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Scottish Parliament: Research Briefings: RP 00-17 Salmon Conservation (Scotland) Bill

Author(s): Scottish Parliamentary Corporate Body

Copyright holder(s): Scottish Parliamentary Corporate Body: © Scottish Parliamentary copyright material is reproduced with the permission of the Queen's Printer for Scotland on behalf of the Scottish Parliamentary Corporate Body.

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RESEARCH PAPER 00-17 October 2000

Salmon Conservation (Scotland) Bill

The Salmon Conservation (Scotland) Bill was laid before Parliament by the Scottish Executive on the 28th September. The Bill would give wider powers to District Salmon Fishery Boards (DSFBs) and Scottish Ministers to make regulations in the interests of salmon conservation.

This paper reviews recent trends in salmon populations; introduces some of the factors which may be involved in population change; and highlights the economic importance of salmon in Scotland. The paper includes a brief survey of existing salmon fisheries legislation; reviews the responses to the consultation exercise carried out by the Scottish Executive prior to introducing the Bill; and comments on the detailed provisions of the Bill itself.

SPICE RESEARCH PAPERS ARE COMPILED FOR THE BENEFIT OF MEMBERS OF PARLIAMENT AND THEIR PERSONAL STAFF. AUTHORS ARE AVAILABLE TO DISCUSS THE CONTENTS OF THESE PAPERS WITH MEMBERS AND THEIR STAFF BUT CANNOT ADVISE MEMBERS OF THE GENERAL PUBLIC.


TABLE OF CONTENTS

SALMON CONSERVATION (SCOTLAND) BILL
Salmon stocks
Decline in salmon stocks
Factors involved in the decline
The economic importance of salmon fishing in Scotland
Rod and Line
Net Fisheries
INTERNATIONAL PROTECTION
NASCO
EU legislation
STATUTORY PROTECTION
Right to fish for salmon
Permitted methods of fishing
Permitted times for fishing
Powers of the Secretary of State to make orders and regulations
Enforcement of the legislation
Administration of salmon fishing
The River Tweed, the River Esk and the Solway Firth
The Scottish Salmon Strategy Task Force (SSSTF)
Gaps in the legislative protection of salmon
Power to make regulations
Wider Issues
CONSULTATION ON THE BILL
Issues raised by the consultation exercise
Power to make regulations
Consultation and appeals procedure
Emergency powers
Forming DSFBs in all Salmon Districts
Funding of DSF
Control of fishing effort
Banning the sale of rod caught fish
Need for more information
Distinguishing between salmon and sea-trout in the legislation
Effect on wildlife
Wider issues affecting salmon
PROVISIONS OF THE BILL
Regulations to assist the conservation of salmon
Powers of enforcement entry search and arrest
Offences, penalties and forfeitures
Regulations
Application to the River Esk

CONCLUSION


INTRODUCTION

The Salmon Conservation (Scotland) Bill was laid before Parliament by the Scottish Executive on the 28th September. The Bill would give wider powers to Scottish Ministers and District Salmon Fishery Boards (DSFBs) to make regulations in the interests of salmon conservation. Regulations made under the Bill could be used to reduce fishing effort by introducing measures like mandatory catch and release or setting bag limits. The Bill arises out of concerns over falling salmon catches and the need identified by the Scottish Salmon Strategy Task Force to give Scottish Ministers and DSFBs increased powers to act to conserve salmon stocks.

The first part of the paper (pages 6-20) reviews recent trends in salmon populations; introduces some of the factors which may be involved in population change; and highlights the economic importance of salmon in Scotland. The paper also includes a brief survey of existing salmon fisheries legislation. These sections provide some background information on Scottish salmon fisheries.

The second part of the paper (pages 21-30) examines the Bill itself in detail. It includes a review of the main issues raised in the consultation exercise and a discussion of the provisions of the Bill and their implications. The paper concludes with an assessment of some of the key questions raised by the Bill.


SCOTTISH SALMON

The definition of salmon under the Salmon Act 1986 includes both the Atlantic Salmon (Salmo salar) and Sea trout (Salmo trutta), a migratory form of brown trout. Populations of both species have declined in recent years. Despite this both species are important as a central part of Scotland’s natural heritage, and for the economic value of their fisheries. Salmon and sea trout are migratory fish, and spend part of their lives in freshwater and part of their lives in the sea. Young salmon (smolts) migrate from Scottish rivers to the far North Atlantic off the Greenland and Faroese coasts. It is here that the young salmon feed and grow before they return to the river to spawn. Some salmon return after spending only one winter at sea, they are called “grilse”. These fish are typically small salmon which typically weigh between 4-8lbs. Others will spend two or more winters at sea and can grow to a much larger size than grilse (the Scottish record salmon is a fish of 64lb caught on the River Tay). These fish are often called Multi-Sea Winter (MSW) salmon. Sea trout do not range as widely as salmon and are not thought to venture far beyond coastal waters. The length of time sea trout spend at sea varies between a few months to several years. The large rivers on the east coast of Scotland tend to have a higher proportion of MSW fish than those on the west coast, which are more important for grilse and sea-trout fishing.

SALMON STOCKS

Decline in salmon stocks

Since 1952 data on the number and weight of salmon and sea trout caught in Scotland have been collected by the Secretary of State under the terms of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 (1).

Figure 1 – Number of Salmon and Sea trout caught in Scotland 1952-98 (2)

As figure 1 illustrates, total catches of salmon and sea trout have declined since detailed recording keeping began. As the Scottish Executive’s Inspector of Salmon and Freshwater Fisheries explained to the Rural Affairs Committee, fishing effort is subject to annual variations (3). Therefore, these figures can only provide a guide to the underlying population trends in salmon stocks. However, there is little doubt that there has been a decline in salmon stocks.

Factors involved in the decline

Impact of salmon farming

Production of farmed salmon in Scotland grew from 10,337 tonnes in 1985 to 111,918 tonnes in 1998 (4). This growth has had consequences for wild fish stocks. There have been several large escapes of farmed salmon from marine fish farms, often as a result of damage to sea-cages caused by winter storms. Escaped farm salmon may interbreed with wild salmon and compete with them at their spawning grounds (5). There has also been concern over the spread of pests and diseases from farmed fish to wild salmon. A particular problem is thought to be the transfer of Sea Lice (Lepeopthirus salmonis), a parasite of salmon, passed from farmed fish to young wild salmon and sea trout as they migrate past the farm cages (6).

“Black box” losses

Losses of salmon during their marine phase have been aptly termed “black box” losses because the exact cause of them is uncertain. Monitoring has shown decreases in the proportion of salmon leaving the river as smolts which survive to return as adult fish. Over exploitation of species on which salmon feed like sand eels and krill; by-catch of salmon as a non target species in other fisheries; and changes in ocean temperature as a result of climate change have been suggested as factors influencing marine survival rates (7).

There is also evidence that the cause of what have been classed as marine losses may in fact originate during the freshwater phase of the fish’s life cycle. There is some evidence that nonalphenols, (a chemical constituent of detergents), when present in river estuaries may affect the changes young salmon undergo as they move from fresh to saltwater, and their subsequent survival at sea. Similar subtle affects caused by acidification of rivers may also affect marine survival (8).

Fishing in the North Atlantic

The majority of salmon spawned in Scottish rivers spend their time at sea in the far north of the Atlantic ocean. There they join salmon from rivers across Northern Europe and the east coast of North America. These fish are mainly exploited by two fisheries, the West Greenland fishery, which is mainly an inshore coastal fishery in the fjords, and the Faroese fishery (9). Figure 2 shows that catches from these fisheries have been greatly reduced in recent times as a consequence of a progressive reduction in fishing effort. The inclusion of the Scottish rod and line catch for comparison shows that this now exceeds the catch from either of these fisheries (200 tonnes against around 20t from the West Greenland fishery, and 0t from the Faroese fishery in 1999). The removal of fish of Scottish origin by these fisheries in the past will have had an impact on the number of fish returning to Scottish rivers to spawn. However, without a return to commercial exploitation of salmon stocks by these fisheries in the future, their impact on Scottish salmon stocks has been effectively curtailed.

Figure 2 – Catches of salmon (tonnes) in the Greenland and Faroese net fisheries and the Scottish rod and line fishery 1960-99 (10)

[NOTE: Graph here in original]

West Greenland fishery

A small salmon fishery has been conducted at West Greenland since the turn of the century, and a larger fishery began to develop in the 1960’s. The introduction of drift nets to the fishery from 1965 saw a rapid growth in catches, peaking at over 2,500 tonnes in 1971. The fishery was first regulated in 1972, with an agreement to limit foreign participation in the fishery and the introduction of a total catch limit of 1100t. Since 1984 negotiations on the fishery have been conducted by the West Greenland Commission of the North Atlantic Salmon Conservation Organisation (NASCO). Catches from the fishery have been progressively reduced down to their present level of around 20t per year. This is now a “subsistence” fishery and the fish caught are not marketed commercially (11).

Faroese fishery

This fishery began in 1967, peaking at over 1000t in 1981. Since 1984 discussions on regulating the fishery have been conducted in NASCO’s North East Atlantic Commission. Agreements established catch limits and a close season (12). However from 1991-98, arrangements were made between Faroese fishermen and private organisations (led by the North Atlantic Salmon Fund, NASF) to accept compensation in return for not fishing their NASCO quota but this arrangement did not continue in 1999 and 2000. No fishing took place in 1999, but a small commercial fishery has resumed this year (13).

Inshore and estuarine netting

Salmon are exploited by netting in coastal areas and in river estuaries when they return to freshwater. In Scotland the inshore drift net fishery ceased in the 1960s, but other methods of netting salmon are still used. In rivers (including river estuaries) the only legal method of netting is net and coble. This involves the use of a small boat, the coble, from which a length of netting is gradually paid out as the boat moves downstream. Outside rivers, fixed engines are used to catch salmon migrating along the coast. This term includes several different types of net including bag and stake nets, where the salmon are progressively guided into a chamber by a stretch of net (the leader) which is held perpendicular to the coast. Fish caught in the chamber are removed at regular intervals (14).

The Northumbria T net and Yorkshire J net are similar variations used to catch salmon migrating along the North East English coast. In addition a drift net fishery continues off the Northumbrian and Yorkshire coasts. This fishery has been in existence for at least 100 years. Drift nets can be used, under license, anywhere within the Northumbria and Yorkshire regions except in certain restricted areas. Many of the fish taken by the net fishery in Northeast England are returning to rivers on the east coast of Scotland (14).

As figure 1 shows, catches from the Scottish net fishery have declined in recent years. Part of the decline is due to reductions in effort, either because lower catches mean that it is no longer economic to operate nets, or in some areas where netsmen have been offered payments by District Salmon Fishery Boards (DSFBs) to stop fishing. Inshore netting takes salmon that have survived the marine phase and are returning to spawn. Reducing the number of spawning fish may effect breeding success.


Rod and line fishing
Figure 3 – Salmon and Sea-trout taken by rod and line 1952-98

[NOTE: Graph here in original]

Figure 3 shows that the number of salmon taken by rod and line fishermen has remained relatively constant. This suggests that effort has increased, as it would be unusual to catch a constant proportion of a declining population without an increase in effort. Though, without data on fishing effort in the rod and line fishery it is not possible to say this conclusively (15).

Despite the total number of salmon caught by rod and line remaining relatively constant, it is the decrease in catches of spring salmon (those caught on or before April 30th) which is of greatest concern. Between 1952-98 the number of spring salmon caught has fallen from around 15,000 fish to around 3,000 fish per year (or from 15% of the total catch to around 4%).

As catches from other methods have declined, the proportion of the total catch taken by rod and line has increased from 16% in 1952 to 67% in 1998. The vast majority of salmon taken by rod and line fishermen would otherwise survive to spawn. Rod and line fishing can therefore have a significant localised impact on spawning populations, especially of spring fish. This has prompted the introduction of catch and release measures on some Scottish rivers, notably the Dee, where between 1995-98 7,500 salmon were caught and released(16). Since 1994 numbers of salmon caught and released have been recorded in annual catch returns. Between 1994 and 1998 the percentage of the total rod and line catch of salmon and sea trout caught and released increased from 9% to 22%. However, the majority of fish caught by rod and line continue to be removed. Some anglers are opposed to the widespread introduction of catch and release as they feel it would change the nature of their sport.

Predation

A variety of fish, birds and mammals may prey on salmon at different stages in their life cycle. In many cases, especially with the predation of young fish, this might have little effect, as fish populations can naturally compensate for these effects. Given the difficulty of estimating the significance of other natural mortality losses, especially losses in the marine phase of the life cycle, it is difficult to establish whether predation has a significant effect on wild salmon populations (17).

THE ECONOMIC IMPORTANCE OF SALMON FISHING IN SCOTLAND

Net caught fish, and some fish caught by rod and line, are sold as fresh fish into the domestic or export markets, or to salmon smokeries. Both the net and rod and line fisheries support employment in rural communities, both directly, with jobs in the fishing industry, and indirectly, through the wealth that they create.

Rod and line fishing

An evaluation of Britain’s salmon fisheries conducted by the Centre for Marine Resource Economics (CEMARE) in Portsmouth gave a best estimate of the value of rod fisheries in Scotland of £255 million (in the range £198m to £300m) (18). To obtain a current estimate of the value of rod and line fishing in Scotland, if the 1988 figures are brought forward to 2000, the economic contribution of salmon fishing in Scotland today would be £407 million (in the range £315m to £478m) (19).

Salmon fishermen also spend on rods and tackle, accommodation, food and drink and clothing. The effect of the spend on these items is greater than the spend itself because the money is respent by the people who receive it creating multipliers. In the 1988 CEMARE study, the direct spend on these items was estimated to be £34 million and the total spend taking account of multipliers £50.4 million (18). Bringing these figures forward would give direct expenditure in 2000 of £54 million and a total spend of £80m (19). The CEMARE study estimated that rod and line angling generated 3,400 FTE jobs. The economic contribution of seatrout fishing has not been studied separately, but is thought to be important, especially on the west coast. Though the weight of salmon caught by rod and line now exceeds the weight of salmon caught all netting methods combined (191 tonnes by rod and line and 86 tonnes by netting), it is difficult to estimate the economic contribution made by the sale of rod caught fish, as many fish are retained by fishermen for home consumption.

Other studies have sought to assess the local value of rod and line fishing. A study carried out by the Tweed Commissioners estimated that salmon fishing on the Tweed brought in £12.5 million to the Borders economy, and supported more
than 500 jobs (18).

Net fisheries

The total gross revenue from salmon and sea trout fishing were estimated at approximately £2.7 million in 1988, yielding a profit of £0.4 million. The net economic value of the fishery was put at between £6.2 and £11.4 million (18). There have been reductions in netting catches and effort since that time (20), so it would be difficult to update these figures. Salmon netting and therefore the jobs associated with it tend to be seasonal. The CEMARE study in 1988 estimated that net fisheries supported 109 full time permanent, 112 part-time permanent and 432 seasonal jobs. More recent studies have suggested that netting employs around 700 people at the height of the season (18).

PROTECTION OF WILD SALMON IN SCOTLAND

INTERNATIONAL PROTECTION

NASCO

NASCO is an international organisation established under the Convention for the Conservation of Salmon in the North Atlantic Ocean in October 1983 (established under the United Nations Convention on the Law of the Sea 1982). The objective of the organisation is to contribute through consultation and co-operation to the conservation, restoration, enhancement and rational management of salmon stocks. The Convention applies to salmon which migrate beyond coastal areas above 36°N (the 36th parallel runs through the Mediterranean, so this area includes all of Europe).

All EU Member states are signatories to the NASCO Convention (including Denmark in respect of the Faroe Islands and Greenland) which sets out general provisions for conserving salmon stocks. NASCO has successfully negotiated reductions in salmon fisheries in their marine feeding grounds in the North Atlantic. In recent years attention has focussed on other factors affecting salmon stocks. In 1994 NASCO members agreed the Oslo Resolution which requires signatories to implement measures to reduce the impact of salmon farming on salmon stocks. NASCO has also encouraged the implementation of other measures to protect salmon in freshwater, such as implementing catch and release for rod and line fishing. At a recent NASCO meeting the Danish representative (who also acts in respect of Greenland and the Faroes) said his vote in favour of measures imposed on the West Greenland fishery was based on the understanding that there would be corresponding reductions in the catch of other EU member states in their home waters. In his view such action had yet to be taken and reductions in the catch by Southern European members (including Scotland) was necessary (21). The policy memorandum to the Salmon Conservation (Scotland) Bill suggests that this criticism is one of the motivations in bringing forward the legislation (22).

EU LEGISLATION

The main European Directives which affect the regulation of salmon fisheries are 92/43/EEC on the conservation of natural habitats and of wild fauna and flora and 79/409/EEC of 2 April 1979 on the conservation of wild birds.

Directive 92/43/EEC lists Salmon as a “species of community interest whose conservation requires the designation of Special Areas of Conservation”. In Scotland the River Spey has been proposed as an SAC for the conservation of salmon. In an SAC, member states have to take action to conserve the listed species. This may include statutory changes to protect the species, or protect against deterioration of the species’ habitat. Seals are also listed in the same directive, and therefore the designation of SACs may also affect the control of seals under the Conservation of Seals Act 1970.

The Birds Directive gives special protection to fish eating birds like the Red-Breasted Merganser and Goosander in Special Protection Areas (SPAs). The designation of SPAs in Scotland for these birds may affect their control to protect fish stocks. This can currently be carried out under licensed exemption from the Wildlife and Countryside Act.

STATUTORY PROTECTION

Statutory protection is said to have first been given to salmon by David I (1124-53) who introduced weekly close times (23). The basis for modern statutory protection of salmon fishing was provided by a succession of Acts (24) culminating in the Salmon Act 1986. The following sections provide a brief introduction to the law relating to wild salmon fishing in Scotland.

Right to fish for salmon

Wild salmon belong to no one until they have been caught. Once captured, they belong to the captor under common law (23). However, the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 prohibits the taking of salmon without the right or written permission to do so. Owners can attach conditions to the permission, such as restricting fishing methods. Essentially though it is not the salmon themselves, but the right to fish for them that is granted or owned.

The right to fish for salmon is historically vested in the Crown as a heritable title (25). Therefore, nobody may fish for salmon in rivers or estuaries or in the sea within territorial limits without permission of the Crown or the party to whom these rights have been granted. Fishing rights have been granted to many private individuals, companies, local authorities and others. The various owners of fishing rights are commonly defined as “proprietors” in the Salmon Act 1986.

Permitted methods of fishing

In inland waters (rivers above estuary limits), salmon may only be caught by net and coble or rod and line fishing (26). The greatest of these is the right to fish by net and coble, and the right of rod fishing cannot be exercised if it will interfere with net and coble fishing (23). Many of the net and rod fisheries which are operated in rivers, lochs, and estuaries are still owned by the Crown and are often leased to fishermen. The remaining fisheries, both net and rod, are owned by the proprietors as heritable titles.

The right of fishing for salmon in the sea, also vested in the Crown, is a universal one and includes all territorial waters outside estuary limits. The normal methods used are net and coble and fixed engines (usually stake or bag nets). A number of fixed engine fisheries are owned by the operators as heritable titles. Drift netting of salmon in Scotland was ended in 1962 by regulations brought in under the Sea Fishery Act 1962.

Fishing by rod and line

Under the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951, rod and line fishing means fishing with a:

"single rod and line with such bait or lure as is lawful at the passing of this Act ".

DSFBs can apply to Scottish Ministers to make regulations specifying baits and lures that may not be used for rod and line fishing in their district. To date 18 orders specifying the baits and lures that can be used have been made (27). Other DSFBs have set voluntary restrictions on the use of baits and lures, presumably because they could be established and revoked more quickly. Both statutory and voluntary restrictions usually prohibit the use of shrimps, prawns or worms as bait and the use of lures bearing multiple sets of hooks.

Fishing by net and coble and fixed engine

For net and coble fishing, regulations (28) define the method of fishing and the construction of the net. Nets must not catch fish by enmeshing them. No part of the net may be constructed from monofilament twine. The net must be paid out and hauled as quickly as is practicable and must not be allowed to remain stationary or be allowed to drift with the tide or current. The net must be kept in motion at all times and under the effectual control of the fishermen.

Fixed engines are covered under the same regulations as net and coble fishing (23). They define the method of fishing and also the construction of the net. No part of the gear may be designed or constructed to catch fish by enmeshing them or be made from monofilament twine.

Permitted times for fishing

Annual close times

Salmon have historically been given protection in the form of close seasons to allow them to run upriver during the spawning season (usually from November to January) (23). Under the Salmon Act 1986 the annual close time for a river is required to be a continuous period of not less than 168 days (29), apart from exceptions which permit rod and line fishing during part of the close season on many rivers.

The exact dates of annual close times vary between Salmon Fishery Districts but are usually from about the end of August to mid-February. The extensions into the close time for rod and line fishing are generally at the beginning of the close season and last until the end of October (23).

Under the terms of section 6 of the 1986 Act, the Scottish Ministers may set the dates and times of the annual close time, and the periods within the close time when rod and line fishing is permitted. An “Annual Close Time Order" may only be made after an application by a DSFB or, where there is no board, by two fishery proprietors in the district (23).

Weekly close times

Outwith the annual close time, weekly close times were established under the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951 (30). The weekly close time for all salmon nets (net and coble and fixed engine) is from 6pm on Friday to 6 am on Monday morning. The weekly close time for rod and line fishing is Sunday (23).

Powers of the Secretary of State to make orders and regulations

Under the Salmon Act 1986 the Secretary of State has powers to (23):
• designate any area as a salmon district, and to amalgamate or change the boundaries of existing districts
• vary the weekly close time and make annual close time orders
• control the construction and use of cruives
• control the construction of dams or other obstructions to the water course
• revoke any regulations made under previous legislation
• make orders on the application of a DSFB which define the limits of a river
• specify following an application by a DSFB baits and lures for rod and line fishing
• introduce a system for licensing salmon dealers

Enforcement of the legislation

The police, water bailiffs (31), and other persons authorised by Scottish Ministers have statutory powers to enforce salmon legislation. They have various powers of entry, search, seizure and arrest under the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951. Water bailiff’s powers can be exercised in the district to which they have been appointed or in any adjacent district. Persons appointed by Scottish Ministers have similar powers to bailiffs but they are limited to the area for which they have been given authorisation (23).

Administration of salmon fishing

The DSFB is an association of the fishing proprietors in a salmon district which elects a committee to serve on the board. Its purpose is to protect salmon fisheries within the district. The Salmon Act 1986 modernised the structure of DSFBs and repealed much of the early legislation on the subject. The Act required the reconstitution of existing DSFBs according to new rules on membership and methods of election by January 1990 (23). DSFBs were intentionally given broad powers under the Salmon Act 1986 to reduce the possibility of challenges to their authority (232). DSFBs have powers to:

• act to increase or protect salmon stocks in the district, including raising funds for restocking or other improvement programmes
• impose a fishery assessment on all the fishery proprietors in its district to value their fisheries
• levy contributions from proprietors based on fishery assessments
• borrow money to assist in carrying out its functions
• purchase property not only to house its staff, but also to acquire rod or net fisheries (it is under this power that many net fisheries have been bought and then abandoned to increase numbers of salmon running upriver).
• apply to Scottish Ministers to change or introduce new regulations on annual close times, to define salmon district boundaries, or to specify the types of baits and lures which can be used for salmon fishing.

The River Tweed, the River Esk and the Solway Firth

The Tweed, the Esk and the Solway Firth pose administrative difficulties because they are all partly in England and partly in Scotland. The River Tweed has a separate administration, the Tweed Commissioners, who fulfil many of the functions of a DSFB, but whose operation is set out separately in the Tweed Fisheries Acts (23).

For the Esk, the Salmon Act 1986 applies many of the anti poaching provisions of the Salmon and Freshwater Fisheries (Protection) (Scotland) 1951 to the Scottish portion of the Esk (23). Otherwise fishing on the River Esk is largely controlled by English statute (32).

The Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951, and the Salmon Act 1986 are generally applicable to salmon fisheries on the Solway but there have been questions of law in the past over the type of salmon nets that could be used on the Solway (23). These had to be resolved by a specially appointed commission (33).

THE SCOTTISH SALMON STRATEGY TASK FORCE (SSSTF)

The SSSTF was appointed by the Secretary of State for Scotland in 1995:

“To consider the challenges and opportunities facing Scottish salmon fisheries with a view to recommending a strategy for the management, conservation and sustainable exploitation of stocks into the next century”.

The SSSTF’s report (34) published in 1997 made a thorough review of the Scottish salmon fishery, and includes some 64 recommendations for preserving and increasing salmon stocks. The consultation exercise conducted by the Scottish Executive prior to the introduction of the Salmon Conservation (Scotland) Bill explained that they intended to introduce powers for DSFBs and Scottish Ministers in line with recommendations 12 and 13 of the SSSTF:

“12. District Salmon Fishery Boards should be able to apply to Scottish Ministers to make regulations to restrict angling effort. As a minimum regulations are required to prescribe for each area, or part thereof, and to cover all or part of the fishing season: the maximum number of fish which can be taken by any method; the size of fish which may be taken; the characteristics and specifications of nets and angling tackle which may be used; the methods of fishing which may be used and those which are prohibited; the areas on a river where fishing is not permitted; and the release of some or all of the fish.

13. The Secretary of State should have emergency powers to limit fishing when salmon populations or fisheries are severely threatened”.

In August 2000, the Scottish Executive Rural Affairs Department (SERAD) published a review (35) of the SSSTF’s recommendations indicating what action had been taken on the issues raised by the report. The review indicates that action has already been taken on a great many of the points raised by the SSSTF, highlighting the importance of the Task Force in suggesting areas for future action to conserve salmon.

GAPS IN THE LEGISLATIVE PROTECTION OF SALMON

Powers to restrict catches

As described previously, present legislation enables the restriction of fishing effort by changing annual and weekly close times, restricting the range of baits that can be used for rod and line fishing, and regulating the way nets are used. No maximum period is specified for a close season in the Salmon Act 1986. It may be possible to extend the close season to cover the whole year and effectively close a fishery, but in practice this would be unlikely because it would infringe on the property rights of fishing proprietors and might then be challenged under human rights legislation (36). There are other ways in which fishing effort could be controlled which cannot be introduced under the present legislation. For example, catch and release could be made mandatory. Bag, size or gender limits, or daily close times could be set for either rod and line or net fisheries, after which the fishery would close. Specifications could also be made about angler’s tackle, such as the type of hook or lines which could be used, instead of just permitted baits (37).

Power to make regulations

Under the present legislation, regulations on e.g. annual close times and permitted baits and lures can only be made on application to Scottish Ministers by a DSFB. It may be appropriate for Ministers to have access to such powers to act in “emergency” situations.

Wider Issues

Salmon stocks are affected by a range of factors other than fishing effort in freshwater and inshore waters. Exploitation of salmon by fishing in distant waters has been greatly reduced. However the Northumbrian and Yorkshire drift net fisheries continue to exploit Scottish fish.

Scotland has a commitment to minimising the impacts of salmon farming on wild fish under the NASCO resolution. Under this obligation it may be possible to review the existing system of regulating fish farming and reduce the impact of fish farming on wild fish stocks more effectively.

Continuing work by NASCO and other organisations seeking to explain the “black box” losses of salmon in the marine phase of their life cycle may reveal new ways in which stocks can be preserved. These might involve introducing regulations to reduce by-catch of salmon in other fisheries or control the discharge of certain chemicals into freshwater which affect the adaptation of young salmon when they migrate into saltwater.


THE SALMON CONSERVATION (SCOTLAND) BILL

CONSULTATION ON THE BILL

This Bill follows a consultation carried out in June 2000 asking for views on the Scottish Executive’s proposals to introduce new legislation for improving salmon conservation. A key suggestion from the consultation paper was that the legislation should introduce powers for District Salmon Fishery Boards (DSFBs) and Scottish Ministers to restrict angling effort.

Officials from the Salmon & Freshwater Fisheries Department of the Scottish Executive, confirmed that this would be the policy intent behind the Salmon (Conservation) Scotland Bill, at the Rural Affairs Committee meeting of the 19th September (38).

ISSUES RAISED BY THE CONSULTATION EXERCISE

The following sections discuss the issues raised in the consultation exercise. The consultation exercise sought to establish: who should be given powers to make regulations in the interests of salmon conservation; what the powers should be, and over what geographical area they could be made; and what consultation would be required before exercising these powers.

Power to make regulations

Several respondents to the consultation exercise expressed concern over who the Bill would give the power to make regulations.

The Royal Institute of Chartered Surveyors (RICS) felt that Scottish Ministers should not be able to make regulations without the support of the local DSFB. The Atlantic Salmon Trust felt that this would be particularly important for any regulations which might be applied across the whole country. An individual respondent felt that powers should only be vested in the Scottish Ministers. They felt that the constitution of DSFBs, with the majority of members representing rod and line fishing interests meant that interests of salmon netsmen might not be taken into account when DSFBs were applying for new regulations. The Salmon Net Fishing Association of Scotland (SNFAS) was concerned about the potential power of proprietors to apply to ministers to make regulations in areas where DSFBs have not been formed (currently 31 of Scotland’s 83 salmon fishery districts do not have a DSFB (39)). The Association of Salmon Fishery Boards (ASFB) felt that only vesting the power to apply for regulations in DSFBs might encourage proprietors to form them in the areas where they have not yet done so. The Aberdeen and District Angling Association suggested that a two-third majority of proprietors in the area in support of a proposal should be required before the DSFB could apply to Scottish Ministers to make regulations.

There was a broad consensus among respondents that regulations should be applied to a district or part of a district and not across a wider area. This response reflects the feeling that there are significant localised differences in conditions which should be taken into account in any regulations.

The ASFB questioned whether regulations would be enforced for specific time periods or indefinitely. They also felt that procedures for reviewing the effectiveness of regulations, and repealing regulations once they had achieved their objective, should be established.

Consultation and appeals procedure

The Salmon Net Fishing Association of Scotland (SNFAS), thought that they should be made statutory consultees for proposed regulations. The Scottish Environment Protection Agency (SEPA) also thought it should be consulted if regulations dealt with wider conservation matters, i.e. other than restricting fishing effort. If Scottish Ministers were to make regulations without an application from a DSFB then many respondents suggested that the appropriate DSFB and local fishery trusts or angling associations should be consulted.

The need to provide an opportunity for objections to be made to proposals was also raised by many respondents. The ASFB thought that a strict timetable should be established with proposals being brought forward in the April of the year before they would take effect, consultation being carried out over the summer months, and a decision being made by Scottish Ministers in the autumn. They felt this would allow DSFBs to inform fishing tenants of the effect of new regulations prior to the start of the new fishing season.

Emergency powers

The need to grant emergency powers which could be rapidly deployed in the event of a disease outbreak, or the complete failure of a run of salmon was raised by the RICS, ASFB and the Scottish Landowners Federation (SLF). The ASFB and RICS suggested that Scottish Ministers should only be able to make regulations in emergency situations.

Forming DSFBs in all Salmon Districts

DSFBs exist in 52 of Scotland’s 83 salmon districts (40). The ASFB is keen to encourage the formation of DSFBs in all salmon districts. Some of the districts which have not yet formed a DSFB are ones in which entire river catchments come under the ownership of one or two proprietors who do not feel the formation of a board would be necessary.

In their report in 1997 the SSSTF recommended that DSFBs and the present system of salmon districts should be replaced with a system of 20 Area Fishery Boards. The recommendation was made on the basis that larger boards would be better funded and therefore better able to carry out their duties. The new system would involve a rationalisation of existing boundaries to take into account salmon catches, changes in terrain and historic linkages. They also made recommendations as to how the membership of the new Area Fishery Boards should be constituted, and what powers they should have (39). The present Northwest Scotland and Lochaber DSFBs both result from amalgamations of smaller DSFBs carried out by subordinate legislation under the Salmon Act 1986 (41). An application from the 7 DSFBs in the Western Isles to form one larger board is currently being considered by Scottish Ministers (42) but a systematic reorganisation of the type proposed by the SSSTF has not yet been carried out.

Funding of DSFBs

Under the Salmon Act 1986, proprietors in a salmon district in which a DSFB has been formed are required to pay an annual contribution to the DSFB based on the valuation of their fishings. The ASFB suggested that DSFBs should be able to vary the rate of contribution of proprietors to account for different financial circumstances and management needs.

Control of fishing effort

Respondents to the consultation were asked to suggest what the nature of the regulations should be. Many responses suggested that regulations should limit fishing effort and a number of ways this could be achieved were suggested:

• Regulating net fisheries at the river mouth
• Making catch and release of rod-caught salmon compulsory
• Introducing restrictions on the number or size of fish which could be taken
• Changing daily, weekly or annual close times
• Changing the permitted methods for rod and line fishing.

Banning the sale of rod caught fish

The ASFB and the Scottish Anglers National Association (SANA) both suggested that the introduction of a ban on the sale of rod caught salmon should be considered. This would remove any incentives to rod anglers to fish intensively at certain times of year in order to sell fish commercially.

Need for more information

SNFAS and WWF both highlighted the need for more research to establish the status of salmon stocks to aid decision making. As David Dunkley, Inspector of Salmon & Freshwater Fisheries, explained to the RAC on 19th September (43), catch returns provide only a crude measure of the health of salmon stocks because of variations in fishing effort from year to year. The ASFB suggested that a right of access for conducting research on behalf of a DSFB and that a statutory requirement for fishery proprietors to report catches to DSFBs should be introduced.

Distinguishing between salmon and sea trout in the legislation

Under subsection 40(1) of the Salmon Act 1986:

“salmon means all migratory fish of the species Salmo salar and Salmo trutta and commonly known as salmon and sea-trout respectively”.

In their submission the ASFB suggested that the law could be amended to distinguish between salmon and sea-trout.

Effect on wildlife

SEPA raised a concern that some measures which might be introduced in the interests of salmon conservation, such as artificially creating pools for spawning, might have effects on other aquatic wildlife. SEPA was concerned that it should be consulted on proposals for regulations other than those designed to limit fishing effort.

Wider issues affecting salmon

Though they do not necessarily fall within the scope of the proposed legislation, or in some cases within the legislative competence of the Scottish Parliament, the Salmon Conservation (Scotland) Bill must be seen in the wider context of other factors affecting salmon stocks. Although it is not explicitly stated, the intent of the Bill seems to be to introduce measures to promote the conservation of salmon in the river environment by reducing fishing effort. Many of these were discussed earlier in this paper and were also mentioned by other respondents. Some respondents also drew attention to other factors that affect salmon including:

• The impact of salmon farming
• Predation of salmon by seals and fish-eating birds
• Deep sea drift netting of salmon by the Faroese and Greenland fleets
• Drift netting of salmon by the English Northeast coast drift net fishery
• By-catching of salmon as a non target species
• Industrial fishing reducing stocks of salmon food species such as sandeels and krill
• Changes in the marine environment, especially temperature changes resulting from global warming.

PROVISIONS OF THE BILL

Detailed commentary on each Section of the Bill is provided in the Explanatory Notes that were published alongside the Bill, this will not be repeated here. The main provisions of the Bill would be the introduction by Section 1 of the Bill of five new sections (10A to 10E) to the Salmon Act 1986 as follows.

REGULATIONS TO ASSIST THE CONSERVATION OF SALMON

A new Section 10A would give extend the current range of powers to make regulations in the interests of salmon conservation.

Under subsection (1) an application to make regulations under subsection (3) may be made to Scottish Ministers can be made by any person who can at present apply in relation to an annual close time order under Section 6 (4) of the Salmon Act. These are the district salmon fishery board for that district, or for districts where a board has not been formed, two or more proprietors of salmon fisheries in that district (44). The Tweed Commissioners have the same powers as a DSFB and would therefore be able to apply to the Secretary of State to make regulations.

Subsection 3 gives Scottish Ministers the power to make regulations on receipt of an application made under subsection (1) and also:

“(b) otherwise,

if they consider that it is necessary to do so for the conservation of salmon”.

The intent of the Bill is to allow the introduction of new regulations to control fishing effort. The breadth of the power introduced to make regulations in subsection (3) is intended to allow responsiveness to future requirements. Another approach would be to specify the areas in which regulations could be made, but this might be restrictive if new needs were identified in the future. It is envisaged that the sort of regulations which might be made under subsection (3) might be introducing compulsory catch and release or setting bag, size or gender limits (45). When the Subordinate legislation committee considered the Bill, several members raised concerns about the type of regulations that would be made under subsection(3). The committee agreed to seek clarification on this point from Scottish Ministers.

Subsection (4) states that:

“In considering whether or not it is necessary or expedient to make regulations under subsection (3) above, the Scottish Ministers shall have regard to any representations made to them by any person having an interest in fishing for or taking salmon, or in the environment”.

When the Bill was considered by the Subordinate Legislation Committee on the 4th of October Fergus Ewing MSP said:

“the provisions in new section 10A(4) under section 1 of the bill seem rather vague and ambiguous. Although I have never fished for salmon in my life, I certainly have an interest in doing so before my life is over. As a result, I will have a right to sue under the terms of the bill. I also have an interest in the environment and, frankly, do not know anyone who does not. Does the Executive intend that everyone should be able to make representations to which the ministers must have regard; or do ministers intend to listen only to some groups or voluntary organisations? Much more clarity would be appreciated. A legal duty is imposed upon ministers, and the extent of that duty and to whom it is owed must be made plain”. (46)

The Subordinate legislation committee agreed to seek further clarification from Scottish Ministers on the entitlement to make representations under subsection (4).

The requirement that Scottish Ministers can only make baits and lures regulations after receiving an application by a DSFB would be altered by subsection (6) (b). This states that regulations made under subsection (3) may:

“(b) specify baits and lures for the purposes of the definition of “rod and line” as in section 24 of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951”

This would allow Scottish Ministers to make baits and lures regulations without an application by a DSFB. Although DSFBs can apply for baits and lures restrictions under the Salmon Act 1986, so far only 18 out of 52 DSFBs have applied for such regulations and these changes would allow Ministers to impose restrictions if they thought it was necessary.

POWERS OF ENFORCEMENT ENTRY SEARCH AND ARREST

Section 10B would extend the powers of enforcement, entry search and arrest of water bailiffs and constables for new regulations made under section 10A to be the same as those conferred by sections 10-12 of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951. In practice this would mean that water bailiffs may: examine any water obstruction, dam or net; search a boat being used for salmon fishing; examine nets or other fishing implements; and seize any fish, fishing equipment or boat which is being used to commit an offence. If they have been granted a search warrant by a judge or sheriff, water bailiffs or constables can also search persons, premises or vehicles that may harbour evidence. Water bailiffs and constables may also arrest any person who they have reasonable grounds to suspect of having committed an offence.

OFFENCES, PENALTIES AND FORFEITURES

Section 10C explains that a person acting illegally could be fined up to level 4 on the standard scale (currently £2500). Section 10C would apply the same requirements for evidence, forfeiture and disposal of seized fish as under sections 7 (3), 19 (1) and 20 of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951. Therefore convictions made under 10C would: be lawful on the evidence of one witness; and illegally taken fish, the equipment used to take them and any profits made from their sale of would be forfeit.

REGULATIONS
In Section 10D the process of making new regulations under Section 10A is outlined. Regulations would be made by statutory instrument and could be applied to any river or fishery district for any season or time period, and could also make different provisions for different parts of a district or river. Regulations made under subsection 10A (3) would have the same conditions as are made in paragraphs 3-8 of Schedule 1 of the Salmon Act 1986. These detail requirements for the consultation procedure when making new regulations. The main requirements are that:

• After receiving an application to make regulations Scottish Ministers can: request any additional information they might need to consider it; dismiss it; or proceed with the consultation process.
• Scottish Ministers should consult appropriate parties.
• Notice of the effect of the regulations, the date of their coming into force, and opportunity for making objections to them must be advertised in a local newspaper at least 28 days before their coming into force.
• Scottish Ministers can alter their proposals for regulations at any time
• If Scottish Ministers change their proposals for regulations at any time they should consider the need to undertake further consultation.
• In the event of an objection being made to the regulations Scottish Ministers can hold a local enquiry, and the procedure for holding the enquiry is explained.

APPLICATION TO THE RIVER ESK

Section 10E explains that the new sections 10A–10 D introduced in Section 1 of the Bill would only be applied to the Scottish part of the River Esk, except in the case of changing the close season, when the whole river would be treated as being in Scotland.

CONCLUSION

The following are five of the main questions raised by the Salmon Conservation (Scotland) Bill:

1. Do the provisions of the Bill:
a. meet the initial policy intent
b. incorporate the issues raised in the consultation exercise?

The intent of the Bill is to conserve salmon stocks by allowing DSFBs to apply for, and Scottish Ministers to make, regulations to restrict fishing effort. This intent is certainly incorporated in the provisions of the Bill. However due to other restrictions (such as Human Rights legislation) it may not be possible to absolutely restrict effort by closing fisheries.

The Bill would introduce a wide power to make regulations which may be sufficiently flexible to incorporate many suggestions of the consultees. However many consultees made reference to the wider issues affecting salmon stocks. Some of these issues, such as the effects of international salmon fisheries cannot be addressed by the Bill, and other issues, such as the impact of salmon farming on wild fish stocks, are not included in it because they are outside the scope of the legislation.

2. Who would be able to make regulations under the Bill?

The Bill in its present form would grant Scottish Ministers the power to make regulations. Regulations would follow an application by a DSFB (or in the absence of a DSFB, by two or more fishing proprietors) or could be originated by Scottish Ministers themselves.

3. What type of regulations could be made under the Bill?

It is suggested that regulations might involve restricting the types of baits and lures which can be used for rod and line fishing, and giving DSFBs powers to request information from fishing proprietors. Although it is understood that the intention of regulations made under the Bill would be to preserve salmon stocks by reducing fishing effort, in its present form the Bill would give Scottish Ministers general powers to make regulations in the interests of salmon conservation.

4. Would the Bill assist in the conservation of salmon stocks?

In the absence of information about the relative importance of the factors which have contributed to declines in salmon stocks, it is very difficult to say exactly how effective alleviating any one factor might be. By reducing fishing effort regulations made under the Bill could increase the number of salmon surviving to spawn resulting in greater breeding success. It is difficult to say whether this would result in a long-term increase in stocks because of the uncertainty over survival rates in the marine phase in the salmon’s life cycle.

5. What would be the implications of the Bill for the Scottish salmon fishing industry?

The impact of the Bill on salmon fisheries would depend on the type of regulations which were introduced. The net fishery would be affected by restrictions on fishing effort because if the regulations were effective netsmen would catch less fish, and reducing income.

The impact on the rod and line fishery would depend on the extent to which any regulations reduced demand for rod and line fishing. The sale of fish caught by rod and line is only secondary in importance to the value of the fishing itself, so the introduction of e.g. mandatory catch and release or bag limits might not necessarily reduce demand for fishing and the value of the fishery. However, reducing the opportunity for fishermen to catch fish by e.g. introducing a daily close time, might cause them to decide to fish. This would depend on the extent to which opportunities were seen to be reduced. Many fishermen might be supportive of measures to reduce fishing effort as if they were successful they would eventually result in increases in fish stocks, and increase their opportunity to catch fish.


Research Papers are compiled for the benefit of Members of Parliament and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public.


1 Dunkley, DA – 1997 Catch per unit effort in the Scottish Salmon Net Fishery, The Salmon Net, Salmon Net Fishing Association of Scotland.
2 Fisheries Research Service data on salmon catches.
3 RAC OR, Meeting 25, 19th September 2000
4 Henderson, A & Davies, T – 2000, Review of Aquaculture, its regulation and monitoring in Scotland, J.Appl.Ichthyol. 16, pp 200-208
5 Report of the Joint Working Group on Farmed Fish Escapes, Scottish Executive, April 2000
6 Tripartite Working Group, Concordat and Report, Scottish Executive, June 2000
7 NASCO – 2000, Report of the ICES Advisory Committee on Fishery Management.
8 NASCO official pers comm
9 NASCO – 2000, Report of the ICES working group on North Atlantic Salmon
10 NASCO – 2000, Report of the ICES working group on North Atlantic Salmon, & Fisheries Research Service data on salmon catches.
11 Windsor, M & Hutchison, P – 1994, International Management of Atlantic Salmon, by NASCO 1984-94, Fisheries Management and Ecology, Vol 1, pp 31-44.
12 Windsor, M & Hutchison, P – 1994, International Management of Atlantic Salmon, by NASCO 1984-94, Fisheries Management and Ecology, Vol 1, pp 31-44.
13 NASCO – 2000, Report of the ICES Advisory Committee on Fishery Management.
14 Salmon Net Fisheries, report of a review of salmon net fishing, MAFF & Scottish Office
15 Freshwater Fisheries Laboratory, pers comm
16 Dee DSFB, submission to consultation exercise
17 Protecting and Promoting, Scotland’s Freshwater Fisheries: a review, Scottish Executive, April 2000
18 as reported in the report of the SSSTF published in 1997
19 Using the RPI as quoted in Scottish Labour Trends 2000.
20 Dunkley, D – 1997, Catch per Unit Effort in the Scottish Salmon Net Industry, The Salmon Net, SNFAS No 28.
21 NASCO -Seventh Annual Meetings, 5-9th June 2000, Miramichi, Canada
22 Salmon Conservation (Scotland) Bill, policy memorandum, para 5.
23 Stair Memorial Encyclopedia, Vol 11, Section 1, Salmon Fishing, paras 1-46.
24 Salmon Fisheries (Scotland) Act 1824 (repealed), Salmon Fisheries (Scotland) Act 1844 (repealed), Salmon Fisheries (Scotland) Act 1862 (repealed), Salmon Fisheries (Scotland) Act 1868, Salmon and Freshwater Fisheries (Scotland) Act 1951.
25 Except in Orkney & Shetland where under Udal law, which pre-dates feudal law, the right to fish for salmon is vested in landowners.
26 Where expressly permitted by the Crown, salmon may also be caught in a cruive, (a sort of trap) but this is very rare.
27 Protecting and Promoting Scotland Freshwater Fisheries: A Review – Scottish Executive 2000
28 Salmon (Definition of Methods of Net Fishing and Construction of Nets) (Scotland) Regulations 1992(SI 1992/1974), made under the Salmon Act 1986.
29 Other than certain exception such as on the River Tweed where the close time is 153 days.
30 As amended by the Freshwater and Salmon Fisheries (Scotland) Act 1976 and the Salmon (Weekly Close Time) (Scotland) Regulations 1988 (SI 1988/390) made the Salmon Act 1986
31 Water bailiffs are appointed by DSFBs.
32 Most recently by the Salmon and Freshwater Fisheries Act 1975
33 established under the Solway Salmon Fisheries Commissioners Act 1877.
34 Report of the SSSTF – Scottish Executive, 1997
35 Report of the SSSTF – A progress update by SERAD, August 2000
36 Scottish Executive official pers comm
37 Association of Salmon Fishery Boards (ASFB) submission to Scottish Executive consultation exercise.
38 RAC OR, Meeting 25, 19th September 2000
39 Report of the Scottish Salmon Strategy Task Force, Scottish Office 1997.
40 Scottish Executive Official pers comm
41 Statutory Instrument 1999 No. 1380 (S. 103) The North and West Salmon Fishery District Designation Order 1999 and Statutory Instrument 1999 No. 1382 (S. 105) The Lochaber Salmon Fishery District Designation Order 1999
42 Scottish Executive Official pers comm
43 RAC OR, Meeting 25, 19th September 2000
44 Salmon Act 1986
45 Scottish Executive Official pers comm
46 Subordinate legislation committee OR, Meeting 28, Tuesday 3rd October 2000

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Scottish Parliament: Research Briefings: RP 00-17 Salmon Conservation (Scotland) Bill

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