Gibson v Lord Advocate
| Jurisdiction | Scotland |
| Judgment Date | 07 March 1975 |
| Date | 07 March 1975 |
| Docket Number | No. 12. |
| Court | Court of Session (Outer House) |
OUTER HOUSE.
Lord Keith.
Fishing rights—Territorial waters—Whether the concern of public or private law—Act of Union 1707 (6 Anne, cap. 7) art. XVIII—European Communities Regulations (E.E.C.) No. 2141/70 art. 2.—European Communities Act 1972 (cap. 68) sec. 2 (1)—Declarator that provisions of art. 2 not effectively made part of law of Scotland—"for the evident utility" of the subjects within Scotland, not a justiciable issue.
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Art. 2 of the European Communities Regulations of 1970 made provision for each member state ensuring, within its maritime waters, equal fishing rights for all fishing vessels flying the flag of a member state. Certain articles of the United Kingdom Treaty of Accession of 1972 had the effect of temporarily modifying that provision and of delaying its full operation until at least the year 1982. Sec. 2 (1) of the European Communities Act 1972, provides: "All such rights powers liabilities, obligations and restrictions from time to time created or arising by or under the Treaties … as in accordance with the Treaties are, without further enactment, to be given legal effect or used in the United Kingdom, shall be recognised and available in law, and be enforced allowed and followed accordingly: …" And art. XVIII of the Act of Union 1707, provided as follows: "That the laws concerning regulation of trade customs and such excises to which Scotland is by virtue of this treaty liable to, be the same in Scotland from and after the union as in England, and that all other laws in use within the Kingdom of Scotland do after the union and notwithstanding thereof remain the same as before (except such as are contrary to or inconsistent with this treaty) but alterable by the Parliament of Great Britain, with this difference betwixt the laws concerning publick right policy and civil government, and those which concern private right, that the laws which concern publick right policy and civil government may be made the same throughout the whole United Kingdom, but that no alteration may be made in laws which concern private right except for the evident utility of the subjects within Scotland."
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The skipper and part-owner of an inshore fishing vessel sought a "declarator" against the Lord Advocate as representing the Crown that sec. 2 (1) of the European Communities Act 1972 so far as it purported to enact as part of the law of Scotland art. 2 of the European Communities Regulations of 1970 (as temporarily...
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R Gina Miller v The Prime Minister
...prerogative powers where questions do not arise in a statutory context or which affect individual rights. 45 In Gibson v Lord Advocate 1975 SC 136, 144 Lord Keith said: “The making of decisions upon what must essentially be a political matter is no part of the function of the Court, and it ......
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Opinion of Lord Carloway, The Lord President in the reclaiming motion by Joanna Cherry QC MP and Others v The Advocate General
...( supra) at para [170]. The issue of justiciability necessarily involved considerations of whether the issue was legal or political ( Gibson v Lord Advocate 1975 SC 136 at 144; Lord Gray's Motion 2000 SC (HL) 46 at 45 Secondly, the issue was academic because, in terms of the NIEFA 2019, Pa......
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R (Jackson) v Attorney General
...would be rash of Parliament to abolish Scots law courts and assimilate the law of Scotland to that of England. In Gibson v Lord Advocate, 1975 SC 136, 144, Lord Keith too reserved his opinion on this question and as to the justiciability of legislation purporting to abolish the Church of Sc......
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The Current Constitutional Rules Relating to the Prorogation of Parliament are Unsatisfactory: A Call for Reform
...[2019] New Law Journal 9. 35 A v Secretary of State for the Home Department [2005] 1 AC 68 [29] (Lord Bingham). 36 Gibson v Lord Advocate (1975) SC 136 144 (Lord Keith). 37 Miller (No 2) (n 20) [51]. 38 Miller (No 2) (n 1) [52]. 39 ibid [34]. 40 Miller (No 2) [2019] 3 WLR 589, 590. 41 Lady ......