[HOUSE OF LORDS]

AND

AND

Conflict of Laws - Confiscatory or political legislation - Nationality - German subject emigrating to England in 1939 - German decree of 1941 depriving German Jews resident abroad of their nationality - Naturalised British subject in 1948 - German Basic Law of 1949 requiring Germans deprived of nationality to apply for renaturalisation - Effect of decree and Basic Law - Whether subject retaining German nationality for revenue purposes

Revenue - Income tax - Double taxation relief - German subject emigrating to England becoming British national - Annual pension from Germany - Whether retaining German nationality and thereby entitled to relief against income tax - Double Taxation Relief (Taxes on Income) (Federal Republic of Germany) Order 1955 (S.I. 1955 No. 1203), Sch., art. IX (1) ¹ - Double Taxation Relief (Taxes on Income) (Federal Republic of Germany) Order 1967 (S.I. 1967 No. 25), Sch., art. IX (2) ²

The taxpayer O, a German Jew, emigrated to England in 1939 as a result of Nazi persecution. In 1948 he became a naturalised British subject. From 1953 onwards he was paid an annual pension by the Federal German Republic. He was assessed to income tax in respect of that pension for the years 1953-54 to 1967-68 and appealed to the special commissioners claiming exemption from income tax under article IX (1) of the Schedule to the Double Taxation Relief (Taxes on Income) (Federal Republic of Germany) Order 1955 and article IX (2) of the Schedule to the Double Taxation Relief (Taxes on Income) (Federal Republic of Germany) Order 1967 on the ground that he had dual British and German nationality. Two German laws were proved before the commissioners: a law of 1913 under which a German who was neither domiciled nor permanently resident in Germany lost his nationality on acquisition of a foreign nationality, and a decree of November 1941 by which a German Jew lost his nationality if he was ordinarily resident abroad at the date of

1 Double Taxation Relief (Taxes on Income) (Federal Republic of Germany) Order 1955, Sch., art. IX (1): see post, p. 266E-F.

2 Double Taxation Relief (Taxes on Income) (Federal Republic of Germany) Order 1967, Sch., art. IX (2): see post, p. 266F-G.

the decree. The commissioners held that O was not entitled to relief under the double taxation relief orders because he had ceased to be a German national not later than 1948 when he became a naturalised British subject. Goulding J. allowed an appeal by O, holding, inter alia, that the decree of 1941 should be disregarded. On appeal by the Crown, the Court of Appeal allowed the appeal.

O appealed. After the conclusion of submissions, it appeared that there were grounds for thinking that the findings of the special commissioners as to the relevant German law might have been based on inadequate material, and in particular that article 116 (2) of the Basic Law of the Federal German Republic, enacted in 1949, ³ might be relevant. The case was subsequently remitted to the special commissioners for further consideration, and the appeal was then restored for further argument. At the same time, an appeal by the taxpayer N was heard which raised, inter alia, the same point as to nationality as that in O's case: -

Held dismissing the appeals, that on the true construction of article 116 (2) of the Basic Law the appellants had on the enactment of the Basic Law ceased to be German nationals unless and until they applied to be such, which they had not done (post, pp. 262D-E, 265A, E, 271D-G, 274C-D, 281D,284E-F); and that there was no reason to attribute German nationality to them for the purposes of the double taxation legislation (post, pp. 262A-C, 265A, E, 274H - 275A, 276F-G,281D).

Ex parte Weber [1916] 1 K.B. 280, C.A. (Note); [1916] 1 A.C. 421, H.L.(E.) distinguished.

Per curiam. The doctrine that in time of war English law will for certain purposes disregard changes of status made by the enemy state no longer applies after the end of hostilities, which probably means (per Lord Hodson, Lord Cross of Chelsea and Lord Salmon) the end of the fighting rather than the official end of the war (post, pp. 262B-C, F-G, 275F-H, 281D).

Naturalisation of a person as a British subject, whether in peace time or in war time, does not affect a person's foreign nationality as determined by the municipal law of the foreign state concerned (post, pp. 263H, 278G - 279G, 281D).

Per Lord Hailsham of St. Marylebone, Lord Hodson, Lord Cross of Chelsea and Lord Salmon (Lord Pearson dissenting). The 1941 decree would, having regard to its nature, not have been recognised by the courts of this country as effective to deprive the appellants of their German nationality (post pp. 263G, 265A-D, 276H - 277B, 278C, 282B).

Decision of the Court of Appeal [1973] Ch. 264; [1972] 3 W.L.R. 815; [1972] 3 All E.R. 1106 affirmed on different grounds.

The following cases are referred to in their Lordships' opinions:

Aksionairnoye Obschestvo A. M. Luther v. James Sagor & Co. [1921] 3 K.B. 532, C.A.

Colquhoun v. Brooks (1889) 14 App.Cas. 493, H.L.(E.).

Foulsham v. Pickles [1925] A.C. 458; 9 T.C. 261, H.L.(E.).

Frankfurther v. W. L. Exner Ltd. [1947] Ch. 629.

Helbert Wagg & Co. Ltd. In re Claim by [1956] Ch. 323; [1956] 2 W.L.R. 183; [1956] 1 All E.R. 129.

Kramer v. Attorney-General [1923] A.C. 528, H.L.(E.).

3 See post, p. 269F-G.

Lowenthal v. Attorney-General [1948] 1 All E.R. 295.

Novello & Co. Ltd. v. Hinrichsen Edition Ltd. [1951] Ch. 595; [1951] 1 All E.R. 779; [1951] Ch. 1026; [1951] 2 All E.R. 457, C.A.

Paley Olga (Princess) v. Weisz [1929] 1 K.B. 718, C.A.

Rex v. Home Secretary, Ex parte L. [1945] K.B. 718, D.C.

Rex v. Vine Street Police Station Superintendent, Ex parte Liebmann [1916] 1 K.B. 268, D.C.

Stoeck v. Public Trustee [1921] 2 Ch. 67.

United States ex rel. Schwarzkopf v. Uhl (1943) 137 Fed.Rep. 2d 898.

Weber, Ex parte [1916] 1 K.B. 280, C.A. (Note); [1916] 1 A.C. 421, H.L.(E.).

The following additional cases were cited in argument on the first hearing of the appeal in Oppenheimer v. Cattermole:

Connecticut Fire Insurance Co. v. Kavanagh [1892] A.C. 473, P.C.

Edwards v. Bairstow [1956] A.C. 14; [1955] 3 W.L.R. 410; [1955] 3 All E.R. 48, H.L.(E.).

Murphy v. Stone-Wallwork (Charlton) Ltd. [1969] 1 W.L.R. 1023; [1969] 2 All E.R. 949, H.L.(E.).

Rex v. Commanding Officer, 30th Battalion Middlesex Regiment, Ex parte Freyberger [1917] 2 K.B. 129, D.C. and C.A.

Tasmania, The (1890) 15 App.Cas. 223, H.L.(E.).

The following additional case was cited in argument on the further hearing of the appeal in Oppenheimer v. Cattermole:

Chamberlain's Settlement, In re [1921] 2 Ch. 533.

The following additional cases were cited in argument in the appeal in Nothman v. Cooper:

Beynon v. Thorpe (1928) 14 T.C. 1.

Chibbett v. Joseph Robinson & Sons (1924) 9 T.C. 48.

Dott v. Brown [1936] 1 All E.R. 543, C.A.

Drummond v. Collins (1915) 6 T.C. 525, Horridge J., C.A. and H.L.(E.).

Inland Revenue Commissioners v. Anderström (1927) 13 T.C. 482; 1928 S.C. 224.

Inland Revenue Commissioners v. Pattison, 1960 S.C. 118; 38 T.C. 617.

Inland Revenue Commissioners v. Ramsay (1935) 20 T.C. 79, C.A.

Laird v. Inland Revenue Commissioners (1929) 14 T.C. 395.

Stedeford v. Beloe [1932] A.C. 388; 16 T.C. 505, Rowlatt J., C.A. and H.L.(E.).

APPEALS from the Court of Appeal.

OPPENHEIMER v. CATTERMOLE

This was an appeal by the taxpayer, Meier Oppenheimer, by leave of the Court of Appeal (Lord Denning M.R., Buckley and Orr L.JJ.) from their judgment on July 20, 1972, allowing an appeal by the Crown from a judgment of Goulding J. on December 21, 1971 [1972] Ch. 585. By his judgment, Goulding J. allowed an appeal by the taxpayer by case stated from a decision of the Commissioners for the Special Purposes of the Income Tax Acts that he was assessable to income tax on certain pension payments received by him from German public funds.

The stated case on which Goulding J. and the Court of Appeal based their judgments is set out at [1972] Ch. 585, 586-589.

Sir Elwyn Jones Q.C. and Max Englard for the taxpayer.

John Vinelott Q.C., Patrick Medd Q.C. and Michael Baker for the Crown.

Their Lordships took time for consideration.

On November 5, 1973, the appeal was put back into the list for further argument in the circumstances which appear from the opinion of Lord Cross of Chelsea, below.

December 13, 1973. LORD HAILSHAM OF ST. MARYLEBONE L.C. My Lords, I have had the opportunity of reading the speech of my noble and learned friend, Lord Cross of Chelsea, and, for the reasons he gives, I agree the cause be remitted back to the special commissioners for further consideration.

LORD HODSON. My Lords, I agree with the terms of the order proposed by my noble and learned friend, Lord Cross of Chelsea.

LORD PEARSON. My Lords, I have had the advantage of reading the opinion of my noble and learned friend, Lord Cross of Chelsea, and I agree that for the reasons which he has given an order should be made in the terms which he has proposed.

LORD CROSS OF CHELSEA. My Lords, the question at issue in this appeal is whether the appellant, Mr. Oppenheimer, is liable to pay United Kingdom income tax for the tax years 1953-54 to 1967-68 inclusive on certain pension payments which he received during those years from German public funds. Mr. Oppenheimer, who is a Jew, was born in Germany in 1896. From 1919 to 1939 he taught at a Jewish orphanage in Bavaria but in 1939, after having been detained for a short period in a concentration camp, he succeeded in leaving Germany and coming to this country, where he has lived ever since. In 1948 he applied for and was granted a certificate of naturalisation and became a British subject. As a former employee of a Jewish religious community he has been since 1953 in receipt of a pension payable out of the revenues of the German Federal Republic. Conventions with regard to double taxation relief were made between the United Kingdom and the Federal Republic in 1954 and 1964 and made law in this country by the Double Taxation Relief (Taxes on Income) (Federal Republic of Germany) Orders 1955 and 1967. Article IX (1) of the former convention - which the appellant contends is applicable to the first seven assessments in dispute - runs as follows:

"Remuneration, including pensions, paid, in respect of present or past services or work, out of public funds of one of the contracting parties shall be exempt from tax in the territory of the other contracting party, unless the individual concerned is a national of that other party without being also a national of the first-mentioned party."

Article IX (2) of the second convention which the appellant contends is applicable to the other eight assessments is to the same effect. The appellant is, of course, undoubtedly a national of this country and the respondent admits for the purpose of this case that the pensions in question fall within the description in the conventions. The point at issue is whether the appellant was in the years of assessment not only a British subject but also a German national. Dr. Cohn, an expert in German law called by the respondents, gave evidence before the special commissioners, to whom the appellant had appealed against the assessments made on him, which the commissioners understood to be to the following effect: (1) The German Nationality Law of July 22, 1913, provides that a German who is neither domiciled nor permanently resident in Germany loses his nationality on acquiring a foreign nationality unless he has the previous written permission of the appropriate German authority to retain it. (2) A decree of November 25, 1941, enacted by the "Nazi" Government during the war provided that a Jew of German nationality who had his usual place of abode abroad when the decree came into force should lose his nationality forthwith. (3) By a decision of the Federal German Constitutional Court given in 1968 the decree of November 25, 1941, was held to be absolutely void ab initio but nevertheless that decision had no retrospective effect. (4) In Dr. Cohn's opinion, if the appellant had not lost his German nationality under the decree of November 25, 1941, he lost it under the nationality law of July 22, 1913, on becoming naturalised as a British subject in 1948. The commissioners accepted the evidence of Dr. Cohn, and held that the appellant ceased to be a German national at latest on June 4, 1948, when he became a British subject. They therefore confirmed the assessments. At the request of the appellant they stated a case for the opinion of the court which came before Goulding J. who reversed their decision. He held first that English law would not recognise the decree of November 25, 1941, as having any effect with regard to the appellant since it purported to alter during war time the nationality of someone who was then an enemy alien, and secondly that the appellant had not lost his German nationality by the law of July 22, 1913, since under German law he had already ceased to be a German national before he became a British subject - although our law regarded him as still a German national. The respondents appealed to the Court of Appeal (Lord Denning M.R., Buckley and Orr L.JJ.) who reversed the decision of Goulding J. and restored that of the commissioners. Lord Denning M.R. held that whatever the position might be under German law English law would not regard an enemy alien whom it allowed to become naturalised as a British subject during war time as continuing thereafter to be a national of the enemy country as well as a British subject. Buckley and Orr L.JJ. based their judgments on a different ground - namely, that, although English law would not recognise a change in the status of an enemy alien effected by the alien's domestic law during war time, that non-recognition only lasted so long as the state of war lasted, and that consequently when the state of war between this country and Germany came to an end our law would recognise that the appellant had been deprived of his status as a German national by the decree of November 25, 1941. The appellant appealed to this House from the decision of the Court

of Appeal and the appellate committee heard arguments from both sides on the basis of the findings as to German law made by the commissioners and set out in the stated case. But before we reported our views to the House we became aware that there were grounds for thinking that the findings of the commissioners as to the relevant German law might have been based on inadequate material and that, in particular, article 116 (2) of the constitution of the Federal Republic enacted in 1949 before the years of assessment might have a bearing on the point to be decided. We therefore put the appeal back into the list for further argument and, as a result of the discussion which then ensued, it became clear - and was accepted by counsel on both sides - the case ought to be sent back to the commissioners for further findings as to the relevant German law. I would, therefore, propose that an order be made in the following terms:

"That this case be and the same is hereby remitted back to the Commissioners for the Special Purposes of the Income Tax Acts for further consideration, and with a direction that they amend the case stated by finding on further consideration of the evidence already adduced and on consideration of any further evidence the parties may adduce and taking into account any relevant decisions of the German courts and their necessary implications and any other provision of German law (a) whether for the purposes of German municipal law the appellant was deprived of his German citizenship by the decree of November 25, 1941; (b) if the appellant was not deprived of his German citizenship by the said decree whether for the purposes aforesaid he was deprived of German citizenship by the German Nationality Law of July 22, 1913, on being naturalised a British subject on May 24, 1948, and taking into account his oath of allegiance on June 4, 1948; (c) if the appellant was deprived of German citizenship by the said decree or by the said German nationality law at any time prior to the assessment years whether (i) his German citizenship was reinstated or deemed to be reinstated by the constitution of the Federal Republic or by any legislation or judicial decision or under any other provision of German law, or (ii) his German citizenship would have been reinstated at any time before or during the relevant years of assessment if he had applied for German citizenship under article 116 of the Grundgesetz ['Basic Law'] 1949. And it is further ordered, that the said commissioners do report the amended case to this House."

LORD SALMON. My Lords, I agree with my noble and learned friend, Lord Cross of Chelsea.

Pursuant to the order of the House the special commissioners (one of the two original commissioners and another commissioner, the second of the original commissioners having retired from the public service) stated a supplementary case, which concluded as follows:

"In the light of what he took to be the German law having regard to the cases mentioned Dr. Jaques answered the question whether for the

purposes of German municipal law the appellant was deprived of his German citizenship by the 1941 decree with a firm 'no.' Dr. Cohn found the matter too complex for a simple answer 'yes' or 'no.' By the 1968 decision of the [Federal] Constitutional Court the 1941 decree was held to be invalid and as not depriving the appellant of his German citizenship. But on the coming into effect of the Basic Law the appellant was no longer treated by the German state as a German national unless he applied for a regrant of his nationality or returned to Germany, and it followed that from then on he was no longer a German national. The effect of the 1968 decision taken in conjunction with the 1941 decree and article 116 (2) [of the Basic Law] was that from May 23, 1949, the appellant was effectively deprived of German nationality. To the second question, 'If the appellant was not deprived of his German citizenship by the said decree whether for the purposes aforesaid he was deprived of German citizenship by the German Nationality Law of July 22, 1913, on being naturalised a British subject on May 24, 1948, and taking into account his oath of allegiance on June 4, 1948,' Dr. Jaques again gave the simple answer 'no.' Dr. Cohn's answer was that although the appellant was not deprived of his German citizenship by the said decree he was by virtue of having been naturalised as a British subject and having taken the oath of allegiance in 1948 no longer effectively a German national unless he either returned to Germany or was regranted German nationality. So far as Dr. Jaques was concerned there was no question of the appellant having lost his German nationality and therefore no question of his citizenship being reinstated. Dr. Cohn considered that nothing had occurred by which the appellant's citizenship had been reinstated but that it would have been reinstated if he had returned to Germany or had applied under article 116 (2). On considering the whole of the evidence of the two expert witnesses and the cases which were cited and explained to us, it seems to us that the question put to us as to the appellant being 'deprived' of his German citizenship is precisely the question to which the German courts have carefully and deliberately avoided giving an answer. The reasons for this avoidance are twofold: on the one hand the courts were concerned that nothing should be said which might suggest that the 11th ordinance [the 1941 decree] was valid - it was void ab initio. On the other, it was inappropriate to fasten on expatriates the German nationality of which the 11th ordinance had purported to deprive them unless they gave some indication that they would welcome its retention. In the case of those who had never had an opportunity to indicate a preference, in the absence of concrete proof to the contrary it was to be assumed that they would have welcomed retention. In the case of those who survived and could evince a wish one way or the other, the German state would not recognise the expatriates as German nationals without their taking the first step.

"For these same reasons we find ourselves unable to answer the questions as framed with a simple 'yes' or 'no.' We prefer the approach of Dr. Cohn to that of Dr. Jaques on grounds of consistency and because we think that it reconciles the decisions cited to us.

Accordingly, we answer the questions put as follows: (a) The appellant was not deprived of his German citizenship by the decree of November 25, 1941. The effect of the decree and of article 116 (2) of the Basic Law was that in the relevant assessment years for the purposes of German municipal law the appellant was not regarded as having German nationality unless and until he chose to assert it by returning to Germany to live or by making application. (b) When the appellant was naturalised a British subject, and subsequently took the oath of allegiance, the German nationality law of July 22, 1913, applied so that the appellant, if and so far as he was a German national at that time, ceased to be a German national, subject, however, to his being able to avail himself of the opportunity afforded by article 116 (2) of the Basic Law of asserting his German nationality and thereby securing recognition as a German national. (c) (i) Nothing occurred prior to the assessment years which had the effect of reinstating the appellant's German citizenship, or which otherwise resulted in his being treated as a German national for the purposes of German municipal law. (ii) Had he applied at any time before or during the relevant assessment years under article 116 (2) (as he did subsequently), the appellant would thereafter have been treated as a German national for the purposes of German municipal law."

Further argument of the appeal then took place. The appeal of Nothman v. Cooper was heard at the same time.

NOTHMAN v. COOPER

This was an appeal by Miriam Nothman by leave of the Court of Appeal (Lord Denning M.R., Buckley and Orr L.JJ.) from their judgment on July 20, 1972 (Bar Library Transcript No. 237 of 1972), allowing an appeal by the Crown from a judgment of Goulding J. on December 21, 1971 (unreported). By his judgment Goulding J. allowed an appeal by the taxpayer by case stated from a decision of the Commissioners for the Special Purposes of the Income Tax Acts that she was assessable to income tax on certain payments made to her by the Federal Republic of Germany.

The facts are stated by Lord Cross of Chelsea.

Sir John Foster Q.C. and Max Englard for the taxpayer Oppenheimer. 1. The taxpayer is exempt from United Kingdom tax in the years of assessment if he was a national both of the United Kingdom and of Germany. 2. The taxpayer was a national of the United Kingdom. 3. The taxpayer was a national of Germany for the following reasons. A. The question whether the taxpayer was also a German national is decided according to United Kingdom law: Double Taxation Relief (Taxes on Income) (Federal Republic of Germany) Order 1967, art. IX (2). B. In deciding A three alternatives arise under all of which the taxpayer was a German national at the material time.

Alternative 1. (1) United Kingdom law under A requires that United Kingdom law refers to German law to decide whether the taxpayer was at the material times a German national. (2) The taxpayer was under German law a German national in the years of assessment. (3) The taxpayer

being a German Jew living outside Germany, was deprived of his German nationality from 1941 to 1949 because the decree of 1941 depriving such Jews of their German nationality had to be recognised as a legal fact under German law during the period when the decree was held to be valid, that is, until the coming into force in 1949 of the Grundgesetz ("Basic Law") which by article 116 established that the decree of 1941 was void ab initio without any retrospective effect. (4) After promulgation of the Basic Law in 1949 the taxpayer possessed German nationality. (5) The taxpayer did not, by obtaining British nationality by naturalisation in 1948, lose his German nationality under section 25 of the German Delbruck law ("German Nationality Law") of 1913 which provided that a German national lost his nationality who applied for a foreign nationality without first obtaining the permission of the German authorities, for the following reasons: (a) because at the time when the taxpayer acquired United Kingdom nationality in 1948 he was not in a position to rely on his German nationality; the expatriation pronounced in 1941 was not declared invalid until after 1949 and the taxpayer had no reason in 1949 to take the legal consequence of section 25 of the German Nationality Law of 1913 into account; (b) the taxpayer by his application for naturalisation in 1948 was not giving any kind of indication that he did not wish to be treated as a German national and in any event as the Basic Law had not come into force he was not evincing a rejection of German nationality; (c) the taxpayer was not deprived of his German nationality by his naturalisation as there were no authorities available in Germany from whom he could obtain permission for his naturalisation; (d) the German decree of 1941 was valid in German law from 1941 to 1949 as it had under Nazi-Socialist rule created in 1941 factual conditions as to the deprivation of nationality which could not be treated as if they had never existed and the effectiveness of that deprivation of nationality lasted until the promulgation of article 116 of the Basic Law in 1949 establishing that the 1941 decree was void ab initio without retrospective effect. Consequently the laws of 1913 did not deprive the taxpayer of his German nationality as at the date of his naturalisation in 1948 he did not possess German nationality by reason of his having been deprived of such nationality by the 1941 decree.

Alternative 2. The second alternative to 1 above is that the question whether the taxpayer was a German national at the material time is decided by United Kingdom law irrespective of German law. (1) The 1941 decree is not recognised by United Kingdom law as having any validity. (a) The 1941 decree was a flagrant breach of international law by reason of its objects being part of a policy physically and materially to destroy the Jewish section of the country's population and to take away the means of building up a new life abroad for those Jews who at the risk of life and limb had succeeded in escaping the National Socialist tyranny. (b) The recognition of the decree would be contrary to public policy as it was an objectionable and atrocious law not to be recognised by English courts. (2) The decree was penal and confiscatory according to United Kingdom law. (3) The decree as regards its nationality provisions sought to operate outside the territory of Germany and the United Kingdom. English courts will not recognise a penal or confiscatory law as operating outside the

frontiers of the enacting state. (4) The decree will not be recognised as depriving the taxpayer of his German nationality at the time of its promulgation when the United Kingdom was in a state of war with Germany. (5) The German Nationality Law of 1913 is not recognised in England as depriving the taxpayer of his German nationality because he had not got it at that time (1941 to 1949) and because at the time of his naturalisation as a British subject the United Kingdom was still at war with Germany, which state did not end until 1951. (6) The cessation of a state of war between the United Kingdom and Germany in 1951 did not have the effect of giving the 1941 decree validity in the United Kingdom, nor did it have the effect of making operative the provision in section 25 of the German Nationality Law of 1913 applicable to the naturalisation of the taxpayer which had taken place during the war.

Alternative 3. (This refers to question (c) (ii) (ante, p. 254F) and the special commissioners' answer to it (ante, p. 256C-D).) The third alternative is that the taxpayer was according to United Kingdom law a German national at the material times by reason of his special position in German law as a person who was a German national but who was not so treated by the German authorities as he had never come to reside in Germany nor made application for German nationality under article 116 (2) of the Basic Law. (a) According to German law the taxpayer was a person whose German nationality was not effective but he had not lost it. (b) Article 116 (2) permitted the taxpayer to assert his German nationality which would then be given effect to automatically. (c) The taxpayer had not at the material times according to German law lost his German nationality though the German state would not treat him as such until he fulfilled one of the conditions of article 116 (2). (d) Because the taxpayer, by making a simple application for German citizenship under article 116 of the Basic Law, would have had his German citizenship reinstated in that he would have been treated as a German national for the purposes of German municipal law, he therefore retained the privilege of asserting full German citizenship which constituted him a full national under United Kingdom law. Therefore in the assessment years he was a German national under United Kingdom law, having, at the least, retained the privilege of asserting full German citizenship. (e) Had the taxpayer applied for German citizenship at any time before or during the relevant assessment years he would thereafter have been treated as a German national.

German law is of the greatest importance in deciding whether the taxpayer was a German national or not. The decisions of the Federal Constitutional Court in 1958 and 1968 and of the Berlin District Court in 1968 (the "Hong Kong dentist" case) do decide that the taxpayer was a German.

Russell J. in Stoeck v. Public Trustee [1921] 2 Ch. 67 took the wrong attitude. [Reference was made to In re Chamberlain's Settlement [1921] 2 Ch. 533; Lowenthal v. Attorney-General [1948] 1 All E.R. 295.] This was an atrocious decree, and as such would not be recognised by English law, but for the purposes of German law from 1941 to 1949 the taxpayer was not a German national. The taxpayer's ties to Germany were much stronger than those in Ex parte Weber [1916] 1 K.B. 280

(Note); [1916] 1 A.C. 421 and Rex v. Vine Street Police Station Superintendent, Ex parte Liebmann [1916] 1 K.B. 268.

The commissioners' finding in answer to question (b) (ante, p. 256B-C) represents an inference which the commissioners were not entitled to draw. The correct inference is on p. 23 of the supplementary case stated ("On considering the whole of the evidence..."), ante, p. 255E-F. Dr. Cohn's evidence as recorded in the supplementary case stated "that although the [taxpayer] was not deprived of his German citizenship by the [1941] decree he was by virtue of having been naturalised as a British subject and having taken the oath of allegiance in 1948 no longer effectively a German naional unless he either returned to Germany or was regranted German nationality "is spoiled by the word "effectively." "Effectively" and "potentially" are not synonymous.

Article 116 of the Basic Law is not the right kind of vehicle for denaturalising a person. How long has a person got under it to apply for German nationality?

Englard following. Assuming that the taxpayer would have lost his German nationality under the German Nationality Law of 1913, article 116 of the Basic Law does not apply. The taxpayer cannot regain his nationality under article 116 because article 116 only applies to people who lost their nationality between 1933 and 1945 and were deprived of it for political, racial or religious reasons. If the taxpayer lost his German nationality under the 1913 law, he lost it in 1948, not 1945, and not for political, racial or religious reasons.

[Oppenheimer v. Cattermole was adjourned for Nothman v. Cooper to be called on.]

The taxpayer Nothman in person. The point of principle which arises is similar to that in Oppenheimer v. Cattermole. [The taxpayer addressed their Lordships on the other points arising in her appeal (see per Lord Hailsham of St. Marylebone and Lord Cross of Chelsea, post, pp. 264G-H and 280D - 281C).]

John Vinelott Q.C. and Patrick Medd Q.C. for the Crown. As regards the taxpayer Nothman, there was no evidence before the commissioners on the nationality point at all, not even evidence that she was born in Germany.

The Crown does not contend that the taxpayer Oppenheimer lost his German nationality by virtue of the 1941 decree which has been held to be invalid. But in 1948 the taxpayer lost his German nationality by virtue of the German Nationality Law of 1913. Further, even if the taxpayer had not acquired British nationality in 1948 he would have lost his German nationality in 1949 when the new constitution and the Basic Law came into effect.

In support of this last proposition the Crown relies on the interpretation of article 116 of the Basic Law given by the Federal Constitutional Court in the 1968 decision. The 1968 decision is not easy to reconcile with the 1958 decision, but the 1958 decision was cited to the court in the 1968 case. It was not overlooked.

If one leaves both decisions aside, there is nothing odd in the conception that the taxpayer lost his nationality under the German Nationality Law of 1913. It is a little odd to us, because we attach little importance to

nationality and more to domicile, but all continental countries rely on nationality as the determining factor. German law, therefore, like other continental systems, leans heavily against dual nationality. There is a presumption that someone who acquires a foreign nationality loses German nationality.

The House found an apparent inconsistency between the 1968 decision of the Federal Constitutional Court and the language in which it expresed the decision. The reason for this apparent inconsistency is that the German state was founded anew in 1949. It is meaningless to say: "he was a German before, so he is one after." The German state was reformed in 1949 and a decision was made afresh as to who its citizens were going to be.

The Crown's construction of article 116 and what the German court said in 1968 is supported by all the cases, including the "Hong Kong dentist" case. As regards the 1958 decision of the Federal Constitutional Court, in 1958 it was widely thought that the 1941 decree was valid. Passages in the 1958 decision seem to accept that.

The taxpayer Nothman. No evidence was given before the commissioners. The taxpayer is willing to abide by the decision of the House in Oppenheimer v. Cattermole on the nationality point. She would give in only under pressure on the other points.

Vinelott Q.C. was asked by the House to address it on article 116 of the Basic Law. The taxpayer Oppenheimer lost his German nationality as a result of the coming into force of the Federal constitution: see the commissioners' decision on the point; it is important to remember precisely what they were asked. Although he did not lose his nationality by virtue of the 1941 decree, they put the German Nationality Law of 1913 out of their minds in considering article 116. The proper approach to article 116 is that when the constitution came into force the German state had been first perverted by the Nazi regime and then destroyed by the occupation of the Allied forces. It may be that as a matter of English law it was continued until 1951 and that the German state was regarded by it as fictionally in existence: one cannot be at war with a non-state. In reality there was no government except the allies so that the position in international law may be that it ceased to exist. That is the factual position. The first task of the new legislature was to decide how to deal with the millions who had been expatriated and those who had come to Germany as refugees. There was also the problem of how to deal with former Germans in Russian-occupied areas. The answer to this is in article 116 (1). Making persons who had been expelled and purportedly deprived of German nationality apply for nationality was in no way unfair to them or contrary to international law. It might have been so if they had been made nationals against their wishes.

If the taxpayer did not lose his nationality by the 1941 decree, he must have lost it by virtue of the 1949 constitution. The question whether he lost it under the German Nationality Law of 1913 is of very small significance. That can now only arise in relation to someone who acquired foreign nationality and died before 1949.

It is impossible to give any sense to the meaning of "dormant"

nationality which is not a true nationality, except for internment purposes in English law.

Ex parte Weber [1916] 1 K.B. 280 (Note); [1916] 1 A.C. 421 turned on very special facts. Although Weber had lost his German nationality under German law he would under that law have been liable under certain circumstances to serve in the German army on his return to Germany. He had not, therefore, so lost his connection with Germany as to cease to be an enemy alien under English law.

Sir John Foster Q.C. in reply on article 116. The case falls into line and does no real violence to the language of article 116, and all the decisions of the German courts fall into place except in one or two places, if one adopts this theory: the framers of the constitution decided that the way to avoid forcing nationality on those who did not want it was that they should be entitled to have the nationality but that they were only to be looked on as German nationals if for some reason they wanted it. So long as they did not want anything from the German state, they need do nothing, but if, for example, they wanted a German passport, they would have to apply for nationality. [Reference was made to the decision of the Federal Supreme Court in 1962 (the "Dutch" decision) and to the "Hong Kong dentist" decision.]

The taxpayer Nothman in reply referred to Colquhoun v. Brooks (1889) 14 App.Cas. 493, 506; Inland Revenue Commissioners v. Ramsay (1935) 20 T.C. 79, 92, 93; Inland Revenue Commissioners v. Pattison (1959) 38 T.C. 617, 624; Dott v. Brown [1936] 1 All E.R. 543; Laird v. Inland Revenue Commissioners (1929) 14 T.C. 395; Stedeford v. Beloe (1930-1932) 16 T.C. 505 (on the "voluntary" point); Beynon v. Thorpe (1928) 13 T.C. 48214 T.C. 1; Inland Revenue Commissioners v. Anderström (1927) 13 T.C. 482; 1928 S.C. 224; Chibbett v. Joseph Robinson & Sons (1924) 13 T.C. 4829 T.C. 48; Drummond v. Collins (1915) 13 T.C. 4826 T.C. 525; and Foulsham v. Pickles [1925] A.C. 458.

Their Lordships took time for consideration.

February 5. LORD HAILSHAM OF ST. MARYLEBONE. My Lords, I have had the advantage of reading in draft the illuminating opinion about to be delivered by my noble and learned friend, Lord Cross of Chelsea, and since in almost everything I agree with it my own opinion can be correspondingly short.

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.

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 of Germany in respect of the pension he receives from them. Otherwise his appeal fails.

It is true that under the terms of the agreements the question must be decided by English law (see article II (3) of the agreements), 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 Stoeck v.

Public Trustee [1921] 2 Ch. 67, especially at p. 82). According to English law that municipal law is a question of fact.

It is, of course, the case that Russell J. in Stoeck v. Public Trustee 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 Ex parte Weber [1916] 1 K.B. 280 (Note); [1916] 1 A.C. 421 and Rex v. Vine Street Police Station Superintendent, Ex parte Liebmann [1916] 1 K.B. 280 [sic]. 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: cf. Rex 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.

It appears quite clearly from the supplementary 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, for example, 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 German nationality, 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 recognise the infamous decree of the National Socialist regime of November 25, 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 Rex v. Home Secretary, Ex parte L. [1945] K.B. 7 and Lowenthal v. Attorney-General [1948] 1 All E.R. 295 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 supplementary case, the opinion of Buckley L.J. and Orr L.J. 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 recognise 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 recognised 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 Dr. F. A. Mann (1973) 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 of Chelsea 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 a question not 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, Aksionairnoye Obschestvo A. M. Luther v. James Sagor & Co. [1921] 3 K.B. 532; Princess Paley Olga v. Weisz [1929] 1 K.B. 718; and cf. 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 (1943) 137 Fed.Rep. 2d 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.

The remaining judgment in the Court of Appeal was that of Lord 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 Lord Denning M.R. I do not find this reasoning convincing. It proceeds upon the basis, which is contrary to Stoeck v. Public Trustee [1921] 2 Ch. 67, that English law can decide who is and who is not a

German national, and appears to assume that the coexistence of British and enemy alien nationality is an impossibility. But this is not so (cf. Kramer v. Attorney-General [1923] A.C. 528). Quite apart from this I find it impossible to apply the doctrine of election or renunciation which is appropriate enough in the law of contract to questions of national status in the absence of a statute to that effect, and, even if I were able to do so, I would not be prepared to decide this case on the basis of any election either by the appellant or the Crown unless the conduct relied on as establishing election were absolutely unequivocal; and I am not persuaded that in 1948 either the Crown or the appellant were fully aware that the appellant had any surviving rights in his nationality of origin which he could elect to renounce.

The commissioners have found that, if they were wrong about their decision on the National Socialist decree, the appellant would nevertheless have lost his nationality under German law by virtue of the so-called Delbruck law of 1913 when he applied for British naturalisation in 1948. The Crown indicated that, if it were necessary, they would seek to support this finding of fact. We did not hear the Crown fully upon this. But I would wish expressly to reserve any opinion upon this point. Not only is it difficult to reconcile this position with the 1958 decision of the Constitutional Court, but one would seem to enter a strange looking-glass world if one were compelled to hold that the appellant lost a nationality which no one at the time believed he possessed, and which he himself almost certainly did not then wish to retain, simply because he did not ask permission to retain it from authorities who did not then exist, and who, if they had existed, would almost certainly have refused the application on the ground that they had no jurisdiction to grant it.

In my view the appeal fails on the ground that I have stated. The supplementary case establishes that in the assessment years the appellant is not to be regarded as a German national.

I turn now to the second appeal, that of Nothman v. Cooper. In this case also I agree with the opinion expressed by my noble and learned friend, Lord Cross of Chelsea, and it follows that in my opinion this appeal must be dismissed. The appellant conducted her own appeal with conspicuous courtesy and ability. She accepted expressly that on the principal matter of contention her case stood or fell with the appeal of Meier Oppenheimer. By leave of your Lordships she also raised a number of other points which she had argued below but had disclaimed hitherto as matters she desired to place before the House of Lords. These points are (1) that the &qupot;pension" she received was not income but a payment by way of compensation for a frustrated career, and so not assessable to British tax even if her sole nationality were British; (2) that the payments were purely voluntary and therefore in the nature of gifts; and (3) that the source of income was not a foreign possession within the meaning of income tax law as defined in Colquhoun v. Brooks (1889) 14 App.Cas. 493 and Foulsham v. Pickles [1925] A.C. 458. I desire to say nothing about these points except that I agree with the opinions of Lord Cross of Chelsea in this House and of Goulding J. and Lord Denning M.R. upon them.

LORD HODSON. My Lords, for the reasons given by my noble and learned friend, Lord Cross of Chelsea, with which I am in complete agreement, I would dismiss these appeals.

Since the case has, in the end, been argued on a different basis from that which obtained in the Court of Appeal, it is not strictly necessary to consider the reasons given by the members of that court in connection with the notorious 1941 decree.

My noble and learned friend, Lord Pearson, has, however, expressed in the opinion which he has prepared a position which in effect confirms that taken by the majority of the Court of Appeal, expressed by Buckley L.J. in the following passage at [1973] Ch. 264, 273:

"... the answer to the question whether or not the person is a national or citizen of the country must be answered in the light of the law of that country however inequitable, oppressive or objectionable it may be."

I do not agree that this is a correct view of the relevant international law and as at present advised am of opinion that Lord Cross's approach, consistent with that of Martin Wolff in his work on Private International Law, 2nd ed. (1950), p. 129, is to be preferred.

The courts of this country are not in my opinion obliged to shut their eyes to the shocking nature of such legislation as the 1941 decree if and when it falls for consideration.

LORD PEARSON. My Lords, I have had the advantage of reading the opinion prepared by my noble and learned friend, Lord Cross of Chelsea, and I agree that these two appeals should be dismissed for the reasons given by him.

On the other hand, I am not able to agree with my noble and learned friend as to the conclusion which should have been reached if the relevant German law had consisted, as we thought it did, simply and solely of the 1941 decree and the 1913 law. When a government, however wicked, has been holding and exercising full and exclusive sovereign power in a foreign country for a number of years, and has been recognised throughout by our government as the government of that country, and some legislative or executive act of that government, however unjust and discriminatory and unfair, has changed the status of an individual by depriving him of his nationality of that country, he does in my opinion effectively cease to be a national of that country and becomes a stateless person unless and until he has acquired some other nationality (as the appellant Oppenheimer did in this case). Suppose then that the wicked government is overthrown. I do not think it would be right for the courts of this country on their own initiative to disregard that person's change of status which in fact had occurred and deem that it never had occurred. A decision on that fictitious basis might be no kindness to the person concerned, who might be quite content with his new status and unwilling to have his former status artificially restored to him. The problem of effecting any necessary rectification of the position created by the unjust decree of the wicked government is a problem for the successor government of the foreign country, and

we know that in the present case the problem was dealt with by the successor government of West Germany by its Basic Law of 1949. But if the successor government had not dealt with the problem, I do not see that the courts of this country would have had any jurisdiction to restore to the person concerned his lost nationality of the foreign country. There is the rule of public policy that our courts may refuse to recognise in war time a change of the nationality of an enemy alien, but that rule would cease to apply at the end of the war, which would be at latest when the war was officially declared to be at an end.

I would dismiss the appeals.

LORD CROSS OF CHELSEA. My Lords, the question at issue in the appeal Oppenheimer v. Cattermole is whether the appellant, Mr. Oppenheimer, is liable to pay United Kingdom income tax for the tax years 1953-54 to 1967-68 inclusive on certain pension payments which he received during those years from German public funds. Mr. Oppenheimer, who is a Jew, was born in Germany in 1896. From 1919 to 1939 he taught at a Jewish orphanage in Bavaria but in 1939, after having been detained for a short period in a concentration camp, he succeeded in leaving Germany and coming to this country where he has lived ever since. On June 4, 1948, he was granted a certificate of naturalisation and became a British subject. As a former employee of a Jewish religious community he has been since 1953 in receipt of a pension payable out of the revenues of the German Federal Republic. Conventions with regard to double taxation relief were made between the United Kingdom and the Federal Republic in 1954 and 1964 and made law in this country by the Double Taxation Relief (Taxes on Income) (Federal Republic of Germany) Orders 1955 and 1967. Article IX (1) of the former convention - which the appellant contends is applicable to the first seven assessments in dispute - runs as follows:

"Remuneration, including pensions, paid, in respect of present or past services or work, out of public funds of one of the contracting parties shall be exempt from tax in the territory of the other contracting party, unless the individual concerned is a national of that other party without being also a national of the first-mentioned party."

Article IX (2) of the second convention which the appellant contends is applicable to the other eight assessments is to the same effect. The appellant is, of course, a national of this country and the respondent admits for the purpose of this case that the pensions in question fall within the description in the conventions. The point at issue is whether the appellant was in the years of assessment not only a British subject but also a German national.

Article II (3) of the convention of 1954 states that in the application of its provisions by one of the contracting parties any term not defined therein shall unless the context otherwise requires have the meaning which it has under the laws in force in the territory of that party relating to the taxes which are the subject of the convention. There is a similar provision in the 1967 convention and neither convention contains any definition of the term "a national." Accordingly the question whether the appellant was a German national during the years of assessment has to be determined by

English law. But, as Russell J. pointed out in Stoeck v. Public Trustee [1921] 2 Ch. 67, 82, English law refers the question whether a person is a national of another state to the municipal law of that state - though it may in certain circumstances "deem" a person to be a national of that state although he is not in fact a national of it. The special commissioners to whom the appellant appealed against the assessments made on him by the respondent inspector of taxes heard evidence from Dr. Cohn, an expert in German law called by the respondent, and in the light of it found that under German law the appellant ceased to be a German national not later than June 4, 1948, when he became a national of the United Kingdom. At the request of the appellant, the special commissioners stated a case for the opinion of the court and in view of the subsequent history of this case it is important to set out what was the material to which, according to the case stated, Dr. Cohn referred them and what was their understanding of the effect of his evidence in relation to it. First, they had before them and exhibited to the case parts of a decree made on November 25, 1941, by the National Socialist Government providing that a Jew of German nationality who had his usual place of abode abroad when the decree came into force should lose his nationality forthwith. Secondly, they had before them and exhibited to the case part of the German nationality law of July 22, 1913, which provides that a German who has neither his natural residence or permanent abode in Germany loses his nationality on acquiring a foreign nationality unless he had the previous written permission of the appropriate German authority to retain it. Thirdly, the case states that Dr. Cohn gave evidence to the following effect:

"(a) by a decision of the Federal German Constitutional Court given in 1968, which is binding upon all Federal German courts by virtue of a subsequent decree of the Federal German Government, the decree of November 25, 1941..., was absolutely void ab initio; (b) the said decision had no retrospective effect, (c) the German nationality law of July 22, 1913..., remains in force (with certain amendments not relevant for present purposes) and was unaffected by the said decision; (d) in his opinion, under German law, if the appellant had not lost German nationality under the decree of November 25, 1941, he lost the said nationality under the German nationality law of July 22, 1913, on being naturalised a British subject in 1948."

Two points are to be particularly noted, first, that, whether or not Dr. Cohn referred to it in his evidence, the case stated makes no reference to article 116 of the constitution of the Federal German Republic enacted in 1949 which, as will hereafter appear, is of vital importance in this case, and secondly, that the case stated attributes to Dr Cohn the opinion that in the 1968 decision the Federal German Constitutional Court held that the 1941 decree was void ab initio but that nevertheless the decision had no retrospective effect. It is clear from the evidence given by Dr. Cohn on a later occasion that the special commissioners who signed the original case stated must have misunderstood the evidence which he was giving with regard to the 1968 decision. As a result of the absence from the case of any mention of article 116 and the presence in it of the statement that the 1968 decision had no retrospective effect the case was argued in the High

Court and in the Court of Appeal and on the first occasion before this House on the footing that the only material to be considered in order to decide whether or not the appellant was a German national during the years of assessment was (a) the 1941 decree and (b) the 1913 law. The case came first before Goulding J. who reversed the decision of the special commissioners. He held, first, that English law would not recognise the decree of November 25, 1941, as having any effect with regard to the appellant since it purported to alter during war time the nationality of someone who was then an enemy alien, and, secondly, that the appellant had not lost his German nationality by the law of July 22, 1913, since under German law he had already ceased to be a German national before he became a British subject - although our law regarded him as still a German national. The respondent appealed to the Court of Appeal (Lord Denning M.R., Buckley and Orr L.JJ.) who reversed the decision of Goulding J. and restored that of the commissioners. Lord Denning M.R. held that whatever the position might be under German law English law would not regard an enemy alien who had been naturalised as a British subject during war time as continuing thereafter to be a national of the enemy country as well as a British subject. Buckley and Orr L.JJ. based their judgments on a different ground - namely, that, although English law would not recognise a change in the status of an enemy alien effected by the alien's domestic law during war time, that non-recognition only lasted so long as the state of war lasted, and that consequently when the state of war between this country and Germany came to an end our law would recognise that the appellant had been deprived of his status as a German national by the decree of November 25, 1941. The appellant appealed to this House from the decision of the Court of Appeal and the appellate committee heard arguments from both sides on the basis of the findings as to German law made by the commissioners and set out in the stated case. But before we reported our views to the House we became aware from an article by Dr. F. A. Mann on "The Present Validity of Nazi Nationality Laws" in the Law Quarterly Review, vol. 89, p. 194, that the findings of the commissioners as to the relevant German law were almost certainly based on inadequate material. We therefore put the appeal back into the list for further argument and, as a result of the discussion which then ensued, it became clear - and was accepted by counsel on both sides - that the case ought to be sent back to the commissioners for further findings as to the relevant German law. [His Lordship read the terms of the order made on December 13, 1973, ante, p. 254C-F, and continued:]

Pursuant to this order the special commissioners held a meeting on April 29 to May 3, 1974, at which they heard further evidence from Dr. Cohn and also evidence from Dr. Jaques, another expert on German law, who was called on behalf of the appellant. In the course of their evidence the witnesses as well as referring to the 1941 decree and the 1913 law also referred to article 116 of the Basic Law for the Federal Republic of Germany promulgated on May 23, 1949, and to six decisions of various German courts including two decisions – one given in 1958 and the other in 1968 – of the Federal Constitutional Court which is the supreme court in Germany in relation to the interpretation of the Basic Law – the latter decision being the decision referred to in the original case stated. Translations

of article 116 and of the relevant parts of all these decisions were attached to the supplementary case which the commissioners stated in pursuance of the order of the House. This case further contains a full statement of the views expressed by Dr. Cohn and Dr. Jaques respectively on the legal questions which arise.

Shortly after the collapse of the Nazi regime in May 1945, the 1941 decree was repealed by Allied military government legislation. It is, however, generally accepted by German lawyers that this repeal had no retrospective effect. When the newly established Federal Republic of Germany came to frame its constitution it had to decide what persons were to be its nationals. This was a difficult and delicate question for several different reasons. In the first place – and this, of course, is the aspect of the matter with which we are concerned in this case – it had to decide what to do about those persons who had been deprived of their German nationality by Nazi legislation. On the one hand the new Germany was anxious not to appear to treat the 1941 decree as valid in any way; but on the other hand it had to face the fact that many of those affected by it had made their homes abroad and had no intention of returning to Germany, and that such persons, many of whom had become naturalised in other countries, might well not welcome having German nationality which they thought they had lost thrust upon them without their consent. Other problems which the framers of the Basic Law had to face but which are of no relevance in this case were, of course, the status in the Federal Republic of those "Germans" who had taken refuge there in the later stages of the war and that of the "Germans" in the Soviet zone of occupation.

At this point it will be convenient to refer to article 116 of the Basic Law. It runs as follows:

"(1) A German person within the meaning of this Basic Law is, subject to further legal provisions, any person who possesses German nationality or has been admitted into the sphere of the German Reich according to the position on December 31, 1937, as a refugee or exile, member of the German people or as the spouse or descendant of such a person. (2) Former German citizens who were deprived of their German nationality between January 30, 1933 and May 8, 1945 for political, racial or religious reasons, and their descendants, are to be renaturalised on application. They shall be considered as not having been deprived of their nationality, provided that they have taken up their residence in Germany since May 8, 1945 and have not expressed any wish to the contrary."

It is, of course, with paragraph (2) that we are concerned. Reading the translation simply as a piece of English without the aid of a German lawyer or of German decisions I would have interpreted it as saying that the Nazi legislation must be taken as having effectively deprived those falling within its terms of their German nationality unless they had returned to live in Germany after the war, and had not expressed a wish not to be German nationals. On the other hand, those still abroad could regain the German nationality which they had lost whenever they wished by applying for it to the appropriate authority. The appellant, though he has now made such an

application, did not make it until after the years of assessment with which we are concerned.

Accordingly if the meaning of article 116 (2) was what I have suggested - and it appears that for some time after 1949 it was widely thought in Germany that that was its true meaning - it would be clear that he was not a German national in the years of assessment. It would also be clear that the 1913 law could have had no application in his case since he would not have been a German national when he was naturalised here. But the 1968 decision of the Federal Constitutional Court shows that it is wrong to interpret article 116 (2) as saying – even if only by implication – that the Nazi legislation had deprived anyone of his German nationality. The court in that case had to decide whether someone affected by the 1941 decree who died before the end of the war – that is, May 8, 1945 – and had not been naturalised in another country died a German national or a stateless person. It held that he died a German national because the 1941 decree was "... to so intolerable a degree irreconcilable with justice that it must be considered to have been null and void ab initio." It was common ground between Dr. Cohn and Dr. Jaques that this decision had retrospective effect and that in the light of it the appellant remained a German national notwithstanding the 1941 decree at least until he became a British subject in 1948.

Accordingly the questions to be decided were (1) did he lose his German nationality under the 1913 law when he became a British subject, and (2), if he did not, did he lose it in 1949 by reason of the enactment of article 116 of the Basic Law? Dr. Cohn answered both these questions in the affirmative while Dr. Jaques answered them in the negative. The special commissioners preferred the views of Dr. Cohn on both points and since foreign law is a question of fact it might be argued that the view taken by the commissioners was binding on us even if we disagreed with it – unless indeed it was one which we thought no one could reasonably entertain. But in a case of this sort it would, I think, be unfortunate if we were obliged to give effect to a view as to the relevant foreign law which we thought to be wrong and we did in fact hear a full argument from Sir John Foster in support of the opinion of Dr. Jaques. I propose therefore to proceed on the footing that it is open to us to decide the questions at issue for ourselves but for reasons which will hereafter appear I shall assume in favour of the appellant that he did not lose his German nationality on becoming naturalised here in 1948 and confine myself to the question whether he lost it by reason of the enactment of the Basic Law in 1949. The passage in the judgment of the Federal Constitutional Court in the 1968 case which deals with the position of persons affected by the 1941 decree who were alive when the Basic Law took effect ran as follows:

"In formulating this article the constitutional legislator proceeded from the assumption that the 11th ordinance [the 1941 decree] was void ab initio. This means that the persecutees have never lost their German nationality by virtue of the expatriation. They may of course have lost it for some other reason, especially through acquisition of a foreign nationality. The effect of article 116 (2) of the constitution in such a case is that even these persons can regain German nationality

by taking up residence in the Federal German Republic or by making an application. For persecutees who have not acquired a foreign nationality the effect of article 116 (2) is that notwithstanding the fact that they did not lose their German nationality by expatriation the German state does not treat them as Germans unless they assert their German nationality by taking up residence or making an application. Thus far article 116 (2) gives effect to the idea that no persecutee should have German nationality forced upon him against his will."

If one looked simply at the language of article 116 (2) – in particular at the word "renaturalised" – the first sentence quoted above might be difficult to justify. But the Federal Constitutional Court supported its interpretation by reference to the views expressed during the preparation of the law by members of the Committee of the Parliamentary Council responsible for its wording. The part of the quoted passage which is, of course, particularly relevant for present purposes is the sentence:

"For persecutees who have not acquired a foreign nationality" – and I am assuming that the appellant's naturalisation here in 1948 can be disregarded – "the effect of article 116 (2) is that notwithstanding the fact that they did not lose their German nationality by expatriation the German state does not treat them as Germans unless they assert their German nationality by taking up residence or making an application."

The effect of Dr. Cohn's evidence was that no distinction could sensibly be drawn between not being treated as a German by the German state and not being a German and that accordingly the appellant, assuming that he was a German national immediately before May 23, 1949, ceased then to be a German national until he either applied to become a German national again or took up residence in Germany. The effect of Dr. Jaques's evidence on the other hand was that article 116 of the Basic Law could not be taken lo have deprived anyone of his German nationality and that the appellant continued to be a German national after the enactment of the Basic Law although he would not be recognised as such by the German authorities unless he applied to be recognised or took up residence.

Applying my mind as best I can to the problem of interpreting article 116 (2) of the Basic Law in the light of the 1968 decision of the Federal Constitutional Court I prefer – as did the special commissioners – the view of Dr. Cohn to the view of Dr. Jaques. I find the conception of a man being by German law a German national but at the same time not being by German law treated or recognised as a German national very hard to grasp and although it may look at first sight odd that a man who had not lost his German nationality by the 1941 decree should lose it in 1949 under the operation of the Basic Law this apparent oddity disappears if one bears in mind the conflicting considerations which the framers of the Basic Law had to try to reconcile. On the one hand they were unwilling to admit that the 1941 decree had ever been part of the law of Germany but at the same time they did not wish to thrust German nationality on people who did not want it. As a compromise – if one reads the Basic Law as the Federal Constitutional Court read it – they drew a line at the date of the enactment of the Basic Law. Up to that date people who fell within the

scope of the 1941 decree retained their German nationality unless they had given some positive indication that they rejected it; but after the date of the coming into force of the new constitution it was up to the persons concerned to give some positive indication that they wished to be nationals of the new Germany either by living there or by applying for German nationality.

That Dr. Cohn's reading of the 1968 decision is the right one is, I think, confirmed by two decisions of other German courts dealing with persons affected by the 1941 decree who died after the enactment of the Basic Law. The first (called in argument the "mental defective" case) was decided by the Berlin District Court in 1971. The question to be decided was whether a German Jew who left Germany in 1933 to settle in this country and died here in 1956 in a psychiatric institution died a German national. He had not been naturalised here and from before the date of the enactment of the Basic Law until the date of his death he had been continuously under mental disability. The court held that as he had never been able to apply his mind to the question whether or not to apply for German nationality under the provisions of article 116 (2) he remained clothed with his original German nationality of which the 1941 decree had not deprived him.

"Article 116 (2)" – to quote a passage from the judgment – "can be applied only to those cases in which the persons in question have or have had the possibility of making known their intention by complying with one or other of the set of requirements referred to."

It is however implicit in the decision that had the propositus not been mentally incapable on May 23, 1949, he would have lost his German nationality on that date. It might, I suppose, be argued that the conception of a "possibility of making known their intention" included not only mental capacity but also actual knowledge of the terms of article 116 (2) and that no one should lose his German nationality under the article until the lapse of a reasonable time for making his application after the date when he became aware of the terms of the article; but such an interpretation might obviously give rise to disputes of fact which would be very hard to resolve and it is not surprising that, so far as the evidence before us goes, it has never been advocated by anyone.

The other decision (called in argument the "Hong Kong dentist" case) was decided by the Berlin District Court in 1968. The "propositus" in that case was a Jewish dentist who left Germany in 1937 and eventually settled in Hong Kong where he died in 1954. He never became naturalised in any other country and according to Dr. Cohn's view of the meaning of the 1968 decision of the Federal Constitutional Court he died a stateless person since he had not applied for German nationality after the enactment of the Basic Law. The District Court held that he died a German national because there was no evidence that had done anything to show that he wished to renounce his German nationality. But as I read the decision this was not because the court interpreted the 1968 decision of the Federal Constitutional Court differently from Dr. Cohn but because it thought that the Constitutional Court had been wrong to draw a line at the date of the enactment of the Basic Law and to say that, whereas up to that date "persecutees" were German nationals unless they had done something to

show that they wished to renounce German nationality, after that date they ceased to be German nationals unless and until they took steps to acquire German nationality. The District Court may have been entitled to take a different view on this point from the Federal Constitutional Court since in the 1968 decision the point at issue was the status of persons within the scope of the 1941 decree who had died before the end of the war and what the court said about those who were alive when the Basic Law was enacted was only an obiter dictum; but I think that we should follow any views expressed by the Constitutional Court on the meaning of the Basic Law even if not part of the ratio decidendi unless they conflict with dicta of the same court in other cases. For these reasons I think that even if one assumes that the appellant did not lose his German nationality when he became naturalised in this country in 1948 he ceased to be a German national from May 23, 1949, until he applied to become a German national after the years of assessment.

Logically, of course, the question whether the appellant lost his German nationality when he became a British subject in 1948 comes before the question whether he lost it on the coming into force of the Basic Law – for it is common ground that if he ceased to be a German national on naturalisation here in 1948 he did not become one again until he applied under article 116 (2) after the years of assessment. At first sight the passage from the 1968 decision quoted above would seem to point conclusively to the view that he did lose his German nationality in 1948 by the operation of the 1913 law. The court after saying that "the persecutees" had not lost their German citizenship by their expatriation under the 1941 decree went on to say: "They may of course have lost it for some other reason, especially through acquisition of a foreign nationality." But against this one has to set what was said by the Federal Constitutional Court itself in a decision in 1958 on which Dr. Jaques strongly relied. The propositus there was a German Jew who emigrated to the U.S.A. in 1934, became naturalised as an American citizen in 1946, later returned to live in Germany and had never evinced any intention not to be a German national. In 1956 the Munich Court of Appeal issued a provisional extradition warrant against him on request of the Swiss Government in respect of criminal offences of which he was accused but the Federal Constitutional Court quashed the order on the ground that he was a German national. After pointing out that he had not lost his German nationality by the Nazi legislation the court dealt with the effect of his naturalisation in the U.S.A. as follows:

"The loss of this nationality can also not be derived from (or based on) his naturalisation in the United States of America in 1946 by virtue of section 17 no. 2 and section 25 (1) of the Nationality Act; those provisions presuppose that the person concerned enjoyed the effective possession of German nationality at the time when he acquired a foreign nationality. That is not the case if at the material time he was not in a position to rely on his German nationality; for, if an expatriation pronounced before that time is only declared invalid by a law enacted after that time, then the person in question had no reason at the material time to take the legal consequences of the acquisition of a foreign nationality under the German Nationality Law

into consideration. A contrary view would also have the effect of frustrating the indemnificatory purpose of article 16 (2), second sentence, of the Basic Law and would result in the person in question being treated by his home country in a manner contrary to good faith."

That case differs, of course, on its facts from this case because the appellant there had returned to live in Germany whereas the appellant here has not done so. But though the second reason for their conclusion given in the last sentence of the quoted passage would not apply here the first reason is expressed in general terms which would appear on their face to apply to Mr. Oppenheimer's naturalisation as much as to that of the appellant in that case. We did not hear a full argument from Mr. Vinelott on this branch of the case and it may be that he would have convinced me that there is no inconsistency between what is said as to the effect of naturalisation in another country before the enactment of the Basic Law in the 1958 and 1968 decisions respectively. But as it is I prefer to leave open the question whether had Mr. Oppenheimer died between June 4, 1948, and May 23, 1949, he would have been a German national at the date of his death and to rest my decision on the point that, having survived the enactment of the Basic Law, he ceased thereupon to be a German national until he applied to be one.

Counsel for the appellant further submitted that even if contrary to his main argument his client was not, after the enactment of the Basic Law, a German national in the fullest sense of the word the right which he undoubtedly possessed to become a German national whenever he wished placed him in such a special position that English law – which under the tax conventions is the law to be applied – should regard him as having been a German national during the years of assessment. For this he relied on the decision in Ex parte Weber [1916] 1 K.B. 280 (Note); [1916] 1 A.C. 421. Weber was born in Germany in 1883. He left that country in 1898 and after living for two or three years in South America came to this country in about 1901 and was still living here when the authorities interned him in 1915. He applied for a writ of habeas corpus on the ground that he was not an "enemy alien" but a "stateless person" – having lost his German nationality either (a) under German laws of 1870 and 1873 by reason of his continuous residence outside Germany for 10 years or more or (b) under section 26 of the 1913 law on attaining the age of 31 on January 30, 1914 – that being the latest date on which he was liable for military service in peace time. The courts were not satisfied that it would be right to regard him as other than an "enemy alien" since although he might have lost any rights which a German national had against the German state it appeared that he was still under an obligation to serve in the German army in time of war and further that he could claim to be "renaturalised" as of right if he returned to Germany. I do not think that that case assists the appellant here. It is one thing to say that a right to claim German nationality at will constitutes a sufficient link with Germany to justify the authorities in treating a man as an "enemy alien" at a time when this country is at war with Germany and quite another thing to say that our law ought to treat a man who has such a

right as a German national for the purposes of these tax conventions although by German law he is not a German national. For these reasons I think that the Oppenheimer appeal fails and should be dismissed.

As the members of the Court of Appeal in giving their judgments proceeded - through no fault of their own - on a wholly false view of the German law applicable to this case the reasons which they gave for allowing the appeal are, strictly speaking, irrelevant. In particular, of course, the shocking character of the 1941 decree upon which so much of the argument in the courts below and in the first hearing before us centred ceases to have any bearing on the case when once one appreciates that the problem posed by that decree was tackled by the Federal Republic before the years of assessment in the Basic Law of 1949. But as the judgments below have been reported and I do not in all respects agree with them I shall state as briefly as I can what conclusion I would have reached if the relevant German law had consisted, as we thought that it did, simply and solely of the 1941 decree and the 1913 law.

There are four arguments to be considered. The first ran as follows: (A) at the outbreak of the war in 1939 Mr. Oppenheimer, who was then undoubtedly a German national resident in this country, became an "enemy alien"; (B) Rex v. Home Secretary, Ex parte L. [1945] K.B. 7 and Lowenthal v. Attorney-General [1948] 1 All E.R. 295 show that the courts of this country will not recognise a change in the status of an "enemy alien" effected during the war under the law of the enemy country; and (C) this non-recognition does not end with the war. The first two steps in the argument are plainly right but the third is, I think, wrong. In reaching the conclusion that our courts should continue to refuse recognition to the change of nationality effected by the 1941 decree even after the end of the war because it was a change effected during the war Goulding J. was to some extent influenced by the character of the decree (see [1972] Ch. 585, 595), but the character of the decree has no relevance to this argument. The refusal of our courts to recognise a change in the status of an "enemy alien" effected during war time is not confined to changes effected by laws passed by the enemy state during the war and may operate to deny recognition to changes effected by legislation of a wholly unobjectionable character. For example, if under a law of the enemy state passed before the war a female national loses her nationality on marrying a national of another state a female national of the enemy state who was living in this country and married during the war a national of this or of some third country would be regarded by our courts as remaining an "enemy alien" even after her marriage so long as the war continued, at all events so far as regards matters connected with the conduct of the war. But there is no reason in sense or logic why our courts should continue to regard her as a national of the former enemy state for any purpose after the end of the war when by the law of that state she is no longer a national of it. I agree with Buckley and Orr L.JJ. that the doctrine of public policy in question merely suspends recognition during war time. I would add, however, that I incline to think that "during war time" for this purpose should be interpreted in a common sense way as "until the end of the fighting." It appears to have been assumed in the courts below that the relevant date would be not May 8, 1945, but July 9, 1951, when the government of this

country declared that the state of war had ended. The man in the street would have been very surprised to be told in 1950 that we were still at war with Germany; and as at present advised I can see no reason why the suspension of recognition of changes of nationality should be artificially extended in this way. It is not clear from the report of Lowenthal v. Attorney-General whether the relevant date was April 28, 1944, when the summons under section 18 of the Patents and Designs Acts 1907-1946 was issued or some date after May 8, 1945. If the latter was the case I doubt whether the decision was right.

The second ground upon which it was argued that English law should deem Mr. Oppenheimer to have remained a German national notwithstanding the 1941 decree was that the decree was "confiscatory." "Confiscatory legislation" is a somewhat vague phrase which is sometimes used to cover not only expropriation with no or only inadequate compensation but also compulsory acquisition for full compensation. But it is clear that if foreign legislation on its true construction purports to divest the owner of particular property in this country of his title to it our courts will not give effect to the transfer even if the foreign legislation provides for full compensation. I cannot see, however, how this rule could have assisted Mr. Oppenheimer here. Even if one regards his status as a German national as being a bundle of rights and duties those rights and duties were not themselves locally situate here. The right to claim exemption from United Kingdom tax given to him by the Convention if he was a German national at the relevant time was no doubt situate here. In the same way if a testator who died in 1953 had left him a legacy if he was not a German national at the date of his death the right to claim the legacy if he could fulfil the condition would have been a right situate here. If the 1941 decree deprived him of his German nationality in the eyes of English law that no doubt would entail the consequence that his position with regard to rights then existing or subsequently arising in this country which were dependent on his being or not being a German national would have been changed by the decree, but I do not think that the fact that the legislation by which a foreign state deprives a man of his status as one of its nationals can be described as "confiscatory" necessarily entails the consequence that our law should deem him to remain a citizen of that state for the purpose of deciding whether or not he is entitled to property rights in this country. Suppose, for example, that it was the law of Ruritania that any Ruritanian citizen who was convicted of treason by a Ruritanian court should forfeit all his property wherever situate to the Ruritanian state and should also cease to be a citizen of Ruritania. Our courts would certainly refuse to entertain an action by the Ruritanian state to obtain possession of the traitor's property here; but I can see no sufficient reason why we should continue to regard him as a Ruritanian citizen for the purpose of deciding whether or not he was entitled to property here, his right to which depended on his being or not being a Ruritanian citizen at some point of time.

The third ground on which it was argued that English law should pay no regard to the 1941 decree was that it was contrary to international law.

In his judgment Buckley L.J. says [1973] Ch. 264, 273:

"... the answer to the question whether or not the person is a national

or citizen of the country must be answered in the light of the law of that country however inequitable, oppressive or objectionable it may be."

With all respect I cannot agree that that is the law. If a foreign country purported to confer the benefit of its protection on and to exact a duty of allegiance from persons who had no connection or only a very slender connection with it our courts would be entitled to pay no regard to such legislation on the ground that the country in question was acting beyond the bounds of any jurisdiction in matters of nationality which international law would recognise. In this respect I think that our law is the same as that of the United States as stated by the Circuit Court of Appeals, Second Circuit, in United States ex rel. Schwarzkopf v. Uhl, 137 Fed.Rep. 2d 898. Schwarzkopf who was then an Austrian national came to the United States in 1936 with the intention of living there permanently. By a decree of July 3, 1938, the German state – which had annexed Austria on March 13, 1938 – purported to make him a German citizen and on December 9, 1941, he was arrested by the American authorities as a German citizen under a presidential decree made in view of the imminence of war between the United States and Germany. The court held in reliance on a number of authorities referred to in the judgment that the German decree of July 3, 1938, so far as it purported to impose German nationality on persons who at that time had no connection with Germany, must be disregarded by the American courts. It may be said, perhaps, that though international law sets limits to the jurisdiction of sovereign states so far as concerns the granting of nationality it sets no limits whatever to their power to withdraw it. I am not prepared to accept that this is so. I think, for example, that Martin Wolff, Private International Law, 2nd ed., p. 129, may well be right in saying that, if a state withdraws its citizenship from some class of its citizens living within its borders to which it has taken a dislike and of whom it would be glad to be rid, other states are not obliged to regard such people as "stateless." Mr. Vinelott was prepared to concede that this might be so; but he pointed out that the 1941 decree was only aimed at persons who had already left Germany for good and that emigration was a common and well-recognised ground for the withdrawal of nationality. This is, of course, true, and if the decree had simply provided that all Germans who had left Germany since Hitler's advent to power with the intention of making their homes elsewhere should cease to be German nationals it may be that our courts would have had to recognise it even though many of those concerned were not in truth voluntary emigrants but had been driven from their native land. But the 1941 decree did not deprive all "emigres" of their status as German nationals. It only deprived Jewish emigres of their citizenship. Further, as the later paragraphs of the decree show, this discriminatory withdrawal of their rights of citizenship was used as a peg upon which to hang a discriminatory confiscation of their property. A judge should, of course, be very slow to refuse to give effect to the legislation of a foreign state in any sphere in which, according to accepted principles of international law, the foreign state has jurisdiction. He may well have an inadequate understanding of the circumstances in which the legislation was passed and his refusal to recognise it may be embarrassing to the branch of the executive which is

concerned to maintain friendly relations between this country and the foreign country in question. But I think – as Upjohn J. thought (see In re Claim by Helbert Wagg & Co. Ltd. [1956] Ch. 323, 334) – that it is part of the public policy of this country that our courts should give effect to clearly established rules of international law. Of course on some points it may be by no means clear what the rule of international law is. Whether, for example, legislation of a particular type is contrary to international law because it is "confiscatory" is a question upon which there may well be wide differences of opinion between communist and capitalist countries. But what we are concerned with here is legislation which takes away without compensation from a section of the citizen body singled out on racial grounds all their property on which the state passing the legislation can lay its hands and, in addition, deprives them of their citizenship. To my mind a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all. There are no doubt practical objections to adopting that course with this law, for in many, if not most, cases the persons affected by the 1941 decree would not have wished to remain German nationals. Dr. Mann in his article ("The Present Validity of Nazi Nationality Laws," 89 L.Q.R. 194) quotes several cases in which courts in different countries, while characterising the 1941 decree as "atrocious" or "barbarous," have yet given effect to it for this reason. But it surely cannot be right for the question whether the decree should be recognised or not to depend on the circumstances of the particular case. Moreover, in some cases – as for instance where the propositus is dead and what is in issue is the law to be applied to the devolution of his estate – it might be impossible to say which law he would have wished to govern the matter. If one held – as I would have held – that Mr. Oppenheimer remained a German national in the eyes of our law notwithstanding the 1941 decree the further question would have arisen whether in the eyes of our law he lost his German nationality in 1948 under the law of 1913 although by German law as it then was he was not a German national when he was naturalised here. It would not, however, have been necessary for me to form a view of my own on this point since Mr. Vinelott was prepared to accept as correct the view expressed by Goulding J. in the following words [1972] Ch. 585, 596:

"... I cannot see that the non-recognition of one foreign law on grounds of public policy either demands or justifies imputing to a later foreign law an operation which, on its true construction in its own system, it evidently could not have."

Finally it is necessary to consider the reason given by Lord Denning M.R. for allowing the appeal from Goulding J. It was, as I understand it, that even if Mr. Oppenheimer was a German national by German law in the years of assessment, English law, which is the law to be applied in construing the conventions, would not regard him as a German national as well as a British subject in view of the circumstances in which he became a British subject. Our law is, of course, familiar with the concept of dual nationality – indeed the relevant part of the tax conventions proceeds on the footing that a man may be at one and the same time a British subject and a German national – and the English law which is to be applied in deciding

whether or not Mr. Oppenheimer was a German national at the relevant time is not simply our municipal law but includes the rule which refers the question whether a man is a German national to the municipal law of Germany. But the fact that our law recognises that a man as well as being a British subject is also a German national does not in the least affect either his rights or his duties as a British subject. Consequently, in time of war between the countries concerned a man with dual nationality may find himself in a very unenviable position. As Viscount Cave L.C. pointed out in Kramer v. Attorney-General [1923] A.C. 528, 532 he may be forced to fight in the British army and yet have his property confiscated under the peace treaty as the property of a German national.

Lord Denning M.R. was not, I am sure, intending to deny any of this; but he thought that the particular circumstances in which Mr. Oppenheimer became a British subject made it impossible for him thereafter to be considered by our law as having German nationality whatever German law might say on the point. His judgment, as I read it, contains two different reasons for this conclusion - though they are not, if I may say so, very clearly distinguished. The first depended on the character of the 1941 decree. By it – the argument runs – Germany repudiated its obligations to Mr. Oppenheimer and he accepted the repudiation by applying for British citizenship, so that even if the 1941 decree were to be declared "void ab initio" by German law he would be in the eyes of English law precluded from asserting that he had remained a German national. For my part I cannot accept that concepts drawn from the law of contract can be imported in this way into the law of nationality. The second reason was a more general one – namely, that if the Secretary of State grants a certificate of naturalisation to a national of a country with whom this country is then at war English law will deem him to have thereupon lost his previous nationality for good whatever the law of the foreign country may say. If a certificate of naturalisation is granted in peace time Lord Denning M.R. would, I think, accept that the man in question would in the eyes of English law retain his other nationality if he did so by the law of the other country. But he considered that the conception of an enemy alien being granted a certificate of naturalisation in war time and still remaining thereafter in the eyes of our law under a duty of allegiance to the enemy sovereign as well as to the Queen of England was an impossible one and that accordingly after the grant our law would regard him as having only a single nationality – namely, British nationality – even after the end of the war. I do not myself see any need to draw a distinction between naturalisation in time of peace and naturalisation in time of war. In either case the man in question comes under a duty of allegiance to the Queen which is not affected in any way by the fact – if it be a fact – that by the law of the foreign country in question he remains a national of it.

In the result, therefore, if the relevant German law had been what we assumed it to be when the appeal was first argued I would have been in favour of allowing it; but in the light of the German law as we now know it I would, as I have said, dismiss it.

I turn now to consider the appeal Nothman v. Cooper. Miss Nothman was born in 1915 in Frankfurt. She went to a grammar school and obtained distinction in mathematics. As she was a Jewess she could not go to

Frankfurt University but she took a teacher's training course at a Jewish teachers' training college where she passed an examination in March 1936. During the next three years she held various teaching posts in the dwindling and persecuted Jewish community in Germany and eventually - in April 1939 - came to this country. The respondent accepts for the purposes of this appeal that she has become a British subject. Under a law enacted in 1951 by the Federal Government of Germany former public servants who had suffered injury in their careers through the "Nazi" persecution became entitled to apply for compensation (Wiedergutmachung). Article 31d(1) of the law provided that former employees of Jewish communities or public organisations who had or but for the persecutions would have attained a right to retirement benefits against their employers should be entitled from October 1, 1952, onwards to pension payments on the basis of their former salary payments. In 1956 Miss Nothman was awarded as from 1952 a basic monthly compensation under this article. She was assessed to United Kingdom income tax in respect of the payments which she received in the tax years 1953/54 to 1964/65 inclusive on the footing that they were income arising from possessions out of the United Kingdom. She appealed to the special commissioners against the assessments arguing (1) that she was a German national in the years in question and therefore exempt from United Kingdom income tax under the tax conventions previously mentioned and (2) that for various reasons the payments which she received were not subject to United Kingdom tax. The special commissioners held that she was liable to United Kingdom tax and this decision was upheld both by Goulding J. and the Court of Appeal. On her appeal to this House Miss Nothman, who presented her case with ability and courtesy, was prepared on the first point to adopt the arguments which had been submitted by Sir John Foster on behalf of Mr. Oppenheimer; but on the second point she addressed to us – as she had to the court below – several arguments with which it is necessary to deal. In the first place she pointed out that the payments in question were not really pension payments at all but were in truth compensation for having been deprived of the opportunity of following her chosen career. They were therefore in the nature of damages and should not be treated as income payments. But the payments, even if not properly described as "pension" payments, are not instalments of any ascertained capital sum, and I cannot see any more than could the commissioners or the courts below why they are not received by Miss Nothman as income. Her second contention was that the payments were not assessable to tax because they were "voluntary payments." It is, of course, true that she received them because the Federal Republic decided of its own volition to do something towards making good to persons in the position of Miss Nothman the wrong done to them by the Nazi government, and no doubt what the Federal Republic has given it could if it wished take away. But the payments which Miss Nothman receives under the law while it is in force cannot be regarded as a series of voluntary gifts. Then she argued that the payments were not income from a "foreign possession," ^* but those words mean simply income derived from a source outside the United Kingdom and I think that Miss Nothman's rights under the German law in question

* Reporter's note. See Income Tax Act 1952, s. 123 (1), Case V.

constitute such a source. Finally Miss Nothman referred us to section 22 (1) of the Finance Act 1961, which says:

"Annuities payable under the law of the Federal German Republic relating to the compensation of victims of National-Socialist persecution, being annuities which under any such law relating to the taxation of such compensation are specifically exempted from tax of a character similar to that of income tax, shall not be regarded as income for any income tax purposes."

Unfortunately, however, as Miss Nothman admits, the German authorities have not granted to the payments being made to her any "specific exemption" from tax - although according to her they ought, consistently with their approach in other cases, to have exempted them.

In the result, therefore, I think as the courts below thought that the decision of the special commissioners in Miss Nothman's case was correct and that her appeal must also be dismissed.

LORD SALMON. MY Lords, I am in entire agreement with all the views expressed in the speech of my noble and learned friend, Lord Cross of Chelsea. I wish to add only a few observations of my own.

The original case stated made no mention of article 116 (2) of the Basic Law enacted by the Federal German Republic in 1949. Neither your Lordships at the first hearing of this appeal, nor the Court of Appeal, nor Goulding J. had any opportunity of considering this vitally important enactment. Accordingly, in the courts below and at the first hearing before your Lordships, the appeal was necessarily conducted on the basis that the principal point for decision was whether or not our courts were bound to recognise the Nazi decree of November 1941 as effective in English law to deprive Mr. Oppenheimer of his German nationality. On that basis, I was unhesitatingly in favour of allowing the appeal. The relevant parts of the Nazi decree read as follows:

"2. A Jew loses German citizenship (a) if at the date of entry into force of this regulation he has his usual place of abode abroad, with effect from the entry into force of this decree; (b) if at some future date his usual place of abode is abroad, from the date of transfer of his usual place of abode abroad. 3. (a) Property of Jews deprived of German nationality by this degree to fall to the state. (b) Such confiscated property to be used to further aims connected with the solution of the Jewish problem."

The expense of transporting large numbers of men, women and children. in all about 6,000,000, even without heat, food or sanitary arrangements must have been considerable. So no doubt was the expense of erecting, equipping and staffing concentration camps and gas chambers for their extermination. Evidently, the Nazis considered it only natural that the confiscated assets of those who had been lucky enough to escape the holocaust should be used to finance it.

The Crown did not question the shocking nature of the 1941 decree, but argued quite rightly that there was no direct authority compelling our courts to refuse to recognise it. It was further argued that the authorities relating to penal or confiscatory legislation, although not directly in point,

supported the view that our courts are bound by established legal principles to recognise the 1941 decree in spite of its nature. The lack of direct authority is hardly surprising. Whilst there are many examples in the books of penal or confiscatory legislation which according to our views is unjust, the barbarity of much of the Nazi legislation, of which this decree is but an example, is happily unique. I do not consider that any of the principles laid down in any of the existing authorities require our courts to recognise such a decree and I have no doubt that on the grounds of public policy they should refuse to do so.

I recognise that it is particularly within the province of any state to decide who are and who are not its nationals. If a foreign state deprives one of its nationals of his nationality, as a rule our courts will follow the foreign law and hold that the man in question shall be treated as not being a national of that foreign state. That principle was re-stated by Russell J. in Stoeck v. Public Trustee [1921] 2 Ch. 67, 82. Russell J. recognised, however, that circumstances could arise in which a man might be treated as a national of a foreign state for the purpose of English law although he was not a national of that state according to its own municipal law. I do not suppose that in 1921 it would have been possible for anyone to have been sufficiently imaginative or pessimistic to foresee anything like the decree of 1941. But, had Russell J. been able to do so, he might well have concluded that there could be nothing which could afford a stronger justification for English law treating a man as a German national in spite of the fact that by German law he had lost his German nationality.

The principle normally applied by our courts in relation to foreign penal or confiscatory legislation was correctly stated by Goulding J.: see [1972] Ch. 585, 592. The comity of nations normally requires our courts to recognise the jurisdiction of a foreign state over all its own nationals and all assets situated within its own territories. Ordinarily, if our courts were to refuse to recognise legislation by a sovereign state relating to assets situated within its own territories or to the status of its own nationals on the ground that the legislation was utterly immoral and unjust, this could obviously embarrass the Crown in its relations with a sovereign state whose independence it recognised and with whom it had and hoped to maintain normal friendly relations. In Aksionairnoye Obschestvo A. M. Luther v. James Sagor & Co. [1921] 3 K.B. 532, the Soviet Republic by a decree passed in June 1918 declared all mechanical sawmills of a certain capital value and all woodworking establishments belonging to private or limited companies to be the property of the Soviet Republic. In 1919 agents of the Soviet Republic seized the plaintiff's mill in Russia and the stock of wood it contained. In 1920 the Soviet Republic sold a quantity of this stock to the defendants who imported it into England. The plaintiffs claimed a declaration that they were entitled to this stock on the ground that the 1918 decree of confiscation was so immoral and contrary to the principles of justice as recognised by this country that our courts ought not to pay any attention to it. It was held however that, as the government of this country had recognised the Soviet government as the de facto government of Russia prior to the 1918 decree, neither the decree nor the sale of the wood to the defendants in Russia could be impugned in our courts. The reasons for this decision are illuminating, since they illustrate

one of the important differences between the present case and the host of other cases (of which Aksionairnoye Obschestvo A. M. Luther v. James Sagor & Co. [1921] 3 K.B. 532 is an example) in which foreign penal or confiscatory legislation has been considered in our courts. Scrutton L.J. said, at pp. 558-559:

"But it appears a serious breach of international comity, if a state is recognised as a sovereign independent state, to postulate that its legislation is 'contrary to essential principles of justice and morality.' Such an allegation might well with a susceptible foreign government become a casus belli; and should in my view be the action of the Sovereign through his ministers, and not of the judges in reference to a state which their Sovereign has recognised.... Individuals must contribute to the welfare of the state, and at present British citizens who may contribute to the state more than half their income in income tax and super tax, and a large proportion of their capital in death duties, can hardly declare a foreign state immoral which considers (though we may think wrongly) that to vest individual property in the state as representing all the citizens is the best form of proprietary right. I do not feel able to come to the conclusion that the legislation of a state recognised by my Sovereign as an independent sovereign state is so contrary to moral principle that the judges ought not to recognise it."

The alleged immorality of the Soviet Republic's 1918 decree was different in kind from the Nazi decree of 1941. The latter was without parallel. But, even more importantly, England and Russia were not at war in 1918 whilst England was at war with Germany in 1941 - a war which, as Goulding J. points out [1972] Ch. 585, 595, was presented in its later stages as a crusade against the barbarities of the Nazi regime of which the 1941 decree is a typical example. I do not understand how, in these circumstances, it could be regarded as embarrassing to our government in its relationship with any other sovereign state or contrary to international comity or to any legal principles hitherto enunciated for our courts to decide that the 1941 decree was so great an offence against human rights that they would have nothing to do with it.

It is for those reasons that I respectfully disagree with the finding of Buckley L.J., in which Orr L.J. concurred, that our courts would have been obliged to recognise the decree of 1941 as effective to deprive Mr. Oppenheimer of his German nationality. It has been said that this decree conferred a positive benefit upon many of those whom it deprived of their German nationality. This may be so but there is no such finding in the case stated and it is not permissible to travel outside the case to explore these possibilities. In any event, I doubt whether the question as to whether an enactment is so great an offence against human rights that it ought not to be recognised by any civilised system of law can depend upon its impact upon the facts of any particular case.

Mr. Oppenheimer was exempt from English income tax in respect of his German pension if, but only if, he had a German as well as an English nationality during the tax years in question. He undoubtedly had no German nationality at the relevant period because of the decree of 1941 - if that decree was effective to prevent him from being treated in English

law as a German national. As I have, however, already indicated, the decree, in my judgment, should not be recognised by our courts as having any effect in English law for any purpose. Although this view would have entitled Mr. Oppenheimer to succeed on the case as originally stated, it is of no avail to him on the case as now re-stated.

The findings in the case, as re-stated, relating to German law, and in particular to article 116 (2) of the Basic Law of 1949, throw an entirely new light upon this appeal. It is now clear that, during the tax years in question, Mr. Oppenheimer's nationality under German municipal law did not in any way depend upon the decree of 1941. Indeed, by enacting the Basic Law of 1949 the German Federal Republic cleansed German municipal law of its contamination by the Nazis and did everything possible to rectify the injustice which the Nazi decrees had perpetrated. The German Federal Government were careful, however, not to thrust German nationality upon anyone against his will if the decree of 1941 had purported to deprive him of it. The Basic Law accordingly enabled anyone affected by the decree who wished to be a German national to be "re-nationalised" and treated for all purposes as a German national by German municipal law. Such a person had only to apply, at any time, for German nationality and his application would automatically be granted. Alternatively if he returned to and resided in Germany without declaring a wish not to be a German national he would be regarded, in German law, as a German national. If he did neither of these things, it would be assumed that he did not wish to be a German national and his wish would be respected. In such circumstances, German law would treat him as not being a German national which as the commissioners have found in the re-stated case would mean that, in German law, he was not a German national. Mr. Oppenheimer did not return to Germany, nor did he make any application under article 116 (2) until after the tax years in question. Had he made any such application at any time between those years and 1949, he would immediately from the date of his application have been regarded by German municipal law as a German national and therefore also treated in English law as a German national. It was not the odious Nazi decree of 1941 but his own failure to apply in time under the benevolent article 116 (2) of the Basic Law enacted in 1949 which deprived him of exemption from United Kingdom income tax for the tax years in question.

My Lords, I would accordingly dismiss Mr. Oppenheimer's appeal. I would also, for the reasons given by my noble and learned friend Lord Cross of Chelsea, dismiss Miss Nothman's appeal.

Solicitors: Rayner & Co.; Solicitor of Inland Revenue.

M. G.