MacCormick v. Lord Advocate
Encyclopedia
MacCormick v Lord Advocate (1953 SC 396) was a Scottish legal action
in which John MacCormick
(the Rector of the University of Glasgow
) and Ian Hamilton
(then part of the Glasgow University Scottish Nationalist Association
) contested the right of Queen Elizabeth II
to style herself ‘Elizabeth II’ within Scotland. They claimed it was a breach of the Act of Union 1707 between England and Scotland, since Queen Elizabeth I
had been Queen of England
but not of Scotland. (A historic example of a numeric distinction is found in King James I of England
, who was King James VI of Scotland.) The action was brought against the Lord Advocate
the most senior legal representative in Scotland.
The petition first came before Lord Guthrie, sitting as Lord Ordinary
in the Outer House
(the usual court of first instance
in the Court of Session
). He dismissed it; this was appealed to the Inner House
, coming before the Lord President
(Lord Cooper
), Lord Carmont, and Lord Russell MacCormick. There, MacCormick and Hamilton lost their case: it was held that the treaty
had no provision concerning the numbering of monarch
s — it was part of the royal prerogative
, and that they had no title to sue the Crown
. However, the Lord President
, Lord Cooper, gave his opinion that “the principle of unlimited sovereignty of Parliament
is a distinctively English
principle and has no counterpart in Scottish
constitutional law
”. The case was thus constitutionally interesting as “the Lord Advocate conceded this point by admitting that the Parliament of Great Britain ‘could not’ repeal or alter [certain] ‘fundamental and essential’ conditions” of the Act of Union (MacCormick v Lord Advocate 1953 SC 396 at page 411). The full opinion of the Lord President
, with which the other members of the Court
agreed is not widely available.
The outcome of this case has had continuing relevance, most notably in 1999, when the British parliament discussed the creation of the Scottish Parliament
. 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, 2005 3 WLR 733.
Winston Churchill
suggested that British sovereigns would use either the English or the Scottish number, whichever was higher. For example, as there has never been a regnant King Henry of Scotland (King Henry, husband of Mary, Queen of Scots was a King Consort) but there was a Henry VIII of England, a future King Henry of the United Kingdom would be Henry IX; but as there has been a James VII of Scotland but only a James II of England, a future King James of the United Kingdom would be James VIII.
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Scots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
in which John MacCormick
John MacCormick
John MacDonald MacCormick was a lawyer and advocate of Home Rule in Scotland.-Early life:...
(the Rector of the University of Glasgow
University of Glasgow
The University of Glasgow is the fourth-oldest university in the English-speaking world and one of Scotland's four ancient universities. Located in Glasgow, the university was founded in 1451 and is presently one of seventeen British higher education institutions ranked amongst the top 100 of the...
) and Ian Hamilton
Ian Hamilton QC
Ian Robertson Hamilton, QC is a lawyer and Scottish Nationalist. He is best known for his part in the removal of the Stone of Scone from Westminster Abbey in 1950.- Early life :...
(then part of the Glasgow University Scottish Nationalist Association
Glasgow University Scottish Nationalist Association
The Glasgow University Scottish Nationalist Association is a student organisation formed in 1927 at the University of Glasgow which supports Scottish independence....
) contested the right of Queen Elizabeth II
Elizabeth II of the United Kingdom
Elizabeth II is the constitutional monarch of 16 sovereign states known as the Commonwealth realms: the United Kingdom, Canada, Australia, New Zealand, Jamaica, Barbados, the Bahamas, Grenada, Papua New Guinea, the Solomon Islands, Tuvalu, Saint Lucia, Saint Vincent and the Grenadines, Belize,...
to style herself ‘Elizabeth II’ within Scotland. They claimed it was a breach of the Act of Union 1707 between England and Scotland, since Queen Elizabeth I
Elizabeth I of England
Elizabeth I was queen regnant of England and Ireland from 17 November 1558 until her death. Sometimes called The Virgin Queen, Gloriana, or Good Queen Bess, Elizabeth was the fifth and last monarch of the Tudor dynasty...
had been Queen of England
Queen regnant
A queen regnant is a female monarch who reigns in her own right, in contrast to a queen consort, who is the wife of a reigning king. An empress regnant is a female monarch who reigns in her own right over an empire....
but not of Scotland. (A historic example of a numeric distinction is found in King James I of England
James I of England
James VI and I was King of Scots as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the English and Scottish crowns on 24 March 1603...
, who was King James VI of Scotland.) The action was brought against the Lord Advocate
Lord Advocate
Her Majesty's Advocate , known as the Lord Advocate , is the chief legal officer of the Scottish Government and the Crown in Scotland for both civil and criminal matters that fall within the devolved powers of the Scottish Parliament...
the most senior legal representative in Scotland.
The petition first came before Lord Guthrie, sitting as Lord Ordinary
Lord Ordinary
Lord Ordinary is a term used to describe any judge in the Outer House of the Scottish Court of Session....
in the Outer House
Outer House
The Outer House 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 to it by the other more senior part, the Inner House...
(the usual court of first instance
Court of first instance
A court of first instance is a trial court of original or primary jurisdiction.Specific courts called the Court of First Instance include:* European Court of First Instance, of the European Union* Court of First Instance...
in the Court of Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....
). He dismissed it; this was appealed to the Inner House
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...
, coming before the Lord President
Lord President
The title Lord President may refer to one of several offices:*Lord President of the Council, the presiding officer of Her Majesty's Most Honourable Privy Council*Lord President of the Court of Session, the Chief Justice and Lord Justice General of Scotland...
(Lord Cooper
Thomas Cooper, 1st Baron Cooper of Culross
Thomas Mackay Cooper, 1st Baron Cooper of Culross PC, KC was a Scottish politician, judge and historian.-Background and education:...
), Lord Carmont, and Lord Russell MacCormick. There, MacCormick and Hamilton lost their case: it was held that the treaty
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
had no provision concerning the numbering of monarch
Monarch
A monarch is the person who heads a monarchy. This is a form of government in which a state or polity is ruled or controlled by an individual who typically inherits the throne by birth and occasionally rules for life or until abdication...
s — it was part of the royal prerogative
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 alone. It is the means by which some of the executive powers of government, possessed by and...
, and that they had no title to sue the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
. However, the Lord President
Lord President
The title Lord President may refer to one of several offices:*Lord President of the Council, the presiding officer of Her Majesty's Most Honourable Privy Council*Lord President of the Court of Session, the Chief Justice and Lord Justice General of Scotland...
, Lord Cooper, gave his opinion that “the principle of unlimited sovereignty of Parliament
Parliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
is a distinctively English
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
principle and has no counterpart in Scottish
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
constitutional law
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
”. The case was thus constitutionally interesting as “the Lord Advocate conceded this point by admitting that the Parliament of Great Britain ‘could not’ repeal or alter [certain] ‘fundamental and essential’ conditions” of the Act of Union (MacCormick v Lord Advocate 1953 SC 396 at page 411). The full opinion of the Lord President
Lord President
The title Lord President may refer to one of several offices:*Lord President of the Council, the presiding officer of Her Majesty's Most Honourable Privy Council*Lord President of the Court of Session, the Chief Justice and Lord Justice General of Scotland...
, with which the other members of the Court
Court
A court is a form of tribunal, often a governmental 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 with the rule of law...
agreed is not widely available.
The outcome of this case has had continuing relevance, most notably in 1999, when the British parliament discussed the creation of the Scottish Parliament
Scottish Parliament
The Scottish Parliament is the devolved national, unicameral legislature of Scotland, located in the Holyrood area of the capital, Edinburgh. The Parliament, informally referred to as "Holyrood", is a democratically elected body comprising 129 members known as Members of the Scottish Parliament...
. 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, 2005 3 WLR 733.
Winston Churchill
Winston Churchill
Sir Winston Leonard Spencer-Churchill, was a predominantly Conservative British politician and statesman known for his leadership of the United Kingdom during the Second World War. He is widely regarded as one of the greatest wartime leaders of the century and served as Prime Minister twice...
suggested that British sovereigns would use either the English or the Scottish number, whichever was higher. For example, as there has never been a regnant King Henry of Scotland (King Henry, husband of Mary, Queen of Scots was a King Consort) but there was a Henry VIII of England, a future King Henry of the United Kingdom would be Henry IX; but as there has been a James VII of Scotland but only a James II of England, a future King James of the United Kingdom would be James VIII.
See also
- Style of the British SovereignStyle of the British SovereignThe precise style of British Sovereigns has varied over the years. style is officially proclaimed in two languages:* in English: * in Latin: -Highness, Grace and Majesty:From about the 12th century onwards, English Sovereigns used the style "Highness"...
- Constitution of the United KingdomConstitution of the United KingdomThe constitution of the United Kingdom is the set of laws and principles under which the United Kingdom is governed.Unlike many other nations, the UK has no single core constitutional document. In this sense, it is said not to have a written constitution but an uncodified one...
- Pillar Box WarPillar Box WarThe 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, Queen Elizabeth II.-Background:...
External links
- HansardHansardHansard is the name of the printed transcripts of parliamentary debates in the Westminster system of government. It is named after Thomas Curson Hansard, an early printer and publisher of these transcripts.-Origins:...
for the House of LordsHouse of LordsThe House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
from 1999 discussing the case:
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