MacCormick v Lord Advocate

The Lord President (Lord Cooper)

Lord Carmont

Lord Russell MacCormick

LORD JUSTICE A.L. SMITH

John MacCormick and Ian Hamilton

v.

H M Advocate

(Extract of the leading judgment follows:)

THE LORD PRESIDENT:

This is a petition of suspension and interdict against the Lord Advocate, as representing Her Majesty's Ministers and Officers of State, praying for interdict against them from publishing a proclamation entitling Her Majesty as, inter alia, 'Elizabeth the Second of the United Kingdom of Great Britain.' Some of the questions which would have arisen as to the feasibility of such a remedy were largely superseded by the petitioners' invocation of section 21 of the Crown Proceedings Act, 1947, in terms of which they asked only for 'an order declaratory of the rights of parties.' Where such an order is asked, I consider that it should be formulated with precision, and this has not been done. But it was made sufficiently plain in the pleadings and argument that what the petitioners sought was a finding from this Court that the use in Her Majesty's title of 'the numeral' was not only inconsistent with historical fact and political reality, but involved a contravention of the Treaty of Union of 1707 and of the relative Scottish and English legislation passed at that time. "The Lord Ordinary dismissed the petition upon these grounds:—(I) that the adoption of ‘the numeral’ had been expressly authorised by the Royal Titles Act, 1953,2 and that an Act of the Parliament of Great Britain was not challengeable in any Court as being in breach of the Treaty of Union or on any other ground; (2) that in any event article 1 of the Treaty did not expressly or by implication prohibit the use of ‘the numeral,’ and that the action therefore failed on relevancy; and (3) that the petitioners had no legal title or interest to sue.

In the first place, the argument has not satisfied me that the Royal Titles Act, 1953, has any proper bearing upon the sole issue here in controversy. That Act only received the Royal Assent on 26th March 1953. More than thirteen months previously, on 6th February 1952, Her Majesty was proclaimed at her Accession Council (and immediately thereafter throughout the Realm and the Dominions) under the name of ‘Elizabeth the Second.’ It was under the same name and ‘numeral’ that Her Majesty on 8th February 1952 subscribed the statutory oath in relation to the rights and privileges of the Church of Scotland. We have judicial knowledge of these facts because the original oath, together with the relative Instrument and Order in Council, was presented to this Court on 12th February 1952, and was directed to be recorded in the Books of Sederunt and to be transmitted to the Keeper of the Records of Scotland. Identical procedure mutatis mutandis was followed on the occasion of the accession of Their Majesties Edward VII, George V, Edward VIII and George VI. In all these instances the name and ‘the numeral’ were adopted without the authority of any Act of Parliament (anticipatory or retrospective), and were never altered during the reigns of the several sovereigns concerned. There have been several statutes in the last 150 years dealing with the ‘royal style and titles,’ but it is plain from an examination of them and of the royal proclamations which followed that each and all were concerned not with the name and the ‘numeral’ but with the appendant designations and with the necessity for varying those appendant designations because of some supervening change in the status of some part of the territories still or previously acknowledging allegiance to the British Crown—notably the differing positions at different times of Ireland. India and what are now the Dominions. The Act of 1953 is, in my view, in the same general category as the earlier Acts of this type, its occasion (as the preamble discloses) being a meeting with the Dominion representatives in December 1952. There is however this significant difference, that the Act, of 1953 merely signifies the ‘assent’ of the United Kingdom Parliament to the adoption of unspecified styles and titles, whereas the earlier Acts (notably those passed in 1876, 1901, 1927 and 1947) bore to authorise the alteration by the expression ‘it shall be lawful for Her (or His) Majesty.’ The proclamation issued on 28th May 1953 in pursuance of the Act of 1953 substitutes ‘Northern Ireland’ for ‘Ireland’; alters the formula applicable to the Commonwealth and Empire overseas; but leaves the name and the ‘numeral’ and the rest of the style and title unaffected. I find it impossible to hold that the Act of 1953 authorised, either retrospectively or by anticipation, the adoption by Her Majesty of the name and ‘numeral’ by which she was initially proclaimed and has ever since been officially known.

I interpose this observation, that, if it were necessary to construe the Act of 1953, I should find it impossible to do so because the Act is not self-contained. All the other Acts dealing with a change in the royal style and titles simply authorised the sovereign to adopt such changed styles and titles as the sovereign might think fit. But in 1953 the sovereign's discretion in the matter is not unqualified. The changed style and titles to which Parliament assented must be such as Her Majesty may think fit ‘having regard to the said Agreement.’ What agreement? Plainly the agreement said to have been concluded with the Dominion representatives in December 1952. But this agreement is not scheduled or otherwise detailed, the only reference to it being in the vague words of the preamble of the Act, which are entirely lacking in specification. The Lord Advocate admitted that the Act was not self-explanatory, and offered in supplement a ‘White Paper,’ which he indicated had been made available in the Vote Office prior to the consideration of the bill. But Parliament can only speak through the medium of a statute. A Court of law is not entitled to investigate the Parliamentary history of a bill, whether in the pages of Hansard or in their equivalent, a ‘White Paper,’ and I am therefore forced to the conclusion that this Act must remain incapable of being fully understood or intelligently interpreted by any Court, the Legislature having withheld the material necessary for that purpose. Be that as it may, I consider that the Lord Advocate failed to show that there is, or ever was, Parliamentary authority for the adoption by Her Majesty of the name and the ‘numeral’ which in fact were adopted on Her Majesty's accession and have been used ever since.

Upon this view a part of the Lord Ordinary's judgment and of the argument before us disappears. But lest this case should go further, I shall briefly express my opinion.

The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law. It derives its origin from Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form in his Law of the Constitution. Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done. Further, the Treaty and the associated legislation, by which the Parliament of Great Britain was brought into being as the successor of the separate Parliaments of Scotland and England, contain some clauses which expressly reserve to the Parliament of Great Britain powers of subsequent modification, and other clauses which either contain no such power or emphatically exclude subsequent alteration by declarations that the provision shall be fundamental and unalterable in all time coming, or declarations of a like effect. I have never been able to understand how it is possible to reconcile with elementary canons of construction the adoption by the English constitutional theorists of the same attitude to these markedly different types of provisions.

The Lord Advocate conceded this point by admitting that the Parliament of Great Britain ‘could not’ repeal or alter such ‘fundamental and essential’ conditions. He was doubtless influenced in making this concession by the modified views expressed by Dicey in his later work entitled Thoughts on the Scottish Union, from which I take this passage (pp. 252–253):—’The statesmen of 1707, though giving full sovereign power to the Parliament of Great Britain, clearly believed in the possibility of creating an absolutely sovereign Legislature which should yet be bound by unalterable laws.’ After instancing the provisions as to Presbyterian Church government in Scotland with their emphatic prohibition against alteration, the author proceeds:—’It represents the conviction of the Parliament which passed the Act of Union that the Act for the security of the Church of Scotland ought to be morally or constitutionally unchangeable, even by the British Parliament … A sovereign Parliament, in short, though it cannot be logically bound to abstain from changing any given law, may, by the fact that an Act when it was passed had been declared to be unchangeable, receive a warning that it cannot be changed without grave danger to the Constitution of the country.’ I have not found in the Union legislation any provision that the Parliament of Great Britain should be ‘absolutely sovereign’ in the sense that that Parliament should be free to alter the Treaty at will. However that may be, these passages provide a necessary corrective to the extreme formulations adopted by the Lord Ordinary, and not now supported. In the latest editions of the Law of the Constitution the editor uneasily describes Dicey's theories as ‘purely lawyer's conceptions,’ and demonstrates how deeply later events, such as the Statute of Westminster, have encroached upon the earlier dogmas. As is well known, the conflict between academic logic and political reality has been emphasised by the recent South African decision as to the effect of the Statute of Westminster— Harris v. Minister of Interior.

But the petitioners have still a grave difficulty to overcome on this branch of their argument. Accepting it that there are provisions in the Treaty of Union and associated legislation which are ‘fundamental law,’ and assuming for the moment that something is alleged to have been done—it matters not whether with legislative authority or not—in breach of that fundamental law, the question remains whether such a question is determinable as a justiciable issue in the Courts of either Scotland or England, in the same fashion as an issue of constitutional vires would be cognisable by the Supreme Courts of the United States, or of South Africa or Australia. I reserve my opinion with regard to the provisions relating expressly to this Court and to the laws ‘which concern private right’ which are administered here. This is not such a question, but a matter of ‘public right’ (articles 18 and 19). To put the matter in another way, it is of little avail to ask whether the Parliament of Great Britain ‘can’ do this thing or that, without going on to inquire who can stop them if they do. Any person ‘can’ repudiate his solemn engagement but he cannot normally do so with impunity. Only two answers have been suggested to this corollary to the main question. The first is the exceedingly cynical answer implied by Dicey (Law of the Constitution, (9th ed.) p. 82) in the statement that ‘it would be rash of the Imperial Parliament to abolish the Scotch law courts, and assimilate the law of Scotland to that of England. But no one can feel sure at what point Scottish resistance to such a change would become serious.’ The other answer was that nowadays there may be room for the invocation of an ‘advisory opinion’ from the International Court of Justice. On these matters I express no view. This at least is plain, 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, least of all when that Treaty is one under which both Scotland and England ceased to be independent states and merged their identity in an incorporating union. From the standpoint both of constitutional law and of international law the position appears to me to be unique, and I am constrained to hold that the action as laid is incompetent in respect that it has not been shown that the Court of Session has authority to entertain the issue sought to be raised.

Upon the question of the relevancy of the petitioners' averments of breach of the provisions of the Treaty I agree in the result with the Lord Ordinary. Only article 1 of the Treaty was founded upon, and it was conceded that there was nothing explicit in that article dealing with the point in controversy. I am unable to find in that article any sufficient implied prohibition against the adoption of the ‘numeral’ complained of, and this view is supported by the practice of 120 years. That practice is doubtless correctly explained in Phillips's Principles of English Law and the Constitution (1939) (at pp. 229–230) as follows:—’The number attached to the name of a king refers to the Kings of England since the Norman Conquest’; for, if this is not the rule, all the kings of the name of Edward since Edward I have been wrongly numbered. Whether the rule is good or bad, and whether it is politically wise to continue to apply it, it is not for this Court to say; but, in so far as I am entitled to look at article 1 of the Treaty, I am unable to affirm that any breach has been committed.

Finally, I agree with the Lord Ordinary on title to sue. There is no plea by the respondent to this point and it is of minor significance. It is true that we in Scotland recognise within certain limits the actio popularis, in which any member of the public may be entitled as such to vindicate certain forms of public right. But the device has never been extended to such a case as this. I cannot see how we could admit the title and interest of the present petitioners to raise the point in issue before the Court of Session without conceding a similar right to almost any opponent of almost any political action to which public opposition has arisen.

For these reasons, which differ in certain respects from the views expressed by the Lord Ordinary, I am for adhering to his Lordship's interlocutor. I desire to place it on record that the petitioners expressly disclaimed any attempt to criticise Her Majesty or any disloyalty to Her, their action being based upon considerations of which the present issue is merely symbolical.