MacCormick v. Lord Advocate (1953) SC 396 - Court of Session (on appeal)
LORD PRESIDENT COOPER: ....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 the Interior  TLR 1245.
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.
LORD CARMONT: I am in agreement with the views expressed by the Lord President and have nothing to add.
LORD RUSSELL: [I]t is unnecessary to determine whether [Lord Guthrie'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 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.
Gibson v. Lord Advocate (1975) SC 136 - Outer House (first instance)
LORD KEITH:....Article 18 of the Act of Union 1707 enacts: "That the laws concerning regulation of trade customs and such excises to which Scotland is by virtue of this treaty to be liable be the same in Scotland from and after the union as in England and that all other laws in use within the Kingdom of Scotland do after the union and notwithstanding thereof remain the same as before (except such as are contrary to or inconsistent with this treaty) but alterable by the Parliament of Great Britain with this difference betwixt the laws concerning publick right policy and civil government and those which concern private right that the laws which concern publick right policy and civil government may be made the same throughout the whole United Kingdom but that no alteration may be made in laws which concern private right except for the evident utility of the subjects within Scotland.'....
In addition to the argument on relevancy there were addressed to me interesting arguments upon the question of jurisdiction and the competency of the action. These arguments raised constitutional issues of great potential importance, in particular whether the Court of Session has power to declare an Act of the United Kingdom Parliament to be void, whether an alleged discrepancy between an Act of that Parliament and the Treaty or Act of Union is a justiciable issue in this Court, and whether, with particular reference to article 18 of the Act of Union, this Court has power to decide whether an alteration of private law bearing to be effected by an Act of the United Kingdom Parliament is "for the evident utility" of the subjects in Scotland. Having regard to my decision on relevancy, these are not live issues in the present case. The position was similar in MacCormick v Lord Advocate 91953) SC 396, a case concerned with the validity of the proclamation as Queen of Her Present Majesty under a title which incorporated the numeral "Second." The First Division held that no question properly arose concerning the validity of the Royal Titles Act 1953, but delivered certain obiter dicta upon the constitutional position as regards the Treaty and Act of Union. Lord President Cooper, with whom Lord Carmont concurred, said at p. 412: "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 manner as an issue of constitutional vires would be cognisable by the Supreme Court 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)." Lord Cooper went on to say at p. 143, "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." Like Lord President Cooper, I prefer to reserve my opinion what the position would be if the United Kingdom Parliament passed an Act purporting to abolish the Court of Session or the Church of Scotland or to substitute English law for the whole body of Scots private law. I am, however, of opinion that the question whether a particular Act of the United Kingdom Parliament altering a particular aspect of Scots private law is or is not "for the evident utility" of the subjects within Scotland is not a justiciable issue in this Court. The making of decisions upon what must essentially be a political matter is no part of the function of the Court, and it is highly undesirable that it should be. The function of the Court is to adjudicate upon the particular rights and obligations of individual persons, natural or corporate, in relation to other persons or, in certain instances, to the State. A general inquiry into the utility of specific legislative measures as regards the population generally is quite outside its competence.
In justice to the argument presented to me on behalf of the pursuer, I should mention that I was referred to a number of reported decisions on constitutional matters by Courts in Australia, and South Africa, and by the Judicial Committee of the Privy Council. These cases were, however, concerned with situations where the constitutional arrangements of the countries concerned laid down specific procedures for certain legislative acts, and they do not, in my view, have any bearing on the issues in the present case.