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Viscount Thurso: My Lords, I was extremely interested to see this amendment on the Marshalled List. I am grateful to the noble Lord, Lord Monro of Langholm, for raising the question.
As I understood the quite lengthy debate we had in Committee, the result of that debate and the amendments brought forward by the Government put us in a position in which we should be able to accept the recommendations of the salmon strategy taskforce report of the noble Lord, Lord Nickson. It now appears that that is in some doubt. Therefore, I should be grateful to hear the clarification which the noble Lord, Lord Monro, has asked for. We support the recommendations in that report.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to my noble friend Lord Monro of Langholm for moving this amendment. He has explained the position with regard to the Esk in such a way that I need not add any more to it.
I was grateful to the noble Baroness for writing to me on the question of rod licences. I do not believe that she wrote to me about the more difficult question of the shifting sands of the Solway. I am not entirely sure whether the noble Baroness wrote to me on that because
I received such a plethora of letters in the summer. I cannot find a letter about the Solway but I could not guarantee that I did not receive one. However, I certainly received a letter on rod licences for which I am grateful. I look forward to receiving the further clarification for which my noble friend asked.I should like to move the River Esk downstream a little. The channel of the River Esk is not entirely obvious at high tide in the Solway. But is obvious at low tide, as I noticed when I flew over it today. It is ironic that the centre line of the River Esk forms the border between England and Scotland and, as my noble friend Lord Monro said, it can move. Not only can it move but it does so with the passage of time. Therefore, an area of sandbank can be in England at one stage but can end up a few decades later in Scotland and vice versa. As my noble friend explained, that is important from the point of view of knowing which particular country's salmon netting legislation is applicable.
It goes further than that because the estate at the top of the Solway--Castletown estate--has land boundaries which go out into the sea along the River Esk channel and along the River Eden channel until they meet just off Port Carlisle in the Solway.
As the position currently is, everything to the south of the channel of the River Esk is in England. If in fact some other fixed boundary is used other than the central line of the River Esk, it could easily move entirely into England or stay entirely in Scotland. Therefore the normally agreed position up until now as to the legality under Scottish or English law of net fishing in the Solway would change dramatically. Legislation or activities related to the boundary could be important for the estates that march along the Solway and for the people who have the netting rights.
It is important that we know from the Government that, if changes are to be made in the future--whichever government decide to make them; whether it be the Government of the United Kingdom masquerading as the Government of England or the government of Scotland--they will make sure that people on both sides of the Border know what has been proposed and are given an opportunity to respond. Clearly, if it is the Scottish government doing it, the people in England have no representation in the Scottish parliament.
We want an acknowledgement that any observations from people outside Scotland in relation to the Solway will be taken into account in any changes that are to be made and their legal interests will also be taken into account if any decisions are made to move from the more flexible boundary of the central line of the Esk to the fixed boundary which may be incorporated in future legislation.
10.15 p.m.
The Earl of Balfour: My Lords, I support my noble friend Lord Monro on this point. It was in the water Act that applied to England and Wales that the catchment areas of the River Esk were brought within the field of the National Rivers Authority. It was in that Act at that time that some of the misunderstandings as to where the boundary is placed were established.
Perhaps I may also mention a rather peculiar problem that arises in today's Marshalled List. When we sat last Wednesday an amendment appeared in the Marshalled List in the name of the noble Lord, Lord Sewel, numbered 204A. It was quite short and read:
- "Page 47, leave out line 34".
- "'enactment' includes one made under this Act".
Lord Sewel: My Lords, it seems that we do not have the ever-shrinking parliament, but we now have the ever-vanishing amendment. I shall try to sort that out in the course of time.
I recognise that the purpose of the amendments tabled by the noble Lord, Lord Monro of Langholm, appears clear-cut and that they are based on his considerable experience and understanding of the position with regard to the River Esk. Clearly, the intention is to bestow on the Scottish parliament competence to legislate on the management, in the widest sense, of freshwater fish in that section of the Border Esk which flows within Scotland. But I fear the amendments misunderstand the purpose of Clause 103 and overlook what is already permissible and intended under the Bill.
Fishery matters which the amendments address are not reserved under the Bill. Consequently a Scottish parliament will be able to take the action which the amendments propose, subject to the limits on its competence set out in Clause 28. Incidentally, the same applies to that part of the Tweed which flows within Scotland.
What Clause 103 seeks to do in addition--and I stress "in addition"--is to provide a framework for both Parliaments, acting jointly, to legislate for the total lengths of the Border rivers and to establish a common statutory framework for fisheries management in those rivers that is the same in Scots law as in the law south of the Border. That represents a recognition--it is an important recognition--that sound and effective management, conservation and exploitation needs to be considered on a whole river catchment basis. At least we are providing the framework. We cannot bring it about in the Bill, but we are providing the framework which will enable a whole river catchment basis to be put in place. That is a useful advance on the present status. On rod charging, I shall have to return to the details and I shall then write to the noble Lord, Lord Monro.
Perhaps I may turn to the great story of the Solway boundary. I used to know the answer to this, but it is a little bit like the Schleswig-Holstein question: of those who did know it, one died, one went mad and the other has forgotten it. I think I am the one who has forgotten
it. However, I do have some assistance here. As both noble Lords have indicated, we have effectively had a shifting boundary in the Solway which has considerable implications for the effective management of, in particular, the area's salmon fisheries. It is perhaps difficult to understand a shifting international boundary--or rather, a shifting national boundary--
A noble Lord: My Lords, it will be "international"!
Lord Sewel: My Lords, not if we have anything to do with it!
I announced last year that the Government would be investigating the option of establishing a fixed boundary in the Solway Firth. That was the initiative that my noble friend Lady Ramsay mentioned at an earlier stage. In Clause 118(2) we have provided for establishing a fixed boundary for the purposes of defining "Scotland", as that term is used in the Bill. We shall not directly alter the boundary as it may be understood in common law. However, we shall 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 103.
I believe that this measure is welcomed by all responsible bodies in that area. Taken together with the provisions in Clause 103 which allow a clear legal framework to be established for freshwater fisheries management in the area, I believe that in time we shall see a satisfactory resolution of the outstanding issues on salmon fisheries management in the Solway Firth. As both noble Lords indicated, there have been long-running problems in that particular area. I am not saying that this devolution Bill for Scotland solves them all, but it helpfully provides a way forward.
Perhaps I may now reply to the noble Earl, Lord Balfour. It is an extremely helpful contribution that I am about to make. I understand that the matter was debated last week. Now we have a phrase which will cause some amusement. The amendment was not "actively withdrawn." There is no known reason why it should have disappeared. We shall investigate. I thank the noble Earl most sincerely for his contribution. He may be hearing more later. I certainly hope that I shall. On that basis, I hope that the noble Lord will withdraw his amendment.
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