There is a danger, not to be underestimated, in resurrecting past miscarriages of justice, with the prospect that glaring faults of yesteryear will illuminate lessons to be learnt today. Very often the defects of such cases will have been cured by subsequent judicial rulings or legislative action. What remains is the intrinsic interest only; legal history has, of course, its own fascination. This book is a classic example of avoidable damage. Professor Lentin not merely revives an unfamiliar story of an incidence of social injustice, but also uncovers a lamentable tale, around the time of World War I, of political bigotry and social ostracism, born out of nationalistic hostility, partisan politicism and an undercurrent of anti-semitism – a lesson to us all. The chemistry of the legal process and political intrigue that engulfed Sir Edgar Speyer and his family needs unravelling. The ultimate procedure to deprive a prominent national figure of British citizenship and his position as a Privy Councillor, along with the citizenship of his family, makes for compulsive reading. Professor Lentin displays a helpful lucidity.
That Sir Edgar, with his German heritage and youthful background (he lived in Germany until the age of 25), committed indiscretions that warranted official censure cannot be gainsaid, although, significantly, there were never any criminal proceedings for offences relating to association with, and even indirect assistance to, an enemy with whom Britain had been at war. But did those matters, which were intrinsically quite serious – they were more than public indiscretions – constitute ‘disloyalty or disaffection’ towards the Crown? The three-man Committee of Inquiry (a High Court judge (Mr Justice Salter), a county court judge, and a prominent citizen), in a fourteen-page report made to the Home Secretary in December 1921, long after the war had ended was singularly uninformative, beyond largely rubber-stamping the Conservative-dominated Coalition Government’s submissions that Sir Edgar should be deprived of British citizenship under the alien and citizenship legislation of 1914–18. Public opinion at the time was divided, and nothing since has pointed to a clear verdict. Professor Lentin, with conspicuous even-handedness, inclines slightly to favour a record of ‘not proven’. His authorship is all too judicious and modest. The lesson for us is to beware a process that was gravely deficient and at that time under-regulated, in two respects, by judicial review.
The Committee’s conclusion that Sir Edgar’s conduct (or misconduct, if you will) fell foul of the statutory provision of ‘disloyalty or disaffection’ was a total failure to apply a legal mindset to an odd phraseology. That terminology in the British Nationality and Status of Aliens Act 1914 (as amended in 1918) survives in the same form to this day by virtue of the Nationality, Immigration and Asylum Act 2002, even though the language is more than a little outdated. A more modern formula appears in the European Convention on Nationality, to which Britain is a signatory but has not ratified;* and, of course, the Human Rights Act 1998 would nowadays come into play as a controlling factor over the granting and deprivation of naturalisation. Deprivation is still considered to be available to the Government as a sanction that can be taken against those who act in a way that is seriously prejudicial to British interests, over and above the operation of the criminal law. Be that as it may, the deprivation of citizenship has always been regarded as a very serious step, to be taken only in the most flagrant cases of deception or disloyalty. It is a sanction that has been employed on only a few occasions. And recent case law has affirmed the principle that the word ‘disaffected’, as well as ‘disloyal’, requires an attitude of mind – be it noted – towards the Crown to which allegiance is owed: ‘To be disaffected is to be estranged in affection towards an entity to which one owes allegiance or with which one at least has a relationship’.* Loss of affection is not enough. Nothing like that appears in the Salter Committee report of 1921. If the Committee had approached the language of Parliament seriously and considerately – the same as any body would today and as the Committee should have done under the 1914/1918 Act – a result favourable to Sir Edgar should have been arrived at. Judicial review today would have seen to that.
What is worse is that the Home Secretary of the day, with whom the ultimate decision lay, seems totally to have ignored the legal issue, in which he had had some advice to the contrary from a government lawyer, and adopted a stance that would not today have survived judicial scrutiny. The Committee’s report in its introductory paragraph recites Sir Edgar’s 27 years of life in England in glowing, if understated, terms: ‘He was a very prosperous and successful man; he was the head of a great business [merchant banking]; his wealth was large; he was the friend of distinguished persons [including the Liberal Prime Minister, Mr Asquith, who publicly in 1915 had declared his confidence in Sir Edgar]; he was a munificent patron of music [he rescued Sir Henry Wood’s Promenade Concerts – the ‘BBC Proms’ – from inevitable collapse]; his charitable bequests were many; he took an active and useful part in hospital management. He was created a baronet in 1906 and sworn to the Privy Council in 1909’. All this conspicuous philanthropy and contribution to cultural and public life in Britain – which included financing the construction of much of the London Underground – was deemed irrelevant by the Committee. If rightly so, it should not have been irrelevant to the Home Secretary of the day, although if Sir Edgar’s intention to disaffection was the statutory test, his contributions to British cultural life were, in my view, a relevant consideration for the tribunal, and certainly for the Home Secretary. No longer a British subject, Sir Edgar automatically ceased to be a Privy Councillor. For reasons to do with official understanding about the Royal Prerogative (very differently understood today), Sir Edgar was not stripped of his baronetcy and title, although he never used the title thereafter. The Home Secretary was not obliged in the law relating to public inquiries (then or now) to accept or act in accordance with the Committee’s recommendation. In a House of Commons debate, the previous Home Secretary, Sir George Cave, pointed out that the final decision had to be made independently of the Committee. Sir George rightly stated: ‘The act is the act of the Secretary of State, and not of the Committee’. Peremptorily, and in a decision that would today be judicially reviewable, the Home Secretary followed internal advice that he was bound to endorse the Committee’s legally unreasoned verdict. He was wrong.
The fact that Sir Edgar was driven into exile to the United States in June 1915, never to return to live in England, dying in 1932 aged 69, hardly merited the loss of British citizenship, and even less so, his Privy Councillorship – a sinecure to a non-politician. It all betokened of an unyielding prejudice against a distinguished man, at the very least totally harmless to the interests of Britain in 1922. If one needed evidence of unbridled bias, and moreover an irrational decision by the Home Secretary, Mr Edward Shortt, it was his decision also to deprive Sir Edgar’s wife (a distinguished violinist) and their three teenage daughters of British nationality. It is a mark of splendid (if remote) rebuke to the Government of that day and age that all three daughters (who were British by birth) subsequently returned to live in England, two to live here permanently, the third in the vanguard of the US forces in World War II. That they were granted leave to remain in England is small recompense indeed.
We should be grateful to Professor Lentin for rediscovering an episode of World War I. The case of Sir Edgar Speyer has been described as a ‘minor tragedy of the War’. So it was, but it was more than that. It reflected no credit on a legal system that had always prided itself on protecting the individual against the might of the State. It not merely failed one prominent citizen; it blotted its own copy-book. Moderately expressed, Sir Edgar described the deprivation of his British nationality as ‘an unrighteous action’ by a civilised nation long after the World War had ended, governing with, at the very least, evident vengeance and absence of humanity. As was said by the Trojan lord, Pandarus, a public administrator’s mantra should be: ‘Be moderate, be moderate’.*
Sir Louis Blom-Cooper, QC