11
jurisdiction in the matter of change of surname: see the 2016 Devolved Functions Order just noted. In Scotland, persons may call themselves by any name, but if they wish a certificate regarding change of a surname they may apply to the Lord Lyon, who again, has a wide discretion in the matter: see Kerr at paragraphs 9–10.
The evolution of the Lord Lyon's practice and the wording for grants of letters patent
[20] The essential issue that divides the parties is whether paragraphs 4 and 5 of the Agreement were contractual (as the pursuer contends), and which gives rise to issues about the capacity of one Lord Lyon to bind his successor in such obligations, or whether they are no more than the articulation of Lyon Sellar's proposed policy or practice at the time made in the exercise of his ministerial discretion (as the defender contends), and which gives rise to issues about the width of that discretion and whether one Lord Lyon may permissibly fetter the discretion of a successor. In order better to understand parties' arguments about the nature of the ministerial power the Lord Lyon exercises, and which characterisation the defender supported by reference to examples of other earlier policies and their changes, it is helpful to set out the evolution of the Lord Lyon's practice in relation to the wording of grants of letters patent. While this narrative was not formally agreed by the parties, I did not understand Mr Lindsay QC, senior counsel for the pursuer, to dispute it. (In the following, I use "practice" or "policy" without prejudice to characterisation of the jurisdiction from which it flows.) Nor did I understand Mr Lindsay's final position to be to dispute that the exercise of the royal prerogative in the grant of arms involved a ministerial (as opposed to a judicial) jurisdiction.
