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MacCormick v Lord Advocate

MacCormick v Lord Advocate (1953 SC 396) 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. This was perceived as 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, also known as Her Majesty's Advocate, the most senior legal representative of the Crown 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, coming before the Lord President (Lord Cooper), Lord Carmont, and Lord Russell MacCormick. There, MacCormick and Hamilton lost their case: it was held that they had no title to sue the Crown, and also that the treaty had no provision concerning the numbering of monarchs — it was part of the royal prerogative. However, the Lord President, Lord Cooper, gave 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 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 (MacCormick v Lord Advocate 1953 SC 396 at page 411). The full opinion of the Lord President, with which the other members of the Court expressly agreed, has however been much misunderstood in some later commentaries and is not widely available.

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.[1]

Winston Churchill suggested that British sovereigns would use either the English or the Scottish number, whichever was higher.[2] 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 (the same person), a future King James of the United Kingdom would be James VIII.

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[edit] References

  1. ^ "Jackson v Attorney General". Bailii.org. http://www.bailii.org/uk/cases/UKHL/2005/56.html. Retrieved 2010-04-22.
  2. ^ "Winston Churchill, House of Commons Hansard, Royal Style and Title, cols 199-201, 15 April 1953". Hansard.millbanksystems.com. 1953-04-15. http://hansard.millbanksystems.com/commons/1953/apr/15/royal-style-and-title. Retrieved 2010-04-22.

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