The Scottish Government

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Section 1: If it was decided to retain but amend the PO system, the following are the issues which might be addressed.

SALMON AND FRESHWATER FISHERIES (CONSOLIDATION) ( SCOTLAND ) ACT 2003: SECTION 48, PROTECTION ORDERS

Application process:

This process has been identified as costly, cumbersome, unclear as to who may apply, and not transparent with respect to the work of the Consultative Committee.

• Cost - one of the issues raised is the requirement for the applicant to give notice of the proposals in the Edinburgh Gazette, as well as in newspapers nominated by the Scottish Ministers. There is clearly a need to ensure that the public are made aware of any application, and what the general effect would be if the proposals were adopted, but whether there is a need to give notice in the Edinburgh Gazette is less clear.

If an Order is made, the Scottish Executive should give notice in the EG for record purposes, but it is not clear why applicants should before any decision on whether to make an Order has been made. Subject to legal advice it should be enough for the applicant to 'publish proposals' without specifying where. It should be enough that relevant interests are covered.

• Cumbersome process - administrative measures could be put in place to streamline the process. An attempt was made to do this following a review of the PO system in 1998, but there is clearly to revisit this.

The design of the application procedure should be reviewed to ensure that applicants know and understand what is required. The provision of an electronic service should be considered.

• Consultative Committee - this Committee plays a central role in the application process by examining each application in detail, including site visits, seeking clarification and further information where necessary, and providing advice to the Scottish Ministers on the merits of each case and whether a PO is appropriate. In establishing the current Committee, the then Scottish Office, asked SANA to act as facilitators in the establishment of a committee comprising people who would form " a body which in their opinion is representative of persons wishing to fish for freshwater fish in inland waters in Scotland;" (2003 Act, section 48(3)(c)). The Committee put together by SANA represents game angling and coarse angling. Among those participating are SANA, S&TA, SFCA and ASFB. SCAPA were invited to participate, but declined.

There may be a case for specifying that such a Committee should exist rather than implying it as at present. The Committee through an independent Chair would have specific Terms of Reference, an appropriate Constitution, and the minutes of meetings should be published so that the reasons for any advice provided to Ministers can be seen.

Blanket Coverage:

A criticism that has been made frequently is that when a PO is made, it covers an entire area, irrespective of whether all the riparian owners within that area want to be involved and have agreed to provide increased access. If one or two fisheries within the PO area fail to comply with the requirements on making fishing available, the only remedy available under the current provisions is that an Order may be revoked, removing the system from the whole prescribed area, even if it is working well elsewhere in the area. This may stem from the wording of the current legislation where a prescribed area is taken to mean a single, discrete area.

• Provision could be made to exclude fisheries where there is no appetite from the owners for inclusion, and removal of those where there is a subsequent non-compliance from the prescribed area. This would have to include provisions for the clear advertisement of areas that have been excluded from the system or which have been subsequently removed so that owners, wardens and, most importantly, anglers know where the PO system applies. This would inevitably lead to very complex Orders being drafted or re-made. The Orders would have to define precisely which stretches of river, or areas of the catchment in question, are included in the prescribed area/s.

Fragmented coverage of Scotland:

• The PO system has been in place since the passing of the 1976 Act. Since that time, a total of 14 POs has been made. The attached map shows the areas covered.
• The map indicates that whereas there are large areas of the country where no PO has been made, the list of POs in force reads like a catalogue of many of the most important trout fisheries in Scotland. It is important to remember, however, that a PO relates to all freshwater fish, not just trout, even though regulation of the fishery for that species may have been the initial driver.
• The reasons for there being only a partial take up of the provisions might include:

1. A perceived lack of importance of freshwater fishing in many areas;
2. The administrative costs associated with making application;
3. The long-standing tacit permission given by landowners, often farmers, to anglers wishing to fish their waters;
4. Lack of recognition of any possible benefit;
5. The south-west rivers, where there are significant freshwater fishery resources, are subject to the provisions of section 26 of the 2003 Act (formerly section 9 of the Solway Firth Fisheries Act 1804), whereby legal right or written permission from a person having such right is required to fish for any fish other than salmon. Similar provisions apply in respect of salmon fishing, as in the rest of Scotland.

• The net result of this, however, is that the majority of waters in Scotland remain subject to the general rule that fishing for freshwater fish without permission is a civil offence.

Conservation and monitoring:

• A frequent comment has been the lack of commitment to conservation in the PO system. The provisions (section 48(3)(d)) state that the Scottish Ministers shall not make a PO unless, inter alia, they have taken into consideration the need for conservation of any species of fish and have carried out such consultation in this regard as they consider necessary. There is also a provision (section 48(6)) that the Scottish Ministers may at any time require an owner or occupier of a right of fishing for freshwater fish in a prescribed area to furnish them with information regarding the implementation in that area of proposals in so far as they relate to that right. The approach that has been taken to address this has been the administrative requirement, rather than a legal requirement, for the establishment of a Liaison Committee for each PO area, and for each Committee to submit an annual report.
• If the system of POs is to be retained, in some form, and in the immediate absence of any local management body, there could be a legal requirement for the establishment of a Monitoring Committee for each area, that Committee to comprise representatives of riparian owners and anglers, including clubs and associations. The legislation could specify and require the submission of such data as we require. The Committee should establish a system to record catches of all species. In an ideal situation, information should be collected on the status of freshwater fish stocks in the area. It is, however, acknowledged that there is a lack of scientific information available, and indeed a lack in many instances of adequate techniques to obtain the information especially in lochs and in wide, deep rivers.

Standards of access, access to species other than trout, and the issue of "public waters":

Concern has been expressed that the legislation provides no guidance on minimum acceptable standards of access. This lack is entirely understandable, however, given that availability of fishing, species present and the ability of stocks to sustain fisheries will inevitably differ in different areas.

The fishery regimes in place in different places should be "fit for purpose", and, until appropriate management bodies can be formed, the establishment of well-founded reporting Committees for each area could go a long way to addressing this problem. This Committee could be the same as the monitoring Committee described in the preceding section.

A PO may be made where Ministers are satisfied that there will be a significant increase in the availability of fishing for freshwater fish. However, the observation has been made that the real effect of introducing a PO may be an overall reduction in the availability of fishing. For example, in a situation where there is no PO and no permits are being issued, there may be 100 anglers fishing without permission, but fishing nevertheless. An owner may decide to issue ten permits, which is ten more than he ever issued before, and this may be a significant increase. Some would argue, however, that there has really be a reduction in angling availability of 90 anglers rather than a gain of ten.

The current legislation is not sufficiently sophisticated to address this problem. A proposal to increase permits from zero might be construed as a significant increase as there is no other way of measuring the gain. On the other hand, if there is a problem of real or potential over-exploitation, there should be a mechanism to address this, and a PO may not be the way to do this.

Although there is a popular view that POs apply to trout, the legislation makes it clear that the PO system applies to all freshwater fish. There is clearly a failure among many people to appreciate this.

There is a need for greater publicity to be given to the system. This applies not only to anglers, but also to the owners of fishing rights, who should be aware that they should not restrict their attention to trout fishing.

Problems may arise when property in a PO area changes hands and the new owner either does not know the obligations under the PO, or does not wish to comply.

Provision should be made to ensure that when property changes hands, the seller, buyer, and solicitors are aware of all conditions pertaining to that property, including the fact that a PO is in force.

Concerns have been expressed by some PO Committees and riparian owners that despite complaints about lack of access, large numbers of permits are not being taken up. On the other hand, some anglers complain that whereas permits are nominally available, they may be difficult to obtain; they may be available only from difficult locations or at awkward times.

§ Better publicity, using websites where appropriate, is necessary to ensure that permits are easily accessible to anglers, especially visitors to the area.

There has been much debate over what constitutes "public waters". The general rule with regard to rivers is relatively straightforward. Where a river is both tidal and navigable, and there is a public right of access to the banks or where fishing can be carried out from a boat, there is a public right of fishing for freshwater fish, including trout. The issue becomes more complicated when lochs are considered. This stems largely from statements made in the case of Macdonnell v Caledonian Canal Commissioners of 1830, where it was opined that certain inland lochs, by reason of their situation, size and capability of navigation by large vessels, as part of the commerce of a particular district, may be considered as public, in the same manner as navigable rivers. In the case cited above, it was stated that waters such as Loch Ness, Loch Lochy and Loch Lomond must be regarded as public waters, but Loch Oich (about which the case was held) should not be, as it was wholly surrounded by private lands and, at that time, there was little evidence of public use. Given the changed state of use of the Caledonian Canal and the fact that Loch Oich is an integral part of that Canal, it has been suggested that Loch Oich may also be a public water. This interpretation has, however, been challenged.

Firm and unambiguous legal advice on what constitutes a public loch should be obtained.

Wardens:

o Section 49 of the 2003 Act makes provision for the appointment of wardens to secure compliance with POs. The Scottish Ministers may appoint as wardens such persons as they think fit from among persons nominated to them by or on behalf of an owner of land to which a right of fishing for freshwater fish pertains, or by or on behalf of an occupier of such a right. The powers of wardens are very limited compared with those of water bailiffs. Nevertheless, before any warrant is issued for the first time, each applicant must supply a Disclosures Scotland Certificate and photograph with the application.

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