Oppenheimer v Cattermole

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Hailsham of St. Marylebone,Lord Hodson,Lord Pearson,Lord Cross of Chelsea,Lord Salmon,Lord Chancellor,Lord Hailsham of Saint Marylebone
Judgment Date05 February 1975
Judgment citation (vLex)[1975] UKHL J0205-3

[1975] UKHL J0205-2

House of Lords

Lord Hailsham of St. Marylebone

Lord Hodson

Lord Pearson

Lord Cross of Chelsea

Lord Salmon

Meier Oppenheimer
and
Jesse Alma Cattermole (H.M. Inspector of Taxes)
And between
Miriam Nothman
and
Thomas Douglas Cooper (H.M. Inspector of Taxes)

Upon Report from the Appellate Committee, to whom was referred the Cause Nothman against Cooper (Inspector of Taxes), That the Committee had heard the Appellant in person and Counsel for the Respondent, as well on Thursday the 7th, as on Monday the 11th, days of November last, upon the Petition and Appeal of Miriam Nothman of 4, Queens Way, Hendon, London, N.W.4, praying, That the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 20th of July, 1972, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Thomas Douglas Cooper (one of Her Majesty's Inspectors of Taxes), lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled. That the said Order of Her Majesty's Court of Appeal of the 20th day of July 1972, complained of in the said Appeal, be, and the same is hereby Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That, by consent, the Respondent do pay, or cause to be paid, to the said Appellant the Costs incurred by her in respect of the said Appeal, such Costs to be taxed on a Common Fund Basis, and the amount thereof to be certified by the Clerk of the Parliaments.

Lord Hailsham of St. Marylebone

My Lords,

1

I have had the advantage of reading in draft the illuminating opinion about to be delivered by my noble and learned friend, Lord Cross, and since in almost everything I agree with it my own opinion can be correspondingly short.

2

The decisive point in this case is whether, during the assessment years, the appellant Meier Oppenheimer was a dual national possessing the German nationality (which had been his by birth) in addition to the British nationality which he acquired by naturalisation in 1948.

3

If this question is answered affirmatively he can claim the advantage of Article IX of the Double Taxation agreements between this country and the Federal Republic in respect of the pension he receives from them. Otherwise his appeal fails.

4

It is true that under the terms of the agreements the question must be decided by English law (see Art. II(3)), but English law requires as a rule that the question of foreign nationality falls to be decided according to the municipal law of the foreign state concerned. (See Re Stoeck [1921] 2 Ch. 67, see especially p. 82.) According to English law that municipal law is a question of fact.

5

It is, of course, the case that Russell J., in the course of Ex parte Stoeck accepted that in exceptional cases English law might attribute a particular foreign nationality to persons who might not in fact possess it, as may have been done in the case of Weber [1916] 1 K.B. 280 and [1916] 1 A.C. 421 and Liebman [1916] 1 K.B. 268. These, however, were cases in which a person who had never acquired British nationality was classed as an enemy alien in time of war owing to his continuing connection with the enemy state. I can see no reason for invoking such exceptional considerations here. It is also true that in time of war English law will for certain purposes disregard changes of status made by the enemy state during the war: c.f. R. v. Home Secretary Ex parte "L" [1945] K.B. 7, Lowenthal v. Attorney-General [1948] 1 All E.R. 295. But I agree with the Court of Appeal that this particular doctrine no longer applies after the end of hostilities.

6

It appears quite clearly from the supplemental case that the appellant's status for the assessment years in the municipal law of the Federal Republic depends on Article 116(2) of the Grundgesetz or Basic Law as construed in the light of the decisions of the Constitutional Court, e.g. in 1968. The Commissioners have found as a fact that in the assessment years the appellant was not regarded as a German citizen according to German law, unless he applied for it which he had not done during the assessment years, and I can see no reason for disputing this finding. On the contrary, were I to attempt the task on the basis solely of Article 116(2) and the German decisions exhibited to the Case I would reach the same conclusion. In arriving at their own conclusion the Commissioners enjoyed in addition the oral evidence on this point of two German lawyers. The case below was argued largely on the question whether English Courts would recognize the infamous decree of the National Socialist régime of 25th November, 1941, which purported to deprive the appellant of his German nationality on the ground that he was a Jew. Goulding J. upheld the appellant's contention on the grounds stated in the cases Ex parte L. (supra) and Lowenthal (supra) which were cited before him. But, as I have said, I agree with the Court of Appeal that this ground, founded on the public policy of a belligerent United Kingdom, continued only during the continuance of the state of war between this country and Germany. In the light of the supplemental Case, the opinion of Buckley and Orr L.JJ. that the National Socialist decree, for all its discriminatory character, was effective to deprive the appellant of his citizenship cannot be supported, since the effect of the 1968 decision of the Constitutional Court, and the findings of the Commissioners can now be seen to contradict this possibility. The position is governed by the present Federal Law and not by the National Socialist decree, and the conflicting considerations which led the Federal legislature to adopt the particular solution contained in Article 116(2) of the Grundgesetz are adequately stated by the Constitutional Court in their 1968 decision, and in the Commissioners' finding. It is clear that the Federal legislature did not recognize the National Socialist decree, but sought to deal with a difficult practical problem on humane and reasonable lines which left persons in the position of the appellant outside German nationality unless and until they applied to receive it. The position would have been the reverse had the appellant gone to live in Germany. In that case the law of the Federal Republic would have presumed that he wished to be recognized as a national ab initio unless he unequivocally expressed a wish to the contrary. What would have been the decision in English law had the point fallen to be decided at a point of time before the Grundgesetz came into operation or if the Constitutional Court had reached a different conclusion in 1968, is, perhaps fortunately for us, academic. The arguments for and against are set out in the article in the Law Quarterly Review which led, directly or indirectly, to the remission of the case to the Commissioners. (See The Present Validity of Nazi Nationality Laws by F. A. Mann, 89 L.Q.R. 194). I would prefer to express no concluded opinion upon it. But I do point out, with the author of the article above referred to, that only in a relatively small proportion of cases is the possession of dual nationality an advantage to the possessor. There would seem small value in adding hardship to injustice in order to emphasise the cruel nature of the injustice. I quite see the force of the argument contained in the opinions of my noble and learned friends Lord Cross and Lord Salmon to the effect that the validity of a law cannot depend on its effects on individuals. But with due respect to that argument, foreign municipal law is not a question of law but of fact, and the only way known to English law of disregarding an unpleasant fact is to create the legal fiction that it does not exist. I do not think that such fictions always serve a useful purpose, and where they do, among the criteria would certainly be included the effect of the proposed fiction on individuals but not, I venture to think, the distasteful nature of the facts. It may well be that English law will not give a single and unequivocal answer to the problems raised by the unjust and discriminatory legislation of a foreign country. (See for instance A. M. Luther Co. v. James Sagor & Co. [1921] 3 K.B. 532; Princess Olga Paley v. Weisz [1929] 1 K.B. 718; and c.f. also Frankfurther v. W. L. Exner Ltd. [1947] Ch. 629 and Novello & Co. Ltd. v. Hinrichsen Edition Ltd. [1951] Ch. 595. American law appears to have fallen short of rejecting the National Socialist decree, at least when the consequence of doing so would have been the internment of the propositus. (See United States ex rel, Schwarzkopf v. Uhl 137 Fed. Rep. (2nd Series) p. 898). The fact remains that, for the purposes of the case before us, the National Socialist decree falls to the ground, the Constitutional Court of the Federal Republic having declared it, for the purposes of the Municipal Law as from the first "Unrecht" and not law, and we cannot do other than hold that it was invalid.

7

The remaining judgment in the Court of Appeal was that of Denning M.R., who based his reasoning on the effect in English law of the application of the appellant for British naturalisation in 1948. With great respect to the learned Master of the Rolls I do not find this reasoning convincing. It proceeds upon the basis, which is contrary to In re Stoecke (supra) that English Law can decide who is and who is not a German national, and appears to assume that the...

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