SFFF SG 5-4: Options for improved access

AIM: TO CREATE A REPLACEMENT FOR THE 1976 ACT THAT WILL INCREASE ACCESS WITHOUT COMPROMISING SUSTAINABLE FISHERIES.

(See Minute of 4th Meeting of Steering Group)

DEFINITION

Since the aim refers to the replacement of the 1976 Act, it is assumed that, when the term "access" is used in this context, it refers to access to angling opportunities for freshwater species available to the general public.

STARTING POSITION

1. In all aspects of any new legislation, prime considerations must be the health of the aquatic environment and sustainability of stocks
2. An important aim is to achieve optimum public access for all species in each fishery, under satisfactory conditions.
3. It is important to construct a system whose benefits will be available throughout the whole of Scotland.
4. For a given catchment, access arrangements should be co-ordinated, an important aim being to achieve common standards over a large area.
5. Ideally, permits should give access to whole lochs and/or long stretches of river.
6. It is reasonable to expect that anglers should be prepared to pay for access to fishings and for appropriate management.
7. The value of the voluntary work done by some angling associations must be recognised and any changes must ensure that such voluntary work is supported and encouraged.

OWNERSHIP OF FISHING RIGHTS FOR FRESHWATER FISH

These currently belong to the owner of the banks of the river or loch (the Riparian Proprietor) and cannot be bought and sold separately from the land. He/she may lease the fishing rights to individuals, clubs etc. In Scotland these rights have had little financial value. In some cases the proprietors have been perfectly happy to lease their waters to angling clubs free of charge or for "peppercorn" rental. In other cases, with the passage of time, it has become common knowledge that the owners do not object to their waters being fished by anglers who behave responsibly.

Under such circumstances it is extremely difficult to have a base line which allows judgement to be made regarding "increased" access. In some cases it has been claimed that there has been no "permitted" access on waters which have, in fact, been fished on a regular basis.

Owners who do wish to exclude individual anglers have to make use of a time-consuming and expensive process of civil interdict. There is no doubt that some anglers have taken advantage of this last feature by insisting that they have a right to fish free of charge, where they wish, when they wish and how they wish.

ACCESS TO COMMERCIAL (PUT AND TAKE) FISHERIES

In recent times significant numbers of "commercial" fisheries have been created in still waters (reservoirs, lochs, specially created ponds, old quarries etc.). The owners manage these fisheries and stock them with trout, rainbow trout and in at least one case with coarse fish. In all cases it is in the owners' interests to give access to as many anglers as he/she thinks is appropriate. There should be no question of new legislation attempting to increase access to such fisheries. New legislation should be framed in such a way that such enterprises are allowed to continue to operate.

However, great care must be taken to ensure that no loophole is left which will allow proprietors of "wild" fisheries to use the new legislation to avoid regulations regarding access.

EXTENT/SIZE OF FISHERIES

As a result of the pattern of ownership, and for commercial reasons, many salmon waters are divided into "beats". The tendency is for fisheries for other species on those waters to follow the same pattern. For example under the Tay Protection Order the system is divided into approximately 100 "beats", some of which are further sub-divided. The aim of this strategy is to prevent overcrowding at any one location. In fact, the main effect is to produce a cumbersome distribution system that requires the printing and administration of large numbers of different permits and which makes it difficult and inconvenient for anglers.

In fact, the most satisfactory arrangements for access (and for management) occur when angling associations manage long stretches of river. For example, almost the whole of the main stem of Clyde upstream of Motherwell is managed by only three Associations, each of significant size, and those Associations have a close liaison.

A single permit can potentially give a very large number of anglers access to many miles of water. In theory this could lead to concentrations of anglers at certain places. This is seldom the case! An automatic scattering mechanism comes into play. Anglers who see that one spot is occupied simply move elsewhere.

POSSIBLE ALTERNATIVES FOR FUTURE LEGISLATION

Option 1: Simply repeal the 1976 Act and revert to the position before 1976.

Option 2: Leave the 1976 Act unchanged.

Option 3: Simply make it a criminal offence, in all parts of Scotland, to fish for freshwater fish without legal right or written permission.

Option 4: Make it a criminal offence to fish for freshwater fish without legal right or written permission and create "Access Orders" as described in the Hunter Report.

Option 5: Bring freshwater fishings into public ownership under a "Scottish Anglers' Trust"

Option 6: Create a Scottish Anglers' Trust based on publicly owned waters.

Option 7: Leave the ownership in the hands of the current owners, but create an incentive to persuade the owners to participate in a management and access agreement.

Option 8:

Option 9:

CONSIDERATION OF EACH OF THE ABOVE STRATEGIES

Option1. Simply repeal the 1976 Act and revert to the position before 1976.

. Paper will be presented by Derek Keith on Thursday 25 November.

Option 2 Leave the 1976 Act unchanged.

It is noted that twenty of the 100 respondents to the "Consultation Exercise" "indicated that they were satisfied with the current system of P.O.s and saw no need for change". However, this response came mainly from areas where a P.O. is in existence and the main argument in favour is that access can be controlled. This is accepted, but the existing legislation does not provide an effective means of controlling abuses by certain proprietors whose aim is to retain protection while giving, in return, no access or only token access.

The statement that "permits are widely available at reasonable cost, and throughout the majority of the relevant river system" does not tell the whole story. It is true only in some P.O.s and in some parts of others. In some cases it is partly true for trout, but not true out-with the trout season for other species.

It is also a fact that some of the "readily available" permits contain conditions whose aim is to deter anglers for non-migratory fish.

Despite that fact that it is now 28 years since the Act was passed there are only 14 P.O.s in operation and there are large areas of Scotland where the 1976 Act has had no impact. Thus the cumulative effect of the legislation is not as large as had been intended.

Thus the legislation is flawed and had not had a great impact throughout the country. It is, therefore, pleasing to note the Government's stated intention to repeal the 1976 Act and replace it with something better.

Option 3. Simply make it a criminal offence, in all parts of Scotland , to fish for freshwater fish without legal right or written permission.

. Paper will be presented by Derek Keith on Thursday 25 November.

Option 4. Make it a criminal offence to fish for freshwater fish without legal right or written permission and create "Access Orders", as required

There must be established, in each catchment or sub-catchment, an "Area Access Committee" (AAC) which has the task of overseeing and monitoring the access arrangements. It is anticipated that issues relating to access to fishing for non-migratory species will be the main focus of such committees. The composition of such bodies is extremely important. There will be a strong temptation to allow the body responsible for fishery management to deal also with access. This must be avoided. The tasks will be different and the composition of the two groups must be different. The fishery management group will, of necessity, contain a significant number of proprietors or lessees, whereas the access group should be composed mainly of anglers. Further considerations regarding composition of committees are listed in Appendix A.

AACs must operate in accordance with national standards. The national standards should be set by the Scottish Ministers acting on advice from a "National Access Committee" (NAC). Suggested national standards for access to fishing for non-migratory species are listed in Appendix B. The NAC should be given the additional task of monitoring the access arrangements on a long-term basis.

It must be recognised that there are potential problems of access to angling for non-migratory species when waters contain migratory fish. This issue is discussed in Appendix C.

On any stretch of water where the access arrangements are not regarded as being satisfactory it will be the duty of the AAC to attempt to persuade the proprietor to make any necessary changes. Where this fails, the Committee must then apply to the Scottish Ministers for an "Access Order". The NAC will consider such applications and make recommendations to the Scottish Ministers, who will decide on appropriate action.

It must also be possible for anglers for non-migratory species to present to the AACs applications for Access Orders. Such applications must be supported by at least 20 (?) individual anglers. In the event of the AAC turning the application down, there must be a right of appeal to the NAC.

APPENDIX A

COMPOSITION OF ACCESS COMMITTEES

· Such committees must be well- balanced, well-informed and responsible groups.

· Since it is the permit money of anglers that provides the income for the maintenance and operation of the fisheries, anglers should form a majority on each committee.

· There should be a just and appropriate balance between the interests of salmon anglers and other anglers. On no account should anglers whose main interest is in one particular species of fish form a majority on any Committee.

· There should be an appropriate number of "Independent" members, in addition to members with specialist knowledge (such as biologists from the relevant Fisheries Trusts, representatives of SEPA etc.)

· At least one representative of SEERAD should participate in the National Access Committee in an advisory capacity..

· To begin with at least, committee members should be nominated by the Scottish Ministers, after consultation with appropriate representative bodies.

· It is anticipated that neither permanent staff nor permanent offices will be required for committees.

· It must be recognised that, while participation in such committees may be voluntary, members will incur expenses. It is reasonable to expect that expenses will be refunded. The Freshwater Fisheries Forum must make provision for the above when it is considering funding.

APPENDIX B

NATIONAL STANDARDS FOR ACCESS TO FRESHWATER FISHERIES

(Based on work already done by Angling for Change)

Indicators Evidence Score (circle)

APPENDIX C

MANAGEMENT OF ACCESS

It is important to recognise that problems arise when people fishing for salmon and those fishing for other species wish to have access to the same water, and the problems are even greater when they wish access at, or even near, the same time .

It must be established that, in order to gain "protection" with respect to non-migratory fish, proprietors must be prepared to allow "reasonable" access by anglers for those fish. While it is a fact that salmon anglers almost invariably pay considerably more for their fishing, it is not acceptable for those proprietors who have rights for both migratory and non-migratory fish to be given "protection" while providing no access, or merely token access, for those wishing to fish for other species.

Where waters are sufficiently large, there should not be significant problems. In such a situation it may be accepted that "others" should give way to salmon anglers when they meet on the water. Here the problem may be to decide what "sufficiently large" means.

On smaller waters it may be appropriate to devise "time sharing" arrangements. In some of the smaller waters it may be acceptable for "others" to have the bulk of the access during times of the day, days in the week and periods of the year when no one is fishing for salmon (e.g. during the weekly closed time, during the annual closed time and at periods when there are no worthwhile runs of migratory fish).

(It is worth noting that, even if anglers for freshwater species were to be denied access at certain times, salmon angling could be disturbed by the activities of rafters, canoeists, swimmers, children throwing stones, dog walkers and horse riders, all of whom will all have virtually unrestricted use of the pools as a result of different legislation. Would it be just and reasonable that anglers for "other species" would form the only group of people denied access to the waters?)

Option 5 Bring freshwater fishings into public ownership under a "Scottish Anglers' Trust".

• Paper will be presented by Derek Keith on Thursday 25 November.

Option 6 Create a Scottish Anglers' Trust based, initially, on publicly owned waters

INTRODUCTION

If it is decided not to form a Scottish Anglers' Trust covering all of Scotland's waters, as proposed in No. 5 above, there remains the possibility of a Scottish Anglers Trust based on a more limited range of waters. The Trust would be a co-operative of anglers administering certain facilities. It would seek to improve the facilities, to add to them and promote the sport of angling in Scotland.

WATERS TO BE ADMISTERED BY THE TRUST

1. Several public bodies, such as Scottish Water and The Forestry Commission have acquired fishings incidentally in the course of their activities. These should be leased to the Trust at nominal rents - with appropriate safeguards for

• angling clubs which already lease the waters and which make permits available to the general public,
• those who have leased salmon fishings and who have spent considerable sums on fishery management,
• those who have leased or purchased reservoirs and now run them as commercial, stocked fisheries.

2. The Trust could also obtain waters from the Crown Estate Commissioners, with safeguards similar to those listed above.

3. Once established, the Trust could buy or lease fishings on the open market.

4. It is possible that some owners could make their waters available to anglers via the Trust, rather than via some other route.

Option7 Leave the ownership in the hands of the current owners, but create a strong incentive to persuade the owners to participate in a management and access agreement.

PROBLEMS

Unfortunately the 1976 Act was not drafted with sufficient care, and there were loopholes which allowed some owners to use it mainly for the purpose of restricting or even denying access. If a similar basic strategy were to be used in the future, the legislation would require to be drafted much more tightly, using the experiences gained since 1976 to close those loopholes.

From the point of view of access, one main problem has been an unwavering insistence by those advising politicians that each P.O. had to be applied to whole catchments (e.g. Tweed and Eye, Tay) or to continuous stretches of the main stems of rivers (e.g. Clyde, Don). It was regarded as being potentially too complicated if the proprietor on one stretch of river was "protected" and the proprietor on an adjacent stretch had to rely on Civil Law to exclude those whom he did not wish to allow on his water.

This insistence on "blanket" protection allowed some proprietors to gain "protection" without providing access. In some cases this applied only on relatively short stretches of water. In some catchments, Orders were granted despite that fact that angling for non-migratory species was not allowed on many waters, and on others only a token access was given.

A related problem has been that some owners who agreed to give access at the application stage of the P.O. subsequently withdrew that access or imposed restrictions that had the effect of deterring anglers from seeking permission. In some cases this has been done by the same owner who promised the original access. In others the withdrawal has been subsequent to a change of ownership.

Even within those clubs and associations which are in favour of P.O.s and, in some cases which actually have P.O.s there is discontent that protection is given to owners who neither provide satisfactory access nor contribute to the management of non-migratory species.

PROPOSED SOLUTION

(This is based on work done some time ago, after much deliberation, by the Angling for Change Group)

1. Impose a new system on the whole of Scotland. (A new name for "Protection Orders" must be devised. E.g. "Management and Access Orders".)

2. Make it a criminal offence to fish without legal right or written permission, but only in those waters where the owner participates fully in a catchment (or sub-catchment) ( management and) access scheme.

3. In cases where the owner fails to participate fully, or ceases to participate fully in the scheme, "protection" is withdrawn and the owner will have to rely on Civil Law to prevent those whom he does not wish to fish on his water from so doing.

4. Construct a system which enables decisions to be made about the adequacy of the access both when initial arrangements are being made and during the operation of the system.

This will require the setting up of a National Committee to advise Scottish Ministers and to ensure reasonable uniformity of proposals throughout Scotland. It will also require the publication of an Assessment Template" which sets down appropriate standards. (See Appendix 1, below.)

The composition of the National Committee must be designed carefully to ensure that no single set of interests predominates.

5. Establish, for each Order, an effective "Liaison Committee" which monitors the access arrangements and which reports annually to the Scottish Ministers. See Appendix 2, below.

6. Decide on strategies to deal with certain management issues. See Appendix 3, below.

The change from Civil Law to Criminal Law is very significant, and proprietors cannot expect to be given the benefits of this without giving something in exchange.

It will be argued by some that this will be difficult to enforce, because anglers will be confused or will be able to pretend that they are confused. In fact it need not be any more confusing than at present. If the system applies to the whole of Scotland, anglers will be more likely to become aware that permits are likely to be required than at present. (There are still some who do not appear to think that they need permits in Scotland, even on "protected" waters.)

Even within a P.O. when an angler is aware that permits are required, he/she has to be able to distinguish between water covered by one permit and water covered by a different permit, or water where no access is given. The system outlined above will be no more confusing than that.

APPENDIX 1

ASSESSMENT TEMPLATE (Based on work already done by Angling for Change)

Indicators Evidence Score (circle)

APPENDIX 2

MONITORING ACCESS ARRANGEMENTS

The 1976 Act had no provision for monitoring the access arrangements. The formation of a "Liaison Committee" (LC) was one of the recommendations of the Reporter to the Public Inquiry that led to the granting of the first P.O. (The Tweed and Eye Protection Order) in 1980. On the granting of subsequent Orders there has been only a strong recommendation that such a committee be formed. However, there is no detailed specification regarding remit or membership. As a result it was acceptable for LCs to contain almost exclusively those who had an interest in ensuring that the Order continued to operate.

There was no provision for funding the work of L.C.s. Two results were that there were considerable differences in standards of operation, and some members were considerably out of pocket.

The 1976 Act did specify that there should be an annual report on the operation of Orders. In some cases this was done satisfactorily. In others reports were not submitted until pressure was brought to bear by SEERAD. Some of the reports that were submitted gave the impression that things were progressing satisfactorily when, in fact, they were not.

Anglers who discovered that promised access was not available, or that unreasonable conditions, intended to deter freshwater anglers, had been imposed did not know how or to whom to complain.

Thus a much tighter mechanism must be established.

· The formation of Liaison Committees must be mandatory.

· Their composition must be designed to ensure that there is adequate representation of anglers who are truly independent of the proposers.

· Contact details of the secretary of the Liaison Committee must be printed on permits.

· A list of Liaison Committee secretaries must be made available (e.g. published on a web site).

· Sources of funding must be established.

· A much firmer line must be taken when annual reports do not arrive on time.

· Reports must be made available to the public, e.g. by means of a web site.

APPENDIX 3

MANAGEMENT OF ACCESS

It is important to recognise that problems arise when people fishing for salmon and those fishing for other species wish to have access to the same water, and the problems are even greater when they wish access at, or even near, the same time.

It must be established that, in order to gain "protection" salmon proprietors must be prepared to allow "reasonable" access by anglers for other species. While it is a fact that salmon anglers almost invariably pay considerably more for their fishing, it is not acceptable for salmon proprietors who are given "protection" to be able to provide no access to those wishing to fish for other species".

Where waters are sufficiently large, there should not be significant problems. In such a situation it may be accepted that "others" should give way to salmon anglers when they meet on the water. Here the problem may be to decide what "sufficiently large" means.

On smaller waters it may be appropriate to devise "time sharing" arrangements. In some of the smaller waters it may be acceptable for "others" to have the bulk of the access during times of the day, days in the week and periods of the year when no one is fishing for salmon (e.g. on Sundays, at periods when there are no worthwhile runs of migratory fish and during the closed season for salmon.).

(It is worth noting that, even if anglers for freshwater species were to be denied access at certain times, salmon angling could be disturbed by the activities of rafters, canoeists, swimmers, children throwing stones, dog walkers and horse riders, all of whom will all have virtually unrestricted use of the pools as a result of different legislation. Would it be just and reasonable that anglers for "other species" would form the only group of people denied access to the waters?)

NOTE: -If "blanket protection" remains, the system outlined above cannot be acceptable and we must then consider one of the alternatives.

Derek Keith

Willie Miller November 2004

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