MacCormick v Lord Advocate
| Jurisdiction | Scotland |
| Judgment Date | 30 July 1953 |
| Docket Number | No. 47. |
| Date | 30 July 1953 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Guthrie.
CrownRoyal style and titlesConstitutional lawExercise of royal prerogativeSovereignty of ParliamentJurisdiction of Court of SessionProclamation of Queen as Elizabeth the SecondUse of "Second"Whether in contravention of Treaty of Union between Scotland and EnglandCompetency of proceedings to establish contraventionTitle to bring proceedingsActio popularisInterdictInternational LawStatuteTitle to Sue and to DefendAct 1707, cap. 7Union with Scotland Act, 1706 (5 Anne, cap. 8)Royal Titles Act, 1953 (1 and 2 Eliz. II, cap. 9), sec. 1.
The Treaty of Union between Scotland and England, ratified by Act 1707, cap. 7, and by the Union with Scotland Act, 1706, provides, by art. 1:"That the Two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof and forever after be united into one Kingdom by the name of Great Britain and that the ensigns armorial of the said United Kingdom be such as Her Majesty shall appoint and the crosses of St Andrew and St George be conjoined in such manner as Her Majesty shall think fit and used in all flags, banners, standards and ensigns both at sea and land."
Two members of the Scottish public presented a petition craving the Court to interdict Her Majesty's Ministers and Officers of State from publishing a proclamation entitling the Queen as, inter alia,"Elizabeth the Second of the United Kingdom of Great Britain," the petitioners' objection being to the use in Her Majesty's title of the numeral "the Second," which, they contended, was inconsistent with historical fact and political reality and involved a contravention of art. 1 of the Treaty of Union and the relative legislation. Alternatively, having regard to sec. 21 of the Crown Proceedings Act, 1947, which prohibits the granting of an interdict against the Crown, they asked for a declaratory order. The Lord Ordinary having dismissed the petition on the grounds (1) that the petition was incompetent as the numeral was merely part of the style and titles authorised by the Royal Titles Act 1953, which Act was not challengeable in a Court of law, (2) that the petitioners' averments were in any event irrelevant, and (3) that the petitioners had no legal title or interest to sue,
Held, on a reclaiming motion, (1) that the petition was incompetent, not (rev. Lord Guthrie) because of the provisions of the Royal Titles Act, 1953, which was not concerned with the name and numeral adopted by the sovereign, but because the Court had no jurisdiction to determine whether a governmental act of the type in question was or was not conform to the provisions of the Treaty of Union; (2) that art. 1 of the Treaty of Union did not prohibit the use of the numeral in question, and the petitioners' averments were accordingly irrelevant; and (3) that the petitioners had no title to raise the point in issue, which was outwith the scope of an actio popularis; and, accordingly, (4) that the Lord Ordinary had rightly dismissed the petition.
Observed (per the Lord President) that the principle of the unlimited sovereignty of Parliament was a distinctively English principle, having no counterpart in the constitutional law of Scotland, and that the united Parliament established by the Treaty of Union did not have unlimited sovereignty in the matter of altering the provisions of the Treaty.
Opinions reserved as to the power of the Court to entertain issues arising out of breach by legislative enactment of certain fundamental provisions of the treaty.
John MacDonald MacCormick and Ian Robertson Hamilton presented a petition for suspension and interdict against the Lord Advocate, as representing Her Majesty's Ministers and Officers of State. The petitioners prayed the Court to "interdict, prohibit and discharge Her Majesty's Ministers and Officers of State and all others acting under their authority from publishing or causing to be published a proclamation entitling Her Majesty as, inter alia, Elizabeth the Second of the United Kingdom of Great Britain, and meantime to grant interim interdict."
The petition and the answers thereto set forth, inter alia:(Stat. 1) "The first-named petitioner is chairman of an organisation known as the Scottish Covenant Association which has a large membership throughout the whole of Scotland. He is Rector of the University of Glasgow, having been elected to that office in October 1950 The second-named petitioner is honorary organising secretary of the said Scottish Covenant Association, and is at present a law student attending classes at the University of Glasgow Averred that the respondent represents the Prime Minister and First Lord of the Treasury, the Secretary of State for Scotland, the Minister of Works, the Postmaster-General and other Ministers of the Crown and Officers of State." (Ans. 1) "Admitted that the first-named petitioner is Rector of the University of Glasgow, having been elected to that office in October 1950 Admitted that the respondent represents Her Majesty, the interest of the Crown and certain public departments. Reference is made to the Crown Suits (Scotland) Act, 1857 (20 and 21 Vict. cap. 44). Quoad ultra not known and not admitted." (Stat. 2) "The petitioners are of Scottish birth and ancestry and reside permanently in Scotland." (Ans. 2) "Believed to be true." (Stat. 3) "Her Majesty's Ministers and Officers of State have advised Her Majesty to issue, and intend to cause the publication of, a proclamation designating Her Majesty as, inter alia, Queen Elizabeth the Second of the United Kingdom of Great Britain. The respondent's averments in answer are not admitted." (Ans. 3) "Denied. Any advice tendered to the sovereign by any of Her Majesty's Ministers or Officers of State is confidential. In any event, it is incompetent in a Court of law to challenge the form of title of a sovereign or the issue or publication of a royal proclamation." (Stat. 4) "Her Majesty's Ministers and Officers of State have already caused a proclamation to be published designating Her Majesty as Queen Elizabeth the Second of this Realm." (Ans. 4) "On her accession Her Majesty was proclaimed as Queen Elizabeth the Second, by the Grace of God Queen of this Realm and of all Her other Realms and Territories, Head of the Commonwealth, Defender of the Faith. Reference is made to answer 9 hereof." (Stat. 5) "It is the universal practice in all kingdoms to designate the ruling sovereign, if his or her name is the same as the name of preceding sovereigns of the same kingdom, by a numeral proceeding in order arithmetically from the first sovereign of the same kingdom to bear that name, and therefore the enumeration of the ruling sovereign's name in his or her title is universally understood to convey the meaning that previous sovereigns or a previous sovereign of the same name have or has ruled over the same kingdom. The respondent's averments in answer are not admitted. Explained and averred that the use of the name Great Britain in the title of the sovereigns of Scotland and England commenced in or about 1603, following the Union of the Crowns of Scotland and England. From 1603 until the accession of William (wrongly styled the Fourth) in 1830 all sovereigns who were for any purpose designated as sovereigns of Great Britain used an enumeration, when thus designated, commencing only from the year 1603. In particular, reference is made to the coinage produced in the Royal Mint in Scotland during the reign of William II of Scotland and III of England whereon he is designated as William of Great Britain." (Ans. 5) "Admitted that the ruling sovereign of a kingdom is frequently distinguished from a former ruling sovereign who has borne the same name by a, numeral. Not admitted that this is a universal practice in all kingdoms. Explained that from 1707 to 1800 sovereigns of the United Kingdom of Great Britain and from 1800 sovereigns of the United Kingdom of Great Britain and Ireland have used an enumeration immediately higher than the highest enumeration previously used by any sovereign of the Kingdom of England, the Kingdom of Scotland, the United Kingdom of Great Britain or the United Kingdom of Great Britain and Ireland bearing the same name. With reference to the petitioners' averments added at adjustment it is admitted that the ruling sovereign between the years 1603 and 1707 was sometimes referred to as King or Queen of Great Britain, France and Ireland. Explained that on other occasions he is designated as King of Scotland, England, France and Ireland. Not admitted that any coins were minted in Scotland designing the said King as William I of Great Britain. Quoad ultra denied." (Stat. 6) "The United Kingdom of Great Britain came into being on 1st May 1707, following upon, and as a result of, the Treaty of Union between the Kingdoms of Scotland and England, the said Treaty of Union having been ratified, approved and adopted by Acts of the Parliaments of Scotland and England. The first article of the said Treaty of Union is in the following terms:[The article is quoted in the rubric.] The said article is a fundamental condition of the union between the Kingdoms of Scotland and England. Explained and averred that the said union was a union of two sovereign and independent kingdoms effected by treaty, the fundamental articles of which were declared to be binding and were intended to be binding upon the Parliament of Great Britain thus established by the Parliaments of Scotland and England. Averred that the provisions of the Union with Ireland Act, 1800, could not and did not purport to confer upon the sovereign any power by royal proclamation or otherwise to alter or repeal directly or indirectly any fundamental condition of the said treaty." (Ans. 6) "Admitted that the two kingdoms of Scotland and England were united into one kingdom by the name of Great Britain on 1st May 1707, following upon and as a result of a Treaty of Union between...
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