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The Treaty of Union: more hints of constitutionalism

Published online by Cambridge University Press:  02 January 2018

Denis J. Edwards
Denis J. Edwards*
Affiliation:
University of Strathclyde
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Extract

The Court of Session decision in Pringle, Petitioner again raises the issue of what constitutional effect, if any, is to be attributed to the Treaty of Union between Scotland and England. Specifically, is it competent for the Court of Session to find that an Act or a provision in an Act of the United Kingdom Parliament is invalid because of an inconsistency with an Article of the Treaty of Union as enacted in Scots law by the former Scottish Parliament in the Union With England Act 1707 (c 7)? This is the first case since MacCormick v Lord Advocate in which the Inner House of the Court of Session has commented on this favourite question of Scottish constitutional lawyers and, although hardly answering the question any more revealingly than it did in that case, the court's latest reservation of opinion on the answer is worthy of some further discussion.

Type
Research Article
Information
Legal Studies , Volume 12 , Issue 1 , March 1992 , pp. 34 - 41
Copyright
Copyright © Society of Legal Scholars 1992

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References

1. 1991 SLT 330, hereafter cited as Pringle.

2. 1953 SC 396.

3. For the most recent statement of the competing views on the constitutional effect of the Treaty of Union see Smith, T. B.: The Laws of Scotland Stair Memorial Encyclopaedia, vol 5, paras 345-352Google Scholar and C. Munro: Studies in Constitutional Law (1987) Chapter 4; and cf Upton, ‘Marriage Vows of the Elephant: The Constitution of 1707’ (1989) 105 LQR 79 Google Scholar.

4. Unreported, 24 July, 1990, 1st Div Court of Session (1990 GWD 27-1563).

5. 1989 SLT (Sh Ct) 34.

6. Ibid, 38. Cf Sheriff Henderson in Fraser v MacCorquodale 1989 SLT (Sh Ct) 39. For discussion, see Thomson, , ‘The Community Charge and the Act of Union’ (1989) 105 LQR 544 Google Scholar and Himsworth, and Walker, , ‘The Poll Tax and Fundamental Law’, 1991 JR 45 Google Scholar.

7. As Professor Munro implies by his comparison between the Articles of Union and the United States Constitution: Studies in Constitutional Law, p 66.

8. Dicey, A. V.: Introduction to the Law of the Constitution, 8th edn, p 38 Google Scholar.

9. Cf Mitchell, J. D. B.: Constitutional Law, 2nd edn, pp 87–89 Google Scholar.

10. Munro, , supra, pp 69–76 Google ScholarPubMed.

11. 1975 SLT 134.

12. Article XVIII is cited and discussed infra. Cf T. B. Smith, supra, para 350 and Munro, , supra, p 76 Google ScholarPubMed.

13. The nobile officium (or noble office) of the Court of Session (and also the equivalent jurisdiction of the High Court of Justiciary) is often briefly described as the court's extraordinary equitable jurisdiction to provide exceptional remedies in cases of necessity, for example, to remedy inadvertant omissions in statutes: for further discussion, see Maxwell, , The Practice of the Court of Session (1980) pp 126–130 Google Scholar.

14. By virtue of the Local Government Finance Act 1989.

15. Pringle, per Lord Hope, 332. When he refers to the United Kingdom, the Lord President means Great Britain: the United Kingdom was, of course, not created until 1801 by the passage of the Union with Ireland Act 1800 c 67.

16. 1922 SC 672.

17. Pringle, 333.

18. Pringle, 333, emphasis added.

19. Ibid.

20. Pringle, 332.

21. Cf Lord Keith in Gibson, supra, 137.

22. Professor Munro comments that the courts can only interpret the Act of Union and not consult the Treaty itself or its travaux preparatoires ( Munro, , supra, p 68 Google ScholarPubMed). However, he ignores the House of Lords' decision in Fothergill v Monarch Airlines Ltd [1981] AC 251 allowing judges to consult Treaties and preparatory material in certain circumstances. Given the Treaty's antiquity and the fact that the Act of Union effectively reproduced the Treaty, the Scottish courts are unlikely to exclude any aid to construing the often vague language involved.

23. As the late ProfessorMitchell, argued: Constitutional Law 2nd edn, p 71 Google Scholar.

24. [1905] AC 52.

25. 98 L Ed 873 (1954).

26. Plessy v Ferguson 41 L Ed 256 (1896).

27. Cf Sheriff Stewart in Stewart v Henry, supra, 37, noting that it was at least debateable that although the 1987 Act concerned local taxation (a public right) it also replaced domestic rates with a tax imposed on individuals (private rights?); this is a modern analysis since all matters concerning what we now call local government might have been regarded as ‘private’ in 1707. Mitchell expresses the view that ‘public’ and ‘private’ in Article XVIII must be given the meaning they would have to-day: Constitutional Law, supra, p 97.

28. Pringle, 333 (emphasis added).

29. Cf R v Secretary of State for Transport, ex p Factortame [1990] 3 CMLR 375.

* I would like to express my thanks to Mr Gordon Goldberg and Ms Jenifer Ross of the University of Strathclyde for commenting on earlier drafts of this article. Of course, I am solely responsible for the inferences from the First Division's silences which remain.