''MacCormick v Lord Advocate'' 1953 SC 396 was a
Scottish constitutional law
Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland ...
case and
Scottish legal action on whether Queen
Elizabeth II
Elizabeth II (Elizabeth Alexandra Mary; 21 April 1926 – 8 September 2022) was Queen of the United Kingdom and other Commonwealth realms from 6 February 1952 until her death in 2022. She was queen regnant of 32 sovereign states during ...
was entitled to use the numeral "II" as her
regnal number
Regnal numbers are ordinal numbers used to distinguish among persons with the same name who held the same office. Most importantly, they are used to distinguish monarchs. An ''ordinal'' is the number placed after a monarch's regnal name to differ ...
in Scotland, as there had never been an earlier Elizabeth reigning in Scotland.
Facts
John MacCormick
John MacDonald MacCormick (20 November 1904 – 13 October 1961) was a Scottish lawyer, Scottish nationalist politician and advocate of Home Rule in Scotland.
Early life
MacCormick was born in Pollokshields, Glasgow, in 1904. His father was Dona ...
(the
Rector of the University of Glasgow
The (Lord) Rector of the University of Glasgow is one of the most senior posts within University of Glasgow, the institution, elected every three years by students. The theoretical role of the rector is to represent students to the senior manage ...
) and
Ian Hamilton (then part of the
Glasgow University Scottish Nationalist Association
The Glasgow University Scottish Nationalist Association (GUSNA) is a student organisation formed in 1927 at the University of Glasgow which supports Scottish independence.
History
GUSNA is important historically as it predated many pro-independ ...
) contested the right of
Queen Elizabeth II
Elizabeth II (Elizabeth Alexandra Mary; 21 April 1926 – 8 September 2022) was Queen of the United Kingdom and other Commonwealth realms from 6 February 1952 until Death and state funeral of Elizabeth II, her death in 2022. She was queen ...
to style herself 'Elizabeth II' within Scotland. They claimed it was a breach of the
Act of Union 1707
The Acts of Union ( gd, Achd an Aonaidh) were two Acts of Parliament: the Union with Scotland Act 1706 passed by the Parliament of England, and the Union with England Act 1707 passed by the Parliament of Scotland. They put into effect the te ...
between England and Scotland, since
Elizabeth I
Elizabeth I (7 September 153324 March 1603) was Queen of England and Ireland from 17 November 1558 until her death in 1603. Elizabeth was the last of the five House of Tudor monarchs and is sometimes referred to as the "Virgin Queen".
El ...
had been
Queen of England but not of Scotland. The action was brought against
the Crown
The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has different ...
, which was represented by the
Lord Advocate
, body =
, insignia = Crest of the Kingdom of Scotland.svg
, insigniasize = 110px
, image = File:Official Portrait of Dorothy Bain QC.png
, incumbent = Dorothy Bain KC
, incumbentsince = 22 June 2021
, appointer = Monarch on the advice ...
, who is the most senior law officer in Scotland.
Judgment
The petition first came before Lord Guthrie, sitting as
Lord Ordinary
A Lord Ordinary is any judge in the Outer House
The Outer House (abbreviated as CSOH in neutral citations) is one of the two parts of the Scottish Court of Session, which is the supreme civil court in Scotland. It is a court of first inst ...
in the
Outer House
The Outer House (abbreviated as CSOH in neutral citations) is one of the two parts of the Scottish Court of Session, which is the supreme civil court in Scotland. It is a court of first instance, although some statutory appeals are remitted ...
(the
court of first instance
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance w ...
in the
Court of Session
The Court of Session is the supreme civil court of Scotland and constitutes part of the College of Justice; the supreme criminal court of Scotland is the High Court of Justiciary. The Court of Session sits in Parliament House in Edinburgh ...
). He dismissed it; this was appealed to the
Inner House
The Inner House is the senior part of the Court of Session, the supreme civil court in Scotland; the Outer House forms the junior part of the Court of Session. It is a court of appeal and a court of first instance. The chief justice is th ...
. The appeal was heard by the
Lord President (
Lord Cooper of Culross), Lord Carmont, and Lord Russell. There, MacCormick and Hamilton lost their case: it was held that the
treaty
A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations
An international organization or international o ...
had no provision concerning the
numbering of monarchs
Regnal numbers are ordinal numbers used to distinguish among persons with the same name who held the same office. Most importantly, they are used to distinguish monarchs. An ''ordinal'' is the number placed after a monarch's regnal name to diffe ...
—it was part of the
royal prerogative
The royal prerogative is a body of customary authority, privilege and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy, as belonging to the sovereign and which have become widely vested in th ...
, and that they had no title to sue
the Crown
The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has different ...
. The Lord President did give his opinion that "the principle of unlimited
sovereignty of Parliament
Parliamentary sovereignty, also called parliamentary supremacy or legislative supremacy, is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all ...
is a distinctively English principle and has no counterpart in
Scottish constitutional law
Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland ...
". The case was thus constitutionally interesting as "the Lord Advocate conceded this point by admitting that the Parliament of the United Kingdom 'could not' repeal or alter
ertain'fundamental and essential' conditions" of the Act of Union. However, the Lord President also held that "there is neither precedent nor authority of any kind for the view that the domestic Courts of either Scotland or England have jurisdiction to determine whether a governmental act of the type here in controversy is or is not conform to the provisions of a Treaty" and "it has not been shown that the Court of Session has authority to entertain the issue sought to be raised".
Significance
The outcome of this case has had continuing relevance, most notably in 1999, when the British Parliament discussed the creation of the
Scottish Parliament
The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolved, unicameral legislature of Scotland. Located in the Holyrood area of the capital city, Edinburgh, it is frequently referred to by the metonym Holyro ...
. It has been discussed in a number of later decisions of the courts, notably ''Gibson v Lord Advocate'' 1975 SC 136, and the English case of ''Jackson v Attorney General'',
0053 WLR 733.
Winston Churchill
Sir Winston Leonard Spencer Churchill (30 November 187424 January 1965) was a British statesman, soldier, and writer who served as Prime Minister of the United Kingdom twice, from 1940 to 1945 Winston Churchill in the Second World War, dur ...
suggested that British sovereigns would use either the English or the Scottish number, whichever was higher.
See also
*
Style of the British sovereign
The precise style of British sovereigns has varied over the years. style is officially proclaimed in two languages:UK ParliamentRoyal Titles Act 1953(1 & 2 Eliz. 2 c. 9) Proclamation of 28 May 1953 made in accordance with the Royal Titles Act 195 ...
*
United Kingdom constitutional law
The United Kingdom constitutional law concerns the governance of the United Kingdom of Great Britain and Northern Ireland. With the oldest continuous political system on Earth, the British constitution is not contained in a single code but princ ...
*
Pillar Box War
The Pillar Box War refers to a number of politically motivated acts of vandalism against post boxes in Scotland during the early 1950s in a dispute over the correct title of the new British monarch, Elizabeth II or Elizabeth I.
Background
Ascen ...
Notes
External links
*
Hansard
''Hansard'' is the traditional name of the transcripts of parliamentary debates in Britain and many Commonwealth countries. It is named after Thomas Curson Hansard (1776–1833), a London printer and publisher, who was the first official print ...
for the
House of Lords
The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
from 1999 discussing the case:
**
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{{DISPLAYTITLE:''MacCormick v Lord Advocate''
British monarchy
Political history of Scotland
Scottish royalty
Constitution of the United Kingdom
1953 in British law
Court of Session cases
1953 in case law
United Kingdom administrative case law
United Kingdom constitutional case law
Royal prerogative
University of Glasgow
Scottish nationalism
Coronation of Elizabeth II