Open Letter to Members of the Scottish Parliament

On the

Consultation Draft Provisions for a Wild Fisheries (Scotland) Bill

Dear Member of the Scottish Parliament,

I am extremely concerned that the following proposal, for a change in Scots law as specified in Chapter 2 of the Consultation Draft Provisions for a Wild Fisheries (Scotland) Bill, will, if approved, severely restrict the freedoms of Scottish anglers.

Ref: https://consult.scotland.gov.uk/wild-fisheries-reform-team/draft-wild-fisheries-strategy/supporting_documents/Wild%20Fisheries%20Reform%20%20Consultation%20document%20%20%208%20February%202016.pdf  

Chapter 2

SPECIFIC CONSERVATION MEASURES

Entitlement to fish

33 Fishing without legal right or permission    

         (1) A person commits an offence if, without having legal right or permission, the person fishes for, takes or kills –

              (a) an Atlantic salmon or sea trout in:

(i)   any inland waters, or

(ii)  any part of the sea within 1.5 kilometres of mean low water springs, or

               (b) any other species of freshwater fish in any inland waters other than those parts of a river or loch that are tidal.

         (2) For the purposes of subsection (1), "permission"� means the express written permission of a person having legal right to fish for the species of fish being fished for, taken or killed in the waters in question.

         (3) A person who commits an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

         (4) This section does not apply to the Lower Esk.

I would urge you to consider a revision of clause 1 (b) in particular.

The effect of this proposed change in the law would be to deny trout and coarse anglers access to large parts of the country, where they may be unable to obtain a written permit, for example from an unidentifiable, uncooperative, inaccessible or absentee land owner. The proposed bill would impose no obligation on landowners to allow access to their lochs and streams, or to issue written permission to anglers to fish in them. Nor is there any proposal to regulate the price of such permission, if and where a landowner might agree to grant it. Those fishing without such written permission would be liable to criminal prosecution and fines of up to £1000, with the presumed possibility of imprisonment for inability to pay. Law abiding anglers, of whatever age (even a child with a minnow net and jar), who were unable to obtain the necessary written permission, for example from an unknown or obstructive land owner, or who were unable to afford an unreasonably highly priced permit, would, therefore, be denied access to the river, loch, burn or pond he or she wished to fish - access which is currently enjoyed by thousands of pleasure anglers all over the country fishing for trout and coarse fish in a wide variety of ponds, burns, canals, rivers and lochs, often with the specific verbal agreement of the owner of the fishing rights, or simply by long accepted custom and practice. It should be noted here that, under the terms of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003, fishing without permission for trout in lochs where the fishing rights are owned by one person, which surely must include the majority of trout lochs in Scotland, is currently prohibited, although that permission need not be written. It should also be noted that the owners of such loch fishing rights are not legally obliged, currently, to allow anglers access to it. Written permission for trout fishing is currently required by law only in areas covered by Protection Orders, which, crucially, also impose a legal obligation on landowners to allow angling access in those areas.

With that exception of waters covered by Protection Orders, a person fishing for trout or coarse fish without written permission (but perhaps with verbal permission, by local custom or even without a land owner's agreement), provided he or she does no harm to the fish, or damage to the surrounding countryside, and does not interfere with other land uses, does not currently commit a criminal offence. This would include, for example, the child fishing for sticklebacks or perch in the local pond, or the trout fisherman casting a fly to wild trout in a highland burn. To introduce a criminal sanction against those engaged in such innocent, indeed commendable, recreations would be a very retrograde, socially undesirable action, one which runs counter to progressive reform of an antiquated system of Scottish land ownership and access. This proposed change in the law (clause 1 (b) above) would give owners of Scottish land the right to exclude Scottish anglers at will from large areas of our land - well, their land, not ours - with the full weight of Scots criminal law behind them. Even where land owners have been, until now, happy to allow anglers access to their lochs, rivers, burns and ponds, either generally or with specific verbal permission, the added task of providing written permission is likely to be a disincentive to allow access. As a result, fishing which is currently accessible would become inaccessible.

At a time when the right of access of other users of the countryside - ramblers, hillwalkers, canoeists, cyclists, bird watchers etc. - has been enshrined in recent Scottish Land Reform legislation, surely such a retrograde, discriminatory law restricting access for anglers cannot be right. I wonder how hill walkers would react if told that they required written permission from the local Laird before walking up a hill!

There is a certain irony in the fact that anglers' access to Scottish rivers and lochs has never been more limited, having been increasingly restricted in the past few decades by the very governments we might have expected to stand up for and improve their right of access, i.e. Scottish Labour and the Scottish National Party. While the right of walkers, canoeists and others to access our land and water has been reinforced by the Land Reform Act, that same act, together with amendments to the Salmon and Freshwater Fisheries Act, has expressly excluded anglers from those privileges, steadily eroding anglers' rights to access our rivers and lochs.

My hope is that a forward thinking Scottish government should aspire to open up our countryside for the benefit of all, so that all Scots, and visitors who come to enjoy our uniquely beautiful country, might be permitted, indeed encouraged, to pursue their own particular leisure activities, be it hill walking, bird watching, canoeing or fishing, with a minimum of restriction and regulation. There are few healthier, more socially beneficial or more environmentally sound activities than angling. Anglers are generally among the most committed custodians of our environment. Angling clubs and associations contribute greatly to the conservation and improvement of the waters they fish. There is a small minority who abuse the privilege of access to our wild fishing waters, and countryside in general, for example by committing criminal offences, such as littering or damaging the countryside. Current existing laws should be enforced vigorously to deter such conduct. The overwhelming majority of responsible, law-abiding anglers should be supported, and new entrants to the sport encouraged by the removal of barriers such as the cost or difficulty of obtaining permission. Our access to our lochs and rivers should be widened, not further limited, as proposed in the draft bill. Many of us dream of a day when Scottish fishing rights might be owned by us all, and managed for our benefit by an agency of government. The current proposals do nothing to further that dream. Scotland has some of the best wild trout fishing in the world. Our wild lochs and rivers represent a unique recreational resource which should be accessible to all. That resource has the potential to bring much needed income to rural areas. For that potential to be realised, wild fishing does not need to be developed or policed or taxed. It needs to be made more accessible.

Chapter 2 of the draft proposals is entitled "SPECIFIC CONSERVATION MEASURES"�. While clause 1 (a) of the above proposals reflects the status quo in regard to criminal sanctions against the illegal killing of salmon and sea trout and might be left intact without any strong opposition, clause 1 (b) represents a huge change which will, as explained above, have a dramatically adverse impact on anglers' access to our lochs and rivers, while doing nothing to promote conservation.

1 (b) relates to recreational fishing for wild trout, grayling and species of coarse fish such as perch, roach, pike, etc. It should be noted that coarse anglers, as a rule, return all fish they catch to the water. The question of conservation, therefore, does not really apply in that case. In the case of those fishing for wild trout, in lochs and rivers, the main method used is by fly rod and line. Increasingly, trout fishermen practise catch and release, the vast majority of trout now being returned to the loch or river, with only a few taken for the table where this is sustainable and has no adverse effect on fish stocks.

Clause 1 (b) proposes that:

A person commits an offence if, without having legal right or permission, the person fishes for, takes or kills any species of freshwater fish (other than salmon and sea trout) in any inland waters other than those parts of a river or loch that are tidal

and that, for the purposes of subsection (1), "permission" means the express written permission of a person having legal right to fish for the species of fish being fished for, taken or killed in the waters in question.

This clause 1 (b), in my opinion, should be removed entirely.

If it is to be retained, I would suggest the following revision.  To maintain the notion of conservation, I would suggest that Chapter 2 might be worded as follows (with revised wording highlighted in italics):

Chapter 2

SPECIFIC CONSERVATION MEASURES

Entitlement to fish

33 Fishing without legal right or permission    

         (1)  (a) A person commits an offence if, without having legal right or permission, the person fishes for, takes or kills an Atlantic salmon or sea trout in:

(i)   any inland waters, or

(ii)  any part of the sea within 1.5 kilometres of mean low water springs, or

                (b) A person commits an offence if, without having legal right or permission, the person takes or kills any other species of freshwater fish in any inland waters other than those parts of a river or loch that are tidal.

         (2) For the purposes of subsection (1), "permission"� means the express written permission of a person having legal right to fish for the species of fish being fished for, taken or killed in the waters in question.

         (3) A person who commits an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

         (4) This section does not apply to the Lower Esk.

As stated, I believe that clause 1 (b) should be removed completely. Failing that, the above suggested revision (removing the words "fishes for" in relation to non-migratory fish) offers an acceptable compromise, in that, while not giving anglers a legal right of access (the civil law would still apply) to wild freshwater fishing, it removes the threat of criminal prosecution for fishing without written permission (see note 1 below) and the ability of land owners to employ a new and undesirable criminal law to exclude anglers from their land. At the same time the revised clause gives trout and coarse fish the protection of the criminal law, which would prohibit killing them, thus satisfying the objective of conservation. Wild trout could then only be killed with written permission and the numbers killed, where sustainable, could be strictly regulated. Coarse fish would, of course, not be killed at all.

Note 1

The application of criminal sanctions against anglers fishing without written permission for non-migratory fish in Scotland might be envisaged, in my opinion, only under the following circumstances:

1. Where all land owners and others owning freshwater fishing rights in Scotland were legally obliged to permit access for anglers to all wild fishing waters.

2. Where fishing permits to access wild freshwater fishing over a reasonably wide geographical area were readily available to all, at reasonable cost, from public places such as post offices and tourist information centres.

An example of how this might be organised might be found in the Assynt Angling Club. See:

http://www.assyntangling.co.uk/  

I urge you to call for the revision of Chapter 2 of the Provisions for a Wild Fisheries (Scotland) Bill as currently drafted.

Yours sincerely,

John Gray

Grantown on Spey

May, 2016

www.trout-salmon-fishing.com