Download Wild Fisheries Review – SFCA Policy Agenda (draft)

WILD FISHERIES REVIEW – SFCA POLICY AGENDA (DRAFT)
1.
General observations
The Review’s title refers to the management of wild fisheries but it is not clear what
constitutes a “wild” fishery in this context. We believe that the scope of the Review should
encompass all freshwater fisheries in standing and running water (including stocked club or
syndicate waters, commercial fisheries, and the tidal reaches of rivers) whilst accepting that
different outcomes and solutions may be appropriate for some categories of fishery.
The Remit and Terms of Reference repeatedly refer to “the management system”. We are
concerned that the Review should not dwell purely on management structures and
institutions, but must also consider what management practices are appropriate, or not, in
delivering the outcomes that need to be achieved.
One aim of the Review is to explore how best “to preserve, protect and develop Scotland’s
fisheries in a sustainable manner”. If that issue is to be addressed (and we believe it must) it
will be essential for the Review to consider not only management systems but the underlying
body of legislation on the taking or protection of fish and the regulation of access for angling.
The Terms of Reference refer to seeking a “strategic and joined up approach” and an “all
fisheries species focus”. The Review must fully consider the extent to which the current
privileged legal status of migratory salmonids and the proprietors of salmon fisheries is
consistent with the achievement of these aims.
Coarse angling is a “catch-&-release” sport in which fish are an asset to be preserved,
whereas game angling is still in large measure a “catch-&-keep” activity whereby fish stocks
are a resource to be harvested. This distinction is important - its implications must be taken
into account when considering sustainability and the regulation of access.
Wild coarse fish in Scotland require little “management”. Unless angling pressure is extreme
or other human activities intervene, established populations can normally be expected to
sustain themselves. Some scientific data collection to quantify baseline populations and
periodically monitor changes would be desirable, but beyond that there is no need for
management activities other than the implementation and enforcement of a few simple
measures to protect stocks and facilitate responsible access for angling. We elaborate on
these below.
2.
Protecting coarse fish stocks
Scotland’s coarse fish populations are the resource on which our sport depends. They face
five significant threats:
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systematic pot hunting for personal consumption or with a view to selling
casual killing on incidental capture by individual game anglers
organised culling by game fishery proprietors
depletion as a result of engineering works involving partial / complete drainage
predation by piscivorous birds and mammals
The law currently affords little or no protection in relation to any of these problems. We
propose a number of items of new or modified legislation to address them:
a) Catch and release is central to the practice of coarse angling. Our preferred option
would be that this should be underpinned by new legislation making it an offence to kill
any coarse fish captured on rod and line.
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If that approach does not find favour we nevertheless propose that the Scottish
Government should take other steps to encourage the adoption of catch and release:
i. neither grant nor renew any Protection Order unless permit conditions explicitly
require that all coarse fish captured are released alive;
ii. neither grant nor renew any lease of fishing rights owned by the Crown unless
the person or club taking on the lease commits to introduce and enforce permit
conditions requiring that all coarse fish captured are released alive;
iii. take powers to prescribe that Scottish public bodies which own fisheries
(whether they manage them directly or lease them to others) should ensure that
permit conditions require all coarse fish captured to be released alive.
b) At present it is virtually impossible for proprietors who make catch and release a
permit condition to enforce this, and in the absence of clear legislative underpinning
the Police have been powerless to act on reports of fish removals in such cases.
We propose that offences relating to the unauthorised possession of coarse fish should
be introduced, in terms analogous to those in Section 9 of the Salmon and Freshwater
Fisheries (Consolidation) (Scotland) Act 2003 regarding the illegal possession of
salmon or trout. These should specify that a person found in possession of any coarse
fish without being able to show lawful right or written consent to remove them would
be guilty of a criminal offence.
c) Section 2(4) of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act
2003 states that: “In any inland waters an owner or occupier may fish for or take
freshwater fish, other than trout, by net or trap”.
We propose that Section 2(4) be removed and replaced by provisions which make it an
offence to capture any species of freshwater fish other than by rod and line, with very
limited exceptions specifying circumstances in which the Scottish Government would be
empowered to issue licences for other methods to be used.
d) Section 45(1) of the Salmon & Freshwater Fisheries (Consolidation) Act 2003 gives
DSFBs the general power to “... do such acts, execute such works and incur such
expenses as may appear to them expedient ...” with the aim of protecting or improving
the migratory fisheries within their district or increasing the population of salmon.
Boards have no statutory obligation to consider the potential impact of their actions on
the populations of non-migratory species in the waters concerned, or the opportunities
for anglers to pursue those species.
We propose that Section 45(1) should be amended so that Boards are obliged, when
developing and implementing management activities, to have regard to the interests of
non-migratory species and to consult non-migratory proprietors and representatives of
the anglers who pursue them. Furthermore, where a Board chooses to implement
measures for salmon conservation which are detrimental to the fishery for nonmigratory species, the Board should be liable to compensate the proprietors or tenants
of the non-migratory fishery for any consequent losses.
e) We appreciate that the maintenance of facilities such as reservoirs, canals and hydroelectric systems periodically entails lowering water levels, or sometimes draining them
altogether. But in almost all cases there will be steps that could be taken to minimise
the impact on fish stocks – for instance by scheduling works to avoid the times of year
when the risks are greatest or arranging fish relocations in advance. However the
owners or operators of such facilities are presently under no statutory obligation to
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consider the impact of engineering works on non-migratory fish populations, or to take
action to ameliorate that impact.
We propose that legislation should be introduced to oblige the owner or operator of any
man-made or modified water body who intends to carry out engineering works which
involve draining or substantially altering the water level to have regard to the potential
impact on the populations of all fish species present; and specifically to:
i. notify interested parties in advance;
ii. take such steps as are reasonably practicable to minimise fish losses or
mortalities due to the engineering works in question;
iii. replace, or bear the cost of replacing, any avoidable fish losses or mortalities
attributable to the engineering works in question.
f) Predation by birds, especially cormorants, can cause severe damage to populations of
smaller wild coarse fish species like roach, and to juveniles of larger species. The
current licensing regime for the control of avian predators in Scotland is so restrictive
as to be worthless. Similar problems exist elsewhere in GB and a significant initiative
(https://www.gov.uk/government/publications/fish-eating-birds-management-policyreview) to assist fishery managers to make best use of non-lethal controls and support
them in obtaining licences to cull where these prove ineffective has recently been
announced by DEFRA in England & Wales
We propose that the Scottish Government should establish an initiative for the
management of predation by piscivorous birds on the same lines as that being
developed by DEFRA south of the border.
g) Those who run stocked coarse fisheries also need to be able to safeguard their assets.
Otter predation is responsible for a high and growing mortality rate among expensive
stock fish, especially carp. The current high level of statutory protection enjoyed by
otters prevents clubs and proprietors from taking any action to manage otter predation
other than by fencing off their fisheries, which is beyond the financial means of most.
We propose that the Scottish Government should make funds available to enable
fisheries to instal effective fencing to prevent otter predation.
3.
Access for coarse angling
Most of Scotland’s wild coarse fish are to be found in fisheries that also contain salmonids. In
the main, coarse fish are not valued by the proprietors of these fisheries, and the availability
of access to pursue them ranges from outright refusal to completely free. In many of the
mixed fisheries where coarse angling is allowed, it is nevertheless constrained by rules on
methods, seasons, and/or “close days” designed to regulate angling for salmonids. Such
conditions unnecessarily restrict coarse angling opportunities, and at worst they render
coarse angling almost impossible in practice by preventing the use of legitimate techniques.
We believe that responsible anglers should be able to obtain reasonable access to fish for
coarse species where they are present. We appreciate that proprietors need to be able to
deter or prevent unauthorised fishing and safeguard their property from the vandalism and
drunken aggression that is increasingly evident among a small number of hooligans with
rods. But we do not consider it reasonable that bona fide anglers should be denied their sport
because of the actions of this deviant minority, or indeed just because riparian proprietors or
migratory fishery owners would prefer them to be elsewhere.
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Protection Orders were introduced by the 1976 Act (now in S48 of the 2003 Act) with the
intention, inter alia, of addressing this issue by affording proprietors the protection of criminal
law against unauthorised fishing in return for increasing the availability of fishing for all nonmigratory freshwater species at reasonable cost.
The Protection Order system has never shown itself able to reconcile conflicts between
the interests of fisheries for migratory salmonids, trout, and coarse species in the same body
of water. In practice, access for coarse fishing has not changed significantly in most PO areas.
In some it has actually been reduced, and in most it remains hampered by the kind of permit
restrictions described earlier.
As part of the work flowing from the Strategic Framework, colleagues from SANA with long
experience of participating in the First Minister’s Consultative Committee on Protection Orders
recently produced a detailed critique of the system as it currently operates. We concur with
almost all of their analysis, and agree that most of their proposals for reform would represent
significant improvements. However, while we agree that the Protection Order system could be
made better, we are not convinced that even with modifications it is fundamentally capable of
serving as the vehicle for promoting access or protecting proprietors against unauthorised
fishing in the 21st century. We would prefer to see S48 of the 2003 Act repealed.
In order to give proprietors confidence to allow responsible anglers on their property and
facilitate robust action against those who behave unacceptably, there needs to be greater
clarity to the law in Scotland on fishing without permission. At the moment the position is
complex and confusing. Fishing for non-migratory freshwater species without legal right or
written consent is:
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a criminal offence in a “proper stank or loch”;
a criminal offence in rivers flowing into the Solway, except the Annan and part of the
Sark;
a criminal offence on waters specifically covered by a Protection Order;
a civil offence in waters outwith a Protection Order area, or in parts of a Protection Order
area which have been excluded (information on which is not well publicised);
not an offence at all in tidal and “public” waters.
The simple answer would be to make fishing without consent a criminal offence in all inland
waters in Scotland. In England & Wales, and most countries elsewhere in the world, anglers
have for many years accepted similar legislative provisions. We propose – not without
hesitation – that this should apply in Scotland.
However, that change must not take place in isolation, and in particular proprietors should
not be given the protection of the criminal law without conditions regarding access. In the
absence of something to replace the leverage which S48 of the 2003 Act creates by linking
protection to increased access it is inevitable that the availability of fishing for responsible
anglers would be substantially reduced. It is imperative that a complementary mechanism
should be established to maximise responsible access for angling, taking proper account of
the need for protection of all fish populations and the sustainability of exploitation of those
game species pursued on a catch-&-take basis.
We believe that the best way to achieve this lies in the introduction of an appropriate
statutory Code of Practice covering both access and management, and revision of the law on
fishing for freshwater species without consent such that only those proprietors who observe
its provisions are able to rely on the criminal law to pursue unauthorised fishing.
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4.
Management systems and structures
As noted earlier, we believe the need for management activities in respect of wild coarse fish
is confined to a modicum of scientific data collection along with the introduction and effective
enforcement of new statutory measures to protect stocks and regulate responsible access.
For us, the key test of any proposed new management system that emerges from the Review
is the extent to which we can be confident that it will consistently achieve these aims.
Legislation
Plainly the various legislative changes we propose can only be delivered by the Scottish
Government. We urge officials and Ministers to take action accordingly.
Scientific data collection
The data collection dimension does not seem to us to be problematic, if there is the financial
will to invest in it. As long as the process of population sampling follows appropriate protocols
that minimise fatalities among the fish, and is not exploited to conduct covert culling, we
have no strong views as to who should carry out this task. The existing network of Fisheries
Trusts has national coverage and the expertise to deliver, and this resource could if necessary
be supplemented by competent people from academic institutions or private consultancies.
Enforcement
It is imperative that fisheries are policed to enforce the relevant legislation and ensure
reasonable behaviour by users and proprietors. The provision of that policing will be a core
role of whatever management structures emerge from the Review, and their effectiveness in
delivering it will be a key test of their success. In the past, four main approaches have been
identified, each with attractions and drawbacks:
a) Build on the existing network of Salmon Fisheries Boards, extending their role to
encompass responsibility for other freshwater species.
Boards are pre-existing bodies with established income streams and well-developed
bailiffing arrangements that could in theory quite easily be adapted to cover other species.
However, many individual proprietors and in some cases whole Boards have a track record
of behaviour towards coarse fish and coarse anglers that ranges from indifference to
outright hostility, and there is no reason to expect that their views or priorities would shift
with any legislative extension of their powers, especially as the balance of income would
remain heavily weighted towards migratory fisheries. Nor would coverage necessarily be
universal as Boards have never had an interest in standing water bodies except those
through which migratory species run, and do not presently exist at all in two key
catchments (Lomond and Clyde).
b) Create new catchment-level management bodies with responsibility for all species other
than migratory salmonids.
This has the attraction of avoiding internal conflicts of priority between management for
migratory and other species, and could in theory provide a clearer and stronger focus on
delivering what is needed for freshwater fish. However it could be prone to internal
differences between coarse and trout angling interests and a further mechanism would
probably also have to be established to reconcile the priorities of migratory and other
species management in the same water bodies. As a result it would be a costly and
bureaucratic option with uncertain funding and potential difficulty finding enough able
people to become involved.
c) Invest responsibility for freshwater fisheries management in a Department of the Scottish
Government or a Scottish statutory agency such as SEPA or SNH.
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In effect this would entail investing a statutory body with a fisheries role analogous to that
of the EA south of the border. It has the benefit of putting decisions in the hands of
ostensibly disinterested parties, and as a national structure could foster consistency.
However it risks alienating anglers and proprietors and so losing the benefits of their
experience and expertise; and could foster a “somebody else’s problem” attitude on the
ground. One might also ask whether any of the likely candidate bodies presently has
either the management expertise or the resources to deliver such a role.
d) Leave matters in the hands of individual fishery proprietors as at present.
With the right legislative changes underpinned by a suitable statutory Code of Practice one
might hope that more proprietors could be induced to manage positively. However the
fragmentation of riparian ownership and leases of fishing rights – often even on the same
water body – means this model would not necessarily yield co-ordinated action in larger
fisheries, never mind on a catchment or national level.
In our view none of these models offers a satisfactory full solution. We are attracted to the
concept of regional or catchment-based “all species” management bodies that would subsume
the functions of existing Salmon Boards but with a substantially modified remit and wider
participation. However while that kind of model could among other things provide robust
policing of angling, it is not likely to be an effective vehicle for regulating the activities of
proprietors. Higher level oversight is needed for that, which implies a hybrid structure also
involving some form of statutory fisheries agency. SFCA would be glad to work with other
stakeholders to flesh out the parameters of a model along these lines.
Funding
Whatever shape is chosen for future management systems it appears clear that a significant
injection of additional funding will be required to collect relevant population data and achieve
the level of policing necessary to afford meaningful protection.
The “rates” currently paid by salmon fishery proprietors to DSFBs fulfil that function but there
is no consistent parallel mechanism for raising money for the management of non-migratory
fisheries. Where fisheries are run commercially or by clubs there is a tacit understanding that
membership fees or permit charges fund the “management” of that piece of water. However
this is an opaque and inconsistent process that fosters a parochial approach rather than coordinated management of fisheries in the same water body or catchment. And from a coarse
angling perspective it is often the case that the money raised from permits in mixed fisheries
goes towards measures which are purely for the benefit of salmonids, or at worst supports
activities that are actively detrimental to the coarse fish populations.
One can reasonably argue that the habitats and fish populations on which wild fisheries
depend are a common good, and therefore that activities to sustain and protect them ought
to be funded in large measure from the public purse. Equally we have to accept that the
proprietors and users of those fisheries benefit directly from such activities, so it is also
reasonable to expect them to contribute a substantial proportion of the cost.
The matter of what that contribution should be and how it should be collected is complex and
contentious, deserving an entire consultation of its own. Various ideas for raising additional
revenue for the management of non-migratory fisheries have been floated in the past,
including taxes (analogous to the DSFB rates) on riparian owners, levies on permit sales, or a
generic levy on freshwater anglers akin to the system of rod licences in England & Wales.
Again, SFCA would welcome the opportunity to work with other stakeholders to explore the
options available for this purpose; but our support for any particular measure would depend
on it delivering demonstrable benefits to coarse angling and coarse fish populations.
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