Marine and Coastal Access Bill [HL]

House of Lords

Session 2008 - 09
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Marine and Coastal Access Bill [HL]

Marine and Coastal Access Bill [HL]
Part 7 — Fisheries
Chapter 3 — Migratory and freshwater fish
118

207
Licences to fish
(1)
In section 25 of the Salmon and Freshwater Fisheries Act 1975 (c. 51) (licences
to fish), for subsection (1) substitute—
“(1)
The Agency shall by means of a system of licensing regulate fishing by
licensable means of fishing for—
5
(a)
salmon, trout, eels, lampreys, smelt and freshwater fish; and
(b)
fish of such other description as may be specified for the
purposes of this section by order under section 40A below.
(1A)
In this Act “licensable means of fishing” means any of the following—
(a)
rod and line;
10
(b)
an historic installation;
(c)
such other means of fishing as the appropriate national
authority may by order specify.
(1B)
In this Act “historic installation” means any of the following—
(a)
a fixed engine certified in pursuance of the Salmon Fishery Act
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1865 to be a privileged fixed engine;
(b)
a fixed engine which was in use for taking salmon or migratory
trout during the open season of 1861, in pursuance of an ancient
right or mode of fishing as lawfully exercised during that open
season, by virtue of any grant or charter or immemorial usage;
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(c)
a fishing weir or fishing mill dam which was lawfully in use on
6th August 1861 by virtue of a grant or charter or immemorial
usage.”
(2)
In that section, in subsection (2), after “area or areas” insert “(or in waters of
such description or descriptions)”.
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(3)
In that section, in subsection (4), the words from “gaff” to “tailer or” are
omitted.
(4)
In that section, subsections (5) and (6) are omitted.
(5)
In that section, at the end insert—
“(10)
For the purposes of this Part, the Agency may permit a person to take
30
fish of any description in circumstances where he would for those
purposes otherwise require a fishing licence.
(11)
Permission under subsection (10) above—
(a)
must be in writing;
(b)
may be given generally or specifically;
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(c)
may be given subject to conditions.”
(6)
In Schedule 2 to that Act (licences)—
(a)
in paragraph 11, the words from “together” to the end are omitted;
(b)
paragraph 12 is omitted.

Marine and Coastal Access Bill [HL]
Part 7 — Fisheries
Chapter 3 — Migratory and freshwater fish
119

(7)
In that Schedule, after paragraph 14 insert—
“Historic installations
14A   (1)
Where a fishing licence is granted in respect of an historic
installation, the Agency may at any time, subject to this paragraph,
impose conditions on its use pursuant to the licence.
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      (2)
Conditions under sub-paragraph (1) above are to be imposed by
notice in writing to the person holding the licence.
      (3)
A notice under sub-paragraph (1) above may be varied or revoked by
a further such notice.
      (4)
The Agency may only impose conditions under sub-paragraph (1)
10
above where it considers that it is necessary to do so for the
protection of any fishery.”
208
Limitation of licences
(1)
Section 26 of the Salmon and Freshwater Fisheries Act 1975 (c. 51) (limitation
of fishing licences) is amended as follows.
15
(2)
In subsection (1)—
(a)
at the beginning insert “Subject to this section”;
(b)
in paragraph (a), for the words from “to be issued” to “rod and line”
substitute “of any description to be issued pursuant to section 25 above
in any year in relation to that area or those areas”.
20
(3)
After that subsection insert—
“(1A)
The Agency may only make an order under subsection (1) above in
relation to licences for fishing for fish of any description if it is satisfied
that it is necessary to do so for the purposes of—
(a)
maintaining, improving or developing fisheries of any fish
25
referred to in section 25(1) above, or
(b)
protecting the marine or aquatic environment from significant
harm.”
(1B)
The Agency may not make an order under subsection (1) above in
relation to licences for fishing for fish by—
30
(a)
rod and line, or
(b)
an historic installation.”
(4)
In subsection (3), for “shall cause” substitute “may cause”.
(5)
For subsections (4) and (5) substitute—
“(4)
If it appears to the Agency that an order under this section would
35
prevent a person from fishing in circumstances where that person is
wholly dependent on the fishing for his livelihood, the Agency may
pay that person such amount by way of compensation as it considers
appropriate.”

Marine and Coastal Access Bill [HL]
Part 7 — Fisheries
Chapter 3 — Migratory and freshwater fish
120

209
Authorisation to fish
(1)
In the Salmon and Freshwater Fisheries Act 1975 (c. 51), in the heading to Part
4, after “Fishing licences” insert “and authorisations”.
(2)
After section 27 of that Act insert—
“27A
Authorisation of fishing otherwise than by licensable means
5
(1)
The Agency may authorise a person to use any means, other than a
licensable means of fishing, to fish for—
(a)
salmon, trout, eels, lampreys, smelt and freshwater fish; and
(b)
fish of such other description as may be specified for the
purposes of this section by order under section 40A below.
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(2)
An application for an authorisation under this section must be in such
form as the Agency may specify.
(3)
An authorisation under this section must be in writing, but subject to
that may be in such form as the Agency may determine.
(4)
An authorisation under this section—
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(a)
must be granted for a specified period of time;
(b)
may be granted to more than one person;
(c)
may be limited as to the waters in respect of which it is granted;
(d)
may be subject to conditions.
(5)
The Agency may at any time, on application or on its own initiative—
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(a)
amend an authorisation under this section;
(b)
revoke an authorisation under this section.
(6)
In determining whether to grant, amend or revoke an authorisation the
Agency must consider the effect of doing so on—
(a)
fisheries in the area to which the authorisation relates; and
25
(b)
the aquatic or marine environment in that area.
(7)
An authorisation under this section granted to a body corporate—
(a)
may, if the authorisation so specifies, apply in relation to any
individual acting on behalf of that body (as well as to the body
corporate); or
30
(b)
may, if the authorisation so specifies, apply only in relation to
individuals named in the authorisation when acting on behalf
of the body (as well as to the body corporate).
(8)
The Agency may charge a fee for the grant of an authorisation under
this section.
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(9)
Where the Agency determines standard fees for the grant of
authorisations of particular descriptions, it must publish them.
(10)
Where—
(a)
the Agency has determined a standard fee for the grant of an
authorisation of a particular description, but
40
(b)
the Agency considers, in any case, that special circumstances
apply to the grant of an authorisation of that description,

it may charge a fee of another amount.

Marine and Coastal Access Bill [HL]
Part 7 — Fisheries
Chapter 3 — Migratory and freshwater fish
121

27B
Unauthorised fishing etc
(1)
A person is guilty of an offence if, by any means other than a licensable
means of fishing, he fishes for or takes any fish in circumstances
where—
(a)
the fishing or taking may be authorised under section 27A
5
above, but
(b)
he is not authorised to fish for or take the fish under that section
(or is so authorised but the fishing or taking is in breach of any
condition of his authorisation).
(2)
A person is guilty of an offence if he has an instrument in his
10
possession, other than an instrument which is a licensable means of
fishing, with intent to use it to fish for or take fish in circumstances
where—
(a)
the fishing or taking may be authorised under section 27A
above, but
15
(b)
he is not authorised to fish for or take the fish under that section
(or is so authorised but the fishing or taking would be in breach
of any condition of an authorisation under that section).”
(3)
In Schedule 4 to that Act (offences), in the table in paragraph 1(2), at the end
insert—
20

“Section 27B
Unauthorised
(a) Summarily
A fine not exceeding

fishing etc

£50,000.







(b) On indictment
A fine.”

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210
Enforcement
(1)
Part 5 of the Salmon and Freshwater Fisheries Act 1975 (c. 51) (administration
and enforcement) is amended as follows.
(2)
In section 31 (powers of search), in subsection (1)—
(a)
in paragraph (b), the words “in contravention of this Act” are omitted;
30
(b)
in paragraph (c)(i), the words “which has been caught in contravention
of this Act” are omitted;
(c)
in paragraph (d) after “fish” insert “(or a sample of any fish)”;
(d)
after paragraph (d) insert—
“(e)
may disable or destroy any dam, fishing weir, fishing
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mill dam or fixed engine which he has reasonable cause
to suspect of having operated or been used, or of being
likely to be used, in contravention of this Act.”
(3)
In section 32 (power to enter lands), subsection (1)(ii) and the preceding “or”
are omitted.
40
(4)
In section 33 (orders and warrants to enter suspected premises), in subsection
(2), for the words from “seize” to the end substitute—
“(a)
seize any illegal net or other instrument, or any net or other
instrument suspected to have been illegally used, that may be
found on the premises,
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Marine and Coastal Access Bill [HL]
Part 7 — Fisheries
Chapter 3 — Migratory and freshwater fish
122

(b)
seize any fish suspected to have been illegally taken or sold that
may be found on the premises, or
(c)
disable or destroy any dam, fishing weir, fishing mill dam or
fixed engine suspected to have operated or been used illegally
that may be found on the premises.”
5
(5)
In that section, in subsection (3), for “one week” substitute “three months”.
(6)
In section 34 (power to apprehend persons fishing illegally etc)—
(a)
in the heading, the words “at night” are omitted;
(b)
the words from “between the end” to “following morning” are omitted.
(7)
In section 35 (power to require production of fishing licences), in subsection
10
(1)—
(a)
for “being about to” substitute “intending to”;
(b)
for “to have within the preceding half hour” substitute “of having
recently”;
(c)
after “in any area,” insert “in circumstances where the fishing would
15
require a licence or authorisation under this Act or a licence under
section 16 of the Wildlife and Countryside Act 1981,”.
(8)
In that section, subsection (2) is omitted.
(9)
In Schedule 4 (offences), in paragraph 1(2), in the fourth column of the table, in
the entry relating to section 5(1), for “The prescribed sum” substitute “£50,000”.
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211
Power to specify fish
(1)
After section 40 of the Salmon and Freshwater Fisheries Act 1975 (c. 51)
insert—
“40A
Power to specify fish
The appropriate national authority may by order specify fish of any
25
description for the purposes of any or all of the following—
(a)
section 1, 2, 25 or 27A above;
(b)
section 32 of the Salmon Act 1986;
(c)
paragraph 6 of Schedule 25 to the Water Resources Act 1991;
(d)
section 6(6) of the Environment Act 1995.”
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(2)
In section 41 of that Act (interpretation), in subsection (1), after the definition
of “the Agency” insert—
““the appropriate national authority” means—
(a)
the Secretary of State, except in relation to Wales (within
the meaning of the Government of Wales Act 2006);
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(b)
in relation to Wales (within that meaning), the Welsh
Ministers.”
212
Order-making powers: supplementary
After section 40A of the Salmon and Freshwater Fisheries Act 1975 (as inserted

Marine and Coastal Access Bill [HL]
Part 7 — Fisheries
Chapter 3 — Migratory and freshwater fish
123

by section 211 above) insert—
“40B
Orders: supplementary
(1)
An order under section 1, 25 or 40A above may make different
provision for different purposes (and, in particular, different provision
in relation to different areas or waters).
5
(2)
Such an order is to be made by statutory instrument.
(3)
A statutory instrument containing such an order is subject to
annulment in pursuance of a resolution of—
(a)
either House of Parliament, in the case of an order made by the
Secretary of State;
10
(b)
the National Assembly for Wales, in the case of an order made
by the Welsh Ministers.”
213
Definitions relating to fish
(1)
In section 41 of the Salmon and Freshwater Fisheries Act 1975 (c. 51)
(interpretation), subsection (1) is amended as follows.
15
(2)
For the definition of “eels” substitute—
““eels” means any fish of the species Anguilla anguilla, and
includes elvers and the fry of eels;”.
(3)
After that definition insert—
““fish” includes crustaceans and molluscs;”.
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(4)
After the definition of “foreshore” insert—
““freshwater crayfish” means any freshwater decapod crustacean
of the Families Astacidae, Cambaridae or Parastacidae;”.
(5)
For the definition of “freshwater fish” substitute—
““freshwater fish” means any fish habitually living in fresh water,
25
exclusive of—
(a)
salmon, trout, eels, lampreys, smelt and any other fish of
a kind which migrates from fresh to salt water, or from
salt to fresh water, in order to spawn;
(b)
any kind of crustacean other than freshwater crayfish
30
and Chinese mitten crabs (Eriocheir sinensis); and
(c)
any kind of mollusc.”
Byelaws
214
Power to make byelaws
(1)
In Schedule 25 to the Water Resources Act 1991 (c. 57) (byelaw-making powers
35
of the Agency), paragraph 6 (byelaws for purposes of fisheries functions) is
amended as follows.
(2)
In sub-paragraph (1), in paragraph (b), for the words from “salmon fisheries”
to the end substitute “fisheries of fish to which this paragraph applies.”

Marine and Coastal Access Bill [HL]
Part 7 — Fisheries
Chapter 3 — Migratory and freshwater fish
124

(3)
After that sub-paragraph insert—
   “(1A)
This paragraph applies to—
(a)
salmon, trout, eels, lampreys, smelt, shad and freshwater
fish; and
(b)
fish of such other description as may be specified for the
5
purposes of this paragraph by order under section 40A of the
Salmon and Freshwater Fisheries Act 1975.”
(4)
In sub-paragraph (2), after paragraph (a) insert—
“(aa)
specifying close seasons or times for the taking
of any fish to which this paragraph applies by
10
such means as may be prescribed by the
byelaws;”.
(5)
In that sub-paragraph, in paragraph (b)(i), after “size” insert “greater or”.
(6)
In that sub-paragraph, in paragraph (e) at the end insert “(including requiring
fixed engines during close seasons or times to be removed or made incapable
15
of taking or obstructing the passage of fish)”.
(7)
Sub-paragraph (3) is omitted.
(8)
Sub-paragraph (4) is omitted.
(9)
After sub-paragraph (5) insert—
   “(5A)
A byelaw under this paragraph does not apply to a person (including
20
an employee or agent of the Agency) to the extent that he is acting—
(a)
with the written authority of the Agency; and
(b)
in accordance with any conditions imposed by the Agency in
relation to that authority.
     (5B)
For the avoidance of doubt, a byelaw under this paragraph may
25
apply to an historic installation as to any other fixed engine.”
(10)
Any byelaw made by the Environment Agency under paragraph 6(3) of that
Schedule and in force immediately before the coming into force of subsection
(7) above shall in relation to any period after the coming into force of that
subsection be regarded as having been made under paragraph 6(2) of that
30
Schedule, as amended by this section.
215
Byelaws: emergency procedures
(1)
In the Water Resources Act 1991 (c. 57), in section 210 (byelaw-making powers
of the Agency) at the end insert—
“(3)
Schedule 27 to this Act (emergency fisheries byelaws) shall have effect.”
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