MacCormick v Lord Advocate

MacCormick v Lord Advocate [1953] SC 396 [1953] SLT 255 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. 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 had no provision concerning the numbering of monarchs — it was part of the royal prerogative, and that they had no title to sue the Crown. The Lord President did give 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^{[citation needed]} 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.. 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".

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.

See also

• Style of the British Sovereign
• Constitution of the United Kingdom
• Pillar Box War

External links

• Hansard for the House of Lords from 1999 discussing the case:
  • Department of the Official Report (Hansard), House of Lords, Westminster (1999-04-27). "Lords Hansard text for 27 Apr 1999 (190427-14)". Parliament.the-stationery-office.co.uk. http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldhansrd/vo990427/text/90427-14.htm. Retrieved 2010-04-22. 
  • The Committee Office, House of Lords. "House of Lords - Privileges - Second Report". Parliament.the-stationery-office.co.uk. http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldselect/ldprivi/108i/10810.htm. Retrieved 2010-04-22.