Maltese Heraldry still in limbo but it's happening slowly but surely

 

The arms of the Office of Chief Herald of Arms of Malta (an office in progress)

Well, now that we have finally seen the creation, in late July of this year, of the legislation allowing the setting up of the Office of Chief Herald, we have now received assurance, from the Office of the Ombudsman, that Subsidiary Legislation is underway. Although it has to be said that, as yet, the Office of the Ombudsman has not been made aware of what may or may not be included and so there still remains the question of what exact powers the new Chief Herald might have; let us not forget that despite his protestations to the contrary, the Office does not yet exist and he does not yet have any powers. 

We will have to wait to see what any new legislation will say about the granting of new arms to foreigners and how will this be made to square with the limitations placed upon Heritage Malta which presently only allows it to deal with that which already exists and is a part of Malta's Heritage. We will have to wait and see how the granting of a newly invented coronet for the untitled nobility (out of new metal so to speak) will be shoehorned into the existing legislation which prohibits the very acknowledgment of nobility by a Government Official. There are still many questions to be answered including whether or not there will be sufficient in the legislation to bring out of limbo and into a lawful status the grants already made without any authority by Dr. Gauci; let us hope that the new legislation is sufficient to at last do justice to what ought to have been from the beginning, but sadly was not, a worthy enterprise. 

The process, for those who like me are actually interested, is that Article 72 (b)  of the Cultural Heritage Act grants the Minister for Culture the power to make regulations for the purpose of ensuring, “…the better fulfilment of the functions of the Entities;”.  The envisioned regulations will, it is proposed, enable Heritage Malta to fulfil its function of setting up and managing the Office of the Chief Herald (as per Article 8(4)(o) ).  Although the power to make regulations emanates from the main Act, we had to await the permission for the formation of the actual Office (the Entity) before any regulations to set it up and actually manage it could be made and, as we know, that has only just happened: We know now that, at long last, there has been an amendment to the original Act which was passed into law at the end of July this year (2021) which has now allowed Heritage Malta to set up the office of the Chief Herald (apparently though, according to the information received from the Office of the Ombudsman, the Office of Chief Herald can't actually be set up and managed until the Subsidiary Legislation has been made to enable Heritage Malta to fulfil its function of setting up and managing the Office of the Chief Herald so any assumption that the Office was instantly set up is still a tad premature). So, now we await the publication of the Subsidiary Legislation to enable Heritage Malta to fulfil its function of setting up and managing the Office of the Chief Herald. 

 

Subsidiary Legislation does not require Parliamentary assent. It takes on the form of a Legal Notice to begin with and this is published in the Government Gazette.  Following publication it is then generally referred to as subsidiary legislation. Just by way of example subsidiary legislation under the Cultural Heritage Act would be referred to as S.L. 455. [ ]  the space would be occupied by a number assigned to the particular set of regulations. Any new SLs or amendments to them are published on this website LEGISLATION MALTA. I have posted a link to Legislation Malta so that my reader can also keep an eye open for the long awaited legislation actually setting up the "Office" and giving the Chief Herald some teeth. At the time of writing this note, there is nothing yet.

Teething troubles there have undoubtedly been but at long last our efforts to see it all done properly appear to be paying off.

 

Changes and appointments at Lyon Court

The arms of Office of the Lord Lyon

image courtesy of SodaCan (Wiki)

Some news from Lyon Court:

The Lord Lyon has announced some promotions and appointments: 

Mrs Yvonne Holton to be Islay Herald, Liam Devlin Esq. to be Rothesay Herald,  John Stirling Esq. WS to be Ormond Pursuivant, Roderick Alexander Macpherson Esq. to be Unicorn Pursuivant, Professor Gillian Black to be Linlithgow Pursuivant Extraordinary, Colin Russell Esq., OStJ to be Falkland Pursuivant, Philip Tibbetts Esq to be March Pursuivant Extraordinary,  and Sir Crispin Agnew of Lochnaw Bt. LVO QC to be Albany Herald Extraordinary.

Ms Clare McCrory has been appointed Herald Painter in succession to Mrs Yvonne Holton who has held the post with great distinction since 2005.

Congratulations all.

The Chief Herald speaks

 

In a post today on the International Society of Commoners Heraldry forum (Face book) Laird Sky kindly lets us know that he has contacted Dr Gauci to ask for his opinion on events thus far.

I was amused to see the amount of “spin” so I have taken the liberty to dissect it and add my own take to his comments [in parenthesis].

“I was curious as to Dr Charles Gaucci's [sic] opinion on this matter so I emailed him last night. What follows are his personal insights on the new Act-

THE FACTS

1. PM & Cabinet appointed me [This appointment of course had no effect as it was ultra vires however, I have no doubt that until I raised my concerns with him soon after (a concern which was dismissed by him and referred to Heritage Malta's legal counsel to “see me off”) I am content to believe that he mistakenly believed that he had some form of authority to act however, I contacted him within weeks and informed him of the fact that the Act providing powers to Heritage Malta did not allow for ad hoc appointments and the Minister needed to table a paper before Parliament to effect any changes to the Act (something which, over a year later they have now done but we still, as yet await powers to be granted).]

2. I wanted to see whether the idea would take off before suggesting a change in the law [hmm. This is almost risible, Right from the beginning, Dr. Gauci has maintained that he had the authority to act as Chief Herald and shortly after my intervention his web pages, on the Heraldry Malta website appeared with a lame and wholly misleading attempt to justify the existence of the office in law. Later, after I had contacted the office of the Ombudsman, I was asked to comment on the assertions on that website and provided a forensic criticism which proved that there was no basis in the Cultural Heritage Act for such an ad hoc appointment by the Prime Minister or Cabinet.]

3. It was a resounding success [I am sure it was however, it had no basis in law and yet the so called Chief Herald continued to mislead his clients that his office was lawful and that he had lawful authority to make grants and registrations. The success was based upon a falsehood.]

4. I suggested a change in the law. This was agreed by government. The Cultural Heritage Act was specifically changed. [It was actually I who right from the beginning suggested to Dr. Gauci and his boss, the Chief Executive of Heritage Malta, that his appointment was ultra vires and that he needed to ensure that the Minister for Culture tabled a paper before Parliament to ensure that proper legislation was in place. I kept asking him to justify his assertions that his office was lawful and asked if he could point me to the legislation (knowing that there wasn’t any): My approach to the Chief Herald was not appreciated and he put the phone down on me so I wrote to his boss pointing out the law as it stood and stating that proper legislation needed to be put in place. So, he can't really state with any truth that it was he who initiated a change in the law; he would have been happy if no one had noticed and he was allowed to "carry on granting".

5. The new law created my Office [Agreed, the new law, passed in July 2021 allowed Heritage Malta to create the Office of Chief Herald, however, as noted by the Ombudsman there is as yet no provision for powers ("This Office observes that the proposed Bill does not include an amendment to specifically regulate heraldry, including the creation of new arms"). And yet, the Chief Herald still writes to those who enquire informing them that he has full powers to grant and register arms!]

6. Secondary legislation has been drafted which details ALL my "powers" and which merges the existing office with the "new" office and which recognises all creations/legislations to date. [If this is true, and I can only hope that it is, then this is indeed good news]

The secondary legislation should be law in a very short time, once it is translated into Maltese!

In any democracy which has an Ombudsman, the latter suggests but does not legislate. This is the job of the government. He made his suggestions and they were duly noted. They have all been dealt with in the secondary legislation which, incidentally was being drafted long before the Ombudsman reported. [The legislation was of course being drafted long before the Ombudsman made his suggestion however, it is disingenuous to lend the impression that this drafting was not as a result of the Chief Herald and the Minister being aware that they were under investigation by the Ombudsman and having been provided with a copy of my forensic examination of their false claims. Legislation was begun because they became aware that they were being investigated by the Ombudsman.]

I really have not the slightest interest in 'others' opinions. [This is par for the course for someone who has throughout misled all who would listen into believing that firstly his office existed when he knew that in law it didn’t and secondly continued throughout to maintain that he had lawful authority when he didn’t - as yet, he still doesn't.] 

The Herald without portfolio.

    The Personal arms of the Chief Herald of Malta with self granted noble additaments.

Further to my post yesterday, having had a long correspondence on messenger with Heraldry Society member Bernard Juby, Bernard has posted on Face Book that he has written to the Chief Herald of Malta. In our conversation yesterday Bernard stated that he had written "asking whether he is salaried or draws income from Grant, Registrations, etc  and whether his ofice [sic] is meant to be self-funding and whther [sic] any surplus fees go to Heritage Malta or to the Government?

Bernard also stated that he had "also told him that since he now holds a Governmentally approved Office ans[sic] since Malta abolished nobility some decades ago it is unwise - at the very least - to use any reference to nobility in any Letters Patent that he may issue."

Bernard has helpfully posted the response:

"Parliament has certainly formally ratified my position.  Secondary legislation has been drafted which merges my initial appointment by the PM with that created by parliament as well as detailing all my 'powers', including the granting of Arms to foreigners.   

The finances are also being dealt with by the Ministry in conjunction with the Treasury.  I will be salaried and not dependant on any income derived from grants/registrations.  At the moment I receive a commission, which, at my insistence, is paid directly to the association for Abandoned Animals in Malta.  The same goes for any fees I am paid for undertaking research for third parties. 

The matter of titles of nobility is specifically dealt with in the secondary legislation to the complete satisfaction of the Ministry.  We will be keeping  an armorial register which we may publish on line and perhaps in hard copy and I will give regular updates in our newsletter.  Also all Arms granted/registered will be regularly published in the Malta Government Gazette.   

The Government of Malta is behind the Office of the Chief Herald of Arms 100%."

I am grateful to Bernard, that sounds promising however, it does not excuse his behaviour. In his replies to potential clients, he is presently not telling everyone that secondary legislation is in progress and all will be well if they just hang on, he is actually behaving as though (and telling everyone that) legislation is already in place. It is a despicable deception. Here we now have it from the horses mouth that he has as yet no lawful authority to grant arms. I don't doubt that the Government is behind his office 100% but his actions are nevertheless, at this point in time unlawful. 

I do wish that from the outset he had done the gentlemanly thing and stepped down until legislation is actually in place instead of spending nearly two years trying to convince anyone who would listen that he was legitimate and already had the authority to act as a herald. Pity it was such a poor start. One thing is for sure, it can only get better.

To summarise, although we are now given the impression that legislation is on the way, it remains, as yet, that any acts by the Chief herald of Malta are still ultra vires; he is a Herald without portfolio. Anyone considering a grant of arms from Malta would be wise to wait until his acts have the force of law.

Is the Chief Herald of Malta wilfully misleading clients or just not understanding the law?

Well, it has happened; Bill No. 229 - Cultural Heritage (Amendment) Bill has now passed into law and become an Act of Parliament. It is now ACT No. XLI of 2021, AN ACT enacted by the Parliament of Malta. AN ACT to amend the Cultural Heritage Act, Cap. 445. 

The Office of the Chief Herald of Arms of Malta is now lawfully in existence. HOWEVER, sadly the Act does not provide any powers for the new Chief Herald at all and the expected 2nd and 3rd readings did not apparently, contrary to the opinions of some, provide any powers allowing for any granting of arms and as a consequence any business transacted by the Chief Herald in regard to the granting and recording of new or foreign arms remains ultra vires - of no lawful foundation and therefore null and void. Useless. All of which is very sad as it has been a missed opportunity. 

Despite the fact that there is absolutely no mention in the Act of anything but the creation of an empty office, I am beginning to wonder if the Chief Herald of Malta is still wilfully misleading potential clients or if he really doesn't understand what is going on. I believe that he is a reasonably intelligent man but today it has come to my attention that he has written to someone asking about a grant in the following terms:  

“My Office, which previously had the protection of the Prime Minister of Malta now also has the protection of Parliament which has confirmed its powers in law.  Thus, any Arms granted are fully recognised by the State of Malta and will be entered, for all time, into the Armorial Register of Malta.” 

Whilst I am please to say that, after my extensive efforts to bring the fact that his office didn't even exist on a lawful basis, there is, thanks to the recent passing of the new  - Cultural Heritage (Amendment) Act, now a lawful office of Chief Herald of Arms of Malta. However, the Act, regrettably, still did not provide for any powers or functions of this office (I have made a thorough search of the Parliament website and there isn't even any reference to heraldry of herald in "Papers Laid" before Parliament).

So, let us dissect the latest communication from the man whose Office now exists in law but has, still, absolutely no powers in law. 

The Chief Herald would have us believe that his Office "previously had the protection of the Prime Minister of Malta" This is a disingenuous statement. He may well be under the impression that the Prime Minister and Cabinet lent their approval to his Office however, I have proved beyond a doubt that the procedures, whatever they may have been, undertaken by the Prime Minister and his Cabinet were incorrect and had no basis in law so the Office he thought had been created did not actually exist and, in fact and in law, did not exist until, through my intervention, the Ombudsman advised that proper legislation must be sought. This legislation has recently been passed but it only created the Office. In his latest communication the Chief Herald states that his Office "now also has the protection of Parliament which has confirmed its powers in law ". I should like to know where and when since, according to the Act and everything I can find on the Parliamentary website, there has yet to be anything other than the mere creation of an empty shell of an office with absolutely no powers.

If anyone can point me to where I can find these alleged powers I would be very grateful. The details of the Act in full can be found here:

https://www.parlament.mt/media/113182/act-xli-cultural-heritage.pdf

Office of the Chief Herald of Malta - Ombudsman's Conclusions Published

 

Last week the Office of the Ombudsman (Malta) published its findings following the investigation into the creation of the Office of the Chief Herald of Malta and shortly after I began to receive numerous reports from friends in heraldry who, in the early days prior to my intervention, had made enquiries to the "Chief Herald" about grants/registrations of arms that they had received an email from the present "Chief Herald". All of the emails were exactly the same and therefore appeared to be simply a marketing update. 

Extract from the email update sent by the "Chief Herald" "The Ombudsman in his ruling of 21st July made a number of recommendations. Legal counsel advises that these recommendations are in fact already fully addressed by the draft secondary legislation. I understand that these formalities will be concluded following the parliamentary recess, by Autumn/Winter 2021 and will update you accordingly. " 

The Ombudsman did indeed make a number of recommendations and as I have already stated, there was nothing in the original Bill except the mere creation of an empty office of Chief Herald and although rumour has it that the actual powers for said office will be included in the second reading we really, as yet have no idea what will be included. It is somewhat concerning that the Ombudsman, who presumably has greater access to these things than you or I states, in his report that "This Office observes that the proposed Bill does not include an amendment to specifically regulate heraldry, including the creation of new arms" .

For clarity and openness, I have uploaded the full report of Ombudsman here: https://bit.ly/3y75WvW

Maltese Parliament to establish an Office of the Chief Herald of Arms (Properly?)

I note that, at last, Malta is attempting to do it right and doing what it should have done in the first place. My reader will already know that early in 2020 I brought to the attention of the Chief Investigating Officer at the Office of the Maltese Ombudsman that fact that the actions of the Chief Herald of Arms were ultra vires, unlawful and of no worth, because there was no lawful authority for the creation of the Office of Chief Herald or for anything he was doing. The Minister for the National Heritage, the Arts and Local Government, if he wished to create such an Office should have tabled a paper before Parliament for discussion. 

It seems that in actually attempting to now set up the Office of the Chief Herald of Arms of Malta, there is a tacit acceptance of my assertion that everything the so called Chief Herald has done to date is indeed ultra vires and I can say with some pride that my report, which can be found here https://bit.ly/3aWv1yi had some effect in that the Minister has been forced to do what he should have done in the first place.

On the 22nd June, The Cultural Heritage Amendment Bill, presented by the Minister for the National Heritage, the Arts and Local Government, Hon. José Herrera MP received its first reading in the Parliament of Malta. 

"The objects and reasons of this Bill are to update the principal Act according to current practice and standards of heritage management, especially regulatory obligations, edit and correct mistakes, establish an office of the Chief Herald of Arms, provide for compensation of impacts on cultural heritage, better facilitate the State’s right of preference for the acquisition of cultural heritage items, and the formal establishment of National World Heritage Sites Technical Committee." 

I do however, have some reservations as the bill does not actually go so far as to create a "Heraldry Act" like the one South Africa had the good sense to create but only goes as far as amending Article 8 of The Cultural Heritage Act (Article 8 of the Act refers to The Operating Agency and the fact that it is restricted, like all other parts of the Act, to “those elements of the cultural heritage entrusted to it are protected and made accessible to the public as defined in this Act”). The amendment adds the words "to setup and manage the Office of the Chief Herald of Arms of Malta."

So, having passed a 1st reading, the Bill now has to pass a 2nd reading, then go to Committee Stage (at which time I shall give it another perusal to see if there is to any actual substantive detail/explanation), then go to Recommittal and on to 3rd Reading. 

So far, all we know is that the Minister has asked Parliament to add the words " to setup and manage the Office of the Chief Herald of Arms of Malta." If this is all that is approved, then there will still be doubts over what the Office can and can't do because I have yet to see anything to amend the restrictions in the original Act which only allows Heritage Malta to protect, preserve and record that which is already existing. 

Setting up an Office of the Chief Herald of Malta is one thing (and I am delighted that they are attempting to do so) but, so far, I have seen nothing that will allow any Chief Herald to grant arms anew, to register the arms of foreigners or to grant them arms anew when to do so has nothing to do with Maltese heritage or to invent and assign new coronets to the "non titled nobility" of Malta when non existed before and so can't be classed as "heritage". I have yet to see any retrospective provision or mention of recompense to those who have up to now paid for a grant or registration of arms which is in effect and in law void and worthless. I shall continue to delve into the amendment Bill and watch with interest its progress.

Watch this space.

.