The land of Scotland and the common good: report

Section 31 - Freshwater Fish

1 Scotland has over a dozen native species of freshwater fish. These include Atlantic Salmon, Brown Trout, Arctic Charr, Powan, Vendance, Lamprey and European Eel. There is also a slightly larger number of non-native fish species that now occur in Scotland's inland waters, as a result of introductions during the 19th and 20th centuries.

2 The wild fish in Scotland's freshwater environment are important for a wide range of environmental, social and economic reasons. In Scots law, these fish belong to no-one until they are rendered into possession by being caught. They are a valuable national public asset. The debate about their management has, however, long been dominated by issues over salmon fishing and the interests of the owners of riparian salmon fishing rights. ^[1]

3 The Review Group consider that it is also striking how little progress has been made in improving the management of Scotland's freshwater fish populations. This is despite the fact that " For over a century, there have been a number of committees and commissions which have produced reports recommending ways in which the structure of fishery management in Scotland could be improved." ^[2] In addition, a recent review of six of the main reports over the last forty years concluded that " In spite of the fact that all the reports and reviews produced so far have included the same broad principles, none of them has ever been implemented either in part or in full." ^[3]

4 During the Group's inquiry, in February 2013, the Scottish Government announced that it would carry out another review " to modernise the management structure for salmon and freshwater fisheries". ^[4] In January 2014, the First Minister followed this up by announcing the establishment of "an independent review of the management of wild fisheries in Scotland". He also noted that the " management of wild fisheries is a complex and emotive area which has been the subject of multiple reports and investigations over the last 50 years, but, until recently, has seen little meaningful change". ^[5]

5 The results of the Government's Wild Fisheries Review will be published after this Report. However, the Review Group considers from its own investigations, that there can be little doubt about the need for significant changes to modernise the arrangements governing the management of Scotland's wild freshwater fish populations.

31.1 Salmon

6 While wild fish in Scotland have always belonged to no-one, it had been established in Scots property law by the 18th century that no-one could fish in freshwater without the land owner's permission. The right to take wild fish had therefore, with the exception of the ancient Crown right to salmon fishings, become an ancillary part of the ownership of land.

7 Since medieval times, there has always been the presumption in Scots law that the right to fish for salmon in freshwater and coastal waters belongs to the Crown unless it has been granted out. This Crown right was established because of the importance of salmon net fishing in Scotland as a source of revenue at that time. The Crown in England never had an equivalent right.

8 One consequence of the Crown property right to salmon fishing, was that salmon fishing rights became established in Scots law as a distinct property right, capable of being owned by someone separately from the ownership of the land over which the right was held. This is still the case. Salmon legislation also still includes sea trout, but not brown trout of which sea trout are the migratory form. ^[6]

9 During the 19th century, when rod fishing for salmon in Scotland's rivers and lochs developed as a valuable sporting activity for land owners, the government department in Whitehall that became responsible for administering the right of the Crown in Scotland, actively pursued the Crown's right to salmon fishings. ^[7] Land owners fishing for salmon were challenged to establish their right directly or indirectly from a Crown grant, otherwise they had to lease or buy the right from the Crown. The Crown also continued to hold many coastal netting stations from which it still derived revenue.

10 The growing importance to land owners of salmon fishing for sport in the 19th century, resulted in issues between riparian owners along rivers and also increased concerns over poaching. As a result, legislation was passed in the 1860s which created District Salmon Fishery Boards ( DSFBs). These statutory Boards consisted of representatives of the riparian land owners along a river and empowered them to protect their common interest in salmon fishing over the whole river.

11 There have only been limited changes to DSFBs over the last 150 years and they remain the statutory structure responsible for managing freshwater salmon fishing outside government. Scotland is divided into 54 statutory salmon districts for the purposes of DSFBs and there are currently 41 constituted DSFBs. ^[8] ( Fig. 37) The recent trend has been for some Boards to merge to cover larger areas, a process that can be implemented by the Scottish Parliament passing a Statutory Instrument. ^[9] Salmon fishings are exempt from local authority sporting rates, with a levy being paid by each owner of salmon fishing rights to provide core funding to DSFBs.

12 In the last 50 years, there have been changes to try to improve the governance of DSFBs. Since 1986, the Boards have been required to include representatives of salmon anglers and salmon netsmen in the district. ^[10] A further revision was made to the constitution of Boards in 1999 to allow for wider representation including public bodies like SEPA and SNH, and others such as local angling clubs. However, elected representatives of the riparian owners still provide the core of the membership of a Board. ^[11] In 2013, the Scottish Parliament passed further legislation to improve the governance of these statutory Boards by obliging them to act in ways more consistent with public bodies.12 The new measures include, for example, basic steps such as publishing an annual report and accounts, having a register of members' interests and introducing a complaints procedure.

13 A major change in the last fifty years, has been the decline in the catch of salmon in Scotland to historic lows. An important factor has been the impact of sea fishing in the Atlantic on the numbers of salmon returning to Scottish waters. However, these harvests have been greatly reduced by the North Atlantic Salmon Conservation Organisation, an international organisation established by an inter-governmental Convention in 1984. ^[13] There has also been a substantial reduction in the salmon caught by net fishing around Scotland's coast, which, in 2012, was down to around 5% of the catch in 1952. ^[14] These reductions in marine and coastal fishing have meant more salmon surviving to enter Scotland's rivers and the overall numbers caught by rod and line have been maintained and increased slightly over the period.

14 In 2012, the rod fishing catch of 86,013 salmon accounted for 84% of Scotland's total salmon catch, compared to 11% in 1952. ^[15] However, 63,331 or 74% of that rod catch was voluntarily released back into the river. 'Catch and release' was 8% of the catch in 1994 and has increase to 74% as part of attempts to conserve Scotland's low stocks of wild salmon. ^[16] The Review Group would have thought that reducing the catch was a better conservation measure than catching the fish to release them, particularly as fishing records are not a good indicator of fish stocks. The Group notes, however, the economic significance to riparian proprietors of catch levels in their fishing records, both for annual income and the high capital value attributed in property sales to each salmon that is caught on average. The Group also noted that there are conspicuous issues in the debates about conserving Scotland's native stock of wild salmon, between the riparian salmon fishers and both the netsmen and marine fishfarming interests.

15 Central to Scotland's current salmon conservation measures has been the 1992 European Habitats Directive, which was enacted into Scots law in 1994. The Directive established Atlantic Salmon as a European protected species and amongst other measures, Scotland now has 17 rivers designated as Special Conservation Areas where salmon is a qualifying species. ^[17]

16 A development since the 1980s related to DSFBs, has been the establishment of local groups generally known as fishery trusts. In 2005, Rivers and Fisheries Trusts for Scotland ( RAFTs) was established as an independent freshwater conservation charity to represent the network of fisheries trusts. RAFTS's core objective is the " Conservation and enhancement of native freshwater fish and their environments in Scotland". The 26 trusts currently involved are all charities and generally have close working relationships with their local DSFB.

31.2 Other Fish Species

17 The right to fish for other species of wild freshwater fish other than salmon always goes with land ownership, as this right of use cannot be separated from the ownership of the land like salmon fishing rights. However, if the ownership of the right to salmon fishing has been separated from the ownership of the land, the right to fish for other species goes with it, as an implied part of salmon fishing rights in Scots law.

18 An increasing number of Scotland's other native fish species are now protected by statutory conservation measures, for example, Powan, Vendace and Sturgeon under the Wildlife and Countryside Act 1981 (as amended) and a prohibition on fishing for eels enacted into Scots law in 2009 as a result of European regulations.

19 A significant distinction between the right to fish for salmon and the right to fish for other species not protected by conservation legislation, is that fishing for the other species without the land owner's permission is a civil and not criminal offence. However, this fishing becomes a criminal offence if the area is covered by a statutory Protection Order. Since 1976, riparian owners have been able to apply to the government for a Protection Order to be put in place through a Statutory Instrument over the freshwaters in a catchment or group of catchments. ^[18]

20 These Orders are now granted under Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003, which consolidated all Scotland's previous salmon legislation since the 19th century. The Orders do not involve salmon however, and are sometimes referred to as Trout Protection Orders although they also cover other freshwater fish species. Under the 2003 Act, an Order is approved by Scottish Ministers if it is judged that the proposals submitted would result in " a significant increase in the availability of fishing for freshwater fish in inland waters to which the proposals relate." ^[19] There are currently 14 in force across Scotland conveying powers on riparian owners, including the appointment of Water Wardens. ( Fig. 38)

21 All the current Protection Order areas except one have a Liaison Committee which seeks information from riparian owners and submits reports to Marine Scotland. There appears, however, to have been no overall evaluation of the results of Protection Orders since the Scottish Office carried out a public consultation in the 1990s. ^[20] The Review Group considers that there should be a thorough review of Protection Orders as part of the Scottish Government's current Wild Fisheries Review.

22 Two other important components of freshwater fishing in terms of accessibility to anglers are coarse fishing and stillwater fisheries. Coarse fishing mainly involves introduced species in either standing or running waters, with the majority of coarse fisheries being located within the central belt or southern Scotland. Stillwater fisheries or 'put and take fisheries', are mainly stocked with non-native rainbow trout and are concentrated near settlements.

31.3 Modernisation

23 The Review Group considers that there is a need to bring in a modern statutory framework to govern the management of Scotland's wild fish populations. The current partial framework based largely on DSFBs has long been out of date, as reflected in the recommendations of the reports over the last fifty years referred to in paragraph 3 of this Section.

24 The nature and operation of DSFBs reflects the fact that freshwater fisheries have been one of many aspects of Scots law where the Scottish Parliament has inherited arrangements that largely date from the 19th century and proprietorial interests. The context has however changed very substantially. With the introduction of measures such as the EU Habitat and Water Framework Directives into Scots law, freshwater fishing has become conditional on the public interest. While the Scottish Parliament has tackled an important initial component of modernisation, by consolidating Scotland's past salmon and freshwater legislation in the 2003 Act, reforms are now needed.

25 The Scottish Government's recently announced freshwater fisheries review provides an immediate opportunity to develop a modern framework, with the review itself resulting from the difficulty for Scottish Ministers in fulfilling Scotland's European salmon conservation commitments due to the powers still vested in riparian proprietors through DSFBs. The two aims of the Government's review are to:

• "Develop and promote a modern, evidence based management system for wild fisheries fit for purpose in the 21st century and capable of responding to our changing environment.
• To manage, conserve and develop our wild fisheries to maximise the sustainable benefits of Scotland's wild fish resources to the country as a whole and particularly in rural areas." ^[21]

26 The Scottish Government review will be examining many aspects of fisheries management and has the resources to examine matters in considerable detail. The Review Group welcome the Government's review as, even from the limited scope of the Group's investigations for this report, there is a very clear need for a new integrated statutory framework to govern the sustainable management of Scotland's wild freshwater fish.

27 The Group considers that a key part of that framework should be a single body within government that has lead responsibility for the management of Scotland's freshwater fish and fisheries. At present, there is no such body, with different parts of government handling different aspects, for example: Marine Scotland (salmon statistics); SEPA (water and catchment management) and SNH (species conservation). The need for a single national body, with overall responsibly for Scotland's freshwater fish and fisheries, has been a recommendation in many past reports. The Group considers that SNH would seem the natural choice to act as Scotland's freshwater fish and fisheries authority, given its responsibilities for Scotland's wildlife.

28 The Review Group also considers that DSFBs based on property rights have become an historical anomaly as the form of statutory governance at a catchment scale. The Group recognises that some DSFBs work better than others and acknowledges the hard work of some riparian proprietors to try to improve DSFBs. However, the Group considers that after 150 years, DSFBs based on property rights are no longer an appropriate or adequate form of governance and should be abolished. In the contemporary statutory context, following the implementation of the EU Habitat and Water Directives into Scots law, the need is for a new integrated and public interest led approach at a regional or catchment scale, to the management of Scotland's freshwater environment and the wild fish living in it. SEPA has already developed Scotland's first country wide River Basin Management Plan with other public authorities in Scotland, since the introduction of the Water Framework Directive. ^[22] There have also been a number of initiatives to develop Catchment Management Plans for particular rivers, for example, the Dee in Aberdeenshire. ^[23] The Group considers that the management of freshwater fish and fisheries should take place as part of an integrated public interest framework for catchment management.

29 The interests of the owners of fishing rights should clearly, like those of others concerned with fish conservation and other angling interests, be involved in any new approach along with the many other important interests involved with rivers and catchment management. The Group also considers, as discussed in Section 25, that the levy that the owners of salmon fishings currently pay to DSFBs, should still be raised to contribute to the public administration and management of local fisheries. In terms of fishing interests, the Group notes the importance of salmon netting as part of Scotland's cultural heritage and its continuing local community significance in some particular areas. In the Solway, income from the sale of netting licences contributes to Annan Common Good Fund. ^[24] Salmon fishing rights are also part of some other Common Good Funds, for example, in Selkirk, as discussed in Section 14.

30 The Review Group considers that the current system of District Salmon Fishing Boards based on property rights is no longer appropriate or adequate as part of the statutory arrangements governing freshwater fishing and fisheries. The Group recommends that District Salmon Fishing Boards should be abolished as part of putting in place a new improved statutory framework to ensure the sustainable management of Scotland's wild freshwater fish populations in the public interest.

31.4 Crown Salmon Rights

31 One of the distinctive aspects of Scotland's current freshwater fishing arrangements is the continued involvement of the Crown. The medieval presumptive Crown property right in Scots law to all salmon fishing unless previously granted out, still exists as part of Scotland's system of land ownership. The right is administered by the Crown Estate Commissioners ( CEC) as part of the Crown Estate in Scotland as discussed in Section 11.

32 At present, salmon are returning to some rivers or parts of rivers after a very long time due to reductions in pollution and due to public and private investment in removing barriers to salmon movement up rivers. The Crown's presumptive right means that the CEC can then claim the salmon fishing rights on behalf of the Crown, if there has been no historical grant of them, and exploit any opportunity to raise money for the Treasury. The Review Group considers this to be an archaic and counter-productive anomaly. The Group's view is that the Crown's right should be abolished or at least not exercised further by the CEC until the right can be abolished, recognising that the CEC's management of the Crown Estate in Scotland is reserved. This reform should also include the Crown right to salmon in coastal waters, where the right can be considered to have already been superseded by fishing legislation.

Crown Salmon Fishings

33 The Crown in Scotland also still holds coastal salmon netting stations and salmon fishings as ancient possessions. These are all managed by the CEC. The netting stations are all un-let due to conservation measures and are therefore of no commercial value to the CEC. The Review Group considers that the rights to these redundant netting stations should be conveyed by the CEC to Scottish Ministers.

34 The locations of the Crown salmon fishing beats held as ancient possessions are shown in Fig. 39. The Group understands this to be the first published map of their locations and the map shows the extent to which they are concentrated in and around the Central Belt. The CEC lets these fishings. There are currently 152 lets, with 77 to individuals, 57 to local angling associations, 5 to DSFBs and 13 vacant. ^[25] These salmon fishings are public assets held by the Crown in Scotland and the Review Group considers that their ownership should be conveyed to Scottish Ministers. The Group also considers that an aim of their management should, as a matter of public policy, be to let as many of them as possible to suitable local angling associations and appropriate local community bodies.

35 The Review Group recommends that the presumptive Crown property right in Scotland to salmon fishings should be abolished or at least not exercised by the Crown Estate Commissioners until it can be. The Group also recommends that the coastal and freshwater salmon fishings held as ancient possessions by the Crown should be conveyed by the Crown Estate Commissioners to Scottish Ministers.

31.5 Separate Salmon Fishing Rights

36 As noted earlier, the current position in Scots law is that the right of salmon fishing can be owned separately from the land over which the right exists. This distinctive feature of salmon fishing rights can be seen as an historic consequence of the Crown's separate property right in Scots law to salmon fishing.

37 The Review Group considers this capacity for salmon fishing rights to be bought and sold separately from the land involved, is a legacy that appears to have no apparent environmental logic and is potentially unhelpful to securing sustainable fisheries management. The Group's view is that legislation should end the ability to create new separate tenements or ownerships of salmon fishing rights. Existing separate ownerships of salmon fishings would continue.

38 The Group would also consider setting a limit to the maximum duration of any new separate leases of salmon fishings (for example, 20 years), so that any such arrangements better reflect the contemporary public interest and statutory context than much longer leases. Under the Long Leases (Scotland) Act 2012, the maximum duration of a lease in Scots law has been reduced to the still substantial period of 175 years. ^[26]

39 The Review Group recommends that the capacity in Scots law to create new ownerships of salmon fishing rights separate from the land over which the rights exist, should be ended.

31.6 Public Access to Fishing

40 Scotland's wild freshwater fish are a national resource that should be managed in the public interest. The Review Group considers that, as part of recognising the conservation constraints on fishing for some native species, public policy should aim to increase opportunities for members of the public to fish for wild fish as part of wider fishing opportunities, such as 'put and take' still fisheries.

41 The Review Group recognises that the imperative with salmon fishing is to reduce the catch as part of conserving Scotland's native salmon stocks. A recent initial investigation of the ownership of salmon fishings by the Scottish Government indicates that around 15% is owned by the public sector. The main component of this is the Crown salmon fishings described above. Scottish Ministers also own salmon fishings as part of the National Forest Estate and the Scottish Government's crofting estates. The Review Group considers that, to the extent that salmon fishing is to be undertaken on public sector land, this should be made available through licensing arrangements to local angling clubs, community bodies or other similar arrangements, rather than let to private individuals or commercial bodies. The Group considers that the Scottish Government should, as part of its existing freshwater fisheries review, develop a clear account of the ownership of Scotland's salmon fishing rights covering both the 15% in the public sector and the 85% owned by others.

42 The Review Group considers that the Scottish Government should also investigate the public availability of opportunities to fish for wild brown trout. A part of this should be the review of the Protection Orders proposed above. The Group's view is that there should be an overall national framework to ensure the availability of public opportunities for fishing in Scotland's rivers and lochs at fair prices.

43 The Review Group recommends that the Scottish Government develops a clear policy framework and associated arrangements to deliver improved opportunities for members of the public to fish for wild freshwater fish in Scotland.