Scottish Court of Session Decisions

LORD KEITH'S OPINION.—In this action the pursuer, who resides in Banff and is the skipper and part owner of an inshore fishing vessel, with which he fishes certain areas of sea off the west coast of Scotland, sues the Lord Advocate, as representing the Crown, for declarator "that Section 2 (1) of the European Communities Act, 1972, so far as it purports to enact as part of the Law of Scotland Article 2 of the European Communities Regulations (E.E.C.) No. 2141/70 of the Council of the European Communities, as temporarily modified by Articles 100 to 103 of the Treaty of Accession of the United Kingdom to the European Communities executed in Brussels on 22nd January 1972, is contrary to Article XVIII of the Act of Union, 1707, and therefore null and of no effect."

Article 2 of the Regulations No. 2141/70 (which I shall call "the E.E.C. Regulations") provides as follows:

"1. The system applied by each Member State in respect of fishing in the maritime waters coming under its Sovereignty or within its jurisdiction must not lead to differences in treatment with regard to other Member States. In particular, Member States shall ensure equal conditions of access to and exploitation of the fishing grounds situated in the waters referred to in the preceding paragraph, for all fishing vessels flying the flag of a Member State and registered in Community Territory. "

"2. They shall communicate to Member States and to the Commission the existing legislative provisions and administrative rules and regulations in the field referred to in the first sub-paragraph of paragraph 1 together with those arising out of application of the provisions referred to in the second sub-paragraph of that paragraph. "

"3. The maritime waters referred to in this Article shall be those which are so described by the laws in force in each Member State."

The nature and effect of Regulations such as those is dealt with by article 189 of the Treaty of Rome, which provides:

"In order to carry out their task the Council and the Commission shall, in accordance with the provisions of this Treaty, make regulations, issue directions, take decisions, make recommendations or deliver opinions.

"

A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

"A direction shall be binding as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of forms and methods.

"A decision shall be binding in its entirety upon those to whom it is addressed.

"Recommendations and opinions, shall have no binding force."

Article 2 of the Treaty by which the United Kingdom acceded to the European Economic Community (which I shall call "the Treaty of Accession") provided that from the date of accession the provisions of the original Treaties (which included the Treaty of Borne) and the acts adopted by the institutions of the Communities should be binding in the new Member States and should "apply in those States under the conditions laid down in those Treaties and in this Act."

Article 100 of the Treaty of Accession provided, "Notwithstanding the provisions of Article 2 of Regulation (E.E.C.) No. 2141/70 on the establishment of a common structural policy for the fishing industry, the Member States of the Community are authorised, until 31st December 1982, to restrict fishing in waters under their sovereignty or jurisdiction, situated within a limit of six nautical miles, calculated from the sea baselines of the Coastal Member State, to vessels which fish traditionally in those waters and which operate from ports in that geographical area …" By article 101 the limit of six nautical miles referred to in article 100 was extended to twelve nautical miles for certain specified areas, including the Shetlands and the Orkneys, and the north and east of Scotland, from Cape Wrath to Berwick. Under article 103 provision was made for the Council, acting on a proposal from the Commission, to examine the provisions which could follow the derogations in force until 31st December 1982.

Section 2 (1) of the European Communities Act 1972 (which I shall call "the 1972 Act") enacts:

"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 …"

"The Treaties" are defined by section 1 (2) as including inter alia the Treaty of Rome and the Treaty of Accession.

Article 18 of the Act of Union 1707 enacts:

"That the laws concerning regulation of trade customs and such excises to which Scotland is by virtue of this treaty to be liable 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.’

The propositions upon which the pursuer's case is founded are as follows: (1) that immediately prior to the Act of Union Scottish subjects had exclusive rights of fishing in Scottish coastal waters, (2) that the laws which conferred these exclusive rights of fishing were laws which were concerned private right, within the meaning of article 18 of the Act of Union, (3) that section 2 (1) of the 1972 Act had the effect of making article 2 of the E.E.C. Regulations part of United Kingdom domestic law, (4) that the result of article 2 of the E.E.C. Regulations was to make the rights of Scottish subjects to fish in Scottish coastal waters non-exclusive rights at least from 31st December 1982, (5) that this result was not for the evident utility of Scottish subjects, and (6) that section 2 (1) of the 1972 Act was therefore to the extent of the alteration in question contrary to article 18 of the Act of Union and was thus null and void.

The defender pleads that the Court has no jurisdiction to entertain the action, that the pursuer has no title to sue, that the action is incompetent on a number of grounds, and he has a general plea to the relevancy of the pursuer's averments.

When the case came before me on Procedure Roll, senior counsel for the defender placed the matter of relevancy in the forefront of his argument. I propose to consider first his contention that the law which the pursuer claims to have been altered by section 2 (1) of the 1972 Act is a law concerned with public right, not with private right. The right of the public to white fishing in the sea around Scotland goes back to time immemorial, and it was affirmed by an Act of Queen Anne, the statute of 1705, cap. 2. This was entitled an "

Act for advancing and establishing the fishing trade in and about this Kingdom," and by it Her Majesty, with advice and consent of the Estates of Parliament, "authorises and impowers all her good subjects of this Kingdom to take, buy, and cure herring and white fish, in all and sundry seas, channels, bays, firths, lochs, rivers etc. of this Her Majesty's ancient Kingdom." There is no suggestion that any foreigners were authorised and empowered to take herring and white fish in the seas etc. in question, so it may be taken that the right affirmed by the statute extended only to the subjects in Scotland. The juridical position is stated as follows in Rankine on Landownership, 4th edn., p. 251:

"The narrow seas, and a strip formed by an imaginary line drawn three miles out to sea from low-water mark along the general line of the coast, disregarding gulfs and minor inlets, are regarded as belonging to the Sovereign, as custodier of, or trustee for, the public rights of navigation and the national rights of fishing."

The extent of territorial waters, however, depends upon what is recognised by foreign states as being within the territorial sovereignty of the Crown, and is therefore in substance a matter of international law. Originally the extent was such as was capable of being commanded by cannon shot from the shore, which came to be crystallised at three nautical miles. But the extent is capable of being and has been altered following conventions with foreign states. At present British fishery limits stand at twelve nautical miles, by virtue of the Fishery Limits Act 1964, this distance of twelve nautical miles being divided into "the exclusive fishery limits," which extend up to six nautical miles, and the remainder, which is described in the Act as "the outer belt."

The exclusion of foreigners from fishing in territorial waters depends upon the exercise of sovereign power, and is capable of being achieved only by the use of fishery protection vessels to arrest foreign ships illegally fishing and the prosecution of offenders in the criminal courts of the land. Provision, for these matters has been made in a series of Sea Fisheries Acts of which the earliest still in force, at least in part, is that of 1868.

The dichotomy between public right and private right, which appears in article 18 of the Act of Union, is one familiar to Scottish Institutional writers. In Stair's Institutions, I.1.23, it is stated "Rights, in respect of the matter, are divided into public and private rights. Public rights are those which concern the state of the commonwealth. Private rights are the rights of persons, and particular incorporations." Erskine's Institute, I.1.29, states:

"Positive law may be divided into public and private. The public law is that which hath more immediately in view the public weal and the preservation and good order of society; as laws concerning the constitution of the state, the administration of the government, the police of the country, public revenues, trade and manufactures, the punishments of crimes etc. Private law is that which is chiefly intended for ascertaining the civil rights of individuals."

In my opinion that branch of law which is concerned with the control of fishing in territorial waters round the coasts of Scotland is a branch of public law. These waters are regarded as belonging to the sovereign as custodier or trustee for public, not private, rights of navigation and fishing. Sea fishing is a trade, which contributes to the public good, and laws relating to trade are specifically mentioned by Erskine as falling within the field of public law. Article 18 of the Act of Union specifically provided that the laws concerning regulation of trade were to be made the same throughout Great Britain. That was one of the principal objects of the Union. Further, the exclusion of foreign vessels from fishing in territorial waters was and is capable of being achieved only by the exercise of sovereign power, by the employment of fishery protection officers, and the prosecution of offenders in the criminal courts of the Crown. Erskine allocates to the domain of public law police matters and the prosecution of crime, and this is plainly right. There is the further consideration that mutual recognition of the extent of territorial waters, and such rights of fishing, if any, as subjects of foreign states are to be accorded within them, are matters of foreign policy and diplomacy, as well as international law, as evidenced by the negotiation over many years of the Conventions referred to in various Sea Fisheries Acts. No private individual possesses any right enabling him personally to prevent a foreign vessel from fishing in territorial waters. For these reasons I am of opinion that the law which the pursuer founds upon as the basis of his case is a law concerned with public right, within the meaning of article 18 of the Act of Union. Carried to its logical conclusion, the pursuer's case must necessarily involve that inhabitants of England should never have been allowed to fish in Scottish waters. This was, however, a right specifically conferred upon them by the Act 29 Geo. II, cap. 28 entitled "an Act for encouraging the fisheries in that part of Great Britain called Scotland." This Act is, in my opinion, evidence that the matter of sea fishing was at the time regarded as falling within the domain of public law.

It was also argued for the defender that section 2 (1) of the 1972 Act does not, on a proper construction, have the effect of making article 2 of the E.E.C. Regulations part of the domestic law of Scotland. Article 189 of the Treaty of Rome, which I have already quoted, provides that a regulation made by the Commission and Council "shall be binding in its entirety and directly applicable in all Member States." Section 2 (1) of the 1972 Act apparently seeks to give effect to this provision, and I have no doubt that it has the effect of causing to be binding on individual subjects in Scotland such E.E.C. regulations as are capable of being so binding. Some E.E.C. regulations, however, do not purport to impose any obligation upon individual citizens, and I regard the particular Regulation now under consideration as falling into this category. That Regulation, in my view, operates in the field of public law. The obligations which it imposes are imposed upon the Member States, not upon any individual. Each Member State is in substance required to operate its system of fishery control and its code of criminal law in such a way as to avoid discrimination against the fishing vessels of other Member States. I am accordingly of opinion that section 2 (1)of the 1972 Act and article 2 of the E.E.C. Regulations do not effect any alteration in the private laws of Scotland.

The argument for the defender, in another of its branches, maintained that in any event the practical situation as regards control of fishing in Scottish territorial waters was brought about, not by section 2(1) of the 1972 Act and article 2 of the E.E.C. Regulations, but by the Fishery Limits Act 1964, to which I have already referred, and by a Statutory Instrument made under the powers conferred by that Act, namely, the Fishing Boats (European Economic Community) Designation Order 1972. That Order bears to be made under the powers of the 1964 Act. Article 4 bears to be made for the purpose of giving effect to the Treaty of Accession, and it authorises fishing vessels registered in all Community States to fish for all kinds of fish in certain parts of the outer belt, and as regards the remainder of the outer belt (described as "the reserved waters"), it authorises fishing by the vessels of particular Community States in specified localities for specified descriptions of fish. This Order gave effect to articles 100 and 101 of the Treaty of Accession, and was clearly an essential piece of mechanism for that purpose, considering that the control of fishing in territorial waters constitutes an exercise of sovereign power operating in the field of public international law. It is apparent that declarator pronounced in the terms concluded for by the pursuer could have no practical effect upon the present statutory position as regards control of fishing in Scottish territorial waters.

For these reasons I am of opinion that the pursuer's case is irrelevant and should be dismissed.

In addition to the argument on relevancy there were addressed to me interesting arguments upon the question of jurisdiction and the competency of the action. These arguments raised constitutional issues of great potential importance, in particular whether the Court of Session has power to declare an Act of the United Kingdom Parliament to be void, whether an alleged discrepancy between an Act of that Parliament and the Treaty or Act of Union is a justiciable issue in this Court, and whether, with particular reference to article 18 of the Act of Union, this Court has power to decide whether an alteration of private law bearing to be effected by an Act of the United Kingdom Parliament is "for the evident utility" of the subjects in Scotland. Having regard to my decision on relevancy, these are not live issues in the present case. The position was similar in MacCormick v. Lord Advocate, 1953 SC 396, a case concerned with the validity of the proclamation as Queen of Her Present Majesty under a title which incorporated the numeral "Second." The First Division held that no question properly arose concerning the validity of the Royal Titles Act 1953, but delivered certain obiter dicta upon the constitutional position as regards the Treaty and Act of Union. Lord President Cooper, with whom Lord Carmont concurred, said at p. 412:

"Accepting it that there are provisions in the Treaty of Union and associated legislation which are ‘fundamental law’ and assuming for the moment that something is alleged to have been done—it matters not whether with legislative authority or not—in breach of that fundamental law, the question remains whether such a question is determinable as a justiciable issue in the Courts of either Scotland or England, in the same manner as an issue of constitutional vires would be cognisable by the Supreme Court of the United States, or of South Africa or Australia. I reserve my opinion with regard to the provisions relating expressly to this Court and to the laws ‘which concern private right’ which are administered here. This is not such a question but a matter of ‘public right’ (articles 18 and 19)."

Lord Cooper went on to say at p. 143, "From the standpoint both of constitutional law and of international law the position appears to me to be unique, and I am constrained to hold that the action as laid is incompetent in respect that it has not been shown that the Court of Session has authority to entertain the issue sought to be raised." Like Lord President Cooper, I prefer to reserve my opinion what the position would be if the United Kingdom Parliament passed an Act purporting to abolish the Court of Session or the Church of Scotland or to substitute English law for the whole body of Scots private law. I am, however, of opinion that the question whether a particular Act of the United Kingdom Parliament altering a particular aspect of Scots private law is or is not "for the evident utility" of the subjects within Scotland is not a justiciable issue in this Court. The making of decisions upon what must essentially be a political matter is no part of the function of the Court, and it is highly undesirable that it should be. The function of the Court is to adjudicate upon the particular rights and obligations of individual persons, natural or corporate, in relation to other persons or, in certain instances, to the State. A general inquiry into the utility of specific legislative measures as regards the population generally is quite outside its competence.

In justice to the argument presented to me on behalf of the pursuer, I should mention that I was referred to a number of reported decisions on constitutional matters by Courts in Australia, and South Africa, and by the Judicial Committee of the Privy Council. These cases were, however, concerned with situations where the constitutional arrangements of the countries concerned laid down specific procedures for certain legislative acts, and they do not, in my view, have any bearing on the issues in the present case. I was also referred to a number of decisions in the Court of Justice of the European Communities and in Courts of other Community States. These were concerned with the situation where a domestic legislative act is found to be in conflict with a pre-existing E.E.C. Regulation, a situation which it was maintained could arise in this country, if it continues to be a member of the E.E.C., and to be one with which the Court might have to deal by declaring the domestic legislative act to be void. It may well be that such a situation will arise, but in my view it should be left to be considered if and when it does so. This potential problem does not assist towards a decision of the issues in the present case.

It was further argued for the defender, under his plea to the competency of the action, that the declarator sought was void in respect that it was a bare declarator without legal effect. But in certain circumstances, under section 21 of the Crown Proceedings Act 1957, an order declaratory of the rights of the parties is appropriate. If an action for declarator that an Act of the United Kingdom Parliament is void were on other grounds competent, I do not consider that it would be fatal that no more than a bare declaration to that effect was sought.

Finally, I have to deal with the defender's plea of no title to sue. In MacCormick v. Lord Advocate (supra), at p. 413, Lord President Cooper said "It is true that we in Scotland recognise within certain limits the actio popularis, in which any member of the public may be entitled as such to vindicate certain forms of public right. But the device has never been extended to such a case as this. I cannot see how we could admit the title and interest of the present petitioners to raise the point in issue before the Court of Session without conceding a similar right to almost any opponent of almost any political action to which public opposition has arisen." I consider that expression of opinion to be applicable to the present case, which seeks to bring under review by the Court the utility from the point of view of the inhabitants of Scotland generally of an alteration in the law said to have been brought about by a particular Act of the United Kingdom Parliament. But I consider the question not to be purely one of title to sue, but to be bound up with the relevancy of the pursuer's averments, and the power of the Court to undertake a review of that character. If such a review were competent, I see no reason why it should not be instituted at the instance of any person who has an interest to invoke the powers of the Court. In the circumstances I do not think it necessary specifically to sustain the defender's second plea.

I shall sustain the fourth plea in law for the defender and branch (b) of his third plea in law, and dismiss the action.