The RTC - is it breaking the law?

These are the thoughts of a senior Lawyer and a keen fisherman.  Now, Angling Trust would you be prepared to take on the RTC?



RTC is a creature of statute. As such its actions and decisions are subject to scrutiny and review by the courts.


The functions of the RTC: 

These are set out in Art.9 of the Scotland Act 1998 (River Tweed) Order 2006 :

9. The Commission may do such acts, execute such works and incur such expenses as may appear to it expedient for-

(a) the protection or improvement of the salmon and freshwater fisheries in the district;

(b) the preservation and increase of salmon and freshwater fish in the district; and

(c) the stocking of the district with salmon and freshwater fish.

There is reference to sea trout catches and what can only be described as passing reference to brown trout and grayling in the 2009 Report. Other freshwater fish do not even merit a mention. In the light of the provisions of Art. 9 this is surprising.

The river is a complete eco-system and home to a number of different species. It seems rather "one-eyed" and simplistic to assume that the statutory functions of the commission can be discharged by reference to the health or otherwise of the stock of one fish, important as it may be to the life of the river.

To what extent might the salmon be dependent upon the general health of the river? To what extent might other species be dependent upon the salmon (feeding upon eggs; feeding upon corpses of dead salmon; nutrients from rotting corpses etc)?

There appears from the annual reports to be little or no reference to the wider picture. It seems to me that there is some importance in ensuring that the whole river is healthy. Thus, if there are good stocks of coarse fish and trout and healthy weed growth the river might be regarded as being in good health itself. In such circumstances the prospects of the salmon in the river might be optimised. But there seems to be some doubt about the coarse fish stocks and algal bloom suggests all may not be well with the river's chemical balance. This indicates that the RTC may be neglecting its duty under 9 (c).

In relation to the fate of the salmon there are several references to difficulties at sea. Such references appear to be made without further analysis. What difficulties are these? What contribution, if any is RTC making to research in this area? And with what results? What collaboration has there been/will there be with AST and or ASF? Has the RTC made any representations to the Scottish or UK governments or even to the EU about these problems? If so, what representations were made, when and with what results? If not, why not?

Art. 9 does not allow RTC simply to do nothing in this regard on the basis that it is all too difficult. RTC may argue that it is not "expedient" to take such steps. Whether it is will depend upon whether the Commission has acted reasonably and fairly. Without knowing why it is said in these circumstances to be expedient not to take further control measures it is hard to judge whether they have acted reasonably. But the absence of good reason would point inexorably in one direction.

The evidence appears to point inexorably towards the conclusion that salmon stocks are declining. Notwithstanding the rod catch figures, which are open to abuse (ghost fish; grilse as salmon; kelts/baggots as springers etc) the fish counters do not lie.

The counter on the Ettrick shows a real terms decline when account is taken of the absence of netting and increased catch and release (see Andrew Graham-Stuart in T & S April 2010). The Annual Reports, however, do not seem to reflect this and one wonders whether the RTC recognises the problem but will not admit it publicly, whether it does not understand the complexity and depth of the problem or whether it is simply blind to any such difficulty.

Whatever may be the answer, things are far from ideal.

The Annual Report 2009 shows that there is some awareness of a real and identifiable decline in the number of spring fish. The response to this problem identifies the extent of the lack of understanding. It is suggested that a limited catch and release scheme during the spring might be sufficient. If spring fish left the system in July this may be so. However, is it not the case that they stay in the river spawning later in the year? Thus, a fish caught in July or September and knocked on the head for smoking may be a valuable springer. The catch and release scheme will not help such fish. There has to be more radical approaches, such as:

· Total catch and release a la Dee

· Closure of tributaries (e.g. Ettrick) to angling

· Angler bag limits

· Greater limits on fishing – a shorter season; shorter fishing weeks

Is it not the case that Art. 9 (a) and (b) require the RTC to take concerted action to reduce the population of cormorants and saw billed ducks?  If not, why not? And if so, the performance of the RTC in this area can only be regarded as lamentable. For, failure to control these predators arguably amounts to failure to protect or preserve the fish and the fisheries. Unless, of course, it is expedient not to do so.

Art. 9 would also require RTC to take steps to protect the fisheries and to preserve the fish from agricultural run off and water extraction. The science indicates that neither is beneficial to the fishery. What action has RTC taken? If none, or nothing reasonably sufficient then arguably there is a breach of duty.



Limits on fishing:

These are dealt with in Arts. 35 and 36.


The weekly close time is 42+ hours. It would be interesting to know how the 18 hours moratorium beyond Sunday is enforced.

As for the close season, it looks as though the extension of the season beyond the permitted 212 days (about 7 months) is achieved by taking advantage of the fly fishing exception in Art. 36 (2).

It seems that the best possible conservation measure is to stop fishing altogether. This is plainly not feasible. So the next best thing must be an extension of the close season towards that envisaged by Art. 36.

It will be argued that this will have effects upon the local economy. So it will. But in this instance the interests of the salmon and local business and jobs diverge and hard decisions have to be taken.

If salmon stocks have not gone beyond tipping point then all that can be done to help them should be done. This means that they come first and there should be no fishing for longer periods.

It is for RTC to justify its decision to retain the season at its current length. Is it "expedient" to continue fishing on the basis that that is beneficial (currently) to the local economy even though the inevitable result is further depletion of stocks? If the principal concern is protection and preservation of fish and fisheries then arguably not.