Clause 12. — (Apprehension of Offenders.)

– in the House of Commons at 12:00 am on 24th January 1951.

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Photo of Sir Alec Douglas-Home Sir Alec Douglas-Home , Lanark 12:00 am, 24th January 1951

I beg to move, in page 5. line 32, to leave out subsection (2).

The Deputy-Chairman:

I think it would be for the convenience of the Committee if this Amendment and the later one in the name of the right hon. Member for Moray and Nairn (Mr. Stuart), in page 5, line 41, to leave out subsection (3), were taken together.

Photo of Sir Alec Douglas-Home Sir Alec Douglas-Home , Lanark

I quite agree, Sir Charles, that it would be convenient to discuss these two Amendments together.

As I understand it, this is a limiting Clause in that under the present law it is the right and duty of an owner, or, indeed, of any person, who sees the law being broken, to apprehend the offender. Clause 12 restricts the right to apprehend to constables and water bailiffs and to persons appointed by the Secretary of State.

There are two arguments used in favour of this Amendment, the one of expedience and the other of principle. Clearly, when there is a shortage of water bailiffs and of police, and such people find it very difficult to carry out their duties, it would be inadvisable, I should have thought, to limit the classes of persons who can apprehend offenders. But on the matter of principle, and one of really more importance, I always understood—and I am sorry the Lord Advocate has gone—that it was an essential principle of the common law that it was not only the right but the duty of a citizen to uphold the law. For instance, if the hon. Member for Shettleston (Mr. McGovern) and myself were walking clown the street and I started to break the windows of the house of the Secretary of State, it would be the duty of the hon. Member for Shettleston to apprehend me.

That is, I think, a principle running right through the common law of the land, and it was a principle which was sustained, as the right hon. and learned Gentleman will know, by the Act of 1868 which this Clause is amending. The object of this Amendment is simply to continue the status quo that exists under the Act of 1868, where an owner, or, indeed, any person, has the right, and the duty, I would add, to uphold the law. We think that this Clause seriously weakens that position and we are strongly opposed to it as it stands, and strongly in favour of this Amendment. I hope the Secretary of State will give us some satisfaction on this because it is something to which we attach considerable importance.

Mr. McNeil:

Unhappily my right hon. and learned Friend the Lord Advocate is not here at the moment. I must say that the noble Lord has offered a most unusual and novel interpretation of my duties as a citizen, and I will certainly confer with my right hon. and learned Friend on this strange aberation. Whatever the law may be, I would most respectfully suggest that, in the unlikely event of the noble Lord finding my hon. Friend the Member for Shettleston (Mr. McGovern) breaking my windows—

Photo of Sir Alec Douglas-Home Sir Alec Douglas-Home , Lanark

I put it the other way round.

Mr. McNeil:

Even so, far from it being my hon. Friend's duty to arrest the noble Lord I do not think he has powers to do so, and it would certainly be more discreet to call a policeman.

Photo of Sir Alec Douglas-Home Sir Alec Douglas-Home , Lanark

If he could find one.

Mr. McNeil:

Even if he could not find one at that moment I would be inclined to think, subject to what my right hon. and learned Friend says, that he would be discharging his duty if he went to the nearest police station and said "That bad chap the noble Lord has been smashing windows again."

Commander Galbraith:

Suppose my noble Friend was about to cut the Secretary of State's throat. Would the right hon. Gentleman then suggest that his hon. Friend should do no more than go to the nearest police station?

Mr. McNeil:

I do not think the situation is as critical as the hon. and gallant Gentleman suggests. In that event, however, I hope that out of affection as well as a sense of duty my hon. Friend would come to my assistance and seek to restrain the noble Lord in this unusual and passionate exercise. I would say it was also the duty of my hon. Friend as a citizen to make sure that the unusual and passionate activities of the noble Lord were brought to the attention of the police, and his further duty to offer evidence. I will consult my right hon. and learned Friend on this, but I think it is an unusual suggestion that each of us has the obligation as a citizen to behave as a policeman, even to the point of apprehending people whom we arbitrarily think are committing an offence, although it is clearly our duty to uphold the law.

Photo of Sir Ian Fraser Sir Ian Fraser , Morecambe and Lonsdale

Having reason to believe they are committing an offence.

Mr. McNeil:

That might be an argument to put forward in a court if I subsequently sued the noble Lord in a civil action. However, this interesting discussion and these imaginative exercises are a little outside the point.

I quite understand the worries of the noble Lord and his hon. Friends in putting down these two Amendments. As he said, under the Act of 1868 people were empowered to seize and detain a person found committing an offence. I hope the noble Lord will agree that we have changed our thinking since those days. I anticipate that not all sections of the public would approve of my, continuing to have this unusual and arbitrary endowment of power.

Photo of Sir Alec Douglas-Home Sir Alec Douglas-Home , Lanark

That provision in the Act of 1868 has remained the law to this day. It may be unusual, but today we do not seem to have any legal advice available in the Committee. I still believe that this Clause weakens the general law, in that under the common law it is the duty of a citizen to attempt to apprehend another citizen who is breaking the law.

Mr. McNeil:

I will certainly find an opportunity to comment upon that point on the Report stage. If the noble Lord is found to be right beyond all dispute in the literal interpretation of that, I will consider his proposition. I have something to say which, I am sure, has not occurred to him and which may encourage him not to press his Amendment. It is true that we confine the power to the police constable and to the water bailiff and to such officers of the district board as may be authorised by the Secretary of State. It seems to me quite plain that if they had reason to believe or reason to suspect that poachers were unusually active, and representations were made to me by the board that their resources were insufficient to maintain normal policing in the area, I certainly would not hesitate to endow with the power under the Clause other officials of that district board. I hope that the noble Lord and his hon. Friends will think that that is reasonable.

I am against specifically endowing everyone with the statutory right to apprehend anyone whom they have reasonable cause to think is behaving improperly. Indeed, I think, though this is only a debating point, that if the common law is as the noble Lord thinks it is, there would be no need for me to gild the lily by writing it into this Act. I do not think that it is. I can understand the reasons which made it necessary in the Act of 1868, and I do not think that the same reasons obtain today; but should it be shown that there were insufficient forces in any area, then I can scarcely imagine that any Secretary of State would hesitate to vest the officers of the district board with necessary powers, and certainly I would.

Photo of Mr James Stuart Mr James Stuart , Moray and Nairnshire

I was not here earlier in this discussion and I apologise for intervening, but I should like the Secretary of State to think of this point, because, as I understand this matter, under the present law any person can seize and detain a salmon poacher. The reasons for this are perfectly plain. There are many rivers where there are no bailiffs at all, as we know, and vast stretches of rivers which the bailiffs cannot entirely cover. Any legitimate angler or owner or gamekeeper, or whoever it may be, can at the present time act, and if they cannot act it appears that, if this becomes law. all that will be possible is for the person who witnesses an act of poaching—as, for example, people who are employed by the Loch Lomond Angling Improvement Association—to say to the poacher, "Wait there until I fetch a policeman," and the police constable may be 15 miles away. That would not be at all a satisfactory way to apprehend a person who is deliberately poaching. Therefore, I think that my noble Friend is right in what he said, and I hope that the Government will consider this matter further.

9.30 p.m.

Photo of Sir Ian Fraser Sir Ian Fraser , Morecambe and Lonsdale

The noble Lord the Member for Lanark (Lord Dunglass) deplored the absence of a lawyer. I am only an amateur lawyer, but I have had occasion, quite fortuitously, to deal with a question analogous to that we are now discussing, and I would submit this point to the Secretary of State. There may be. perhaps, a good reason why this power was included in the old Act. Contrary to the opinion expressed by some of my hon. Friends, I believe that the common law does not go so far as to make it the duty of a citizen to apprehend any person thought to be committing such an offence as we have in mind.

It is true that it is the duty of any citizen to apprehend a person he has good reason to think is committing a felony. If it were to be shown that the person was not committing a felony but merely brandishing a knife for fun, or merely sharpening his razor for amusement, the person who apprehends him would not be guilty of assault, because he would be carrying out his duty. While that may be the common law in relation to felony, it may not be the position in the case of misdemeanours we have in mind.

The difficulty my right hon. Friend the Member for Moray and Nairn (Mr. J. Stuart) has just indicated was the reason why this was made a statutory right or duty. The fact is that when this particular misdemeanour occurs it is in a remote place, and the only way of apprehending anyone is to give power to the citizen to do it. In the light of that, I ask the Secretary of State to consider accepting the Amendment or taking legal advice on the matter.

Photo of Mr Conolly Gage Mr Conolly Gage , Belfast South

I intervene only because the Secretary of State expressed surprise that a person is not entitled to arrest a fellow citizen. It has always been the law of this country, as my hon. Friend the Member for Morecambe and Lonsdale (Sir I. Fraser) has just said, and I am sure it is the law of Scotland, although the Lord Advocate will correct me if I am wrong, that a citizen has the duty to arrest another citizen whom he reasonably considers to have committed a felony. That is certainly correct so far as England is concerned, and no doubt it is correct so far as Scotland is concerned. I am unable to say whether the offence under the 1868 Act is a felony—it may be only a misdemeanour.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

As we are dealing with Scotland, let me say that a felony and a misdemeanour do not find any place in the law of Scotland.

Photo of Mr Conolly Gage Mr Conolly Gage , Belfast South

That only reinforces what I said earlier that it is high time the law of Scotland was brought into line with the law of this country. I recall that there is a duty in Scotland on a citizen to arrest in case of a serious offence. That does not necessarily imply that my right hon. Friend is right in saying that these two subsections should be deleted, because I, in common with other Members, have always felt very chary about extending the rights of arrest in minor offences. The common law of England, which says that it is the duty of the citizen to arrest in cases of felony, refers largely to murder, manslaughter and really serious cases of larceny where it should be perfectly clear that a crime is being committed. It is, therefore, very different to give the power of arrest in what might be called more minor offences. We have to be exceedingly cautious about extending the power of arrest.

Photo of Sir Alec Douglas-Home Sir Alec Douglas-Home , Lanark

I am not suggesting extending the power. It has been the power up to now.

Photo of Mr Conolly Gage Mr Conolly Gage , Belfast South

My knowledge of the Scottish law is at fault there. I am, however, a little surprised to find that there is in Scotland the powers to detain and seize someone who is committing an offence which I assume is of a poaching nature. That possibly might be going further than many of us would care to go. One has to be very cautious about extending the power of arrest. In the case of the water bailiff, constable, or officer appointed by the Secretary of State there arises the question of the deputy water bailiff. I recognise that there is much in my hon. Friend's argument that there may be occasions when water bailiffs and officers are not sufficient and one has to be appointed temporarily to carry on that duty. Therefore, I think it would be right to extend the power of arrest to such persons.

I find a good deal of difficulty in cases of this nature in saying that the power of arrest should just simply be given to anyone who happens to be a citizen. It is quite true that for serious offences in England there is the general duty of the citizen to arrest. In these circumstances, I hope that the Secretary of State will look at this again, because I think there is great force in the argument that the water bailiff, constable or officer appointed by the Secretary of State is not sufficient. The right hon. Gentleman ought to consider the question of other people who ought to be allowed to arrest, and I confess that I am not anxious to see that power extended simply to any citizen who might be there.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

I should like to assure my hon. Friend the Member for Belfast, South (Mr. Gage), that there is nothing in this Amendment which extends the law as it stands at present. The fact is that under a Clause in the Bill the present law is being changed. I was amazed at the speech of the Secretary of State. I always regarded him as an orderly and quiet person. Surely there is an old habit in this country—I think it goes north of the Border—that if, for instance, an old lady is robbed of her bag she will shout, "Stop thief." I always understood that it was the moral duty of anyone seeing the person running away to stop that thief. The right hon. Gentleman said that apparently one's duty would be to seek and inform a policeman. That would give a very considerable start to the person committing the offence.

Mr. McNeil:

I am sorry if I misled the hon. Member. In the case of the old lady who lost her purse or, to go back to the original proposition of the noble Lord the Member for Lanark (Lord Dunglass), attempting to do me grave bodily injury, I do not suggest that anybody should stand aside. What I understood the noble Lord to argue was that the citizen had a duty—the hon. Member for Torquay says a moral obligation—to arrest the offender. I said that that was not my understanding of the position, and that he had neither the power nor the legal obligation to make an arrest. If he had a legal obligation and failed to discharge it he would be proceeded against. He has a moral right to track the thief, recover the money and detain him.

Everyone has a moral obligation, and, I think, an obligation as a citizen, to assist the police to uphold the law, to prevent the breaking of the law. But we were talking originally, inside this Clause, about arrest. That is the word in the Clause—"arrest"—and I say that I should be extremely surprised if I were to be told that that is a right resident in the citizen.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

Yes, but I was trying to deal with that when I gave way to the right hon. Gentleman. I am not a lawyer, and I will not take the word "arrest" in the meaning in which I was understanding it in dealing with this Amendment. I will say, rather, "apprehend" or "keep" the person until a form of "arrest" can be made. It has always been the duty, and I think everyone will agree that it is the duty of everyone to try to stop crime. That is the first point.

The second point is this. If, in the Bill, we were putting in something new, as my hon. Friend the Member for Belfast, South (Mr. Gage), seemed to imagine, then there would be something in not allowing this power to be extended; but we are not extending this power: we are only, in our Amendment, wishing it to continue. The whole of the Bill is apparently an appeal from the Government to try to stop certain forms of attack on the salmon of Scotland. They ask us to do that, yet, in the remote areas, there must be many occasions when it cannot be possible for a water bailiff to be in the place where the attack is being made. Surely in this great appeal which the Government are putting forward in this Bill, which is unexpected, coming from those quarters, and for which their case is sound, as I believe it to be, they must be wrong in weakening the power for the preliminary stopping of this form of despoliation of the salmon fisheries.

I really cannot see any reason for their opposition to our case. We are not giving powers of arrest. We are leaving the powers which exist today of detaining the person until the police can catch him and give the appropriate evidence. As I said at the beginning, I think that the procedure which follows upon the cry "Stop, thief !" is a perfectly sound one. The man who tries to stop him or does stop him does not arrest him in a formal way. He simply holds him until the police come. That is all of the power that exists under the old Act, which is now being taken away, thus weakening the whole of the Government's case in the Bill.

The Secretary of State thinks the Scots are logical people, but when he and the Scots lawyers come here and make this suggestion it appears to me, and, I think, to anyone of Celtic or Saxon blood, that they are losing the whole of their sense of logic—unless they accept this Amendment, which, after all, is not to extend the powers.

Photo of Sir James Henderson-Stewart Sir James Henderson-Stewart , Fife East

I wonder if the Secretary of State is not regarding this matter as an exercise in theory on this occasion rather than as a very practical question. Let us consider what we are dealing with. We are dealing with the possibility—nay, almost the certainty—that we shall have a group of two or three men going to a pool in a river miles away from any police office. My home in Scotland is at the top of a glen, 16 miles from the nearest policeman. Some evening, shall we say, a gamekeeper or owner, or a member of his staff, comes along and sees a man casting explosives into a pool, or casting poison into it, or using an electrical appliance—

Photo of Sir James Henderson-Stewart Sir James Henderson-Stewart , Fife East

—to kill 20, 30 or 40 salmon. Does a man like the Secretary of State, a Scotsman, and a keen fisherman—really suggest that this owner, gamekeeper or ploughman, seeing such an act being committed, shall say nothing except, "You ought not to do this, you naughty man. Stand where you are until I go to the telephone a mile away and call a policeman 16 miles away. Stand here until he comes"?

9.45 p.m.

I never thought that the right hon. Gentleman would be made to look so silly as that suggestion makes him look. What is the sense of this? At present the right hon. Gentleman knows that he has not the number of bailiffs, policemen or officers to police, or anything like it, the Scottish rivers. Yet he will not move in this matter and will not appoint a single deputy officer unless the crimes have been carried on for some time and the local board says, "We cannot cope with this continuity of crime. For goodness' sake give us additional policemen, bailiffs or officers."

I suggest to the right hon. Gentleman, as a practical measure, that until he has that staff and until he has seen the new process functioning he ought as a sensible man, a keen fisherman and one who is prepared to defend the place of salmon in the Scottish economy, not to alter the present law. If, in a year or two's time, he can come to the House and say, "I have provided the servants which I need for this operation. I am satisfied that these men are adequate to stop salmon poaching," the House would not for a moment hesitate to accept his request. But it is madness to do it now and it is foolishness on the part of one who holds the great office of a practical Secretary of State for Scotland to ask for such a stupid measure as this.

Photo of Sir Alec Douglas-Home Sir Alec Douglas-Home , Lanark

The proposition that it is the duty of the citizen to apprehend an offender has started a considerable discussion with a wealth of illustration. What we are asking the Secretary of State to do is simply to leave the law as it is in the Act of 1868 under which an owner or any person has the right to apprehend. I do not know whether the right hon. Gentleman knows it, but what he is doing here is to put us in a much more restricted position than exists even in England. In the English Gaming Act and the Act of 1923 dealing with fishing, owners, occupiers, gamekeepers, servants and their assistants may apprehend and hand over to a police officer. We shall have to divide unless we get satisfaction. If the Lord Advocate will look into this with a view to leaving the law as it is and not restricting us to the small categories of people with a right to apprehend, we shall be grateful.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

I think there is a certain amount of misapprehension about the powers which exist under the Acts of 1868 and 1857. We are not dealing merely with either the common law right or the common law duty of a citizen to prevent the occurrence of a crime. I think that there would be a distinction between the right and duty of a citizen to prevent a crime which was a common law crime and that which was a statutory crime. In the obviously apparent case of the common law crime of theft, the citizen knows that an offence is being committed, but we get into more difficult territory when dealing with statutory offences about which the ordinary citizen may not have the same knowledge.

If we go back to Section 29 of the 1868 Act, which hon. Gentlemen opposite wish to see restored, we shall find these words: It shall be lawful for any person, without any Warrant or other Authority than this Act, brevi menu to seize and detain any Person who shall he found committing any Offence… contained in certain sections in the Act. Moreover it says: and to carry such Person before any Sheriff or Justice of the Peace or other Magistrate.… So it is not just a question of seizing or detaining or preventing them from getting away. It is the further power of carrying them bodily before a sheriff or magistrate or, alternatively, handing them over to a police constable.

Look at the difficulty into which one might be getting oneself. Here is a person without any warrant, such as a water bailiff or a person appointed by the Secretary of State would have, without the ostensible authority of a police constable who is wearing a uniform, suddenly saying to another person, "Stop." The person stops. He seizes him and then proceeds bodily to carry him before a sheriff or magistrate. Nothing more calculated to create a breach of the peace is conceivable. Whereas the water bailiff or the person appointed by the Secretary of State can produce a warrant of his authority, the ordinary citizen not embraced by that definition is not able to show any such authority. Therefore what hon. Members opposite wish to see restored—[HoN. MEMBERS: "Maintained."]—is the right of any citizen not only to seize and to detain but to carry such person before any sheriff or justice of the peace.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

Will the right hon. and learned Gentleman give way?

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

No, the time is getting short. We looked at this from the point of view of maintaining the peace. We came to the conclusion that there was no longer any justification for giving these wide powers to every citizen in the land because, in so far as there may be certain common law rights of which hon. Members are aware, manifestly the provisions of the 1868 Act were importing additional powers to the citizen, otherwise there would not be any need to import them into that Act. All we seek to do by this Clause and the other Clause is to say that, in so far as these common law powers have been extended by the 1868 Act, we wish to restrict them to water bailiffs, officers appointed by the Secretary of State and police constables. They are the people with the ostensible authority to carry out rather drastic measures, whereas the ordinary citizen would be at a great disadvantage and would probably create circumstances that might lead to a breach of the peace.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

May I ask one question to save a lot of time?

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

Let me finish this point and then I will give way. With regard to the English position, under the 1923 Act the power to apprehend without a warrant is confined to water bailiffs and their assistants and not given to the large category of people whom the noble Lord considered, and certainly not to the citizens at large. The noble Lord referred to the Gaming Act, but I am referring to the Salmon and Freshwater Fisheries Act of 1923, which is the Act dealing with the subject with which we are dealing in this Bill. There the right to arrest without a warrant under Section 71 is confined to water bailiffs and to their assistants.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

Has the Lord Advocate had any case at all where the existing law has been abused which would give some justification for the change? Apparently he only made the supposition of what might happen.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

This is a question of looking at the extended powers under this Bill which are covering a larger territory than the 1868 Act. There have not been a great number of prosecutions under that Act and the circumstances envisaged here have not often arisen; but in the wider context of this Bill they are more liable to arise oftener. What I am really concerned about is that it is very dangerous to give the right, not only of seizure and detention, but of apprehension, to the ordinary citizen who has no ostensible warrant of authority. In so far as the section extends the common law right and the duty of the citizen, we think it should be restricted to the classes contained in the Clause.

Photo of Sir James Henderson-Stewart Sir James Henderson-Stewart , Fife East

Am I right in assuming that if this Clause becomes law, an owner who sees two men operating as I suggested a few minutes ago, and who holds those two men until a policeman is brought, commits an illegal act?

Mr. McNeil:

He does not commit an illegal act. The hon. Member, who chastises me for being so stupid, must reflect upon his own experience. No one in that situation commits an illegality, although it is quite true that he does it at his peril. I am not a lawyer, but I recollect reading a case recently where a man, wanting to help the police, made a rugby tackle upon a man coming out of a picture house, but he discovered that he had tackled a plain-clothes policeman. As the Committee will remember, that man was proceeded against. If a proprietor tackles the wrong man, he may be proceeded against, but he commits no illegality.

I hope that hon. and right hon. Gentlemen will look at this matter again. I am anxious to meet them if there is a reasonable case. There is power under Clause 10 (5) for the Secretary of State to vest power in any person or officer if he thinks that a case is proved. Indeed, the case put by the hon. Member for Belfast, South (Mr. Gage), is precisely the case we are offering.

I know that the right hon. Gentleman has an intimate knowledge of the situation. As far as I know, no one, certainly in recent years, has employed the 1868 Act, which the hon. Member for Torquay (Mr. C. Williams), finds so attractive and so essential, and the powers of which the hon. Member for Fife, East (Mr. Stewart), finds so attractive and such a disaster to desert. As the right hon. Gentleman knows, only the officers equipped under the Fishmongers' Corporation—I gladly concede that they did an excellent job we will be discussing that later—used those powers. The ordinary person, the ordinary proprietor, did not use them, I imagine, because, as I think would be admitted, the powers originally embodied in the 1868 Act would no longer be very cheerfully accepted by a 20th-century society. If there is an area where I can help, then I or any subsequent Secretary of State will certainly do so, but I beg the right hon. Gentleman not to press the Amendment.

Photo of Mr James Stuart Mr James Stuart , Moray and Nairnshire

What we want to do is to make the Bill an effective Measure. It is quite clear that the existing powers have not been abused. It is clear also that the Bill would remove those powers from certain people. If we want to make this an effective Measure, and if it is indeed the desire of the Government, as I believe it to be, to stop poaching, then we think that it is a great pity to remove these powers at present. There having been no abuse, no harm would be done if these powers were retained.

Question put, "That subsection (2), to 'officer' in line 32, stand part of the Clause."

The Committee divided: Ayes, 142; Noes, 124.

Division No. 14.]AYES[9.59 p.m.
Acland, Sir RichardGriffiths, W. D. (Exchange)Neal, H.
Albu, A. H.Hall, J. (Gateshead, W.)Noel-Baker, Rt. Hon. P. J.
Allen, Scholefield (Crewe)Hamilton, W. W.O'Brien, T.
Anderson, A. (Motherwell)Hargreaves, A.Orbach, M.
Anderson, F. (Whitehaven)Harrison, J.Padley, W. E.
Awbery, S. S.Hayman, F. H.Paling, Rt. Hon. Wilfred (Dearne V'lly)
Bacon, Miss A.Herbison, Miss M.Paling, Will T. (Dewsbury)
Balfour, A.Hewitson, Capt. M.Pargiter, G. A.
Bartley, P.Holmes, H. E. (Hemsworth)Pearson. A.
Benson, G.Hoy, J.Peart, T. [...]
Blyton, W. R.Hubbard, T.Poole, Cecil
Boardman, H.Hudson, J. H. (Ealing, N.)Popplewell, E.
Bowden, H. W.Hughes, Emrys (S. Ayr)Pryde, D. J.
Bowen, R.Hughes, Hector (Aberdeen, N.)Rankin, J.
Braddock, Mrs. E. M.Hynd, H. (Accrington)Rees, Mrs. D.
Brook, D. (Halifax)Isaacs, Rt. Hon. G. A.Rhodes, H.
Broughton, Dr. A. D. D.Jenkins, R. H.Richards, R.
Brown, T. J. (Ince)Johnson, James (Rugby)Roberts, Goronwy (Caernarvonshire)
Burke, W. A.Keenan, W.Robertson, J. J. (Berwick)
Butler, H. W. (Hackney, S.)King, H. M.Robinson, Kenneth (St. Pancras, N.)
Callaghan, JamesKinley, J.Ross, William (Kilmarnock)
Carmichael, JamesLee, F. (Newton)Royle C.
Castle, Mrs. B. A.Lindgren, G. S.Silverman, J. (Erdington)
Champion, A. J.Logan, D. G.Silverman, S. S. (Nelson)
Chetwynd. G. R.Longden, F. (Small Heath)Simmons, C. J.
Cocks, F. S.McAllister, G.Slater, J.
Coldrick, W.MacColl, J. E.Snow, J. W.
Collick, P.Macdonald, A. J. F. (Roxburgh)Soskice, Rt Hon. Sir F.
Collindridge, F.McGhee, H. G.Stewart, Michael (Fulham, E.)
Cove, W. G.McGovern, J.Taylor, R. J. (Morpeth)
Cullen, Mrs. A.McKay, J. (Wallsend)Thomas, D. E. (Aberdare)
Davies. S. O. (Merthyr)McLeavy, F.Thomas, I. O. (Wrekin)
Deer, G.MacMillan, M. K. (Western Isles)Thomas, I. R. (Rhondda, W.)
Delargy, H. J.McNeil, Rt. Hon. H.Timmons, J.
Driberg, T. E. N.MacPherson, Malcolm (Stirling)Vernon. Maj. W.
Ede, Rt. Hon. J. C.Mallalieu, J. P. W. (Huddersfield. E.)Wallace, H. W.
Edwards, Rt. Hon. N. (Caerphilly)Manuel, A. C.Webb, Rt. Hon, M. (Bradford, C.)
Edwards, W. J. (Stepney)Marquand, Rt. Hon. H. A.Weitzman, D.
Finch, H. J.Mellish, R. J.Wheatley, Rt. Hon. John (Edinb'gh, E.)
Follick, M.Messer, F.Wilkes, L.
Foot, M. M.Middleton, Mrs. L.Wilkins, W. A.
Fraser, T. (Hamilton)Mitchison, G. R.Williams, Rev. Llywelyn (Abertillery)
Freeman, J. (Watford)Moody, A. S.Williams, Ronald (Wigan)
Gage, C. H.Morley, R.Winterbottom, R. E. (Brightside)
Gibson, C. W.Morris, P (Swansea, W.)Woodburn, Rt. Hon. A.
Gitzean, A.Mort, D. L.Younger, Hon. Kenneth
Glanville, J. E. (Consett)Moyle, A.
Griffiths, Rt. Hon. J. (Llanelly)Nally, W.TELLERS FOR THE AYES:
Mr. Hannan and Mr. Sparks.
NOES
Assheton, Rt. Hon. R. (Blackburn, W.)Deedes, W. F.Law, Rt. Hon. R. K.
Astor, Hon. M.Douglas-Hamilton, Lord M.Legge-Bourke, Maj. E. A. H.
Baker, P.Drewe, C.Linstead, H. N.
Banks, Col. C.Dugdale, Maj. Sir T. (Richmond)Lloyd, Maj. Guy (Renfrew, E.)
Bennett, Sir P. (Edgbaston)Duncan, Capt. J. A. L.Longden, G. J. M. (Herts. S.W.)
Bennett, W. G. (Woodside)Dunglass, LordLucas-Tooth, Sir H.
Bishop, F. P.Fisher, NigelMcCallum, Maj. D.
Boles, Ll.-Col. D. C. (Wells)Foster, J. G.Mackeson, Brig. H. R.
Boothby, R.Fraser, Hon. H. C. P. (Stone)McKie, J. H. (Galloway)
Bower, N.Fraser, Sir I. (Lonsdale)Maclay, Hon. J. S.
Boyd-Carpenter, J. A.Galbraith, Cmdr. T. D. (Pollok)MacLeod, Iain (Enfield, W.)
Boyle, Sir EdwardGalbraith, T. G. D. (Hillhead)Macpherson, N. (Dumfries)
Braithwaite, Lt.-Comdr. J. G.Gates, Maj. E. E.Manningham-Buller, R. E.
Browne, J. N. (Govan)Grimston, R. V. (Westbury)Marshall, D. (Bodmin)
Buehan-Hepburn, P. G. T.Harris, R. R. (Heston)Marshall, S. H. (Sutton)
Bullock, Capt. M.Harvey, Air Codre. A. V. (Macclesfield)Mellor, Sir J.
Carr, Robert (Mitcham)Heath, E. R.Morrison, Maj. J G. (Salisbury)
Channon, H.Henderson, John (Cathcart)Nicholls, H.
Clarke, Brig. T. H. (Portsmouth, W.)Hill, Mrs. E. (Wythenshawe)Nugent, G. R. H.
Conant, Maj. R. J. E.Hornsby-Smith, Miss P.Nutting, Anthony
Cooper-Key, E. M.Horsbrugh, Rt. Hon. FlorenceOrmsby-Gore, Hon. W. D.
Corbett, Lieut.-Col. U. (Ludlow)Howard, G. R. (St. Ives)Orr-Ewing, Ian L. (Weston-super-Mare)
Craddook, G. B. (Spelthorne)Hudson, Sir Austin (Lewisham, N.)Osborne, C.
Cranborne, ViscountHurd, A. R.Perkins, W. R. D.
Crookshank, Capt. Rt. Hon. H. F. C.Hutchison, Lt.-Com. Clark (E'b'rgh W.)Price, H. A. (Lewisham, W.)
Cross, Rt. Hon. Sir R.Hylton-Foster, H. B.Raikes, H. V.
Crosthwaite-Eyre, Col. O. E.Keeling, E. H.Rayner, Brigadier R.
Cundiff, F. W.Lambert, Hon. G.Remnant, Hon. P.
Darling, Sir W. Y. (Edinburgh, S.)Lancaster, Col. C. G.Robertson, Sir D. (Caithness)
Rodgers, J. (Sevenoaks)Sutcliffe, H.Wheatley, Major M. J. (Poole)
Roper, Sir H.Teevan, L. T.White, J. Baker (Canterbury)
Russell, R. S.Thomas, J. P. L. (Hereford)Williams, C. (Torquay)
Ryder, Capt. R. E. D.Thorneycroft, G. E. P. (Monmouth)Williams, Gerald (Tonbridge)
Soott, DonaldThornton-Kemsley, C. N.Williams, Sir H. G. (Croydon, E.)
Smiles, Lt.-Col. Sir W.Thorp, Brigadier R. A. F.Wills, G.
Smith E. Martin (Grantham)Tilney, JohnWilson, Geoffrey (Truro)
Smithers, Peter (Winchester)Turner, H. F. L.Wood, Hon. R.
Snadden, W. McN.Turton, R. H.York, C.
Stanley, Capt. Hon. R. (N. Fylde)Vaughan-Morgan, J. K.
Stewart, J. Henderson (Fife, E.)Vosper, D. F.TELLERS FOR THE NOES.
Storey, S.Ward, Miss I. (Tynemouth)Mr. Studholme and
Strauss, Henry (Norwich, S.)Waterhouse, Capt. C.Mr. Wingfield Digby
Stuart, Rt. Hon. J. (Moray)Watt, Sir G. S. Harvie

It being after Ten o'Clock and objection being taken to further Proceeding, The CHAIRMAN left the Chair to report Progress and ask leave to sit again.

Committee report Progress; to sit again Tomorrow.

The following Amendment stood on the Order Paper in the name of Captain DUNCAN:

Page 1, line 16, at end, insert: Provided that this section shall not apply to any person using a gaff as auxiliary to fishing with rod and line.

Photo of Sir Charles MacAndrew Sir Charles MacAndrew , Bute and North Ayrshire

I do not call the Amendment standing in the name of the hon. and gallant Member for South Angus (Captain Duncan) as there is a similar Government Amendment on the Order Paper.

Photo of Captain James Duncan Captain James Duncan , South Angus

May I be assured by the Secretary of State that he will, in fact, move that Amendment?

The Secretary of State for Scotland (Mr. McNeil):

I do not know how regular this is, but I gladly give that assurance to the hon. and gallant Gentleman.

I beg to move, in page 2, line 6, after "proprietor," to insert "or occupier."

This covers the occupier as well as the owner because in many cases there will be long leases.

Amendment agreed to.

Photo of Sir Robert Perkins Sir Robert Perkins , Stroud

I beg to move, in page 2, line 7, at the end, to insert: or gaff or snare or explosive or gun. The object of this Amendment is to allow a proprietor to use any known method to exterminate pike in a river. As the Bill is now drawn, I understand that the only method by which coarse fish and fresh water fish, including pike, can be taken from a river is by rod and line, net or trap. Consequently, I wish to add the words: or gaff or snare or explosive or gun. The Committee are, no doubt, aware that in many Scottish salmon rivers there are a lot of pike. I am certain that hon. Members in all quarters will agree that pike are vermin. I can give the House a small illustration. Last year I caught a small pike weighing about one and a half pounds; I cut him open and found four salmon parr inside him. At the end of a year 250 pike, if they feed four times a day, can destroy something like a million salmon. Pike are vermin and, in fact, do more damage in a river than all the poachers put together. I therefore move this Amendment to enable the proprietor of a river to use any method to get rid of these brutes.

5.15 p.m.

Mr. McNeil:

For very obvious reasons I cannot accept this Amendment. It is not that I am at all unsympathetic to the general proposition put by the hon. Gentleman. We are all aware of the great damage which pike can do in a river or a loch, although I should like to see the statistical evidence upon which the hon. Gentleman comes to the conclusion that one pike can do more damage than all the poachers. That is a rather wide conclusion.

We have, of course, made provision for the normal methods of attacking pike by the use of the snare and trap, but the other two methods advocated would, I fancy, do more harm than good. For example, if we authorise the use of a rifle or a gun for pike, what can we say to a man who we meet on the river bank, with a rifle under his arm and who is obviously looking for a good-sized salmon? He will say, "No, you are making a great mistake. I am carrying this rifle only in case I see a pike. I should not dream of using it in any other circumstances." That would seem to me to be a thorough defence, although, I should think, a most unlikely tale.

As to the use of explosives, I am willing to be instructed in the technicalities of the subject, but it would seem to me a fairly risky business unless we were satisfied that an explosion would kill only pike. We are excluding the use of explosives because we know of the great damage done to salmon parr and trout by the use of explosives. The hon. Gentleman will have noticed that there is a provision in Clause 9 by which, if it is established that explosives are needed for the benefit of the fishery, the Secretary of State is entitled to give such permission. If a case were made which convinced me that exclusively pike could be attacked or that a fishery could be improved by the use of explosives, then, of course, I would be anxious to be so persuaded, but I suggest that to permit the use of firearms and explosives to attack pike would lead us to a much worse position than we are in at present. I therefore cannot accept the Amendment.

Photo of Sir Robert Perkins Sir Robert Perkins , Stroud

I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. McNeil:

I beg to move, in page 2, line 7, at the end, to insert: (3) Nothing in this section shall be construed as prohibiting the use of a gaff or landing-net as auxiliary to the taking of salmon or freshwater fish by rod and line. This is the point on which an hon. Gentleman opposite asked for an assurance. The use of a gaff as an auxiliary to the ordinary methods of fishing by rod and line is legal at the present time except on the Tweed between certain dates. The dates are 15th September to 1st May. The Amendment makes it clear that the use of a gaff as an auxiliary exclusively to fishing by rod and line will continue to be legal except where it is at present prohibited. I hope, therefore, that the Committee will accept this Amendment.

Photo of Mr John Morrison Mr John Morrison , Salisbury

I should like to take the opportunity of thanking the Secretary of State for including this Amendment. I have an Amendment down on similar lines later which is more or less covered by this one. I should like to ask the Secretary of State to answer the question about tailer, which was invented to protect fish. I hope that that will be covered as well.

Mr. McNeil:

It is not an instrument with which I have any familiarity. I have not used it, but I understand the purpose of it. I should like to assure the hon. Gentleman that on Report I will introduce an Amendment to cover the legitimate use of the tailer.

Photo of Mr David Pryde Mr David Pryde , Midlothian and Peeblesshire

On behalf of my constituents I should like to thank my right hon. Friend for the Amendment, which is sensible and practical.

Photo of Captain James Duncan Captain James Duncan , South Angus

I had an Amendment down on this point, but I think that the right hon. Gentleman's is better than mine, and I thank him for it.

Amendment agreed to.

Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."

Photo of Brigadier Robert Thorp Brigadier Robert Thorp , Berwick-upon-Tweed

I should like to clear up a point—

Photo of Captain James Duncan Captain James Duncan , South Angus

On a point of order. I have an Amendment down to the Clause, in page 2, line 7, at the end, to insert: (3) No person shall use any instrument for dragging for nor any otter for catching salmon or freshwater fish. Is it your intention to call it, Sir Charles?

Photo of Brigadier Robert Thorp Brigadier Robert Thorp , Berwick-upon-Tweed

The point I want to raise I may have to raise later. It is how the various Clauses affect England, particularly the district of the Tweed Valley. Does this Clause, which prevents a person taking fish and salmon in any inland water, cover the district of the River Tweed outwith Scotland? I believe that that is the right word, and that it means "outside" Scotland. Does the Clause cover that? What is the meaning of "inland waterway"? I see that the definition says: 'Inland waters' includes all rivers above estuary limits and their tributary streams, and all waters, watercourses and lochs whether natural or artificial draining into the sea. What is the definition of "draining into the sea"? There are many small lochs and ponds, and even bigger spaces of water in north Northumberland, and I am not quite sure how far we can, or will be permitted, if the Bill becomes an Act, to fish for freshwater fish in these various pieces of water, and I should like an explanation of how far this Clause affects England and how far south it will be effective.

Photo of Mr Arthur Woodburn Mr Arthur Woodburn , Clackmannan and East Stirlingshire

On Second Reading I raised some legal points about the definition of net and coble, and I suggested that the Lord Advocate might look into the question and that the Secretary of State might take powers to review cases where the physical condition of the river made it impossible for that method to be used in the traditional way. Such variations occur on the River Tay, and I raised the special problems of the River Forth. I take it that since there is no Amendment down by the Secretary of State he has been unable to find any method of introducing flexibility.

I should like to explain to the Committee that I have made some inquiries myself of the fishermen and other people connected with the Forth, and that I have been unable to find any method of making the law more specific without making it worse for the fisherman. It is not my intention, naturally, to make the position worse for the fishermen, but I should like to state that on Report, were such a method found, I should introduce such an Amendment. At the moment I do not propose to move one.

Photo of Captain James Duncan Captain James Duncan , South Angus

I want it made quite clear what exactly is the method of rod and line. The Amendment which I had down, about which I asked a moment ago, and which has not been called, was designed to try to obtain from the Government a clear statement of what rod and line really is. For instance, using an otter is fishing with rod and line, with a great many hooks at the end but it can be classed as rod and line. There are various instances of dragging which are a form of fishing with rod and line, but I am not clear whether they are illegal fishing, and covered in the Bill.

I want the Minister who is to reply to explain quite clearly, in addition to the definition in the definition Clause, what is rod and line, because we should get it clear. We have to tighten up the Bill to prevent the poacher, driven from gang poaching, going into individual poaching harder than ever with single rods and lines and clearing pools almost as fast as the gangs are clearing them now with various illegal methods.

Photo of Mr David Pryde Mr David Pryde , Midlothian and Peeblesshire

There is a great deal in what the hon. and gallant Gentleman opposite has just said. We require a clear definition of what legal rod and line fishing is. However, the point I want to raise is this. The Committee have now agreed that legal fishing can take place only by possession of a permit, and I want to ask my right hon. Friend if he will make provision for permits to be available to anglers early in the morning.

Photo of Mr David Robertson Mr David Robertson , Caithness and Sutherland

Further to the point made by my hon. and gallant Friend the Member for Angus, South (Captain Duncan), as the law now stands the instruments he has in mind are illegal. They are all covered in Section 17 of the Salmon Fisheries (Scotland) Act, 1868. It says: Every Person that shall use any Light or Fire of any kind, or any Spear, Leister, Gaff, or other like Instrument, or Otter, for catching Salmon, or any Instrument for dragging for Salmon, or have in his Possession a Light or any of the foresaid Instruments under such Circumstances as to satisfy the Court before whom he is tried that he intended at the Time to catch Salmon by means thereof, shall be liable to a Penalty"— of such and such an amount.

Under the Second Schedule of the Bill that section is entirely deleted, and so the Amendment in the name of my hon. and gallant Friend, which has not been called, is of great importance to this Committee, because I can assure the Committee that this practice, which is known in Scotland as "sniggering," and which was referred to by the hon. Member for South Ayrshire (Mr. Emrys Hughes) is a matter of very great importance in a Bill entitled "Salmon and Freshwater Fisheries (Protection) (Scotland) Bill."

Photo of Sir Charles MacAndrew Sir Charles MacAndrew , Bute and North Ayrshire

I have not called that Amendment whether it is important or not.

Photo of Mr David Robertson Mr David Robertson , Caithness and Sutherland

But I am speaking to the question that the Clause stand part, Sir Charles. You have come to a decision about the Amendment and that must stay, but if, by this Bill—and I think I am correct in saying this, and the Lord Advocate will, of course, say whether I am or not—Section 17 of the 1868 Act is deleted it will be possible for men to carry on these illegal practices—as they will. That seems to me an extraordinary situation.

Mr. McNeil:

I think I can give fairly satisfactory answers to the few points that have been raised, though they will not all be quite acceptable. I am indebted to my right hon. Friend the Member for East Stirling (Mr. Woodburn), for his very clear statement on the subject. The Lord Advocate and I have gone into this subject very thoroughly, with, as I am sure my right hon. Friend will believe, anxiety to help him and to help his constituents, who are placed in difficulty.

We have not found a way by which we could so confine the practice and yet not open a floodgate to destroy the main purpose of the Bill. We cannot find a reasonable method which would give protection to the fisheries in Scotland, although no doubt that would be of benefit to my right hon. Friend's constituents. If, however, my right hon. Friend can, from his researches, in collaboration with his constituents, offer us any suggestion between now and Report stage we will naturally examine it very anxiously.

With regard to Berwick, the Bill, if approved, will be operative in precisely the areas defined. The definition will be found in Clause 20. I must confess that I am a little doubtful whether this will cover the dams and lades which are said to drain into the sea, because I suppose they are on that side of the Border.

5.30 p.m.

Photo of Brigadier Robert Thorp Brigadier Robert Thorp , Berwick-upon-Tweed

The point is that there are reservoirs which run into the sea eventually, but they do not run via the Tweed. Do they come under this Bill? They are in the watershed, being reservoirs built for supplying towns on the Tyne. They flow out to the sea through the Tyne; they are inland waterways flowing out to the sea, but they do not flow into the district of the Tweed, although they are actually situated there.

Mr. McNeil:

I am assisted by my right hon. Friend who is very familiar with that part of the world, and who is very anxious that none of his fishing tributaries should be interfered with. It seems unlikely that they would be affected by the Bill. We are concerned with those tributaries draining into the Tweed, and I would think—although perhaps the hon. and gallant Gentleman will give me time to confirm it—that they are not affected.

I share the anxieties of the hon. and gallant Member for Angus, South (Captain Duncan), about the use of the otter, but I think both he and the hon. Member for Caithness and Sutherland (Sir D. Robertson) will find that their worries are covered by a proposed Amendment to Clause 22, which stands on the Order Paper in my name: in page 10, line 1, at the end to insert: with such bait or lure as is lawful at the passing of this Act. That means that rod and line is legal only so far as it is operated with lures which are normally accepted under the existing Act. This quite clearly excludes the otter, and another method about which the Committee will be very anxious—the use of a heavy hoop for sniggering. Both those will be excluded.

I am glad my hon. Friend the Member for Midlothian and Peebles (Mr. Pryde) thinks that this is useful. I was indebted to him on Second Reading for drawing my attention to the incompleteness of the definition. I gather that there are other parts of the Bill on which he will not find my attitude so acceptable, but perhaps we shall be able to do something there, too. There is a very reasonable anxiety on the part of fishermen about getting permits at 7 a.m., but I think my hon. Friend will agree that it would be pushing me too hard to ask me to provide in the Bill that all the people of all the associations who issue permits to anglers should be under a statutory obligation to provide them by 7 a.m.

I hope—and I think it is a reasonable hope—that agents and factors and associations will see that a fisherman who complies with the Statute should have his access to the waters early in the morning facilitated, but I think we would tangle ourselves up if we tried to have a statutory provision on the subject.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

I am not certain how far the Bill goes in connection with the otter. I understand that only the normal bait or lure may be used. Suppose an otter is used, or suppose a bigger piece of wood than is used with an ordinary trout line is floated down with several flies on it, or put out along the lochside. That is quite practicable, if one knows how to do it. Is that legal or not? In some places timber is floated down a lochside. It would be perfectly possible to float timber down a loch and to have behind it, especially with a good wind, a line with flies on it. Is that legal or illegal? I appreciate that this is a complicated subject which may not have been examined. I am not happy about the legal position.

Mr. McNeil:

I think it was quite clear to the committee of inquiry that if timber with lines attached is floated down a river or loch that is certainly illegal. There are only two legal methods of fishing for salmon and sea trout and they are quite clearly defined in the Bill. I also give it as my opinion that if the hon. Gentleman were to display with an angling net the irresponsibility he sometimes displays in this Committee and trailed an otter with a line he would be behaving illegally.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

I do not think there is any great harm in what I have said, and it could quite well be done with many legal instruments for catching fish. All I ask the right hon. Gentleman to do is to look at this between now and Report to see whether he cannot clarify the position.

Mr. McNeil:

The hon. Gentleman disposes of rights in one of our northern counties and I have no doubt that people in the district will be gratefully encouraged by the free way in which he looks upon methods of fishing. I will, of course, look at this between now and Report stage, although I doubt very much whether I shall be able to add to what I have already said.

Clause, as amended, ordered to stand part of the Bill.