Judicial Review and the Grant of Peerages: An Analysis of [2020] ScotCS CSIH_39

Introduction

The case of [2020] ScotCS CSIH_39, involving Graham Nassau Gordon Senior-Milne's appeal against the Advocate General for Scotland, delves into the intricate relationship between feudal baronies, peerage recognition, and the scope of judicial review within Scottish law. The petitioner sought recognition as a Peer of Scotland based on his ownership of the Barony of Mordington, asserting that such recognition should entitle him to a seat in the House of Lords. The subsequent refusal of his petition and the legal challenges that followed illuminate the boundaries of legal rights related to peerage and the limitations of judicial oversight over royal honors.

Summary of the Judgment

Graham Nassau Gordon Senior-Milne petitioned the Queen in June 2016 to be recognized as a Peer of Scotland based on his ownership of the Scottish feudal barony, Barony of Mordington. Despite prior recognition by the Lord Lyon and the granting of arms, his petition was refused in December 2018 following advice from the Advocate General for Scotland. Seeking judicial review, the petitioner argued that the Advocate General acted unlawfully by denying him access to a court for his peerage claim. The Scottish Court of Session, however, dismissed the appeal, determining that the Advocate General's advice did not constitute a judicially reviewable decision and reaffirming that the grant of peerages by the sovereign is a discretionary act not subject to judicial oversight.

Analysis

Precedents Cited

The judgment extensively references several key precedents that underscore the non-justiciable nature of certain royal and ministerial decisions:

West v Secretary of State for Scotland, 1992 SC 385 - Defined the scope of the Court of Session's supervisory jurisdiction, emphasizing that judicial review is not a mechanism for appeals but a tool to prevent the abuse or excess of delegated powers.
R (Miller) v Prime Minister; Cherry v Advocate General for Scotland, 2019 SLT 1143 - Addressed the extent to which the Queen is bound by ministerial advice, particularly highlighting differences between substantive political decisions and mere legal advisement.
Council of Civil Service Unions v Minister for the Civil Service, [1985] AC 374 - Discussed the challenges involved in reviewing prerogative powers, with a specific exclusion for the grant of honors.
Black v The Advisory Counsel for the Order of Canada, 2012 FC 1234 - A Canadian case wherein the grant or withholding of honors was deemed non-justiciable, a principle echoed in the Scottish judgment.
X v United Kingdom, (Application 8208/78 (1978) 16 D & R 162) - Clarified that participation in the House of Lords via hereditary peerage does not constitute a 'civil right' under the European Convention on Human Rights.

Legal Reasoning

The court's legal reasoning centers on distinguishing between advisory roles and decision-making authority. It affirmed that the Advocate General's role was limited to providing legal advice rather than making binding decisions. Consequently, such advisory opinions fall outside the purview of judicial review, which is reserved for cases where a definitive decision has been made by a person or body exercising delegated authority.

Furthermore, the judgment emphasized the discretionary nature of royal honors, aligning with established legal doctrines that such honors are gifts of the sovereign and do not confer statutory rights or create legitimate expectations liable to legal enforcement. The court scrutinized the petitioner's arguments regarding historical acts and the Treaty of Union, ultimately finding them insufficient to establish a justiciable right to peerage based on contemporary legal frameworks.

Impact

This judgment reinforces the sanctity of the Crown's prerogative in awarding peerages, underscoring that such decisions remain insulated from judicial intervention. It clarifies that ownership of a feudal barony, even when recognized by heraldic authorities, does not equate to a hereditary peerage conferring legislative privileges like a seat in the House of Lords. Consequently, individuals cannot leverage historical or property-based titles to assert legal rights to legislative roles.

Additionally, the ruling delineates the boundaries of judicial review in the context of ministerial advice, setting a precedent that legal advisement without accompanying decision-making authority does not meet the threshold for judicial intervention. This has broader implications for cases where applicants seek to challenge ministerial or advisory actions that do not amount to definitive decisions.

Complex Concepts Simplified

Feudal Barony vs. Hereditary Peerage

A feudal barony in Scotland refers to a type of land tenure associated with historical land ownership and certain traditional rights. However, it does not inherently carry legislative privileges or confer a right to sit in Parliament. In contrast, a hereditary peerage is a noble title that historically granted the holder a seat in the House of Lords, part of the UK's legislative body. The key distinction lies in the legislative authority and recognition by the sovereign.

Judicial Review and Supervisory Jurisdiction

Judicial review is a legal process whereby courts oversee the legality of decisions made by public bodies to ensure they do not exceed their authority or violate legal principles. The supervisory jurisdiction refers to the Court of Session's power to regulate decisions made by persons or bodies with delegated authority, ensuring they act within their lawful boundaries.

Prerogative Powers

Prerogative powers are historic powers exercised by the Crown, now vested in government ministers. These include the authority to grant honors, conduct foreign affairs, and issue passports. While some prerogative actions are subject to judicial review, the discretionary nature of honor grants typically places them beyond judicial scrutiny, as they rely on subjective considerations rather than objective legal standards.

Conclusion

The court's decision in [2020] ScotCS CSIH_39 serves as a definitive affirmation that the grant of peerages remains a discretionary royal prerogative insulated from judicial review. By rejecting the petitioner's claims, the judgment clarifies that ownership of a feudal barony does not confer legislative privileges or rights to peerage within the modern Scottish and broader UK legal context. This reinforces the separation between traditional land-based titles and contemporary legislative roles, ensuring that the legislative bodies remain unaffected by historical property ordinances. Additionally, the case delineates the limits of judicial review concerning advisory roles, solidifying the principle that legal advice provided by ministers does not equate to actionable decisions subject to court intervention. Overall, the judgment upholds the established legal framework governing peerage and judicial oversight, maintaining the integrity of legislative processes and royal prerogatives.