Gibson v Lord Advocate [1975] ScotCS CSOH_3 (07 March 1975)

Gibson v Lord Advocate [1975] ScotCS CSOH_3 (07 March 1975)

The law governing fishing rights in Scottish territorial waters is a matter of public right, not private right, and thus falls within the category of laws that may be altered by the UK Parliament under Article XVIII of the Act of Union. Section 2(1) of the European Communities Act 1972 and EEC Regulation 2141/70 do not alter private law rights in Scotland. The pursuer's case is therefore irrelevant and must be dismissed.

Citation
[1975] ScotCS CSOH_3
Parties
Pursuer: Gibson; Defender: Lord Advocate
Jurisdiction
Scotland
Judgment Date
07 March 1975
Procedural Posture
Civil Declarator / Procedure Roll (preliminary Issues)
Outcome
action dismissed
Legal Topics
Act of Union 1707, European Communities Act 1972, Fishing Rights, Public Vs Private Law, Jurisdiction of Scottish Courts
Constitutional Law Public Law European Law Act of Union 1707 European Communities Act 1972 Fishing Rights Public Vs Private Law Jurisdiction of Scottish Courts

Case Brief

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Parties

Gibson

Pursuer

Lord Advocate

Defender

Procedural Posture

Civil Declarator / Procedure Roll (preliminary Issues)

Legal Issues

  1. 1 Whether section 2(1) of the European Communities Act 1972, incorporating EEC Regulation 2141/70, is contrary to Article XVIII of the Act of Union 1707 and thus null and void
  2. 2 Whether the law concerning fishing rights in Scottish coastal waters is a matter of public or private right under Article XVIII of the Act of Union
  3. 3 Whether the Court of Session has jurisdiction to declare an Act of the UK Parliament void for inconsistency with the Act of Union

Ratio Decidendi

The law governing fishing rights in Scottish territorial waters is a matter of public right, not private right, and thus falls within the category of laws that may be altered by the UK Parliament under Article XVIII of the Act of Union. Section 2(1) of the European Communities Act 1972 and EEC Regulation 2141/70 do not alter private law rights in Scotland. The pursuer's case is therefore irrelevant and must be dismissed.

Court Disposition

action dismissed

Orders

  • Sustain the fourth plea in law for the defender and branch (b) of his third plea in law
  • Dismiss the action