Land Reform Bill - definitions of "large holdings of land"

Three of the provisions of the Land Reform Bill introduced on 13 March 2024 – community engagement obligations, enhanced opportunities for communities to buy land and compulsory lotting on sale – apply only to those larger estates which the bill calls “large holdings of land” (LHLs). I hope to come back soon with analyses of these three provisions but this note deals solely for now with the exact definition in the bill of an LHL to which they apply. [EDIT 28 April 2024 - Since I wrote this, I've studied the section of the bill dealing with compulsory lotting on sale in more detail and written about it: see this post. In fact, the lotting provisions don't apply to LHLs, they apply simply to "land that exceeds 1,000ha in area" (s.67G(2)). That said, LHLs do have a brief 'cameo role' in lotting (s.67G(3)) explained in the linked post.]

Basically, for the community engagement provision, it’s land over 3,000 hectares (ha) (s.44D(2)) or over 1,000ha when that would be more than 25% of the area of a permanently inhabited island (s.44D(3)). For the community right to buy (CRTB) and lotting provisions, it’s land over 1,000ha in all cases with no specialties related to islands (s.46K(2) & 67G(2)).

This looks relatively straightforward but nevertheless requires closer examination due to the bill trying to catch the commonly occurring situation of large estates in which ownership is divided between, for example, an individual and trusts for the benefit of members of his family. The bill calls these “composite holdings” in contrast to “single holdings” which are owned by one person (or more than one person jointly, for example spouses). There is also an issue even with single holdings.

Example
Thus, 800ha belonging to A (a single holding) plus a contiguous 400ha belonging to a family trust (also a single holding) can – though, as we shall see, not always – add up to a composite LHL to which the new CRTB and lotting provisions of the bill will apply. From hereon, I’m going to continue to use only the example of 800ha and 400ha exceeding the 1,000ha threshold but the same principles apply to, for example, 2,500ha and 1,000ha, exceeding the 3,000ha threshold for mainland community engagement. (And they also apply equally when more than two contiguous single holdings exceed the 1,000ha/3,000ha thresholds.)

Executive summary
The way the bill defines the terms “single” and “composite” “large holdings of land” means that many big  estates would not be covered its community engagement obligations, enhanced opportunities for communities to buy land and compulsory lotting on sale provisions. I expect to see these definitions change as the bill progresses through Parliament.

From here, those less interested in the technical detail can skip to the paragraph below headed ‘Comment’ or even right to the Case Study at the end.

Structure of the bill
Before getting into that detail, the structure of the bill so far as relating to community engagement, CRTB and lotting is not to create a new freestanding Act of Parliament. Rather, it amends the Land Reform (Scotland) Act 2003 (LRA03) and the Land Reform (Scotland) Act 2016 (LRA16) by inserting new sections (clauses) into them: these are sections (ss.) 44A-44M into LRA16 for community engagement and ss.39ZA and 46A to 46L into LRA03 for CRTB and ss.67C to 67Y also into LRA03 for lotting. All these new sections are found in sections 1 to 4 between pages 1 and 25 of the bill. Each of the three sets of new sections contains its own definition of the “large holdings of land” they relate to but these three definitions are identical (except for the island speciality in relation to community engagement) so from hereon I’m only going to reference the relevant new section of LRA03 for CRTB because you can take it that its wording will be identical to that for community engagement and lotting.

Land registers
I’m also going to assume from hereon that land is registered in the Land Register (LR) but exactly the same principles apply to land still registered in the old Register of Sasines (which is very common amongst privately owned large rural estates).    

The detail: connected persons
Now for the detail. Looking back to the example of 800ha belonging to A and a contiguous 400ha belonging to B, it’s only a “large holding of land” (LHL) if A and B are “connected” to each other or if A and B are not connected to each other but both are connected to the same third party (who needn’t necessarily own any land in the vicinity – for example A and B each hold the land as trustees for non-landowning C).  

“Connected” is defined in ss.46K(5) and there are two categories. The first is companies in the same group as defined by s.170 of the Taxation of Chargeable Gains Act 1992 (s.46K(5)(a)(i) & (b)). I think that includes companies where one is a subsidiary of the other and also companies who are both are subsidiaries of a third but I’d need to speak to a corporate tax lawyer to be sure of that: meanwhile people owning land through the medium of more than one company should be on the alert. But subject to that caveat, 800ha belonging to A Ltd and contiguous 400ha belonging to B Ltd make up an LHL if one is a subsidiary of the other or both are subsidiaries of C Ltd (even if C Ltd doesn’t own any land).    

The second category of connected persons is those one of whom has a “controlling interest” in another (s.46K(5)(a)(ii) & (iii)). That’s defined (s.46K(5)(c)) by reference to the The Land Reform (Scotland) Act 2016 (Register of Persons Holding a Controlled Interest in Land) Regulations 2021 (RCI Regs). These are the regulations that set up the Register of Persons Holding a Controlled Interest in Land (known as the RCI for short: see here) of people requiring to be disclosed as having a hidden degree of control over the people registered as owners of land in the Land Register (for example a trustee of a landowning trust when his name does not appear on the LR due to a change in the trustees since the trust’s title was registered). The RCI Regs are not an easy read and I’ve not studied them in massive detail but the following consequences seem to emerge:-

1. It doesn’t cover family relationships. Thus 800ha belonging to a person and contiguous 400ha belonging to his wife, child, sibling etc. isn’t an LHL (unless one has an agreement with the other saying that he holds his/her land as nominee for the other).

2. It doesn’t cover the relationship between UK companies and their shareholders or directors. Thus 800ha belonging to A and contiguous 400ha belonging to A Ltd in which A is the only shareholder and director isn’t an LHL either. This is because the RCI Regs don’t require registration of a director/shareholder’s control over a landowning company to be disclosed in the RCI to avoid the duplication with this already being subject to disclosure at Companies House. My conclusion on this is tentative, though, because, as I’ve said, the RCI Regs are very hard to follow and I can’t rule out the possibility there’s some subtlety in them which embraces company/director/shareholder connections albeit ultimately relieves them from registration in the RCI. Exactly the same comments apply to LLPs (limited liability partnerships) and their members (partners).

3. It does cover the relationship between offshore companies and anyone who (whatever the precise legal relationship) does, as a matter of fact, control or direct them. Thus, 800ha belonging to A and contiguous 400ha belonging to A (Virgin Islands) Ltd which, as a matter of fact, always does A’s bidding is an LHL.

4. Trusts: the RCI regs are such that 800ha belonging to A and contiguous 400ha belonging to a trust for members of his family doesn’t necessarily give rise to an LHL. Without getting into all the detail (which you can find in Part 3 of Schedule 1 to the RCI Regs), A merely being the truster (person who set up the trust) or a beneficiary of the trust wouldn’t create an LHL in this example so long as A doesn’t have any powers over the trust reserved in the deed creating it or, as a matter of fact irrespective of legal right, control or direct the trust. Nor even in all circumstances would his even being a trustee of the trust owning the 400ha create an LHL – I’ll touch on that again later.

5. Partnerships (not LLPs): compared with individuals, companies (UK and offshore) and trusts, ownership of large areas of rural land by partnerships is rare. But if you had 800ha belonging to A and contiguous 400ha belonging to AB & Co in which A is a partner it doesn’t necessarily follow that this is an LHL. The position with partnerships is similar to trusts and I’ll touch on it later too.

There are other circumstances in which the RCI Regs give rise to a “connection” for the purposes of LHLs but the above are the most commonly encountered.

Contiguity
As I’ve already mentioned, it’s only an LHL when the ownership is divided amongst “single holdings” belonging group companies or connected persons if the single holdings are contiguous (s.46K(4)(a)), that is their boundaries touch each other at at least one point. But 800ha belonging to A and 400ha belonging to B who is someone connected to him for the purposes of the RCI regs are not an LHL if they are separated, by however short a distance, by land in third party ‘unconnected’ ownership.

The same is also true of single holdings (all in the same ownership). They too must be contiguous (s.46(3)(a)). Thus, a 1,200ha estate all belonging to A is not an LHL if it consists of two blocks of 800ha and 400ha separated by land in third party unconnected ownership.

picture credit Brian Cairns

Comment
There appear to me to be two main criticisms of these definitions of “large holding of land” (LHL) to which the new community engagement, community right to buy (CRTB) and lotting provisions of the bill will apply.

Connected persons: the RCI Regs
The first is linking the definition of “connected” persons to the RCI Regs. It looks superficially like a convenient way of borrowing a definition to avoid having to reinvent a wheel but it seems to result in some connections being missed out: relationships between family members (who may not necessarily be “connected” in this sense, of course, but often are) and (if I’m right about the RCI Regs) the relationship between UK companies and their directors and shareholders (who must surely almost invariably be connected in this sense).

Here's another consequence of linking the definition of “connection” to the RCI regs: imagine again 800ha belonging to A and contiguous 400ha belonging to a trust for members of his family and in which A is a trustee. That’s very likely to be what most people would regard as a single estate of 1,200ha but the link to the RCI Regs means that it will not necessarily be an LHL (a composite one) to which the CRTB and lotting provisions of the bill will apply.

The reason is that (and non-lawyers can skip this and the next paragraph (dealing with partnerships) and go straight to the one after it beginning “Generally, the pattern emerging …”), for technical conveyancing reasons, A may be named in the Land Register (LR) as one of the trustees owning the 400ha but may not be. If he’s not, then his involvement as trustee will require to be disclosed in the RCI and that has the consequence that he is connected to the trust for the purposes of the bill and therefore this is an LHL. But if A is named as trustee in the LR (which is very common) he does not require to be registered in the RCI (because his involvement with the land is already disclosed in the LR) but the consequence is he’s not a “connected” person for the purposes of the bill and thus this is not an LHL.  

Similar anomalies can arise with partnerships (not LLPs). That’s because partnerships almost invariably register their titles to land in the LR in the names of the partners as trustees for the partnership. But subsequent changes in the partners (retirement, assumption of new partners) can lead to the registered title and the current partners getting out of synch. Thus, imagine 800ha belonging to A and contiguous 400ha registered in the LR in name of A and B as trustees for the partnership of A&B. Here, there is no requirement under the RCI regs additionally to register in the RCI and therefore this isn’t an LHL. But then imagine that A and B retire as partners and C and D come in in their place but the LR title isn’t updated (it doesn’t have to be: it’s convenient to have the current partners as trustees but it's not necessary. That’s because, unlike in a normal trust, a trustee for a partnership who is not a current partner has no say over the control of, or responsibility for, the property technically still vested in his name: he is merely a place-holder whose only job is to sign a conveyance of it when the current partners want to dispose of it.) So it may be the case that there’s no real connection between A on the one hand and C and D on the other but this situation does nevertheless give rise to C and D requiring to register in the RCI (because they’re the people now in control of the 400ha) and thus this creates an LHL for the purposes of the bill when it might not be one in reality. Or the only connection between A, C and D might be a family relationship which, as we’ve seen, doesn’t ordinarily give rise to an LHL.

Generally, the pattern emerging is that accidents of choice of landowning structure and vehicle and an estate’s conveyancing history can dictate whether or not what is (or is not) an LHL in reality is one for the purposes of the bill. That’s a consequence of linking the definition of “composite” (multiple ownership) LHLs to the RCI Regs. And the reason for the disconnect is that the focus of the RCI regs is only on connections which are not disclosed on the Land Register or at Companies House whereas the focus of the bill is (or should be) on all connections (except for merely formal ones like the ex-partner trustee).

I repeat the caveat that I hope I’ve read the RCI regs correctly but if I were an MSP scrutinising the bill as it goes through Parliament, I would be questioning whether the link to them is enough? Do the draftsmen need to add to some extra “connections” beyond those flowing from the RCI regs? Do they need to remove some? Or do they need to abandon the RCI Regs link altogether and devise some more ‘holistic’ definition of composite LHL? For example one that, irrespective of its ownership structure, is, as a matter of fact, managed as a whole. This might be suggested by indicators such as single family, single manager (factor), single branding etc. The downside of that is that it gives rise to more grey areas but enough for now.   

Contiguity
My second main criticism of the definition of “large holding of land” (LHL) for the purposes of the bill is the requirement that it be contiguous. This applies whether the land is a single holding (all in the same ownership) or a composite one (ownership divided amongst different but “connected” people).

Estates consisting of discontiguous blocks of land are very common. Think of an estate consisting of 400ha of low ground separated from its 800ha of hill ground by a quarter of a mile wide of plantations sold off by a previous owner to the Forestry Commission: it’s not an LHL. Think of one assembled by separate acquisitions (by purchase or inheritance) of discontiguous blocks none of which exceed 1,000ha. Or think of a 1,200 ha estate bisected by a railway: that’s not an LHL either due to the discontiguity, albeit very narrow, caused by the ownership of Railtrack (unless it’s not so much bisected as clipped such that, say, 1,100ha is on one side and 100ha on the other resulting in the former being an LHL but not the latter). Even a road built or realigned within the last 75 years or so could create a discontiguity. (That’s because roads built/realigned within that period are usually on land conveyed to local or central government for the purpose. That’s not usually the case with minor public roads that have never been widened or realigned, though.)   

One could think of other examples of discontiguities so I expect to see the requirement for contiguity discarded as the bill progresses through Parliament and perhaps replaced with a formula such as “contiguous or linked; meaning separated by not more than X kilometres”.

Case study
A 2,800ha (almost 7,000 acres) estate consists of three blocks of low ground arable land and a grouse moor. Two of the blocks of arable, of 800ha and 400ha separated by a motorway, belong to Lord Blackacres. The third block, 700ha and contiguous with the 400ha, belongs to Lord B’s son and heir. The grouse moor, contiguous with the 800ha block of arable, is 900ha and belongs to a trust for Lord B’s grandchildren: he is a trustee, his name appearing as such in the trust’s title in the Land Register (LR). The whole is branded as ‘the Blackacres Estates’ and managed by upper crust estate agents Sadlers, Stritch & Pankhurst. They are the ‘gate-keepers’ of the estate, their local office its point of contact. Despite their wealth on paper, the family is chronically short of cash due to the exorbitant costs of maintaining Blackacres Castle. SS&P have an exceedingly attractive private offer for the whole estate minus the castle and its 20ha policies (Scottish word for the grounds of a big house) from a Singapore hedge fund manager. They strongly recommend acceptance  before a local steering group gets its act together sufficiently to be able to invoke statutory community right to buy (CRTB) procedures which might derail any future exposure of the estate to the market.

Blackacres is not a “large holding of land” for the purposes of the CRTB and lotting provisions of the bill because of a discontiguity in ownership (the motorway running through it belonging to the Scotgov) and the fact that the definition of “connected” owner the bill employs (reference to the RCI Regs) does not catch the relationships between its three different owners.

 

MacCormick v Lord Advocate: Salvo, Lord Cooper & Parliamentary sovereignty

 

Salvo are the people who believe that the Acts of Union in 1707 weren’t intended to create a single, united kingdom out of what had hitherto been the two kingdoms of Scotland and England but rather a looser association between the two countries not unlike that which exists between the member states of the EU. Thus, the argument runs, Scotland remains to this day as much of an independent sovereign state as, say, France does notwithstanding its membership of the EU.

Salvo also believe Scotland’s constitution as it existed before 1707 didn’t include parliamentary sovereignty. That’s the principle that Parliament is the ultimate and sole repository of power and authority in the land and that its legisative competence is unlimited. Instead of parliamentary sovereignty, Salvo believes, pre-1707 Scotland enjoyed (and, therefore, according to their view, still enjoys today) something called ‘popular sovereignty’. This is the concept that, if sufficiently outraged, the people of Scotland can convene in a body called a Convention which has the power to annul any Acts of Parliament or of the Crown it disapproves of or even dismiss Parliament or the monarch: the last Convention was in 1689 when it deposed King James VII and replaced him with William and Mary, these procedings being recorded in a document called the Claim of Right.

In support of their theories, Salvo are wont to point to the following remark (or dictum as we lawyers say) by Lord Cooper, a Lord President of the Court of Session, Scotland’s most senior judge (pictured):

The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law.

Lord Cooper said that in a case in 1953 called MacCormick v Lord Advocate. That was the one which challenged (unsuccessfully) the late Queen’s right to called herself Elizabeth II considering there had never been an Elizabeth I of Scotland. So let’s take a more detailed look at the MacCormick case to put Lord Cooper’s dictum into context and see to what extent it supports Salvo’s contentions.

MacCormick v Lord Advocate: the facts
The background was that the Queen’s father, King George VI, had begun his reign in 1936 with the official title:

George VI by the Grace of God, of Great Britain, Ireland and the British Dominions beyond the Seas King, Defender of the Faith, Emperor of India.

During his reign, there had been a number of developments in regard to those places outside Great Britain he was the king or emperor of: India became independent in 1947 (partitioned into India and Pakistan); Sri Lanka (then called Ceylon) in 1948; and the Irish Free State and India became republics in 1949 and 1950 respectively. The India Independence Act 1947 (s.7(2)) had authorised the dropping of Emperor of India from the King’s titles but no other change to reflect these developments had officially been made by the time he died in February 1952.

Shortly into the new reign, in December 1952, the matter was discussed at a meeting of the governments of the UK and those countries in the Commonwealth (as ‘the Empire’ was now being known) of which the Queen was also monarch at that time (Canada, Australia, New Zealand, South Africa, Pakistan and Sri Lanka). They agreed that the royal title stood in need of alteration “so as to reflect more clearly the existing constitutional relations of the members of the Commonwealth to one another and their recognition of the Crown as their free association and of the Sovereign as the Head of the Commonwealth” and that an updated royal title for use in each country “whilst permitting of the use in relation to each of those countries of a form suiting its particular circumstances, would retain a substantial element common to all.”[1]

So far as the UK was concerned, this gave rise to a short Act of Parliament – The Royal Titles Act 1953 – passed in March 1953. This authorised the queen to adopt “such style and titles as Her Majesty may think fit having regard to the said agreement” and issue for that purpose a Royal Proclamation. The Government subsequently announced that it proposed to advise the Queen that she adopt the title

Elizabeth II, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith

and issue a proclamation to that effect. In terms of rules made under the Crown Office Act 1877, any such proclamation would take effect in Scotland only upon its publication in the Edinburgh Gazette.

 

Judicial challenge in the Court of Session: the petitioners’ arguments
Two Scots – John MacCormick, chairman of the Scottish Covenant Association and Rector of Glasgow University, and Ian Hamilton, he who with three accomplices had removed the Stone of Destiny from Westminster Abbey in 1950 – raised an action against the Lord Advocate (representing the Crown[2]) by way of petition craving an interdict (Scottish word for an injunction) preventing Her Majesty’s ministers and officers of state from publishing any proclamation of a title including Elizabeth II. Their objection, of course, was to the numeral rather than the name.

The first point to note is that the petitioners’ position was not that there were still two kingdoms – Scotland and England in a loose EU-style association with each other, as Salvo would argue – and that, while there could be no objection to the queen styling herself Elizabeth II of England, she needed to do something else to make it clear she was also Elizabeth I of Scotland. To argue that would have been legally untenable (pace Salvo) so they sensibly didn’t attempt it but, even so, Lord Cooper remarked in the course of his judgement:

that Treaty [of Union in 1707] is one under which both Scotland and England ceased to be independent states and merged their identity in an incorporating union.

So whatever else the MacCormick case is authority for, it’s not Salvo’s continuity of the kingdom of Scotland as a sovereign state post-1707 theory. Quite the contrary. Indeed, I always think it odd that Salvo keep drawing attention to Lord Cooper in MacCormick when you’d have thought they’d want to steer well clear of him in case anyone spots the dictum just quoted which is so antithetical to their main position!

None of this is to deny, however, Salvo’s other belief that parliamentary sovereignty didn’t apply in pre-1707 Scotland and consequently that that might still be true today as Lord Cooper’s more famous dictum, the first one I quoted, seems to suggest. So let’s dive deeper into MacCormick and see what it has to say about that.    

In fact, the petitioners’ argument was not that there hadn’t been an Elizabeth I of Scotland but that there hadn’t been one of the United Kingdom: the UK was a new and different kingdom from either of the two (Scotland and England) which preceded it, they argued, and the numbering of its monarchs should have started again at one.[3] Moreover, there would be a breach of Article I of the Acts of Union (AoU) which created the UK because Art. I said the union was to begin on 1 May 1707. Therefore, their argument ran, the Queen calling herself Elizabeth II would infer that the union had begun sometime during the reign of Elizabeth I (1558-1603)[4]. It’s true the Royal Titles Act appeared to give the Queen a wide discretion what to call herself (limited only by having regard to the agreement among the Commonwealth governments) which might involve a departure from the re-set of the numeration at the Union but parliamentary sovereignty did not extend so far as allowing an Act of Parliament to alter a fundamental clause of the AoU (that is one which is not one of the clauses of the AoU expressed as being alterable in future by the UK parliament).

Decision in the Outer House: Lord Guthrie
The case was heard by Lord Guthrie sitting as Lord Ordinary in the Outer House of the Court of Session. Prior to the hearing, the petitioners had recognised that an interdict against the Crown is incompetent due to section 21(1)(a) of the Crown Proceedings Act 1947 so they asked instead for a declaratory order of the type authorised by that section to the effect that a proclamation naming the Queen as Elizabeth II would be illegal as being in breach of Art. I of the Acts of Union. Describing the petitioners’ arguments as “unsound and indeed extravagant”, Lord Guthrie adhered to the orthodox view of parliamentary sovereignty: the Royal Titles Act had sanctioned the queen styling herself whatever she thought fit provided she had regard to the agreement among the Commonwealth governments (and there was no suggestion she hadn’t). It mattered not that this might lead to a conflict with the AoU because Parliament was not limited by the AoU, not even a fundamental clause of them (or anything else). That being so, the petitioners’ case, being in effect a challenge to the validity of an Act of Parliament, he sustained the Lord Advocate’s plea to its competency (meaning in effect that, whatever its merits, it was not a case that could competently be brought before the courts). That was enough to dispose of the case but Lord Guthrie nevertheless opined that, even if it were competent to challenge an Act of Parliament as being in breach of the AoU, the Royal Titles Act didn’t breach Art. I in the manner the petitioners had suggested (so, for the lawyers, he also sustained the Lord Advocate’s plea to the relevancy).

Appeal to the Inner House: Lord Cooper
The petitioners, Messrs MacCormick and Hamilton, appealed to the Inner House of the Court of Session. For the appeal, they adopted a slightly different argument: the Queen calling herself Elizabeth II was equivalent to her declaring herself the queen of England (because there had been one previous Queen Elizabeth of that country but not of the UK). That conveyed the continuity of the English Crown which was clearly a breach of Art. I of the AoU. (Note in passing how antithetical that is to Salvo’s continuity post-1707 of Scottish sovereignty theory.)      

Differing from Lord Guthrie at first instance in the Outer House, the Lord President of the Court of Session, Lord Cooper, was of the view that the Royal Titles Act wasn’t relevant to the issue of the numeral II adopted by the Queen. The act only dealt with the “appendant designations”, as he called them, of her title, namely, the where and what she was (and wasn’t) the queen, head or defender of (the United Kingdom of Great Britain and Northern Ireland but no longer of the rest of Ireland; the Commonwealth; the Faith). It didn’t apply to the name and numeral. At this point, Lord Cooper embarked on a discussion of his view of the consequences if the Royal Titles Act had been relevant to the choice of the Queen’s regnal name and numeral. This is the bit his judgement is most famous for and from which the sentence Salvo are so fond of quoting (my first quotation above) comes. But the first thing to note about it is that it’s what lawyers obiter dictum (or just obiter for short). That is, because it’s not necessary to his disposal of the case (he’s decided the Royal Titles Act is not relevant so the consequences if it were are beside the point), it’s not legally binding – it’s not an authoritative statement of the law. But with that caveat, let’s look at Lord Cooper’s famous dictum: it’s worth quoting him more fully:-

Upon this view [that the Royal Titles Act is not relevant] a part of the Lord Ordinary's [Guthrie’s] judgment and of the argument before us disappears. But lest this case should go further, I shall briefly express my opinion.

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.” […] 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.

In short, Lord Cooper believed that UK parliamentary sovereignty is limited to the extent that Parliament cannot alter certain fundamental conditions of the Acts of Union (though he doesn’t express a view on whether these are just those declared to be unalterable, or to last in all time coming, or also include those which don’t say whether they are to be alterable in contrast to those which do say that they are). But then, having flown this kite, he cuts its string by going on to opine that, even if it is the case that parliamentary sovereignty is thus limited, there is no court in the UK with the jurisdiction to rule or give a remedy in the case of an alleged breach of the limits of Parliament’s powers. As he put it (underlining added: I’ll explain the significance of these words presently):

Accepting it that there are provisions in the [AoU] 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. ... To put the matter 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. … [And 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 [the AoU]. … 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.

In short, Parliament’s sovereignty is limited in theory but not in practice because there’s nobody who can stop it exceeding the limits.[5]

Incidentally, you may be wondering why Lord Cooper dismissed the case? After all, he’d decided the Royal Titles Act, on which the petitioners founded it, was not relevant to the Queen’s choice of regnal name and numeral so on what basis did he nevertheless hold that they were unobjectionable and that the petitioners had no case? You have to look really hard for the ratio of his decision on competency but it emerges, just and no more, in that last quotation from his judgement: if the Queen’s authority to style herself Elizabeth II didn’t derive from the Royal Titles Act, it can only derive from the royal prerogative.[6] And that too, Lord Cooper considers, is not something any court has the authority to question either: his discussion of lack of jurisdiction applies equally to the validity of prerogative acts as it does to Acts of Parliament as appears from the underlined words in the quotation.[7]

It was also Lord Cooper’s view that, even if the exercise of the prerogative had been a matter which might be challenged in the courts, the adoption of the style Elizabeth II did not involve a breach of Art. I of the AoU in the manner claimed by the petitioners. And for good measure, he opined that the petitioners had no title to sue.[8] 

For completeness sake, we should note that two other judges heard the appeal in MacCormick alongside Lord Cooper. Lord Carmont contented himself by simply concurring in the Lord President’s judgement. Lord Russell agreed with it too but also delivered his own judgement – I’ll touch on it later.

Where does this leave Salvo?
Let's divide this into three headings:-

1. Scotland still an independent sovereign state merely in loose EU-type association with England?
Lord Cooper gives Salvo no support on this at all. Quite the contrary because, even though the petitioners didn't attempt to argue otherwise, he said, as already noted, that Scotland and England merged their identities in an incorporating union in 1707.

2. Parliamentary sovereignty in the UK post-1707?
Lord Cooper is indeed of the view that the sovereignty of the UK Parliament is limited. But merely to the extent that it can’t alter “fundamental clauses” of the Acts of Union and perhaps also its clauses which are not so fundamental but nevertheless not expressed as being alterable by Parliament. Absent the matter ever having been conclusively determined in a British court, that’s an entirely respectable and credible view even if it is contrary to that of influential 19th century jurists such as A V Dicey. But Lord Cooper did not say that the UK Parliament may have inherited from Scotland limitations on its authority as a result of ‘popular sovereignty’ or anything of that sort.

3. Parliamentary sovereignty in Scotland pre-1707?
Again, Lord Cooper is indeed of the view that the Scottish parliament did not enjoy unlimited sovereignty. That parliament couldn’t have been limited by the AoU, needless to say, so what limitations on its authority did he have in mind?

He doesn’t tell us but he certainly didn’t say it was ‘popular sovereignty’. Is it not possible he had in mind the situation which applies in just about every other country except the UK, namely, that the legislature’s competence is limited by certain immutable laws? In these other countries today, these laws – basic rights and freedoms which cannot be taken away – are usually contained in a written constitution. Pre-1707 Scotland didn’t have a written constitution but that’s not to say there weren’t certain immutable laws which it was considered its parliament couldn’t change – perhaps these are amongst the “the fundamentall constitution of this kingdome” and the “lawes and liberties of the kingdome” King James VII was said in the Claim of Right to have “invaded” and “violated”?[9]

Another possibility: Professor Donaldson
Here’s another quotation which would probably intrigue Salvo:-

The Scottish constitution [in the late 17th century] cannot be understood unless the concept of the unchallenged sovereignty of an omnicompetent parliament is set aside.  

That’s not from a legal judgement but from a chapter titled The Constitution in the history book Scotland: James V-James VII written in 1965 by Gordon Donaldson, Professor of Scottish History at Edinburgh University and later Historiographer Royal in Scotland. But as with Lord Cooper’s dictum, it needs to be put in its context properly to understand what’s being said.

The doctrine of parliamentary supremacy as received in the UK today involves not only that there are no limits on Parliament’s legislative competence but also that it is the only body that possesses that privilege – there are no rival power sources, in other words (or at any rate, any rivals (the royal prerogative, for example) can be overruled by Parliament). What Professor Donaldson was saying was that that facet of parliamentary supremacy was not true in Scotland in the 17th century: there were other sources of legislative authority then. He instances the General Assembly of the Church of Scotland; the Privy Council;[10] the royal burghs; and even the Court of Session. The General Assembly and the burghs tended to confine themselves to their spheres of church and trade respectively but to the extent all these bodies’ spheres overlapped, the point is that there was no hierarchy between them. Or at least no indisputably established hierarchy – it did not necessarily follow that Parliament could overrule the others. Lord Russell alluded to this in his judgement in MacCormick when he said (emphasis added):

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.

So this, then, is another factor Lord Cooper may have been thinking of when he talked in MacCormick of the unlimited sovereignty of Parliament being a distinctively English principle with no counterpart in Scotland.

For completeness sake, it’s worth noting that Professor Donaldson makes no mention of the Scottish Parliament’s competence having been limited by any “fundamentall constitution” or “lawes and liberties of the kingdome”, in the words of the Claim of Right. Nor by ‘popular sovereignty’ for that matter.

A final possibility: desuetude
In the course of their argument to the court, the petitioners made reference to the law of desuetude. That’s the concept that an Act of the pre-1707 Scottish Parliament may, without ever having been formally repealed, nevertheless be held to be no longer in force due to having been ignored and departed from over a long period of time. Their point was (I think) that this was an example of a Scottish Act of Parliament being challengeable. So, the UK Parliament having (in their submission) inherited some of the features of the old Scottish one, was it not possible that Acts of the UK Parliament might also be challengeable, albeit on different grounds (disconformity to the AoU, there being no question of an Act as freshly minted as the Royal Titles Act being in desuetude)?

Lord Cooper didn’t refer to this argument in his judgement but Lord Russell did in his. And although I can’t help thinking he’d missed the point, he dismissed it by reminding us that the doctrine of desuetude didn’t apply to Acts of the UK Parliament. Nevertheless, the petitioners’ point was well made to the extent that here is a concrete example of how Acts of the Scottish Parliament were challengeable in a way Acts of the UK Parliament are not: the Scottish Parliament enjoyed a lesser degree of sovereignty than the UK’s, in other words.

Conclusions
Lawyers and historians (and Lord Cooper was both) seem to be in agreement that, in a number of respects, the pre-Union Scottish Parliament didn’t enjoy the degree of sovereignty that the UK Parliament does. But standing that Lord Cooper didn’t say in MacCormick in what respect he believed that to be the case, Salvo shouldn’t assume he had in mind their concept of ‘popular sovereignty’. That’s because there are other possibilities: limitation by certain immutable laws in the “fundamentall constitution of the kingdome” (Claim of Right); limitation in the sense of there being rival sources of power (Professor Donaldson, Lord Russell); and desuetude (trite law confirmed by Lord Russell). As regards the post-1707 UK Parliament, Lord Cooper may very well be right that its sovereignty is limited to the extent that it can’t alter a ‘fundamental’ clause of the Acts of Union – that’s an entirely respectable view although never yet tested in a British court. And (for the third time) Lord Cooper positively disavowed Salvo’s theory about the continuity post-1707 of the sovereignty of the kingdom of Scotland. All things considered, in fact, he gives them very little comfort at all.

Footnotes                                

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[1] I’ve not been able to find the text of the agreement and the quotation narrating its terms is a quotation from the preamble to the Royal Titles Act 1953.

[2] Crown Suits (Scotland) Act 1857, s.1

[3] The only names of monarchs of the UK before Elizabeth had been Anne, George (I-VI), William (IV), Victoria and Edward (VII & VIII). On the argument that the numbering was re-set at the Union, William IV should have been William I and Edwards VII & VIII should have been I & II respectively. Two theories are advanced to explain the UK numbering practice to date in the case of regnal names used in Scotland or England before the union: it simply continues the pre-1707 English numbering (which must have begun in 1066 or else Edward I should have been Edward II due to the existance of King Edward ‘the Confessor’ (1042-66)) or, alternatively, that it is the higher number in either England or Scotland plus one. The practice to date is consistent with both theories because it hasn’t happened yet since 1707 that there has been a regnal name which was used more often in Scotland than in England (or used in Scotland but not in England). We won’t know which is the correct theory until that happens, namely, when a monarch of the UK desires to use the regnal name Malcolm, Donald, Duncan, Edmund, Edgar, Alexander, David, Margaret, Robert or James (to say nothing of the uniquely Scottish regnal names before Malcolm III ‘Canmore’ (1058-93)).       

[4] The full text of Art I. is: “THAT the two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof, and for ever after, be united into One Kingdom by the Name of GREAT BRITAIN; And that the Ensigns Armorial of the said United Kingdom be such as Her Majesty shall appoint, and the Crosses of St Andrew and St George be conjoined, in such manner as Her Majesty shall think fit, and used in all Flags, Banners, Standards and Ensigns, both at Sea and Land.”

[5] I’ve always thought this rather odd. I’m no expert on the extent of the Court of Session’s jurisdiction but as Scotland’s supreme court, a common law court with radical jurisdiction, I’d have thought it was precisely the forum in which such issues might be aired and, where necessary, remedied. And a proposition that a principle of common law (that parliament’s sovereignty is limited) exists in theory but not in practice (because there’s no court with jurisdiction to remedy a breach) seems a bizarre one to formulate. I’ve never been able to avoid the suspicion that Lord Cooper was keen to take the opportunity air his not uncontroversial views on parliamentary sovereignty but then promptly neuter them before they caused any trouble in the judicial record, as it were.  

[6] Executive acts of the Crown (in practice, of course, of the government rather than the monarch personally or, at any rate, of the monarch acting in accordance with the government’s advice) which, at common law, don’t require the authority of Parliament.

[7] The exercise of the royal prerogative being a matter which no court has the jurisdiction to question tends to be expressed by lawyers in the phrase “the prerogative is not justiciable”. That may have been true in 1953 (subject to an important qualification I’ll come to presently) but it’s not now. That’s most famously recently illustrated by the Inner House of the Court of Session and the Supreme Court both declaring illegal Boris Johnson’s attempt to prorogue Parliament (a prerogative power) in the run up to Brexit. The qualification is that whether a purported exercise of the prerogative by the government actually is within prerogative powers has always been justiciable and Lord Cooper was probably taking that as read. There’s no sign of any argument from the petitioners in MacCormick that, if the Royal Titles Act didn’t apply to the choice of regnal name and numeral, the choice of these didn’t fall within the prerogative.      

[8] No legal standing to bring the case. So, in a case where a plea to competency is not taken, or repelled, but a plea of no title to sue is sustained, what the court is saying, in effect, is: “This is a case which may competently be brought, just not by you.” The Lord Advocate hadn’t actually taken a plea of not title to sue.

[9] I say “perhaps” because the Claim of Right is referring to a “fundamentall constitution” and “lawes and liberties” the king can’t interfere with by the purported exercise of the royal prerogative, not parliament.

[10] The Privy Council of Scotland acted as more than just the executive committee of the royal prerogative as the UK PC is now. Thus, for example, the institution of a school in every parish was enacted in 1616 by an Act of the Privy Council, not of Parliament. This is also the Act sometimes quoted as the first attempt to ‘ban’ Gaelic although in fact it didn’t: it merely narrated in its preamble that, the “abolition and removal” of the “Irische language” (Gaelic) was one of the desired outcomes of the schools to be established. But the Act went on neither to legislate for the banning of the use of the language in the sense of making speaking it a criminal offence or the like, nor even in terms to mandate that the schools be English medium, although that was no doubt implied. You can read it here.