MacCormick v Lord Advocate

MacCormick v Lord Advocate [1953] SC 396 is a landmark decision of the Court of Session (Inner House) in which two Scottish petitioners, John MacCormick and Ian Hamilton, challenged the use of the royal numeral 'Elizabeth II' in Scotland following the accession of Queen Elizabeth II to the throne in 1952. The central contention was that, since Queen Elizabeth I had never been Queen of Scotland — Scotland and England not having been united under a single Crown at that time — the designation 'Elizabeth II' was historically inaccurate and constitutionally impermissible north of the border.

The petitioners sought a declarator that Her Majesty had no right to use the numeral 'II' in Scotland and that the Lord Advocate and other public officials had acted unlawfully in authorising or permitting the display of that numeral and the associated royal cypher on official materials, including post boxes, throughout Scotland. The claim therefore raised questions both of historical constitutional fact and of fundamental constitutional law.

The petitioners grounded their argument primarily in the Treaty of Union 1707 and the associated Acts of Union passed by the Scottish and English Parliaments respectively, which brought into existence the Parliament of Great Britain. They argued that the Treaty of Union constituted a fundamental constitutional compact of a quasi-contractual nature, capable of imposing binding limitations upon the successor Parliament of the United Kingdom. The choice of royal numeral, they submitted, violated Article 1 of the Treaty, which governed the terms on which the two Crowns were to be united.

The Lord Advocate, appearing as the principal respondent representing the Crown and the Scottish Executive, contested the petition on two grounds: first, that the court lacked jurisdiction to review the validity of an Act of Parliament or to declare unlawful any act taken thereunder; and, second, that on the substantive merits the choice of royal numeral was a matter of royal prerogative over which the courts had no supervisory jurisdiction.

The case came before a bench of the First Division of the Court of Session. Lord President Cooper delivered the principal opinion, with Lords Russell and Guthrie concurring. The case is remarkable not merely for its disposal of the petition, but for the extensive obiter dicta delivered by Lord President Cooper on the nature and limits of parliamentary sovereignty within the Scottish constitutional tradition.

The primary jurisdictional question was whether the Court of Session possessed power to review the validity of an Act of Parliament — specifically, whether the court could entertain a challenge to legislation passed by the Westminster Parliament on the ground that it conflicted with or violated the terms of the Treaty of Union 1707.

The second substantive issue was whether the use of the numeral 'Elizabeth II' in Scotland constituted a violation of the Treaty of Union 1707, and in particular whether the Treaty's provisions governing the union of the Crowns imposed any constraint upon the choice of royal numeral to be used in Scotland following the Queen's accession.

A third, underlying constitutional question — addressed primarily in Lord President Cooper's obiter remarks — was whether the doctrine of unlimited parliamentary sovereignty, as classically expounded in the English tradition by writers such as Dicey, was equally applicable to Scottish constitutional law, and whether the Treaty and Acts of Union themselves might operate as fundamental constitutional constraints upon Parliament's legislative competence.

Lord President Cooper commenced his analysis by addressing the jurisdictional objection. He affirmed the established constitutional principle that the courts of the United Kingdom — whether in England or in Scotland — do not possess the power to review the validity of Acts of Parliament or to decline to apply them on the ground that they conflict with superior legal norms. This principle, well entrenched in the common law traditions of both jurisdictions, reflects the constitutional relationship between the judiciary and the legislature and the doctrine of the separation of powers as it operates in the United Kingdom.

Having affirmed that courts cannot strike down Acts of Parliament, Lord President Cooper proceeded to make observations of considerable constitutional importance. He stated that the principle of unlimited parliamentary sovereignty — the Diceyan doctrine that Parliament may make or unmake any law whatsoever and that no court may pronounce upon its validity — is a distinctively English constitutional principle that grew out of the struggles between Crown and Parliament in the seventeenth century, most particularly in the context of the Glorious Revolution of 1688. That principle, he suggested, had no direct counterpart in Scottish constitutional law, which had developed along different historical lines and had not been shaped by the same constitutional conflicts.

Lord President Cooper advanced the proposition that when the Scottish Parliament and the English Parliament agreed the Treaty of Union and passed the respective Acts of Union in 1707, a new constitutional entity — the Parliament of Great Britain, later the Parliament of the United Kingdom — was brought into being. That new Parliament was itself a creature of the Treaty and the Acts. It was therefore at least arguable, in Lord Cooper's view, that the successor Parliament could not exercise its legislative powers in a manner that violated the fundamental conditions upon which the union was predicated, since to do so would involve an act of constitutional self-contradiction.

Lord President Cooper identified this as a question of 'very great difficulty' and described it as a 'fundamental question' of constitutional law that had never been authoritatively resolved by the courts. He declined, however, to resolve it in the present proceedings, on the ground that it was not necessary to do so in order to dispose of the petition before him. His remarks on this issue are accordingly obiter dicta and carry persuasive rather than binding authority, but their intellectual force has ensured that they have been extensively cited and debated in subsequent constitutional scholarship and jurisprudence.

Lord President Cooper drew a careful analytical distinction between two different types of constitutional question. The first is whether a court can review the validity of an Act of Parliament in the ordinary sense — that is, declare it null and void and refuse to apply it. The answer to that question, he confirmed, is no: that power does not exist in United Kingdom law. The second, and conceptually distinct, question is whether the Treaty of Union imposed structural limitations upon the Parliament that it created, such that certain alterations could not lawfully be made, or whether Parliament's sovereignty in relation to the terms of the Union was itself unlimited. Lord President Cooper indicated that this second question remained genuinely open.

Turning to the substantive merits of the petition, Lord President Cooper found no basis for the petitioners' claim that the use of the numeral 'Elizabeth II' violated the Treaty of Union. He observed that the Treaty's provisions — and in particular Article 1, which provided for the union of the two Crowns — contained no express prohibition upon any particular form of royal styling or numeral. The Treaty governed the succession to the united monarchy and the terms on which the union was to be constituted, but it did not address, still less determine, the question of how monarchs were to be numbered within the new united kingdom.

Lord President Cooper further held that the choice of royal numeral was a matter of royal prerogative. The prerogative in relation to the adoption and display of royal styles, titles, and cyphers vests in the Crown and is not subject to the supervisory jurisdiction of the courts. It followed that even if the petitioners had been able to identify some arguable basis for their claim, the subject matter of the complaint fell within an area that is inherently non-justiciable. The court was accordingly unable to grant the declaratory relief sought.

Lords Russell and Guthrie delivered concurring opinions. Both confirmed the fundamental constitutional position that the Court of Session has no jurisdiction to question the validity of Acts of Parliament or to review the lawfulness of acts done in exercise of statutory powers on the ground that the underlying statute is itself invalid. Lord Russell and Lord Guthrie did not engage in the same depth of constitutional analysis as Lord President Cooper on the question of parliamentary sovereignty under Scottish constitutional theory, but their concurrences reinforced the unanimous disposal of the petition.

The court also observed that even if any legal right had been capable of being asserted in respect of the royal numeral, the petitioners would have faced considerable difficulties in establishing that they had sufficient title and interest to sue. Questions of standing in public law proceedings in Scotland require a petitioner to demonstrate a real and direct interest in the subject matter of the claim. The court did not require to decide this issue definitively given the other grounds for dismissal, but the observation indicated a further obstacle that the petitioners' case would have had to surmount.

The overall effect of the court's reasoning is therefore threefold. First, as a matter of binding ratio decidendi, the court confirmed that Acts of Parliament cannot be challenged in the Scottish courts any more than in the English courts. Second, as a matter of carefully articulated obiter dicta, Lord President Cooper cast doubt upon the automatic applicability to Scotland of the Diceyan doctrine of unlimited parliamentary sovereignty and identified the relationship between the Treaty of Union and Parliament's legislative competence as a live and unresolved constitutional question. Third, as a matter of substantive law, the court held that the royal numeral was a prerogative matter outside judicial review and that the Treaty of Union contained no provision relevant to the petitioners' complaint.

The Court of Session dismissed the petition. The court held unanimously that it had no jurisdiction to question the validity of Acts of Parliament and that no such power existed in Scottish law any more than in English law. This formed the ratio decidendi of the decision.

The court further held, on the substantive issue, that the Treaty of Union 1707 contained no provision that was violated by the use of the numeral 'Elizabeth II' in Scotland, and that the choice of royal numeral was in any event a matter of royal prerogative beyond the supervisory jurisdiction of the court. No declarator could therefore be granted.

Lord President Cooper's statement that the principle of unlimited parliamentary sovereignty has no counterpart in Scottish constitutional law, and his suggestion that the question of whether the Treaty of Union imposes limitations upon Parliament's legislative power is a justiciable constitutional question that has never been authoritatively resolved, formed obiter dicta of significant and enduring constitutional importance.

MacCormick v Lord Advocate occupies a foundational position in UK public law for its engagement with two of the most profound questions in British constitutional theory: the nature and limits of parliamentary sovereignty, and the constitutional status of the Acts of Union 1707. Lord President Cooper's obiter remarks have become among the most frequently cited passages in Scottish constitutional scholarship, providing doctrinal support for those who argue that parliamentary sovereignty in the Diceyan sense is a specifically English constitutional development that does not straightforwardly apply to Scotland and, by extension, to the United Kingdom constitution as a whole.

The case has assumed renewed relevance in the context of devolution and the establishment of the Scottish Parliament following the Scotland Act 1998. Academic commentators, including Professors Neil MacCormick and Sir Neil MacCormick (the son of one of the original petitioners), have drawn upon Lord Cooper's remarks in developing theories of constitutional pluralism and popular sovereignty that challenge orthodox parliamentary sovereignty doctrine. The question of whether the Westminster Parliament is subject to constitutional constraints in its dealings with Scotland — whether arising from the Treaty of Union or from the devolution settlement — continues to generate scholarly and political debate.

The case has also been invoked in subsequent litigation concerning the constitutional implications of Brexit and the relationship between Acts of Parliament and fundamental constitutional principles. In cases such as R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, the Supreme Court considered the constitutional status of devolution settlements and the relationship between parliamentary sovereignty and constitutional conventions, echoing some of the analytical tensions identified in Lord Cooper's judgment. While the Supreme Court in Miller affirmed orthodox parliamentary sovereignty doctrine, the conceptual territory mapped by Lord President Cooper remains contested.

More broadly, MacCormick v Lord Advocate stands as an important authority for the proposition that courts may properly examine whether constitutional arrangements impose structural limitations upon legislative power as a matter of justiciable constitutional law, even if the ultimate conclusion is that the specific complaint lacks merit or that the precise extent of those limitations remains undefined. This distinction — between declining jurisdiction entirely and engaging with constitutional questions while finding no violation — has influenced subsequent judicial approaches to constitutional review in the United Kingdom and has contributed to a more nuanced understanding of the relationship between judicial function and constitutional principle.