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Clause 197: Power to make orders as to fisheries for shellfish
507. Section 1(1) is amended to allow for orders to be made in relation to all types of shellfish including those not already listed in subsection (1) of that section, without the present requirement for regulations to be made each time the Secretary of State (or as the case may be the Welsh Ministers) wishes to add a new type of shellfish to the list. The amendment extends to England and Wales only.
508. As a consequence of amending section 1(1), section 15(2) of the Sea Fisheries Act 1968 is repealed.
Clause 198: Purposes for which tolls etc may be applied
509. Section 3 is amended to set out the powers of grantees of regulating orders who have the right to regulate the fishery. The amendment establishes that grantees may spend monies collected by way of tolls and royalties for purposes connected with the regulation of the fishery, not just for the improvement of the fishery as currently set out in section 3 of the Act. The amendment also establishes that grantees may, where the order provides, retain a portion of the tolls and royalties to cover the costs generated in applying for their order. The amendments extend to England and Wales only.
Clause 199: Increase in penalties for certain offences relating to fisheries for shellfish
510. Sections 3 and 7 are amended so that the maximum fine that may be imposed by a court is increased to £50,000 in line with that for other fisheries legislation. The maximum fine that may be imposed by a magistrates’ court at present is £5,000. The amendment extends to England and Wales only.
Clause 200: Liability of master, etc where vessel used in commission of offence
511. Section 3 of the Act is amended to provide that, where a fishing boat is used in the commission of an offence under section 3(3), the master, owner and charterer (if any) of the boat are each guilty of an offence. Section 22 is also amended by this clause to introduce a definition for the term “master” in line with that in the Sea Fish (Conservation) Act 1967 and the Fisheries Act 1981.
512. The amendments establish that masters, etc. of vessels who are licence holders may be found guilty of offences which take place from their vessels, with the possibility that their licence may be cancelled. The amendments extend to England and Wales only.
Clause 201: Restrictions imposed by grantees, etc
513. Section 3 is amended to ensure that where a regulating order enables a grantee to impose restrictions or make regulations about the dredging, fishing for and taking of shellfish, the grantee is able to carry into effect and enforce those restrictions and regulations in the same way as may be done for regulations imposed by and restrictions made in the order itself. This amendment brings England and Wales in line with Scotland for which similar provision was made by the Police, Public and Criminal Justice (Scotland) Act 2006.
Clause 202: Cancellation of licence after single relevant conviction
514. Section 4 of the Act is amended to allow for the removal of licences from a holder after a single conviction for a breach of licence or of the provisions of the regulating order. This mirrors an amendment that was made in Scotland by section 32 of the Aquaculture and Fisheries (Scotland) Act 2007. The amendment extends to England and Wales only.
Clause 203: Register of licences
515. New section 4ZA requires grantees of regulated fisheries to hold a register of current licence-holders’ names and addresses and make it available for inspection free of charge. Copies may be issued and a charge may be made for doing so.
516. This new requirement for a register of licence holders is intended to assist the Gangmasters Licensing Authority in their duties under the Gangmasters Licensing Act 2004 and will also allow anyone to see who is currently benefiting from a licence. The amendment extends to England and Wales only.
Clause 204: Protection of private shellfish beds
517. Section 7 is amended to extend the protection afforded to private oyster beds under section 7 to all privately owned shellfish beds for the particular type of shellfish to which their rights of ownership relate. The amendment extends to England and Wales only.
Clause 205: Use of implements of fishing
518. Section 7(4) of the Act currently provides that it is an offence to use any implement of fishing, apart from a line and hook or a net for catching floating fish, in any area where there is a right of several fishery or in a private oyster bed.
519. The amendments enable the Secretary of State (or, as the case may be, the Welsh Ministers) to specify by or under an order other implements of fishing that may be used in areas where there is a right of several fishery. The use of such implements may be restricted to particular times or particular areas of the fishery.
Clause 206: Taking of crabs and lobsters for scientific purposes
520. The amendments to section 17 provide for an exemption for the taking of edible crab and lobsters for scientific purposes from offences committed under section 17 by way of an authorisation granted by the MMO for the taking of such shellfish from within British fishery limits not including the Scottish zone, Northern Ireland zone or Welsh zone or by the Welsh Ministers for such shellfish taken from the Welsh Zone. As well as extending to England and Wales, the amendment also extends to Scotland. This ensures that an authorisation granted by the MMO or the Welsh Ministers to take crabs and lobsters from those parts of the sea is recognised in Scotland, even though no authorisation may be granted by the Scottish Ministers to take such shellfish from the Scottish zone.
521. The ban on taking crabs covers those carrying spawn attached to their tail or other exterior part and those which have recently cast their shell. Should an order covering lobsters be made, this will also allow the MMO to grant authorisations in respect of taking lobsters for scientific purposes.
522. The new subsections mean that the taking of crabs and lobsters for scientific purposes may not be an offence under section 17 and brings the Act in line with both Community and domestic legislation.
Clause 207: Orders prohibiting the taking and sale of certain lobsters
523. The amendments allow the Secretary of State (or, as the case may be, the Welsh Ministers) to make an order to introduce protection for lobsters under section 17(3) independently of any other devolved administration. Each administration will be able to act alone. At present Scottish Ministers can act alone to make an order for Scotland. However the Secretary of State and the Welsh Ministers must act jointly with the Secretary of State for Scotland to make orders for England and Wales. This difference in procedure between the administrations is a consequence of devolution and of subsequent amendments to section 17. The amendment extends to England, Wales and Scotland.
Clause 208: Power to appoint an inspector before making orders as to fisheries for shellfish
524. These amendments remove the requirement to appoint an inspector and provide the Secretary of State (or, as the case may be, the Welsh Ministers) with a discretionary power in making decisions on the appointment of an inspector and calling of public inquiries. This amendment does not apply to any application made for an order under section 1 of the Act before this clause comes into force. The amendment extends to England and Wales.
Chapter 3: Migratory and Freshwater Fish
525. This Chapter widens the powers available to the Environment Agency in its role as a fisheries manager. It also gives powers to the appropriate national authority to make regulations in respect of the keeping of live fish and their introduction into and removal from inland waters.
526. The Salmon and Freshwater Fisheries Act 1975, the Water Resources Act 1991 and the Environment Act 1995 apply a regulatory framework (a licensing system, byelaw making powers, enforcement powers and certain other restrictions) to fisheries of salmon, trout, eels and freshwater fish. The clauses in this Chapter amend these three Acts and related enactments to extend the regulatory framework to smelt, lampreys, and (in respect of byelaw-making powers) shad, and to empower the appropriate national authority to add any other kinds of fish to the regulatory framework. There are also a number of other miscellaneous changes, including amendments to the Theft Act 1968 and the Salmon Act 1986.
527. The 1975, 1991 and 1995 Acts apply to England and Wales, including the adjacent territorial sea, and to those parts of the Border River Esk and its tributaries which are in Scotland. They do not apply to those parts of the River Tweed and its tributaries which are in England. The clauses in this Chapter, with some exceptions, have the same application. The exceptions are clause 226, which applies to the whole catchment area of the Border River Esk, and amendments to the Theft Act 1968 and the Salmon Act 1986 (clauses 222 and 223) which apply in England and Wales only.
528. “Appropriate national authority” means the Secretary of State, except in relation to Wales and the territorial sea adjacent to it, where it means the Welsh Ministers (see clause 215(2)).
Taking fish etc
Clause 209: Prohibited implements
529. This clause amends section 1 of the Salmon and Freshwater Fisheries Act 1975. Section 1 creates offences in relation to certain instruments used for taking fish; in particular section 1(1)(a) lists instruments the use of which is prohibited.
530. Subsection (2)(a) adds tailers to the list in section 1(1)(a). A tailer is a pole with a retractable loop of wire at the end, which is looped around the body of the fish to help remove it from the water.
531. Subsections (2)(b), (3) and (4) extend the list of fisheries to which section 1 applies to those for eels, lampreys, smelt, shad. Subsection (5) inserts a new subsection (1A) into section 1, which extends this list to fisheries for any fish specified in an order made under new section 40A of the Salmon and Freshwater Fisheries Act 1975 (inserted by clause 215).
532. Subsection (5) also inserts a new subsection (1B) into section 1, which gives the appropriate national authority power by order to add or remove instruments from the list in section 1(1)(a).
533. Subsection (6) inserts new section 1(3A), by virtue of which references in section 1 to waters include waters adjoining the coast of England and Wales to a distance of six nautical miles from baselines. This corresponds to the area of sea in which the Environment Agency carries out its functions.
534. Section 1(4) of the Salmon and Freshwater Fisheries Act 1975 permits the use of a gaff or tailer when fishing with a rod and line. A gaff is a pole with a steel hook mounted on the end, used to snag the fish, and subsequently to remove it from the water. Subsection (7) omits both this subsection, and the references to it within the section, with the effect that the use of these instruments is no longer permitted.
Clause 210: Roe etc
535. This clause amends section 2 of the Salmon and Freshwater Fisheries Act 1975. Section 2(1) prohibits the use of roe (fish eggs) and the buying, sale or possession of salmon or trout roe, for the purpose of fishing for salmon, trout or freshwater fish.
536. Section 2(1)(a) is amended by extending the prohibition on the use of roe for the purpose of fishing to lampreys, smelt, shad, and to any other specified fish (by order under new section 40A). This clause amends section 2(1)(b) to cover the buying, selling, exposing for sale or possession of any roe for that purpose.
537. Section 2(2) is amended to extend the prohibition on taking, killing or injuring and buying, selling or possession of any unclean or immature fish to lampreys, smelt and shad. An unclean fish is one which is about to spawn, or has recently spawned and has not yet recovered from spawning.
538. Subsection (4) allows the taking of immature freshwater fish where permitted by Environment Agency byelaws.
Clause 211: Licences to fish
539. This clause amends section 25 of the Salmon and Freshwater Fisheries Act 1975, which requires the Environment Agency to regulate fishing for salmon, trout, eels and freshwater fish by means of a system of licensing.
540. Subsection (1) inserts new section 25(1) which amends the scope of the licensing system by extending the list of kinds of fish to which the licensing system applies to include lampreys, smelt and any fish specified in an order made under new section 40A of the Salmon and Freshwater Fisheries Act 1975. New section 25(1) also restricts the licensing system to licensable means of fishing. Licensable means of fishing are the instruments set out in new section 25(1A). These are rod and line, historic installations (certain fixed nets and traps which were certified under old legislation, or were in use by virtue of a grant or charter or immemorial usage in 1861) and such other means of fishing as the appropriate national authority may specify by order.
541. A person who fishes otherwise than by a licensable means of fishing is required to have an authorisation under new section 27A of the Salmon and Freshwater Fisheries Act 1975, inserted by clause 213.
542. Subsection (2) provides that the Environment Agency, which already has the power to introduce licences for different areas, may introduce licences in relation to different descriptions of waters. For example, this power might be used to introduce different licences for canals as opposed to rivers.
543. Subsection (3) amends section 25(4) by removing a person’s entitlement to use a gaff or tailer when fishing with rod and line. This flows from the addition of tailers to the list of prohibited instruments in section 1.
544. Subsection (4) omits previous provisions which, first, deemed a licence for fishing for salmon also to allow fishing for trout, and, second, deemed a licence for fishing for salmon or trout to allow fishing also for freshwater fish and eels.
545. Subsection (5) inserts new section 25(10) and (11), which allows the Environment Agency to permit people to fish by licensable means of fishing without a licence. For example, the Agency may allow those who need to remove excess fish from a particular water for management reasons, to do so without a licence.
546. Subsection (6) amends paragraph 11, and omits paragraph 12, of Schedule 2 to the Salmon and Freshwater Fisheries Act 1975. This removes the requirement to pay 20p for each name removed from, inserted into or substituted in a fishing licence.
547. Subsection (7) empowers the Environment Agency to impose conditions (by way of notice) on a licence to use historic installations. Conditions might include a limit on the number of fish which may be taken, specifying the times at which they may be taken or the gear which may be used. A breach of such a licence condition is an offence under section 27 of the Salmon and Freshwater Fisheries Act 1975.
Clause 212: Limitation of licences
548. This clause amends section 26 of the Salmon and Freshwater Fisheries Act 1975. Section 26 enables the Environment Agency, by order confirmed by the Minister, to limit the number of licences which it may issue for fishing for salmon or trout other than rainbow trout with any specified instrument other than rod and line. References to “the Minister” are replaced by references to the appropriate national authority throughout this section.
549. The amendments made by subsection (2) allow orders under section 26 to be made in respect of any kind of licence issued under section 25. Exceptions to this are provided by subsection (3). This inserts new section 26(1A) and (1B), which sets out the circumstances in which an order can be made and excludes fishing by rod and line or historic installation from the scope of an order. This will allow the Environment Agency to limit the number of licences for all those fisheries subject to the system of licensing under section 25(1). New section 26(1A)(b) will empower the Environment Agency to limit the number of licences in fisheries that have a significant impact on the marine or aquatic environment.
550. The Minister is currently required to hold a local inquiry before confirming an order made under section 26 if the number of licences proposed to be issued is less than the number of licences issued in any of the three preceding years, or if an objection is made by any person who has held a relevant licence during each of the two preceding years. Subsection (4) amends section 26(3) to remove the obligation to hold a local inquiry, and replaces it with a power to do so.
551. Section 26(4) and (5) prohibits Ministers from confirming an order if it fails to secure that any person who is dependent on fishing for his livelihood may obtain a licence under it. Subsection (5) replaces this requirement with a power for the Environment Agency to pay compensation.
Clause 213: Authorisation to fish
552. This clause inserts new sections 27A and 27B into the Salmon and Freshwater Fisheries Act 1975. New section 27A gives the Environment Agency power to authorise a person to use any means (other than a licensable means of fishing) to fish for salmon, trout, eels, lampreys, smelt and freshwater fish, and other specified fish (by order under new section 40A). The Environment Agency may refuse or revoke authorisations, subject them to conditions, charge for them and grant them for limited periods of time. The Agency will also be able to grant an authorisation to a business or organisation or to a named individual within that organisation.
553. New section 27B makes it an offence to fish for or take fish using any means of fishing, other than an instrument for which a licence is required, without an authorisation.
Clause 214: Enforcement
554. This clause amends Part 5 of the Salmon and Freshwater Fisheries Act 1975.
555. Subsection (2) amends section 31. Section 31 gives water bailiffs (enforcement officers of the Environment Agency) powers of search and seizure where instruments or baits have been used in contravention of the Act. Subsection (2)(a) and (b) removes references to the Act so as to allow water bailiffs to check, amongst other things, partially submerged fishing gear to ensure hooks or bait prohibited under byelaws are not being used.
556. Subsection (2)(c) provides that a water bailiff’s power of seizure includes a sample of any fish.
557. Subsection 2(d) allows water bailiffs to disable or destroy dams, fishing weirs, fishing mill dams or fixed engines suspected of having been operated or used, or likely to be used in contravention of the Salmon and Freshwater Fisheries Act 1975. This replaces, with some changes, the powers that were previously in sections 6, 7, and 8 of the 1975 Act but are deleted by other provisions in this Bill.
558. Subsection (3) amends section 32. Section 32 gives water bailiffs the power to enter, remain upon and traverse any lands adjoining or near to any waters, subject to exceptions. The amendment removes the exception for decoys or lands used exclusively for the preservation of wild fowl which will allow, for example, water bailiffs to take action on such land against poaching.
559. Subsection (4) amends section 33. Section 33 enables a justice of the peace to issue a warrant authorising a water bailiff to enter land for the purpose of seizing illegal nets and other such instruments as well as salmon, trout, freshwater fish or eels that might have been illegally taken. Subsection (4)(a) extends the power of seizure to legal instruments suspected to have been used illegally and subsection (4)(b) extends the power to any fish illegally taken or sold. Subsection (4)(c) extends the purpose for which a power of entry may be authorised to the destruction or disablement of any fixed engine, dam, fishing weir or fishing mill dam found on the premises and suspected of having been used illegally.
560. Subsection (5) increases the period during which a warrant remains in force from one week to three months.
561. Subsection (6) amends section 34. Section 34 enables water bailiffs to seize without warrant any person who has illegally taken or killed fish, or is found on or near any waters with the intent so to do, or with any prohibited instrument but only during the period between sunset and sunrise. Subsection (6) removes this restriction.
562. Subsections (7) and (8) amend section 35. Section 35 empowers water bailiffs and other enforcement officers to demand a person fishing, suspected of being about to fish, or having fished in the preceding half hour, to produce his fishing licence or other authority to fish.
563. Subsections (7)(a) and (7)(b) replace the reference to having fished within “the preceding half hour” with having fished “recently” and allow water bailiffs to demand the production of a fishing licence from those suspected of intending to fish or those who have recently fished.
564. Subsection (7)(c) limits water bailiffs’ and other enforcement officers’ powers to require the production of a licence or authorisation issued under the Salmon and Freshwater Fisheries Act 1975 or a licence issued under section 16 of the Wildlife and Countryside Act 1981, under which certain species of fish are protected.
565. Subsection (8) omits section 35(2). This allowed any person, on the production of their own fishing licence, to demand another person produce their fishing licence and to state their name and address.
566. Subsection (9) increases the fine for using any explosive substance, any poison or other noxious substance, or any electrical device with the intent to take or destroy fish in contravention of section 5 of the Salmon and Freshwater Fisheries Act 1975 from the prescribed sum (currently £5,000) to £50,000.
Clause 215: Power to specify fish
567. This clause inserts a new section 40A into the Salmon and Freshwater Fisheries Act 1975.
568. New section 40A empowers the appropriate national authority to specify additional species of fish to which the following provisions will apply:
- fishing with prohibited instruments (section 1 of the Salmon and Freshwater Fisheries Act 1975);
- use of roe (section 2 of that Act);
- licensing and authorisation of fishing activities (sections 25 and 27A of that Act);
- the offence of handling fish in suspicious circumstances (section 32 of the Salmon Act 1986);
- byelaw making powers (paragraph 6 of Schedule 25 to the Water Resources Act 1991); and
- the duties of the Environment Agency (section 6(6) of the Environment Act 1995).
Clause 216: Order-making powers: supplementary
569. This clause inserts section 40B into the Salmon and Freshwater Fisheries Act 1975, which sets out the procedure for making an order made under section 40A described above.
Clause 217: Definitions relating to fish
570. This clause amends section 41 of the Salmon and Freshwater Fisheries Act 1975. It gives amended definitions for eels and freshwater fish and new definitions for freshwater crayfish and smelt.
Byelaws
Clause 218: Power to make byelaws
571. This clause amends paragraph 6 of Schedule 25 to the Water Resources Act 1991, which sets out the Environment Agency’s powers to make fisheries byelaws.
572. Subsections (2) and (3) extend the species of fish for which the Environment Agency can make byelaws to include (in addition to salmon, trout, eels and freshwater fish) lampreys, shad and smelt, and any fish specified (by order under new section 40A of the Salmon and Freshwater Fisheries Act 1975).
573. Subsection (4) allows the Environment Agency to set close seasons and close times. These powers were previously in Schedule 1 to the Salmon and Freshwater Fisheries Act 1975. All byelaw powers will now be in the 1991 Act and enforced by section 211 of the Water Resources Act 1991, which makes it an offence to breach a byelaw, including one made under paragraph 6(2)(aa) of Schedule 25 to the 1991 Act.
574. Subsection (5) amends paragraph 6(2)(b)(i) to allow byelaws prohibiting the taking of fish greater than a specified size in addition to the taking of or fishing for fish smaller than a specified size.
575. Subsection (6) amends paragraph 6(2)(e) to allow byelaws to be made for purposes which were previously contained in section 20 of the Salmon and Freshwater Fisheries Act 1975.
576. Subsection (7) omits paragraph 6(3), which allowed byelaws imposing further restrictions on fishing activity during close times. It is replaced by the general close season and close time byelaw making power described in relation to subsection (4) (see above).
577. Subsection (8) omits paragraph 6(4) of Schedule 25, which allows byelaws regarding the deposit or discharge of liquid or solids detrimental to fish. Section 4 of the Salmon and Freshwater Fisheries Act 1975 provides specific control of these activities.
578. Subsection (9) inserts new paragraph 6(5A) and (5B) into Schedule 25. Sub-paragraph (5A) enables the Environment Agency to authorise a person to act in breach of a byelaw. Examples of where an authorisation might be given are where action is needed to ensure the good management of a fishery or for scientific research. Sub-paragraph (5B) clarifies that byelaws may apply to historic installations.
579. Under subsection (10) existing byelaws made under paragraph 6(3) may be taken as having been made under the new power.
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