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Lord Mackay of Ardbrecknish: I am grateful to the noble and learned Lord for the assurance that he will reflect on the matter and reconsider it. These are waters in which I do not normally swim. Therefore, I am sure that the club of Lord Advocates and former Lord Advocates will be studying his words with care.

Lord Fraser of Carmyllie: I am very grateful for the noble and learned Lord's explanation. However, if he is going to reflect on the matter, perhaps he could ensure that the opportunity is allowed in the provision for the role of the Lord Advocate to return to the United Kingdom Parliament. That is a provision which I would warmly endorse.

Lord Mackay of Ardbrecknish: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 292FL not moved.]

Clause 98, as amended, agreed to.

7.15 p.m.

Lord Hardie moved Amendment No. 292G:

After Clause 98, insert the following new clause--

Agreed redistribution of property and liabilities

(".--(1) Her Majesty may by Order in Council provide--
(a) for the transfer to a Minister of the Crown or government department of any property belonging to the Scottish Ministers or the Lord Advocate, or
(b) for a Minister of the Crown or government department to have such rights or interests in relation to any property belonging to the Scottish Ministers or the Lord Advocate as Her Majesty considers appropriate (whether in connection with a transfer or otherwise).
(2) Her Majesty may by Order in Council provide for the transfer to a Minister of the Crown or government department of any liabilities to which the Scottish Ministers or the Lord Advocate are subject.

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(3) An Order in Council under this section may only be made in connection with any transfer or sharing of functions of a member of the Scottish Executive by virtue of section 98 or in any other circumstances in which Her Majesty considers it appropriate to do so for the purposes of this Act.").

Lord Renton: I hope that I am not wasting time, but I have a drafting point to raise which I believe should not be ignored. The amendment refers to,

    "property belonging to the Scottish Ministers or the Lord Advocate".
Strictly speaking, that would include their private property. Moreover in subsection (2) we have reference to the,

    "liabilities to which the Scottish Ministers or the Lord Advocate are subject".
That would also include any obligation awarded by a court against them to pay damages. Surely we really must make it clear that this is a reference to public property and public liabilities. Therefore, I hope that between now and the Report stage, the noble and learned Lord will bear that in mind and get this clause tidied up in that way.

Lord Hardie: I shall certainly give consideration to that drafting matter.

On Question, amendment agreed to.

Clause 99 [Scottish taxpayers for social security purposes]:

Lord Hardie moved Amendment No. 292YGA:

Page 45, line 40, after ("individuals") insert ("of any description specified in the order").

On Question, amendment agreed to.

Clause 99, as amended, agreed to.

Clause 100 [Regulations of Tweed and Esk fisheries]:

The Deputy Chairman of Committees: Before I call Amendment No. 292ZGA, I should point out to Members of the Committee that, if it is agreed to, I shall be unable to call Amendment No. 292GA.

Baroness Ramsay of Cartvale moved Amendment No. 292ZGA:

Page 46, leave out lines 12 and 13 and insert ("or in connection with the conservation, management and exploitation of salmon, trout, eels and freshwater fish in the Border rivers.
(1A) An Order under subsection (1) may--
(a) exclude the application of section 49 in relation to any Border rivers function,
(b) confer power to make subordinate legislation.
(1B) In particular, provision may be made by such an Order--
(a) conferring any function on a Minister of the Crown, the Scottish Ministers or a public body in relation to the Border rivers,
(b) for any Border rivers function exercisable by any person to be exercisable instead by a person (or another person) mentioned in paragraph (a),
(c) for any Border rivers function exercisable by any person to be exercisable concurrently or jointly with, or with the agreement of or after consultation with, a person (or another person) mentioned in paragraph (a).").

The noble Baroness said: With the leave of the Committee, I should like to speak to Amendments Nos. 292GAA, 292GAB, 292GAC and 292GBA while

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moving this amendment. In providing for the matter of fisheries to be devolved, the Government have always recognised that special arrangements would be required in respect of the two border river systems which straddle the boundary between England and Scotland. It is universally accepted that the task of fisheries management needs to be approached on a whole-river basis. However, in doing so, anyone responsible for fisheries management for such a river system which lies both in England and Scotland would have to operate under the law of both England and Scotland. It is necessary, therefore, that the laws for regulating fisheries should be the same on both sides of the border. Our task in this Bill, therefore, is to enable both Parliaments to approve such laws, but in a way that ensures that any laws have to be agreed by both Parliaments.

If this problem were to arise between two sovereign countries, it would be customary for the legal framework for the shared river system to be agreed by treaty, which might then be given effect in the law of each country through their Parliaments. Such a legislative approach would be entirely flexible, and could deal with all aspects of fisheries, such as the setting up of cross-Border management bodies with powers to act under each legal system and by giving Ministers on each side any necessary reserve powers.

The set of amendments that the Government have proposed to Clause 100 are intended to allow much the same approach to be taken for the two border rivers between Scotland and England. In effect, we are providing for the legal framework for each of these rivers to be established by Orders in Council which would be prepared by the fisheries departments in both countries in co-operation; and for such orders to be capable of addressing the wide range of tasks of fisheries management. Such Orders in Council should also be flexible enough to offer a wide range of legal mechanisms for fisheries management--much as would be open for each Parliament if acting independently.

Amendment No. 292ZAB therefore sets out the purpose of any Order in Council in broad terms-- the conservation, management or exploitation of any freshwater fish species. It provides for disapplying the normal arrangements for transferring functions under Clause 49 of the Scotland Bill, so that special arrangements can be made for the complex set of cross-Border functions that currently exist. It provides for Orders in Council to make provision for subordinate legislation, so that, for example, Ministers would have reserve powers to act by order. This amendment also clarifies that such orders may confer functions on Ministers or public bodies on either side of the Border and that such functions may be exercised in future either concurrently, jointly, or with the agreement of, or after consultation with, another Minister or public body. This should ensure that Ministers or public bodies, whether English or Scottish, are able to act with the same flexibilities as they do now in the interests of managing these fisheries.

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Amendment No. 292GAA introduces certain new terms that are needed to clarify the scope of any Order in Council in amending existing fisheries enactments, and confirms that the purpose of conservation of fish can include protection of their environment.

Amendment No. 292GAB confirms that an Order in Council may amend a previous Order in Council made under the Scotland Act. Amendment No. 292GAC is a drafting amendment which is consequential on the third amendment. Finally, Amendment No. 292GBA deals with the definition of the Border river systems. It clarifies that the River Sark, which for a part of its length acts as the Border between Scotland and England, will be considered to be a tributary of the Esk for the purposes of this clause. It also enables Orders in Council to amend definitions of the Tweed and Esk, including in particular the definitions of the estuarial limit of both rivers.

Before I conclude I would like to add a brief remark following on the final point about the definitions of estuarial limits in relation to freshwater fisheries management in the Solway Firth. Under the present legal definition of the Esk, the estuarial limit is drawn so as to include all of the inner Solway Firth. There are significant salmon fisheries in that part of the Firth. And there are distinctive practices and regulations governing those salmon fisheries in England and Scotland. The relevant management bodies have drawn to our attention that significant difficulties arise for enforcement of salmon fisheries regulations as a result of the fluid nature of the boundary between England and Scotland in the Solway Firth. The boundary in the Solway Firth has, for many purposes, been taken to be the medium filum of the Esk--I am advised that is the legal phrase I have to use; it means the middle of the river--and then the combined Esk and Eden rivers at low tide. The topography of the inner Solway Firth is such that this channel can move considerably, and it is very difficult to demonstrate to the satisfaction of a court where the channel may be at any given point in time. This has been a frustration for enforcement agencies in that area, not just for many years, but for many generations.

That is why last year it was announced that the Government would investigate the option of establishing a fixed boundary in the Solway Firth. We have taken provision to establish such a boundary in Clause 112(2) of this Bill. By establishing a fixed boundary for the purposes of defining "Scotland" as that term is used in this Bill, we shall not directly alter the boundary as it may be understood in common law. We shall, however, provide a basis for establishing the jurisdiction of any future laws that may be made for England or Scotland, including any powers or duties that may be necessary to enforce regulations established by Order in Council under Clause 100. I believe this measure is therefore welcomed by all responsible bodies in that area. Taken together with the provisions in Clause 100 that allow a clear legal framework to be established for freshwater fisheries management in that area, I believe in time we

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shall see a satisfactory resolution of the outstanding issues on salmon fisheries management in the Solway Firth. I beg to move.

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