The legal order of Gibraltar is governed by the Gibraltar Constitution Order 1969 and a combination of statutes (known as Ordinances), common law, conventions and practice.
The principal sources of law in Gibraltar are Ordinances; UK Statutes extended to Gibraltar by Order in Council ; European Community law; subsidiary legislation; and the common law as developed through judicial decisions. The hierarchy of these sources is described below. Where there are conflicts between the different sources of law, the principal forum for resolving them is the courts.
Civil law in Gibraltar is not set out in a civil code. The civil law derives largely from the common law, but there have also been significant pieces of legislation dealing with particular areas.
Primary legislation is made by the House of Assembly in Gibraltar. Before a proposal for legislation (known as a Bill) can become law, it must be approved by a majority of the House of Assembly and assented to by Her Majesty the Queen or by the Governor of Gibraltar on behalf of Her Majesty. Most Bills which become Gibraltar law are introduced into the House of Assembly by Government ministers, usually following a process of consultation.
The House of Assembly comprises of 15 elected members, 8 of which form the Government of Gibraltar and the remaining 7 form the Opposition.
When a Bill is introduced in the House of Assembly, there will be a debate on the principles of the Bill (“Second Reading”), followed by detailed consideration of its provisions by a committee (“Committee stage”), and a further debate in the House to consider the provisions of the Bill and any amendments made by the committee (“Report” and “Third Reading”).
When a Bill has passed through all its parliamentary stages, it is sent to the Governor of Gibraltar for the Royal Assent, after which it becomes an Ordinance.
An Ordinance will come into effect on the date of publication in the Gibraltar Gazette unless it contains provisions to the contrary. In practice, most Ordinances either specify a commencement date, or provide for the making of a Commencement Order.
Disputes about the interpretation of legislation may be resolved by the courts, including a challenge as to whether any statutory provision is unconstitutional.
Many Ordinances confer the power to make subsidiary legislation to the Governor or to other authorities such as Government ministers.
Subsidiary legislation made by the Government and statutory bodies may have various titles such as Orders in Council, Regulations or Rules.
The purposes for which any such subsidiary legislation may be made are governed by the relevant Ordinance, and include setting the commencement date of primary legislation, filling out the details necessary to implement broad statutory provisions, and in some cases amending primary legislation.
The procedural requirements which apply to particular subsidiary legislation depend on the provisions of the parent Ordinance, but there is also a general requirement that all secondary legislation must be published. Some secondary legislation (e.g. most commencement orders) are not normally subject to any parliamentary procedure, and once signed they will come into force on the date of publication in the Gibraltar Gazette, unless otherwise stated.
All subordinate legislation must comply with the terms of the enabling Ordinance, and will be invalid if it exceeds the powers which the Ordinance confers or if a mandatory statutory procedure was not followed in making it. Subordinate legislation may also be challenged on other grounds, e.g. that it conflicts with rights granted by other primary legislation, the Gibraltar Constitution Order 1969 or directly effective EC Law. Such a challenge may be made by bringing judicial review proceedings in the Supreme Court of Gibraltar. The usual remedy is a declaration that the legislation is invalid or unconstitutional.
Decisions of the courts of Gibraltar play an important role in the development of the law. Not only do they provide authoritative rulings on the interpretation of legislation, but they also form the basis of the common law, which accounts for most civil and commercial law. Gibraltar common law is also based on the common law as derived in England and Wales.
The common law is derived from court decisions in previous cases (or case law). An important feature of the common law system is the doctrine of precedent (or stare decisis). This essentially means that, in deciding a particular case, the court must have regard to the principles of law laid down in earlier cases which raised the same issues, and where such a precedent is “binding” the court is required to follow the reasoning of the earlier case. To understand how the doctrine of precedent works, it is necessary to identify which courts’ previous decisions will be binding on other courts, and which elements of those decisions will be binding in a particular case. Further details about the court system in Gibraltar can be found in “Organisation of Justice – United Kingdom”.
In general, as to which courts’ decisions bind which other courts, the general principle is that a court will be bound by earlier decisions made by a higher court. Appeal courts may also be bound by earlier decisions of the same court. In order to determine which precedents may be binding on a particular court, it is necessary to appreciate the hierarchy of the various courts in the legal system of Gibraltar.
Civil, commercial and family proceedings in Gibraltar are administered primarily by the Supreme Court of Gibraltar. Due to the fact that the Court of First Instance is currently limited to claims not exceeding £1000, it is also the Supreme Court that handles most types of civil claims at first instance. The Magistrates’ court (that is primarily a criminal court) also has limited civil jurisdiction in family matters and in certain other cases. Decisions of this court are not binding on itself or on any other court. Magistrates’ and the Court of First Instance are bound by decisions of the Supreme Court, Court of Appeal and the Privy Council.
The Supreme Court handles appeals from the Court of First Instance. It also acts as a court of first instance in relation to civil matters above a certain value; and some types of proceedings (e.g. defamation and judicial review) may only be brought in the Supreme Court. Cases are normally decided by a single judge, whose decision is binding on a lower court but is not strictly binding on another Supreme Court judge. The Supreme Court is bound by decisions of the Court of Appeal and the Privy Council.
Appeals before the Court of Appeal are decided by panels of two or three judges (called Lords Justices of Appeal). Their decisions are binding on lower courts and tribunals, and on the Court of Appeal itself. However, there are a number of exceptions to the rule that the Court of Appeal will be bound by its own earlier decisions (e.g. if the Court which made the earlier decision did not have relevant legislation or binding authority drawn to its attention and would otherwise have reached a different conclusion, if there are conflicting Court of Appeal decisions on the point in issue, or if the earlier Court of Appeal decision is inconsistent with a subsequent decision of the Privy Council). The Court of Appeal is bound by decisions of the Privy Council.
The final court of appeal for Gibraltar is the Privy Council that sits in London. Appeals are normally heard by a Judicial Committee of five judges.
Decisions of the Privy Council are binding on all of the courts lower in the hierarchy. The Privy Council will normally be bound by its own decisions, but will depart from them where it appears right to do so (bearing in mind the danger of disturbing arrangements which have already been entered into).
Finally, in relation to matters of European Community Law, the European Court of Justice is the highest authority.
It is also necessary to identify which parts of a court’s decision are binding. What is binding on another court is the ratio decidendi of the court’s decision, which means the propositions of law which the court treated as necessary steps in reaching its conclusion in the case. Parts of the court’s judgment may discuss legal principles which are obiter dicta, that is not essential to the court’s conclusion, in which case they are not binding (although they may still have persuasive force).
Furthermore, the ratio decidendi of an earlier case will not be applied if there is a material distinction between the facts of the earlier case and the case which the court is considering. Instead, the court will “distinguish” the earlier case (i.e. hold that its ratio decidendi is not relevant to the case under consideration).
Even where judicial statements are not binding, they will often be persuasive. The courts may also have regard to decisions from other common law jurisdictions (e.g. Australia, Canada and New Zealand) and to academic writings.
An important aspect of the common law system is the publication of judgments. Court judgments are delivered in public, although this may be subject to exceptions (e.g. in cases involving children or questions of national security). Important judgments may also be published in the Gibraltar Law Reports.
Last update: 11-10-2006