SLN Interview: A modernising Lord Lyon



Dr Joe Morrow
Dr Joe Morrow

Baktosch Gillan interviews the current Lord Lyon, Dr Joe Morrow, about the role of his ancient office in 21st century Scotland.

After a career at the forefront of the development of mental health law and practice in Scotland, Dr Joseph Morrow CBE, QC, LLD, is now on a mission to preserve Scotland’s ancient heraldic law. As Lord Lyon King of Arms, he is keen to ensure the country’s heraldic traditions are maintained and insists they will continue to play an important part in Scottish society.

A student of heraldry for more than 30 years, Dr Morrow was appointed Lord Lyon in 2014 following a period at the bar and more than a decade as a member of the tribunals judiciary.

The law, however, was not his first calling. “I studied theology at university and had a long-term commitment to the Scottish Episcopal Church. I worked in a number of parishes in working class areas of Dundee, but decided to follow a different path and return to university to study law,” he says, “to make a difference”.

Having completed his LLB and diploma at Dundee University, he trained at local firm Calders, under the tutelage of Mary Crighton. Upon qualification in 1995, he continued in private practice, but his ambition was to move into the mental health field.

“I remained with Calders for a time but my interest in law was in people law,” he says. “I was primarily interested in mental health but also the disability and equality agenda which was emerging in Scotland at the time.

“I was offered an opportunity to join the Angus Mental Health Association and set up what was essentially a legal advice service for people with mental illness. During my four years there I pioneered advice clinics in the hospitals. I would visit the old Sunnyside Hospital [near Montrose] to meet patients and help them access the support services they needed.

“It gave me the opportunity to practice law in a setting in which you could speak up for people that needed spoken for. It was very rewarding and I was very committed to my work.

“At the same time as I was working there I was appointed, in 1998, as one of Her Majesty’s Commissioners on Mental Welfare, and that lead me more deeply into the mental health and incapacity field.”

Dr Morrow became a member of Faculty in 2000 and took silk in 2015. It was during his time at the bar that tribunals work became the primary focus of his practice.

“I found the Faculty a very collegial organisation and it was very stimulating in terms of the amount of work that counsel would put into their cases,” he says. “It instilled in me the importance of being prepared, particularly when you were dealing with an individual – you are an advocate for their case.

“Nikki Stewart, now an Appeal Sheriff, was my devilmaster. I learned a great deal from her. She was a good teacher in terms of setting out the standards and behaviours that were expected of an advocate.”

Having served as a Mental Welfare Commissioner until 2006, in 2008 he was appointed to the Mental Health Tribunal for Scotland. He also served as a First-tier Tribunal Judge in the Immigration and Asylum Chamber between 2002 and 2013; and as President of the Additional Support Needs Tribunals for Scotland from 2010 to 2014 – all of which “very much involved helping people who were disadvantaged or needed to be spoken for”.

He continued as President of the Mental Health Tribunal until his retirement in 2019. However, his interest in Scottish ecclesiastical history remained strong, and the opportunity to apply for the part-time post of Lord Lyon was too good to pass up, although he wasn’t successful first time around.

“I always had a passion for heraldry, having been a member of heraldic organisations for some 30 years,” Dr Morrow says, “so when I got the opportunity to apply for the Lord Lyon post, it was an absolute must for me. I had applied twice before but it was only after my third time of applying that I was successful.”

The contrast between the work of Mental Health Tribunal and that of the Lord Lyon couldn’t be more different. “One is of course a very ancient and somewhat archaic part of Scots law while the MHT is a much more modern and continually evolving area of the law,” he says.

“The Office of Lord Lyon stems out of medieval times, but actually goes back further into the Celtic history of Scotland. Scotland and Spain are probably the only countries where a court of heraldry and genealogy still exists, but the Court of the Lord Lyon is the last of the heraldic courts that sits regularly,” Dr morrow explains.

The Lord Lyon, as the sole judge of the heraldic court in Scotland, has an administrative responsibility for the granting of new arms to individuals or organisations. The Public Register of All Arms and Bearings in Scotland, in which the Lyon Clerk records all Scotland’s coats of arms, was established by the Lyon King of Arms Act 1672. Section 1 of the 1672 Act provides 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”.

An application for a new grant of arms is made by petition to the Court of the Lord Lyon. Where the Lord Lyon decides, in the exercise of his discretion under the royal prerogative, to grant the petition, the determination is set out in a warrant authorising the Lyon Clerk to prepare Letters Patent – a formal title deed from the Crown issued to the petitioner – granting appropriate armorial bearings and to register the arms in the Public Register. In addition to confirming claims to existing arms and determining claims to chiefships of clans, the Lord Lyon also registers and records new clan tartans.

Dr Morrow draws parallels between the centuries-old procedure for granting arms to the modern day registering of intellectual property rights, and stresses that it continues to serve an important and valuable purpose.

“The comparison of a coat of arms to a trade mark is often made. Long before we had a developed system of intellectual property, in many ways the recording of arms into the public registers in 17th century Scotland was the start of an understanding of intellectual property,” he observes.

“Coats of arms pass by the laws of succession and may bring with them certain titles, such as a hereditary peerage or baronetcy. If there is a dispute, the party claiming ownership will bring evidence of genealogy, and the Lord Lyon will decide whether they have proved their right of ownership. If the Lord Lyon grants the right of the arms to the party, then the title goes with it.

“In my range of grants in my time as Lord Lyon I have not only granted arms to members of the aristocracy but also to many companies and organisations, such as the Harris Tweed Authority, and to individuals from a broad range of backgrounds. It’s not only available to one end of society in Scotland – it is something that is open to all. A coat of arms can mean different things to different people and may have a sentimental value for some or a strong commercial value for others.”

The Lord Lyon’s prerogative powers came under challenge in 2019, when a baroness went to the Court of Session claiming that a decision by Lyon Morrow to change the wording of the titles from “the baron of …” to “holder of the barony of …” breached a settlement agreement she entered into with his predecessor in office.

“This was a case that concerned the old Scots law concept of the feudal baron, which was retained after the abolition of the feudal land tenure system,” Dr Morrow recalls. “I was taken to the Court of Session because I refused to recognise the holders of these barony titles within my Letters Patent. Because these titles were bought and sold, I decided not to recognise them.”

In dismissing the action, Lady Wolffe held that the Lord Lyon was neither bound by his predecessors nor bound to recognise the title of feudal barons, affirming the principle that “the Lord Lyon enjoys the widest discretion in the exercise of the royal prerogative”.

“It was not a case I wanted,” Dr Morrow says, “but it did raise an important point of principle and I was determined to see it through.”

The Lord Lyon also has a judicial function, which is to determine entitlement in respect of legal rights. The Lyon King of Arms Act 1867 sets out the duties of the procurator-fiscal who is appointed by the Scottish Ministers to decide whether to bring prosecution relating to the illegal use of arms before the Lord Lyon for judgment, though prosecutions are extremely rare.

“In my seven years as Lord Lyon I have never had to hear a single prosecution,” Dr Morrow says. “That is because, as well as there being a breach of the law, any prosecution has to be in the public interest.”

While the administrative and judicial functions of the Lord Lyon rarely make news headlines, the question of prosecution for unauthorised use of arms certainly becomes of interest to the public when football teams and club crests are concerned.

Ayr United, whose badge features a Saltire, are one of a number of clubs that have had to redesign their crests because of their unauthorised use of heraldic imagery.

The registered owner of a Scots coat of arms can seek interdict in the Lyon Court against any person unlawfully depicting their arms. The court has full statutory powers of fine and imprisonment, and a common law power to erase unwarrantable arms and, where the fiscal or complainer moves for forfeiture, to grant warrant for seizure of movable goods upon which unwarrantable arms are represented.

In the case of a football club, that could mean merchandise like club shirts being confiscated if they bear illegal arms. But as the Lord Lyon points out, he has a duty to protect Scottish heraldry.

“All my office is trying to do is to ensure that those who have and value coats of arms have them properly protected,” he says. “What we try to do is to protect the coats of arms, but some of the low-level enforcement work we do is sometimes misinterpreted. Most of the time education and persuasion is more important, but is of course necessary to retain that right to prosecute.”

Much of the Lord Lyon’s time is taken up by ceremonial duties and ambassadorial work, speaking to people about the role and engaging with the next generation.

Dr Morrow explains: “The Lord Lyon is responsible for the orders for all state ceremonial in Scotland, such as the opening of the General Assembly of the Church of Scotland. There is also the National War Memorial Service, the St Andrew’s Day service at St Giles, and the state opening of the Scottish Parliament, when the Lord Lyon precedes the bearer of the Scottish Crown. And the Scottish diaspora look to the Lord Lyon for some kind of regulatory framework if for example there is clan gathering in the United States or Canada, or a Highland Games in Australia.

“One of my main missions is to provide a contemporary understanding of the role and to be able to promote a modernisation of the system in which we work. I wouldn’t want to lose the legal framework or to take away from the significance of symbolism of state ceremony in Scottish society, but I am very keen to promote the key aspects of what a healthy civic society should have, which are diversity and inclusiveness.

“We have a programme on the registration of community flags – promoting community flag competitions. At one stage that would have been unthinkable, but as long as the finalists all meet the heraldic rules, I am happy to encourage it. It’s about creating interest in the next generation.

“It’s a great honour and a privilege to be in this position,” he says. “We are promoting the work of the Lord Lyon in a contemporary modern Scotland, but it cannot promote the concept of the Lord Lyon from the 19th century – we’ve moved on.”