Case Note

The Queen’s Number: MacCormick v Lord Advocate and the Sovereignty of the Scottish Constitution

Stuart MacLennan

School of Law

In 1953 two Scottish nationalists asked the Court of Session to rule that the new monarch could not lawfully be styled “Elizabeth the Second” in Scotland, for the plain reason that there had never been an Elizabeth the First north of the border.¹ They lost. Yet the opinion that dismissed them has outlived almost every other case decided that term, because in refusing the petition the Lord President said something about the Union that constitutional lawyers have argued over ever since.²

The petitioners were John MacCormick, then Lord Rector of the University of Glasgow and the moving spirit of the Scottish Covenant movement,³ and Ian Hamilton, a law student who three years earlier had helped remove the Stone of Destiny from Westminster Abbey.⁴ Their complaint was precise. Elizabeth Tudor had reigned over England and Ireland from 1558; she had never been Queen of Scots, and the realm she ruled had given way to a united Crown in 1603 and to a wholly new state at the Union of the Parliaments in 1707.⁵ To number the new Queen “the Second” was therefore, they argued, to write English regnal history onto a United Kingdom that the Treaty of Union had created afresh.

The Lord Ordinary, Lord Guthrie, dismissed the petition at first instance, and the First Division refused the reclaiming motion.⁶ The ground of decision was modest: the petitioners had no title or interest to sue, having shown no legal right of their own that the numeral infringed.⁷ The choice of numeral, the court added, was an exercise of the royal prerogative, and the Royal Titles Act 1953 contained nothing that compelled or forbade any particular figure.⁸ On its own terms the case was an easy dismissal.

“A distinctively English principle”

What made the report famous was the passage in which Lord President Cooper turned, in obiter, to the petitioners’ larger premise: that Parliament could legislate as it pleased over the very terms of the Union.⁹

The principle of the unlimited sovereignty of Parliament is a distinctively English principle…Lord President Cooper

Cooper traced that doctrine to Coke and Blackstone and observed that it had no equivalent in the older constitutional law of Scotland. Since the Union legislation had extinguished both the Scottish and the English Parliaments and put a new Parliament of Great Britain in their place, he could see no reason to assume that the new body had inherited every peculiarity of the English one while taking on none of the Scottish.¹⁰ Whether, then, some articles of the Treaty might bind even Parliament was, he suggested, a question worth asking.

A question left open

Cooper was careful not to answer it. He doubted whether the matter was justiciable at all, and reserved his opinion on whether the Court of Session would even have jurisdiction to entertain a challenge to an Act of the United Kingdom Parliament were one ever brought.¹¹ The dictum is therefore exactly that — a doubt, not a holding — and later courts have treated it accordingly, citing it with respect while declining to give it operative effect.

That has not diminished its pull. MacCormick is the text to which nearly every modern discussion of Scottish constitutional distinctiveness returns, from the fishing-rights litigation of the 1970s to the devolution jurisprudence of the present Supreme Court.¹² Its lasting interest is not the empty numeral that prompted it, but the suggestion — made in passing, by the most senior Scottish judge of his day — that the sovereignty English lawyers took for granted might rest on shakier foundations once the Union is taken seriously.