Scottish Court of Session Decisions

Edward Beattie, coal miner, Banknock, Stirlingshire, complainer, presented a note of suspension and interdict against (1) the Right Honourable James Avon Clyde, Lord Advocate, as representing the Ministry of National Service, and the Director-General of National Service, (2) the Minister of National Service, and (3) the Director of Recruiting for Scotland, respondents, craving suspension of a notice dated 19th April 1918 calling him up for service with the colours, and also interdict against the issue to him of any further calling-up notice, or requiring him to join the colours, until such time as the complainer should become liable at law to be called up for active service.

The complainer pleaded, inter alia—“1. The complainer not being liable to military service, the calling-up notice complained of should be suspended, and interdict granted as craved.”

The respondents pleaded, inter alia—“1. The note is incompetent. 4. The complainer's certificate of exemption having been validly withdrawn, the complainer is liable for military service, and the note of suspension and interdict should be refused.”

The facts of the Case are given in the opinion ( infra) of the Lord Ordinary ( Anderson) who, on 2nd May 1918, sustained the first plea-in-law for the respondents and refused the note.

Opinion.—“This is a note of suspension and interdict at the instance of Edward Beattie, who describes himself as a coal miner, Banknock, Stirlingshire, and it is directed against the public authorities who are responsible for the obtaining of recruits for the British army.

In the prayer of the note the complainer craves that the Court should suspend the calling-up notice dated 19th April 1918 which is addressed to him—a notice calling him up as a recruit for the army—and in the second place the Court is asked to interdict the public authorities responsible for recruiting from issuing to the complainer any further calling-up notice or requiring him to join the colours, and to grant interim suspension.

Counsel for the complainer moved that the note should be passed, and that interim suspension should be granted. On the other hand the respondents' counsel maintained that the note was incompetent for reasons which I shall consider later, and he moved that it be refused at this stage.

The facts which have given rise to this question are set forth in the pleadings, and they are to this effect—That the complainer is now thirty-two years of age, and he avers that he has been an underground coal miner since he was eighteen years of age. He says that is his sole occupation. At the time when war broke out he states that he was not in point of fact working in a coal mine, which he says was due to a temporary illness, and he avers that since 29th April 1916 he has been continually employed in that capacity. On 15th August 1915 the complainer registered himself under the National Registration Act of that year as a professional prize fighter and boxer.

The matter depends in a great measure on the effect which the Military Service Act 1916 (5 and 6 Geo. V, cap. 104) had upon the position of the complainer at the time it came into operation with reference to his liability to military service.

The complainer at the date when the Act affected him seemed to fulfil the conditions of military service which are set forth in the first section of the statute. It ought to be noted that the said Act is dated 27th January 1916, and by the provisions contained in the fourth section of the statute the Act came into operation not later than 10th February following, and the appointed date—that is to say, the date at which on considerations of age a man either did or did not become affected by its provisions—was a date not later than 3rd March following.

Now, as I have said, the complainer at the date when that Act came into operation, and at the appointed date, seemed to satisfy the conditions making it incumbent upon him to be regarded as incorporated in the British army. He was then a male British subject. He had been on 15th August preceding ordinarily resident in Great Britain. He was of the appropriate age, being then twenty-nine years of age, and on 2nd November of the preceding year he was unmarried.

The complainer's counsel maintained that he did not fall within the provisions of that section because of this clause which it contains—‘Unless he is within the exceptions set out in the First Schedule of this Act.’

If the exceptions set forth in the First Schedule are looked at it will be found that by the sixth clause of the schedule the Act did not apply to men who held certificates of exemption under the Act ‘for the time being in force.’

It is plain that this could not apply to the complainer when the Act came into force because his certificate is produced, and it shows that he did not obtain it until 29th April 1916. But if regard is had to the words ‘for the time being in force’ and to the common-sense of the thing it is manifest that the effect of a certificate of exemption is just this, that it suspends the operation of the statute so long as the certificate remains in force, but that if the certificate is withdrawn the provision of the Act revives and becomes applicable to the person who had held the certificate. That seems to me to be the ordinary effect to be attributed to these words ‘for the time being in force,’ and is in consonance with the commonsense view of the matter.

Now it was resolved by the Home Department, who have control of mining matters in this country, to exempt generally

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those who were employed as coal miners, and the complainer received as I have said a certificate of exemption on 29th April 1916. In May 1917 the Home Secretary issued what has been called a Decertification Order, the effect of which was to recal or withdraw certificates of exemption which had been granted to men who had become miners subsequent to the outbreak of war. Post-war miners were to be called to the British Army, and only those miners who had been actually engaged in the industry of mining at the time when war broke out were to retain the privilege of being exempted from military service.

The recruiting authorities considered that the complainer was a post-war miner, and that he was not entitled to the privilege of exemption in respect of having been engaged in mining at the time when war broke out, and, treating him as a post-war miner, had called him to the colours in the beginning of this year. What happened subsequent to that seems to be I think correctly set forth by the respondents in their fourth answer.

When the complainer was called to the colours in the beginning of the present year he lodged a form of appeal No. 26 with a Special Court, called the Colliery Recruiting Court, which had been set up to deal as a Military Tribunal with this question of recruiting from coal miners, and the ground of his appeal was that he was being improperly regarded as a post-war miner, that he was a miner at the time when war broke out, and therefore was entitled to continued exemption.

That was a question of fact, and the Colliery Recruiting Court was the appropriate tribunal to deal with that question of fact. The question so raised was considered by the Colliery Recruiting Court at a sitting at Edinburgh on 12th January 1918, and they then adjourned the case to enable the complainer to adduce evidence that he was not within the class decertified by the Home Secretary's Order of May 1917. They then held a subsequent sitting on 13th April 1918, and having then considered further the question, the Colliery Recruiting Court dismissed the complainer's appeal in respect that he had produced no evidence to satisfy the Court that a mistake had been made as to the date of the complainer's entry into the coal mining industry.

That was a decision reached upon a question of fact, and on the only question on which the parties are at issue in the present proceedings. The respondents' counsel maintained that the note was incompetent on two grounds. In the first place, it was argued that this was a matter of administration, and therefore a court of law had no right to interfere with any decision which had been come to by the administrative body.

In my judgment that proposition is too broadly stated. There is abundant authority, especially in decisions of the English Court since these Acts were passed, to the effect that if error in matter of law is alleged, or if unjust and improper procedure is complained of on the part of an administrative body charged with the administration of these Acts, it is competent for the party aggrieved to appeal to a court of law. That is based upon the inherent constitutional right of the subject to appeal to a law court where injustice has been suffered, even from the action of a body charged with purely administrative duties. And if complaint had been made here that the Colliery Recruiting Court had gone wrong in law or had erred in the matter of procedure, I should have had no hesitation in upholding my jurisdiction to consider that complaint and to give the appropriate remedy. But that is not the complaint.

The second ground upon which the respondents' counsel maintained that the note was incompetent seems to me to be unassailable, and that ground is just this—that this Court is debarred from reviewing on a pure question of fact a decision which has been properly arrived at by the military tribunal.

I think that proposition is sound both on a consideration of the statutory provisions and of the decisions pronounced in the English Courts. The second schedule of the Military Service Act of 1916 deals specially with the matter of appeal, and it provides for appeal from a local tribunal to an appeal tribunal, and from an appeal tribunal to a central tribunal. It is implied that there is no further appeal to a court of law with reference to the matters with which these tribunals are charged, to wit, determination of questions of fact. If further authority on this point were necessary, it is to be found in such a decision of the English Courts as that of ex parte East, 86 L.J. (K.B.), 598, where the Court of Appeal decided in terms that they were not a court of review of a decision of a military tribunal on a pure question of fact. (See also ex parte Burns, 86 L.J., 158.)

The case of ex parte East is exactly in point, and holding as I do that I have no power to review the disputed question of fact which has been determined by the Military Tribunal, I decide that the note is incompetent, and on that ground I refuse it.”

The complainer reclaimed, and referred to the following authorities:— Institute of Patent Agents v. Lockwood, (1894) 21 R. (H.L.) 61, 31 S.L.R. 942; Rintoul v. Scottish Insurance Commissioners, (1913) 7 Adam 210, 1913 S.C. (J.) 120, 50 S.L.R. 892; Caledonian Railway Company v. M'Gregor, 1909 S.C. 1010, 46 S.L.R. 721; Tasker v. Simpson, (1904) 7 F. (J.) 33, 42 S.L.R. 228; Chivas v. Duke of Gordon, July 11, 1804, F.C.; Imray, March 2, 1811, F.C.; ex parte Burns, (1916) 86 L.J., K.B. 158, per Lord Reading, C.J.; Flint v. Attorney-General, [ (1918)] 1 Ch. 216; Rosin v. Attorney-General, (1918) 34 T.L.R. 417; Ersk. Inst. i, 2, 7.

Counsel for the respondents cited the Military Service Act 1916 (5 and 6 Geo. V, cap. 104), sections 1 (1), 2 (2), 3 (1).

At advising—