The Scottish Government

SFFF SG 6-2a: A COMMENTARY ON THE OPERATION OF PROTECTION ORDERS (THE FRESHWATER AND SALMON FISHERIES [SCOTLAND] ACT 1976)

Peter S Maitland

Fish Conservation Centre, Gladshot, Haddington, EH41 4NR

1. INTRODUCTION

In Scotland, Protection Orders can be made under the Freshwater and Salmon Fisheries Act (1976) and 13 Orders have been provided so far. Each Order normally refers to all the fresh waters within one catchment or group of associated catchments. The original objectives of Protection Orders were (a) to increase the availability (to the angling community) of freshwater fishing in inland waters to which the proposals (for protection) relate, and (b) to protect freshwater fishing locally (i.e. within the named catchments) by prohibiting persons without legal right or without written permission from fishing for or taking freshwater fish in the inland waters of the prescribed area.

The recent circular from the Scottish Office (17 October, 1997) offers important background to the philosophy of Protection Orders. 'The Secretary of State for Scotland has overall responsibility for ensuring the sustainability of Scotland's fisheries. Conservation of freshwater fisheries is achieved through the Freshwater and Salmon Fisheries (Scotland) Act 1976, which makes provision for the granting of Protection Orders, on application from fishery owners who wish to improve their fisheries in a designated area. On making an Order, the Secretary of State must be satisfied that there will be a significant increase in the availability of angling opportunities for freshwater fish in the area concerned. The emphasis is on controlling access to freshwater fisheries to afford a degree of protection to fish stocks in areas where this is considered necessary. The system is designed to ensure that designated areas support sustainable stocks of freshwater fish for anglers. It offers anglers a regulated access to these fisheries. Fishery owners receive statutory protection from illegal fishing. The overall conservation objective is reflected in the powers to appoint wardens to enforce Protection Orders made under the Act.'

'Protection Orders are usually implemented through local liaison committees, representing local and visiting anglers, proprietors and other relevant interests. The formation of such committees is not mandatory. Committees, or in their absence, the original applicant, are required to report annually to the Secretary of State on the operation of the Protection Order.'

Although often referred to as 'Trout Protection Orders', Protection Orders can refer to all species of freshwater fish except Atlantic Salmon and Sea Trout which have their own independent legislation. However, most existing Orders neglect fish other than Brown Trout, exceptions being the Tummel/Garry Protection Order (which covers Arctic Charr, Grayling, Pike and Perch as well as Brown Trout) and the Tweed and the Tay Protection Orders (which cover Grayling and Brown Trout).

2. INTERPRETING THE PURPOSE OF ORDERS

There is considerable difficulty in elucidating any scientific basis concerning the 'improved' management of fisheries which is implicit in the Protection Orders because of the ambiguity of the wording used by the Scottish Office. This has lead to differences in interpreting the purpose of Orders and also in assessing whether or not they have been successful.

For example:

2.1 Sustainability

'sustainability of Scotland's fisheries'

and

'ensure that designated areas support sustainable stocks of freshwater fish for anglers'

The undefined use of the word 'sustainable' here leaves an open goal for bad management. Does it refer to 'wild native fish populations' or 'fish always present to catch'. To be 'sustainable' the former require skilful science-based fishery management, the latter merely stocking for put-and-take fishing. The meaning of 'sustainable' and the role of stocking within Protection Order areas needs to be clarified if proper 'conservation of freshwater fisheries' is to be achieved.

To be realistic, the 'Secretary of State's overall stewardship of freshwater fisheries' in Scotland should mean much more that it appears to at present. It should encompass all native fish species, thereby securing the biodiversity of this component of our wildlife (Maitland 1997) and enhancing Scottish Office commitments to Rio. The term 'sustainable' has been defined in different ways but in the present context of 'sustainable stocks of freshwater fish' must surely imply the sensible exploitation of wild fish populations so that the stocks which remain may be self-regenerating into the foreseeable future, or something very similar.

2.2 Improvement

'owners who wish to improve their fisheries'

Again, the wording can have a considerable variety of interpretations. Does 'improve' mean (i) more income to the owners, (ii) more anglers using the fishery, (iii) more fish caught, or (iv) better management for wild native fish and their habitats? Whatever the meaning, it should be possible to prove whether or not a Protection Order has resulted in 'improvement' by analysing the basic catch statistics from a fishery. These should be available, since 'applicants are required to report annually to the Secretary of State'. If they are not, how will it ever be possible to assess the success or otherwise of the Protection Order?

Thus the annual reports would seem to be a key element in both assessing the success or otherwise of the Protection Orders and in providing evidence for any changes which need to be made, either individually or collectively, in relation to achieving the objectives of the Orders. A review by the Scottish Office of all the annual reports which are available to date is essential.

Unless a fishery is planning to move towards a put-and-take situation, which would be regarded in most natural waters as undesirable and a loss in biodiversity, the key element for long-term sustainability should be better management for wild native fish (which most anglers regard as the highest quarry) and their habitats. This can only be done by sensible scientific management related to local fish stocks and conditions and dependent on accurate catch statistics from anglers. Anglers are a vital part in completing the circle here and providing these data. In return, however, the subsequent scientific management of the water concerned will yield them dividends in terms of a satisfactory sustainable fishery for wild native fish.

The question of 'improvement' must be treated with caution, for it has to be accepted that each water has a finite level of fish production beyond which it not possible to go without the stock collapsing. For successful sustainable management it is important that the maximum sustainable yield is assessed and allowable bags adjusted accordingly.

2.3 Protection

(c) 'a significant increase in the availability of angling opportunities for freshwater fish in the area concerned'

and

'a degree of protection to fish stocks'

It should be possible from available statistics to assess whether or not there has been 'a significant increase' or not. However, again there is unfortunate ambiguity in the wording for presumably what is meant are 'legal angling opportunities' through 'regulated access'. If the intention is to increase the amount of angling then this will not necessarily afford 'a degree of protection to fish stocks'.

These major difficulties in interpretation are, as discussed below, due to a constant misunderstanding concerning Protection Orders - they do not protect wild native fish, but merely the legal rights of fishery owners for the waters concerned. There is nothing to prevent unlimited stocking of waters with alien strains (or even species - e.g. Rainbow Trout) of fish, nor the removal of wild native fish (e.g. Pike or Perch) which are regarded as a threat to the owner's idea of a fishery, but are the legitimate quarry of many coarse fishermen.

Clarification of these concepts would help both native fish and anglers alike. The range of waters and fishing opportunities in Scotland is extensive and the challenge in their management, at a national level, is to allow expansion where this is sustainable but accept controls where the habitat is sensitive or the fish stocks are endangered. Such an enlightened policy can only be operated from a central agency with appropriate national information and presumably this should be the role of the Scottish Office. However, it is clear also, that management at this level will never be possible until there is full national coverage by regional fishery agencies.

3. OPERATION OF ORDERS

SOAEFD would like 'views on any aspects of the matter and comments, ideally based on experience, on the following':

3.1 'In view of the Secretary of State's overall stewardship of freshwater fisheries, do you consider that Protection Orders effectively balance the objective of sustainable fish stocks against demand for fishing opportunities from anglers? Do the existing arrangements require fine tuning or tightening up or indeed, mindful of the imperative of sustaining and enhancing fish stocks, is there any other mechanism which would be more effective?'

The answers to these questions are to an extent answered in the comments below. However, until it is clear what the Secretary of State means by 'sustaining' and 'enhancing' fish stocks - especially in relation to Scotland's native wild fish populations - no clear answer can be given in relation to the value of Protection Orders. There is certainly a better mechanism which would be much more efficient and effective and that is to have legislation for a nationwide scheme which would make it illegal for adult anglers to fish any water in Scotland unless they were in possession of (a) a national angling licence, and (b) a local permit or letter of permission from the owner of lessee of the fishings concerned.

3.2 'Are current arrangements for consideration of applications for Protection Orders adequate? Are views sufficiently widely canvassed and representative of all those that might have an interest in the matter? Do you consider that the consultation prior to making order is sufficient?'

If Protection Orders are really intended in any way to relate to 'proper conservation' then the consultees must include Scottish Natural Heritage, Scottish Environment Protection Agency, Scottish Wildlife and Countryside Link, and perhaps others.

3.3 'Are Protection Orders adequately defined and their geographic boundaries easily understood? In addition is jurisdiction in relation to tidal waters clear?'

The ambiguous nature of some of the wording relating to Protection Orders has been criticised above. As far as boundaries are concerned there is certainly confusion in the minds of many anglers regarding the differences (and sometimes overlapping) of the boundaries of individual riparian fisheries, of the Protection Order areas (where these exist), of the Salmon District Fishery Board Areas (where these exist), of the various Fishery Trust areas (where these exist) and of various other boundaries.

3.4 'Is monitoring adequate, particularly in relation to ensuring that fishing in other waters, set out in the Protection Order proposal, is made available?'

Monitoring is completely inadequate because (as discussed above), unless reliable catch data (including nil returns) are available on a regular, long-term, basis it will be impossible to judge whether or not any water is actually supporting 'sustainable stocks of freshwater fish for anglers'.

This agrees with the view expressed by Jamieson (1989) after nine years of experience with the Protection Order for the Tweed and Eye: 'Any conservation benefits of the Order are not yet apparent in improved catches ... Until adequate catch records are collected and maintained this will never be known. ... There is, however, no overall strategy for restocking as regard sizes, number and locations nor assessment of the value of current restocking programmes.'

Similar views were expressed recently at the Highland Council meeting in Invershin where there was general agreement that, although accurate catch statistics are often difficult to obtain, they are essential for the successful management of a sustainable fishery.

4. SPECIFIC PROBLEMS

4.1 Protecting fish

Jamieson (1989) considered that protection of individual fisheries 'has been the main area of success' as far as the Protection Order for the Tweed and Eye is concerned, although the pattern of allegiance had switched from some fisheries to others (notably to commercial, heavily stocked, stillwater fisheries).

However, Protection Orders do not protect fish, but the rights of fishery owners or tenants. There is no offence of killing fish or of damaging their habitat, although as part of the process of establishing a Protection Order, the Secretary of State for Scotland is supposed to take into consideration the need for conservation of any species of fish. There is no evidence that wild stocks of native freshwater fish are any better protected by the existence of a Protection Order for the catchment in which it occurs. Since most Protection Orders concern Brown Trout only, other native fish with the geographic area concerned - even rare or threatened species - are given no protection.

An example of the lack of protection given to important native species may be instructive. Only one Protection Order (The River Tummel Catchment Area Protection Order 1983) covers Arctic Charr, yet this species occurs in several other Protection Order Areas (e.g. the River Earn Catchment) where it is threatened by human activities but given no protection. Interestingly, the River Tummel Catchment Area Protection Order also covers the Grayling, a species which, though of interest to some anglers, is not native to Scotland.

4.2 Inadequate national coverage

The inevitable way that Protection Orders have developed has led to another piecemeal coverage of Scotland by an inadequate system of fishery management. With some parts of the country already covered by District Salmon Fishery Boards and others not, the fact that there is no particular relation between the areas covered by District Salmon Fishery Boards, the 13 Protection Orders, the new Fishery Trusts, and the three regions of Scottish Natural Heritage, the Scottish Environment Protection Agency and the Water Authorities, has lead to further confusion in the eyes of the angling public with regard to the geography of angling control and management throughout Scotland's lochs and rivers.

4.3 Species other than Brown Trout

It is quite clear that the general trend in the way in which Protection Orders have been used is as a means of controlling access by anglers to various fisheries for Brown Trout only, rather than making significantly more fishing available to the public. Species other than Brown Trout are virtually ignored and certainly given no greater protection than formerly. Even with Brown Trout there may be a significant loss of biodiversity if significant stocking takes place.

Thus the Order mechanism has failed in one of its main objectives.

4.4 Breaking agreements

There is some evidence that, in more than one Protection Order area, some fishery owners have withdrawn their agreement to allow greater access to their fishings. The result is that their fishery is protected by the Order but not available to the public in any form. Examples of this were given at the recent seminar organised by Highland Council.

One of the purpose of Protection Orders is to provide increased access to the angling public. After nine years experience of the Protection Order for the Tweed and Eye, Jamieson (1989) noted 'This is an area of disappointment with the Order. Over the years ... the pattern of access as not significantly increased. Rather the reverse is the case. Since the Order was granted one or two fishings have been taken back from clubs and managed privately under significantly different terms and conditions from the original proposals. Examples exist on Teviot, Whiteadder and Upper Tweed. This is not illegal but it does go against the whole spirit and principle of the Order. ... There is need to devise a more selective system of granting protection.'

4.5 Monitoring

In his original consideration of the proposed Protection Order for the Tweed and Eye, the Chief Reporter (A J Hunt) recommended that a Protection Order be made for a limited period of three years. He further recommended that 'consideration be given to the establishment of a Liaison Committee, with appropriate representation, whose terms of reference could include monitoring of the Protection Order and the advocacy of such steps as appeared desirable and practicable to better secure the objectives of the Order.'

Though there are local committees, these are not mandatory, nor is there any obligation to produce proper catch and other important statistics, which is the only way to measure whether or not 'conservation of freshwater fisheries is achieved'.

There is a need for a review of the nature of local committees and the types of information which must be included in their reports to ensure that the Protection Orders are meeting their objectives and therefore fulfilling the Secretary of State's stewardship obligation.

5. CONCLUSIONS

In conclusion, although the original concept of Protection Orders had some merit, the ways in which they have been allowed to develop, more or less at random across Scotland and at the whim of groups of fishery proprietors, has been a mistake. The time and efforts taken and the costs involved with the present 13 Orders have been substantial and a much simpler approach would be that which is advocated now - that proper consideration is given to a comprehensive national scheme of legislation and management, as outlined elsewhere (Maitland 1996).

The proper solution, which would give long term protection to the rights of fishery proprietors, of anglers and, not least, of Scotland's native fish themselves is to contain the objectives and original spirit of the Protection Orders within a radical national programme for the improved legislation and management of fish and fisheries in Scotland (Campbell et al. 1994). In particular, a programme is needed which should include the following components.

5.1 Comprehensive national coverage

A major problem with the present structures for fisheries management is that none of them cover the whole of Scotland. Thus, an obvious principle in the creation of any new structure is to make sure that it embraces the whole country. It is unfortunate that Lord Sewel, in his recent statement of the Task Force Report on Scottish Salmon , appears to,reject this fundamental principle.

5.2 New management units based on catchments

However, as well as a unified structure for the whole of Scotland, local management incorporating the wide range of experience and expertise which is available in different parts of the country is obviously a valuable aim. There are various ways in which Scotland may be divided to give a regional structure (e.g. the new local authorities) but the one which must receive overwhelming favour is some sort of division related to whole river catchments.

5.3 Central coordination

Having said this, however, some sort of central coordination is highly desirable to provide advice and training, to allocate any general funding available and to carry out some aspects of research and monitoring (e.g. the compilation of accurate national fishery statistics, standardisation of relevant methodologies, the provision of general management guidance, codes of practice, etc.). In part at least, Lord Sewel seems to favour a system which centralises information, though how this could produce the essential national statistics in the absence of a national system of fishery management is a mystery.

5.4 Biodiversity of wild native fish

Until now, consideration of the proper management of wild fish populations in Scotland has been largely restricted to game fisheries for Atlantic Salmon and Trout. Most other fish species, including until relatively recently coarse fish, have been ignored. This attitude should change and more attention should be paid to the needs of all fish species and their habitats, thus maintaining (and in some cases restoring) the biodiversity of native species and the sustainability of their individual wild populations.

Several native species (e.g. Pike, Eels and Perch), though little exploited in Scotland, are highly favoured in parts of the European Community - where they have a higher flesh value than that of Atlantic Salmon. Thus not only do many of the non-salmonid species deserve greater protection on nature conservation and biodiversity grounds, they are also of potential importance to rural development in some areas.

5.5 The needs of society

In addition to the range of fish species within each catchment, there is also a range of needs from human society. These include the conservation of fish species and their habitats, the role of fish as indicators of water quality, the educational and research importance of fish, their appeal to naturalists and aquarists (young and old), the demands for angling, the importance of angling to tourism, the rights of traditional commercial fishermen, the expectation of income from fishing by riparian owners and others, and local opportunities for fish farming. Any new system must take account of all of these requirements and ideally have as many interested parties as possible represented from the outset. There is also great value in learning from the experience of other countries (Campbell 1973).

5.6 Scientific management

Until recently, past management of fish populations in Scotland has been on a casual and laissez faire basis by local managers with relatively little scientific input and a heavy reliance on stocking. A scientific basis for proper management is essential and so new management systems must include a strong scientific component. There is a basic need, in almost all fisheries in Scotland, for more accurate information on fish catches and fish stocks.

In addition, although all fisheries require some form of management, which could range from doing little other than monitoring to weekly stocking in put-and-take systems, a distinction should be drawn between wild fisheries (in natural rivers and lochs) where there is no stocking or, at most, some enhancement using local native stocks, and stocked fisheries (often in artificial water bodies) where there is no or little wild stock and the fishery is maintained by regular stocking of fish from fish hatcheries and farms.

Thus national policies are required which will clarify the scientific and economic importance of all fresh waters in Scotland. Only then will it be possible to produce rational policies which will allow the most effective and sustainable use of their fish populations.

5.7 Funding

One problem which has frequently arisen in relation to past fishery management in Scotland has been the constant need for funding. This is needed for a variety of purposes, for example the control of poaching, habitat management, etc. Thus any new system must have one or more sources of income if it is to be successful and core funding for essential staff (biologists and fishery wardens) is crucial.

5.8 Conclusion

The above ideals set out a framework for the future management of fish populations and fisheries in Scotland. Some of the further details may be debatable but could be reached by debate and consensus between anglers and fishery scientists. Although the present situation is far from ideal, many successful parts of it - including the philosophy behind Protection Orders - can, and should, be incorporated in any new structure. Clearly, this will require new legislation.

The suggestion, expressed in the recent Scottish Office Circular concerning Protection Orders that 'without them the incentive to proper conservation and management, for example by stocking, would be reduced and consequently there would be a loss to all anglers and to those who are concerned with protecting our wildlife' is patently not the case. There are far more sensible options available for the protection of Scotland's important native fish fauna, which would maintain its present biodiversity, but at the same time allow extensive use of this resource by the angling public.

In conclusion, and specifically concentrating on Protection Orders, it is believed that these will only work adequately if attention is given to the following:

(a) If the objectives are to be understood properly, then greater clarity must be used by the Scottish Office in relation to any wording relating to Protection Orders, especially concepts such as 'sustainability', 'improvement' of fisheries, 'protection' of stocks, etc.

(b) Fishery statistics must be an essential part of any reporting to the Secretary of State on the working of a Protection Order. Without this it will never be possible to judge the success or otherwise of any management system.

(c) If Protection Orders are to be used as a means of an 'overall conservation objective' for the native fish stocks of Scotland then their use must be broadened geographically and to include native species other than Brown Trout.

6. ACKNOWLEDGEMENT

This report was produced at the request of WWF Scotland. I am grateful to Elizabeth Leighton for helpful comments on an early draft.

7. REFERENCES

CAMPBELL, R.N. 1973. A study of the organisation of freshwater sport fisheries in New Zealand, Australia and Canada. Nuffield Travelling Fellowship Report.

CAMPBELL, R.N., MAITLAND, P.S. & CAMPBELL, R.N.B. 1994. Management of fish populations. Pages 489-513 in: Maitland, P.S., Boon, P.J. & McLusky, D.S. 1994. The fresh waters of Scotland. Chichester, Wiley.

JAMIESON, A.D. 1989. The trout fishery. 52-59. Tweed Foundation Publication.

MAITLAND, P.S. 1996. Review of policies concerning freshwater fish in Scotland. Aberfeldy, WWF Scotland.

MAITLAND, P.S. 1997. Sustainable management for biodiversity: freshwater fisheries. Pages 167-178 in: Fleming, V., Usher, M.B., Newton, A. & Vickery, J. Biodiversity in Scotland: status, trends and initiatives. Edinburgh, HMSO.