. 44
( 155 .)


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 doubt-
less 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 . . .
198 British Government and the Constitution

But the petitioners have still a grave difficulty to overcome on this branch of their argu-
ment. 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 justi-
ciable 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. . . . This at least is
plain, that there is neither precedent nor authority of any kind for the view that the domes-
tic Courts of either Scotland or England have jurisdiction to determine whether a govern-
mental 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 expressed agreement with the views of the Lord President, and
Lord Russell in a concurring judgment was in general agreement with those
It has been said of Lord Cooper™s conclusion that the courts have no juris-
diction to rule on the validity of an Act of Parliament contradicting the Treaty
of Union, that ˜what he gave with the right hand he took away with the left™
(CMG Himsworth and CM O™Neill, Scotland™s Constitution: Law and Practice
(2003), p 154). See further MacCormick, ˜Does the United Kingdom have a
constitution? Re¬‚ections on MacCormick v Lord Advocate™ (1978) 29 NILQ 1;
Tomkins, ˜The constitutional law in MacCormick v Lord Advocate™ [2004]
Juridical Rev 213.

Gibson v Lord Advocate 1975 SLT 134 (Court of Session)
Section 2(1) of the European Communities Act 1972 provides that European
Community Regulations (creating directly e¬ective obligations) are to have
the e¬ect of law in the United Kingdom. Article 2 of Council Regulation 2141/
70/EEC required Member States to allow equal access to ¬shing grounds in their
maritime waters for all ¬shing vessels of other Member States.
The pursuer (claimant) in this case was the skipper and part-owner of
an inshore ¬shing vessel with which he ¬shed waters o¬ the west coast
of Scotland. He sued the Lord Advocate, as representing the Crown, for
199 Devolution and the structure of the UK

a declarator (declaration) that section 2(1) of the European Communities Act
1972, in purporting to give legal e¬ect to Article 2 of the EC Regulation, was
contrary to Article XVIII of the Act of Union 1707 and was null and of no e¬ect.
Article XVIII enacted:

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 in the same force as before . . . but alterable by the
Parliament of Great Britain with this difference betwixt the laws concerning public right policy
and civil government and those which concern private right that the laws which concern
public right policy and civil government may be made the same throughout the whole United
Kingdom but that no alteration be made in laws which concern private right except for
evident utility of the subjects within Scotland [emphasis added].

The pursuer maintained that before 1707 Scottish subjects had exclusive ¬shing
rights in Scottish waters, and that the laws which assured those rights were laws
concerning private right within the meaning of Article XVIII: the alteration of
the ¬shing rights by the EC Regulation (in making them non-exclusive) was not
for the evident utility of Scottish subjects, and therefore section 2(1) of the
European Communities Act 1972, so far as it gave e¬ect to Article 2 of the
Regulation, was null and void. These arguments were unsuccessful. After exten-
sive analysis the Lord Ordinary (Lord Keith) ruled that ˜the law which the
pursuer founds upon as the basis of his case is a law concerned with public right™
and that ˜section 2(1) of the 1972 Act and Article 2 of the EC Regulation do not
e¬ect any alterations in the private laws of Scotland™. Lord Keith concluded that
˜For these reasons I am of opinion that the pursuer™s case is irrelevant and
should be dismissed™.
Like MacCormick v Lord Advocate, however, what is of most importance is not
the holding of the court as to the substance of the case, but remarks uttered as
to the scope, in Scots law, of the sovereignty of Parliament:

Lord Keith: . . . In addition to the argument on relevancy there were addressed to me inter-
esting 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
XVIII 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 [above],
a case concerned with the validity of the proclamation as Queen of Her present Majesty under
200 British Government and the Constitution

a title which incorporated the numeral ˜second™. The First Division held that no question prop-
erly 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. . . . Like Lord
President Cooper, I prefer to reserve my opinion on what the question 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 certain legislative measures as regards the population generally is quite outside its

(See the note by Thomson (1976) 92 LQR 36, who draws attention to an earlier
case, Laughland v Wansborough Paper Co Ltd 1921 1 SLT 341, in which Lord
Ashmore thought it right to consider the utility of a statutory rule which had
been challenged as contrary to Article XVIII, ¬nding it to be of general bene¬t
to Scotland. Compare too the opinions expressed in Stewart v Henry 1989 SLT
(Sh Ct) 34 and Fraser v MacCorquodale 1992 SLT 229, the decision of the Court
of Session in Pringle, Petitioner 1991 SLT 330, discussed by Edwards (1992)
12 Legal Studies 34 and Murray v Rogers 1992 SLT 221.)
MacCormick™s case and Gibson™s case contain interesting dicta but give no
de¬nite ruling on the question whether Parliament™s powers are limited by the
Treaty and Acts of Union. It is evident, however, that anyone seeking to
challenge an Act on this ground will have the di¬cult task of persuading a court
to assume jurisdiction to decide the question. If a court should agree to enter-
tain the matter, arguments for the fundamental status of the Treaty of Union,
while likely to carry substantial weight in a Scottish court, might be countered
by arguments that the new Parliament created in 1707 succeeded to the sover-
eignty of its English predecessor and was unlimited in law by the terms of the
Treaty of Union; or alternatively that any initial limitations upon the power of
the United Kingdom Parliament have been overcome by the full maturing of the
doctrine of parliamentary sovereignty since 1707.
It is nevertheless the fact that the essential conditions of the Treaty of Union
have in substance been respected. Scottish lawyers, politicians and others still
hold them to be signi¬cant. Custom, Scottish national sentiment and political
calculation are factors which have quali¬ed the exercise of Parliament™s powers
with regard to the Treaty of Union.
In the course of consideration by the House of Lords of the government bill
to remove the right of hereditary peers to sit and vote in the House (House of
201 Devolution and the structure of the UK

Lords Bill 1999), the objection was raised that the bill, if enacted, would breach
Article XXII of the Treaty and Acts of Union. This Article provided for the
representation of Scottish peers in the Parliament of Great Britain and was
argued to be a fundamental law of the Union. The question was submitted to
the House of Lords Committee for Privileges for its opinion. The unanimous
opinion of the Committee, expressed in reasons given by the three Law Lords
among its members, was that Article XXII did not have the character of funda-
mental or unalterable law; that it had already been progressively repealed (by
the Peerage Act 1963, the Statute Law Revision (Scotland) Act 1964 and the
Statute Law (Repeals) Act 1993); and that it would in any event not be breached
by the terms of the House of Lords Bill if enacted. Lord Slynn expressed doubt
˜whether a provision, even if regarded as fundamental and as part of the con-
stitution, cannot be altered by Parliament™, whereas Lord Hope remarked that
˜the argument that the legislative powers of the new Parliament of Great Britain
were subject to the restrictions expressed in the Union Agreement by which it
was constituted cannot be dismissed as entirely fanciful™ (see Second Report from
the Committee for Privileges, HL 108-I of 1998“99).
(See further Smith, ˜The Union of 1707 as fundamental law™ [1957] PL 99;
Upton, ˜Marriage vows of the elephant: the constitution of 1707™ (1989) 105
LQR 79; Walker and Himsworth, ˜The poll tax and fundamental law™ [1991]
Juridical Rev 45; Addo and Smith, ˜The relevance of historical fact to certain
arguments relating to the legal signi¬cance of the Acts of Union™ [1998] Juridical
Rev 37; N MacCormick, Questioning Sovereignty (1999), ch 4; C Munro, Studies
in Constitutional Law (2nd edn 1999), ch 5; Wicks, ˜A new constitution for a new
state? The 1707 union of England and Scotland™ (2001) 117 LQR 109.)

(ii) Government of Scotland before devolution
After the Union of 1707 the Scottish administration was absorbed into an
administration of Great Britain centred in London. The Lord Advocate held an
o¬ce of ancient origin in Scotland and, as well as being a Law O¬cer of the
Crown, had far-reaching executive responsibilities. Public boards with govern-
mental functions were established in Scotland in the nineteenth century. A new
system of administration was instituted in 1885 when a Secretary for Scotland
was appointed as ministerial head of a Scottish O¬ce in Whitehall. The Scottish
Secretaryship was replaced in 1926 by the more senior o¬ce of Secretary of
State, and in 1939 the Scottish O¬ce was moved to Edinburgh (with a branch
of the O¬ce in London).
Except in the war years, the Secretary of State for Scotland always had a seat
in the Cabinet “ necessary if he was to be able to press the case for Scotland on
equal terms. In 1998 the responsibilities of the Secretary of State, heading a team
of ¬ve subordinate ministers, covered a wide range of Scottish a¬airs, corre-
sponding to functions which were spread over no fewer than seven Whitehall
departments. The Scottish O¬ce and its agencies employed some 10,000 civil
202 British Government and the Constitution

There were special arrangements for the conduct of Scottish business in
Parliament. In the House of Commons a Scottish Grand Committee, compris-
ing all MPs representing Scottish constituencies, resembled a sub-Parliament
for Scotland within the House, debating bills relating exclusively to Scotland
and questioning Scottish O¬ce ministers. There were also Scottish standing
committees to examine the detail of Scottish bills and a Select Committee on
Scottish A¬airs to review the work of the Scottish O¬ce.
These arrangements provided much work for Scottish MPs and involved
them closely and constantly in Scottish business at Westminster. This business
was, however, ¬rmly set in a United Kingdom context where collective ministe-
rial responsibility and centralised policy-making were the rule.

(iii) Devolution under the Scotland Act 1998
The devolution settlement for Scotland rests upon the provisions of the Scotland
Act 1998 (for the campaign for and background to Scottish devolution, see
pp 189“90 above). The Act put the union of Scotland with the rest of the United
Kingdom on a new basis, devolving primary legislative powers and administra-
tive responsibilities to newly created institutions in Scotland. Section 37 provides:
˜The Union with Scotland Act 1706 and the Union with England Act 1707 have
e¬ect subject to this Act™. The Act™s provisions do not, however, seem to violate
any of the fundamentals of the Treaty and Acts of Union.
The Scotland Act established a unicameral, law-making Scottish Parliament
and a Scottish Administration (consisting of ministers, certain non-ministerial
o¬ce-holders and their civil service sta¬).
The main characteristics and powers of the Scottish Parliament may be
summarised as follows.
(1) The Parliament has at present 129 members (MSPs). Scottish Parliament
constituency boundaries were initially linked with those for the House of
Commons, with the consequence that an expected revision of electoral bound-
aries of Scottish Westminster constituencies would have resulted in an unwel-
come reduction of the number of MSPs to about 106. This was averted by the
Scottish Parliament (Constituencies) Act 2004, which removed the link and
provided for Scottish Parliament constituency boundaries to be reviewed in
future by the Electoral Commission.
(2) The Parliament is elected by the Additional Member (or ˜Mixed
Member™) system, designed to achieve a degree of proportionality between
votes cast and seats won through a combination of the plurality or ˜¬rst past the
post™ (FPTP) system with a regional list system. At present, seventy-three MSPs
are elected in single-member constituencies by FPTP and seven additional
members are elected in each of eight regions of Scotland by the list system, the
parties presenting closed lists of their chosen candidates for each region. An
elector can vote for a constituency candidate and has a second, regional vote to
be cast for a party (or for an independent candidate standing in the region).
203 Devolution and the structure of the UK

A commission established by the Secretary of State for Scotland to examine
voting systems and the pattern of electoral boundaries in Scotland has recom-
mended that closed lists should be replaced by open ones, allowing voters to
have ˜a more direct and active role in the selection of regional members™: Report
of the Commission on Boundary Di¬erences and Voting Systems (2006). (On the
working of list systems see further below, pp 521“4.) The Additional Member
System has a tendency to bring about coalition government and indeed after
each of the ¬rst two elections (in 1999 and 2003) a coalition of Labour and the
Liberal Democrats took o¬ce in Scotland.
(3) The Parliament is elected for ¬xed terms of four years, but exceptionally
may be dissolved before the term has run. This will happen if the Parliament
resolves, by a two-thirds majority of its members, that it should be dissolved, or
if the Parliament is deadlocked in the choice of a First Minister.
(4) The Parliament is a legislature of limited powers (for relevant case law,
see below). It is competent to legislate for Scotland on devolved matters, its laws
being known as Acts of the Scottish Parliament (ASPs). Unlike Westminster,


. 44
( 155 .)