9
The Lord Lyon's administrative or ministerial jurisdiction
[17] The first jurisdiction is a ministerial or an administrative jurisdiction, in which the Lord Lyon has a wide discretion in exercising the prerogative powers delegated to him: see Stair Memorial Encyclopedia (Reissue) "Courts and Competency" at paragraph 276; Kerr v Advocate General for Scotland 2010 SC 1 (Ex Div) ("Kerr") at paragraphs 6–7 per Lord Marnoch (delivering the Opinion of the Court). New grants of arms are made pursuant to claims not of right but of grace; the petitioner has no inherent right to a grant. See section 1 of the 1672 Act, which provided that the Lord Lyon
"may give Armes to vertuous and well deserving Persones and Extracts of all Armes expressing the blasoning of the Arms undir his hand and seall of office."
Thus, in petitions of the type mentioned in paragraphs 4 and 5 of the Agreement, it is for the Lord Lyon to decide (i) whether he has jurisdiction to make a grant of arms to the petitioner; (ii) whether the petitioner is a "vertuous and well deserving person"; and, in the event that the Lord Lyon decides to exercise his discretion under the royal prerogative to make a grant of arms, (iii) what form they should take. (The foregoing is averred in the defender's averments, and admitted by the pursuer.) Such ministerial and administrative functions are reserved matters: see paragraphs 1 and 2 of Schedule 5 to the Scotland Act 1998 ("the Scotland Act"); Part 1 of Schedule B to the 1867 Act and The Lyon Court and Office Fees (Variation) (Reserved Functions) Order 2016 (SI 2016 No 1138, with Explanatory Memorandum). This has the potential to affect the question of who is more properly called as defender, if not the current Lord Lyon, as the appropriate representative of the Monarch. (This argument only emerged at debate.) So, for example, if the power exercised concerns a reserved matter, the proper defender would be the Advocate General for Scotland.
