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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McCormick v LA [1953] ScotCS CSIH_2 (30 July 1953) URL: http://www.bailii.org/scot/cases/ScotCS/1953/1953_SC_396.html Cite as: [1953] ScotCS CSIH_2, 1953 SLT 255, 1953 SC 396 |
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30 July 1953
| MacCormick |
| v. |
| Lord Advocate |
The principal argument against the competency of the petition was that section 1 of the Royal Titles Act, 1953, gives the authority of statute to such style and titles as Her Majesty may think fit for use in the United Kingdom, and to the issue by her for that purpose of a proclamation, and that it is incompetent to challenge in Court the validity of a proclamation made under the authority of an Act of Parliament.
The preamble to the Act refers to an agreement between representatives of Her Majesty's Governments in the Commonwealth that there was a need for an alteration in the style and titles at present appertaining to the Crown. Section 1 then enacts:—[His Lordship quoted the section, and continued]—Founding upon these provisions, the respondent maintained that Parliament had conferred upon Her Majesty the right to choose in furtherance of the agreement her own style and titles. Accordingly, if Her Majesty thought fit to adopt a style and titles including the phrase "Elizabeth the Second, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland … Queen," the style and titles would have the authority of statute. Further, Parliament had assented to the publication of the style and titles thus chosen by the issue of a royal proclamation. The proclamation, when published in the Edinburgh Gazette in accordance with the Crown Office Act, 1877, section 3, and rule 7 of the Rules made thereunder, was valid in law in Scotland. The Court had therefore no power to interdict what an Act of Parliament had expressly authorised.
The petitioners submitted that, article 1 of the Treaty of Union being a fundamental condition of the union between Scotland and England, it was ultra vires of the Parliament of the United Kingdom to amend that article or to pass legislation in contradiction of its provisions. That Parliament did not have unlimited sovereignty, since it was created by the Treaty of Union, which contained articles limiting its powers in certain respects. Further, as the Parliament of Scotland was not a sovereign body, since its laws could fall in desuetude, it could not convey by the Treaty of Union to the Parliament of the United Kingdom a sovereignty which it never possessed. Therefore, if the Royal Titles Act, 1953, purported to authorise Her Majesty to adopt the title "Elizabeth the Second," that statute was ultra vires of Parliament, since by article 1 of the Treaty of Union the United Kingdom came into being on 1st May 1707, and no ruling sovereign of that kingdom had borne the name Elizabeth until the accession of Her Majesty. Every citizen of Scotland had an interest to ensure that the fundamental conditions of the Treaty of Union were observed, and, as an application to the Court was the only method whereby this could be achieved, the petition was competent. The Court had power to prevent the publication of a proclamation which was illegal as in violation of the Treaty of Union.
In my opinion, the petitioners' propositions in law are unsound and indeed extravagant. No Scottish Court has ever held an Act of Parliament to be ultra vires, and it has never been suggested that it could do so. I do not require to examine the contention that the Scottish Parliament was not sovereign, but there could not be a more remarkable exercise of sovereign power than the abolition of the separate Kingdom of Scotland by the Act of Union. The propositions of the petitioners are based upon a challenge of the sovereignty of the Parliament of the United Kingdom, which, in the words of Professor Dicey, is, from a legal point of view, the dominant characteristic of our political institutions—Law of the Constitution, (9th ed.) p. 39. The petitioners urged that Professor Dicey's work was an English book, based on English law, and should not be accepted in Scotland. It is sufficient to say that his Law of the Constitution has been for generations accepted in the schools of law in our Scottish Universities as an authoritative exposition of the constitution of the United Kingdom. The doctrine of the sovereignty of Parliament is recognised in Scotland as a basic principle of constitutional law. It is expounded by Mr W. I. R. Fraser, a Scottish writer, in his Outline of Constitutional Law, pp. 12 et seq. It follows from that doctrine that "any Act of Parliament, or any part of an Act of Parliament, which makes a new law, or repeals or modifies an existing law, will be obeyed by the Courts"—Dicey, p.40. In later passages (pp. 88–91) the same author states three traits of Parliamentary sovereignty; first, the power of the Legislature to alter any law, fundamental or otherwise, as freely and in the same manner as other laws; secondly, the absence of any legal distinction between constitutional and other laws; thirdly, the non-existence of any judicial or other authority having the right to nullify an Act of Parliament, or to treat it as void or unconstitutional. As I regard these statements as an accurate exposition of the law, it follows that, in my opinion, this Court is bound to obey the will of Parliament as expressed in the Royal Titles Act, 1953. Section 1 of that statute, as the Lord Advocate contended, has given the approval of Parliament to such style and titles as Her Majesty may think fit. If the style and titles adopted in pursuance of that section include the phrase "Elizabeth the Second," it is incompetent for the petitioners to challenge them in a Court of law, even if it is assumed that prior to the passing of that Act such style and titles would have been contrary to article 1 of the Treaty of Union. A submission by the petitioners that the numeral is not a part of the style and titles will not bear examination. Further, as the section authorises the issue of a proclamation in pursuance of the adoption of the style and titles, it is incompetent for the petitioners to crave the Court to interfere with the execution of the will of Parliament.
It is unnecessary for me to deal with a further argument on behalf of the respondent that, if the proclamation is not authorised by the Act of 1953, it is an exercise of the royal prerogative which is also not subject to challenge in a Court of law, nor with a submission that, since the proclamation is not the executive act but only the means by which it is published, it is futile and therefore incompetent to seek to interdict the publication of an act already done.
It was also argued by the respondent that, as the Lord Advocate did not, under the Crown Suits (Scotland) Act, 1857, represent the Privy Council, the petition was not competently laid, since, as he averred in his answers, the proclamation, when made, would be of an executive act of the Queen in Council and not under the authority of Her Majesty's Ministers. But, under section 1 of the Act of 1857, the Lord Advocate is the person against whom a proceeding against the Crown should be directed. In the circumstances of this case I think that he was appropriately called as respondent, and, if the petition were otherwise competent, the objection that the crave wrongly seeks interdict against the Ministers and Officers of State might have been cured by amendment.
Reference was also made to the Crown Proceedings Act, 1947, which by section 21, as applied to Scotland, enacts that the Court shall not grant an interdict against the Crown, but may in lieu thereof make an order declaratory of the rights of the parties. Although the petition craves interdict, the petitioners' pleas ask alternatively for a declaratory order, and, had it been necessary to do so, such an order could have been made notwithstanding the terms of the crave.
For the reasons given above, however, I shall sustain the respondent's first plea in law.
The respondent also maintained that the petition should be dismissed on the ground of the irrelevancy of the averments of the petitioners. It was argued that the style and titles which it was proposed that Her Majesty should adopt were not contrary to article 1 of the Treaty of Union, and that, if they were, that article must be held to have been amended by the Royal Titles Act, 1953.
Article 1 provided that the two Kingdoms of Scotland and England should upon 1st May 1707 and forever after be united into one kingdom by the name of Great Britain. For the Lord Advocate it was submitted that the article was silent about the style to be adopted by the sovereign, and that accordingly, after the union, the sovereign could adopt such style and titles as were thought fit. The petitioners argued that it was necessarily implied by the formation of the United Kingdom by a contractual agreement between the two independent kingdoms that the enumeration of sovereigns should commence de novo. The enumeration proposed to be proclaimed inferred that Queen Elizabeth of England had been Queen of Great Britain. This contradicted the date of the union expressed in the Treaty and thus was an indirect but real breach of its conditions. It was also submitted that the practice after 1603 was that when the ruling monarch was referred to as sovereign of Great Britain a fresh enumeration was adopted. Further, they maintained that the Royal Titles Act, 1953, did not authorise the adoption of a numeral contrary to the provisions of the Act of Union, and that the later statute should be construed in accordance with it.
As I heard argument on the respondent's second plea and as the case may go to a higher Court, it is, I think, necessary that I should express my views upon the submissions and dispose of the plea. In my opinion, as a matter of the interpretation of article 1 of the Treaty of Union, a proclamation of a royal title, including the number objected to by the petitioners, cannot be held to be a breach of its terms. The article does not contain any provision as to the style and titles to be adopted by the monarchs of the new kingdom, who could, therefore, adopt such designation as was thought convenient. Whatever method of enumeration was chosen could not impair the fulfilment of the object of the article, the creation and continuance of the United Kingdom of Great Britain. I do not feel called upon to express my opinion on the petitioners' submissions as to the historical inaccuracy of the proposed enumeration, or as to previous practice, since these have no bearing upon the purely legal question of the interpretation of the article.
There is also, in my opinion, a further fatal objection to the relevancy of the averments in the petition. I can find in the petition no relevant averments that the real or personal rights of the petitioners will be infringed by the proposed proclamation. They aver that they have protested against it and that it may lead to disturbances. But questions of the nature of those raised in this petition as to an international treaty are not matters which can be decided in this Court. The remedy of those who may feel aggrieved about these matters is to be sought in Parliament and not in a Court which is only concerned with the protection of legal rights. It is to be hoped that the apprehensions of the petitioners as to civil disturbance are unfounded, but in any event these averments do not state any relevant ground for the interference by this Court in a matter of public policy of this kind.
This petition appears to have been brought under misconceptions as to the respective functions under the constitution of the Legislature and the judiciary, as to the legal rights of the petitioners and as to the matters which can be competently brought before the Court. I shall sustain the first, second and fourth pleas in law for the respondent and dismiss the petition.
The petitioners reclaimed, and the case was heard before the First Division (without Lord Keith) on 10th July 1953.
At advising on 30th July 1953,—
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, 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.
The substance of the petitioners' complaint is that, in the royal style and title under which Her present Majesty was proclaimed Queen, the insertion of the numeral "II." after Her Majesty's name Elizabeth is a contradiction of fact and is a breach of the first article of the Treaty of Union between the Kingdoms of Scotland and England as ratified and approved in 1707 by Acts of the Parliaments of Scotland and England. The petition seeks to interdict Her Majesty's Ministers and Officers of State from publishing a proclamation entitling Her Majesty as, inter alia, Elizabeth II, the challenge being referable solely to the inclusion of the numeral "II." As it was admitted that Her Majesty had already been proclaimed with the royal title "Elizabeth II," and that in any event the Court cannot competently grant interdict in such a case, the petitioners ask instead that a declaratory order should be pronounced by the Court setting forth their rights in the matter complained of—that being the only remedy permissible in the circumstances, conform to the provisions of section 21 (1) (a) of the Crown Proceedings Act, 1947. The petitioners were not prepared to admit that there had since 1707 been any custom or any valid justification for a practice by which the number following the name of each sovereign had been the number next to that of any previous sovereign who had borne and been known by the same name, whether in Scotland or in England.
In the course of the debate various propositions were put forward by the petitioners as to the form of the declaratory order which they seek from the Court. In the end of the day, however, it appeared to me that the declarator sought was substantially to this effect, viz., that the insertion of the numeral "II" in the royal title of Her Majesty as proclaimed by royal proclamation, whether assented to by Parliament or by Her Majesty in Council, is and should be declared to be illegal, null and of no effect in respect that its insertion is contrary to and violates article 1 of the Act of Union of 1707. I do not doubt that a royal proclamation made under the Great Seal is a formal announcement which the sovereign with the advice of the Privy Council desires to make known to his or her subjects; and that, so far as making or remaking any law, a royal proclamation does not have effect as a legislative enactment unless issued under statutory authority—see, e.g., Grieve v. Edinburgh Water Trustees, Lord Justice-Clerk Scott Dickson at p. 713. But it should be noted that one of the first Acts of the United Kingdom Parliament (6 Anne, cap. 6) provided that there should be only one Privy Council, and that its powers should be such as the English Privy Council possessed at the date of the Union. By inveterate custom (since 1707) each new sovereign coming to the United Kingdom throne has been proclaimed as such by the Accession Council, at which the royal style and titles are proclaimed; and thereafter the oath anent the maintenance of the rights of the Church of Scotland is, inter alia, administered to the sovereign in presence of the Privy Council. That accession proclamation has been thereafter publicly proclaimed throughout the realms and territories of the sovereign in accordance with the customary constitutional practice by which the subjects are certiorated that the new sovereign has come to the throne bearing the royal style and titles as proclaimed. That practice was duly followed on the accession of Queen Victoria and of each succeeding sovereign. In the case of Her Present Majesty, on 6th February 1952 the Accession Council met and proclaimed her to be Queen bearing her royal style and titles as "Elizabeth II …" and thereafter the aforementioned oath anent the Church of Scotland was duly administered in presence of the Privy Council. That accession proclamation was thereafter duly published by proclamation under the Great Seal in Her Majesty's realms and territories, including Scotland. The right of the Accession Council so to proclaim the accession of the sovereign has never been challenged, and there is, in my opinion, nothing discoverable in legal principle or precedent which supports the suggestion that the royal style so proclaimed is open to review by the Courts or by anybody other than Parliament.
During the debate reference was made to the fact that since 1800 five statutes had dealt with the royal style and titles of the sovereign— in 1800, 1876, 1901,1927 and 1947. It is clear that the object of each of those statutes was to give Parliamentary assent to an alteration or amendment of the description of the realms and territories contained in the royal style, and that the name and numeral of the ruling sovereign were left unchanged. A further similar statute, the Royal Titles Act, 1953, was passed on 26th March 1953. By that Act the assent of Parliament was given to the adoption by Her Majesty for use in relation to "the United Kingdom and all other territories for whose foreign relations Her Government in the United Kingdom is responsible" of such style and titles as Her Majesty might think fit having regard to an agreement between the representatives of Her Majesty's Government in the United Kingdom and other named realms and territories, "in lieu of the style and titles at present appertaining to the Crown"; and the assent of Parliament was given also to the issue by Her Majesty for that purpose of a royal proclamation under the Great Seal. It is admitted that the proclamation so authorised has since been duly published in Scotland in the Edinburgh Gazette and that it repeats the name and numeral borne by Her Majesty in the earlier accession proclamation, viz., "Elizabeth II." The alteration so made for the United Kingdom is described in answer 9 of the answers to the petition and need not be repeated. It was maintained by the Lord Advocate that, on the assumption that Parliamentary authority was required in order to validate the accession proclamation of Her Majesty's title in respect of the numeral in the words "Elizabeth II," the Act of 1953 gave such authority. The terms of the agreement referred to in that Act are not disclosed in the text of the Act. Before us, however, both parties admitted (first) that the members of the Legislature before debating and passing the Act were in possession of the terms of the agreement which was set out in a White Paper; and (second) that all the representatives who signed the agreement for their respective governments assented to and approved the royal style of Her Majesty as "Elizabeth II …" as set out in the agreement. Admittedly Parliament is master of its own procedure; and its members were content to pass the Act into law in the textual form which it bears. They saw the agreement and approved of its terms, which provided, inter alia, that the numeral II followed the name Elizabeth. A member of the British public reading the Act would find it singularly uninformative in the absence of the agreement; but, if he chose to read the subsequent royal proclamation, which in Scotland was published in the Edinburgh Gazette, he would see that the words "Elizabeth II" were and are part of the royal style whose alteration in the terms set forth in the proclamation had been approved by the United Kingdom Parliament. At the highest I consider that the 1953 Act does no more than give an indirect sort of confirmation by Parliament of the style "Elizabeth II," but I agree that it has very little, if any, bearing on the present issue before us.
In that situation it is unnecessary to determine whether the Lord Ordinary's opinion affirming in absolute terms the unchallengeable sovereignty of the United Kingdom Parliament, and the absence of any right or power of the judicature to nullify or treat as null any Act of Parliament, is or is not well founded. But I concur generally with the comments of your Lordship in the chair regarding the authority to be attributed by a Scottish Court to the opinions expressed by such writers as Professor Dicey on this topic. I would venture also to say a word about the power of the Scottish Courts to declare an Act of Parliament to be in desuetude—a power founded on in the argument of the petitioners as tending to support the proposition for which in this case they contend. It is necessary to emphasise that the power of a Scottish Court to declare an Act to be in desuetude is strictly confined in two respects, viz., (1) that only a pre-1707 Act of the Scottish Parliament can be so dealt with, and (2) that the power can be exercised only where there is knowledge or admission or proof of the existence of custom or action to the contrary clearly showing the intention of the community to treat the particular Act as repealed. It is obvious, in my opinion, that the doctrine of desuetude gives no help to the petitioners' case on this topic. I may add that the pages of history show that Scotland during the two centuries preceding the Union of the Crowns was politically in an unsettled and disturbed state, and although by 1707 the situation had improved there was little to suggest that by that date the framework of government in Scotland had been so consolidated that the Scottish Parliament enjoyed unchallengeable sovereignty. Whether that is so or not, the machinery of government since 1707 in Britain, based partly on statute and partly on usage or custom, has gradually developed to the point at which the relationship between the Legislature (as the law-making body), the executive, and the judiciary is in most, if not all, spheres recognised as being reasonably free from doubt. During the last 250 years, side by side with the vast social and economic changes in Britain—growth of population, expansion of trade and industry and the like—there has grown up a system of representative government embracing adult suffrage, five-year parliaments and the like, until to-day it seems possible to affirm that the will of the majority of the population—both in Scotland and in England—is represented by and vested in its Parliamentary representatives. Indeed during the last eight years the country has witnessed one Parliament completely reversing the policy of the preceding Parliament in the sphere of the "nationalisation" of trade and industry affecting both Scottish and English interests, and yet it would not be true to say that the Courts either in Scotland or England have the power to declare null the statute by which the reversal was accomplished. That instance illustrates the supremacy of Parliament in one sphere—and beyond that it is unnecessary for me, for present purposes, to go. On the hypothetical question as to the power that might be exercised by this Court in relation to an Act passed which infringed such provisions as article 19 or article 25 of the Treaty of Union I desire to reserve my opinion.
In the result I arrive without doubt at the conclusion that the remedy sought by the petitioners upon the unique and unprecedented issue raised by them is unsupported by any authority, is outwith the power of this Court to grant, and must be held to be incompetent. I venture to quote two sentences from a reported speech made recently by the president of a trade union to union members:—
"I must remind members that you cannot remedy a political mistake by industrial action. The will of the people was expressed in the ballot-box, and if a democracy is to survive then that decision must be accepted until we get the opportunity to alter it by the same means."
Mutatis mutandis those words may perhaps point the way, and the only way, by which the petitioners can obtain a remedy for their complaint.
The averments of the petition which are designed to instruct an infringement of the provisions of the Treaty of Union have been held by the Lord Ordinary to be irrelevant. I am of the same opinion. Neither in article 1 nor in any other article is there any provision which expressly or impliedly supports the petitioners' contention that the use of the numeral "II" in Her Majesty's title violates the Treaty. I am in full agreement with the reasoning of the Lord Ordinary on the question of relevancy and do not find it necessary to add anything. Lastly, the petitioners' title to sue in this petition has been held by the Lord Ordinary to be radically defective. It is true that no plea in law is stated by the Lord Advocate in his answers directed to title to sue. It seems clear to me, however, in the circumstances that the Lord Ordinary's view is well founded.
On the whole matter I agree that the reclaiming motion fails and that the interlocutor of the Lord Ordinary should be affirmed.
The permission for BAILII to publish the text of this judgment
was granted by Scottish Council of Law Reporting and
the electronic version of the text was provided by Justis Publishing Ltd.
Their assistance is gratefully acknowledged.
