A British Common Law? Public Law after the 1707 Union between England and Scotland

In the 1953 Scottish case of MacCormick v. Lord Advocate, John MacCormick and Ian Hamilton sought to challenge the publication of a proclamation pursuant to the Royal Titles Act 1953 designating the new Queen’s royal title as ‘Elizabeth the Second of the United Kingdom of Great Britain’. Although there had previously been a Queen Elizabeth, she had reigned only in England, never in Scotland, and crucially before the creation of the Kingdom of Great Britain in 1707 in accordance with the Treaty of Union. According to MacCormick and Hamilton, therefore, the adoption of the numerals ‘the Second’ was contrary to Article I of the Treaty of Union which, being a fundamental condition of the Treaty, was ultra vires of the powers of the Westminster Parliament. The case was dismissed by both the Outer House and Inner House of the Court of Session, albeit on different grounds, with the Lord President (Lord Cooper) in the latter doing so in part on the basis that the Court of Session lacked the competence necessary to determine whether or not any governmental acts conform with the terms of the Treaty of Union.