I beg to move, in page 1, line 13, to leave out "ten," and to insert "five."
During the Second Reading of the Bill, much sympathy was expressed for the individual who has been described as the traditional poacher. It may or may not have been very wise to express some of the sentiments that were then expressed. but they can be excused because the issues raised by the Bill would not have cropped up had the Bill followed a somewhat different pattern.
If we take what would be regarded as the serious view of the Committee, there will be general agreement that any person who fishes in waters, to which legal access may be obtained for a small payment, without first obtaining the necessary permit, is deserving of being treated as a law breaker and of suffering the appropriate penalty. The issue which is raised here is not of the penalty but the extent of the penalty proposed in the Bill. It may be claimed that the payments that have to be made by those who desire to fish for salmon are in many cases very small indeed, and do not provide any reasonable excuse to an individual for not availing himself of a permit. It is true that the cost of a permit may be small in some cases, but it is not true that it is always small.
Take, for example, the river Machrie on the west side of Arran. The charge is £40 per month for the right to fish for salmon. Take the river Awe, bounded by the old Breadalbane estates; the charge is 100 guineas per month. The fisheries at Gatehouse of Fleet in the Solway are owned by the Forestry Commission. The charge there is £1,000 per year. Those are examples.
Surely the point made by my hon. Friend has a bearing on the case. If fishing facilities are prohibited by price it is an inducement to those who cannot afford the price to fish illegally.
That was the point that I was trying to establish, that under this Clause we are seeking to increase the penalty which is imposed on the person whom we regard as the traditional poacher, and at the same time, because of the prohibitive charges for the right of fishing, we are providing an incentive to an individual to poach; and we are giving currency and substance to the further charges that the salmon fisheries in Scotland today are nothing but a well organised ramp.
Another point which is being made is that we must increase the penalties on the traditional poacher because in many cases the individual who uses the rod and line is part of a gang; that is, the commercial spivs are using not merely the devices referred to in other parts of the Bill but attachments to the ordinary rod and line which bring them into the category of gangsters. My point on that is that we could quite well cover our purpose by bringing these individuals into Clause 4 (c), which covers the use of electrical devices, by amending it to read:
…electrical or any other devices.
That would bring those people within the scope of a much greater penalty than the one which we propose to inflict under this Clause.
To substantiate my case, I submit that under the Bill big advantages are being given to the present owners of fishing rights. The Bill emphasises their ownership of the salmon, whereas the salmon actually belongs only to the person who catches the fish. I agree that we have to take precautions and some measure of control in the interests of the nation on that aspect. At the same time, in view of the advantages which are given to one section of the community, we should not impose steeper penalties on the single rod and line expert who for good and sufficient reasons may not have written permission but may have had verbal permission from the owner of the rights.
I feel that the Title of the Bill itself. the Salmon and Freshwater Fisheries (Protection) (Scotland) Bill, makes nonsense of the Amendment. The object of the Bill is to protect the salmon from illegal taking while it is in the river or the mouth of the river, and it is no good saying that there are traditional poachers and that we should be kind to them. It makes nonsense of the Bill to put forward that sort of thing—
I thank the hon. and gal-lant Gentleman for giving way to me. When I used the term "traditional poacher" I was simply borrowing a phrase which was much used during the Second Reading. I was not seeking to justify these people. Brigadier Thorp: That makes the Amendment even more stupid because I do not know whom the hon. Member Is trying to help. The Bill lays down, probably rightly, that the fine for taking fish without written permission should be £10, and for some reason the hon. Member thinks that that should be reduced to £5. He brought in a certain amount of clap-trap about improving the position of the owners of fishing and all that, but 1 cannot see that he has made any point in support of his Amendment.
I do not see how it follows that because the Title of the Bill is the Salmon and Freshwater Fisheries Protection (Scotland) Bill it makes nonsense of the Amendment. It would make nonsense if the Amendment ruled out altogether any penalty for poaching. What we seek to do in the Amendment is to ensure that the existing penalty of £5 shall not be increased. No reason was given on Second Reading or in the speech of the hon. and gallant Member for Berwick - upon - Tweed (Brigadier Thorp) why the penalty should be increased. Hon. Members should realise that the Bill has not arisen because of the traditional type of poaching. It is all very well for the hon. and gallant Member to smile, but he should look at the Report of the Maconochie Committee on Poaching and Illegal Fishing of Salmon and Trout in Scotland, upon which the Bill is based. It says that the Committee's terms of reference were:
…to enquire into the prevalence of the illegal taking or killing of salmon and trout"—
a very important part—
by methods which may cause serious damage to fish stocks.…
If he will read the Report he will find
that what was causing concern was commercial poaching by people taking not an odd fish but hundreds of fish and hundreds of pounds worth of fish, and. quite apart from that, spoiling all the fish that remained.
Not at all. 1 do not see why we should remove the penalty altogether, and I see no reason why we should double the penalty from £5 to £10. Whether the hon. and gallant Gentleman likes it or not, during the Second Reading debate the Secretary of State for Scotland talked about the "respectable poacher." The right hon. Member for Moray and Nairn (Mr. J. Stuart) followed suit and called attention to the fact that people would be fined £2, £3 or £4 and not the maximum of £10. If that is the case, why increase the penalty to £10?
The Lord Advocate suggested that we were taking out of the Report of the Maconochie Committee the parts that suited us, but we are taking out of that Report the parts to which their terms of reference directly related. They were not asked to consider the effect on the ordinary type of poacher at all. Even there, however, when they did suggest penalties, they suggested a comprehensive class of penalties, with a maximum of £50. to deal with the small offenders as well as with the big ones, leaving it to the magistrates to decide. I do not see any reason why we should consider that the ordinary poacher is destroying in some new and desperate way the stocks of salmon, and it would be better to leave the penalty as it is. For that reason I support the Amendment.
I am sure all Members of the Committee know that a great deal of commercial poaching is going on through rod and line. People talk in friendly terms of the traditional poacher, and we all have a soft heart for the chap who has an occasional day's fishing. But no form of poaching should be looked upon with favour in this House. There are many people going out with rod and line to reconnoitre the pools so that, when the gangsters come along, they know what stones not to trip over, where the fish lie, and how to get them. Both are there under the guise of rod and line fishermen and if somebody comes along, they say, "Sorry old chap, we have mistaken the water. We are out for an honest day's fishing" The hon. Member for Tradeston (Mr. Rankin) shakes his head—
Do I take it, from the line of argument that the hon. Gentleman is following, that he is against the distinctions laid down in the Bill? Does he propose to remove all the distinctions and submit all the poachers to the same penalties?
If the hon. Member wants to make a distinction between poachers, I would remind him that this is a maximum fine. So, if a harmless man is caught, he can get away with 10s., but if the authorities want to stamp upon somebody who is doing it in a more spiteful and bitter way, they can fine him £10.
There are so many of these people that they probably get a considerable amount of fish. They go out in parties, they have their scouts out, and in many cases when somebody has come along, they have used violence and gone so far as to throw him in the water. Surely a fine of £10 is not too much for people like that?
Another thing is that they take in their pockets small, often home-made, explosives, so small that they can hardly be seen. They put these in the river and kill a great many of the small fish—the large fish of the future. They also injure the fish going up to breed, and that do this under the guise of being rod and line fishermen. It is an old trick, when the water is clear and the fish can be seen lying there, to throw in a little weight with three hooks arranged round it to snatch the fish. That can be done easily under the guise of rod and line fishing. With the price of fish going up, the temptation to fish commercially with rod and line is increased. Surely, therefore, it is only right that the fine should go up? Finally, I ask hon. Members to remember that it is only a maximum.
It might be for the convenience of the Committee if at this stage I recall to the attention of hon. Members the pattern of this Bill, because this Amendment seems to me to have been taken in isolation without having regard to the other provisions of the Bill.
We seek in this Bill to classify offences according to their nature, with a rising scale of penalties in accordance with the nature of the offence. This Clause deals with fishing for salmon without permission. The next Clause deals with fishing for salmon or freshwater fish by illegal methods. We then deal with the case of two or more persons, the gang, who commit an offence against the first or second Clauses of the Bill. And then we deal with the methods of fishing which are obnoxious to all of us, the use of explosives and noxious substances, with a rising scale of penalties in that order.
We are dealing here with the person who fishes without legal permission. It would be wrong to assume that we are dealing only with the individual who goes down to the river to take one for his own pot, because experience has shown us that, at least in certain quarters, there is the threat of the person going down and catching the salmon and perhaps selling it to the local hotel keeper. We have to try to envisage all the types of cases that will fall within the ambit of the Clause, and in these circumstances it seems to me that increasing the maximum penalty—and I reiterate the point that it is a maximum penalty—is perfectly justified, particularly having regard to some other factors.
The figure at present is £5 but, as I pointed out on Second Reading, that figure was fixed as far back as 1844. If we are re-enacting the law now in 1951, it seems to me that a maximum fine of £10 in 1951 is not disproportionate to a maximum fine of £5 in 1844. If we look at it from the point of view of the effect on what has been referred to as the legitimate poacher, and if we think of what the maximum fine of £5 would be in 1844 in relation to his wages then as compared to the maximum fine now of £10 in comparison with his wages at the present day, then again there is much less disparity between his wages and the maximum fine now than there was in 1844.
Now pressure is being brought to bear on us from both sides of the Committee because some of the subsequent Amendments suggest that we should make the penalties under this Clause more stringent. Here we confine the right of forfeiture to the fish found in the possession of the poacher. Moreover, as I pointed out on Second Reading, we do not, as is sometimes customary, make more severe penalties available for a second and subsequent offence. In this Clause we have tried to strike a balance between the two, having regard to the fact that here we shall he dealing with the individual who fishes without legal authority and that he may be a person who is either fishing for his own pot or for the pot of somebody else. Having regard to these factors we felt that it was a justification for increasing the maximum fine to £10.
I trust that any sympathy which may be felt for the person who has been described as the traditional or legitimate poacher will not obscure the view of the Committee to our sense of responsibility in finding an appropriate sentence to deal with this offence. On that note I ask my hon. Friends to reconsider the position, and I ask the Committee to accept the Clause as it stands.
It would be very wrong for us on this side to allow that speech by the Lord Advocate to go unchallenged. He said that we must not overlook the intention behind the Bill because of some sympathy which there may be with the ordinary poacher. From what he has said, the Lord Advocate seems to have three different types of person in mind: first, someone from his family going down to the river to get a salmon; next, the poacher, who may feel that he can make a deal with the local hotel; and then, the organised gang.
On examining the report of the Maconochie Committee and the Bill, we are bound to recognise that the Bill was introduced primarily because of the organised gangs. But for this reason there would have been no suggestion of a Bill to protect salmon. We are entitled, therefore, to ask whether anything has happened with salmon fishing to show that the person who is described as the "ordinary" poacher has increased in number. Is there now a spate of these people, and have the courts been overrun by them in the last few years? If there is evidence of any extension of this kind of poaching or of supplies for local hotels, then we are entitled to hear it, but I know of no evidence to justify the introduction of the Clause to deal with those two classes other than the organised gangs.
It may be argued that, technically, the Clause will apply to organised gangs, but in actual fact they will be dealt with under Clause 4. There is no justification, therefore, for the Clause. There is not a single Amendment to reduce the amount of the fines against the so-called organised gangs. If the Lord Advocate is arguing on a wage basis, there would be room for a whole lot of new Bills to make things hard for the ordinary people.
What the ordinary poacher is doing is, at worst, to commit an offence by trying to steal salmon from the rivers. That is not a very serious offence nowadays when we are thinking in terms of changing the whole social order under a Labour Government. It will be clearly realised by hon. Members on this side that at the same time as the poacher is committing that offence, we are strengthening the power of the people who own the land and the rivers. I never thought that a Labour Government, in the present serious situation of the world, would spend a day attempting to strengthen the power of the landlord against the wee innocent poacher from the village. That is what is happening.
As far as the £10 fine is concerned, what we should be doing is to argue that it should be higher for the gangsters and easier for the small poacher. We have been reasonable enough to say that because the Bill has been introduced and we are prepared to help in attacking the gangster groups, the limit should be £5 for the ordinary man. Since it has been argued on earlier occasions that the sheriff very rarely imposes a fine of more than £1 or £2, why should there be all this trouble over £10?
I have been advised that a sheriff who was recently trying a case in the South said that had the new Bill been in operation as intended, he would have imposed the maximum penalty. I am a little afraid of some of the sheriffs in Scotland, because not only are most of them good anglers, but some of them own a good deal of the rivers.
Nonsense. What evidence has my hon. Friend of that? He has made a statement which reflects upon the judiciary on Scottish benches, and to which I take great exception. If my hon. Friend is making that accusation I hope he will either adduce evidence to support it or withdraw it.
I have made no accusations against any sheriffs. I made my remarks in that way so that I should not ruffle the tempers of the landlords on the benches opposite. [Interruption.] Most of the people on this side are associated with the mean poacher. I have said nothing against anybody who sits in the courts. All I have done is to say I had been advised that a sheriff had said that he would apply the maximum penalty, whereas it is very rare for them to impose even as much as £5.
We think that the maximum fine should remain at £5. We desire neither to reduce nor increase that figure, which we think is a reasonable proposition. The important point is that the Bill was introduced to deal with organised gangs. That being so, £5 is a reasonable maximum against the ordinary poacher who, if he does not have written consent, can be dealt with in this way. If he belongs to an organised gang, then written consent does not matter and he will be dealt with under Clause 4.
I rise for only a short period to pour oil, and not poison, on these troubled waters. I should like the Bill to be agreed to in its present form as far as the point under discussion is concerned. As the Lord Advocate has said, the raising of the fine to £10 is its first change since 1844. It is a very reasonable proposition. I hope that the Committee will agree to it and that we need not continue to argue about this. The great majority of us want the Bill and to get on with it. The provisions of the Clause are perfectly reasonable after over 100 years without any alteration in the law.
It might be as well if some of the hon. Members who have spoken realised that the Bill is not intended to protect landlords, as the hon. Member for Bridgeton (Mr. Carmichael) seemed to suggest that it was, and is not intended to protect the poacher, which is the impression which people might get from listening to some of the debate on Second Reading and again today. Nor is it intended to protect the sheriffs. It is devised purely and simply to protect the stocks of salmon and to see that this source of wealth and value to our country of Scotland is not damaged or ruined for the future.
There are a great many Amendments on the Order Paper. I hope we shall be able to progress and that the Committee will agree that the suggestion contained in the Clause is not unreasonable. It is in fact less than was suggested in the Maconochie Report—
This applies to the single poacher. It would be a pity if we were to continue referring to him as a "legitimate" poacher. It would be very difficult to say that there could be, for instance, a legitimate murderer or housebreaker. If we are to adhere to the rule of law we must try to carry out the law, and I think that the proposition put forward by the Government is reasonable.
I do not intend going beyond the Amendment and I do not wish to pit my brains and experience in the legal sphere against those of my right hon. Friends. But to say that because there has been no change in the penalty since 1844, while money values have fallen, it is reasonable now to double it is a dangerous argument. We would justify many cases well outside the poaching law for revision upwards on that basis. Who knows what the maximum fines might be imposed over a very wide field using that argument?
Hon. Members opposite should remember that landlords did exactly that in the past. At one time it was so dangerous for a man to exercise his natural right to take a salmon that he could be hanged for it. In 1884, when the Crofters Commission was set up against the wishes of the Government, it was in order to protect the crofters against landlords. [An HON. MEMBER: "That is the wrong year."] I am quite sure the hon. Member opposite would have been much more at home politically 100 years ago than he is today.
I understood the Secretary of State to give an assurance that if this Amendment were pressed, he would not oppose the reduction to £5. If that assurance were given, or strongly implied, it is a serious thing to go back on it when it is obvious that many hon. Members do feel that the penalty should be kept at £5 as a maximum and not increased to £10. I should be sorry indeed if the Secretary of State were to go back on that as I think the assurance was given.
I cannot quote the passage but I am offering an opportunity to my right hon. Friend, who is much better equipped than I am, to contradict me if I am wrong. Most of us wanted this Bill specifically because it was an attack on the commercial gangs and not upon the individual salmon poacher who goes out and takes a salmon for his own use. To bring in the hotel people is only to point out a weakness in the Bill. The person who tempts the poacher and buys from him will get off scot-free. The hotel keeper will not be punished at all; the poacher alone will be punished. Do not let us use the hotel people against the traditional poacher, or the legitimate poacher, or whatever we like to call him. Let us remember that many local poachers themselves want to suppress the spiv gangs which are operating against their interests.
The hon. Member is going too wide in this debate. These questions have no near relationship to the simple question of the reduction of the fine. Hotel keepers do not come within that question.
I am sorry, Major Milner, but, far from pressing the matter too far, I would point out that all these things are in notes I have taken as other hon. Members were speaking. The hotel keeper was mentioned as a reason why the fine should be increased. My right hon. and learned Friend referred to the increase in the fine in relation to the cost of living having gone up and other things, and I do not think I have gone very widely beyond what should be said. The Bill was designed and supported by us on this side of the Committee as an attack on commercial gangs and not on the small local man taking a salmon for his own table, and I hope the Committee will support the Amendment so that the fine will be kept down to £5. Sheriffs usually impose a fine of £2, possibly £3, or £4, but seldom £5.
I am deeply disappointed that this Amendment did not receive the support from my right hon Friends which, rightly or wrongly, like my hon. Friend the Member for the Western Isles (Mr. M. MacMillan), I imagined they would give to it. However, we have made our protest—[HoN. MEMBERS: "No."] Oh, it is still open.
The next Amendment, in page 1, line 13, to leave out from "pounds," to end of Clause, is in the name of the hon. Member for Dumfries (Mr. N. Macpherson). Perhaps the right hon. Member for Moray and Nairn (Mr. J. Stuart) would address any remarks he wishes to make on the Amendment in his name, in page 1, line 14, at end insert:
and of any instrument or article in respect of which or by which the offence is committed
to the Amendment of the hon. Member for Dumfries, as the two Amendments appear to be the same in effect.
I beg to move, in page 1, line 13, to leave out from "pounds," to the end of the Clause.
If I may say so, you have correctly interpreted the intention of my Amendment, Major Milner. At first sight one would suppose that the person who took the fish would be permitted to remain in possession of it, but, if hon. Members turn to Clause 17 they will see that:
Any person who is convicted of an offence against this Act in respect of which no provision for any forfeiture is expressly made shall be liable to the forfeiture of any fish illegally taken by him or in his possession at the time of the offence, and of any instrument or article in respect of which or by which the offence is committed.
This Amendment is intended to leave the law as it is at present in that it is possible for the courts to order the forfeiture of the rod and tackle. That is under the Act of 1844, which says:
and it shall he lawful for any Person employed in the Execution of this Act to seize and detain all Fish so taken, and all Boats, Tackle, Nets and other Engines so used. …
That apparently is how the law stands at present. Unless an Amendment is made in some such form as that which I suggest it will not be possible for a water bailiff to seize the rod of a poacher under Clause 10 (1, d) if he finds a poacher on the water.
It seems extraordinary that in the face of the recommendations of the Maconochie Committee the Government should have seen fit so to reduce the penalty, because even though they are increasing the maximum fine from £5 to £10 it would seem that the penalty is being reduced if the rod and tackle are not to be subject to forfeiture. In page 9, paragraph 22 of their Report, the Maconochie Committee say:
We are therefore strongly of the opinion that the existing maximum penalties require to be greatly increased so as to hear a direct relation to the present day circumstances.
Surely it is especially important, now that the Government intend to try to keep a
careful record of catches, that they should make quite certain that the amount of poaching by rod and line is reduced to a minimum; otherwise they can have no kind of accurate record of the takings from any particular river.
In addition, there is the fact that anyone who is poaching for salmon is frequently apt to say that he is only fishing for brown trout. If the rod is not subject to seizure it will simply mean that the only person who can give the evidence against him will not have the rod on which to base, that evidence. As the Bill now stands the evidence of one man is not sufficient in this case. It will simply be a case of the evidence of one person against that of another as to whether the accused person was fishing for brown trout or salmon—
The hon. Gentleman must confine himself to the terms of the Amendment. It is a simple question of whether the words giving power of forfeiture in this specific instance shall be included in the Bill or not. The question of brown trout or even of instruments does not arise on the Amendment.
I was only putting forward an argument to show how necessary it was to enable the rod not only to be forfeited if necessary but also seized. Unless that can be done I conceive that it will be even more difficult than at present to secure convictions for poaching. That is one of the reasons why I suggest to the Lord Advocate that this Amendment should be accepted.
The right hon. and learned Gentleman at least owes it to the Committee to tell us why the Government have seen fit to remove a penalty which at present exists. It seems to be an important consideration because any sportsman—and poachers no doubt consider themselves sportsmen—probably attaches at least as much value to his own rod as to anything else, and the sacrifice of that would in many cases weigh more with him than would a considerable fine. The Committee has to make up its mind whether it wishes poaching to be minimised or not. If so it must provide a sufficient deterrent, and the mere deterrent of a £10 fine without the forfeiture of the rod and tackle also is inadequate.
I have on the Order Paper an Amendment which deals with gear, and I am attempting to speak about that Amendment. I will try to make myself clear. As I said, I think that that deterrent is one of the best ways of stopping poaching, if that is our desire and intention. Prevention is the best form of cure, and I should have thought that if the fear of the poacher included the fear of the possible loss of his rod or gear it might act as an effective form of deterrent.
It would, of course, operate only in appropriate cases. As an hon. Member opposite said earlier, we all know that the fines are maximum. In cases before the sheriff fines vary from £1 to £2, £3 or £4, but in the case of the hardened poacher the fear that he might forfeit his gear would be a very effective way of attempting to stop the poaching with which we are dealing. I was interested in a letter which appeared in the "Scotsman" on 5th January, in which it is stated:
Under the Bill the 'decent' poacher"—
the word "decent" is not his own word, he is quoting from HANSARD—
will be better off on conviction than he is under the law as it stands. His rod and relative gear will no longer be liable to forfeiture.
I hope that the Lord Advocate will give sympathetic consideration to the Amendment which has been moved by my hon. Friend the Member for Dumfries (Mr. N. Macpherson) and to my own Amendment because I hope that all of us have the same object in view. I think that if my hon. Friend the Member for Dumfries has expounded the matter accurately, as I am sure he has done, what he has suggested is what we ought to aim at. I hope that the Government will agree with us.
May I preface my remarks by supporting the view that the result of the two Amendments would be exactly the same? There seems to be a certain dubiety about it in the minds of some of my hon. Friends. If the Amend- ment moved by the hon. Member for Dumfries (Mr. N. Macpherson) were carried the provisions of Clause 17, the general forfeiture Clause, would automatically be attracted, whereas by dealing specifically in this Clause with a method of forfeiture the provisions of Clause 17 are expressly excluded. Both Amendments seek to bring within the Clause the penalty of forfeiture not only in respect of fish but of all implements used in obtaining the fish which are dealt with under the Clause. Therefore, they deal with exactly the same point.
I should again like to remind the Committee that although we have departed from the recommendations of the Maconochie Committee, we have done so in the effort to build up a structure of offences under the Bill. When the Maconochie Committee made their recommendations they were dealing with general penalties which would include not only the particular type of offence envisaged in this Clause but those in some of the other Clauses which deal with what is regarded as a graver offence. And when we split up the nature of the offence we have, I submit, correspondingly to split up the nature of the penalties; and that is the genesis of the alteration which we seek to make in the existing law.
May I point out again to the Committee that it is only the individual person who would be caught by this, and, as I see it, only the individual person using rod and line. Because if he is fishing without legal permission, and he is fishing by any means other than net and coble, he is committing an offence against Clause 2; and Clause 2 attracts the general forfeiture provision of Clause 17. If he is fishing without legal permission and using net and coble, as I understand this process at least two persons are required to be involved in the operation. In those circumstances the provisions of Clause 3 would be attracted and again the penalties under Clause 3 attract general forfeiture. So, by a process of elimination, we find that the only person with whom we are dealing so far as forfeiture is concerned is the person fishing by rod and line.
I think the Lord Advocate is wrong in the submission he is making. There are numerous single poachers in Scotland. They have been prosecuted on the North and South Esk, and the only means by which these men can be penalised under this Bill is under Clause 1. In addition, there are men who operate hung nets on the estuary of the Tay; men going out ostensibly to fish for white fish, whereas in fact they are fishing for salmon by putting an illegal net, a weighted net, across the flow. For that reason I would urge the Lord Advocate to give way on these two Amendments.
In the first place I was just giving an historical review; I had not come to the rest of my argument. Secondly, as I understand the operation described by the hon. Gentleman with regard to the hung net, it would be a contravention of Clause 2 of the Bill. It is not net and coble and therefore it is an illegal method of fishing, and accordingly an offence under Clause 2. As I see it, we are dealing with a fisherman who is fishing without written permission by means of rod and line. In those circumstances we feel that to make the rod subject to forfeiture might result in a penalty disproportionate to the offence.
As I said in answer to the previous Amendment, we were getting pressure from both sides. Some people were saying we were being too lenient, and others that we were really imposing too high a penalty. We have tried to effect what we regard as a reasonable compromise. Having regard to the fact that the really serious lawbreakers are all embraced by other Clauses of the Bill, and on conviction under those Clauses forfeiture certainly is open to the court, in dealing with the single rod and line fisherman fishing without legal permission, it would be disproportionate to enable the court to forfeit the rod and line which, I am informed, might be a very expensive instrument. It would result in a penalty against the person far beyond that envisaged under the Clause.
Having regard to the fact that we have stepped up the maximum penalty, hon. Gentlemen opposite will see, in a spirit of sweet reasonableness, that this, against the background I have described, is probably a fair and proper burden for the type of offence we are trying to deal with in this Bill.
There is one point which I should like cleared up. It is the point raised by my hon. Friend the Member for Dumfries (Mr. N. Macpherson) when speaking on his Amendment, about the production of the rod at a court. Will there be any method of producing the rod and line if it is not to he confiscated? I think that point is very relevant and important. There are many cases where the evidence is produced only by producing the rod and line.
It seems to me to be a question of circumstances in each case. In my opinion it would not be necessary to produce the rod and line to prove that a man was fishing without legal permission. The evidence of witnesses who said they saw him there, allied to the evidence that there was no written permission given to the individual to fish, would be sufficient to warrant a conviction. As the only issue under the Clause is fishing without written permission, the production of the rod and line would not be necessary to secure a conviction.
Considering that I opposed the raising of the penalty originally, it will not come as any surprise that I am opposing this Amendment. My point is that the definition of illegal fishing with rod and line, and the types of persons doing it who would be brought under this Clause, is far too wide for us to accept the general penalty brought forward, first by the Government and now by the Opposition. My hon. Friend the Member for Ayrshire, Centre (Mr. Manuel), received a very interesting letter from the Ayrshire Angling Association which I think has a considerable bearing upon this point. The Secretary and Treasurer of the Association writes:
… I consider the £10 rather a vicious penalty to impose on a rod and line angler who may be fishing quite fairly. Obviously a man may be fishing with permission, in a pool"—
and this is the important point—
hook a salmon, and be taken downstream—or upstream—beyond his 'march' while playing the fish. It appears to me that under the proposed terms of the Bill he will then be liable to the £10 penalty.
The writer then objects very much to that. I think he will object very much more if this really respectable fisherman is to be subjected to the forfeiture of his rod and line.
The hon. Member for Kilmarnock (Mr. Ross) referred to this as a "vicious penalty." It has been the law since 1844 and I do not see the point of his remark that it is a vicious penalty. If the hon. Gentleman wishes to look it up I would refer him to Section 31 of the 1868 Act.
The hon. Gentleman was trying to make out that the Amendment of my hon. Friend was increasing the penalty and therefore it was a vicious penalty. There is no suggestion of that at all. The point of my hon. Friend and my right hon. Friend is the re-imposition of the law as it has stood since 1844 in connection with the forfeiture of gear.
The Lord Advocate talked about this, referring only to the single fisherman, fishing without permission with rod and line. I should like to ask him how much he knows about poaching?
That is the point I am trying to get at. If that is so let me give one instance. Some of these fellows are extremely adept at this game. Suppose a man has three hooks and bits of lead attached to the appropriate points on the line—
The hon. Gentleman knows how to do it. Everyone does. Perhaps we might have some expert evidence from him later. Suppose a man has three hooks and bits of lead at the appropriate places on his line and he is at a nice pool where he can see the fish. He can cast over the fish and foul-hook them. Some of these people can do that with 100 per cent. efficiency. Is that illegal fishing within the terms of Clause 2 or not? It appears to me that in a court of law, without the production not so much of the rod but of the bait and line, it would be impossible to prove that the man was fishing illegally. Unless we can have a clear explanation on that point, this Amendment ought to be pressed to a Division so that we can ensure that the present law is continued.
Manifestly, if a man was suspected of foul-hooking a fish, or of using any other illegal method which would be a contravention of Clause 2 under which forfeiture of the rod and line is competent, the water bailiffs would have power under Clause 10 to seize the rod and line, and eventually it would be produced in court. I cannot see the difficulty which the hon. and gallant Gentleman envisages.
It is all the more important, in view of what the Lord Advocate has said, that the instrument should be readily available for production in the sheriff court. If the water bailiff is able to get hold of the instrument, whether it is a rod or line or whatever it may be, then that is all right: but it would be possible for the poacher to throw it away—
I agree. I was trying to reinforce the arguments adduced by my hon. Friends that unless there is power of forfeiture there is not the power to produce the articles in court. I will not stress that point. Other hon. Members, including the hon. Member for Kilmarnock (Mr. Ross), have spoken as if under Clause 17 the rod and line would certainly be forfeited. As I understand the Clause, that is not so. If a poacher who had been fishing in a legitimate way with rod and line were summoned in the sheriff court, the sheriff need not forfeit the rod and line. The rod and line would be liable to forfeiture just as would be the gaff, the net or any other implement used.
I hope that the Committee will resist this Amendment. On Second Reading we were told by the Secretary of State for Scotland that he expected a great number of godfathers to this Bill. When one examines the Order Paper today, one would imagine that they have turned into stepfathers; and the Opposition may yet throw in two or three stepmothers and then the position will be worse than being caught with the "witch."
I wish to call attention to the position of the city angler in places like Edinburgh and Midlothian. If a city angler finds that he has a day off and the weather is good, he may decide early in the morning to go fishing in the Tweed; but the shops which sell the permits for fishing do not open until 9 a.m. or 10 a.m., and the result is that often a fisherman goes to the river without a permit. Though a permit may cost only 5s. when bought before the man goes to the river, if a man is caught by a bailiff without a permit he will be charged 10s. The fee is doubled. Under this Bill he will be classed as a poacher. I do not understand the jargon about the honest or legitimate poacher, nor does the sheriff sitting in court. The sheriff must do his duty. He cannot push the law one way or the other.
We have had mentioned a prosecution which took place recently in a sheriff court. I do not hold any brief for the poacher. His name was Robert McCallum and he was described in court as a persistent offender. This man was not caught in the act. He was chased by two water bailiffs who alleged that they identified him as a man who had been fishing illegally and who had dropped two foul-hooked salmon and a fishing rod. The man challenged the bailiffs to produce his fingerprints on the rod, but they did not take the opportunity. It was said in court that the man had a bad record. The sheriff, who was only doing his duty, said, "If the new Bill had been on the Statute Book, I could have dealt with you in another fashion."
I want my right hon. and learned Friend to make sure that there will be no question in future of our people being in the position of the city angler who inadvertently goes to the river without a permit and is placed in the position of being a poacher. I have had drawn to my attention instances of gear being forfeited on the River Tweed and taken to St. Boswell's. No charge has been levied against the man concerned. He has been told at a later stage that if he cares to go to St. Boswell's, which might entail losing a day's work, he will get his gear. The time has arrived when the position covering all fishing in Scotland should be reviewed.
I wish to declare an interest. I think all hon. Gentlemen ought to declare whatever interest they may have in this subject. As an honorary president of the Ayrshire Angling Association I take great interest in anything appertaining to angling welfare. It appeared to me that the hon. and gallant Member for Angus, South (Captain Duncan) had rather an intimate knowledge of illegal and foul-fishing methods. One cannot charge the poacher with being the only person who fishes illegally. In fact, it has been known that, when fish has been needed for the table, even gamekeepers have been instructed to extract it from the water by unusual methods. Possibly that should be kept in mind and greater regard paid to the correct taking of fish by those who ought to be indicating the correct procedure in this matter.
I want to oppose the intention of these two Amendments, because, as I see it, it would be vicious to the extent that gear today would be costing more than the amount of the fine that would be applicable to this type of offence under Clause 1. Apart from the line or anything else, one cannot buy a good rod today under £12 or so. I am speaking of the kind of rod that any keen angler would use. In the type of case instanced by the hon. and gallant Member for Angus, South (Captain Duncan), I feel that foul-hooking or snatch-hooking and things of that kind are surely governed by Clause 17, under which there is provision for forfeiture where there is illegal fishing in the sort of case which the hon. and gallant Gentleman mentioned. Therefore, I feel that, in this particular instance, we ought not to be governed by forfeiture, because the value of the gear forfeited might be more than the amount of the fine imposed for the offence.
I must say that we on this side of the Committee are not satisfied with the explanation given by the Lord Advocate. There seems to be no reasonable argument produced by him for changing the law, which is what he is doing here. This is a direct change of the law, and all that he is doing has the effect of saying that, no matter how often a man might be accused of poaching or be convicted, every time his rod would be handed back to him. In effect, the court would be saying to him "Here you are; go and do it again."
That is the inference to be drawn, and that is what may be read between the lines. That is what will be the effect, and it is really quite beside the point to argue what would be the effect of other Clauses in regard to illegal practices, unless it is possible for the water bailiff or other authorised person to seize the rod in the first place. It will be very difficult for the courts to identify the offender, if they will ever be able to do it, and that being so, it will simply mean an inevitable increase in poaching, which this Bill is intended to reduce. For that reason, I feel certain that my hon. Friends on this side of the Committee will wish to oppose this provision.
I want to put only one point to the hon. and gallant Member for Moray and Nairn (Mr. Stuart), who, when the last Amendment was being considered, suggested to the Committee that we should try to get this Bill through with a large measure of agreement and without too much quarrelling over it. I think that to some extent that appeal influenced the attitude of my colleagues on this side of the Committee with regard to the Amendment standing in my name and the names of some of my hon. Friends, because we did not press that Amendment to a Division. As a result, we took it that it had been accepted in the Committee that the maximum penalty should be £10. Now we find that the Opposition, practically by a trick, are seeking to change the maximum of £10 to a maximum of nearly £22 as the penalty on the single rod and line fisherman. That is the effect of this particular Amendment, and it just shows once again that we simply cannot trust the Opposition.
On the assurance of my hon. Friend the Member for Central Ayrshire (Mr. Manuel), I have somewhat minimised the penalty, but it actually works out at £27 or £28. That is what the Opposition want; that is their purpose. I hope that, if they are going to press this proposal to a Division, my right hon. and learned Friend the Lord Advocate will dig in his heels and resist it.
The hon. Member who spoke last sought to create the impression that in some way or other we had introduced an Amendment to provide for forfeiture of rod and line by a trick, but if the hon. Gentleman will read the Order Paper he will see perfectly plainly that, in regard to whether the penalty should be £5 or £10, there could have been no doubt in anyone's mind as to the intention of those on this side of the Committee who support the Amendment for the forfeiture of the rod as well. I suggest that there was no attempt to mislead the other side of the Committee about it.
I believe that, if we do not get into the Bill the Clause calling for the forfeiture of the rod and gear, we shall produce an increase in poaching instead of a decrease in it. It is precisely the same thing as handing back the jemmy to a burglar. For that reason, I hope the Committee will divide and that this Amendment will be made to the Bill.
I do not think the Lord Advocate met my point when he mentioned the production of the rod and line as evidence in cases of fishing without written leave. The real point concerns fishing for salmon without written leave. It is possible to fish for trout without written leave, but one can use methods which will catch a salmon; in fact, these methods do result in catching salmon, and, unless the gear used in such methods is produced as evidence in court, the man gets away with it, because he says that he is quite legally fishing for trout. For that reason, there should be provision for the rod and line to be produced as evidence.
I do not think that difficulty really does exist, because, after all, if the court can only convict for the actual commission of an offence, I think it could do so without the evidence of the actual rod and line. It would be a question for the court.
I am going to make this appeal to the Opposition, and I beg the leave of the Committee for a couple of minutes in which to do it. When dealing, with the previous Amendment, I pointed out that we were under pressure from both sides of the Committee, on the one side to cut the penalty down, and, on the other side, to get rid of forfeiture, and we thought we had effected a half-way-house solution, having regard to the pattern of the Bill and the provisions of this Clause for that type of offence.
It is confined to the individual, who is acting as an individual, in fishing by legal methods, but without written permission. It would be a very bad send-off for this Bill, which has met with general acceptance, if on a matter of this nature, which involves the structure of the penal Clause, we should have a Division on this particular Amendment. Accordingly, I urge the Opposition to approach this matter from the point of view of a compromise between extreme views on both sides, and one which fits well into the pattern that we propose in the Bill.
I may be very stupid, but I have not got this quite clear. Clause 1 says:
If any person without legal right…
and then further down:
forfeiture of any fish illegally taken…
That does not mean that it was taken without permission; the Clause says "illegally" which means, presumably, by illegal methods. If this Clause could be confined to illegal fishing with rod and line. I should be prepared to let it go at that, particularly in view of the appeal made by the Lord Advocate, but my difficulty is that I feel that as things are at the moment we are not going to attack the illegal fisher strongly enough, and perhaps the Lord Advocate will look at that again.