Scottish Court of Session Decisions

The Military Service Act 1916 (5 and 6 Geo. V, cap. 104) enacts—Section 1—“(1) Every male British subject who … ( satisfies certain conditions as to residence, age, &c.) … shall … be deemed as from the appointed date to have been duly enlisted in His Majesty's Regular Forces for general service with the colours or in the Reserve for the period of the war, and to have been forthwith transferred to the Reserve. (2) The Army Act … and the Reserve Forces Acts 1882 to 1907, and any Orders and Regulations made thereunder shall apply accordingly to any man who is so deemed to have been enlisted and transferred to the Reserve.… Provided that ( a) where the question whether a man is a man who under this section is deemed to have been enlisted and transferred to the Reserve or not, is raised on proceedings in respect of an offence alleged to have been committed by the man as a member of the Reserve while he was a member of the Reserve in pursuance of the transfer under this Act, or in respect of any alleged failure to comply with any order calling him up from the Reserve for permanent service, that question shall be decided only on proceedings before a civil court.…”

The Military Service (Conventions) Act 1917 (7 and 8 Geo. V, cap. 26) enacts—Section 1—“His Majesty may by Order in Council, signifying that a convention has been made with a foreign country, allied or otherwise, acting in naval or military co-operation with His Majesty in the present war (in this Act referred to as the contracting country), which imposes a mutual liability to military service on British subjects in that country and on subjects of that country in the United Kingdom, direct that this Act shall have effect with respect to the contracting country and the subjects of that country; and on any such Order in Council being made this Act shall have effect accordingly.…” Section 2—“Where this Act is so applied with respect to any country, subjects of that country shall … be liable to military service under the Military Service Acts 1916 in the same manner as British subjects; and these Acts shall apply accordingly subject to the following modifications—( a) The appointed date shall, as respects subjects of the contracting country who come within the operation of the Military Service Acts 1916 and 1917, on the application of this Act in respect of that country, be the thirtieth day after the date of the Order in Council applying the Act.…”

In April 1918 Jack Green, 35 Surrey Street, Glasgow, and others, complainers, presented a note of suspension and interdict against the Right Honourable James Avon Clyde, His Majesty's Advocate for Scotland, as representing the Crown and the Minister of National Service; and Major W. Ross, Assistant Director of Recruiting, Area Recruiting Office, 17 Sauchiehall Lane, Glasgow; and Colonel William Robertson, V.C., Assistant Director of Recruiting, Area Recruiting Office, Music Hall, 54 George Street, Edinburgh, respondents, whereby they craved the Court to grant suspension of certain notices calling up the complainers for military service in the British Army, and to interdict, prohibit, and discharge the respondents from taking steps to enforce the calling-up notices by having the complainers arrested or charged as absentees or otherwise.

The complainers averred—“(Stat. 1) The complainer Jack Green was born in Russia, of Russian parents, and he by nationality is a Russian subject…. The said complainers have not become naturalised British subjects. (Stat. 2) By the 14th Article of a Treaty of Commerce and Navigation entered into between Great Britain and Russia, dated 12th January 1859, it is provided that ‘The subjects of either of the two high contracting parties in the dominions and possessions of the other shall be exempted from all compulsory military service whatever, whether in the Army, Navy, or National Guard or Militia.’ (Stat. 3) On or about 24th October 1917 His Majesty's Ambassador at Petrograd received from the Russian Minister for Foreign Affairs a Note stating that economic conditions arising out of the war compelled the Russian Government to take into consideration the revision of their existing Treaties. The Note stated that the Treaty of 1859 would be terminated on 24th October 1918. The terms and conditions of the said Treaty are still binding on the British Government, and the pursuers are entitled to the benefit of the provisions of the said Treaty. (Stat. 4) On or about 16th July 1917 an Agreement was entered into between the British Government and the Russian Provisional Government ‘relative to reciprocal liability to military service’ of subjects of these countries respectively. By said Agreement it was, inter alia, provided that the contracting Governments would reciprocally bid their subjects inhabiting respectively Great Britain and Russia, ‘and belonging to the categories called to the colours in their own country,’ to proceed to their respective countries, and that such ‘of these persons’ as refused, after due notice given, to return to their own country shall be compelled to undertake military service in the country of their residence, the call ‘of these persons’ to arms to be effected by the competent authorities of the country of their residence, who for this purpose should apply the dispositions in force in their respective countries as regards absentees. It is claimed by the defender that the said Agreement was a convention within the meaning of the Military Service (Conventions with Allied States) Act 1917 (7 and 8 Geo. V, c. 26), which was passed on 10th July 1917 in order to enable His Majesty in Council to carry into effect Conventions which might be made with Allied and other States ‘as to the mutual liability’ of His Majesty's subjects and the subjects of the Allied and other States to military service. By section 2, sub-section 1, of the said Act it is provided that the subjects of any country to which the Act has been applied who have not made application to return to the contracting country of which they are subjects, or fail to avail themselves of an opportunity to do so, shall be liable to military service

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under the Military Service Acts 1916 in the same manner as British subjects, subject to certain modifications therein set forth. (Stat. 5) The said Treaty of 1859 is not referred to, and was not abrogated by the said Agreement of 1917, and it was not revoked by the Military Service (Convention with Allied States) Act 1917. Since the making of the said Convention and the passing of the said Act, the Government professing to have power to act in the name of Russia has withdrawn from the duties of its alliance with Great Britain against the Central Powers, has repudiated any obligation to continue at war with the Central European Powers in conjunction with this country and her other Allies, and has concluded peace with Germany. In these circumstances the Convention is no longer operative to regulate ‘mutual liability’ of subjects of the high contracting parties. The pursuers do not belong to any category which is now being called to the colours in their own country, and so do not fall within the class of persons affected by the provisions of sections 1, 2, and 3 of the said Agreement. Moreover, in respect of the cessation of a state of war between Russia and the Central European Powers and the conclusion of peace between Russia and them, the condition to which the Military Service (Convention with Allied States) Act applies does not exist in regard to Russian subjects, and the Treaty of 1859 still stands and is binding on the British Government.”

The respondents averred—“(Ans. 2) Explained that by Agreement of 16th July 1917 between His Majesty's Government and the Provisional Government of Russia the said Treaty of 1859 was modified in so far as it exempted the subjects of each of the high contracting parties from compulsory military service in the dominions and possessions of the other…. (Ans. 4) The said Agreement and the Military Service (Convention with Allied States) Act 1917 (7 and 8 Geo. V, cap. 26) are referred to for their terms. Quoad ultra denied. By section 1 of said Act His Majesty was empowered by Order in Council signifying that a convention had been made with a foreign country, allied or otherwise acting in naval or military co-operation with His Majesty in the present war, which imposes a mutual liability to military service on British subjects in that country and on subjects of that country in the United Kingdom, to direct that the Act should have effect with respect to the contracting country and the subjects of that country, and it was enacted that on any such Order in Council being made the said Act should have effect accordingly. Upon 22nd August 1917 an Order in Council was promulgated signifying that such an Agreement had been made with Russia, and directing that the said Act should have effect with respect to Russia and to Russian subjects. The complainers other than Wincentas Sandarga or Thomson belonged to categories called to the colours in Russia, and did not elect to return to Russia as they were entitled to do. Said complainers were accordingly, by virtue of said Order and said Act of Parliament and the Military Service Acts, deemed to have been enlisted as from the thirtieth day after the date of the Order, viz., 21st September 1917, in His Majesty's Regular Forces for general service with the colours or in the Reserve, and to have been forthwith transferred to the Reserve. The complainer Wincentas Sandarga or Thomson also belonged to a category called to the colours in Russia, but applied to return to Russia. He refused, however, to avail himself of an opportunity to do so on 29th September 1917, and he was accordingly deemed to be enlisted as from that date in His Majesty's Regular Forces for general service with the colours or in the Reserve, and to have been forthwith transferred to the Reserve.”

The complainers pleaded—“1. The complainers being Russian subjects are exempt, under the Treaty of 1859 and in the present circumstances, from conscription for military service under the British Crown, and are entitled to suspension and interdict as craved. … 3. Russia having withdrawn from her alliance with Great Britain and her allies, and having concluded a separate peace with Britain's enemies, Russian subjects resident in Great Britain are not legally liable to conscription for service in the British army, and suspension and interdict should be granted as craved. 4. In any event, the liability of persons in the position of the complainers to serve with the British colours can be decided in the pending action in a court of competent jurisdiction, and suspension and interdict should be granted pending the decision of the said action.”

The respondents pleaded—“1. The note of suspension and interdict is incompetent in respect the complainers are subject to the provisions of the Military Service Acts, et separatim, in respect that the Acts complained of are administrative Acts of the Crown. 2. The complainers' statements are irrelevant and insufficient to support the prayer of the note. 3. The complainers having been duly transferred to the Reserve by virtue of the Acts founded on, the note should be refused. 4. The complainers having duly become members of the Reserve, and having as such members under the Military Service Acts a competent remedy against being illegally compelled to undergo active service, the note should be refused. 5. The proceedings complained of being lawful and regular, and in accordance with the provisions of the Military Service Acts, the note should be refused.”

On 2nd May 1918 the Lord Ordinary ( Anderson) passed the note and refused to grant interim interdict.

Opinion.—“This note of suspension and interdict raises a question of prime importance. The British Government has apparently resolved to incorporate in the British army all male Russian subjects who are resident in this country and are of the appropriate military age. A number of those Russian subjects have brought these proceedings against those who are responsible for recruiting in this country, and they ask the Court to prohibit and discharge the respondents from taking steps to enforce

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certain calling-up notices which the complainers have received and to grant interim interdict.

It is common ground that all the complainers are Russian subjects by nationality, and that none of them has become a naturalised British subject. The respondents submitted a general argument to the effect that in respect that the complainers are aliens they are debarred from appealing to the courts of this country, and in support of that view I was referred to a decision of Lord Kyllachy ( Poll v. Lord Advocate and Others) where this general proposition is laid down—‘An alien is not entitled to question in the courts of this country the administrative acts of the Crown.’

I am satisfied that in this case what was decided in the case of Poll is not applicable, because it seems to me that both in respect of the provisions of a Treaty of Commerce entered into between Great Britain and Russia in the year 1859 and of an Agreement entered into between the British and Russian Governments in 1917 Russians who may be resident in this country are given by implication a right of appeal to the courts of this country with reference to any matters of dispute which may arise in connection with either that Treaty or that Agreement. Therefore I have no difficulty in rejecting the first contention of the respondents to the effect I have stated, and which was made the basis of a claim to have the suspension disposed of at this stage.

The next contention which was urged by the respondents was that this was a matter of military administration, and that therefore the jurisdiction of the courts of law was excluded. I have already dealt with this argument in the case of Beattie, which I have just advised, and I merely repeat that in my judgment it is the right of a subject to appeal to a court of law, where the matter of complaint is that an administrative body has erred in law, or has deviated from correct procedure to the prejudice of the party complaining.

The case in my judgment raises questions of law of interest and importance, to wit, these two—first, whether the provisions of the Treaty of 1859 bearing upon military service are still operative inasmuch as they have never been specifically abrogated, and second, whether, assuming those provisions to have been modified by the Agreement of 1917 to which I have alluded, that Agreement is still operative. These are the questions which it seems to me the pleadings raise, and they are questions of law, and therefore are appropriate to a court of law.

There is at the present time pending before Lord Ormidale an action in which the record has been closed between two Russian subjects in the same position as the complainers in this case against the military authorities who are responsible for recruiting. The action is in the form of a declarator, but the pleadings in it raise exactly the same questions of law which I have alluded to. The respondents do not take the plea of lis alibi pendens. At all events up to the present time that plea has not been taken, although it may very well be when the matter comes to be dealt with in the Court of Session on an adjusted record that plea may be propounded.

I think the respondents were right in not proponing that plea at this stage, because I do not think it could be given effect to at this stage.

The process of suspension and interdict raises exactly the same questions as are raised in the declarator, although the parties are not the same; but the process in my judgment has for its main object the maintenance of the status quo, and therefore may be regarded as in a sense supplementary to or ancillary to the declaratory action which has been raised in so far as Balkin, one of the parties to both actions, is concerned, and therefore I do not think that if that plea had been stated it could have been given effect to at this stage to the effect of getting rid altogether of the suspension and interdict.

Now the basis of the complainers' case is the Treaty of Commerce and Navigation of 1859 to which I have alluded. The complainers maintain that the 14th Article of that Treaty, which provides that the subjects of Great Britain and Russia living in the dominions of each other shall be exempted from all compulsory military service whatever is still in operation, and it is contended that none of the complainers, nor indeed any Russian subject living in this country, is liable to military service in the British Army. The respondents on the other hand maintain that that Article of that Treaty was impliedly repealed although it has not been specifically abrogated by the Agreement of 1917 to which I have referred, and that that Agreement is still in force.

The view I have taken of the question is this—that in respect there is an action pending in the Court at the present time raising these questions, I propose to pass the note in this case for the trial of the questions which it raises although they are the same, but on a prima facie consideration of the pleadings and the arguments to which I have listened, my own impression is that the complainers are wrong in their contentions and that the respondents are right. I shall give effect to this impression which I have formed by refusing interim interdict.

The reasons which, on a prima facie consideration, have induced me to take that view are these—In the year 1917 the Military Service (Conventions with Allied States) Act was passed (7 and 8 Geo. V, cap. 26), which provided by the first section that the King by Order in Council might approve of a Convention which had been entered into between any of the Allies engaged on the Entente side in this War.

That Act came into operation on 10th July 1917. The next thing was that on 16th July 1917 a Convention or Agreement was entered into between the Government of this country and the Provisional Government which was then regulating the affairs of Russia, and that Convention or Agreement was approved of by an Order in Council passed on 22nd August 1917.

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The effect of that Agreement and that Order in Council was this—That all Russians of military age resident in this country became impliedly incorporated in the British Army as from the appointed day, and the appointed day was 25th September 1917 in the ordinary case.

Remedies were given to Russian subjects in this country who wished to avoid the operation of these enactments. By the second section of the Military Service (Conventions with Allied States) Act, any Russian subject to whom the Convention applied might apply to the appropriate authority for leave to quit this country and return to Russia, and if that leave was granted an opportunity had to be provided to enable the Russian so desiring to quit this country to get to Russia.

Now in the case of all the complainers except one no application was made for leave to go to Russia. In the case of one of the complainers an application was made and provision for his transportation to Russia was made, but he at the last moment declined to go to Russia. Accordingly every one of the complainers, by the operation of the said Act and the Order in Council and the Agreement I have alluded to, became British soldiers as from the month of September 1917. This seems to be a conclusive answer to the prayer of the note, because whatever be the state of matters now as between Russia and Germany, these countries were undoubtedly at war in September 1917 (see the case of ex parte Kutchinsky, dated 22nd March 1918).

But if the question fell to be determined on a consideration of present circumstances I am unable to hold that the contentions of the complainers are sound. They maintain that as Russia and Germany are now at peace the contemplated circumstances of the Agreement have failed, and that it has ipso facto come to an end. Can it be affirmed that the relations at present subsisting between Russia and Germany are those of peace? It is true that there has been published a Treaty, made at Brest Litovsk between parties representing Germany and Russia, purporting to establish peace between these countries. But on the other hand it is matter of common knowledge that at the present moment German forces are in Russia and interfering with Russians in various parts of Russia, and have penetrated as far as the Crimea, and Russia according to what is contained in public prints is in course of raising further armies to continue the contest against Germany.

The only safe basis of judgment seems to me to be this—that the Agreement has not been recalled by any Russian Government, and that by its fifth article it is to cease to have force from the date of the conclusion of the present war. This means not from the time Russia ceases to fight, but from the time when Germany stops fighting. On those considerations I have reached the conclusion that while the note falls to be passed for the trial of the questions raised in the Court of Session, I am not going to tie the hands of the military authorities in any way by granting the interim interdict which is craved.”

The respondents reclaimed, and argued—The note was incompetent. The Military Service Act 1916 (5 and 6 Geo. V, cap. 104), section 1, provided that all British subjects between certain age limits were deemed to have enlisted in the army and to have been forthwith passed into the reserve. This Act was held to apply by the Military Service (Conventions with Allied States) Act 1917 (7 and 8 Geo. V, cap. 26), secs. 1 and 2, to those Russians of military age who elected to remain in this country rather than to return to Russia. Under the Reserve Forces Act 1882 (45 and 46 Vict. cap. 48) a man in the Reserve received a notice calling him up for service with the colours, which if neglected rendered him liable to prosecution as a deserter. Under the Reserve Forces Act 1882, section 15, he was tried by court-martial, but under the Military Service Act 1916 he might be brought before the Sheriff if the question was whether he was in the army or not. Such a summary prosecution fell under the Summary Jurisdiction (Scotland) Act 1908 (8 Edw. VII, cap. 65), which excluded all appeals other than an appeal to the High Court of Justiciary. Accordingly the complainers ought to have objected to enlistment in the army in the proper quarter conform to the special statutory procedure provided for them. They had not done so, and it was incompetent for them to come before the Court of Session and try to obtain an interdict. Otherwise anyone could by prolonged legal proceedings negative the working of the Military Service Acts, in which an expeditious procedure was essential. The complainers were enlisted soldiers, and nothing had occurred to discharge them from the army. The Court of Session certainly had no authority to discharge them from the army, nor could it interdict the proper military authority from giving an order to a soldier in the army. Only he who had enlisted them could discharge them, and that was the King acting through his ministers. The agreement with the Russian Government under which they had been enlisted in the British army, and which had been made prior to the peace concluded between Russia and Germany, had never been abrogated, and until this had been done through the ordinary diplomatic channels they continued to be soldiers in the British army. Counsel referred to Lawrence v. The Comptroller-General of Patents, 1910 S.C. 683, per Lord Dundas, 47 S.L.R. 524; Pasmore v. Oswaldtwistle Urban Council, [1898] AC 387, per Lord Halsbury, L.C., at p. 394; Tay District Fishery Board v. Robertson, (1887) 15 R. 40, 25 S.L.R. 54.

Argued for the complainers—The Lord Ordinary, having considered that there was here a substantial question to try, had acted rightly in passing the note. The complainers in the present case being in the same position as subjects of a neutral state resident in this country had been wrongly called-up for military service. Although the Russian and the British Governments

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had made an agreement as to the military service of their respective subjects, that agreement ceased to operate as soon as peace had been concluded between Russia and Germany. Otherwise Russian subjects fighting in the British army might, if taken prisoners, be treated as franc tireurs by the German authorities and shot accordingly, being subjects of a country at the time in a state of peace with Germany. The onus to show that they had a right to resort to the Court of Session did not lie on the complainers. It was incumbent on those who denied them this right to show cause why. The Military Service Act 1916 provided for persons appealing against enlistment having recourse to a civil court, and this meant any civil court and not merely the sheriff. The civil court mentioned in section 1 (2) of that Act was referred to as distinguished from a military court, and did not necessarily mean the same civil court as that referred to in the Reserve Forces Act 1882. Liberty was not to be taken away because the word “court” was interpreted by the Crown authorities according to the meaning of the Army Acts. The words in the Military Service Act 1916 were “a civil court” and not “the civil court provided by the Reserve Forces Act.” The complainers in the present case, not being liable to be called up for military service, were not guilty of having committed any offence at all. Exclusion of the right to come before the Court of Session in defence of their liberty was not to be implied, but had to be expressly stated in the Act. The following cases were cite— Walkers v. Baird, [1892] AC 491, and Institute of Patent Agents v. Lockwood, (1894), 21 R. (H.L.) 61, 31 S.L.R. 942.

At advising—