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Hector L MacQueen and Scott Wortley
email:hector.macqueen@ed.ac.uk

Hector MacQueen latest posts by Hector MacQueen in this blog: Prosecuting bank directors: some historical observations Adjusting to changing circumstances: only when frustrated Lord Carloway to be Lord Justice Clerk Lady Clark the new Chair of the Scottish Law Commission Lord Gill appointed Lord President	Fishing in troubled waters 30 August 2010 13:11
	Scots Law News is always interested by Anglo-Scottish cross-border issues (see previously here and here), but was especially fascinated by the latest episode concerning fishings on the River Esk, reported by the BBC on 29 August 2010. The source of conflict seems to be the responsibility of the Environment Agency (a body that generally has no jurisdiction in Scotland) for the River Esk, which flows mainly but not entirely to the north of the Scotland-England border, and emerges into the Solway Firth on the Cumbrian side of the border. The Agency interprets this as entitling it to regulate fishings on the entire river system and to require licences for those who would fish the waters for salmon or sea trout. This is however disputed by those fishing the river in Scotland, and now the position is to be tested in Jedburgh Sheriff Court, where two men from Newcastleton are to be prosecuted for unlicensed rod-fishing on the Liddle Water (a tributary of the Esk). Their defence will be to challenge the legitimacy of the Agency's regulations. The case begins before Sheriff Kevin Drummond on 10 September. We will be watching eagerly for further news. The rivers on the border might be described as a p-Esk-y problem for Anglo-Scottish legal relations, since they have been causing issues over where Scotland ends and England begins (or vice versa) for centuries. See this writer's learned article in (1991) 22 Law Librarian 85-93 for thirteenth-century fishing disputes on the Tweed, and the following cases, conveniently summarised by the late great Professor W A Wilson in his Introductory Essays on Scots Law (2nd edn, 1984), p.35: Duke of Roxburgh v Earls of Home and Tankerville (1768) Mor 14272; 2 Paton 358 (Tweed fishings); Coutts v Blake (1775) Mor 7375 (island in the Tweed); Annandale and Eskdale DC v North West Water Authority 1978 SC 187 (the fluctuating Eden and the Solway Firth).

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Hector 30/08/2010 17:01:22	My Law Commission colleague Patrick Layden has sent the following comments - "It looks from the map as if the alleged crime occurred on the Upper Esk, as defined in section 111(4) of the Scotland Act, which means that, by virtue of Part II of the Scotland Act 1998 (Border Rivers) Order 1999 (SI 1999/1746) it is for UK Ministers to enforce fishing controls. While the 1999 Order provided for new regulations to be made with the consent of the Scottish Ministers, the regulations would be UK regulations, and the licensing arrangements were in the hands of the Department of the Environment (cf Article 6 of the 1999 Order, which makes it an offence to fish in the Lower Esk without a licence from the Department of the Environment). I know that similar offences in parts of the River Tweed in England are charged by an English prosecutor in the English courts, but under the Scotland Act 1998 (River Tweed) Order 2006 (SI 2006/2913). The logic of the fishermen’s position is of course that, since Scottish Ministers have no power to regulate fishing on the Esk and its tributaries (see the disapplication of section 53 of the Scotland Act from Ministerial powers relating to these rivers, by Article 3 of the 1999 Order), there should be no regulation at all. A legal limbo – perhaps the Court of Session could be asked to regulate, using the nobile officium!"
A Scot 01/09/2010 11:53:48	Please allow me to express a layman's view. I would, as a Scot, express my grave concern about the wholly inappropriate, and legally questionable, action by the English Environment Agency, supported it would seem by an incredibly acquiescent Scottish Executive, in seeking to impose an English rod licence on Scottish anglers. To many of us here in Scotland, it seems incredible that, for no reason other than administrative convenience, a part of Scotland is no longer to be governed by Scots Law. Instead, it will be subject to the laws of England and Wales, enforced by the representatives of an English agency with no jurisdiction in Scotland and no authority under Scots Law. As most of us are well aware, under Scottish Law, Scots do not require a rod licence in order to own or use a fishing rod. No Scottish statute that I know of places any obligation on those fishing for salmon and sea trout in Scotland to purchase a rod licence. The law of Scotland requires only that we have the written permission of the owner of the fishing or the agent of the owner. In addition, the way in which salmon fishing is supervised and regulated in Scotland is very different from that in England. In England, the Environment Agency is charged with the responsibility of the overall supervision, regulation and environmental welfare of the rivers. The maintenance of the rivers is funded by the revenue obtained from the sale of rod licences, which all anglers in England and Wales are legally obliged to buy. In Scotland, there is no such thing as a rod licence. Instead, the overall supervision, regulation and coordination of the management of Scottish rivers are, in the main, funded by levies raised on fishing proprietors by District Fishery Boards, based on river catchments. The Scottish system currently works to the satisfaction of most and to the general benefit of the Scottish rivers. Few would suggest that Scottish fishing would be better off under the control of a Scottish version of the Environment Agency and even fewer would support the notion of a Scottish rod licence, as it currently applies in England and Wales. In general, it would seem reasonable that river systems should be regulated on a catchment wide basis, as is done by the Scottish District Fishery Boards. Ideally, the Border Esk might benefit from such an approach but, because it flows the first two thirds of its course through Scotland, with its outflow in England, and because of the differences in the English and Scottish systems of management and funding, not to mention the significant differences between Scottish and English law, as it applies to fishing, the Border Esk, like parts of the Tweed to the east, does not readily fit into either system. As a result, in an attempt to bring some consistency into the administration of the river systems bordering Scotland and England, I believe that an informal bargain was struck some years ago, to the effect that the Tweed in the east would be managed according to the Scottish system and the Border Esk would follow the English pattern, supervised by the Environment Agency, with the express agreement between the parties to the bargain that, at no time, would a rod licence be required to fish on the Scottish beats of the Border Esk. It is questionable whether this ill advised informal agreement had any real validity in either Scottish or English law. However, whatever its basis in law, it appears to have led to the assumption, by the officials of the English Environment Agency, that the whole of the Border Esk, including the larger part of the river which flows through Scotland, should be governed by the 1975 Salmon and Freshwater Fisheries Act (England and Wales). Despite this, it seems that the Environment Agency has, until very recently, shown little interest in assuming responsibility for the Scottish section of the Border Esk, which has, nevertheless, been funded and managed most efficiently by the Scottish proprietors, represented as a group and coordinated by the Esk and Liddle Improvement Association. Indeed, it is my view that the Scottish beats of the Border Esk are among the most efficiently managed in these islands, allowing public access to excellent fishing at reasonable prices. Much to the surprise and dismay of all involved in the fishing on the Scottish beats of the Border Esk, and in breach of the earlier agreement that no rod licence would ever be imposed on Scottish fishermen, the Environment Agency of England and Wales decided, as from the beginning of the 2005 season, to exercise what it saw as its legal right and responsibility to impose a rod licence on all anglers fishing the Scottish beats of the Border Esk. This followed what has been generously described as a consultation process, during which, by all accounts, the Esk and Liddle Improvement Association, representing the fishing proprietors, put forward eminently reasonable alternatives to the rod licence as a means of funding the management of the river. The reasonable suggestions of the association were, most unreasonably, rejected and the Environment agency, flying in the face of public outrage and regardless of the negative economic impact on the locality, proceeded with its ill considered plan to impose a rod licence on Scottish anglers. In protest at this outrageous demand, many Esk fishers have, to their credit, refused to buy fishing permits and the local economy has inevitably suffered as a result. The plain fact of the matter is that Scottish fishermen will not, and should not be expected to, purchase an English rod licence to fish in Scotland. Surely, given the will, a sensible solution, within the framework of existing legislation, is not beyond the wit of the powers that be. Legal authority to fish might reasonably be incorporated, as it always has been, into the normal Scottish permit, the possession of which should be accepted as lawful licence to fish, in compliance with both Scots Law and the requirements of the Environment Agency, with an appropriate portion of the revenue from permit sales being set aside, as proposed by the Esk and Liddle Improvement Association, as a contribution towards the Environment Agency’s expenditure on the maintenance of the river. It is to be hoped that a reasonable compromise can be reached on the matter and that normality might soon be restored to this lovely river. More importantly, the rights common to all Scots under Scots Law must not be denied to any Scot, nor should any Scot be burdened with exceptional obligations, simply for bureaucratic convenience. A Scot is no less a Scot because he happens to live near the English border or because he happens to fish on a river which flows from Scotland into England. The proposal, that Scots, and others, fishing in Scotland, on the Scottish beats of the Border Esk, should be legally obliged to buy a rod licence before they may fish, is discriminatory in the extreme, placing, on those anglers, financial and statutory obligations which do not apply anywhere else in Scotland and which have no basis in Scots Law. Such blatant disregard for our Scottish Law, and the rights of those governed by it, cannot be tolerated. Surely all Scots are equal, whether we live in Langholm or Lerwick. Surely all Scots must be subject to Scots Law alone. Surely all Scots have the right to the protection and support of that law. In failing to uphold that law, in colluding in the discriminatory treatment of the border communities affected by this senseless proposal, the Scottish Executive, indeed the Scottish Parliament, in sanctioning such an injustice, is in clear breach of its responsibility. In the long run, the Scottish people will not readily forgive a Scottish Parliament which holds their rights in such low regard.
WardblawG 07/09/2010 15:08:50	A Scot makes some very valid points. WardblawG agrees, particularly with the reasoning regarding funding for river maintenance in Scotland, compared to river maintenance in England and Wales, which is one of the reasons for the Regulations existing in England. As A Scot suggests, "The maintenance of the rivers is funded by the revenue obtained from the sale of rod licences, which all anglers in England and Wales are legally obliged to buy. In Scotland, there is no such thing as a rod licence. Instead, the overall supervision, regulation and coordination of the management of Scottish rivers are, in the main, funded by levies raised on fishing proprietors by District Fishery Boards, based on river catchments." Recently, a new regime came into force in England and Wales procuring a streamlined procedure for the abolition of old derelict and quite inane and redundant laws. Perhaps they should just forget about the entire regulation itself? Or is WardblawG bordering on cross-border legal crossing? Or effective trespass onto the laws of England and Wales? Good luck to Sheriff Kevin Drummond on 10 September. Scotland's eyes will be on him. The good thing is the case is being heard under Scottish jurisdiction. Imagine if that was reserved to England as well. Wouldn't that be a sight.

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