Mordington Crescent: Baron loses appeal against refusal of Lords peerage

A Scottish baron has lost an appeal challenging the refusal of his petition to the Queen to grant him a peerage and entitlement to sit in the House of Lords.

Graham Nassau Gordon Senior-Milne, the Baron of Mordington was recognised as a baron in 2004 following his purchase of the land to which the barony is attached. He submitted a petition to the Queen in 2016 to be entered onto the Roll of the Peerage, which was refused on the advice of the respondent, the Advocate General.

The appeal was heard in the Inner House of the Court of Session by Lord Brodie, Lord Drummond Young, and Lord Malcolm.

Asserting a legal right

The crux of the petitioner’s argument was that the owner of a feudal barony, where certain historical conditions are satisfied, is entitled to a seat in the House of Lords. He asserted that this peerage was not subject to the provisions of the House of Lords Act 1999, which severely restricted the ability of hereditary peers to sit in that House.

Following his receipt of the refusal letter, which stated that nothing further could be done in respect of the petition, the petitioner brought a petition for judicial review against the Advocate General, arguing that he acted unlawfully in advising the Queen to deny him the right to access to a court of law to have his underlying claim to a peerage recognised. As the Queen was bound by constitutional convention to act in accordance with the advice of her ministers, the refusal was effectively an act of the Advocate General.

As support for his claim, the petitioner cited the existence of four Scottish feudal baronies currently recorded on the Roll of Peerage. Further, the Barony of Mordington was a greater barony by virtue of its extent per the Act of Parliament of 1503, which amounted to Lordship in the modern sense. No statutory provision or implication had removed the barony from peerage. Thus, the petitioner was asserting a legal right to sit in the House of Lords.

The Lord Ordinary who initially refused the petition for judicial review did so on the grounds that the Advocate General had merely provided legal advice in respect of the petition and had not exercised any jurisdiction, power, or authority he possessed. Therefore, the matter was outside the supervisory jurisdiction of the court.

In response, the Advocate General submitted that decisions of the Queen in relation to the grant of honours were not susceptible to judicial review. As an esto argument, it was proposed that even if there was any merit in the grounds of appeal, the same decision was inevitable in view of the merits of the case.

No exercise of power

The opinion of the court was delivered by Lord Drummond Young. Accepting the arguments of the Advocate General he said: “In the present case the Advocate General provided legal advice to the Queen in relation to the petitioner’s claim to a peerage. Giving advice is not the same as making a decision. In giving legal advice the Advocate General did not exercise any ‘jurisdiction, power or authority’, whether statutory or otherwise, over the petitioner; he merely provided advice to the decision-maker. Consequently there was no decision taken by the Advocate General which was capable of being judicially reviewed. For this reason we consider that the challenge to the conduct of the Advocate General is misconceived.”

He continued: “The advice given by the Advocate General was legal advice, and it is of the nature of legal advice that it is not binding on the person to whom it is given. That person still possesses the power to make a decision, and in exercising that power the decision-maker may or may not take account of the legal advice, or may take account of the legal advice in part or in a discriminating fashion.”

On whether decisions of the Queen relating to the grant of honours were susceptible to judicial review, he said: “The fundamental point is that an honour is, in its essence, something that lies within the gift of the sovereign. No legal right is involved. Nor does it involve any legitimate expectation. The closest analogy is with a gift in the ordinary sense, where it is obvious that the decision whether or not to make a gift is entirely discretionary in nature, and cannot be reviewed on its merits or made the subject of any form of judicial review.”

Extraordinary argument

For those reasons, the appeal was refused. However, following the dismissal of several minor arguments from the petitioner the court went on to consider the esto argument presented by the Advocate General regarding the inevitability of the outcome were the petition to proceed.

Of this, Lord Drummond Young said: “In Oliphant v Oliphant (1633), it was held that a peerage could not be sold by one subject to another; a peerage was described as ‘a right… which no subject can dispone, without the approbation of the prince’. Minor baronies, by contrast, can be bought and sold; on occasion areas of land were sold with a barony title, which might entitle the purchaser to style himself or herself as the baron or baroness of that land. We understand that that is how the petitioner acquired the Barony of Mordington.”

He continued: “Section 63 of the Abolition of Feudal Tenure etc (Scotland) Act 2000 abolishes any conveyancing privilege incidental to a barony, although the section expressly provides that nothing in the Act affects the dignity of a baron or any other dignity or office (whether or not of feudal origin). Nevertheless, it would be extraordinary if the right to sit in the upper house of Parliament could be acquired by the mere purchase of an area of land.”

Based on this analysis, he concluded: “We would accordingly have concluded, if it were relevant, that the Barony of Mordington did not confer any status either as a peer or as a member of the House of Lords. It was a minor barony unconnected with any peerage. On that basis, even if there had been an error in the Lord Ordinary’s reasoning, we would have refused permission to proceed.”