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 modified) was contrary to art. XVIII of the Act of Union 1707 and therefore null and of...
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McCord (Raymond), JR 83 and Jamie Waring's Applications v The Prime Minister and others
...Judge referred to Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374, at 293 a/c, Gibson v Lord Advocate [1975] SC 136 at 144, R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, R (Youssef) v Secretary of State for Foreig......
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Axa General Insurance Limited And Others For Judicial Review Of The Damages (asbestos-releated Conditions) (scotland) Act 2009
...District Council case was consistent with that approach, as was the decision of Lord Keith in the earlier case of Gibson v Lord Advocate 1975 SC 136. The old concept of sovereignty was no longer a satisfactory basis on which to distinguish the UK Parliament from the Scottish Parliament. Wha......
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Axa General Insurance Limited And Others V. The Lord Advocate As Representing The Scottish Ministers+the Advocate General For Scotland+daniel Fleming And Others
...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 Sco......
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James Hugh Allister, Benyamin Naeem Habib, Steve Aiken, The Rt Hon. Arlene Isobel Foster, Barroness Catharine Hoey of Lylehill and Rathlin and William David, The Rt Hon. Baron Trimble of Lisnagarvey and Secretary of State for Nothern Ireland and Clifford Peeples and (1) The Prime Minister (2) Secretary of State for Northern Ireland (3) Chancellor of The Duchy of Lancaster
...for the Civil Service [1985] AC 374 at 418 a-c. The enduring potency and effect of this principle, foreshadowed in Gibson v Lord Advocate [1975] SC 136 at 144, per Lord Keith, are illustrated in, for example, R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [198......
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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 ......