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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
    1. Edinburgh and Dalkeith Railway Co v Wauchope (1842) 1 Bell 278; 8 Cl & Fin 710; 8 ER 279.
    2. British Railways Board and Another v Pickin [1974] 1 All ER 608; [1974] AC 765
    3. Ellen Street Estates v Minister of Health [1934] 1 KB 590; [1934] All ER Rep 385; 150 LT 468
    4. Mortensen v Peters (1906) 14 SLT 227
    5. Attorney-General of New South Wales v Trethowan (1931) 44 CLR; (in the Australian High Court on appeal from the Supreme Court of New South Wales).
    6. Harris v Donges (Minister of the Interior) [1952] 1 TLR; (1952) 2 SA 428; in the Appellate Division of the South African Supreme Court.
    7. Bribery Commissioner v Ranasinghe [1965] AC 172; [1964] 2 All ER 785, [1964] 2 WLR 1301
    8. Treaty (Act) of Union 1707
    9. MacCormick v. Lord Advocate (1953) SC 396 - Inner House (first instance)
    10. MacCormick v. Lord Advocate (1953) SC 396 - Court of Session (on appeal)
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

MacCormick v. Lord Advocate (1953) SC 396 - Inner House (first instance)

LORD GUTHRIE: ....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 ofthe 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....