Ahhhhh.... this old chestnut, I will try and explain
The Laws in England & Wales are markedly different, that’s a whole other topic.
You
can legally fish for Brown Trout in Scotland on Sundays, but
not for migratory species like Salmon or Sea Trout. Whilst there is extensive legislation that surrounds our migratory species, for example the Salmon Act or the Salmon and Freshwater Fisheries - Consolidation (Scotland) Act 2003, the only non-civil law that truly applies to Brown Trout fishing are the various Protection Orders.
Therefore it is Civil Law that has a bearing on fishing for non migratory trout. Under the terms of Scottish Civil Law (in this respect) the right to give permission to fish for trout belongs with the riparian owner - that is usually, but not always, the local land owner. As finding that owner can be a nightmare, seeking out that permission is often ignored by those who have faith in the ‘right to fish’ principals which is largely, but not exclusively, a fallacy.
Interestingly, as Salmon fishing rights are heritable titles (and may be held separately from ownership of the adjoining land) where that right to fish for migratory species is held separately from the land, the owner of the ‘heritable right’ has a legal right of access over property to exercise his/her right to fish for salmon or sea trout. Nice eh? That also means that the right to fish for Salmon (and Sea Trout) also carries with it the inferior right to fish for trout, but only if those rights are not exercised by the riparian owner. In the eyes of Scottish Law you could argue, therefore, that the right to fish for non-migratory trout is an inferior one. You have to love the law
There are stretches of common water throughout Scotland which have many and varied rules that apply to them, but as common water belonging to the ‘people’ then the ‘people’ have the right to fish (for trout) when they wish. If they wish to do so on a Sunday, they could, but only if they live in the area (for area read parish) that the common water was to be found...... confused yet? It gets better.
Now the reason why many, but not all, rivers in Scotland don’t allow trout fishing on Sundays is the myriad of different laws that apply. Where migratory fish are present in a river the criminal law/acts apply and have absolute precedence over any other legislation, this includes Sunday fishing for non-migratory trout because (as previously mentioned) that falls under Civil law. Sort of
Although the value of (and demand for) river trout fishing has increased hugely over the years, the principal legislation that applies to it is archaic and was formed with a heavy religious influence. The Church had much to do with the formation of many laws in Scotland and it is directly from here that the no fishing on the Sabbath stems from, as fishing for Salmon or Sea Trout was not allowed under the terms of law which I’ve already mentioned is ‘superior’. So, with no fishing for Salmon and Sea Trout in Scotland on the Sabbath trout fishing rights are directly affected by the ‘superior’ legislation.
So, in the main it is simpler for there to be no brown trout fishing on rivers in Scotland because of the Salmon Act. However, it’s not all doom and gloom as a riparian owner may exercise his/her right to fish for Brown Tout when they wish there are waters which allow Sunday fishing. It is beholden on the riparian owner to issue written permission to do so (that could easily be an angling club, the ADAA would be a good local example) and anyone challenged must show that they have permission and tackle only fit for trout (non-migratory) fishing.
It is this last part that is the key when it comes to rivers. If more riparian owners (or where the heritable and riparian are the same) exercised their right to fish on a Sunday then there would be far more accessible in Scotland than there is at present. District fishery boards need only be advised that the riparian owner will be exercising their right, although if all the owners throughout the length of the river decided to do so then my understanding is that it would require a change in local bylaws. My knowledge tends to get a bit fuzzy at that point.
When it comes to reservoirs and lochs the rules are actually the same, but as most reservoirs (and many lochs) do not have a run of migratory salmonids the right to fish on a Sunday exists.
When it comes to penalties, if you are found to have been fishing on a Sunday for migratory species you are liable for criminal prosecution.
Likewise if you are found to have been fishing on a Sunday for trout where a Protection Order is in place
without written permission you would be liable to criminal prosecution. If there is no Protection Order in place and you were found fishing on a Sunday without permission for Trout you would be liable under Civil Law.
Exactly what fines/ramifications that means depends on the sheriff
Jings
I give in. I'm exhausted after all that typing
Hamish
PS - Do not take this as gospel, this is my understanding and isn't guaranteed to be 100% right - although I'm reasonably confident it's sound.