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Session 2005 - 06
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Standing Committee Debates

Draft Scotland Act 1998 (River Tweed) Order 2006



The Committee consisted of the following Members:

Chairman: Mr. Joe Benton
Beith, Mr. Alan (Berwick-upon-Tweed) (LD)
Brown, Mr. Russell (Dumfries and Galloway) (Lab)
Cairns, David (Parliamentary Under-Secretary of State for Scotland)
Clarke, Mr. Tom (Coatbridge, Chryston and Bellshill) (Lab)
Corbyn, Jeremy (Islington, North) (Lab)
Davidson, Mr. Ian (Glasgow, South-West) (Lab/Co-op)
Donohoe, Mr. Brian H. (Central Ayrshire) (Lab)
Dowd, Jim (Lewisham, West) (Lab)
Ellwood, Mr. Tobias (Bournemouth, East) (Con)
Gerrard, Mr. Neil (Walthamstow) (Lab)
Harris, Mr. Tom (Glasgow, South) (Lab)
Main, Anne (St. Albans) (Con)
Milton, Anne (Guildford) (Con)
Moffat, Anne (East Lothian) (Lab)
Moore, Mr. Michael (Berwickshire, Roxburgh and Selkirk) (LD)
Mundell, David (Dumfriesshire, Clydesdale and Tweeddale) (Con)
Roy, Mr. Frank (Lord Commissioner of Her Majesty's Treasury)
Walker, Mr. Charles (Broxbourne) (Con)
Wallace, Mr. Ben (Lancaster and Wyre) (Con)
Winnick, Mr. David (Walsall, North) (Lab)
Wishart, Pete (Perth and North Perthshire) (SNP)
Frank Cranmer, Committee Clerk
† attended the Committee

Seventh Standing Committee on Delegated Legislation

Thursday 29 June 2006

[Mr. Joe Benton in the Chair]

Draft Scotland Act 1998 (River Tweed) Order 2006

2.30 pm
The Parliamentary Under-Secretary of State for Scotland (David Cairns): I beg to move,
That the Committee has considered the draft Scotland Act 1998 (River Tweed) Order 2006.
May I begin by welcoming you to the Chair, Mr. Benton? It is always a pleasure to serve under your chairmanship.
The order before us is not controversial, but it is important. 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. The order represents a codification or tidying up of existing laws governing the Tweed and an opportunity to ensure that best practice for the management and conservation of the fish stock is implemented.
Prior to 1857, as I am sure you are aware, Mr. Benton, it was agreed that although the lower reaches of the Tweed and some of its major tributaries lie in England, Scots law should apply in relation to that river. In this context “the river” means the entire catchment area of the river and its tributaries. Accordingly, historically the salmon and freshwater fisheries legislation in force in relation to the Tweed, including those parts that 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 that lie outside Scotland. Similarly, the River Esk catchment area has been governed under English law, and the Department for Environment, Food and Rural Affairs currently has responsibility for legislation governing that river. The order before us today does not relate to the River Esk.
Anne Moffat (East Lothian) (Lab): For the record, does the Minister recognise that the River Esk runs through my constituency, which is the most beautiful in Scotland?
David Cairns: East Lothian is a particularly beautiful part of Scotland, but I would not go quite as far as to say that it is the most beautiful. However, it is certainly among the most beautiful areas, which also include Lanarkshire, Ayrshire, south Glasgow, Dumfries, Galloway and everywhere else.
Jim Dowd (Lewisham, West) (Lab): And Lewisham.
David Cairns: I shall get the blame for this Committee being dragged out, even though I am being sidetracked.
With devolution, it was obviously important to modernise the arrangements in line with the devolution settlement 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 Government to legislate without the approval of the Scottish Parliament for those parts of the Border Esk outside England.
Mr. Brian H. Donohoe (Central Ayrshire) (Lab): Given that this delegated legislation is so important to Scotland, why are Members of the Scottish National party, which I understand asked for a place on the Committee, absent from it?
David Cairns: I am shocked to learn that, but I shall press on.
The Chairman: Order. That is not relevant to the order.
David Cairns: Indeed, Mr. Benton.
The solution to the problem that I mentioned is found in section 111 of the Scotland Act 1998, which 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. Under section 115 and schedule 7 of that Act, any such order must be approved by both Houses of this Parliament and by the Scottish Parliament. This order has already been approved by the Scottish Parliament and was approved in another place on Tuesday evening.
While section 111 would in theory permit any regime to be put in place for the border rivers, the Scottish Executive, DEFRA and those 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.
Mr. Alan Beith (Berwick-upon-Tweed) (LD): That is surely not what is happening. It is not the pre-devolution situation that is being maintained. Subordinate legislation made under the order will be subject to annulment in the Scottish Parliament but will not be subject to annulment at Westminster, so changes in the law applying to England will be unchallengeable in this House.
David Cairns: This House remains the sovereign Parliament and it is at liberty to make changes in primary legislation, if it so chooses, if it feels that a genuine democratic affront is being committed by the Scottish Parliament, contrary to the will of the House. I do not imagine that such a situation is likely to occur, but this House remains sovereign and could legislate through primary legislation to address any such anomaly.
It may help if I speak briefly to the changes effected by the order. 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 on 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 seems unnecessarily bureaucratic and complicated. The order therefore removes the River Tweed Council as an entity and replaces it with the River Tweed Commission. Under the order, every proprietor of a specified fishery will no longer be a commissioner, but 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 all 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 all the other rivers flowing into the sea between the border between the local authority areas of East Lothian and 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 fishing methods have been brought largely into line with those provided in the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003. However, in a few cases, the opportunity has been taken to go slightly further. For example, the definition of “rod and line” has been amended to prohibit the catching of fish by foul hooking and the use of anything other than a landing net as an auxiliary to the taking of fish by angling.
Fourthly, the modernised provisions in relation to enforcement, which were included in the Scottish consolidation Act 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 and from the Environment Agency have also been clarified.
Finally, power to make subordinate legislation under this order is conferred upon Scottish Executive Ministers. That will enable matters such as annual and weekly close times, provisions covering baits and lures, and any necessary salmon conservation orders to be dealt with without recourse to further Orders in Council under the Scotland Act 1998.
Mr. Benton, I hope that you found that brief explanation a helpful introduction to the order.
Mr. Beith: Will the Minister give way?
Mr. Ian Davidson (Glasgow, South-West) (Lab/Co-op): Will the Minister give way?
David Cairns: I will now sit down to allow other hon. Members to speak and I shall respond to the points that are raised.
2.38 pm
David Mundell (Dumfriesshire, Clydesdale and Tweeddale) (Con): I am sure that the Minister will be pleased to hear that I shall not speak at length about the Border Esk because my views on the subject are set out in full in Hansard of 11 May. However, I would like the Minister to address the sensitive matter of cross-border issues.
As the Minister set out in his short speech, the order allows Scots law to apply in England so that the English section of the Tweed will be governed by a different regime from that covering any other river in England. The unfortunate experience of the Border Esk being governed by a regime that is different from that covering any other river in Scotland is that, instead of respecting that difference, the Environment Agency has chosen to override local sensitivities and has dealt with the matter in an arrogant and crass fashion. I am sure that the Minister does not want the same sort of approach to fisheries on the Tweed in England. I hope that he will be able to assure us that Scottish regulators and Ministers will learn the lessons of the Border Esk and deal with the Tweed in England in a way that acknowledges local sensitivities. I am sure that he has noted that rod licences will not apply on the English section of the Tweed, whereas they do on the Scottish section of the Border Esk, unlike on any other river in Scotland. I am sure that he agrees that that is not equitable.
I should also like the Minister to address the general point of cross-border jurisdiction and confirm his confidence that prosecutions will be possible for infringements that occur in England. One issue that has arisen in relation to the Border Esk is whether prosecutions by the Environment Agency could take place in Scotland. Unfortunately, there have been conflicting signals and we need clarity.
Mr. Beith: I assure the hon. Gentleman that prosecutions can and do take place under legislation almost entirely in that form in England. The problem presented by the order is that the future shape of that legislation can be altered by reference only to the Scottish Parliament and not to the United Kingdom Parliament, leaving my English constituents, for example, with no formal recourse if they are dissatisfied with the new form of the offence with which they may be charged.
David Mundell: That is an important point about cross-border jurisdiction and the devolved settlement. Indeed, questions have been raised in the Scottish Parliament about how the matters dealt with in the order before us and that applying to the Border Esk would be dealt with within the devolution settlement. Many Labour Back Benchers probably share the view that Westminster should legislate if, as the Minister said, the Scottish Parliament commits a “democratic affront”. It would be interesting to know what his definition of “democratic affront” is. Such issues must be dealt with within the new devolved arrangements and the Minister should respond to the right hon. Gentleman’s point.
My understanding is that the River Tweed Commission and other interested parties consulted on the order for more than four years and that it commands widespread support so I shall not oppose it, but I would appreciate it if the Minister could address the issues that I have raised.
2.43 pm
 
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