UKSC 0022

IN THE SUPREME COURT OF THE UNITED KINGDOM

ON APPEAL FROM THE COURT OF SESSION [INNER HOUSE]

BETWEEN:

THE SECRETARY OF STATE OF SCOTLAND

Applicant/Cross-Appeal Respondent

and:

R (on the application of Frost_Walker2017)

Applicant/Cross-Appeal Appellant

INTERVENER SUBMISSIONS BY /U/ACESEVENFIVE

Introduction

1. Despite historically falling under English suzerainty, the notion of Scotland being merely an appendage of Britannia is a relatively recent phenomenon. When Queen Elizabeth I died without issue, her heir presumptive, then-King of Scotland James VI, acceded to the throne of England as James I. Soon after his accession, he made a proclamation that he would “begin the work of closer union by assuming the title of “King of Great Brittaine”, not from vainglory but to indicate the accomplished fact.”
2. Despite King James’s desire to see the nations of England and Scotland formally united, initial attempts to negotiate political union in 1603 were rebuffed over English concerns of absolutism and were not revived under the rule of James VI. Instead, James I focused his efforts on uniting the disparate Scottish and English churches. However, doctrinal differences led to the outbreak of war and the temporary incorporation of Scotland into the Commonwealth by Cromwell.
3. Desire within England and Scotland for a union of the two nations had been revived by the end of the 17th century, albeit with at least some hostility on the English side. The Act of Settlement 1701 provided that the heir to the English throne would always be a Protestant, but amid disagreement from the Scottish parliament as to the designated heir of Queen Anne, the English parliament passed acts intended to force Scotland to negotiate for a Union by means of crippling economic sanctions.
4. At this time, Scotland was already facing economic hardship as a result of the Darien scheme, a planned Scottish colony in what is now the country of Panama. The Darien scheme had failed, costing Scottish investors 150,000 pounds and severely impacting Scottish commercial trade. Paired with further economic losses as a result of English war with the Dutch Republic, the Scottish parliament agreed to pursue union with England (though the extent to which bribery was involved in Parliament’s decision is debated by historians.)
5. It should be noted that union with England was unpopular among the Scottish people. Churches rang a dirge via their church bells upon the pronouncement of union, and protestors feared damage to the Scottish economy. Yet, despite these oppositions, the Union endures.

Background

1. The Acts of Union refer to a pair of Acts enacted by the parliaments of England and Scotland: the Union with Scotland Act 1706 for England and the Union with England Act 1707 for Scotland. Due to the case being against the Secretary of State of Scotland, we shall use “Act” to refer to the Scottish act, and give account for the provisions of the Act that are relevant to this case.
2. Article II of the Act provides that succession to the nascent throne of Great Britain shall be decided based on “the most Excellent Princess Sophia Electoress and Dutchess Dowager of Hanover and the Heirs of her body being Protestants”, and explicitly provides “that all Papists and persons marrying Papists^[1] shall be excluded from and for ever incapable to inherit possess or enjoy the Imperial Crown of Great Britain and the Dominions thereunto belonging or any part thereof”.
3. Section 2 of Article XXV of the Act provides that His Majesty “Declares That the foresaid True Protestant Religion contained in the above-mentioned Confession of Faith with the form and purity of Worship presently in use within this Church and its Presbyterian Church Government and Discipline [...] shall Remain and Continue unalterable and that the said Presbyterian Government shall be the only Government of the Church within the Kingdom of Scotland”, and additionally requires that upon the death of the monarch, “the Soveraign succeeding to her in the Royal Government of the Kingdom of Great Britain shall in all time comeing at his or her accession to the Crown Swear and Subscribe That they shall inviolably maintain and preserve the foresaid settlement of the True Protestant Religion with the Government Worship Discipline Right and Priviledges of this Church as above established by the Laws of this Kingdom”.

Secularisation Act as infringement of the Union with England Act 1707

1. The Secularisation Act provides that “The Church of Scotland shall no longer be the National Church of Scotland”.
2. This violates the plain text of Section 2 of Article XXV of the Union with England Act 1707 by both altering the nature of the Presybterian faith within Scotland and terminating its ecclesiastical authority over Scotland, and additionally violates the Protestant Religion and Presbyterian Church Act 1707.
3. Implied repeal cannot save the Secularisation Act from being deemed incompatible with the Acts of Union. Lord Guthrie conceded in MacCormick v Lord Advocate that the power of Parliament, while vast, can be constrained, even by its own actions.^[2] One more contemporary example is the Regency Act 1937, which prevents a regent for the sovereign from assenting to legislation that would alter the order of succession or alter the Protestant Religion and Presbyterian Church Act 1707. Such a restriction has never been held unlawful by a court, proving further the limitations of Parliament.
4. For this reason, the Secularisation Act would require His Majesty to directly violate the Acts of Union by prohibiting him from swearing the oath to protect the Church of Scotland required of him by those Acts. While the Acts do not provide any punishment for such a violation, it is a reasonable axiom that as the King can do no wrong, he should not actually do wrong.
5. The Secularisation Act should therefore be held incompatible on the above described grounds.

Secularisation Act as infringement of the Statute of Westminster

1. The Secularisation Act provides that “It will no longer be a requirement for the monarch to be a member of the Church of England” and that “Any further restriction on the religion of the monarch or the royal family shall be abolished”.
2. This violates the conventions set out in the Statute of Westminster concerning succession to the throne.
3. The Statute of Westminster was promulgated by the United Kingdom in 1931 to establish the constitutional relationship between Britain and its Dominions following the 1926 and 1930 Imperial Conferences, setting out in particular that “it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom”.
4. The Commonwealth realms have taken the aspiration in the Statute of Westminster regarding alteration to the line of succession as prescriptive of actual obligation. Upon the abdication of Edward VIII in 1936, consent was sought and obtained from each Commonwealth realm, and those that had adopted the Statute of Westminster into domestic law passed Acts assenting to the abdication.^[3]
5. There is no evidence indicating that any Commonwealth realm has assented to the accession of a Papist to the throne of the United Kingdom as required by the Statute of Westminster. In addition, there does not exist any Commonwealth realm where the laws of the United Kingdom could possibly be incorporated, even if the United Kingdom sought to ignore its obligations in the Statute with respect to usual legislation.
6. Therefore, the Act should be held incompatible with the Statute of Westminster due to it attempting to alter the line of succession without the required assent of each Commonwealth realm.

Further Inquiry

1. The matter at issue has presented additional concerns that it may be in the interest of the Court to examine. These concerns are described below.
2. By implied repeal, the Secularisation Act repeals the Church of England Assembly (Powers) Act 1919, which is relied upon by the General Synod of the Church of England to enact Church Measures. Are Church Measures enacted since 1919 also subject to implied repeal?
3. Does Parliament have the authority to amend Church Measures more generally?
4. Does there exist any entity under British or Scottish law that could assent to alterations to the Act of Union in the name of the parliament of the Kingdom of Scotland?