Scotland Act 1998 (Specification of Devolved Tax) (Wild Fisheries) Order 2017

Debate between Lord Beith and Lord Steel of Aikwood

Wednesday 29th November 2017 Grand Committee

[Lord Steel of Aikwood (LD)]

My Lords, I suppose I should begin, like everybody else, by sucking up to the Deputy Chairman and the Minister and saying how pleasant it is to be here with them. I do not remember this ever happening in this Room before, but the House of Lords exists to be pleasant and I am delighted to join in welcoming them here. In fact, a few moments ago the noble Lord, Lord Foulkes, made a quite gratuitous and kindly reference to me, no doubt anticipating that I might give him support if there were a vote. In fact, I would not have done, but nevertheless the atmosphere of pleasantry is something I am happy to continue.

I have a purely personal interest in this matter, in that I fish occasionally on the Tweed and more regularly on a loch in the Scottish Borders, which I will return to in a moment. I think the Minister will agree that this order is somewhat unusual in that it is predicated on a Scottish Parliament Bill that we have not yet seen. That makes it a little difficult to understand but none the less, in principle, we will support it. That is presumably why the Sewel convention does not apply in this case, because it is bestowing more powers on the Scottish Parliament under the Scotland Act. Like the noble Lord, Lord McAvoy, I would like to hear a little more about the consultation that the Minister has had with colleagues in the Scottish Government about how this is going to operate.

I have two questions about the order. The first relates to the amendment of Chapter 7 of the Scotland Act, on page 2 of the order. It states:

“This subsection applies to taxes on the … occupiers ... of the right to fish in wild fisheries”.


I operate a syndicate on a loch in the Scottish Borders. One of the members of the syndicate is the former sheriff, who will certainly be breathing down my neck if we do not get this right. Does that mean that when I pay, as I do, a handsome sum to His Grace the Duke of Buccleuch for the right to fish on his loch, that makes me an occupier of the right to fish in the waters? In other words, am I, in supporting this order, liable to find myself subject to taxation in future?

My second question is one that I anticipate my noble friend Lord Beith is about to ask. Fisheries in Scotland are governed under legislation that was passed way back in the 1950s. In the case of the Tweed, Scottish legislation covers the south bank; in other words, people operating in England are subject to Scots law in this peculiar circumstance. I wonder whether this order applies to them as well.

[Lord Beith (LD)]

My Lords, my noble friend did not realise quite how far the provision he has just cited extends. Legislation, particularly the Scotland Act 1998 (River Tweed) Order 2006, embraces the whole of the Tweed district, which includes all the tributaries of the Tweed and tributaries of the rivers which are tributaries of the Tweed, whether they are in England or Scotland. Of course, many of them are in England, such as the Till, for example. The Tweed river system has always been managed as a single system, which makes a great deal of sense. It would be odd to do it otherwise.

However, there are some problems inherent in this, as there were in the 2006 order. The Minister said that the Bill will not affect other parts of the United Kingdom—I hope I am not quoting him wrongly. If that is the case, it will be an interesting reversion to the previous way of legislating in this area. My initial assumption was that this order might affect all the tributaries of the Tweed. The basic question is: can somebody have a fine or levy placed upon them by the Scottish Government when they are not only resident in England but the activity to which the levy relates is wholly in England? Can someone who is the owner or occupier of a fishing right on, say, the Till, be required to pay a levy by the Scottish Government?

There may be a perfectly good case for them being required to pay that levy, but if there is, that surely should be a decision on which the United Kingdom Parliament—the only Parliament which represents England—should continue to have a say in future. It seems constitutionally repugnant for the Scottish Parliament to be able to pass laws or impose levies in England, just as it would be repugnant now under devolution to do the reverse in this area. That is what I would like clarification on as I think something of a wrong turning was taken in the 2006 order, and I do not want to see it repeated in subsequent orders, such as the one we are considering today.