Scottish Court of Session Decisions

The Defence of the Realm Regulations Consolidated, dated 28th July 1910, enact—“ General Regulations—1. The ordinary avocations of life and the enjoyment of property will be interfered with as little as may be permitted by the exigencies of the measures required to be taken for securing

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the public safety and the defence of the realm, and ordinary civil offences will be dealt with by the civil tribunals in the ordinary course of law. The Admiralty and Army Council and members of the naval and military forces, and other persons executing the following Regulations, shall, in carrying those Regulations into effect, observe these general principles. Power of Competent Naval and Military Authorities—2. It shall be lawful for the competent naval or military authority and any person duly authorised by him, where, for the purpose of securing the public safety or the defence of the realm it is necessary so to do, ( a) to take possession of any land and to construct military works, including roads, thereon, and to remove any trees, hedges, and fences therefrom.”

A B and others, complainers, brought a note of suspension and interdict against Captain C D and the Lord Advocate as representing the Secretary of State for War for any interest he might have, respondents, craving suspension of certain proceedings complained of, and interdict against C D and all others acting under his orders, “(1) From entering upon the lands belonging to the complainers, situated at or near Loch E, without their consent, and from erecting any buildings on said lands or any part thereof without such consent; (2) from blasting the islands or rocks in said loch; and (3) from interfering with the sluices and salmon ladders at the outflow of said loch, or with the flow of water from said loch; and to grant interim interdict.”

They pleaded—“(1) The actings and operations complained of being illegal, interdict should be granted as craved. (2) The said actings and operations being unnecessary and being needlessly injurious to the complainers, interdict should be granted as craved. (3) The proposed works being of a permanent character, the respondent was not entitled brevi manu to enter the lands of the complainer and act in the way complained of. …”

The pleas-in-law for C D included, inter alia—“(1) The note of suspension and interdict is incompetent. (2) The complainers' averments being irrelevant, the note should be refused.”

The Lord Advocate lodged answers and pleaded, inter alia—“(1) In respect that the lands in question have been taken possession of by His Majesty's Principal Secretary of State for the War Department in the exercise of the rights and duties of the Crown in the defence of the realm, the present proceedings are incompetent and the note should be refused. (2) The complainers' statements are irrelevant and insufficient to support the prayer of the note.”

The facts are given in the opinion ( infra) of the Lord Ordinary ( Anderson), who 011 17th October 1916 pronounced an interlocutor recalling interim interdict and passing the note.

Opinion.—“… The averments upon which the complainers rely in support of the note of suspension and interdict are shortly stated thus—That the respondent without obtaining consent from any of the complainers entered upon the lands in the vicinity of Loch E, and is at the present moment engaged in operations on those lands, including blasting operations upon the islands and rocks situated in Loch E, and interference with the sluices at the outflow of the loch, which operations are alleged to be illegal, injurious, and unnecessary for any purpose of public defence.

The note has been answered by Captain C D and also by the Lord Advocate, and the answers which Captain C D has lodged seem to me to be the appropriate reply which fell to be made to the allegations against him. His position, shortly stated, is this—That he is an official acting under the orders of the War Office, and that in everything he did he was just carrying out the orders which he had received from his superiors, and in effect he says he knows nothing about the legal aspect of the matter. It was urged by the Solicitor-General for the respondents that as this is a process of interdict against Captain C D, who may be displaced to-morrow by a different official, it ought to be dismissed at this stage. That objection is in my judgment obviated by the fact that the Lord Advocate as representing the War Department has lodged answers, and therefore the complainers have now a proper contradictor in connection with the important question which they raise in their note. The position which the Lord Advocate takes up in his answer is, shortly stated, this—That the War Office have determined to take possession of certain ground in the vicinity of Loch E in connection with a scheme for establishing military works there, and that possession has been taken by the proper authority under the Defence of the Realm (Consolidation) Regulations 1914.

Accordingly in that state of the pleadings I am bound, at this stage at all events, to consider the case as one arising solely under those last-mentioned regulations, and to regard the War Office as having assumed temporarily the possession of the land in question in connection with the present War. The regulations to which 1 have referred are authorised by the Act of Parliament (5 Geo. V, cap. 8), being the Defence of the Realm (Consolidation) Act 1914, which by section 1 empowers His Majesty in Council to make regulations as to the defence of the realm. On that authorisation by the Legislature His Majesty in Council has promulgated a number of regulations which are known as the Defence of the Realm (Consolidation) Regulations 1914, and subsequent amendments thereof.

Now the questions which are raised in the pleadings fall to be determined on a consideration of the first and second of these general regulations, and especially the second. The second of these regulations authorises the competent naval and military authorities to take possession of lands, and the powers given are of the widest character. Section 2 contains a series of regulations, ( a) to ( f); and when the terms

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of these regulations are considered it comes to this, that the War Office has statutory authorisation to take possession of any land they choose to lay their hands upon, and to deal with it as they think fit for the necessary national purpose.

It is to be noted that although the regulation No. 2 at the end enjoins the competent naval and military authorities to give notice of the intention to take possession of moveable property in pursuance of the regulations, there is no corresponding provision that notice falls to be given when the naval and military authorities propose to take heritable estate. Accordingly the situation seems to be this, that it was in the power of the War Office, without any intimation whatever to the owners of these lands, simply to take possession of them and to proceed to utilise them for national purposes. It is also to be noted that the regulations contain no provision as to compensation, but it is matter of common knowledge that a commission has been appointed by the King to award, ex gratia, compensation to those whose property has been taken possession of for national purposes.

Turning now to the contentions of the complainers, I find it made matter of complaint by them that the respondent Captain C D has, without the consent of the proprietors and without legal warrant or authority, entered upon the lands in question; and it is suggested, as 1 read these pleadings, that the illegality complained of was in proceeding without the consent of the proprietors. That seems to me to be quite an untenable position. As I have stated, the authority bestowed by the regulations upon the War Office and the Admiralty authorities entitles them to take possession of heritable property without any consent, and judicial expression was given to that view in an English case to which I was referred, to wit, the case In the matter of a Petition of Right, reported in the Law Reports, 1915, 3 K.B. 649. Mr Justice Avory, who decided the matter in the King's Bench Court, and whose judgment was affirmed by the Court of Appeal, says on page 654 in dealing with Regulation No. 2—‘In my opinion Regulation No. 2 of these regulations confers upon the competent naval and military authority during the continuation of the present war an absolute and unconditional power to take possession of land or buildings, and to do any other act involving interference with private property where, for the purpose of securing the public safety or the defence of the realm, it is necessary so to do, and that this enactment impliedly repeals for the time being any right to or liability to pay compensation if it existed in time of war under the earlier Acts.’ I entirely agree with the view so expressed as to the import and object of Regulation No. 2.

But then the complainers say that those wide powers which the regulations confer upon the War Office and the Admiralty are subject to three limitations or restrictions. In the first place, it is said that by the regulations the possession of land can only be taken by a competent naval and military authority, and that is undoubtedly the case. But then it seems to me that in a case of this sort, where the action of a public department is being challenged, I must assume in the absence of specific challenge that everything has been properly done. It seems to me that it is for the complainers to aver and, if they can, to establish that a competent naval or military authority did not act in the manner in question. That averment is not made, and accordingly it is unnecessary to consider further the first limitation on the right of action by the War Office.

The second limitation or restriction which, according to the complainers, is laid by the regulations upon the powers of the authorities is that the land can only be taken where the taking of it is necessary for the purpose of securing public safety or the defence of the realm; and it was maintained for the complainers that it is a matter for the law courts to determine, on the question being raised, whether or not it was necessary for the public safety or the defence of the realm to take the land in question. I have grave doubts as to the soundness of that contention. It seems to me that the intention of the regulation was to make the War Office authorities final on this question of whether or not it was necessary to take the land for this purpose. That is a military question, and I think it is unlikely that the framers of the regulations intended that that military question should, with all the public disclosure which might be attendant upon its determination, be matter for the consideration of a court of law. But it is a debatable point whether the view I have expressed as to the meaning of this part of the regulation is or is not sound. Accordingly the complainers are probably right in saying that at all events it is a question for proper determination in the Court of Session whether or not the complainers have the right to raise this matter by pleadings and have it determined in a court of law.

In the third place, the complainers maintain that there is a limitation upon the powers bestowed upon the authorities in terms of the general regulation No. 1. That regulation provides—‘… [ quotes, v. sup.] …’

Now undoubtedly, as it seems to me, the regulation which I have just read confers certain rights upon the subject, and subjects the mode in which the war authorities do their duty to the consideration of some tribunal, and I cannot figure any other tribunal which is appropriate and competent to deal with the conduct of the authorities save the courts of law of the country. But it may very well be that while that is so it does not open the door of this Court to a process of interdict. That regulation may very well have been promulgated to give those who have been dispossessed of their lands a statutory right to exact damages from the public authorities, which otherwise they did not have under the regulations, and it may be that, although they have that right at the end of the day,

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yet under the regulations they are not entitled to proceed against the public authorities while the public work is being done, by a process of interdict.

The disadvantages of conceding this right to the subject are obvious. In the first place, you stop what may be a vital and important national work if the hands of the military authorities are tied while this question is being determined, it may be, by the House of Lords, and fatal national consequences may ensue. Then, again, there is the question of publicity which attends litigation in this Court, and valuable information as to what is being done by the military authorities might be conveyed to the enemy if the manner in which the War Office are constructing this aerodrome were disclosed in litigation. But, again, as it seems to me, that is a matter upon which two views may be taken, and although on the merits, so far as I can see, the prospects of the complainers in regard to these two points are not at all good, I am not prepared at this stage to say that these two points which I have mentioned are not appropriate for fuller determination and decision by the Court of Session. The complainer maintained these two contentions in argument, and they are at least adumbrated in the pleadings. I accordingly propose to pass the note.

But, looking to the views which I have expressed, which are certainly not favourable to the prospects of the complainers, I must give effect to them in regard to the question of interim interdict. I am not prepared to tie the hands of the War Office if they choose to go on with the construction of this aerodrome, and to carry out such operations in the national interests as they see fit, in the vicinity of Loch E and on Loch E itself.

Accordingly I shall recal the interim interdict and pass the note.”

The respondents reclaimed, and argued—The note was incompetent. It was not alleged that C D was acting in a private capacity, but the prayer of the note was directed against him alone, and as a member of H.M. Army. The result was that he was placed in such a position that he must obey the orders of the Court and also those of his superior officers, and those were in conflict. In such circumstances the remedy sought was incompetent— Horne v. MacGregor, 1908, 15 S.L.T. 961 ( per Lord Mackenzie at p. 962). Further, the Secretary of StateforWar should have been called— Hawley v. Steele, 1877, 6 Ch D 521. The Defence of the Realm Consolidation Act 1914 (5 Geo. V, cap. 8); the Defence of the Realm Regulations Consolidated, 28th July 1916, Regulations 2, 3, 4, 43, 47, and 62, were referred to. The fact that the Lord Advocate had appeared did not render the note competent. Further, theanswers for the Lord Advocate must be accepted pro veritate— Poll v. The Lord Advocate, 1897, 1 F. 823 ( per Lord Kyllachy at p. 827), 35 S.L.R. 637. Consequently, even though the competent military authority might be bound to exercise a discretion as to the method of doing the work, the case must be dealt with on the footing that that discretion had been validly exercised. The complainers should have raised a declarator against the official department in question. Further, the complainers' averments were irrelevant, as they did not aver that C D was acting without authority or had exceeded his authority.

Argued for the complainers—The note was competent. It was incompetent to call an official department of State as a defender, as the King could do no wrong. The proper course, as was adopted here, was to call the individual who infringed a private right— Raleigh v. Goschen, [1898] 1 Ch 73; Broom's Legal Maxims (8th ed.), p. 40; Nireaha Tamaki v. Baker, [1901] AC 561; Smith v. The Lord Advocate, 1897, 25 R. 112 ( per Lord Young at p. 123), 35 S.L.R. 117. There was no question of an exercise of the royal prerogative, for the justification for the acts done was based upon a statute conferring powers, and the statute did not authorise what was done; it merely authorised a minimum of interference with private rights to secure the end in view—Defence of the Realm Regulations ( cit.), Regulation 1—and it was alleged that the operations had not been confined to that minimum. Whether or not the operations had been limited to the minimum was a question examinable by the Court. In Poll's case ( cit.) the ground of the decision was that an alien could not found upon constitutional rights belonging to British subjects. Hawley's case ( cit.) was distinguished, for in it the Secretary of State for War owned the ground in question. In Bainbridge v. The Postmaster-General, [1906] 1 KB 178, the Postmaster-General was held not to be liable for one of his subordinates in executing the functions of his Department. Further, the averments of the complainers were relevant, and the fact that the answers for the Lord Advocate might be accepted pro veritate did not make them irrelevant. Further, the case stated should not be decided on relevancy against the complainers when they had not had a chance to reply to the answers. In Sheffield Conservative Club v. Brighton, 1916, 32 T.L.R. 598, and In the matter of a Petition of Right, [1915] 3 K.B. 649, proof was allowed.