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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 36
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OPINION OF LORD UIST
in the Petition of
PROFESSOR THE MUCH HONOURED STEPHEN
PENDARIES KERR OF ARDGOWAN, BARON OF
ARDGOWAN
for
Judicial review of a decision of the Lord
Lyon King of Arms
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Agnew of Lochnaw QC, Miss
Munro; Brodies LLP
Respondent: Woolman QC, Webster;
Solicitor to the Advocate General
22 February 2008
Introduction
[1] The
petitioner is Professor of International Law at the Antioch School of Law and
resides at 3153 South Utica, Tulsa, Oklahoma, 74105, USA. He is the heritable proprietor of the Land
and Barony of Ardgowan in the County of Renfrew in terms of a Disposition
in his favour by Sir Houston Mark Shaw Stewart Baronet dated 17 September 2001 and Land Certificate
following thereon. The respondent is the
Lord Lyon King of Arms ("Lyon"). By
interlocutor dated 25 October 2004, in which the petitioner was designed
as "Stephen Pendaries Kerr, Baron of Ardgowan", Lyon confirmed "that he is
satisfied that the petitioner is infeft in the Lands and Barony of Ardgowan at
25 October 2004 and that the petitioner is entitled as Baron of Ardgowan
to baronial additaments to his Ensigns Armorial, the form of such Ensigns
Armorial to be determined by his Lordship at a later date." The purpose of that interlocutor was to
confirm that Lyon accepted that the petitioner was infeft in the barony before
the appointed day (28 November 2004) for the coming into force
of the Abolition of Feudal Tenure etc (Scotland) Act 2000 ("the 2000 Act").
[2] By
petition dated 24 May 2004 in the name "The Much
Honoured Stephen Kerr of Ardgowan, Baron of Ardgowan" the petitioner petitioned
Lyon for rematriculation of his
father's arms with baronial additaments in respect of his Barony of Ardgowan. He stated as follows in para 6(a) of
that petition:
"That the petitioner has
assumed the surname, title, designation and nomen dignitatis of 'KERR OF
ARDGOWAN' in place of Kerr, and is now commonly called and known as 'STEPHEN
KERR OF ARDGOWAN, Baron of Ardgowan' and desires that the foresaid change of
name might be officially entered in the Books of the Court of the Lord Lyon."
As the interlocutor of 25 October
2004
designed the petitioner as "Stephen Pendaries Kerr, Baron of Ardgowan", a
solicitor in Brodies WS, the petitioner's solicitors, wrote to Lyon on 19 January 2005 stating inter alia:
"Finally, both my client and
his nephew, whom he has designated as the heir to his arms, have already
changed their respective names to include the territorial designation 'of
Ardgowan' after their surname of 'Kerr'.
This situation seems to be on all fours with your 21 July 2003 additional decision in Lashbrooke v Lord Lyon ....... As Professor Kerr and his nephew have already
changed their names in similar manner ....
my client is hopeful that he and his nephew will be recognised in your
warrant with the territorial designation 'of Ardgowan' after their surname."
By letter to the petitioner dated 21 January 2005 Lyon refused to recognise
officially the petitioner in that surname.
He stated:
"As regards the recognition
of a territorial designation, I only recognise this where there is ownership of
a significant piece of land, not a superiority.
The fact that your client and his nephew have chosen to use a name which
bears to include a territorial designation which has not been recognised does
not bind Lyon to accept that name. I
am not bound by the Lashbrooke
decision, since Lyon is not and never has been bound by previous decisions of his
nor (sic) of any of his
predecessors."
[3] The
petitioner now seeks reduction of the decision of Lyon dated 21 January
2005 and an order ordaining Lyon to recognise him officially in the surname
"Kerr of Ardgowan" in the Warrant and Letters Patent to follow thereon
matriculating in the name of the petitioner his said ensigns armorial with
baronial additaments. The grounds upon
which Lyon's decision is challenged are as follows:
(a) In granting ensigns armorial
and in recognising officially a Petitioner in a surname, whether or not that
surname includes a territorial designation, Lyon is acting in his
ministerial, and not judicial, capacity.
His jurisdiction is to recognise officially surnames that have been
adopted and he has no discretion to refuse to recognise officially a name and
territorial designation that has been adopted.
The purpose of his jurisdiction is to provide official recognition and
to link the surname to the coat of arms that is to be granted or matriculated. In refusing to recognise the surname Kerr of
Ardgowan, adopted by the petitioner, Lyon has acted unlawfully.
(b) If Lyon has a discretion, he has
acted unlawfully by failing to exercise such discretion in a manner compatible
with the petitioner's rights under article 8 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). The petitioner's right to respect for his
private and family life is engaged in relation to his adoption of a name and
territorial designation. Lyon is a "public authority" for
the purposes of section 6 of the Human Rights Act 1998 and is accordingly
obliged to act in a manner compatible with the Convention rights. In refusing to recognise the surname adopted
by the petitioner he has interfered with the petitioner's Convention rights. In failing to demonstrate that such
interference was in accordance with the law and necessary in a democratic
society he has acted unlawfully.
(c) Further and in any event, he
has acted unreasonably in refusing to follow the practice of Lyons to recognise officially
surnames including a territorial designation whether or not the Barony or other
heritable property was a superiority title or a dominium plenum title. While
Lyon might not be bound by his
previous decisions or those of previous Lyons, he should have good
reasons for departing from earlier decisions, which have been consistently
followed. There was no such good reason. Lyon gave the petitioner no notice of any change of policy. The petitioner acquired the Barony of
Ardgowan, in part, on the faith that he would be entitled to be officially
recognised in the name Kerr of Ardgowan and had a legitimate expectation that
he would be so recognised.
(d) In any event Lyon erred in considering the petitioner's
disposition to be that of solely a superiority.
It contains two areas of land, the first conveyed being a superiority
and the second conveyed, nominated as the principal messuage of the Barony,
being conveyed in dominium plenum. If there is a distinction between the
ownership of barony lands in superiority and in dominium plenum, the petitioner is entitled to official recognition
in the name Kerr of Ardgowan because he owns the dominium directum of the principal messuage of the barony.
(e) Lyon has given inadequate
reasons for his decision. This is
particularly so in circumstances where there is a long established practice
that such territorial designations are recognised and Lyon has followed this practice
himself. In these circumstances Lyon ought to have given
adequate reasons for his departure from the established and lawful practice.
[4] In
response Lyon contends:
(a) The original jurisdiction of
the Court of Session is excluded in all matters placed by statute under the
original jurisdiction of Lyon (Royal College
of Surgeons of Edinburgh v Royal
College of Physicians of Edinburgh 1911 SC 1054). Under the Act 1672 cap 47 Lyon is directed "to visite the
whole Armes of Noblemen Barrons and Gentlemen and to matriculate the same in
their Registers". The subject matter of
the present petition is susceptible to appeal to the Inner House, rather than
by way of judicial review.
(b) The petitioner is entitled
to call himself by whatever name he chooses.
He has, however, no right to require Lyon to enter any particular
name in the Public Register of All Arms and Bearings in Scotland. Under the Act 1673 Lyon may matriculate arms for
those persons whom he in his sole discretion considers to be 'vertuous and well
deserving' (Stair Memorial Encyclopaedia, Courts and Competency, Vol 6, para
1017). It is also a matter for his
discretion to determine the designation of any person to whom letters patent
should be granted.
(c) Lyon is not bound by his
previous decisions. No individual can
have a legitimate expectation as to (i) the grant of arms, or (ii) the names
entered on the Public Register. In any
event, reliance on only two decisions cannot give rise to a legitimate
expectation.
(d) The decision of Lyon dated 21 January 2005 is a reasonable one. In seeking the territorial designation sought
the petitioner relies upon a territorial nexus in the form of a superiority. Before about 1980 superiorities were not used
as a basis upon which persons adopted territorial designations. All superiorities have been abolished under
section 2(2) of the 2000 Act. In the
circumstances it was reasonable for Lyon to decide not to design the petitioner as 'of
Ardgowan'. To docquet an entry in the
Public register of All Arms and Bearings in Scotland in the manner sought by the
petitioner would give rise to a material risk of misrepresentation that there
was a true territorial nexus between the petitioner and the subjects in
question.
(e) In exercising his
prerogative powers Lyon is under no obligation to give reasons for his decisions in
respect of the grant of arms. In any
event, he did provide adequate information to the petitioner.
(f) In the event that the court
found in favour of the petitioner it should not make an order for specific
implement against Lyon, but the matter should be remitted to Lyon to proceed in accordance
with the court's decision.
The history of
the Lyon Court
[5] In
order to be able to understand the competing submissions for the parties it is
necessary to know something of the history of the Lyon Court.
[6] A
short description of the early history of the Lyon Court was given by Lord Johnston
in Royal College of Surgeons of Edinburgh
v Royal College of Physicians of
Edinburgh 1911 SC 1054 at pages 1061 - 2.
His Lordship there said:
"The Lyon appears at first on
Thomson's page (i e Acts of the Scottish Parliament) in the position of a
Herald merely. But by the middle of the
sixteenth century he had become responsible for the exercise of their duties by
messengers-at-arms. In 1567, cap 80,
provision is made for the re-formation of the office of arms, in terms
evidently pointing to irregularities both in the appointment and in the actings
of messengers-at-arms, and, to that end, for definition of the Lyon's duties thereanent. This led to the Act 1587, cap 30, which, as
far as I can find, first establishes the Lyon Court. The act reduces the number of messengers,
places, or at least recognises, their appointment as in the hands of the Lyon
King, and directs him to hold two courts in the year to inquire into complaints
against them for malversation of office.
This Court is made a Court of record.
There are several confirmatory Acts - e g, that of 1669, cap 95.
Then in 1592, cap 29,
there is found what appears to be the origin of another branch of the Lyon
King's functions and jurisdiction. He
may have had some such powers by prior usage, but this is the first recognition
thereof by Parliament, and it has all the appearance of a new departure. I need not deal on the matter in detail. It is sufficient to say that this Act
originates the jurisdiction of the Lyon King in the matter of bearing arms. Duties of an inquisitorial nature are imposed
upon him and his subordinates, and power to determine the right to bear arms
and "to distinguish and decern them with congruent differences, and thereafter
to matriculate them in their books and registers". This Act was also confirmed in later Acts,
as, for instance, 1672, cap 47. The Lyon's jurisdiction in this
matter was partly quasi-judicial and partly ministerial. But it seems to spring from statutory
authority."
Competency and
justiciability
(i) Submission for Lyon
[7] It was
submitted on behalf of Lyon that this application to the supervisory jurisdiction of the
court was incompetent as an alternative remedy was available in the form of an
appeal to the Inner House.
[8] Rule
of Court 58.3 provides:
"(1) Subject to paragraph
(2), an application to the supervisory jurisdiction of the court ... shall be
made by petition for judicial review.
(2) An application may not
be made under paragraph (1) if that application is made, or could be made, by
appeal or review under or by virtue of any enactment."
The Lyon Court was an inferior court from
which an appeal lay under Rule of Court 40.1 (2) (c) (i). This principle had been established since at
least 1778. In the case of Procurator Fiscal of the Lyon Court v William Murray of
Touchadam (1778) FC viii 36 No 22 the rubric reads:
"The Lyon court having fined a person
for having assumed arms without matriculation, and decerned him to forfeit the
furniture which bore such arms, the Lords found that the Court was competent in
such actions, but that its jurisdiction was not privative. And on the merits of the case they found
that, the defender having been in possession of a coat-armorial prior to
statute 1592, such long possession assumed an antecedent right and that the Lyon could do no more than
oblige him to matriculate and pay the usual fee."
[9] In the
case of Royal College of Physicians of
Edinburgh (supra), which was described by junior counsel for Lyon as "an undignified scrap
between gentlemen as to their order of precedence", Lord President Dunedin
stated at p1060:
"Now, your Lordships will
have already noticed that this petition is presented as a petition to the Lyon
King of Arms in his capacity as a judge in one of the inferior judicatories of Scotland. From that inferior judicatory an appeal lies
to your Lordships' Court, and your Lordships have to determine upon the merits
such things as come from that court by appeal.
And I think it is a corollary of that that your Lordships would enforce
any decree which was pronounced by the usual methods by which the court
enforces its decrees."
[10] The
case of Stewart Mackenzie v
Fraser-Mackenzie 1922 SC (HL) 39 was an action at the instance of one not
himself entitled to the arms challenged and involved a question of title to sue. At p 41 Lord Dunedin said:
"The present appeal is
against an interlocutor of the Second Division affirming an interlocutor of the
Lord Lyon of 21 October 1918, whereby he dismissed a petition at the instance
of the appellant craving that a grant of ensigns armorial in favour of the
respondent dated 7 February 1908 should be reduced or set aside, or at least
should be altered by a disallowance of the supporters authorised thereby. It may be a matter for regret that the
opinion of this House should be sought on such a question. There seems, however, no doubt as to the
competency of the appeal. The Court of
the Lord Lyon is an inferior Court, and from inferior Courts there lies an
appeal to the Court of Session, and final interlocutors of the Court of Session
in civil matters are appealable to your Lordships' House."
At p 45 his Lordship said:
"It is, I think,
conclusively settled by the case of McDonnell
v McDonald (1826) 4S 371 that the
Court of Session will never interfere by way of reduction (and it follows that
recall, which is tantamount to reduction, must share the same fate) with a coat
of arms granted by the Lyon in his ministerial capacity unless the complainer
can aver and show that he is entitled to the coat of arms of which he
complains."
At pages 45-46 Lord Shaw of Dunfermline stated:
"Courts of law in their due
order as appellate Courts from an undoubted Court of law, that of the Lyon King
of Arms in Scotland, are not relieved of the task of determining cases of this
character in those instances in which a heraldic right vested in one subject of
the Crown has been seized or invaded by another subject of the Crown."
He went on to say later at p 46:
"I am, however, of opinion
that the law with regard to any interference with the administration of the
Lord Lyon, or with the exercise by him of his ministerial powers in regard to
the grant of arms, remains in the same position as that set forth by Lord
Robertson in the case of McDonnell v McDonald, a decision pronounced in the
year 1826. In my opinion, no appeal to
the ordinary Courts of law against such a grant is competent unless upon the
ground which I have stated, namely, an invasion of a right vested in the
appellant."
[11] In the
earlier case of McDonnell v McDonald (1826) 4S 371 the Court of
Session dismissed as incompetent an action of reduction of matriculation of
arms as the pursuer had not set forth that he had right to the arms in question. Lord Robertson stated at p 272:
"The power of granting
ensigns armorial is part of the royal prerogative, but everything belonging to
that power has been given by sundry statutes to the Lord Lyon. His power to grant new armorial bearings is
merely discretionary and ministerial, and with that this Court cannot interfere. But if the Lord Lyon should grant to one
person arms which another is entitled to bear, and should refuse to give
redress, there could be no doubt of the jurisdiction of this Court to entertain
an action at the instance of the party to have his right declared, as this
would involve a question of property, which a right to bear particular ensigns
armorial undoubtedly is."
It was plain that in the above passage Lord Robertson
recognised the distinction between an original grant of arms and subsequent
issues relating to those arms. Before
arms were granted a petitioner had no right.
The power to grant new armorial bearings was discretionary. A successful applicant for ensigns armorial
received a warrant for letters patent and thereafter had a right to the arms. The present petition related to existing
armorial bearings. The petitioner was
seeking matriculation of new of arms granted to his father. He had brought a petition before the Lyon Court which had resulted in Lyon pronouncing an interlocutor
dated 25 October 2004. The matter in this case had been brought
before Lyon in his judicial capacity and Lyon's decision ought to be the
subject of an appeal to the Inner House, not an application for judicial review
in the Outer House. An appeal to the
Inner House would avoid one judge reviewing the decision of another judge.
[12] Even if
the function of Lyon in the present case were administrative or ministerial, it
did not follow as a matter of course that the exercise of his discretion was
subject to judicial review. In CCSU v Minister for the Civil Service [1985] AC 374 Lord Roskill, having
stated that there was no logical reason why the fact that the source of the
power was the prerogative and not statute should deprive the citizen of that
right of challenge to the manner of its exercise which he would possess were
the source of the power statutory, went on to state at p 418A-C:
"But I do not think that that
right of challenge can be unqualified. It
must, I think, depend upon the subject matter of the prerogative power which is
exercised. Many examples were given
during the argument of prerogative powers which as at present advised I do not
think could be properly made the subject of judicial review. Prerogative powers such as those relating to
the making of treaties, the defence of the realm, the prerogative of mercy, the
grant of honours and the dissolution of Parliament and the appointment of
ministers as well as others are not, I think, susceptible to judicial review
because their nature and subject matter are such as not to be amenable to the
judicial process. The courts are not the
place wherein to determine whether a treaty should be concluded or the armed
forces disposed of in a particular manner or Parliament dissolved on one date
rather than another."
Emphasis was laid on the mention of "the grant of
honours".
[13] The
distinction which the petitioner sought to draw was an artificial one. The fact that he had a bad appeal point did
not provide him with a ground for judicial review. The vessel in which the petition had sailed
had run aground.
(ii) Submission for the petitioner
[14] The
submission for the petitioner in response was that the issue was not whether
Lyon was obliged to grant arms in a particular style of the petitioner's
choosing, but related to his jurisdiction in respect of names and changes of
names, which was a discrete function. The
1867 Act (30 and 31 Vict, c 17), Schedule B specified the fees chargeable by Lyon for a certificate regarding
a change of name. Lyon's function in relation to
names or changes of names was an administrative or ministerial, not judicial,
function. Lyon had refused to grant
official recognition to the petitioner's name incorporating his territorial
designation. The petitioner was seeking
to ensure that the name on his ensigns armorial matched the name by which he
was ordinarily known. In officially
recognising a change of name Lyon acted in an administrative or ministerial capacity. The Stair
Memorial Encyclopaedia, vol 6. p 482,
para 1017 stated:
"The jurisdiction of the
Lord Lyon is both ministerial and judicial.
Lyon will determine judicially if a person has proved his entitlement to
a right, but he or a previous holder of the office may have determined the
nature of the right or brought the right into being by exercising a part of the
Royal prerogative of the Sovereign of the United Kingdom which has been
assigned to him by sundry statutes. The
courts will not interfere with the ministerial or administrative act of Lyon unless he acts ultra vires or grants or purports to
grant to one a right which is already vested in another (Stewart Mackenzie v
Fraser-Mackenzie 1922 SC (HL) 39.
The principal administrative
function of the Lord Lyon is in relation to the granting of armorial bearings
by letters patent to such persons as Lyon in his sole discretion considers to be 'virtuous and
well deserving persons' (Lyon King of Arms Act 1672, c 47)."
[15] Green's Encyclopaedia Vol 10, p 147,
para 308 stated:
"The Scottish substitute for
the expensive Royal Licence is a certificate of 'Official recognition of change
of name' granted by the Lord Lyon king of Arms in virtue of his ministerial
powers, wherein he exercises (within his jurisdiction) the sovereign's
prerogative."
[16] In Sturzenegger, Petitioner 2000 SLT (Lyon
Ct) 2 the petitioner presented a petition to Lyon seeking to be officially
recognised in the name and title of a territorial peerage. In his opinion Lyon described the petition as
"addressed to Lyon in his administrative capacity".
[17] The
grant of arms was a reserved, not devolved, matter (Scotland Act 1998, Schedule
5, paras 1 and 2(2)) as it involved ministerial, not judicial, functions.
[18] The
distinction between Lyon's administrative and judicial functions was material to the
scope of appeal to the Inner House and to the competency of the present
petition for judicial review. A right of
appeal to the Inner House was recognised only in respect of Lyon's judicial decisions: the
Inner House declined to interfere on appeal with administrative or ministerial
acts of Lyon. A disputed right or
claim to existing arms would require Lyon to act in his judicial capacity as it
would involve a lis inter partes, as
would a complaint by the Procurator Fiscal of the Lyon Court about the unlawful
use of arms. If Lyon was acting in his
administrative or ministerial capacity in the present case there was no right
of appeal to the Inner House (Kaye v Hunter 1958 SC 208) and the petition
for judicial review which had been brought was competent. The function of Lyon in the present case was to
marry up the link between the petitioner's old identity and his new identity. Since that function was administrative or
ministerial there was no right of appeal to the Inner House and all that
remained was judicial review. In 1826
there was no notion of scrutinising the royal prerogative. The question of competency was separate from
that of justiciability, which dealt with what kind of decision was amenable to
the supervisory jurisdiction. The
prerogative roots of Lyon's jurisdiction were no bar to the competency of judicial
review: what mattered was not the source of the power being exercised but the
substance of that power.
[19] In summary, the following two propositions
could be derived from the cases. First,
it was clear that where a petition came before the Lyon court which engaged Lyon's judicial functions
(because it involved a question of disputed rights or disputed claims) the
decision which Lyon reached was a judicial decision. It was the judicial character of that
decision which, in turn, rendered it susceptible to the appellate jurisdiction
of the Court of Session exercised under Chapter 40 of the Rules of Court. Secondly, it was equally clear from the
decision of the Second Division in McDonnell
that a distinction fell to be drawn between Lyon's judicial decisions which
were subject to appeal to the Court of Session and those taken in exercise of
his ministerial or administrative functions, which were not. The same distinction was drawn in Royal College of Surgeons of Edinburgh
and also in Stewart Mackenzie v Fraser Mackenzie.
[20] Where a
decision of Lyon was not subject to appeal to the Court of Session all that
remained by way of remedy was an application to the supervisory jurisdiction of
the court, which existed "to redress all wrongs for which a peculiar remedy is
not otherwise provided" (Erskine,
Institutes, I iii 23; West v Secretary
of State for Scotland 1992 SC 385 at p 413). The supervisory jurisdiction did not extend
to the merits of a challenged decision, which, if challengeable at all, were
challengeable only by way of appeal. The
decision in McDonnell appeared to
disclaim any jurisdiction over the acts of Lyon in 1826. If a person were today to apply for judicial
review of a decision of Lyon about the grant of new armorial bearings (perhaps
the classic exercise of Lyon's ministerial or administrative power) on the
ground that he was simply dissatisfied with it the Court of Session would quite
properly decline to interfere because the challenge would be one directed at
the merits of Lyon's decision. On the
other hand, if the case were put on the basis that Lyon had acted in a biased or
unfair or improper manner, the matter would then be plainly susceptible to the
supervisory jurisdiction of the Court of Session, which would be fully entitled
to reduce the decision.
[21] There
might well in the past have been reticence about the possibility of bringing
the ministerial or administrative decisions of Lyon under judicial review,
partly by reason of the foundation of his powers in the royal prerogative and
partly perhaps by reason of a less expansive understanding of what constituted
a wrong demanding a remedy. This raised
a question of justiciability, not of competency. So far as the prerogative roots of Lyon's
jurisdiction were concerned, they were plainly no bar to judicial review at the
present day (CCSU v Minister for the Civil Service [1985] AC 374 per Lord Scarman at p 407; R v Secretary of State for the Home Department
ex parte Fire Brigades Union [1995] 2 AC 513 per Lord Browne-Wilkinson at p
553). Thus, in R v Secretary of State for
Foreign and Commonwealth Affairs ex parte Everett [1989] QB 811 a
successful application for judicial review of the Secretary of State's refusal
to issue the applicant with a passport, Taylor LJ stated at p 820C-D:
"At the top of the scale of
executive functions under the prerogative are matters of high policy ..... making treaties, making war, dissolving
Parliament, mobilising the armed forces.
Clearly those matters, and no doubt a number of others, are not
justiciable. But the grant or refusal of
a passport is in quite a different category.
It is a matter of administrative decision, affecting the rights of
individuals and their freedom to travel."
In the present case it was submitted that the giving
or withholding of official recognition to an individual's choice of name was
equally clearly at the justiciable end of the spectrum of prerogative decisions.
[22] In West (supra) at p314 the First Division
held that
"..... the categories of what may amount to an
excess or abuse of jurisdiction are not closed and they are capable of being
adapted in accordance with the development of administrative law."
The petitioner was complaining inter alia of breach of his legitimate expectation and human rights. Neither would have been recognised as a wrong
demanding a remedy in the early nineteenth century, but both, if established
plainly constituted a wrong today.
[23] In the Lyon Court the same procedure
involving petitions and interlocutors was used whether the function being
exercised by Lyon was ministerial or judicial.
In some cases everything was done simply by way of letters. Lyon would often issue an interlocutor to record a step in
a process. The function which was being
exercised by Lyon had to be considered so that it could be categorised. Here the application was for a change of name
within letters patent or on a certificate of grant of arms. The petitioner had asked for rematriculation
of his father's arms and official recognition of his change of name. The application was to Lyon in his ministerial capacity
for recognition of a change of name which had already taken place. The important point missed in the submission
for Lyon was that what was being
dealt with here related to a change of name, not Coats of Arms, although it was
accepted that there was an interlinking between the two.
(iii) Discussion and Conclusion
[24] It is
clear from the authorities referred to that Lyon has both a judicial and a
ministerial or administrative jurisdiction.
The question which I have to answer in deciding whether this petition is
competent or not is into which category his decision in this case falls. It is plain from the decision in the case of McDonnell that the power of Lyon to grant ensigns armorial
is part of the royal prerogative and therefore ministerial or administrative in
nature. It is also plain that the power
of Lyon to grant an official certificate of change of name is exercisable under
the royal prerogative under his ministerial or administrative powers (Green's Encyclopaedia, Vol 10, para 308). The present case does not involve a new grant
of arms, but it does relate to the name of the holder of an existing grant of
arms and may therefore reasonably be said to raise a question ancillary to a
grant of arms. It also involves a change
of name on the part of the petitioner. Put
simply, it involves a question of the change of name of an existing holder of a
grant of arms. As both the power to
grant of arms and the power to recognise officially a person's change of name
fall within Lyon's ministerial or administrative function, it seems to me to
follow that the power to decide whether to accept a change of the name of the
existing holder of a grant of arms must also logically fall within his
ministerial or administrative function under the royal prerogative. Accordingly, I am of the view that this
petition is competent and the challenge by Lyon to its competency must be
rejected.
[25] Next,
the question of justiciability has to be considered. Lyon's ministerial or administrative power is exercised
under the royal prerogative, but it does not therefore follow that it cannot be
the subject of judicial review. It is
clear from the decision in the House of Lords that a power exercised under the
royal prerogative can be the subject of judicial review, provided the decision
in question does not fall within one of the excluded categories mentioned by
Lord Roskill in the passage quoted above.
In my opinion the decision in this case does not fall within any of the
excluded categories. The only excluded
category which was suggested on behalf of Lyon was the grant of honours,
but in my view it is obvious that what Lord Roskill was referring to there was
the conferring of an honour on a person as that is traditionally understood,
namely, in the Honours List or by the Sovereign in person. He did not intend to include within the grant
of honours the granting of ensigns armorial by the appropriate authority on the
application of the party seeking the grant.
The exercise of the prerogative in this case is my view analogous to
that of granting a passport in the Everett case, being a purely administrative function involving
dealing with an application. It is
therefore subject to judicial review.
Discretion
(i) Submission for the petitioner
[26] The
submission for the petitioner was that, so far as the jurisdiction of Lyon to refuse to recognise a
name incorporating a territorial designation was concerned, he was not taking
an absolutist position, as seemed to have been suggested on behalf of Lyon. A person claiming the designation "Baron of
X" had to demonstrate to Lyon a proper foundation for his designation. Lyon could refuse to recognise a change of name for a
non-armigerous person. Innes of Learney, Scots Herladry (2nd
Ed, 1956) states at pages 199-200:
"The normal Scottish
procedure in the case of the noblesse
is, therefore, to obtain from the Lord Lyon a 'Certificate regarding Change of
Name', in which his Lordship not only 'officially recognises' the name assumed,
but issues a Certificate which forms the necessary identification of the
individual under his old name and his new one.
Such a statutory certificate is granted for 15s and expenses (about 2
guineas where the applicants or parents are recorded in the Register of Arms or
Genealogies), and is also enrolled in the Books of the Lyon Court, whence additional Extracts
can be obtained. Otherwise it is
normally recorded in a special section of the Register of Genealogies, the
total fee in that case being some 13 guineas.
The Lord Lyon's Certificate, or an Extract thereof, is thereafter
produced, along with the Extract of the original Birth Certificate, which
cannot itself be altered, except in fundamental error.
As in the case of a Royal
Licence, Lyon's certificate is not obtainable for capricious changes of
name by non-armigerous persons. The
grounds upon which Lyon's jurisdiction can properly be invoked are Changes of
Name by (1) persons in right of arms, or members of their families entitled to
a courtesy of these arms; (2) persons recorded in, or adding themselves to,
pedigrees in the Public register of Genealogies; (3) persons succeeding to
feudal property, or under settlements (the first category renders the matter
one relating to tenures, and the latter presumes a formal act will be taken to
effect compliance); (4) persons who require Lyon's certificate for naval,
military or other reasons; (5) where a change of name has to be authorised by a
government Department, as in entering certain professions (eg nursing), and in
connection with insurance companies, and for certain foreign purposes (a
University). If the ground of the
application be (1) or (2) the ground will normally be set forth and appear from
reference to the Register of Arms or Genealogies. In other cases the precise ground for
invoking Lyon's jurisdiction should be set forth in the application.
Certificates granted by the
Lord Lyon may refer to change of either Christian name or surname. The needful procedure is a petition ...."
[27] Lyon had a discretion to
withhold recognition of a name which was obscene, offensive or racist. It was not suggested in the present case that
the petitioner was acting capriciously by adopting a name of such a kind. Subject to his discretion to refuse to
recognise a name of such a kind, Lyon had no power in the exercise of his
administrative function relating to changes of names to withhold official
recognition of a chosen name, even one which incorporated a territorial
designation, where that was the name by which the petitioner was ordinarily
known. If there were three Hopes of Craighead
(each from the different Craighead in Ayrshire, Perthshire and Aberdeenshire) Lyon could not refuse to
recognise them, assuming a territorial nexus.
In any event, a territorial nexus was not a pre-requisite for the use of
a territorial designation. There was no
question of possible confusion in the present case, but it was not accepted
that the risk of confusion was a legitimate basis for Lyon refusing to recognise a
name. In the present case the basis of Lyon's decision was the absence
of a proper territorial nexus. Lyon was obliged to put against
the petitioner's arms the name which the petitioner was using. Lorimer,
A Handbook of the Laws of Scotland, 2nd Ed (1862) stated at p
445 that Lyon
"will not, as popularly
believed, grant authority to an individual to change his name; but on the
narrative that he has already changed it ....
will grant him arms under his new name; and in the patent, or, if
desired, in an extract from the record, he will certify the fact of the
change."
Lyon therefore did not authorise a change of name, but
granted arms under the new name narrated.
[28] The
fundamental rule which one had not to lose sight of was that in Scots law a
person could take whatever name he pleased.
You could call yourself what you liked.
In taking a name a person may elect to include in it a territorial
designation. Lyon could not lawfully act in
such a way as to negate that right or disable its exercise. He had no discretion enabling him to
determine the name or designation of the person to whom arms were granted or in
whose name the grant was recorded: if he had such a discretion, he would in
effect be entitled, without the consent of the person concerned, to change that
person's name and that could not be right.
In deciding whether he should recognise a name for the purpose of a
grant of arms Lyon was not entitled to have regard to the wider concept of
heraldry as involving virtue and merit. He
had a residual discretion to refuse to recognise a name where the application
was frivolous or vexatious or almost an abuse of process, but no wider
discretion.
[29] Green's Encyclopaedia of the Laws of Scotland, Vol X, stated at p 146, para 305:
"In making changes of name
it is obviously necessary that some formal step be taken, so that the party's
identity under the new name and the old name may be conclusively established,
and in order to preclude the possibility of prosecution under the Registration
Acts This may be done in several ways."
The six ways mentioned were (1) statute; (2) Royal licence;
(3) Lord Lyon's certificate; (4) authority of the Court of Session; (5) public
advertisement; and (6) marriage. So far
as a Lord Lyon's certificate is concerned, the following is stated at p 147,
para 308:
"The Scottish
equivalent for the expensive Royal licence is a certificate of 'Official
recognition of change of name" granted by the Lord Lyon King of Arms in virtue
of his ministerial powers, wherein he exercises (within his jurisdiction) the
Sovereign's prerogative. 'The Lord Lyon
will not, as is popularly believed, grant authority to an individual to change
his name, but on the narrative that he has already changed it, he will grant
him arms under his new name, and .... will certify the fact of the change' (J H Lorimer, Handbook of the Law of Scotland, 2nd Ed, p445). This
certificate is recognised by War Office and Admiralty as identifying the bearer
of the new name, which is the only object of the King's Letters Patent. Lyon's certificate goes further: it 'officially
recognises' the new name. When arms are
granted or matriculated, the certificate is embodied in the patent or extract,
but where no grant, matriculation or change of arms is desired, a 'Certificate
of Change of Name" is granted ..."
[30] In Johnston, Petitioner (1899) 2F 75 the First
Division held that, as a person does not require the authority of the court to
change his name, the court will not grant authority except on special cause
shown. In that case the petitioner
averred that his name was entered in the Register of Births and in his
certificate of baptism as Henry Johnston, but that for some years he had
adopted and used the name of Henry Lindsay Johnston, and had been commonly
known as such. In particular, his name
had been entered as Henry Lindsay Johnston in the books of Trinity College, Cambridge, and of the University of Cambridge, where took his degree in
the year 1897. On the occasion of his
ordination as a deacon of the Church of England the Bishop of Rochester,
through his diocesan secretaries, refused to enter in the petitioner's letters
of orders any other name than was contained in his certificate of baptism,
without evidence that the said name had been assumed with authority. The petitioner was about to enter into
priest's orders in the Church of England and had been informed that the bishop
of Rochester, through this diocesan
secretaries, would again refuse to insert in his letters of orders the name
Henry Lindsay Johnston. It was of
importance to the petitioner, as a clergyman of the Church of England, that the
name appearing in his letters of orders should be the same as that under which
he took his degree at the University of Cambridge. The First Division granted the application. Lord Adam, with whom Lords McLaren and
Kinnear concurred, stated at p 76:
"The petitioner's
application is for authority to alter his name.
Now, any person in Scotland may, without the authority
of the court, call himself whatever he pleases, and, accordingly, when a
petition for such a purpose is presented we are in use to dismiss it as
unnecessary, unless sufficient reason is shewn for the application. The question, therefore, is whether there is
good reason in this case. ..... Now, I have no doubt that the Bishop of
Rochester will insert the petitioner's adopted name in his letters of orders if
the petitioner receives the authority of the court to assume it. We are in use to grant petitions of this kind
in the case of notaries and other such persons, and it rather appears to me
that we should grant the application. I
see no way in which Mr Johnston can get over the difficulty mentioned in the
petition, unless we grant the application."
[31] In Robertson (1899) 2F 127 a petition was
brought by a chartered accountant named James Alexander Robertson craving the
court to authorise him "to assume, bear and henceforth to use the names James
Alexander Durham-Robertson in exercising the offices of judicial factor,
curator bonis, liquidator and trustee" to which he had from time to time been
appointed and "to ordain this petition, and your Lordships' deliverance
thereon, to be recorded in the Books of Sederunt". He stated that he had succeeded to the
entailed estates of Boghead and Foulshiells, in the County of Linlithgow, and that the deeds of
entail contained provisions that every heir succeeding to the entailed estates
should assume and use the name of Durham. He had accordingly assumed and was to use and
bear the name of Robertson-Durham and desired to obtain the authority of the
court to use his altered name in the offices mentioned. He submitted that the authority of the court
was necessary as the offices which he held were of a public nature and he had
been appointed to most of them by the court.
The prayer of the petition was refused by the First Division. Lord Adam stated at p 127:
"I am of the opinion that
the petition is not necessary. Mr
Robertson has a perfect right to change his name, and no one can prevent him
from adding to or altering it. The case
of a notary is different, because a notary is an imperial officer, and a person
holding a public office may require authority.
So in the case of a Writer to the Signet and other persons whose names
are entered on a register. But there is
nothing to prevent a private individual from changing his name."
Lord McLaren stated on the same page:
"I am of the same opinion. It is in accordance with practice that
authority may be given to use a new name when the application is by someone who
has been admitted to his profession by the court. If so, where the name is entered on a roll to
which the authority of the court is given, or which is under the control of the
court, it may be necessary to present an application for authority to change
the name in order that the roll may be kept in order. But that rule does not apply to a professional
accountant, and I am unable to see that any real difficulty arises from the
fact that this gentleman has obtained executive appointments from the court."
Lord Kinnear concurred with his two brethren.
[32] Lyon's refusal to recognise
officially the petitioner's change of name had undermined the petitioner's
legal right to change his name. The
petitioner had been denied official recognition of the name of his choice and
therefore could not maintain the accuracy of the link between his identity and
his coat of arms for other purposes. The
petitioner had been unable to change his name on his passport, credit cards,
bank account and driving licence. This
was a practical impediment. The
petitioner moved in social circles where interest was taken in matters of this
sort. He was a member of the Heraldry
Society of Scotland and the Society of Scottish Armigers, but had not been
permitted to design himself "of Ardgowan", presumably because Lyon had refused to recognise
him in that title. When a person in
right of arms took a new name, or perhaps more accurately added to an existing
one, he required to ensure that an accurate link was maintained between his new
name and his arms. An official
recognition fulfilled that purpose and also provided the individual with proof
of the fact that his name had been changed.
The petitioner sought a docquet in the entry in the register as evidence
of the fact of his change of name.
[33] Lyon's
position was that, in order that a person qualified for a territorial
designation, there had to be a territorial nexus between him and the land, and
if he granted a docquet recognising the petitioner's change of name that would
give rise to a misrepresentation that there was a real nexus between the
petitioner and the land in question. Such
a view was misconceived, for the following reasons. First, it could not be reconciled with the
fundamental rule of Scots law already mentioned, and which Lyon accepted, that a person may
call himself by whatever name he chose. If
the name on the register was not that by which the individual was already
known, it was the register itself which produced a misrepresentation as it was
not an accurate reflection of the name of the individual.
[34] Secondly,
a territorial designation may well, and in the majority of cases probably did,
signify a nexus between the individual and the land in question, but need not
do so. A territorial nexus could not
therefore be insisted upon as a pre-requisite in every case for the "valid"
adoption and use of a territorial designation.
Many territorial surnames had been retained by Scottish families long
after their landed estate had been sold or otherwise disposed of. The "attainder" cases supported this
proposition. In Forbes of Pitsligo (1749) Mor 4155 Alexander Lord Forbes of
Pitsligo was attainted by the name of Alexander Lord Pitsligo. He claimed his estate as not forfeited, he
not having been designed by his true name and title. The Court of Session sustained his claim, but
the House of Lords reversed the judgment, as it was proved that he was commonly
known by the title of Lord Pitsligo. In Macpherson of Cluny (1749) Mor 4160 an
attainder by description from an estate of which the person was apparent heir
was sustained. In Cameron of Lochiel (1749) Mor 4161 Donald Cameron was designed in
the act of attainder younger of
Lochiel, his father being alive, although as the estate belonged to himself, he
ought not to have been designed younger. It was held that he had been properly
described. In such cases the use of a
territorial designation did not imply a nexus as the nexus had gone, but the
designation continued to be used as there was a historical basis for it. The use of territorial designations was
"admitted officially where used not merely as descriptions of ownership but
actually as names" (Green's Encyclopaedia,
Vol X, p143, para 301) It was the
ordinary usage of the name, not the ownership of land or the territorial nexus,
which was crucial. The petitioner did
not need to qualify a territorial nexus, still less ownership, of a significant
piece of land.
[35] Thirdly,
if a territorial nexus was required to qualify a title, it was in any event
satisfied. The 2000 Act received the
royal assent on 9 June 2000. The appointed day was 28 November 2004. At the time
the petition was presented to Lyon there was therefore a territorial nexus. There was a very limited discretion on the
part of Lyon. Even a bare
superiority before 28 November 2004 qualified as land: Cowan, Petitioner 1966 SLT (Lyon Ct) 2. Accordingly, at the time the petitioner
presented his petition seeking to be officially recognised by Lyon in his chosen name and
territorial designation he was infeft in lands.
The disposition of the barony was for no value so as not to trigger a
first registration in the Land Register and payment was made pursuant to a
separate contract, a significant sum of money having changed hands.
[36] The
submission for the petitioner on discretion could be summarised as follows:
(i)
Lyon had no jurisdiction, in the exercise of his ministerial or
administrative functions in relation to changes of name, to refuse official
recognition of the petitioner's adoption of a territorial designation.
(ii)
In Scots Law a person was entitled to take any name of his
own choosing and that name could include a territorial designation.
(iii)
For practical reasons certain formalities had to be observed
by a person who took a new name.
(iv)
In relation to a person in right of arms, Lyon performed the function of
recognising officially the chosen name, thereby creating the necessary link
between the name and the grant of arms. Lyon's function was a purely
formal and evidentiary one.
(v)
Lyon therefore had no right to refuse to recognise a name by
which a person in right of arms was ordinarily known by reason of his failing,
in Lyon's opinion, to qualify title
in the sense of a territorial nexus to the name taken.
(vi)
If a territorial nexus was a pre-requisite for the
recognition by Lyon of the territorial designation of an armigerous person then
the petitioner was able to designate such a nexus at the time of the
presentation of his petition to Lyon.
(ii) Submission for Lyon
[37] The
principal proposition advanced on behalf of Lyon was that the petitioner had
no right to require Lyon to register arms under a particular name. The 1672 Act enabled Lyon to grant arms to "virtuous
and well-deserving persons". Lyon could refuse to register
arms under a particular territorial designation if it was not a proper
territorial designation or was liable to cause confusion. He could refuse to register a particular name
if he thought it would bring heraldry into disrepute to do so. He could, for example, refuse to register
arms under the name "Screaming Lord Sutch".
No one had the right to arms, and no one could insist upon a territorial
designation in the warrant which Lyon issued. Lyon was entitled to say that a
person was not virtuous if he used a territorial designation in his name but
had no substantial connection with the land in question. The present case was not about changes of
names, but about an application for a variation in the terms of a grant of arms. Lyon was entitled to refuse such an application where only
a superiority was held. Lyon's decision had to be shown
to be outrageous and in defiance of logic (CCSU
case at p 410 per Lord Diplock) before the court would be entitled to
interfere with it.
[38] The use
of a territorial designation had historically arisen from occupation of lands. Green's
Encyclopaedia, Vol 10, p 142, para 300 stated:
"The territorial designation
so frequently used by representatives of Scots 'Houses', their wives, heirs and
daughters (and apart from ownership of the estate) originated - like the
principal surname - from possession of land, but is really a form of the bun sloinn or genealogical surname. The secondary designation was already
recognised, like a peerage nomen
dignitatis, as 'part of the name' in the fifteenth century, and was so
regarded by the Crown in the sixteenth and seventeenth centuries. The statute 1672 c 47 did not, as sometimes
supposed, institute or authorise these territorial titles, but recognised their
existence as a 'form of title', and prescribed a specific signature, viz, the
Christian name and surname with the territorial designation of the lands
'adjected', prefixing the word 'of' to the said 'designation'. The contemporary view, shewn by the earlier
entails, was that a surname with designation so adjected constituted one name. Later entails usually specify 'name and
designation' or 'name and title'. The
Lord Advocate in the eighteenth century adhered to the view that 'where
ordinarily used' they are simply 'names', and that if a person is attainted by
the name 'John Cameron of Lochiel' he must be pardoned by a name consisting of
these same words, and the Court sustained this."
[39] The use
of a territorial designation therefore required a substantial nexus with the
lands other than a superiority. Superiorities
had now been abolished by the 2000 Act. There
was a risk of confusion between the holder of the dominium utile and the holder of the superiority. It was reasonable of Lyon to recognise a territorial
designation only where there was ownership of a significant piece of land,
rather than a bare superiority. The
terms of the petitioner's title demonstrated that the disponer was reserving to
himself the lands and Estate of Ardgowan.
Nothing in the Act required Lyon to recognise a territorial designation. It could not be said that Lyon had exercised his
discretion unreasonably by refusing to register the applicant's arms under his
territorial designation.
(iii) Discussion and
conclusion
[40] The
burden of the submission for the petitioner was that Lyon's jurisdiction was not to
grant authority to a person to change his name, but only to recognise a name
which the person had already chosen. Further,
Lyon had only a limited
discretion to refuse to recognise a change of name, and that was where the
change was a capricious one in the case of a non-armigerous person. Examples which were given were of an obscene,
offensive or racist name. Lyon's position was that he
could refuse to accept a change of name to a territorial designation if the
person had no substantial nexus with the lands in question.
[41] It is,
in my opinion, clear that by the law of Scotland a person may call himself
by whatever name he chooses. Whether
this is a satisfactory state of affairs is another matter and not one for me to
determine. A person does not require the
authority of a court or any other public official in order to change his name. The function of Lyon in relation to changes of
names is to give official recognition to a name which has already been changed,
not to authorise the change of name itself.
It was conceded that in the exercise of this jurisdiction Lyon had a discretion to refuse
to recognise a change of name, but it was submitted that the discretion was a
limited one which extended only to refusing to recognise name which were
capricious in the case of non-armigerous persons. The reason which Lyon has given for refusing
to recognise the petitioner's change of name is that he did not recognise a
territorial designation where there was no substantial nexus between the
applicant and the lands in question, and that a bare superiority did not, since
the abolition of superiorities under the 2000 Act, constitute the required
substantial nexus.
[42] If, as
I accept, a person is entitled to call himself by whatever name he chooses, and
the jurisdiction of Lyon is limited to giving official recognition to change of
name which has already taken place, as opposed to authorising a change of name
in advance of the name being changed, it seems to me that (apart from a limited
discretion in the case of capricious names) Lyon has no jurisdiction to impose
a restriction on a change of name which he has been asked to recognise. In particular, he has no power to require, in
the case of a territorial designation, that there be a substantial nexus
between the applicant and the lands in question ( a nexus which is not
satisfied by the ownership of a bare superiority). I can well understand why Lyon did not wish to recognise
the petitioner's change of name in this case.
It is obvious that Lyon felt that the petitioner was engaging in some kind of
ruse by purchasing a superiority in the knowledge that superiorities were about
to be abolished and that he therefore was not genuine in his assumption of a
territorial designation. Even if that be
so, in my opinion Lyon had no lawful power to refuse to recognise the new name
which the petitioner had taken and his refusal to recognise it cannot stand.
Human rights
(i) Submission for the petitioner
[43] The
submission for the petitioner was that Lyon was a public authority in terms of
section 6 of the Human Rights Act 1998 ("HRA") and that in matters of name and
change of name the petitioner's rights under article 8 of the Convention were
engaged. This therefore imposed on Lyon and on the court of review
an analytical framework within which the conformity of Lyon's decision with Convention
standards had to be tested.
Article 8 of the Convention provides as follows:
"1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others."
[44] Clayton and Tomlinson, The Law of Human
Rights, Vol 1, para 12.87 states:
"At the heart of private
life is the capacity of the individual to formulate a perception of himself and
to choose his personal identity. An
individual therefore has the right to choose his own name ..... Identity also involves the manner in which an
individual presents himself to the State and to others."
[45] In Burghartz v Switzerland (1994) EHRR 101 the European Court of Human Rights
stated at p115, para 24:
"Unlike some other
international instruments ..... Article 8
of the Convention does not contain any explicit provisions on names. As a means of personal identification and of
linking to a family, a person's name nonetheless concerns his or her private
and family life. The fact that society
and the State have an interest in regulating the use of names does not exclude
this, since these public law aspects are compatible with private life conceived
of as including, to certain degree, the right to establish and develop
relationships with other human beings, in professional or business contexts as
in others.
In the instant case the
applicant's retention of the surname by which, according to him, he has become
known in academic circles, may significantly affect his career. Article 8 therefore applies."
[46] In Stjerna v Finland (1994) 24 EHRR 195 the Court, referring to the above passage,
stated at p 214, para 37:
"The Court notes that
Article 8 does not contain any explicit reference to names. Nevertheless, since it constitutes a means of
personal identification and link to a family, an individual's name does concern
his or her private and family life. The
fact that there may exist a public interest in regulating the use of names is
not sufficient to remove the question of a person's name from the scope of
private and family life, which has been construed as including, to a certain
degree, the right to establish relationships with others."
[47] The
first step in the analysis was to establish that the decision complained of
involved an interference with or lack of respect for the protected right. In Burghartz
this did not require to be determined since the case was decided on the
basis of Article 14 read together with Article 8. In Stjerna
the majority of the Court held that the refusal of the Finnish authorities
to allow the applicant to take a new surname did not interfere with his rights
under Article 8. That was very much the
consequence of the width of the margin of appreciation which the majority of
the Court in Stjerna allowed to the
national authorities. At pages 214-5,
para 39 the Court stated:
"Despite the increased use
of personal identity numbers in Finland and in other Contracting
States, names retain a crucial role in the identification of people. Whilst therefore recognising that there may
exist genuine reasons prompting an individual to change his or her name, the
Court accepts that legal restrictions on such a possibility may be justified in
the public interest; for example, in order to ensure accurate population
registration or to safeguard the means of personal identification and of
linking the bearers of a given name to a family.
In this connection it is to
be noted that in a number of Contracting States a request to change one's name
must be supported by convincing or specific reasons, whereas in other States
any reasons may be invoked and in one State there are in principle no
restrictions. There is little common
ground between the domestic systems of the Convention countries as to the
conditions on which a change of name may be legally effected. The Court deduces that in the particular
sphere under consideration the Contracting States enjoy a wide margin of
appreciation. The Court's task is not to
substitute itself for the competent Finnish authorities in determining the most
appropriate policy for regulating changes of name in Finland, but rather to review under
the Convention the decisions that those authorities have taken in the exercise
of their power of appreciation."
[48] The
margin of appreciation doctrine represented the natural deference of a
supranational court to national authorities, which "by reason of their direct
and continuous contact with the vital forces of their countries ... are in
principle better placed than an international court to evaluate local needs and
conditions" (Buckley v United Kingdom (1996) 23 EHRR 101 at p
129, para 75). The margin of appreciation
accorded to national authorities was all the more generous where, as in the
cases of changes of names, State practice was so variable. A national court of review was not remote
from local needs, conditions and traditions in the same way as the European
Court of Human Rights was. The question
of variable State practice did not arise here: in this jurisdiction one was
entitled to take whatever name one chose.
The Court of Session was therefore entitled to examine far more closely
than the European Court of Human Rights whether the decision complained of
struck a fair balance between the rights of the petitioner under Article 8 and
the competing interests (if any) of the wider community.
[49] The
petitioner submitted that Lyon's decision in the matter of the official recognition
of the adoption of a territorial designation by him represented an interference
with his rights under Article 8. A
person was in principle free under domestic law to adopt a name of his own
choosing. By withholding official
recognition of the petitioner's chosen name Lyon had undermined that
freedom, particularly where it had been the practice of Lyons to recognise officially
territorial designations arising from superiorities alone (Cowan, Petitioner, supra; Lashbrooke,
Petitioner 2004 SLT (Lyon Ct) 9). It was no answer to the petitioner's
complaint that, since he could call himself what he wished, he would suffer no
prejudice by reason of Lyon's refusal to grant official recognition of his chosen name. The European Court of Human rights had
rejected precisely that argument in Burghartz
at para 28. Although the choice of a
name was for the individual, inevitably there would be a degree of formality
attendant upon the change in order to provide a link between the former name
and the new name. In the absence of such
a formality the individual may be unable to alter his "official" identity as
entered on documents such as passports, and this may carry over equally into
the private sphere. In the present case,
for lack of "official" proof of his chosen identity, the petitioner had been
unable to make use of the name he had adopted and by which he wished to be
known in his dealings with private authorities and public organisations alike.
[50] As
against that, the petitioner submitted that it was difficult to see what
countervailing public interest might outweigh his rights. There was no question of fraudulent use of a
new identity by the petitioner. There
was no suggestion that his adopted name and territorial designation was simply
frivolous. He therefore submitted that
the decision complained of amounted to an interference with his Article 8
rights.
[51] If a prima facie interference with a
Convention right were established, the question then arose whether the
interference was justified under Article 8(2).
That in turn raised the two questions whether the interference was (a)
in accordance with the law; and (b) necessary in a democratic society in the
sense that it pursued a pressing social need consistent with the principle of
proportionality. The requirement that
the interference be "in accordance with the law" broke down into the following
three sub-requirements: (a) whether the interference had some basis in domestic
law; (b) whether the asserted legal basis was adequately accessible; and (c)
whether the asserted legal basis was formulated so that it was sufficiently
foreseeable (Clayton and Tomlinson, op cit at para 6.129; Sunday Times v United Kingdom
(1979) 2 EHRR 245; and Silver v United Kingdom (1983) 5 EHRR 347. The petitioner accepted that the interference
had a basis in domestic law, in the sense that it involved an exercise by the
Lord Lyon of his administrative or ministerial powers, which derived from the
royal prerogative, but he submitted that the law in this respect failed to
satisfy the requirements of accessibility and foreseeability. The requirement of accessibility meant that
"the citizen must have an indication which is adequate in the circumstances of
the legal rules which are applicable to the given case": the Sunday Times case at para 49. In the present case the publicly available
evidence of the legal rules applicable to the recognition of territorial
designations (in the form of reported decisions of the Lyon Court and entries
in the Register of the Lyon Court) was all
one way but Lyon had reached a decision against the petitioner which was entirely contrary to that evidence. Lyon had given no notice of a change of approach from that followed by his
predecessor in Cowan, Petitioner and
by himself in Lashbrooke, Petitioner.
So far as foreseeability was concerned,
"a norm cannot be regulated as the law unless it is formulated with sufficient
precision to enable the citizen to regulate his conduct: he must be able - if
need be with appropriate advice - to foresee, to a degree that is reasonable in
the circumstances, the consequences that a given action will entail." (Sunday Times case at para 49.)
Accordingly, "a law which confers a discretion must indicate the scope of that
discretion." (Silver at para
33.)
[52] The
petitioner submitted that the twin requirements of foreseeability and
accessibility sought to prevent exercises of discretion which were arbitrary in
the sense that they could not reasonably have been anticipated. The petitioner had acquired title to land
which he believed, advisedly and with reason, entitled him to adopt a
territorial designation. Having adopted
his territorial designation, he could have had no reason to believe that Lyon would deny him official
recognition of his new identity. Lyon had stated that he was not
bound by a decision of a predecessor. Even
if this would have been an accurate statement in the past, it now had to be
reconciled with the more exacting standards laid on public authorities by the
HRA and the Convention rights themselves.
Moreover, the decision complained of did not answer a "pressing social
need" as required by article 8(2) and was not proportionate to the pursuit of a
legitimate aim so as to satisfy the test of necessity. The requirement of proportionality denoted
the striking of a fair balance between the Convention rights of the individual,
on the one hand, and the wider interests of the community on the other. The respondent had failed to strike that
balance. There was no evidence, on
examination of the correspondence produced, that the petitioner's Convention
rights ever crossed Lyon's mind. There was no
evidence of any balance, still less a fair one, being struck in accordance with
the more rigorous analytical framework that respect for the Convention rights
involved. Accordingly, the decision
complained of represented an interference by Lyon with the petitioner's
rights under Article 8 of the Convention and, in as much as that interference
could not be shown to be in accordance with the law or necessary in a
democratic society, the Convention rights of the petitioner had been unlawfully
infringed.
[53] Lyon's position was that this
was a short point involving a balancing exercise which he had undertaken: it
was said his decision was made to avoid confusion, preserve the integrity of
heraldry and not allow the heraldic register to be brought into disrepute. That was not sufficient to pass muster under
the Convention. Much of what was relied
on by way of countervailing public interest was really mere assertion, but
there required to be more than assertion.
Lyon's decision letter did not mention any of these factors.
[54] The
necessary steps had not been taken by Lyon to consider the petitioner's article 8 rights. The first question was whether there had been
an interference with the petitioner's article 8 rights. The answer to that question was that there
had been. The petitioner's right to
adopt an identity of his own choosing had been interfered with because in the
absence of its official recognition the petitioner was being disabled in the
exercise of that right (Burghertz v Switzerland (1994) 18 EHRR 101).
[55] It was
no answer to say that there was no prejudice to the petitioner because he could
call himself whatever he wished. Recognition
of a change of name by some public authority other than Lyon would not be sufficient for
an armigerous person. The second
question was, what countervailing public interest could outweigh the
petitioner's rights in this respect? The
answer to that question was that in the circumstances of this case it was
difficult to see that there were any. There
was no suggestion of bad faith or fraud on the part of the petitioner. The third question was whether the
interference with the petitioner's article 8 rights was justified. In this case there had been arbitrariness in
the decision making. It was very
difficult for Lyon to sustain his position that he was not bound by decisions
of his predecessors or his own previous decisions. In this case the publicly available rules all
pointed one way. In the 1920s Lyon had accepted that people
adopted territorial designations as part of their names. The petitioner's expectation was that he was
entitled to what he was asking for. There
was no reported decision against the petitioner. It was understood that the previous Lyon was in the habit of
recognising territorial surnames and invited submissions in the case of Cowan to clarify the position. There could be a reason for the change of
policy. There was no evidence that the
petitioner's article 8 rights had ever crossed Lyon's mind and he had failed to
show that he had struck a fair balance in reaching his decision.
(ii) Submission for Lyon
[56] The
submission for Lyon was that there had been no infringement by him of the
petitioner's Article 8 rights because he had carried out the balancing exercise
required. Article 8 did not provide a
guarantee to private and family life, only a right to respect for it. Lyon respected the right of the petitioner to
use whatever territorial designation he wished, but he was not prepared to
register the petitioner's arms in that name.
There had been no interference with petitioner's rights under Article
8(2), which provided a margin of appreciation.
Lyon had considered that the petitioner did not own the lands in
question, that superiorities had been abolished and that he could now not be
sure which of two competing applicants would be entitled to a superiority. He had acted in accordance with law. The prejudice which the petitioner claimed
was his inability to obtain recognition of his territorial designation from the
Heraldry Society of Scotland and the Society of Scottish armigers, but these
were both private clubs and the court should be slow to hold that the
petitioner had suffered prejudice because private clubs would not accept his
territorial designation.
(iii) Discussion and conclusion
[57] No
mention was made by either the petitioner or Lyon at the time when the
application was made or considered of the petitioner's rights under Article 8
of the Convention. I doubt if these
rights were at the material time in the mind of the petitioner or of his legal
representatives as the challenge to Lyon's decision based on Article 8 of the Convention was
not included in the petition as originally drafted and was added only by way of
adjustment. If Article 8 was in the mind
of the applicant or his legal representatives at the time of his application to
Lyon it is difficult to
understand why no reference was made to Article 8 of the Convention. It was submitted on behalf of Lyon that he
had carried out the necessary balancing exercise under Article 8, but I fail to
see how this can be so. Nothing in the
materials presented to me indicates that Lyon even gave a thought to
Article 8 of the Convention. He made no
reference to it at any point. A
Convention right cannot be considered subconsciously by a decision maker. I cannot accept that Lyon took into account the
petitioner's human right to respect for his private and family life and
thereafter carried out the necessary balancing exercise when he refused to
recognise the petitioner's change of name.
That being so, Lyon's decision must be considered to be flawed on this ground
also.
Legitimate
Expectation
(i) Submission for the petitioner
[58] It was
submitted for the petitioner that, if Lyon had a discretion in relation to the official
recognition of names, he had exercised that discretion unreasonably and
unfairly in so far as the petitioner had a legitimate expectation that Lyon would officially recognise
his chosen name. The current state of
the law on legitimate expectation was summarised by Lightman J in Rowland v Environment Agency [2003] Ch 581 at p 610D to p 612 E, paras 68 and
69, as follows:
"68 By a representation, a term which embraces a regular practice
and a course of dealing, a public body does not give rise to an estoppel but
may create an expectation in another, 'the citizen', from which it would be an
abuse of power to resile: R (Reprotech
(Pebsham) Ltd) v East Sussex County
Council [2003] 1 WLR 348. The
principle of good administration prima facie requires adherence by public
authorities to their promises. Whether
it does so require must be determined in light of all the circumstances. The public body can only be bound by acts and
statements of its employees and agents if and to the extent that they had
actual or ostensible authority to bind the public body by their acts and
statements: South Bucks District Council v
Flanagan [2202] 1 WLR 2601, 2607,
para 18, per Keene LJ. The relevant
representation must be unequivocal and lack any relevant qualification: see R v
Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545. The citizen must place all his cards on the
table, making full disclosure and his expectation must be objectively
reasonable: R v Secretary of State for Education and Employment EX p Begbie [2000] 1 WLR 1115, per Peter Gibson LJ, at p 1124, and Laws LJ, at p 1130. The expectation may be substantive or procedural
and the categories of legitimate expectation are not closed: Begbie's case. Where the expectation relates to matters of
substantive law as to which both parties are ignorant or in error, it is
relevant both to reasonableness and fairness that the citizen had access to
legal advice had he wanted to take it: see Henry
Boot Homes Ltd v Bassetlaw District
Council [2002] EWCA Civ 983 at [58].
Once the claimant has established the legitimate expectation he must
show that it would be unfair of the public body to resile from giving effect to
the legitimate expectation. Lord Woolf
MR in R v North and East Devon Health Authority Ex p Coughlan [2001] QB 213,
241-242,paras 57-58 identified three kinds of unfairness, namely: (1)
unfairness consisting in an irrational, in a Wednesbury sense (Associated
Provincial Picture Houses Ltd v
Wednesbury Corpn [1948] 1 KB 223), failure by a public body to take its
representations into account, together with the legitimate expectation to which
it may have given rise, before resiling from the representation; (2) unfairness
consisting in a procedurally unfair failure by a public body to afford the
citizen affected by its decision to resile from its expectation an opportunity
for consultation; and (3) unfairness consisting in a failure by a public body
to give effect to a substantive benefit which is the subject matter of a
legitimate expectation in circumstances where there is no overriding interest
which would justify the public body in resiling from its expectation that such
a benefit would be forthcoming. Where
the court is satisfied that the public body made the representation by mistake,
the court should be slow to fix the public body permanently with the
consequences of that mistake: see Begbie's
case [2001] 1 WLR 1115, per Peter Gibson LJ at p1127, and Sedley LJ at p
1133. In such a situation the court must
be alive to the possibility of such unfairness to the individual as to amount
to an abuse of power. The court must
also consider whether and how far, going beyond the immediate parties, the
wider interests of the public may be affected by giving effect to the
expectation, for the wider interests may require that the public body resiles
in order to properly to protect those wider interests. In such a case the issue of fairness requires
the public body to act fairly in accordance with the first of the three
categories in Coughlan's case [2001] QB 213.balancing in the public interest the irreconcilable interests and
conflicting desiderata: see Begbie's case
[2000] 1 WLR 1115, 1130-1131, Laws LJ in R
(Bibi) v Newham London Borough
Council [2002] 1WLR 237, 247-8, paras 34-39 and Henry Boot Homes Ltd v
Bassetlaw District Council [2002] EWHC (Admin) 546; [2002] EWCA Civ 983;
the Times 16 December 2002. At the end
of the day the court must decide whether having regard to all the circumstances
including the reliance by the citizen, the impact on the interests of the
citizen and the public and considerations of proportionality for the public
body to resile would in all the circumstances and applying the criteria
referred to be so unfair as to constitute an abuse of power.
69 English domestic law imposes a constraint upon the
applicability of the doctrine of legitimate expectation. For an expectation to be legitimate the party
seeking to invoke it must show, amongst other things, "that it lay within the
powers of the ... authority both to make
the representation and to fulfil it": per Schiemann LJ in R (Bibi) v Newham London
Borough Council [2002] 1 WLR 237, 249, para 46. A legitimate expectation can only arise on
the basis of a lawful promise or practice: per Gibson LJ in R v Secretary of State for Education and
Employment Ex p Begbie [2000] 1 WLR 1115, 1125. If the expectation relates to the exercise of
a lawful discretion, e g to admit late claims, such an expectation may bind the
public body to exercise its discretion in accordance with that expectation: see
R v Inland Revenue Comrs Ex p Unilever plc [1996] STC 681. But under English domestic law there can be
no legitimate expectation that a public body will confer a substantive benefit
or extinguish an obligation when it has no power to do so. This rule of law has been subject to
sustained academic criticism as conducive to injustice: see e g Craig, Administrative Law, 4th
Ed (1999), p 642 and Morgan & Hogan,
Administrative Law in Ireland, 2nd Ed (1991),
p 863. But it remains the law."
[59] The
petitioner therefore submitted that it was uncontroversial that a regular or
consistent practice might give rise to a legitimate expectation from which it
would be an abuse of power for the public authority to resile. It was suggested by Lyon that the petitioner was
attempting to base a legitimate expectation on nothing more than two reported
decisions of the Lyon Court. That was not the case. There had been a consistency of practice
sufficient to give rise to a legitimate expectation on the part of the
petitioner that he would be entitled to official recognition of a territorial
designation, notwithstanding that the designation was founded upon a
superiority, for the following four reasons.
First, in the case of Lashbrooke,
Petitioner (supra) Lyon accepted that a feudal barony founded on the superiority of
a small piece of land alone designated as the caput baroniae entitled the holder to official recognition of a
territorial designation. Secondly, Lyon's predecessor, Sir Malcolm
Innes of Edingight, had regularly recognised territorial designations that
derived from small areas of land to which the barony had been attached. Thirdly, it was recognised in Montgomerie of Southannan 1951 SLT (Lyon Ct) 3 that barony titles could
rest on "bare" superiorities. Fourthly,
one of the petitioners in the Cowan case,
Bartle Jones of Craigiebuckler, successfully petitioned for official recognition
of his territorial designation, notwithstanding the fact that his claim thereto
rested on a bare superiority alone.
[60] It was
sometimes said that the representation upon which an expectation was founded
must be "unequivocal and lack any relevant qualification" (R v Inland Revenue Comrs Ex Parte MFK Underwriting Agencies Ltd [1990] 1 WLR 1545), but in the appeal in Rowland
v Environment Agency [2005] Ch 1 Peter Gibson LJ said at p 28H, para 68:
"It is not always a
condition for a legitimate expectation to arise that there should be a clear,
unambiguous and unqualified representation by the public authority: the test is
whether the public authority has acted so unfairly that its conduct amounts to
an abuse of power."
In any event, the petitioner submitted that the
representation on which his expectation was founded was unequivocal in the
sense described in MFK Underwriting
Agents.
[61] A
legitimate expectation could be substantive or procedural and the categories of
legitimate expectation were not closed (Rowland). The expectation in the present case was
of a particular outcome, namely, that Lyon would officially recognise the petitioner's
designation. It was accordingly
substantive in nature.
[62] If the
petitioner established the existence of a legitimate expectation he had then to
show that it would be unfair of Lyon to resile from giving effect to it (Rowland). The issue was what fairness required in any
particular case. In Coughlan Lord Woolf MR (at para 57) identified at least three
possible outcomes:
"(a) The court may decide
that the public authority is only required to bear in mind its previous policy
or other representation, giving it the weight it thinks right, but no more,
before deciding whether to change course.
Here the court is confined to reviewing the decision on Wednesbury grounds ... (b) On the other
hand the court may decide that the promise or practice induces a legitimate
expectation of, for example, being consulted before a particular decision is
taken. Here it is uncontentious that the
court will require the opportunity for
consultation to be given unless there is an overwhelming reason to resile
from it ... in which case the court will itself judge the adequacy of the reason
advanced for the change of policy, taking into account what fairness requires. (c) Where the court considers that a lawful
promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply
procedural, authority now establishes that here too the court will in a proper
case decide whether to frustrate the expectation is so unfair that to take a
new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation
is established, the court will have the task of weighing the requirements of
fairness against any overriding interest relied upon for the change of policy."
The types of case which Lord Woolf envisaged as
falling into the third category were
"likely in the nature of
things to be cases where the expectation is confined to one person or a few
people, giving the promise or representation the character of a contract."
[63] The
petitioner did not suggest that Lyon's consistent practice in relation to recognition of
territorial designations in the past was to be regarded as equivalent to a
representation having, in effect, contractual force. Nevertheless, this was not to say that Lyon's consistent practice in
the past could not give rise to a "category three" legitimate expectation. Furthermore, even if the legitimate expectation
in the present case did not fall squarely within Lord Woolf's third category,
it nevertheless fell somewhere between the first category and the third. The boundaries between those categories were
not sealed (Begbie at 1129-1130, per
Laws LJ). In any particular case the
question for the court was therefore directed towards identifying the
appropriate standard of review in the circumstances of this case.
[64] It was
submitted that the relevant facts and circumstances in the present case were as
follows:
(a) The nature of the affected right / interest. A person's name was an aspect of his private
and family life, as enshrined in and protected by Article 8 of the European
Convention.
(b) The impact of the refusal to grant official recognition. In the absence of official recognition the
individual was in effect obliged to continue, for many very practical purposes,
under a former name which was not the name of his choosing. He had a right to take the name of his
choice, but was disabled in the free exercise of that right by Lyon's decision.
(c) Reliance by the petitioner. The
petitioner acquired a title on which his claim to a territorial designation is
founded in the belief that Lyon would adhere to the consistent practice of his
predecessors and reflected in his own decision in Lashbrooke (where, having initially refused recognition of a
territorial designation derived from a superiority, reconsidered his decision
and recognised a territorial designation based on a superiority alone after
hearing submissions). There was nothing
to put a person such as the petitioner on notice that Lyon intended to depart from
that policy and practice.
(d) Absence of countervailing public interest. It was difficult to conceive what wider
public interest was served by such an abrupt reversal of Lyon's consistent practice in
relation to territorial designations. There
was no evidence whatsoever to suggest that recognition of the petitioner's
territorial designation would expose the office of Lyon to vexatious claims.
(e) Proportionality / rationality. Even if the legitimate expectation in the
present case fell squarely within the scope of Lord Woolf's first category,
Lyon would still require to "bear in mind [Lyon's] previous policy, giving it
the weight [he] thinks right ... before deciding whether to change course",
subject to control by the court on the ground of Wednesbury unreasonableness.
In this case there was no evidence that Lyon attached any weight to consistent past practice. On the contrary, the position taken by Lyon appeared to be that he was
not bound by the decisions of his predecessors, or indeed by his own previous
decisions, and was therefore entitled to attach no weight to past practice at
all. That consideration alone would be
enough to vitiate his decision in the present case.
(f) In any event, it was
submitted that the present case was not one susceptible only to Wednesbury review. The Convention rights of the petitioner were
engaged. Lyon was a public authority
(whether acting in an administrative capacity, as here, or judicially) and was
obliged by section 6 of the Human Rights Act 1998 to exercise his
functions in a manner compatible with the Convention rights. That in itself called for a stricter standard
of scrutiny by the court.
[65] In
these circumstances it was submitted for the petitioner that he had a
legitimate expectation of official recognition of his territorial designation. If that were accepted, the court was entitled
to enquire into the fairness and reasonableness of Lyon's denial of that
substantive benefit. Lyon's approach would not
withstand that enquiry. No advance
notice was given of Lyon's intention to change the policy relating to official
recognition of territorial designations.
No weight was attached to consistent past practice of the office of Lyon. It did not appear even to have been
acknowledged that this consistent practice might have had the effect of
generating a legitimate expectation. Lyon did not point to any
compelling public interest consideration which might justify the denial of the
petitioner's legitimate expectation. At
the same time Lyon had failed to acknowledge the right of the petitioner in
relation to the adoption by him of a personal identity of his choosing. For all these reasons, and having regard to the
approach expounded by the Master of the Rolls in Coughlan and developed in subsequent cases, including Begbie and Rowland, it was submitted that Lyon's decision could not be
supported and should be reduced.
(iii) Submission for Lyon
[66] It was
submitted for Lyon that the petitioner had no legitimate expectation that Lyon would register his arms in
the name in which he (the petitioner) wished.
Prior to 1988 no one had been granted a territorial designation based
upon a superiority alone. Those who did
not apply for a territorial designation had taken that decision in the
knowledge that they would not be granted matriculation based on a superiority
alone. The material presented to the
court did not establish a regular practice on the part of Lyon in relation to territorial
designations based on superiorities alone.
Lyon Innes of Learney had granted seven territorial designations (see Cowan of Blackburn, Petitioner 1996 SLT
Lyon Ct) 20 and the present Lyon had granted four, of which the last was Lashbrooke, Petitioner 2004 SLT (Lyon
Ct) 9. There was therefore no settled or
regular practice which could have been relied upon by the petitioner. The petitioner could not reasonably have
expected any such regular practice to have continued after the 2000 Act came
into force.
(iii) Discussion and conclusion
[67] It
seems to me that the petitioner was able to point to, and found upon, a regular
practice by two different Lyons to recognise a territorial designation on the
basis of ownership of a bare superiority alone, such as to give rise to a
legitimate expectation on the part of the petitioner that his application would
be granted in the same way that previous similar applications had been granted. It was submitted for Lyon that the petitioner could
not reasonably have expected any such regular practice to have continued after
the coming into force of the 2000 Act. It
may be that the coming into force of that Act, which abolished superiorities as
a form of landholding, brought about a change of circumstances which Lyon was entitled to take into
account and that any legitimate expectation on the part of the petitioner could
not be said to have continued after the 2000 Act came into force. The difficulty for Lyon so far as that point
is concerned is that no mention was made by him in the reason given for his
decision that he was departing from the approach in the two reported cases
because the 2000 Act had come into force.
I doubt if he could properly have said that because in one of the
petitions heard along with the present one (Ayre of Kilmarnock) he reached the
same decision before the Act came into force.
There is therefore no indication that at the time he reached his
decision in this application the coming into force of the 2000 Act figured in
his decision-making process. In my
opinion, accordingly, this ground of challenge has been made out by the
petitioner.
Reasons for Lyon's decision
(i) Submission for the petitioner
[68] It was
submitted for the petitioner that even if it was still correct to say that
there was no general duty requiring public authorities to give reasons for
their administrative decisions, the courts had noted "the continuing momentum
in favour of transparency in decision-making" (Stefan v General Medical
Council [1999] 1 WLR 1293 per Lord Clyde at p1301A-B). In light of the considerations mentioned
above in the submission relating to legitimate expectation, Lyon was obliged to give reasons
for his decision in the present case. Where
reasons were required they had to be "proper, adequate and intelligible" in all
the circumstances of the case. They had
to be sufficient to disclose how the decision maker reached his conclusions on
the principal controversial issues (Stefan). In Wordie
Property Co Ltd v Secretary of State
for Scotland 1984 SLT 345, a planning case, Lord Emslie, in what was now a
well known passage, stated at p 348:
"... in order to comply with
the statutory duty imposed upon him the Secretary of state must give proper and
adequate reasons for his decision which deal with the substantial questions in
issue in an intelligible way. The
decision must, in short, leave the informed reader and the court in no real and
substantial doubt as to what the reasons for it were and what were the material
considerations taken into account in reaching it."
[69] In this
case the petitioner's complaint was not that that there was a simple failure to
give reasons. The criticisms of Lyon were twofold. First, the reasons given did not meet the
level of cogency which was required where there had been an unheralded
departure from previous practice and published decisions (R v Secretary of State for
Trade and Industry ex parte Lonrho plc [1989] 1 WLR 525 at pages 539H - 540B
per Lord Keith of Kinkel). Secondly, the
reasons given to the petitioner, taken together, disclosed a number of defects
in Lyon's decision-making processes. At one level the reasoning was internally
inconsistent (for example, Lyon explicitly stated that he "is not and never has been
bound by previous decisions of his or any of his predecessors" but on another
referred to his "policy not to grant a territorial designation to a feudal
baron where the barony is based on a superiority title"). At another level his reasoning made apparent
his failure to take account of a number of considerations relevant to his
determination (for example, the dimension of the petitioner's Convention rights
and legitimate expectation). Where
flawed and inadequate reasoning exposed deeper defects in a decision-making
process the court was entitled to intervene.
On this basis also Lyon's decision could not be supported and should be
reduced.
(ii) Submission for Lyon
[70] The
submission for Lyon was that he had provided sufficient reasons for his decision. The reasons did not require to amount to a
lengthy adumbration. In the Stefan case Lord Clyde, giving the
judgment of the Privy Council, stated at p 1304A:
"The extent and substance of
the reasons must depend upon the circumstances.
They need not be elaborate nor (sic)
lengthy. But they should be such as
to tell the parties in broad terms why the decision was reached. In many cases ... a very few sentences should
suffice to give such explanation as is appropriate to the particular situation. ... Their Lordships have observed that in
certain other appeals ... which have come before them succinct but adequate
reasons have been stated in the opinion."
Here Lyon told the petitioner the reason for the refusal of his
application. What more could Lyon have said? It was clear from the petition for judicial
review that the petitioner understood perfectly the basis on which the decision
had been taken by Lyon.
(iii) Discussion and conclusion
[71] It is
important to recall what the court is considering when it examines in a
judicial review process whether reasons have been given for a decision. What the court is considering is the
lawfulness of the decision. It is not
concerned with the question whether the reasons were good or bad in substance,
with whether they were acceptable to the petitioner, or even with whether they
were as full as the petitioner would have wished them to be. The court is concerned, to adapt the language
of Lord Clyde in the above passage from Stefan, solely with whether the reasons given were adequate to tell
the petitioner in broad terms why the decision was reached. In my opinion Lyon's letter of 21 January 2005 adequately explained to the
petitioner the reason for the decision and passed Lord President Emslie's test
in Wordie. The reason given, while it may not have been
to the liking of the petitioner, left him in no real and substantial doubt
about why his application had been refused and has enabled him to bring the
present application for judicial review which includes a specific challenge to
the reason which Lyon gave for refusing the application. Accordingly, I think that this ground of
challenge of Lyon's decision is not well-founded.
Decision
[72] For the
reasons given above the decision of Lyon dated 21 January 2005 falls to be reduced. Before pronouncing decree of reduction I
shall, as requested, appoint the case to call By Order on a date to be
afterwards fixed for submissions on whether any order in addition to reduction
should be pronounced.
