Scotland Act 1998 (Border Rivers) Order 1999
| Jurisdiction | UK Non-devolved |
| Citation | SI 1999/1746 |
| Year | 1999 |
1999 No. 1746
CONSTITUTIONAL LAW
DEVOLUTION, SCOTLANDRIVER, SCOTLAND RIVER, ENGLAND AND WALESSalmon and Freshwater Fisheries
The Scotland Act 1998 (Border Rivers) Order 1999
Made 22th June 1999
Coming into force in accordance with article1(1)
At the Court at Windsor Castle, the 22nd day of June 1999
Present,
The Queen’s Most Excellent Majesty in Council
Whereas a draft of this Order has been laid before and approved by a resolution of each House of Parliament and of the Scottish Parliament;
Now therefore, Her Majesty, in exercise of the powers conferred upon Her by sections 111 and 113 of the Scotland Act 19981is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:
PART I
GENERAL
Citation, commencement and interpretation
1.—(1) This Order may be cited as the Scotland Act 1998 (Border Rivers) Order 1999 and shall come into force immediately before the principal appointed day2
(2) In this Order–
“the 1951 Act” means the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 19513
“the 1975 Act” means the Salmon and Freshwater Fisheries Act 19754
“the 1976 Act” means Freshwater and Salmon Fisheries (Scotland) Act 19765
“the 1986 Act” means the Salmon Act 19866
“the 1991 Act” means the Water Resources Act 19917
“the 1995 Act” means the Environment Act 19958
“the 1998 Act” means the Scotland Act 1998;
“the Minister” means the Minister of Agriculture, Fisheries and Food;
“the Environment Agency” means the body corporate established under section 1 of the 1995 Act;
“the River Tweed Council” means the council established by section 6 of the Tweed Fisheries Act 19699
“sea trout” means migratory fish of the speciesSalmo trutta commonly known as sea trout and any part of such a fish; and
“Upper Esk” means that part of the River Esk lying upstream of a line drawn from a point at Ordnance Survey Grid Reference NY 3245 6632 on the western bank of the River Sark in a southerly direction to a point at Ordnance Survey Grid Reference NY 3245 6503 on the coast of Cumbria and “Lower Esk” means any part of that River downstream of that line.
Saving
2.—(1) This Order shall not affect the validity of anything done under any Border rivers function relating to the conservation, management or exploitation of salmon, trout, eels and freshwater fish prior to the coming into force of this Order.
(2) Anything (including legal proceedings) which, at the time when this Order comes into force, is in the process of being done may, so far as it relates to any Border rivers function relating to the conservation, management or exploitation of salmon, trout, eels, and freshwater fish, be continued.
PART II
RIVER ESK
Disapplication of section 53 of the Scotland Act
3. Section 53 of the 1998 Act shall not apply to any Border rivers function of any Minister of the Crown under the 1975 Act, the 1991 Act and the 1995 Act relating solely to the conservation, management or exploitation of salmon, trout, eels and freshwater fish exercisable in relation to the River Esk (other than a function relating to any disease of fish).
Modifications of the Water Resources Act 1991
4.—(1) Sections 115 (fisheries orders), 116 (power to give effect to international obligations), 142 (fisheries contributions) and 211(3) (so far as relating to byelaws made by virtue of paragraph 6 of Schedule 25) and (6) (enforcement of byelaws) of, and paragraph 6 (byelaws for the purposes of fisheries functions) of Schedule 25 to the 1991 Act shall cease to have effect in relation to the Upper Esk.
(2) The Environment Agency shall have power, in relation to the Upper Esk to make byelaws generally for, or in connection with, the conservation, management or exploitation of salmon, trout, eels and freshwater fish.
(3) Schedule 26 to the 1991 Act shall apply to the making of any byelaw by the Environment Agency under this article as it would apply to the making of any byelaw under paragraph 6 of Schedule 25 to the 1991 Act subject to the following modifications–
(i)
(i) subject to the following provisions of this sub-paragraph, any reference to “the relevant Minister” wherever occurring shall mean “the Minister and the Scottish Ministers acting jointly”;
(ii)
(ii) in paragraph 1(2)(a), for “the London Gazette” there is substituted “the Edinburgh and London Gazettes”;
(iii)
(iii) in paragraph 2(1), for “him” there is substituted “them”;
(iv)
(iv) in paragraph 5, for “he” there is substituted “they”; and
(v)
(v) paragraph 7 shall cease to have effect.
Modifications of the Environment Act 1995
5.—(1) In its application to any Border rivers function relating to the conservation, management or exploitation of salmon, trout, eels and freshwater fish exercisable in relation to the Upper Esk, section 38 of the 1995 Act shall be modified–
(a)
(a) in subsection (1), to provide that any agreement under that section only be entered into with the agreement of the Scottish Ministers; and
(b)
(b) in subsection (2), to provide that a function of the Scottish Ministers be capable of being the subject of such an agreement but only with the agreement of the Minister.
(2) In its application to any Border rivers function relating to the conservation, management or exploitation of salmon, trout, eels and freshwater fish exercisable in relation to the Upper Esk, section 40 of the 1995 Act shall be modified–
(a)
(a) by substituting for the references to “appropriate Minister” references to “Scottish Ministers and the Minister acting jointly”; and
(b)
(b) by substituting for section 40(3)(b)–
“(b)
“(b) notices shall be given in the Edinburgh and London Gazettes of the giving of the direction and of where a copy of that direction may be obtained”.
(3) Section 6(8) of the 1995 Act shall be modified by inserting before the definition of “the River Tweed” the following–
““the River Esk” means that River as defined by section 111(4) of the Scotland Act 1998 or as such definition as may be modified by an order under section 111(1) of that Act;”
Fishing without right or licence in the Lower Esk
6.—(1) No person shall fish for or take salmon or sea trout in the Lower Esk unless either–
(a)
(a) he does so under the authority of, and in accordance with, a licence granted by the Environment Agency under section 25 of the 1975 Act; or
(b)
(b) he has a legal right to fish for salmon or he has written permission from a person having such a right.
(2) Any person who has in his possession, for the purpose of fishing for salmon or sea trout in the Lower Esk, an instrument other than one which he is authorised, by any rule of law or, in the case of fishing under the authority of a licence, by that licence, to use for that purpose, shall be guilty of an offence.
(3) Section 1 of the 1951 Act and section 27 of the 1975 Act shall cease to have effect in relation to the Lower Esk.
(4) Subject to paragraph (6) below a licence granted by the Environment Agency may only authorise fishing in any part of the Lower Esk lying on or towards the south of a line representing themedium filum, at low water, of the main channel of the River Esk and of the main channel of the River Eden downsteam of its confluence at low water with the main channel of the River Esk, wherever that line may be from time to time.
(5) A legal right to fish for salmon, or a written permission given by a person having such a right, shall authorise fishing–
(a)
(a) in any part of the Lower Esk lying on or towards the north of the line described in paragraph (4) above; and
(b)
(b) to the extent that right or permission so authorises, in any other part of the Lower Esk.
(6) A licence granted by the Environment Agency shall not apply to any part of the Lower Esk which is the subject of a grant of fishings granted by King James V of Scotland to the Burghers of Annan by Royal Charter dated 1st March 1538 and re-stated on 10th July 1612.
(7) It shall be for any person claiming to have a legal right to...
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