Senior-Milne v Advocate General for Scotland

JurisdictionScotland
JudgeLord Clark
Judgment Date02 July 2020
Neutral Citation[2020] CSIH 39
Docket NumberNo 34
Date02 July 2020
CourtCourt of Session (Inner House)

[2020] CSIH 39

Extra Division

Lord Clark

No 34
Senior-Milne
and
Advocate General for Scotland
Cases referred to:

Black v Advisory Council for the Order of Canada 2012 FC 1234; (2012) 268 CRR (2d) 255; 420 FTR 79; [2012] FCJ No 1309 (QL)

Cherry and ors v Advocate General for Scotland sub nom R (on the application of Miller) v Prime Minister [2019] UKSC 41; 2020 SC (UKSC) 1; 2019 SLT 1143; 2019 SCLR 1028; [2020] AC 373; [2019] 3 WLR 589; [2019] 4 All ER 299 and [2019] CSIH 49; 2020 SC 13; 2019 SLT 1097; 2019 SCLR 986

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; [1984] 3 WLR 1174; [1984] 3 All ER 935; [1985] ICR 14; [1985] IRLR 28; 82 LSG 437; (1984) 128 SJ 837

Gray's Motion (Lord) [1999] UKHL 53; 2000 SC (HL) 46; 2000 SLT 1337; [2002] AC 124; [2000] 2 WLR 664

Oliphant v Oliphant (1633) Mor 10027

Spencer-Thomas of Buquhollie v Newell 1992 SLT 973

West v Secretary of State for Scotland 1992 SC 385; 1992 SLT 636; 1992 SCLR 504

Wightman v Advocate General for Scotland sub nom Wightman v Secretary of State for Exiting the European Union [2018] CSIH 18; 2018 SC 388; 2018 SLT 356; 2018 SCLR 588

X v Cumbria County Council sub nom Re Cumbria County Council (Children X, J, Y and L) [2016] CSIH 92; 2017 SC 451; 2017 SLT 34

X v UK (App no 8208/78) (1978) 16 D & R 162

Textbooks etc referred to:

Innes (of Learney), T, ‘Peerage and other dignities’ in Encyclopaedia of the Laws of Scotland (3rd Dunedin ed, W Green, Edinburgh, 1926–35), vol XI, para 410

Stair, JD, The Institutions of the Law of Scotland: Deduced from its originals, and collated with the civil, canon and feudal laws, and with the customs of neighbouring nations (2nd ed, A Anderson, Edinburgh, 1693), I, ii, 3.2

Administrative law — Judicial review — Advice by Advocate General for Scotland to sovereign in respect of recognition of a peerage — Whether legal advice susceptible to judicial review — Whether grant of honours susceptible to judicial review

Constitutional law — Parliament — House of Lords — Peerage of Scotland — Whether minor barony part of peerage and giving right to sit in Parliament in consequence

Graham Nassau Gordon Senior-Milne presented a petition under the judicial review procedure in the Court of Session, seeking to bring under judicial review the Advocate General for Scotland's advice to Her Majesty the Queen to take no further action in respect of his petition to be recognised as a peer of Scotland. The Lord Ordinary (Clark) ordered an oral hearing for the purpose of deciding whether to grant permission to proceed in terms of sec 27B of the Court of Session Act 1988 and r 58.7(1)(b) of the Act of Sederunt (Rules of the Court of Session 1994) 1994 (SI 1994/1443 (S 69)). On 22 May 2019, the hearing called before the Lord Ordinary who refused permission to proceed on that date. The petitioner appealed in terms of sec 27D(2) of the 1988 Act and RCS 58.10 to the Inner House.

The Court of Session Act 1988 (cap 36), sec 27B, provides, in part, “(1) No proceedings may be taken in respect of an application to the supervisory jurisdiction of the Court unless the Court has granted permission for the application to proceed. (2) Subject to subsection (3), the Court may grant permission under subsection (1) for an application to proceed only if it is satisfied that– … (b) the application has a real prospect of success.”

The petitioner was recognised as the Baron of Mordington by interlocutor of the Lord Lyon, dated 11 November 2004. The barony was a Scottish feudal barony, which had been acquired by the petitioner by the purchase of the land to which it attached from a previous proprietor. In June 2016, the petitioner submitted a petition to Her Majesty the Queen in which he claimed to be recognised as a peer of Scotland and sought to be entered as such on the Roll of the Peerage in respect of his ownership of the barony. On 4 December 2018, the Clerk of the Crown in Chancery wrote to the petitioner informing him that the respondent had advised that nothing further should be done in respect of his petition and that the Queen had accepted this advice.

The petitioner presented a petition for judicial review of the legal advice given to the Queen by the respondent in respect of his 2016 petition. The petitioner contented that feudal baronies had been recognised as peerages in the past and there was no basis for failing to recognise the Barony of Mordington as a peerage. The petitioner was asserting a legal right to sit as a peer and the Queen ought to have referred his claim to a court of law. Her refusal denied the petitioner access to a court. Following an oral hearing, the Lord Ordinary refused to grant permission to proceed with the petition on the basis that legal advice by the respondent to the Queen was not a matter that the court could properly review under its supervisory jurisdiction.

Held that: (1) there was a distinction between giving advice and making a decision, with the respondent merely having provided advice to the decision-maker, not binding upon that decision-maker who might or might not take account of it, and that, therefore, the matter was not capable of being judicially reviewed (paras 15–17); (2) the grant of honours was something within the gift of the sovereign with no legal rights involved, thus entirely discretionary in nature and not subject to judicial review or the petitioner's right of access to a court (paras 19–21); and appeal refused.

Observed that, in any event, there was a distinction between the barones majores, drawn from the hereditary peerage, and the barones minores who were landowners holding their land on barony titles, with barones minores not being part of the peerage and having no right to sit in Parliament in consequence of their barony title, with the possibility of sale of minor baronies also indicating that they conferred no right to sit in Parliament, and on that basis the petitioner's minor barony would not in any event confer any status either as a peer or as a member of the House of Lords (paras 30–33).

Cherry and ors v Advocate General for Scotland 2020 SC (UKSC) 1 considered and Black v Advisory Council for the Order of Canada(2012) 268 CRR (2d) 255followed.

The cause called before an Extra Division, comprising Lord Brodie, Lord Drummond Young and Lord Malcolm, for a hearing on the summar roll, on 12 December 2019.

At advising, on 2 July 2020, the opinion of the Court was delivered by Lord Drummond Young—

Opinion of the Court— [1] In June 2016 the petitioner submitted a petition to the Queen in which he claimed to be recognised as a peer of Scotland and to be entered as such on the Roll of the Peerage in respect of his ownership of a Scottish feudal barony, the Barony of Mordington. The petitioner was recognised as the Baron of Mordington by interlocutor of the Lord Lyon dated 11 November 2004, and was granted arms with baronial additaments on 30 October 2007. Although it is not the subject of any express averment, the petitioner accepts that he acquired the Barony of Mordington by purchase of the land to which it attaches from a previous proprietor. The essence of the petitioner's claim to be recognised as a peer of Scotland is that the owner of a feudal barony is entitled, at least in cases where certain historical conditions are satisfied, to recognition as holding that office and, in consequence, to a seat in the House of Lords. The petitioner further asserts that such a peerage is not subject to the provisions of the House of Lords Act 1999 (cap 34), which severely restricted the ability of hereditary peers to sit in that House.

[2] The petitioner's petition to the Queen was refused; he was notified of such refusal by a letter of 4 December 2018 from the Clerk of the Crown in Chancery. That letter stated:

‘I am writing in relation to your Petition to The Queen concerning the Barony of Mordington. As you know, Her Majesty referred your Petition to the Advocate General for Scotland for consideration and report. The Advocate General for Scotland has advised that nothing further should be done in respect of the present petition, and Her Majesty has accepted this advice.

I must therefore inform you that I cannot direct that your name be placed on the Roll of the Peerage and that no further action will be taken in respect of this matter.’

[3] The petitioner subsequently...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT