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- grant of arms is a matter for the Lord Lyon's discretion in the exercise of the royal prerogative assigned to him, it is not for any individual person such as the pursuer to purport to bind the Lord Lyon in any part of that process, nor for any holder of that office to purport to bind himself.
The consequence of the Lord Lyon not being a corporation sole
[40] In any event, insofar as the pursuer contended that the Agreement binds all holders of the office of Lord Lyon in perpetuity unless and until there is a material change of circumstances, Mr Mure submitted that that cannot be so, for the following reasons.
- 1. The Lord Lyon is not a corporation sole. There is no continuity in respect of contracts he enters into. While he is personally bound by any contract he enters into, as is the Monarch in respect of the exercise of the royal prerogative, one Lord Lyon cannot transmit liability to a successor in office. Accordingly, given the nature of the office, the personal appointment by the Monarch of each successive incumbent, and the applicable law just described above, the initials of parties' counsel acting in 2008 cannot have been intended to bind any future holder of the office to abide by the policy set out in paragraphs 4 and 5. No Lord Lyon possesses the power to bind himself, a fortiori to bind future holders of the office, as to the manner in which the prerogative powers conferred upon the office holder by the said Acts would in future be exercised. Those paragraphs are therefore invalid and unenforceable as being an unlawful fetter upon the Lord Lyon's wide statutory discretion in such matters.
