SFFF SG 6-2b: Appendix 5 - Access and Management Order
(AMO) (July 2000 Paper)
1. When submitting their individual
management plans, the proprietors of each fishery would be
obliged to include details of all fish species present,
access and permit provision, proposals for any
restrictions, and procedures for dealing with complaints.
These proposals, if accepted, would form the building
blocks of the Access and Management Order (AMO) for the
area. AMOs would have the same legal impact as current
Protection Orders, namely making fishing for freshwater
species without legal right or written permission a
criminal offence on fisheries within its scope. Like
Protection Orders, AMOs would concern only fishing for
freshwater species, but they would differ from POs in other
crucial respects:-
a. The AMO would cover the
whole area, but with provision for exceptions.
Individual fisheries would have the chance to opt out,
rather than as under the current position where they opt
in. Opting out would be by one of three means:-
- i. a positive decision not to be bound by the
access provisions (for instance, on waters run by
closed syndicates); or
- ii. by failing to submit a management plan for
inclusion in the Area Fishery Management Plan (for
instance, on waters which proprietors do not regard as
"fisheries"); or
- iii. where there were sound reasons for preventing
or restricting fishing on a water or in a particular
part of it on the grounds of conservation, personal
privacy, or public safety.
- In cases under (iii) above it would be open to the
AFMC to recommend that protection be granted within the
AMO, despite there being little or no access for
angling.
b. In all cases, the owner may still be bound by certain
terms of the Area Management Plan concerning conservation
etc, and would be obliged to avoid taking any actions which
were detrimental to other fisheries in the area.
c. the AMO could apply to any non-tidal waters,
including "navigable" or "public" waterways. Provision
should exist for an AMO to be able to encompass, where
local circumstances make it logical and desirable, the
tidal reaches of rivers, estuarine areas or lochs with
tidal inflows.
d. the AMO would be administered, and largely approved,
locally. This would be a considerably swifter and cheaper
process, particularly if the Internet and local newspapers
were exploited as media for consulting angling interests.
Since an AMO involves a statutory power there would be a
need for the First Minister's authority in each case. There
would be a presumption that terms agreed between the AFMC
and a fishery owner would normally be approved. However,
there would be benefits in a degree of voluntary central
co-ordination of best practice and a mechanism to resolve
issues which arise at local level. We propose that the
First Ministers Consultative Committee (FMCC) should be
retained and that among other things (see Appendix 6) it
should advise the First Minister on acceptance of proposals
for AMOs, as it does with current Protection Orders, Only
where any dispute remained unresolved at local level would
the First Minister require to act, essentially in the role
of arbiter.
e. the provisions of the AMO would not be based on
"increasing" access for angling but on "optimising" it.
"Optimum" access would reflect the maximum consistent with
scientific advice regarding conservation of the aquatic
environment and the sustainable long term management of the
fishery.
f. wardens would be afforded statutory enforcement
powers and appropriate training would be provided;
g. most important, the AMO would be closely linked with
the submission of a robust management plan for the fishery
concerned, ensuring that access goes hand in hand with
sustainable exploitation of the fishery.
2. There would be a presumption that
fishing should be restricted as little as possible and that
any restrictions should be consistent with the conservation
and management interests of each species in each fishery.
It should not be assumed, for instance, that preventing
anglers from employing practices such as night fishing or
bait fishing will be the only or indeed the most effective
measures to promote conservation or deter poaching.
Potentially legitimate angling tactics such as these can be
skilful and appropriate in some circumstances and
conditions. They should not be ruled out unless there are
compelling reasons for doing so. It should be noted,
however, that for obvious staffing and economic reasons it
is common practice at most commercial fisheries for the
fishery to close at night. Because of this, nothing in the
above should be taken to imply that commercial fisheries
will be forced to open outwith their normal hours.
3. Any proposed restrictions or
requirements would be set out within the AMO. These may
vary for individual species within each fishery, and for
different fisheries in an area. Restrictions might include,
for example, seasons, baits, size limits, bag limits or
fishing methods. Requirements should normally include an
obligation to render catch returns and may also extend to,
for example, "catch and release" practices in "wild"
fisheries or for coarse species.
4. Opinions will vary between anglers who
pursue different species as to what constitutes "optimum"
access to angling for each type of fish as mentioned at
para1 (d) above. In many, but not all, cases there will be
scope for all types of angling to be pursued without coming
into conflict. Where this is not possible, AFMCs should
start from the principle that access to fish for any
species present should normally be permitted provided it
does not significantly disrupt the activities of those for
whom the fishery is primarily managed. The AFMC would also
have to consider whether allowing access to fish for a
particular species might act to the general detriment of
the management of the fishery or the conservation of other
species in it. Constructive compromise will be the keynote.
So, for example, the proprietors of a loch which contains
pike but is managed primarily as a trout fishery might
allow access for pike angling at certain times of the year,
but with restrictions on methods to preclude the risk of
accidentally catching trout or transmitting disease or
parasites, and limit the parts of the water to be fished so
that known trout-spawning areas were not disturbed.
Similarly, there is no reason why properly controlled
fishing for freshwater species should not be allowed on
most salmon and seatrout waters on Sundays or, in the case
of grayling and coarse fish, during the close season for
salmonid species. Plainly in such cases there would be a
need to protect particularly sensitive spawning sites, but
once more this should be addressed as a matter of sensible
compromise rather than blanket restriction. We discuss
allied, and perhaps wider, issues concerning the balance of
fishery management between species in paras 3 - 5 of
Appendix 4.
5. The AMO would oblige proprietors to
provide access for angling at reasonable cost, to make
permits readily available, and to publicise the outlets
from which permits can be obtained. "Readily available"
should be taken to imply that wherever possible permits
should be obtainable from outlets local to the fishery
which are open all day on each day of the week. Permits
should clearly set out details of fishery rules, fishery
boundaries, and correspondence addresses for the FMG and
whoever is responsible for dealing with queries or
complaints concerning the management of the fishery.
"Reasonable cost" should be taken to imply a fair price
based on the facilities and quality of fishing available.
It is recognised that pricing at a commercial fishery will
often be significantly higher than at a club water but this
should not be taken to imply that the commercial pricing is
not reasonable.
6. It would not be consistent with the
principles which underlie AMOs if access was wholly
restricted to local anglers. However, in certain areas,
angling clubs' established management policies allow local
anglers to enjoy more favourable terms or greater levels of
access. Such policies, whilst not necessarily appropriate
in every case, would not of themselves present a barrier to
inclusion of a fishery in the terms of an AMO, provided
there was still reasonable access to visiting anglers at
reasonable cost. Each case would require to be considered
on its own merits.
7. AFMCs would be urged to encourage
proprietors to band together to bring collective proposals
for inclusion in the Management Plan and the AMO. The
structure will function all the more smoothly if this
approach is adopted. Bureaucracy, and the time devoted to
meetings and other communication to resolve inconsistencies
at area level will be kept to a minimum. Most important,
the structure will actually achieve far more positive
results if proprietors or angling clubs who share
responsibility for different sections of a distinct piece
of water such as a loch or river system actively
co-ordinate their plans and objectives. This collaboration
will be especially beneficial where it involves the
proprietors of migratory salmonid fisheries and those who
manage fisheries for freshwater species in the same piece
of water. In some cases mutual trust and the close working
relationships this will require may take time to develop,
but they should be seen as an aspiration within the system.
The adoption of a collaborative approach between
proprietors and angling clubs who manage a number of
fisheries in the area may also provide a foundation for the
development of "area permits" as discussed in para 8.9 -
8.12.
8. After the proposals for the AMO have
been assembled, there will be a need for wider public
consultation. A structure must be set in place which will
ensure that the general angling public is informed of:-
a. the existence of the proposals; and
b. how and where copies may be obtained; and
c. how and to whom representations may be made
The system for consultation must be both less expensive
and more effective than the previous system for Protection
Orders. An adequate minimum time must be set for
consultation, and use should be made of the local and
(Scottish) national press, angling publications and the
Internet. Certain organisations, including the governing
bodies for game and coarse angling, should be consulted as
a matter of right.
9. Where an AMO applies, provisions should
be established to ensure that if riparian ownership changes
the incoming proprietor is made aware of the existence and
terms of the AMO. One way to do this may be to create a
requirement to record the existence of an AMO in the
Register of Sasines as a burden on the property.
10. At present, the First Minister's
Consultative Committee exists as the representative body
which, among other things, examines proposals for
Protection Orders and offers recommendations to the First
Minister as to whether they should be accepted. Within our
proposed structure, this role would primarily be devolved
to local level and undertaken by the Area Monitoring Group
(See Appendix 6). However, we believe that a new and more
strategic role may exist for the FMCC. A key part of this
should be to monitor and assess the performance of all the
new management structures in operation. The FMCC is also
well placed to act as the first level of mediation to
resolve disputes within AFMCs, or between AFMCs and
AMGs.
11. In order to promote consistency, we
propose that the First Minister publishes a Code of
Practice for the construction of AMOs. This should be
general enough to cover the majority of common issues which
are likely to emerge; but specific enough to indicate the
factors which should be taken into consideration and the
standards which should be sought. A review mechanism should
be built in so that the Code of Practice can be updated
from time to time to reflect experience and the development
of best practice. We suggest that the FMCC may be an
appropriate body to gather information on best practice and
advise the First Minister on updating the Code of Practice
accordingly.
Access for angling - limitations of the current system
(July 2000 Paper)
3.1 The extent to which access is available to allow
angling is central to fish conservation and fisheries
management. A balance needs to be struck so that fish
prosper, fishery owners and operators achieve a financial
return which is acceptable to them, and anglers enjoy their
sport.
3.2 The main source of control over access to freshwater
fishing currently lies in the system of Protection Orders
(POs) established under the
Freshwater and Salmon Fisheries (Scotland) Act
1976. POs were devised to give proprietors statutory
protection in return for increased and adequate access to
fishing for freshwater species. Several - though arguably
not all - of the POs presently in operation achieve that
goal to a significant degree and have led to a sustained
improvement in the opportunities available to anglers.
3.3 In 1998 the then Secretary of State for Scotland
appointed a Task Force to review the aspects of the 1976
Act concerning Protection Orders. Several AfC member
organisations contributed to that exercise and AfC broadly
supports its recommendations. Whilst the Task Force
recommendations may help current Protection Orders to work
more effectively, the Protection Order model itself is
fundamentally limited in several respects:-
a. A PO provides no explicit requirement for particular
standards of fish conservation or fishery management to be
established or maintained, and no mechanism for gathering
scientific information or monitoring what standards are
being achieved;
b. the most readily available fisheries, such as
commercially stocked trout fisheries, may paradoxically
find it difficult to become eligible for statutory
protection, since access to these fisheries is already at
the maximum sustainable level;
c. whilst POs may increase the extent of access for
angling on particular fisheries, the narrow scope of the
legislation provides no assurance of a significant
improvement in the availability of angling opportunities in
whole
catchment areas;
d. on many waters, proprietors have long allowed anglers
to pursue trout or coarse fish without seeking to charge or
requiring written permission. A PO may increase the amount
of formally permitted angling at the expense of existing
access of this kind, with the result that in reality the PO
reduces the opportunities available for angling in
that water;
e. even where a PO genuinely
improves access for angling, it does not
necessarily
optimise it;
f. the network of waters covered by POs is fragmented
and shows no signs of substantial expansion: even after
over 20 years only a handful of largely unconnected areas
are covered;
g. the application process is costly and time consuming
(both of which discourage applications or delay new POs)
and yet remains almost universally perceived by consumers
as failing to provide for adequate public information and
consultation;
h. lack of flexibility in the terms and coverage of
individual POs prevents "growth by accretion", effectively
institutionalising the piecemeal nature of their coverage
in each locality and creating little or no incentive for
angling interests and proprietors to work together to
manage the quality and extent of fishery provision in the
area as a whole;
i. there is no statutory requirement to monitor the
operation of individual POs, and no swift, simple and
effective means of addressing problems where proposals for
access are not implemented;
j. neither the legislation nor the terms of individual
POs provides any minimum standards regarding the
accessibility, either in location or opening times, of
outlets for permits;
k. the system provides no assurance of access to fish
for species other than those (generally only Brown Trout)
specified in the PO;
l. ambiguities remain concerning whether a PO can apply
in so-called "public" waters.
3.4 These are real and substantial problems which must
be overcome. At present the PO system is the only available
mechanism for regulating access to angling for freshwater
species, but it neither fulfils the task it was designed
for nor addresses the vital issues concerned with
encouraging good fisheries management.