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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
    1. Edinburgh and Dalkeith Railway Co v Wauchope (1842) 1 Bell 278; 8 Cl & Fin 710; 8 ER 279.
    2. British Railways Board and Another v Pickin [1974] 1 All ER 608; [1974] AC 765
    3. Ellen Street Estates v Minister of Health [1934] 1 KB 590; [1934] All ER Rep 385; 150 LT 468
    4. Mortensen v Peters (1906) 14 SLT 227
    5. Attorney-General of New South Wales v Trethowan (1931) 44 CLR; (in the Australian High Court on appeal from the Supreme Court of New South Wales).
    6. Harris v Donges (Minister of the Interior) [1952] 1 TLR; (1952) 2 SA 428; in the Appellate Division of the South African Supreme Court.
    7. Bribery Commissioner v Ranasinghe [1965] AC 172; [1964] 2 All ER 785, [1964] 2 WLR 1301
    8. Treaty (Act) of Union 1707
    9. MacCormick v. Lord Advocate (1953) SC 396 - Inner House (first instance)
    10. MacCormick v. Lord Advocate (1953) SC 396 - Court of Session (on appeal)
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Mortensen v Peters (1906) 14 SLT 227

THE LORD JUSTICE GENERAL (LORD DUNEDIN)....It is not disputed that if the appellant had been a British subject in a British ship he would have been rightly convicted. Further, in the case of Peters v Olsen when the person convicted, as here, was a foreigner in a foreign ship, the conviction was held good. The only difference in the facts in that cue was that the locus there was, upon a certain view of the evidence, within 3 miles of a line measured across the mouth of a bay, where the bay was not more than ten miles wide, which cannot be said here....

My Lords, I apprehend that the question is one of construction and of construction only. In this Court we have nothing to do with the question of whether the legislature has or has not done what foreign powers may consider a usurpation in question with them. Neither are we a tribunal sitting to decide whether an act of the legislature is ultra vires as in contravention of generally acknowledged principles of international law. For us an Act of Parliament duly passed by Lords and Commons and assented to by the King, is supreme, and we are bound to give effect to its terms. The counsel for the appellant advanced the proposition that statutes creating offences must be presumed to apply (1) to British subjects; and (2) to foreign subjects in British territory; but that short of express enactment their application should not be further extended. The appellant is admittedly not a British subject, which excludes (1); and he further argued that the locus delicti, being in the sea beyond the three mile limit, was not within British territory and that consequently the appellant was not included in the prohibition of the statute.

Viewed as general propositions the two presumptions put forward by the appellant may be taken as correct. This, however, advances the matter but little, for like all presumptions they may be rebutted, and the question remains whether they have been rebutted on this occasion.

The first thing to be noted is that the prohibition here, a breach of which constitutes the offence, is not an absolute prohibition against doing a certain thing, but a prohibition against doing it in a certain place. Now, when a legislature, using words of admitted generality - "It shall not be lawful,"...etc - conditions an offence by territorial limits, it creates, I think, a very strong inference that it is, for the purposes specified, assuming a right to legislate for that territory against all persons whomsoever. This inference seems to me still further strengthened when it is obvious that the remedy to the mischief sought to be obtained by the prohibition would be either defeated or rendered less effective if all persons whomsoever were not affected by the enactment. It is obvious that the latter consideration applied in the present case. Whatever may be the views of any one as to the propriety or expediency of stopping trawling, the enactment shews on the face of it that it contemplates such stopping and it would be most clearly ineffective to debar trawling by the British subject while the subjects of other nations were allowed so to fish.

It is said by the appellant that all this must give way to the consideration that International Law has firmly fixed that a locus such as this is beyond the limits of territorial sovereignty; and that consequently it is not to be thought that in such a place the legislature could seek to affect any but the King's subjects.

It is a trite observation that there is no such thing as a standard of International Law, extraneous to the domestic law of a kingdom, to which appeal may be made. International Law, so far as this Court is concerned, is the body of doctrine regarding the international rights and duties of states - which has been adopted and made part of the Law of Scotland. Now can it be said to be clear by the law of Scotland that the locus here is beyond what the legislature may assert right to affect by legislation against all whomsoever for the purpose of regulating methods of fishing?....

[I]t can at least be clearly said that the appellant cannot make out his proposition that it is inconceivable that the British legislature should attempt for fishery regulation to legislate against all and sundry in such a place. And if that is so, then I revert to the considerations already stated which as a matter of construction make me think that it did so legislate.

LORD KYLLACHY:....It is not disputed that, if this statutory enactment falls, on its just construction, to be read literally and without qualification, the appellant was rightly convicted. This Court is, of course, not entitled to canvass the power of the legislature to make the enactment. The only question open is as to its just construction. Nor can there be any doubt as to that construction if the language is to be read literally, or on ordinary principles of construction, and apart from implications sought to be deduced from outside.

The appellant however contends that the statute...must be read with reference to certain alleged rules of international law; and that in that view it does, not, on its just construction, apply, as regards foreigners, to such part of the area specified, as, according to international law, lies outside the territory or at least the territorial jurisdiction of the British Crown. He further contends that the larger part of the area specified, including the part in which his alleged offence was committed, is, on the principles of international law, outside the said limits.

Now, dealing first with the point of construction - the question as to what the statutory enactment means- it may probably be conceded that there is always a certain presumption against the Legislature of a country asserting or assuming the existence of a territorial jurisdiction going clearly beyond limits established by the common consent of nations - that is to say by International law. Such assertion or assumption is, of course, not impossible. The legislature of a country....may quite conceivably, by oversight or even design, exceed what an international tribunal...might hold to be its international rights. Still, there is always a presumption against its intending to do so. I think that is acknowledged. But then it is only a presumption; and, as such, it must always give way to the language used if it is clear...of the legislation. Express words will, of course, be conclusive; and so also will plain implication.

Now it must, I think, be conceded that the language of the enactment here in question is fairly express - express that is to say, to the effect of making an unlimited and unqualified prohibition, applying to the whole area specified, and affecting everybody - whether British subjects or foreigners. The primary enactment, it will be observed, is directed, not against persons or classes of persons. It is directed against certain things - the commission of certain acts within a precisely defined area. It contains no elastic expression, no indefinite terms. It declares simply, that within a precisely defined area a certain method of fishing...shall not be practised. That is the primary enactment... [I]t seems difficult to read such an enactment otherwise than as expressly providing that in no part of the area mentioned shall the method of fishing in question be practised by anybody. Any other meaning can only be reached by the interpolation of words which are not used, and which, if interpolated, would materially alter the sense. And no case has yet occurred - certainly none has been cited - where the presumption on which the appellant founds has been held adequate to limit or qualify the terms of an enactment thus definite - expressed in quite definite language - and applied to a quite definite area.