47
terms of these paragraphs. This is entirely consistent with the "wide discretion", as it was described, he exercised in his ministerial functions. This may be tested by asking: could a person ever compel the Lord Lyon to exercise the royal prerogative and make a grant of arms to him (invoking the language of "if required" in paragraph 4 of the Agreement)? In light of the particular nature of the prerogative exercised, involving the recognition and grant of arms (and which parties are agreed is only ever a matter of grace (and not entitlement)), the answer to that question is clearly in the negative. It is difficult to figure the grounds of a stateable challenge, which would only be competent by way of judicial review, being made to a refusal by a Lord Lyon to grant new arms.
[85] Under reference to cases including Ayr at 87, York Corporation at 569 to 570 and R v Hammersmith and Fulham Borough Council ex p Beddowes [1987] AC 1050 at 164 to 1070, the defender argued that if paragraphs 4 and 5 of the Agreement had the meaning the pursuer contended for, these would constitute an unlawful fetter on the Lord Lyon's discretion. I note that at the heart of what was objectionable in those cases was a policy or agreement whose effect was that the public authority in question had disabled itself entirely from exercising the statutory power conferred, with the consequence that it necessarily frustrated pursuit of the statutory purposes for which the power had been conferred. In my view, paragraphs 4 and 5 are not of that character, in the sense that they are not premised on the Lord Lyon refraining from the exercise of the royal prerogative vested in him.
[86] It respectfully seems to me that the issue of any impermissible fetter of discretion arising in this case is subtly different. This is because of the qualities inherent in and unique to the royal prerogative power available to the Lord Lyon. The very particular character of the royal prerogative power that is exercised by the Lord Lyon as a matter of grace is, in my
