment and persons who take them on hire continue to be liable under the measure.

I hope that my hon. Friend will accept my arguments and recognise that the circumstances which cause him concern will be rare--if, indeed, they arise at all. The

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benefits of the proposed measure clearly outweigh any disadvantage which he envisages. He referred to the point raised by the hon. Member for Dumbarton in Committee, with particular reference to Avis, Hertz and cars. I said in Committee that the equipment had to be an integral part of the equipment carrying out the dredging operation and, therefore, that an innocent car parked on the foreshore, which clearly was not part of the dredging operation, would not be affected.

Mr. Luff rose

Mr. Kynoch : If my hon. Friend would bear with me and, also, to save time, I should like to put on the record a letter from my hon. Friend the Minister to the hon. Member for Dumbarton on 15 March. I shall refer only to the section that applies to the matter and not include the introduction. It states :

"The proposed powers under clause 1 of the Bill could only be used where a vehicle played an active part in fishing activity, such as pulling and dredging equipment along the foreshore. Any other use would not come within the purview of the Bill.

The Bill proposes that hirers should also be liable where fishing has taken place from their vehicles partly to mirror the powers already available against charterers of vessels and partly to prevent parties from avoiding the consequences of liability by contracting out equipment. The Bill was carefully drafted to meet that concern without drawing in vehicles which were innocently using the foreshore. I hope this clarifies the issue for you."

Mr. Luff : I appreciate my hon. Friend's point, but I am still concerned about what happens to a car that is being used to transport people to the beach to take part in illegal activity, unwittingly, for example. Would that be caught in the provisions of the Bill ? It may be a technical point. I do not think that he has answered my point about a tractor that is being unwittingly used. I still feel very nervous about those points.

Mr. Kynoch : I thank my hon. Friend for expanding on that. A vehicle transporting people to the beach would not be covered. The purpose of the Bill is to cover the equipment concerned. That means the equipment involved in the dredging. To consider a tractor is a fair point, which was raised by my hon. Friend the Member for Ayr (Mr. Gallie) in Committee. However, if a tractor were connected to the dredging equipment, it would be part of the equipment and therefore should be part of the process of seizure. Therefore, the owner of that tractor should already also come under the auspices of the Bill, being similar to the charterer of a vehicle.

Mr. Paice : The point that my hon. Friend has just raised was precisely what I was trying to get at in my short intervention. Today, the vast majority of farmers and others do not buy tractors outright, but use a range of different financing methods and leasing is increasingly popular. As I understand the law, for vehicles or equipment bought on lease, the title does not transfer to the operator, but remains with the financial institution. My hon. Friend's proposals are made for worthy reasons and I understand everything that he has said so far, but it means that the big finance houses would find themselves liable, as owners of title, for tractors that were used.

Mr. Kynoch : My hon. Friend raises a valid point, but I would argue that a similar situation exists in relation to boats. Very few boats are bought outright and the purchase

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of them involves finance companies as well. I agree that an innocent farmer may well unwittingly rent out his tractor to someone else, but I argue that, if he knows that there are restrictions on cockle fishing in an area, it is his responsibility to find out the purpose for which his tractor is being rented.

I shall move on to amendment No. 6, in relation to clause 3. That would impose a requirement on an officer who has seized a vehicle or equipment to inform its owner, if the owner has not been present at the seizure, of that fact and how matters proceed. The Bill intends to give power to British sea fishery officers to seize vehicles or equipment which, in their opinion, have been used to commit an offence under the Bill. The purpose of that power is not permanently to deprive the owner of the vehicle or equipment, but to ensure in cases in which it is appropriate to do so that the vehicle or equipment is available as evidence to be put before the courts to make out a case. It often happens that the only proper evidence that the law will accept is the offending article itself.

Mr. Waterson : May I clarify one point, which I covered in my short speech ? Under section 8 of the 1984 Act, there is also a power for what is called poinding--rather than being a typographical error, I assume that that is a Scottish legal expression--and sale of the boat and its gear and catch. Is my hon. Friend saying that it is not envisaged in the Act, as amended by this provision, that there can be permanent deprival of equipment ? It may not be a question that my hon. Friend can answer on his feet, but in the 1984 Act, which is our starting point for the debate, poinding, whatever that is, and sale are envisaged.

Mr. Kynoch : I would not dare to embark on the difference in the detailed legal terminology between Scotland and England, but I can confirm that what my hon. Friend says is absolutely correct. There is no intention of permanent seizure.

To return to the point about tractors and leasing companies, as I said earlier, the procurator fiscal has some latitude in whether he pursues the owner. Obviously, he would not cause an innocent owner to be pursued. However, the provisions for the owner to be included have to be in the Bill.

I was about to explain that the evidence of the equipment is usually known as the best evidence rule. Seizure should therefore be seen as an evidential matter rather than as a form of summary justice. Powers to detain fishing boats and to seize fishing gear are already available under the provisions of the Inshore Fishing (Scotland) Act 1984 and other provisions of sea fishing legislation. I believe that such powers are used sparingly and only where circumstances demand, particularly in the case of the tying up of a fishing boat. I envisage that the proposed powers would be similarly sparingly and intelligently used by those who exercise them. At present, there is no equivalent provision to that proposed by my hon. Friend the Member for Worcester in any of the sea fishing legislation of which I am aware. That omission does not appear to have given rise to a problem. Owners of boats or gear have always seemed to find out about their detention or seizure--believe it or not, in no time at all. Obviously, word travels very quickly if something is seized and there has been a contravention of the law.

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10.30 am

I recognise the concern of my hon. Friend the Member for Worcester, but I wonder whether the provision would do all that he expects of it, or whether it is entirely necessary to be included in the Bill. My hon. Friend may believe that the provision encompasses boats. That is not the case because it refers only to equipment.

The ownership of a vehicle may be difficult to determine. The vehicle may be the subject of a hire contract and the appropriate person to notify may be the person who has taken it on hire, as opposed to the leasing company or hirer. By the time that the appropriate person to notify has been found, the purposes of the provision may have been rendered unnecessary. Although the appropriate person may be known, that person may not be able to be traced in good time.

For those reasons and more, which I am sure may occur to my hon. Friends, I am reluctant to see the measure included in the Bill. However, I am aware that in many respects the Scottish Fisheries Protection Agency, which will primarily be concerned with the enforcement of the Bill, currently carries out its various duties in such a way as to least upset lawful fishing activities, so far as that is practicable. Indeed, in line with the Government's citizens charter commitments, it has produced a code of enforcement practice which, among other things, specifically commits itself to carrying out its duties in that way.

In the spirit of that policy, I understand that the agency might see the merit of some form of notification being made by the agency in the case of seizure of vehicles or equipment where circumstances merited it--for example, where it was clear that those responsible for the equipment or vehicle on the spot were unable to do so. When the Under-Secretary of State for Scotland, my hon. Friend the Member for Eastwood (Mr. Stewart) responds to the debate, I wonder whether he will be able to offer a commitment in relation to notification in those circumstances. If that is the case, I hope that my hon. Friend the Member for Worcester will be prepared to withdraw his amendment, which I fully understand and appreciate, but which I believe to be unnecessary.

The Parliamentary Under-Secretary of State for Scotland (Mr. Allan Stewart) : My hon. Friend the Member for Worcester (Mr. Luff) raisedseveral important points which, as he said, were referred to by the hon. Member for Dumbarton (Mr. McFall) in Committee. To underline the point made by my hon. Friend the Member for Kincardine and Deeside (Mr. Kynoch), we entirely understand why the hon. Member for Dumbarton and his colleagues and colleagues in the minority parties from Scotland are in Scotland today and not here for this debate. However, it would be appropriate to say that they are fully supportive of the Bill in principle.

Hon. Members may also wonder why I am responding to the debate rather than my hon. Friend the Member for Dumfries (Sir H. Monro), who has been very closely involved with the Bill both as the fisheries Minister and as a constituency Member. Hon. Members will be aware that Lady Monro has been in hospital for a few days. I have to tell the House that she died late last night. I am sure that the whole House will wish to extend its sympathies to my hon. Friend the Member for Dumfries.

My hon. Friend the Member for Worcester raised genuine issues. However, at the end of my remarks, I hope

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that he will follow the advice of my hon. Friend the Member for Kincardine and Deeside and withdraw the amendment. As my hon. Friend the Member for Kincardine and Deeside said, the Inshore Fishing (Scotland) Act 1984 contains a similar measure in relation to fishing boats. Where a fishing boat is used in the commission of an offence under that Act, the master, owner and--if there is one--the charterer are all guilty of an offence.

The purpose of clause 2, which the amendments seek to alter, and indeed the essential purpose of the Bill as a whole, is to mirror the existing provisions of the 1984 Act. The purpose of proposed new subsection 4(1A) is therefore to ensure that owners and hirers of vehicles and equipment are in no different position from owners and hirers of fishing boats. I emphasise that that was very much the view of the fishermen themselves.

Mr. Michael Fabricant (Mid-Staffordshire) : I understand my hon. Friend's argument and the fact that he wants consistency between the ownership of fishing vessels and the ownership of tractors, and so on. However, does he accept that the financial provisions that are available now are different from those that were available in 1984 ? In particular, leasing then was not such a widespread means of operating a vessel or a tractor as it is today. As a consequence, the law should reflect that.

Mr. Stewart : I accept that my hon. Friend has a point. However, we are talking about very specialised equipment. We are not talking about someone hiring a car or a van, or even a tractor, and going out for a picnic. It is fairly obvious what the hirer's purpose would be.

Mr. Paice : I want to clarify the point, as my hon. Friend the Minister seems to misunderstand slightly. There is a definite distinction between hiring and leasing. The point that I raised, and the point to which I believe my hon. Friend the Member for Mid-Staffordshire (Mr. Fabricant) is referring, is leasing--using the money of a finance house to lease a vehicle or a piece of equipment for several years, just as I lease my computer equipment here in the House of Commons instead of having to pay for it upfront. It is a form of purchase, but the title remains with the finance house.

Mr. Stewart : I accept that my hon. Friend has a genuine point, to which I shall return. I agree with my hon. Friend the Member for Kincardine and Deeside that the enforcement authorities will have no interest in prosecuting an innocent person who has perhaps leased a vehicle in complete innocence of its purpose. However, on balance, he was right to say that the Government should have as complete an arsenal of weapons--to use his phrase --as possible to assist them in policing these measures. To deprive the Government of recourse against owners and hirers would leave open a fairly major loophole in enforcement.

I do not want to mix metaphors, but the minnows might be caught while the big fish would swim undisturbed if that were the case. It is clearly possible that there could be subterfuge in respect of those entering into contracts of hire with the operators of the vehicles or equipment leaving the operators to face prosecution even though the people behind the activity might be the ultimate beneficiaries of the activity.

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I hope that my hon. Friend the Member for Worcester will accept that we have considered the matter carefully. However, there are two arguments. The first relates to the owners or charterers of fishing boats. We are bringing the provisions of the Bill into line with that. Secondly, in exceptional cases--which is the point raised by my hon. Friend on leasing--where there is a complete disconnection between the owner and the commissioner of an offence, the investigating authorities, the prosecuting authorities and, ultimately, the courts

Mr. Kynoch : Does my hon. Friend accept the point that I made earlier--at present, boats are frequently leased and the operation does not seem to cause any problems in the existing Act ?

Mr. Stewart : My hon. Friend is correct to refer to the 1984 Act. The provisions of that Act do not seem to create any problems ; there is no evidence that there is a problem with the Act. Where there is a complete disconnection between an owner and the commissioner of an offence--which is, essentially, my hon. Friend's point--the investigating authorities, the prosecuting authorities and the courts have discretion with regard to their responsibilities. The Crown will have regard to the public interest and the courts will have regard to culpability in reaching their respective conclusions.

Mr. Luff : May I be clear on what my hon. Friend is saying ? Is he saying that, notwithstanding the fact that clause 2 says

"Where an offence is committed by way of contravention of any order . . . each of the following persons shall . . . be guilty of an offence",

the courts will have discretion ? If so, that would be a real comfort to me in considering what I should do with my amendments. It seems to be clear that there is no discretion. However, if my hon. Friend is saying that there is discretion, that is extremely welcome.

Mr. Stewart : I am grateful to my hon. Friend--obviously, it is an important point. Perhaps I can confirm exactly what I am saying : the courts will have some discretion in the matter for their own responsibilities. The Crown will have regard to the public interest and the courts will have regard to culpability in reaching their respective conclusions. I hope that that reassures my hon. Friend. In conclusion, I understand entirely the points made by my hon. Friends with regard to amendments Nos. 1 and 2. However, I hope that they will agree that the benefits of the proposed measure--because of the assurances that I have been able to give with regard to the powers of the courts--outweigh the disadvantages, which they envisage.

I shall refer briefly to some of the other points made by my hon. Friends with regard to amendment No. 6. I can confirm that vehicles on the foreshore would not be covered unless they were actively involved in fishing activities. If someone hires my motor car, or that of my hon. Friend, and goes to the beach for a picnic, that would not be subject to the provisions of the Bill. Vehicles innocently using the beach would not be affected ; nor would vehicles being used only to transport fish from the beach to processing plants or fish markets. Under the Bill, the vehicles must be specialised. The equipment is

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extremely specialised. I assure my hon. Friend that car hire companies would be unlikely to be affected by the provisions of the Bill.

My hon. Friend the Member for Kincardine and Deeside rightly pointed to the best evidence rule with regard to seizure. It is right to underline his point that seizure should be seen as an evidential matter. It is not a matter of summary justice ; it is simply an evidential matter. What we are doing is creating a level playing field between fishing boats and fishing gear on the one hand and land-based fishing activities on the other.

I hope that I have been able to reassure my hon. Friend the Member for Worcester on those matters. He has raised legitimate points, as were raised in Committee.

Mr. Luff : I will be reassured if my hon. Friend is able to give an assurance that fishery protection officers will exercise their powers carefully and responsibly, and consider taking steps to notify owners, even if the owners are not party to an offence. If my hon. Friend can give me that assurance, I will be greatly reassured.

10.45 am

Mr. Stewart : My hon. Friend makes a valid point, which was also raised by my hon. Friend the Member for Kincardine and Deeside. We have been in touch with the Scottish Fisheries Protection Agency on that matter. I understand that it has given that assurance on the way in which it will handle such matters, so I can give that assurance to my hon. Friend. In the light of the assurances that I have been able to give, I hope that my hon. Friend will feel able to withdraw his amendment and not push it to a vote.

Mr. Luff : I am extremely grateful to both my hon. Friends the Member for Kincardine and Deeside (Mr. Kynoch) and the Minister for their remarks. I think that I am largely reassured. Ideally, I should have liked more time to test these amendments in Committee than I have had the opportunity to do today. However, I am anxious not to delay the House any further.

As to amendments Nos. 1 and 2, the assurance that I have been given that there is some discretion to the courts with regard to public interest is important. I am glad that that is on the record, and I am glad that it will be borne in mind in the future. As to amendment No. 6, what my hon. Friend the Minister said at the end of his remarks gives me precisely the reassurance that I was looking for. Therefore, I beg to ask leave to withdraw the amendment.

Hon. Members : No.

Question put , That the amendment be made :

The House divided : Ayes 0, Noes 28.

Division No. 247] [10.47 am

Nil

Tellers for the Ayes

AYES

Nil Tellers for the Ayes :

Mr. Dennis Skinner and

Mr. John Austin-Walker.

NOES

Arbuthnot, James

Arnold, Sir Thomas (Hazel Grv)

Atkinson, Peter (Hexham)

Banks, Matthew (Southport)

Bottomley, Peter (Eltham)

Conway, Derek

Cope, Rt Hon Sir John

Evans, Roger (Monmouth)

Fabricant, Michael

Fishburn, Dudley

Fox, Dr Liam (Woodspring)

Heald, Oliver

Hughes Robert G. (Harrow W)

Kirkhope, Timothy

Kynoch, George (Kincardine)

Leigh, Edward

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Luff, Peter

McLoughlin, Patrick

Montgomery, Sir Fergus

Newton, Rt Hon Tony

Paice, James

Shepherd, Colin (Hereford)

Stern, Michael

Stewart, Allan

Townsend, Cyril D. (Bexl'yh'th)

Waterson, Nigel

Wheeler, Rt Hon Sir John

Wood, Timothy

Tellers for the Noes :

Mr. David Clelland and

Mr. Greg Pope.

It appearing on the report of the Division that 40 Members were not present, Mr. Deputy Speaker-- declared that the Question was not decided, and the business under consideration stood over until the next Sitting of the House.

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