| MacCormick v Lord Advocate | |
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| Court | Inner House of theCourt of Session |
| Decided | 30 July 1953 |
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| Case history | |
| Appealed from | Outer House of theCourt of Session |
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MacCormick v Lord Advocate 1953 SC 396 was aScottish constitutional law case andScottish legal action on whether QueenElizabeth II was entitled to use the numeral "II" as herregnal number in Scotland, as there had never been an earlier Elizabeth reigning in Scotland.
John MacCormick (theRector of the University of Glasgow) andIan Hamilton (then part of theGlasgow University Scottish Nationalist Association) contested the right ofQueen Elizabeth II to style herself 'Elizabeth II' within Scotland.[1] They claimed it was a breach of theAct of Union 1707 between England and Scotland, sinceElizabeth I had beenQueen of England but not of Scotland. The action was brought againstthe Crown, which was represented by theLord Advocate, who is the most senior law officer in Scotland.
The petition first came before Lord Guthrie, sitting asLord Ordinary in theOuter House (thecourt of first instance in theCourt of Session). He dismissed it; this was appealed to theInner House. The appeal was heard by theLord President (Lord Cooper of Culross), Lord Carmont, and Lord Russell. There, MacCormick and Hamilton lost their case: it was held that thetreaty had no provision concerning thenumbering of monarchs—it was part of theroyal prerogative, and that they had no title to suethe Crown. The Lord President did give his opinion in a obiter, a non binding opinion separate from the Court’s judgment, that "the principle of unlimitedsovereignty of Parliament is a distinctively English principle and has no counterpart inScottish constitutional law". The case was thus constitutionally interesting[2] as the Lord Advocate "conceded this point by admitting that the Parliament of the United Kingdom 'could not' repeal or alter [certain] 'fundamental and essential' conditions" of the Act of Union.[3] 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".[4]
The outcome of this case has had continuing relevance, most notably in 1999, when the British Parliament discussed the creation of theScottish Parliament. It has been discussed in a number of later decisions of the courts, notablyGibson v Lord Advocate 1975 SC 136, and the English case ofJackson v Attorney General, [2005] 3 WLR 733.[5]
Winston Churchill suggested that British sovereigns would use either the English or the Scottish number, whichever was higher.[6]
{{cite web}}: CS1 maint: numeric names: authors list (link)