Green v. The Lord Advocate [1918] ScotLR 647 (29 May 1918)

Green v. The Lord Advocate [1918] ScotLR 647 (29 May 1918)

The note of suspension and interdict is incompetent because the complainers, by operation of the 1917 Agreement, the Order in Council, and the Military Service Acts, were deemed enlisted in the British Army as of September 1917. The statutory code provides that disputes about liability to military service must be...

Source-derived case information.

Citation
[1918] ScotLR 647
Parties
Complainers: Jack Green and others; Respondents: The Right Honourable James Avon Clyde, His Majesty's Advocate for Scotland, Major W. Ross, and Colonel William Robertson
Jurisdiction
Scotland
Judgment Date
29 May 1918
Procedural Posture
Note of Suspension and Interdict / Inner House, Second Division, Reclaiming Motion Against Lord Ordinary's Interlocutor
Outcome
Note of suspension and interdict refused as incompetent; interlocutor of Lord Ordinary recalled.
Legal Topics
Military Conscription of Aliens, Jurisdiction of Civil Courts, Treaty Interpretation, Statutory Construction, Competency of Suspension and Interdict, Effect of International Agreements on Domestic Law
Public Law Military Law Administrative Law Military Conscription of Aliens Jurisdiction of Civil Courts Treaty Interpretation Statutory Construction Competency of Suspension and Interdict +1 more

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Summary, issues, holding and outcome

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Parties

Jack Green and others

Complainers

The Right Honourable James Avon Clyde, His Majesty's Advocate for Scotland, Major W. Ross, and Colonel William Robertson

Respondents

Procedural Posture

Note of Suspension and Interdict / Inner House, Second Division, Reclaiming Motion Against Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether Russian subjects resident in Scotland are liable to British military service after Russia's withdrawal from the war and conclusion of peace with Germany
  2. 2 Whether the 1859 Treaty between Great Britain and Russia exempting Russian subjects from compulsory military service remains operative
  3. 3 Whether the Agreement of 1917 and subsequent Order in Council lawfully subjected Russian subjects to British military service

Ratio Decidendi

The note of suspension and interdict is incompetent because the complainers, by operation of the 1917 Agreement, the Order in Council, and the Military Service Acts, were deemed enlisted in the British Army as of September 1917. The statutory code provides that disputes about liability to military service must be determined by the 'civil court' of summary jurisdiction, not the Court of Session. The 1859 Treaty was lawfully modified by the 1917 Agreement and subsequent legislation, and no subsequent act of the Russian Government or change in international relations has abrogated the complainers' liability under British law.

Court Disposition

Note of suspension and interdict refused as incompetent; interlocutor of Lord Ordinary recalled.

Orders

  • The note is dismissed as incompetent.
  • The interlocutor reclaimed against is recalled.