§ LORD STRACHIE rose to call the attention of the Government to the decision of the Lord Chief justice that men enlisted under the Derby Scheme did not come under the Military Service Act, 1916.
§ The noble Lord said: My Lords, I desire to call attention to the decision in the King's Bench Division in the case of Rex v. Huntingdon Appeal Tribunal ex perte Mann. I do so in order to bring to the notice of the House the inequalities under which the voluntarily attested man suffers in comparison with the conscripted man. This particular case has nothing to do with the conscientious objector; if it had, I should be the last member of your Lordships' House to refer to it. This is the case of a tenant farmer who applied for total exemption; the appeal was dismissed, and he was granted simply one month's exemption. If that man had been a conscript and not under the Derby Scheme, even if he had only been given five days' postponement, he would have got not one month but two months.
§ It is very undesirable that these cases should continually happen, showing that under the Act conscripted men are in a better position than those who enlisted voluntarily under the Derby Scheme, whereas those who advocated that scheme gave, as one of the reasons why men should join under it, not only patriotism, but also that they would be in a very much better position if the Government ever made up their minds to have conscription generally. We have not only got the case of the unmarried man, but we shall have in the near future the case of the married man, Who will also be put in a much worse position if he has attested than the married man who did not.
§
The Lord Chief Justice said that the applicant had enlisted under the Derby Scheme and did not come under the Military Service Act, 1916. The material part of the judgment is at the end, where the Lord Chief Justice said—
It was contended that the Appeal Tribunal had no power to do what it did, and was functus officio.
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In his view that contention was wrong. It could not be said to be functus officio, because it was not a Tribunal at all in the strict sense. No doubt the military authorities would follow its advice, though they were not bound to do so. It followed that in the case of an attested man the Court could not grant the mandamus. It was right to point out that the Tribunals instituted under the Military Service Act, 1916, were in a totally different position, because they were appointed in virtue of the Statute, and were therefore a statutory body which would come under the jurisdiction of the Court. The rule would be refused.
It will be very hard indeed on those men who have come forward for patriotic reasons, first of all the unmarried men and then the married men, if the Government do not put some provision in the Bill now before another place giving equal rights for the voluntarily attested man to appeal and to get a mandamus if the Court is satisfied that his case is good. From the decision of the Lord Chief Justice, which was agreed to by the other Judge sitting with him, these Tribunals practically have no power at all, and only the military representatives and the military authorities have any real rights in the matter. I cannot help thinking under the present condition of things, when we are rapidly approaching general conscription and all men who have not voluntarily attested will be placed under the Conscription Act, that it is very undesirable that there should be this inequality. I consider that those married men who attested should have equal rights of appeal to those who did not attest, and it would be a mere act of justice on the part of the Government to bring this about.
LORD SANDHURSTMy Lords, when the new scheme of recruiting was instituted in the autumn of last year under the direction of Lord Derby it was arranged that men on attestation should not be called directly to the Colours but should be passed to the Army Reserve, to be called to the Colours in groups according to their age and marital condition. As part of the administrative machinery of the scheme, it was arranged that Tribunals should be established throughout the country before which a man whose patriotism prompted him to attest could state his case if he considered that his private circumstances or his occupation made it right or desirable that he should be allowed to continue for the time being in civil life. The War Office agreed to abide by the decisions of these Tribunals, subject to the right of appeal to a central body, but this was merely an administrative arrangement 939 without legal sanction. By the act of attestation a man became a soldier. Whatever the decision of the Local Tribunal may be, he remains a soldier; but in practice the War Office have agreed not to call him up for service unless or until, in the opinion of his peers, as represented by the Local Tribunal, it is desirable that he should be called up. Other arrangements were made with regard to special classes of men—for example, Civil Servants, men in what were known as "reserved occupations," skilled munition workers, coal miners, and so forth—under which the War Office agreed to accept the decision of some other person or body or Department on the question of whether the attested man should be called to the Colours or should be allowed to remain in the Reserve and continue in his civil vocation. But here, again, there was no legal sanction, and the attested man, therefore, has no redress at law if he is dissatisfied with the decision of the person, body, or Department authorised to determine the question.
When the Military Service Act was passed the system of the Tribunals was adopted for its purposes; but with this difference, that the Tribunal under the Military Service Act was a statutory body authorised by law to determine whether a man was to become a soldier at all or to remain a civilian in law and in fact entirely removed from the operation of the Act. It was felt, however, that so far as was possible the Derby recruit should be in no worse a position than a man to whom the Military Service Act applied, and instructions to Tribunals were, with the consent of the War Office, drawn up to correspond as closely as possible with the Regulations under the Military Service Act.
The Tribunals under the Military Service Act determine the question of whether a man is to become in law and in fact a soldier. The same bodies, in dealing with cases of attested men, decide whether a man who is technically a soldier as from the date of attestation shall be called up for service with the Colours, the War Office having agreed to abide by their decision, subject to the right of appeal by either party to an Appeal Tribunal and to the Central Tribunal if the Appeal Tribunal consent. The noble Lord will see that the two cases are dissimilar. The compelled man under the Military Service Act is forced to be a soldier. The attested man must be supposed to be willing to be a soldier and to be 940 willing to place his claim for exemption, if he has one, before the Tribunal for arbitrament.
§ LORD STRACHIEMy point was whether the Government had any intention of putting the attested man in as good a position as the conscript, because it is quite clear, from the decision of the Court, the attested man is not in as good a position now.
§ [No further answer was given.]