BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Printable RTF version]
[Help]
R V Maff and Secretary of state for Wales Ex Parte Mott [2000] EWHC Admin 339 (12th May, 2000)
CASE NO: CO/3573/99
IN THE SUPREME COURT OF JUDICATURE
QUEENS BENCH DIVISION
CROWM OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Friday 12 May 2000
BEFORE:
THE HON MR JUSTICE RICHARDS
-----------------------------
Regina
V
Maff and Secretary of state for Wales
Ex Parte Mott
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
____________________
Mr Gorden Bennett (instructed by 12 New Square) for the first
Applicant
Mr Nardell (instructed by 6 Promp Court) for the second applicant
Mr Thompson (instructed by Monkton Chambers) for the Respondent
____________________
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE RICHARDS:
1. This is an application for judicial review of byelaws contained in the
National Salmon Byelaws 1999, the effect of which is (i) to extend the close
season for fishing for salmon otherwise than with rod and line and (ii) to
impose a catch and release regime in respect of fishing for salmon with rod and
line in the early part of the season. The byelaws were made by the Environment
Agency ("the Agency") on 17 November 1998 and confirmed with modifications by
the respondents, namely the Minister of Agriculture, Fisheries and Food and the
Secretary of State for Wales, on 14 April 1999. The issue is whether the
respondents had the power to confirm the byelaws under the applicable statutory
provisions, an issue which depends in turn on whether the Agency had the power
to make the byelaws.
2. The applicant is the co-lessee of rights to fish 2 stop nets and 650 putts
or putchers (a "fixed engine", in the form of a conical basket, for catching
salmon) on the Gloucestershire side of the Severn Estuary. He is also the
freehold owner of three rod fisheries on the River Wye, from which he generates
income by selling day and season tickets to anglers. He relies on those
interests in salmon fisheries for his living. In the most recent year for
which figures are available they accounted for some 85% of his gross income.
The byelaws have had a severe effect on his income, in respect of which no
compensation is payable. It is common ground that by reason of those matters
the applicant has a sufficient interest to bring this challenge.
The byelaws
3. The byelaws of which the applicant complains are byelaws 3 and 5 of the 1999
Byelaws, together with corresponding amendments made by schedule 1 to certain
existing byelaws affecting waters fished by him. It is sufficient to
concentrate on byelaws 3 and 5 themselves, since the amendments to existing
byelaws are consequential and add nothing of substance. Nor is it necessary to
examine other provisions of the 1999 Byelaws, though it is right to observe
that byelaws 3 and 5 form part of a wider package of measures.
4. Byelaw 3 as confirmed reads:
"Notwithstanding the start date of the close season contained within existing
fisheries byelaws, the annual close season for fishing for salmon and migratory
trout, other than with rod and line, in any calendar year shall end on, and
include, the 31st day of May with the following exceptions ... [the exceptions
are not material]."
5. The annual close season for salmon otherwise than with rod and line starts
on 16 August in the case of putts and putchers. The effect of byelaw 3 is to
change the end date from 15 April until 31 May, thereby extending the close
season by some 6 weeks and leaving fewer than 3 months in the year in which it
is permissible to fish for salmon with putts and putchers. This has an obvious
adverse impact on the applicant's fishery interest in the Severn Estuary.
6. Byelaw 5 as confirmed reads:
"Any person who removes any live or dead salmon taken by rod and line from any
waters or banks without the previous authority of the Agency before the 16th
day of June in any calendar year shall be guilty of an offence.
This byelaw shall not apply to any person who lawfully takes a salmon and
returns it immediately to the water with the least possible injury."
7. The effect of byelaw 5 is to impose a regime of mandatory catch and release
for salmon fished with rod and line in the early part of the season, up to 16
June. The applicant claims that this reduces the popularity of angling during
that period and adversely affects his fishery interests on the River Wye.
8. The 1999 Byelaws came into force on 15 April 1999 and will expire on 31
December 2008. They therefore cover ten annual seasons.
9. The reasoning behind the confirmation of the byelaws is set out in a letter
dated 8 April 1999 to the Environment Agency from Mr Ivor Llewellyn, Head of
Fisheries Division II at the Ministry of Agriculture, Fisheries and Food. The
court also has before it a witness statement from Mr Llewellyn. The impetus
for the byelaws derived first from a report by the International Council for
the Exploration of the Sea, which advised that, on account of there being a
widespread decline in stocks of multi-sea winter salmon (i.e. salmon that spend
more than one winter at sea before returning to their native rivers to spawn)
throughout the North Atlantic, extreme caution should be exercised in the
management of those stocks. Secondly, the Government's own researches
indicated that spring salmon (i.e. salmon which are found moving upstream early
in the season, at any time between February and early June) were in decline
throughout England and Wales. Ministers concluded that action was necessary to
conserve spring salmon and that measures should be applied throughout England
and Wales. Overall they noted that the proposed measures might be expected to
increase the number of early running salmon spawning in England and Wales by
around 3,000 fish and that this would represent a significant increase in the
number of spring salmon spawning; estimates suggested that the total might
increase by between one third and one half. They concluded that for those
reasons byelaw 3 would significantly enhance salmon conservation. As to byelaw
5, they took the view that catch and release was a workable alternative to
temporary closure and would have a less serious economic impact on owners of
fisheries and on related sectors. Most anglers could be expected to comply
with a legal requirement to release salmon, and most salmon released would
survive to spawn. Ministers therefore concluded that the measures would make a
significant contribution to the conservation of spring salmon. Moreover one of
the effects of the package would be to increase the number of salmon available
to rods over the season as a whole.
10. The applicant does not dispute that the stock of spring salmon is in
serious decline and that the new byelaws represent a rational attempt to stop
that decline. His case is that the byelaws fall outside the powers of the
Agency and therefore cannot lawfully be confirmed by the respondents. Thus the
issues relate only to the vires of the measures.
The present statutory framework
11. The Salmon and Freshwater Fisheries Act 1975 ("the 1975 Act") is a
consolidating statute many of the provisions of which remain in force, though
the power to make byelaws is now to be found in the Water Resources Act 1991
("the 1991 Act").
12. Section 19 of, and Schedule 1 to, the 1975 Act make provision for close
seasons and close times. For salmon, paragraph 3 of Schedule 1 lays down a
close season of 153 days' minimum duration (or 242 days' minimum duration in
the case of fishing with putts and putchers) and a weekly close time of 42
hours' minimum duration. Subject to any byelaws, the close season for rods is
the period between 31 October and the following 1 February, and for putts and
putchers it is the period between 31 August and the following 1 May. Section
19(2) makes it an offence to fish for salmon during the close season. Section
19(3) provides for exceptions, including where a person "has obtained the
previous permission in writing of the water authority" (now the Agency).
13. By separate provision, section 2(2) of the 1975 Act makes it an offence to
fish for or sell any salmon which is "unclean or immature". An "unclean" fish
is defined by section 41 as meaning that "the fish is about to spawn, or has
recently spawned and has not recovered from spawning". An "immature" salmon is
defined as one of less than 12 inches in length.
14. The power to make byelaws is now conferred by section 210 of, and Schedule
25 to, the 1991 Act. The power was originally exercisable by water
authorities, but the Agency was substituted by the Environment Act 1995.
Paragraph 6 of Schedule 25 to the 1991 Act, as amended, provides:
"6.(1) The Agency shall have power, in relation to the whole or any part or
parts of the area in relation to which it carries out its functions relating to
fisheries under Part V of this Act, to make byelaws generally for the purposes
of -
(a) the better execution of the Salmon and Freshwater Fisheries Act 1975;
and
(b) the better protection, preservation and improvement of any salmon fisheries
...
(2) Subject to paragraph 7(1) below, the Agency shall have power, in relation
to the whole or any part of the area mentioned in sub-paragraph (1) above, to
make byelaws for any of the following purposes, that is to say -
(a) prohibiting the taking or removal from any water without lawful authority
of any fish, whether alive or dead;
(b) ....
(c) prohibiting the use for taking salmon ... of any instrument (not being a
fixed engine) in such waters and at such times as may be prescribed by the
byelaws;
(d) specifying the nets and other instruments (not being fixed engines) which
may be used for taking salmon ..., imposing requirements as to the use of such
nets and other instruments and regulating the use, in connection with fishing
with rod and line, of any lure or bait specified in the byelaw;
(e) authorising the placing and use of fixed engines at such places, at such
times and in such manner as may be prescribed by the byelaws;
(f) imposing requirements as to the construction, design, material and
dimensions of any such nets, instruments or engines as are mentioned in
paragraphs (d) and (e) above, including in the case of nets the size of
mesh;
....
(3) Subject to the provisions of Schedule 1 to the Salmon and Freshwater
Fisheries Act 1975 (duty to make byelaws about close season), the Agency shall
have power, in relation to the whole or any part or parts of the area mentioned
in sub-paragraph (1) above, to make byelaws for any of the following purposes,
that is to say -
(a) fixing or altering any such close season or close time as is mentioned in
paragraph 3 of that Schedule;
...."
15. Section 211 contains provisions relating to the enforcement of the byelaws.
Section 212 provides for compensation in respect of certain byelaws. The
material part reads:
"(1) Where -
(a) the owner or occupier of any fishery by notice to the Agency claims that
the fishery is injuriously affected by a byelaw made for any of the purposes
specified in subsection (2) below; and
(b) that claim is made at any time before the end of twelve months after the
confirmation of the byelaw,
the claim and the amount of compensation to be paid, by way of annual payment
or otherwise, for the damage (if any) to the fishery shall be determined, in
default of agreement, by a single arbitrator appointed by one of the
Ministers.
(2) The purposes mentioned in subsection (1)(a) above are the following
purposes specified in paragraph 6(2) of Schedule 25 to this Act, that is to
say:
(a) prohibiting the use for taking salmon ... of any instrument (not being a
fixed engine) in such waters and at such times as may be prescribed by the
byelaw;
(b) specifying the nets and other instruments (not being fixed engines) which
may be used for taking salmon ... and imposing requirements as to the use of
such nets and other instruments;
(c) imposing requirements as to the construction, design, material and
dimensions of any such nets or instruments, including in the case of nets the
size of mesh."
Thus there is a broad correspondence between the making of byelaws under
paragraph 6(2)(c), (d) and (f) of Schedule 25 and the right to compensation
under section 212 of the 1991 Act.
The legislative history
The 1861 Report
16. Counsel for both parties have focused a lot of attention on the 1861 Report
of the Royal Commission on Salmon Fisheries (England and Wales), Cmnd 2768,
which examined in considerable detail the causes of a serious decline in salmon
and led to the first major pieces of general legislation in the field, the
Salmon Fishery Acts of 1861 and 1873. As appears below, the applicant relies on
it as showing that the power to make byelaws relating to close seasons can be
exercised only for the limited purpose of protecting unclean or unseasonable
fish. I think it sufficient to summarise each party's contentions concerning
the report and to quote a few of the passages relied on in support of those
contentions.
17. For the applicant it is said that the report shows that the object of
concern in relation to close seasons was the protection of unclean fish, and
that this was the mischief at which the relevant part of the legislation was
directed. For example, defective regulation of close seasons was identified as
one of the principal causes of the decline in salmon. Under the heading "Close
Time" (pp.xv-xvi) the report states:
"Second only in importance ... is the regulation of the period during which the
capture of [fish] should cease, with a view to their carrying on the process of
breeding unmolested. The necessity for fixing a 'close season' for this
purpose has been recognized by the Legislature from very early times; but the
mode in which it is regulated in the different rivers, under the existing law,
is in the highest degree unsatisfactory ....
Defective as the provisions of the law are as to close time, even these are
very imperfectly enforced .... In these and many other ways a great
destruction of unseasonable fish takes place."
18. A further "cause of evil" identified by the Commission was illegal fishing,
including the killing of breeding fish in the spawning beds and the killing of
spent fish in the early part of the year. Having considered these and other
problems, the Commission went on to make a series of recommendations. They
first set out proposed arrangements for the management and maintenance of the
fisheries, including the appointment of a Central Board of Commissioners. They
then specified the regulations and restrictions deemed necessary "in order to
restore [the fisheries] from their present depressed state and develope their
power of production". As to that, the report continues (p.xxvii):
"Of these none is more important than the regulation of the close season ....
In order to the recovery [sic] of the fisheries, it is essential that
the time fixed for suspension of fishing should both commence so early, and be
of such reasonable duration, as to protect the salmon from capture or
disturbance throughout the breeding season."
19. After examining the arguments for and against a uniform close season for
all rivers, the Commission concluded (p.xxviii):
"We are bound to state that, in our opinion, the reasons in favour of
uniformity of close seasons greatly preponderate. If, by the laws of nature,
the breeding season is everywhere the same, why should the regulation, which is
designed to protect the breeding operations, differ in point of time? We are
persuaded that the offence of killing or dealing in unseasonable fish can never
be suppressed, unless all fish sold or offered for sale after a given day,
wherever taken, are declared by law unseasonable ...."
The report proceeds to examine the appropriate duration and term of a uniform
close season, first for nets and other fixed engines and then for angling. It
also contains a recommendation that the proposed Central Board should have a
limited discretionary power to modify the close season. I do not think that
the details are material, not least since the periods set now depend on
up-to-date scientific knowledge. What matters is the light that the report
casts on the purpose for which the statutory provisions governing close seasons
were introduced.
20. For the respondents it is said that, although one of the report's concerns
is plainly with breeding fish, the report as a whole goes much wider and does
not justify the restricted purpose for which the applicant contends. That is
clear even in the context of the recommendations as to close seasons. When
considering the term of a uniform close season, the Commission expressed the
conclusion that net fishing could not be continued after the beginning of
September. One reason was that a considerable proportion of fish taken in that
month were more or less advanced in spawn. The report goes on (p.xxix):
"But we wish to record our own conviction that, if it is desired to restore the
fisheries to their full productiveness, it is not by this test alone that the
question of close time should be decided. It is not merely because some of the
fish killed after a certain date are in a spawning state, or unfit for food,
that we would prohibit the capture at that period. The question, in our
view, turns rather on the sufficiency of the quantity of breeding fish let up
to stock the spawning grounds, and so to replenish the waters. It is with
a river as with a farm, - as men sow, so will they reap .... It is on this
ground, in order to develope to the full extent the capabilities of the water,
and the natural fecundity of the fish, that we believe the enactment by law of
a comparatively early close time would be attended with most beneficial
effects, in fact, that it is essential to the restoration of the fisheries ..."
(emphasis added).
21. Further, the Commission recommended not only an annual close season but
also a weekly close time during the open season. The very expression "close
time" is used in the report to refer to both concepts. In relation to a weekly
close time the report states (p.xxx):
"With a view still further to facilitate the passage of the fish and to promote
their distribution through the water while in season, we recommend that
provision be made for enforcing under adequate penalties, the observance of a
weekly close time, that is, the suspension of fishing by all methods during the
open season, between 6 p.m. on Saturday evening and 6 a.m. on the following
Monday ...."
22. I should also mention, since it is a matter on which the respondents have
placed some weight, the strong views expressed by the Commission in relation to
fixed engines such as the putts and putchers used in the Severn Estuary. The
Commission recommended their total suppression, as being baneful to the
fisheries. Such fixed engines were subsequently banned by the Salmon Fishery
Act 1865, save where they were certified on the basis of long usage. The
prohibition is now to be found in section 6 of the 1975 Act. The applicant's
putts and putchers continue to benefit from the original certification and for
that reason fall outside the prohibition.
The Salmon Fishery Acts 1861 to 1873
23. Parliament responded to the Royal Commission's report by the enactment of
the Salmon Fishery Act 1861 Act, "for the Purpose of increasing the Supply of
Salmon" (to quote from the recital). The Act created a variety of offences
including, under the heading "Prohibition of the Destruction of Unseasonable
Fish", the taking of unclean or unseasonable fish and young salmon (sections 14
and 15). Under the heading "Restrictions as to Times of Fishing" it introduced
a uniform close season in line with the Commission's recommendation, which
could be extended or varied by the Home Office on application of the justices
(section 17), and a weekly close time, again in line with the Commission's
recommendation (section 21). At that stage there were no powers to make
byelaws.
24. The first byelaw-making powers appeared in the Salmon Fishery Act 1873.
Section 39 of the 1873 Act provided:
"Subject to the provisions herein-after contained for the confirmation and
publication of byelaws, a board of conservators may make byelaws for the better
execution of 'The Salmon Fishery Acts, 1861 to 1873', and for the better
protection, preservation, and improvement of the salmon fisheries within their
district, and alter the same from time to time for all or any of the following
purposes ...."
The purposes specified (numbered (1) to (12)) included altering the
commencement and termination of the annual close season and of the weekly close
season, in each case within defined limits. They also included many of the
other purposes still to be found in the current legislation, including those
relating to size, description and manner of use of nets. Additional powers to
make byelaws were conferred by the Salmon Fishery Act 1876, but nothing turns
on them.
The Salmon and Freshwater Fisheries Act 1923
25. The Salmon and Freshwater Fisheries Act 1923 consolidated, with amendments,
the then existing legislation. Section 26 of the 1923 Act made provision for
the annual close season for salmon, introducing for the first time a separate
close season for putts and putchers. Section 27 made provision for the weekly
close time. In each case the provisions referred across to the period fixed by
byelaws but provided a fall-back period in the event that there was no such
byelaw. Section 59(1) empowered a fishery board or, where there was no such
board, the Minister to make byelaws for any of a long list of purposes
(paragraphs (a) to (u)). The purposes included, in paragraphs (a) to (c),
fixing or altering the annual close season and the weekly close time for
salmon; in paragraphs (f) and (j), regulating the use of nets and other
instruments; in paragraph (k), prohibiting the taking or removal from any
waters without lawful authority of any live or dead fish; and in paragraph (u),
"Generally for the better execution of this Act, and for the better protection,
preservation, and improvement of the fisheries in the district". Section 59(4)
introduced provision for the payment of compensation if a fishery was
injuriously affected by a byelaw under paragraph (f) or (j).
1961 Report of the Salmon and Freshwater Committee
26. The 1923 Act and subsequent pieces of legislation were reviewed by a
Parliamentary committee which reported in 1961. The Report of the Salmon and
Freshwater Committee, Cmnd 1350, generally referred to as "the Bledisloe
Report", contains over 150 recommendations, only some of which were
implemented. In a chapter on conservation of fisheries, the report states that
the fundamental object of all fishery legislation must be to conserve the
stocks of fish. The respondents rely in particular on a passage in that chapter
concerning close periods:
"In our view, however, the best method of conservation for salmon and sea trout
in the sea, in estuaries and fresh waters is the imposition of a close season
and close times when no fishing is allowed. It is effective, flexible and easy
to enforce. We would like to emphasise that in our view a close period -
whether it be annual, weekly, or for some part of a day - acts by reducing
proportionately to its length the fishing pressure on the stock. We think it a
fallacy that there is any over-riding merit, from the conservation point of
view, in the close season coinciding with the breeding season; a salmon caught
in April can no more contribute to the next generation than one caught (before
it has spawned) in October or November. Nevertheless, we accept that it is
generally convenient that the annual close season should include the principal
spawning period, for at that time the fish we are concerned with are in poor
condition, their food value is low and their flavour is poor. We would call
particular attention to the value of short periods of close time, like the
present weekly close time, throughout the fishing season. We think that this
arrangement tends to give an even spawning escapement throughout the season, it
enables the upper river to receive stocks of all different runs of salmon and
sea trout that enter the river ... and it spreads the fishing pressure evenly
throughout the season. We stress the importance of frequent short period
close times down to parts of a day or night for commercial fishing for salmon
and sea trout .... We therefore recommend that river boards should have
complete discretion to determine the length and frequency of close times by
byelaw, subject only to the Minister's confirmation before the byelaw can
become operative" (original emphasis).
27. The specific recommendations of the Bledisloe Committee concerning close
seasons were not implemented. But passages in Hansard concerning what became
the relevant provisions of the 1975 Act (see in particular debate on 25 May
1972, cols. 1233-4) provide some, albeit limited, support for the proposition
that the legislative purpose in relation to the fixing and altering of close
seasons and close times was in line with the view expressed by the
Committee.
The 1975 Act
28. I have referred already to the consolidating legislation in 1975, much of
which is still in force. The provisions of the 1975 Act relating to the
making of byelaws, now replaced by those in the 1991 Act, were contained in
Schedule 3 and were in substance materially the same as those in the 1923 Act.
For example, among the purposes for which byelaws could be made were fixing or
altering, subject to the minimum periods laid down in Schedule 1, any close
season or close time (Schedule 3, paragraph 19), prohibiting the taking or
removal of any fish without lawful authority (paragraph 26) and the better
execution of the Act and the better protection, preservation and improvement of
any salmon fisheries (paragraph 36).
Byelaw 3: the issues
29. The case advanced by Mr Bennett on behalf of the applicant (reinforced by
Mr Nardell in his submissions in reply) in relation to byelaw 3 goes as
follows. It is submitted that the byelaw can only have been made under the
power conferred by paragraph 6(3)(a) of Schedule 25 to the 1991 Act to make
byelaws for the purpose of fixing or altering a close season. That power,
however, can be exercised only for the purpose of protecting unclean or
unseasonable fish, i.e. fish that are about to spawn or have recently spawned
and have not recovered from spawning (the definition of "unclean" in section 41
of the 1975 Act, quoted above, broadly covers the point). Since the avowed
purpose of byelaw 3 goes beyond the protection of unclean or unseasonable fish
and extends to the protection of adult salmon generally, the byelaw has an
unlawful purpose. It was therefore outside the powers of the Agency to make it
and of the respondents to confirm it.
30. The restricted purpose for which, on the applicant's case, the power
conferred by paragraph 6(3)(a) can be exercised is not to be found in any
express provision of the statute. But Mr Bennett contends that it is an
implied purpose. The powers conferred by paragraph 6(3) were originally
conferred so as to protect breeding fish and to make effective the ban on the
taking of unclean fish now contained in section 2(2) of the 1975 Act. In that
connection reliance is placed on the 1861 Report of the Royal Commission, as
already explained when examining the legislative history. It is submitted that
there has been no material change to the legislative purpose in the
consolidating legislation adopted over the years and that the purpose evidenced
by the 1861 Report remains the legislative purpose.
31. Moreover, it is submitted, it cannot have been the legislative intention
that the close season could be used as a way of protecting clean fish, thereby
avoiding the duty to pay compensation under section 212 of the 1991 Act in
respect of restrictions on fishing for clean fish. Where measures are needed
for the protection of clean fish, they are to be adopted not under paragraph
6(3) but under paragraph 6(2), in particular under paragraph 6(2)(c)
(prohibiting the use of any instrument for taking salmon at such times as may
be prescribed). That would engage the corresponding provisions for payment of
compensation under section 212. The distinction between clean and unclean fish
is the only rational distinction between the powers under paragraph 6(2) and
those under paragraph 6(3), given that compensation is payable in the one case
but not in the other for the interference with private rights to which the
byelaws give rise.
32. Reliance is also placed on the presumption against statutory interference
with vested common law rights and the reluctance of the courts to construe a
statute as authorising such interference on the basis of necessary implication
rather than express provision. As Lord Browne-Wilkinson expressed it in R
v. Secretary of State for the Home Department, ex p. Pierson [1998] AC 539
at 575:
"A power conferred by Parliament in general terms is not to be taken to
authorise the doing of acts by the donee of the power which adversely affects
the legal rights of the citizen or the basic principles on which the law of the
United Kingdom is based unless the statute conferring the power makes it clear
that such was the intention of Parliament."
To similar effect the Court of Appeal in R v. Secretary of State for the
Environment, Transport and the Regions, ex p. Spath Holme Ltd. [2000] 1 All
ER 884 at 898-9 referred to the presumption that "Parliament does not intend
... to take away property rights without clear language". See also R v.
Secretary of State for the Home Department, ex p. Leech [1994] QB 198.
33. For the respondents, Mr Thompson submits first that the applicant's case
proceeds on a false premise. The close season was not introduced in the first
place for the sole purpose of protecting unclean fish. Again I have already
considered what is said by the respondents about the 1861 Report.
Alternatively, it is submitted, the subsequent legislation was not purely
consolidating legislation but rather extended the purpose of close seasons to a
general protection of salmon or at least of salmon capable of breeding. In
particular the power conferred by paragraph 6(1)(b) pursues a broader purpose
than that suggested by the applicant and there is no reason to interpret the
provisions in respect of close seasons in a more restricted sense. As to the
question of interference with vested rights, Mr Thompson points out that the
legislation expressly authorises such interference by way of the fixing of a
close season and a weekly close time. The legislative intention to permit such
interference is therefore clear. The only issue is the purpose for which such
powers can be exercised.
34. In my judgment there is no foundation to the applicant's case as to the
restricted purpose for which the Agency may make close season byelaws under
paragraph 6(3)(a), and the challenge to byelaw 3 must fail. In support of that
conclusion I rely on the following considerations, which to some extent
overlap:
(1) The 1861 Report of the Royal Commission does not support the existence of
that restricted purpose. It is true that the main emphasis of the reasoning
concerning close seasons is the protection of breeding fish. But it is also
clear that the Commission did not consider that to be the sole purpose of the
close season. They emphasised that the matter went wider than that and turned
on "the sufficiency of the quantity of breeding fish let up to stock the
spawning grounds, and so to replenish the waters". Further, although the
Commission did distinguish between the annual close season and the weekly close
time, the language used in relation to the latter ("still further to facilitate
the passage of the fish and to promote their distribution through the water
while in season) does not suggest the marked difference in purpose for which
the applicant contends.
(2) From the 1861 Act onwards the legislation has dealt separately with, on the
one hand, the prohibition on the taking of unclean or unseasonable fish and, on
the other hand, the close season. There is nothing in the grouping or language
of the statutory provisions to suggest a direct linkage in terms of purpose.
(3) On the other hand, from the 1861 Act onwards the legislation has dealt
together with the annual close season and the weekly close time; yet the latter
relates to the open season rather than to the protection of fish during the
breeding season. In the 1861 Act the two sections came under the same heading.
In the 1873 Act one followed the other in the list of byelaw-making powers. In
the 1975 Act they came together in a single provision. They remain in a single
provision in paragraph 6(3)(a) of the 1991 Act. I accept that the "carpentry"
of legislative drafting, as counsel for the applicant put it, should not be
allowed to obscure their evolution as different concepts. Equally, however, it
seems to me that they have been placed together because the draftsman considers
them to be related concepts. It would be surprising if the draftsman had
grouped together, as one of the "purposes" for which byelaws can be made, two
matters so different in character that the byelaw-making power had to be
exercised in each case for an altogether different purpose - for the protection
of unclean or unseasonable fish in the case of the annual close season, but for
the wider protection of the stock in the case of the weekly close season.
(4) The very much longer statutory minimum close season for putts and putchers
(which have evidently been viewed with a degree of legislative hostility since
the time of the 1861 Report) tells further against the absence of a clear-cut
linkage between the close season and the protection of unclean or unseasonable
fish. Salmon do not breed in the Severn Estuary and, notwithstanding the
points made briefly in the applicant's evidence in reply, I accept the
respondents' evidence that the close season for putts and putchers is too long
to have been included solely for the protection of fish during the breeding
season.
(5) Although the specific "purposes" identified in paragraph 6(2) and (3) of
Schedule 25 identify various kinds of byelaws that may be made, the best
statutory indication of the purposes for which the byelaw-making powers may be
exercised is given by the broad language of paragraph 6(1)(a) and (b), in
particular the purpose in (b) of "the better protection, preservation and
improvement of any salmon fisheries". The language is materially identical to
that of the first byelaw-making power, in section 39 of the 1873 Act, and has
been preserved in essentially the same form during each successive
consolidation, though appearing sometimes at the start and sometimes as a final
catch-all in the list of purposes. It tells strongly against the implication
of a restricted purpose to the exercise of the byelaw-making power in respect
of the close season. The various provisions are to be viewed as complementary
and as pursuing the same broad purpose.
(6) I accept the respondents' evidence that the distinction between the
protection of spawning salmon and the conservation of the stock generally is an
artificial one. If salmon are killed before they have an opportunity to spawn,
then they cannot spawn and the spawning stock is reduced. The main purpose of
all salmon conservation measures is to protect what is described as the
"spawning escapement", i.e. the number of salmon that are not caught and are
subsequently able to spawn. This is reflected in the view that the 1999
Byelaws would result in a significant increase in the number of spring salmon
spawning.
(7) The Bledisloe Report may not be a direct indicator of legislative intention
as regards the provisions here in issue, but it does set out a rationale for
the close season that goes well beyond the restricted purpose for which the
applicant contends and supports the respondents' view that the overall purpose
is the protection of the fish stock. In that way it provides broad support for
the respondents' case.
(8) If, in order to circumvent the requirement to pay compensation, the Agency
were to use the power under paragraph 6(3)(a) to fix or alter the close season
rather than the powers under paragraph 6(2)(c), (d) or (f) to regulate the use
of nets and other instruments, then such a decision might be vitiated by an
improper purpose and therefore be unlawful. But I do not think that the
existence of provisions, introduced in 1923, for the payment of compensation in
certain circumstances can serve to limit the power to fix or alter the close
season in the way contended for by the applicant. I cannot see the
justification for the suggested relationship between the two sets of
provisions.
(9) The applicant's argument ad absurdum that, if the respondents' case
is correct, the close season could be extended so as to cover the whole year
and that provisions such as paragraph 6(2)(c) would therefore be otiose is
unrealistic and unpersuasive. The appropriate length of the close season is
subject to the limits of rationality (and possibly, once the Human Rights Act
1998 comes into force, of proportionality). It is not necessary to adopt a
strained approach to the Agency's vires in order to avoid an absurd
result.
(10) The presumption against statutory interference with vested common law
rights cannot assist the applicant in relation to byelaw 3. Parliament has
made express and unequivocal provision for a close season without payment of
compensation, including express power for the Agency to fix or alter the close
season. It is the applicant who seeks to introduce a particular implied
limitation on the exercise of that power. My rejection of that limitation does
not conflict in any way with the statutory presumption relied on by the
applicant.
Byelaw 5: the issues
35. The case advanced by counsel for the applicant on byelaw 5 is that
paragraph 6(2)(a) of Schedule 25 to the 1991 Act, on its proper construction,
does not empower the making of the byelaw; and paragraph 6(1)(b), upon which
the respondents also rely as a source of power, cannot be used in order to get
round the limitations inherent in paragraph 6(2)(a).
36. What is said about paragraph 6(2)(a) is that the reference to prohibiting
the taking or removal of fish "without lawful authority" is a reference to the
position under the general law and does not empower the Agency itself to limit
a person's lawful authority to take or remove fish. The main determinant of the
existence of lawful authority under the general law is the permission of the
owner of the relevant fishing rights, though there may also be separate
statutory limitations on a person's authority. The classic case of taking or
removing fish without lawful authority is that of poaching; and it is against
poaching that the provision is essentially directed. Although poaching is an
offence under the ordinary criminal law (see now the Theft Act 1968, Schedule
1, paragraph 2), there is a useful purpose to be served in making it an offence
under the fisheries byelaws since this enables the prohibition to be enforced
by the fisheries authorities.
37. The applicant points out that that construction of paragraph 6(2)(a), or
its statutory predecessor, was assumed to be the correct one by the Bledisloe
Committee in its 1961 Report (paragraph 314). It is also submitted to reflect
the natural and ordinary meaning of the language of paragraph 6(2)(a). The
language of the provision is far from that of a power to take away lawful
authority that is otherwise enjoyed. The respondents' construction is moreover
far too wide, in that it would empower the Agency to prohibit the taking or
removal of any fish from any water by any person for any purpose, and to do so
without payment of the compensation provided for in relation to the exercise of
powers under paragraph 6(2)(c), (d) and (f).
38. If the applicant is right about the limited scope of paragraph 6(2)(a),
then it is submitted that that limitation cannot be got round by recourse to
paragraph 6(1)(b). There is a presumption that a statute does not give any
person the right to interfere with a person's rights without compensation,
though the right must yield where the language of the statute is sufficiently
clear to authorise the interference without compensation: see per Arden J in
British Waterways Board v. Severn Trent Water Ltd. [2000] 1 All ER 341
at 361f; and, more generally, the authorities cited in the context of byelaw 3
(ex p. Pierson, ex p. Spath Holme and ex p. Leech). The
general words of paragraph 6(1)(b) are not sufficiently clear for that purpose.
They are not apt either expressly or by necessary implication to take away
without compensation the applicant's fishery rights.
39. Counsel for the respondents submits first that paragraph 6(2)(a) is apt to
confer the power to regulate the taking and removal of fish in the way achieved
by byelaw 5. The applicant's construction gives it a very narrow scope,
virtually limited to prohibiting what is already an offence under the general
criminal law. It is submitted that the "prohibition" provided for in paragraph
6(2)(a) includes a prohibition that limits the scope of "lawful authority", and
that the possibility of the Agency giving written permission so as to exempt a
person from what would otherwise be an offence is illustrated by section 19(3)
of the 1975 Act.
40. Alternatively, it is submitted, it was lawful to make byelaw 5 under the
powers conferred by paragraph 6(1)(b). The existence of the specific powers in
paragraph 6(2) and 6(3) does not limit the purposes for which the general
powers under paragraph 6(1) may be exercised. It is accepted that the Agency
could not rely on the paragraph 6(1) powers in order to circumvent the payment
of compensation for the making of byelaws for certain of the purposes specified
in paragraph 6(2); but there is no question of that in the present case. The
payment of compensation under section 212 of the 1991 Act depends in any event
on the substantial purpose of the byelaw, not on the particular byelaw-making
power invoked. The respondent further submits that if paragraph 6(2)(a) is a
limited anti-poaching provision as the applicant contends, that serves to
underline the importance of being able to rely on the general provision of
paragraph 6(1)(b) to cover a situation such as the present. The fact is that
byelaw 5 was introduced as a concession to anglers, as an alternative to the
extension of the close season for fishing with rod and line. It permits
continued fishing by rod and line, provided that the fish caught are released
again. It would be anomalous if paragraph 6(1)(b) could not be relied on for
the adoption of a less restrictive measure than could be adopted by way of
extension of the close season under paragraph 6(3)(a) - a close season which
might have to be adopted if byelaw 5 were declared unlawful.
41. I find the issues under byelaw 5 less straightforward than those under
byelaw 3. In my judgment, however, the applicant's submissions on the
construction of paragraph 6(2)(a) are correct and that provision is not apt to
confer the power to make byelaw 5. In relation to paragraph 6(1)(b), by
contrast, I prefer the respondents' submissions and I accept that it does
empower the making of byelaw 5. I therefore reject the challenge to the
lawfulness of the byelaw. My reasons for those conclusions are as follows:
(1) When paragraph 6(2)(a) refers to a prohibition on the taking or removal of
fish "without lawful authority", it seems to me that it refers to a state of
affairs - the absence of lawful authority - that exists independently of the
byelaw itself. Whether a person has lawful authority to take or remove fish is
a question sensibly determined under the general law. The suggestion that the
byelaw is directed essentially at the classic case of absence of lawful
authority, namely poaching, as the Bledisloe Committee assumed, gives the
language of paragraph 6(2)(a) its natural and ordinary meaning and produces a
sensible and workable result. By contrast, the respondents' construction is
strained and unsatisfactory. Had the byelaw been intended to confer on the
Agency the power to limit or remove a person's lawful authority, then I would
have expected it to be worded differently (e.g. so as to prohibit the taking or
removal of fish "save to the extent authorised by the Agency" or "save as may
be prescribed by the byelaw"). In any event, in the absence of clearer
language I would be disinclined to construe the provision as being so wide in
scope, especially when I compare it with the relatively specific provisions
otherwise contained in paragraph 6(2).
(2) As to paragraph 6(1)(b), its language is very general and, taken at face
value, seems apt to empower the Agency to lay down, in the interests of
conservation of the stock, a requirement that fish caught during a specified
period are to be released unless the Agency has authorised otherwise. The main
question that arises is whether, in the light of the presumption that a statute
does not authorise interference with a person's rights without compensation,
the provision should nonetheless be considered insufficiently clear to
authorise restrictions on angling. I think not. Paragraphs 6(2) and 6(3)
expressly authorise a wide range of interferences with fishery rights, in many
cases without compensation. As a matter of necessary implication paragraph
6(1) must also authorise interferences with such rights. To hold otherwise
would deprive the provision of any real effect, since the making of byelaws in
this field will almost inevitably involve some interference with fishery
rights. The legislative intention must have been that paragraph 6(1), by its
very generality, would be available to cover situations not covered by the
specific provisions of paragraph 6(2) and (3).
(3) Once it is accepted that paragraph 6(1)(b) authorises some interference
with fishery rights, there is no warrant for holding that the very limited
interference to which byelaw 5 gives rise falls outside its scope. It would be
anomalous if the Agency were unable to rely on paragraph 6(1)(b) in order to
introduce a regime that was less restrictive, and interfered less with fishery
rights, than a regime otherwise open to it in the exercise of its other powers
under paragraph 6, in particular the extension of the close season under
paragraph 6(3)(a) (which in my view, for reasons already given, would be open
to it as a matter of vires). In assessing the degree of interference
with fishery rights, it is also important to bear in mind that the restriction
imposed by byelaw 5 has a direct effect only on anglers rather than on those
with commercial interests in fisheries, that even in the case of anglers it
does not interfere with the practice of the sport itself, and that it should
serve to promote the number of salmon available to anglers over the season as a
whole and thereby in the longer term to increase rather than reduce the value
of commercial interests in fisheries.
(4) Looking at the position overall, therefore, I consider there to be a clear
legislative intention to authorise by paragraph 6(1)(b) an interference with
fishery rights of the kind and degree to which byelaw 5 gives rise.
(5) The very fact that, as I have accepted, paragraph 6(2)(a) has no bearing on
the situation covered by byelaw 5 removes one possible ground of objection to
the view that reliance can be placed on the general power of paragraph 6(1)(b).
There is no scope in such a situation for application of the presumption that
general words in a statute are intended to give way to the particular (see
Bennion on Statutory Interpretation, 3rd ed., page 903).
(6) In the context of paragraph 6(1)(b) the inclusion of the expression
"without the previous authority of the Agency" in byelaw 5 occasions no
difficulty. If the provision confers a power to prohibit the removal of fish
unless they are returned immediately to the water, then it must in my view
empower an exemption from that prohibition in the case of persons who have
obtained the authority of the Agency. Section 19(3) of the 1975 Act illustrates
a similar means of exemption from a prohibition imposed by the statute
itself.
Conclusion
42. For the reasons given the application for judicial review is dismissed.
Ruling on consequential orders (this does not form part of the
judgment)
A draft of this judgment was made available to the parties' legal
representatives, who have helpfully dealt with consequential matters by way of
written submissions. In the light of those submissions I will make the
following order:
1. The application for judicial review is dismissed.
2. The applicant is to pay the respondents' costs of the application, but
the determination of his liability for the payment of such costs is postponed
pending further application. The matters advanced by the applicant in
support of the submission that there should be no order as to costs do not
amount to a sufficient reason for departure from the normal rule that the loser
pays the winner's costs.
3. Legal aid assessment of the applicant's costs.
4. Permission to appeal is refused. For the reasons given in my
judgment, I do not consider the applicant to have a sustainable case on byelaw
3. I have hesitated in relation to byelaw 5, but have come to the conclusion
that the applicant does not have a realistic prospect of success on appeal.
Moreover, if I am right on byelaw 3, it is difficult to see what useful purpose
the applicant could achieve by pursuing by an appeal on byelaw 5, since success
on byelaw 5 would almost certainly result in the imposition of a more
restrictive yet lawful regime. That would not in itself lead to a refusal of
permission, but it does mean that there is no substantial consideration of
policy or public interest to tip the balance in favour of the grant of
permission.
© 2000 Crown Copyright
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/339.html
