Wild Fisheries Reform in Scotland

The Way Ahead for Wild Trout Fishing

 

Background

It is worth noting that most trout fishing in Scotland today is done in commercial, put-and-take fisheries, regularly stocked with farm-reared brown and rainbow trout. Such fisheries cannot and should not be governed by the same principles, rules and regulations as wild fishing. They are very different from wild fisheries and may be considered separately from and outwith any review and reform of wild fisheries. None of what follows applies to commercial or man made fisheries, regularly stocked with farm reared trout. It relates to fishing for wild trout in wild lochs and streams, containing self sustaining populations of indigenous brown trout which have evolved naturally over millennia and require little or no input by man in terms of investment, management or development. Indeed, it might be said that a wild fishery would cease to be a wild fishery if subject to any significant human impact. It would seem to me that the popularity of fishing on such truly wild Scottish fisheries has been on the decline for many years. I suspect that this decline is due, in part, to the difficulty in gaining access to wild lochs and rivers. Wild trout fishing is, in many respects, very like hill walking, each a simple enjoyment of a truly unique and wild resource. Indeed, in much of Scotland, you can't do the one, wild trout fishing, without a fair bit of hill walking. The two often go hand in hand. But one is free, the other prohibited, by law, over much of the country. To encourage greater participation in wild trout and coarse fishing, and to attract greater numbers of visiting anglers to rural areas of Scotland, wild lochs and streams should be made more accessible and permits made readily available to all at reasonable cost, as recommended by the Land Reform Review Group, in their report of May 2014 (See Note 2 below).

The Land Reform (Scotland) Act of 2003, and the subsequent Act of 2016, have been lauded as a great step forward in opening up private land to the public. It gives "everyone" the right to be on or cross Scottish land for recreational purposes, except for the purpose of hunting, shooting or fishing. It gives walkers, cyclists, canoeists, bird watchers and others a legal right to access Scottish land. A hill walker has a right to walk up any hill in Scotland freely, with no need to seek permission or to pay a fee to do so. The same applies to almost all other recreational land users. But not to anglers. Indeed, the right of an angler to access Scottish land, for the purpose of fishing, has been expressly excluded in the 2003 Act (Chapter 2, section 9 (c)), and the 2016 Act includes no amendment to this exclusion. In fact, anglers have no general statutory legal right to fish for trout in Scottish lochs and rivers. Not only that, the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act of 2003 (Part 1, section 11) makes it a criminal offence to fish for trout in any Scottish loch, the fishing rights of which are owned by one person, without the permission of that owner. In effect, that excludes anglers from most Scottish lochs if they are unable to obtain permission to fish.

In November 2014, the First Minister set out the Scottish Government's vision that Scotland's land must be an asset that benefits the many, not the few... where ownership and use of land delivers greater public benefits through a democratically accountable and transparent system of land rights that promotes fairness and social justice, environmental sustainability and economic prosperity. This laudable declaration of intent gave Scottish anglers some hope that they might, at last, begin to share in those benefits, that fairness and social justice might extend to them. Surely a Wild Fisheries Review held the promise of fairer, wider access to our wild fishing lochs and streams. Anglers did not anticipate that they would, yet again, be excluded from the benefits of the reforms, that they would continue to be denied the statutory rights of access conferred upon almost all other recreational land users.

 

A Possible Future for Wild Freshwater Fisheries

(A personal view on how we might manage our wild trout fishing asset for the benefit of the many)

 

Wild Brown Trout (and Coarse) Fishing

1.         The aim of the Wild Fisheries (Scotland) Bill should be to promote both conservation of wild fish and public access to wild fishing. Conservation is, of course, a priority, especially where fish stocks are threatened, either by changes in nature, such as climate change, or by human activities such as aquaculture, commercial netting, forestry, industrial, agricultural and domestic pollution, water abstraction, power generation etc. We may be able to do little to control the forces of nature but we can try to protect our wild fish stocks from the adverse effects of our own activities. Migratory fish, i.e. salmon and sea trout, seem to be under the greater threat, particularly in the marine environment. Among the most serious threats to their survival are changes in climate and in the ocean environment, high seas netting and aquaculture. In their freshwater habitat, in our lochs and rivers, both migratory and non-migratory fish face another range of threats, e.g. from afforestation; agricultural, domestic and industrial pollution; man-made barriers to migration; water abstraction; hydro power generation and predation. These are the areas where conservation efforts should be focused. Our wild loch habitats, and their stocks of wild brown trout, being generally more isolated from many of the threats to our river habitats, appear to be more stable and the need for conservation much less pressing. It should be noted that angling, within the law, represents no threat to stocks of wild fish, either migratory or non-migratory, in Scotland. Indeed, anglers are generally among the most committed conservationists and custodians of our freshwater habitats. Anglers and anglers' organisations have a generally positive impact on fish stocks, and the natural environment. Widening access for anglers would have no negative impact on the environment, on stocks of wild fish or their habitats.

From the outset, the thinking behind the Wild Fisheries Review and the consequent draft Wild Fisheries Bill has been fundamentally flawed, founded on the false premise that angling for wild fish and the conservation of wild fish are somehow incompatible; that angling has an adverse impact on wild fish stocks and their habitat; that the way to conserve wild fish is to impose controls and restrictions on anglers. Nothing could be further from the truth. Angling, as practised today in Scotland, has no negative impact on stocks of wild fish or their habitat. If anything, the very opposite is true. Anglers and anglers' organisations contribute greatly to the conservation of fish stocks and the maintenance of their natural habitat. Conservation of wild fish is important. So let us address the main threats to fish stocks. There are many, as listed above. Angling is not one of them. Wild Fisheries reform is needed, to allow anglers wider, fairer access to our wild lochs and rivers. Widening access to, and promoting greater participation in, freshwater fishing would have no negative implications for wild fish conservation. There is no conflict between conservation and angling. So why consider them together in a single legal review? It is confusing. Perhaps we should have two separate reviews:

        a)  A Wild Fish Conservation Review to address real threats to freshwater fish stocks and how to protect and conserve them

        b)  A Wild Fisheries Review to promote wider access to and greater participation in wild freshwater fishing

The current review and reform process and the resultant draft proposals fail to address the two essential issues, i.e. conservation and access. With regard to the first, no effort has been made to identify or address the major threats to wild fish stocks. For example, the catastrophic impact of salmon farming on stocks of wild sea trout on the west coast of Scotland is now widely accepted. A recent report by Andrew F. Walker MSc PhD on the Collapse of Loch Maree Sea Trout stated,  "Nevertheless, it can be concluded that the introduction of salmon farming in Loch Ewe close to the River Ewe’s estuary played a prominent part in the changes in sea trout stock dynamics in the River Ewe system, leading to the collapse of the angling fishery in Loch Maree." By specifically excluding any examination, or even any mention, of salmon farming from the Wild Fisheries Review, the government made it clear from the outset that conservation was not a priority. Similarly, the question of public access to wild trout fisheries has been ignored. Indeed, the provisions of the draft bill would further restrict anglers' access to wild trout lochs (see below).

2.         The main obstacle facing trout anglers in Scotland wishing to fish in wild lochs and rivers is the inability to obtain permission. Despite the Government's declared commitment to "the key pillars of conservation, sustainability and access to all", both the Draft National Fisheries Strategy and the Draft Wild Fisheries Bill fail to address, or even to recognise, this fundamental question of public access to wild fishing waters. In many cases, particularly in the remoter parts of the country, anglers don't know who owns the fishing, whether or not fishing is permitted by the owner or where they might purchase a fishing permit. This makes it very difficult, often impossible, for both Scots and visiting anglers to access wild trout fishing and, effectively, excludes them from the majority of wild Scottish lochs and streams. Should we not, instead, welcome all anglers with open arms, by offering easy access to our unique wild waters? Is wider public access to our wild fishing lochs and streams not a priority? It should be noted that most Scottish anglers are not even seeking equality with those pursuing other outdoor recreations, such as walkers, cyclists, kayakers and canoeists. We are not asking for free access, as conferred by recent legislation on all those other recreational land users. Anglers would be more than happy to pay a fair price for a permit (for non-migratory fish) which would allow legal access to our thousands of wild hill lochs and trout streams.

N.B. See important update on the Scottish Government Press release of February 2017 at the foot of this page.

 

A National Trout Fishing Permit

Access to our mountains, lochs and steams, for the purpose of angling as much as for other recreational pursuits such as walking, should not be dictated by the owners of Scottish land or fishing rights. All owners of wild trout fishing rights should have a legal obligation to make their waters accessible to all anglers who hold the appropriate written permission, to be issued by an agent or representative of the Scottish government authorised by the Minister, e.g. via a national website, post office or tourist information centre or other appropriate publicly accessible place. This written permission might be called a national permit. Exceptions to this obligation on owners of fishing rights might be agreed by the Minister for certain times or places only in extraordinary circumstances, e.g. on M.O.D. land where there may be a risk to public health and safety. Those exceptions should be reviewed from time to time, perhaps every five years. Incentives for cooperation by land owners in promoting accessibility and welcoming anglers to their lochs and streams, or compensation for loss or expense resulting directly from any new legislation requiring their compliance, might be considered in the form of subsidies, grants or rate relief.

3.         Written permission to fish for wild trout and other freshwater fish should only be required by law for fishing waters where written permits are readily available to all, at reasonable cost, online and/or from local post offices and information centres. An angler should not be charged with a criminal offence for fishing without written permission in a wild trout water for which no permit is readily available and which has not been granted an exception by the Minister.

4.         To protect young people from criminal prosecution, and to encourage them into the sport of angling, a low nominal fee only should be required for those under the age of sixteen and written permission might be waived entirely where they are fishing for trout or coarse fish in public places, e.g. canals, waterways, still waters and rivers on council land.

5.         A dedicated Wild Fisheries Website, owned by the Scottish government and operated by government employees, should be set up to provide comprehensive information and maps of all available wild trout and coarse fishing waters, including the facility to purchase a national fishing permit online. Advances in technology should make this the most efficient method of issuing permits going forward, although they should also be available from local public outlets such as Post Offices and Tourist Information Centres. Permits might be available per day, week or year. The purchase of a permit might allow fishing in any wild water in the country (with possible exceptions or special categories of waters which might be subject to a premium price or limits on angler numbers) or in a specific category, or geographical group, of waters. Consideration should be given to the options of offering a single permit for all non-migratory freshwater species or two categories, a) trout only b) coarse fish only. For the purposes of the permit, grayling, although a salmonid, might be classed as a coarse fish as the grayling spawning and fishing seasons coincide with those of coarse fish.

6.         Allowable fishing methods would be different for the different categories of fish and possibly in different categories of water, e.g. fishing for wild trout might be by fly and spinner only, with bait fishing (using live or dead bait such as maggots, worms and fish) allowed only for coarse fish.

7.         Coarse fish should not be killed at any time. This is entirely in line with the general practice of coarse anglers to return all fish caught alive to the water. The killing of wild trout should be strictly regulated, but rules might vary from fishery to fishery, depending on the health of fish stocks, the need for conservation etc. There should be a presumption that the majority of wild trout will be returned and catch and release should be encouraged generally and fishing methods specified to facilitate the return of fish unharmed to the water.

8.         It should be recognised that not all wild trout and coarse fishing waters will be equal in terms of attraction or the number of anglers they can comfortably accommodate. Some might be more popular than others, due to their location, accessibility or the perceived quality of the fishing etc. For such waters a system of permit quotas/rationing/waiting list and/or a slight premium on the permit price might be considered, allied to possible restrictions of fishing methods, e.g. fly only. Such decisions should be informed by the local knowledge and expertise of those charged with the local management and supervision of fishing over a specified area, e.g. an approved angling club or association ideally or, in the absence of a club, a trout management group appointed by a local FMO. Our wild trout lochs should remain just that, i.e. wild, with as little interference, management and development by man as possible, commensurate with their preservation and accessibility as a valuable public amenity. Lochs and streams containing wild trout and other wild fish should not generally be stocked with farm-reared trout, as this will compromise the genetic integrity and threaten the survival of our valuable and irreplaceable wild trout. To protect the genetic integrity of stocks of wild trout and other freshwater fish, the introduction of non-indigenous, farmed fish into wholly wild trout lochs and streams should be prohibited by law.

Commercial rainbow trout fisheries should not be classed as wild fisheries. They should be excluded from the national permit and should continue to operate as they do now, as independent businesses with the protection of current legislation.  It should be noted also that there is another category of water, comprising the many lochs and reservoirs throughout Scotland, primarily located in the more densely populated areas, which lie somewhere in between wild waters and commercial fisheries. They may once have been wholly wild fisheries or they may have been created as water supply reservoirs. Most hold natural populations of wild trout, which have been supplemented by stocks of farmed brown trout or rainbow trout. Such waters may be run currently as commercial fisheries, such as Carron Valley Reservoir, or as club fisheries, such as Antermony Loch, where the prime angling interest is often in the stocked farmed trout rather than the wild fish. These waters are no longer truly wild fisheries, though some have been developed to a greater extent than others. These fisheries represent a significant public amenity, often located in the more densely populated areas of Scotland where there is little in the way of truly wild fishing. A national trout fishing permit, as described above, should not allow fishing on such managed, stocked fisheries. They might continue to be run as at present but controls should be put in place to regulate the stocking of all waters containing wild trout and any proposals to develop new fisheries along these lines should be subject to government approval and very close scrutiny. Such managed, stocked waters represent a very small minority of the estimated 31,460 lochs in Scotland. This should remain so, and the stocking of non-indigenous farmed or hatchery reared trout into wild trout waters should generally be prohibited.

9.         Wild brown trout and coarse fishing waters might be managed locally and the fishing looked after and monitored by government-approved bodies such as angling clubs and associations. There are excellent examples of such bodies currently operating successfully throughout the country. Two such organisations, both offering wild brown trout fishing over a wide geographical area at fair prices, are the Orkney Angling Association and the Assynt Angling Club. These might serve as models on which to base the organisation of non-migratory fishing nationwide. Another possible approach to the reform process might be, initially at least, to allow those successful clubs and associations to continue as now, with the support of government, provided they satisfy the necessary conditions of accessibility and permit availability, and allow them to organise access and the sale of permits locally, as they do now, perhaps expanding the geographical area they currently manage. That would allow available funds and resources to be concentrated on areas currently inaccessible to anglers, or where there may be no organised or simple means of facilitating public access, the aim being to have a network of angling associations covering the whole country, approved, funded and regulated by government, each managing the fishing in their own locality according to agreed guidelines. Where a fishing club or association did not exist or could not be newly established, then the responsibility of managing and supervising the fishing would then fall on the new FMOs. Affordable national fishing permits, issued and regulated by a government department or agency, for all areas and all non-migratory species would, in all cases, be available online, via a new Wild Fisheries Website, and at local public outlets.

10.       The above relates mainly to wild brown trout fishing in lochs and streams which are not currently, and should not be, subject to any great degree of financial investment, development or management, other than the responsible administration of access and supervision of the fishing by local angling clubs or others. Often the attraction to anglers of Scottish trout fishing is the very wild and remote nature of those unmanaged and undeveloped waters. The very last thing they need is development. Indeed, angling access, particularly to wild, remote areas of the country might be approached in a similar way to access for other land users, e.g. walkers and canoeists, as implemented in the Land Reform act, with similar aims and objectives, i.e. making wild fishing more accessible to all and encouraging responsible participation. It might seem unreasonable to make anglers pay for access to the countryside, while others have free, and virtually unregulated, access. Most anglers, however, are unlikely to object to paying an affordable permit fee in return for wider, simpler access to wild trout fishing, and coarse fishing where applicable, on our wild lochs and rivers.

 

Access to Salmon Rivers

The above relates mainly to wild loch fishing and to fishing in streams which do not hold migratory fish. Access to wild brown trout fishing in salmon rivers is not quite so straightforward, while the reform of salmon fishing access and availability might be regarded as a longer term project. Nevertheless, the long term objective should be to make all fishing, both migratory and non-migratory fishing, more affordable and more accessible to a wider public than at present. With regard to brown trout and coarse fishing on salmon rivers, the current system of Protection Orders, which oblige salmon proprietors on some of our rivers (Clyde, Don, Earn, Tay, Tummel, Tweed, Upper Spey) to sell permits for trout fishing, is judged by some trout anglers to work fairly well and might be improved and refined further to allow easier access for trout anglers to rivers where the prime interest is in salmon and sea trout, while having due regard to the enjoyment of the salmon anglers.

 

Salmon Angling Associations

Regarding salmon fishing availability, affordable public access to salmon fishing on our rivers varies a great deal throughout the country. Some rivers, such as the Spey, have quite a bit of association water, totalling some 20% or more of the river length, while many others, particularly the smaller northern and western spate rivers, have none at all. A starting point for allowing wider public access to Scottish salmon and sea trout river fisheries might be to explore ways to increase the amount of water managed by local angling associations, perhaps amalgamating all fishing associations on one river into a single body in the interests of efficiency, for the benefit of both local and visiting anglers. The aim might be to ensure affordable public access to a fair percentage of the available salmon and sea trout fishing on all Scottish rivers, say 30% of the length of each river. Compensation to fishery proprietors for passing control of some of their fishing, currently managed privately, to the angling associations might be funded by the sale of a national salmon fishing permit which would allow affordable public access to the fishing controlled by the angling associations. At the same time, those river beats managed privately might benefit from some of the work done routinely by the association, e.g. by river watchers and bailiffs.

 

Anglers' Management and Development Levy

 

The Stakeholder Reference Group has proposed the above levy for the following reasons:

1) The SRG believes that, despite its many strengths, the current management system for freshwater fisheries in Scotland is under considerable financial pressure. Without additional monetary, human and information resources it will simply not be able to fulfil the ambitions of the Scottish Government's Wild Fisheries Reform (WFR) programme, especially with regard to non-migratory species.    

2) Nowhere is this funding gap more evident than in relation to research and data collection. Very little is currently invested in monitoring or research on non-migratory freshwater species. In particular there is no systematic approach to gathering information on the range and abundance of stocks, their resilience to exploitation and environmental pressures, or the impact on them of existing or proposed management measures. Equally, there is a lack of information on the inshore marine fisheries which support Scotland's large recreational sea-angling industry.      

3) In addition, new funding will be essential: to underpin the wider range of enforcement work required by an "all species" management system; to carry out angling participation, promotion and development (APPD) activities; and to implement management measures.         

4) It is imperative that any funding streams identified to fill this gap are dependable, stable and sufficient for the task at hand. Furthermore any new funding must not be seen as a substitute for the existing and relatively limited public sector investment in the sector.

5) Some management activities targeted on migratory salmonids can benefit all species, but it is neither reasonable nor practicable to expect the migratory sector to substantially cross-subsidise the management of other species.  A new source must be found to bring in additional funds to support management and APPD activities for all species.  

How absurd! All the above objectives should be very much secondary to the primary need to improve anglers' access to our fishing waters. Anglers should not be asked to pay a levy, or a licence, to fund activities which most would view as having a very low priority in the grand scheme of things. What point in spending money on research, data collection, information gathering on fish stocks, greater law enforcement, promoting the benefits of angling and implementing new and costly management measures when we have limited public access to the fishing. Surely this is putting the cart before the horse. It makes no sense to ask anglers to pay for the management of fishing waters to which they have no access. First allow Scottish anglers to go fishing. The idea of a management and development levy, or rod licence, should be abandoned and all energies should be focused on truly progressive reform of an inequitable system of access to our lochs and rivers. Oblige land owners to allow anglers access to all lochs and rivers and oblige anglers to purchase a national fishing permit (as described above) which allows access to those lochs and rivers. Only then should the rest be considered.

12) The SRG suggests consideration should also be given to providing ancillary benefits to those who pay a management and development levy. These might include access to services such as insurance, membership of governing bodies, or fisheries access arrangements.

The only benefit that really matters to anglers is fisheries access and this is the only thing that anglers would or should be willing to pay for at this time. Ancillary benefits are a luxury they may not be able to afford.

 

Suggested Amendments to the Draft Wild Fisheries Bill

Draft Wild Fisheries Bill

Chapter 1

National Arrangements

Scottish Ministers' Overarching Responsibilities

 

The overarching responsibility of Ministers in the draft bill are:

1 Promotion of conservation and good fisheries management

(1) It is the duty of the Scottish Ministers to promote:

(a) the conservation of freshwater fish in wild fisheries and their habitats, and

(b) best practice in the management of wild fisheries.

2. The National Wild Fisheries Strategy

(1) The Scottish Ministers must, before the end of the period of 6 months beginning with the coming into force of this section-

(a) prepare a National Wild Fisheries Strategy and,

(b) lay the Strategy before the Scottish Parliament

The National Wild Fisheries Strategy is a document setting out the Scottish Ministers' objectives, priorities and policies with respect to-

(a) The conservation of freshwater fish in wild fisheries and their habitats, and

(b) The management of wild fisheries

The overarching responsibility of Ministers should be revised, or widened, to include, more specifically, the facilitation and promotion of affordable anglers' access to all Scottish freshwater fisheries, focusing initially on non-migratory fisheries. When the current review of wild fisheries was announced, the stated objectives included the promotion of public access to, and participation in, wild fishing as a fairly high priority. The emphasis on this primary objective appears to have diminished during the review process, so much so that it appears now to have a low priority in the draft bill. Given that a) the need for new measures to ensure the conservation of wild non-migratory trout and coarse fish, particularly in our wild lochs, is generally less pressing than that for migratory fish, b) widening access to, and increasing participation in, wild trout fishing would have no negative impact on fish stocks or their habitat and c) wild trout fisheries require little in the way of management, the promotion of wild fishing access, for the benefit of both the Scottish people and visitors, should take much higher priority.

The National Wild Fisheries Strategy should include as a priority the establishment of a statutory obligation on wild non-migratory fishery owners to allow access to anglers and a concomitant obligation on anglers to buy a nationally available permit which would allow them to fish in those wild fisheries.

 

Criminal Sanctions against Anglers and Anglers' Access

Chapter 2 of the Draft Wild Fisheries Bill is copied below

Draft Wild Fisheries Bill

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.

 

 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 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.

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.

Anglers in Scotland have no statutory right to fish in wild trout waters. They must have the permission of the owner of the fishing rights, usually the owner of the land on which the loch or stream is located. The rights of the owners are protected in civil law. With the exception of waters covered by Protection Orders, a person fishing for wild trout or coarse fish without written permission 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, or the coarse angler float fishing for roach on the Forth and Clyde Canal. 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.

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 should be considered, in my opinion, only under the following circumstances:

1. Where all land owners and others owning freshwater fishing rights in Scotland are legally obliged to permit access for anglers to all (non-migratory) wild fishing waters.

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

...................................................................................................................................................................................................................................

Note 2

The Land of Scotland and the Common Good

 Report of the Land Reform Review Group

 May 2014

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. 

42 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.  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. 

43 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. 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.

 

John Gray

May, 2016

 

...................................................................................................................................................................................................................................

 

IMPORTANT UPDATE  3rd February 2017

I am very pleased to report that, as outlined in the Scottish Government press release copied below, Ms Cunningham, the Environment Secretary, has responded very positively to the concerns of anglers on the initial proposals for wild fisheries reform in Scotland. The decision to abandon the implementation of a rod licence or levy is most heartening. More crucially, the announcement that The Scottish Government has ruled out the criminalisation of freshwater fishing without written permission is a great victory for common sense. Great credit is due to Ms Cunningham for her protection of the rights of anglers and her ambitions for the future of angling in Scotland.

03/02/17  Scottish Government Press Release

Wild fisheries

 
Protecting the rights of anglers.

Anglers in Scotland will be shielded from increased costs. Proposals to introduce rod licences and a new wild fisheries levy will not be taken forward, Environment Secretary Roseanna Cunningham has announced.

The Scottish Government has ruled out these measures as well as the criminalisation of freshwater fishing without written permission and proposals to overhaul the structure and remit of District Salmon Fishery Boards, following a consultation on draft provisions for a Wild Fisheries (Scotland) Bill and draft Wild Fisheries Strategy.

The Scottish Government will facilitate‎ work streams which encourage, empower and support the modernisation of fishery management, including the piloting of voluntary board mergers to identify any existing legislative issues. It will also develop a fishery management plan to trial any changes with boards and will also explore potential freshwater conservation provisions ahead of the introduction of a Bill to Parliament.

Ms Cunningham said:

“The Scottish Government is committed to supporting our famous and valuable wild fisheries, to modernise our fishery management structures and to establish a more secure and sustainable future for this vital sector.

“Our Wild Fisheries Bill will build on our significant conservation achievements to date, including the annual salmon conservation measures, Spring Conservation Orders, and the moratorium on coastal mixed stock fishery netting for three years.

“However it’s important that we represent the interests of our anglers, that’s why we have listened to the sector’s concerns around increasing costs and restricting access to fisheries and are ruling out the introduction of rod licences and a freshwater levy.

“We’ve heard through the consultation that these steps would limit the opportunities for our anglers and potentially discourage young people from taking part. Over and above this we will work with the angling community to identify ways to increase participation and to improve engagement across the sector.  

“I am grateful for the considerable time and energy that the wild fisheries sector has given to date to help inform the programme of reform. We will continue to work closely with our stakeholders to make sure the legislation that is ultimately brought forward is robust and fit for purpose, so that anglers have confidence in the management and development of the fisheries that they depend on.”

 

www.trout-salmon-fishing.com

 
>