Back here – and the FT gig

I just realised I have not posted here for a while.  So here goes…

…since I last blogged here I have moved from the New Statesman to the Financial Times.  

I think this is a good move.

I loved working for the New Statesman – it was the magazine I used to read in the sixth-form college library which made me feel very grown-up.

And with the support of Jon Bernstein (the then deputy editor) I was able to do some fairly adventurous and consequential blogging – from Nightjack to Julian Assange’s extradition mythology.

Believe it or not I even won an award as a “mainstream blogger of the year”.  (I think it was the first thing I have “won” in my life!)

But my time at the New Statesman came to a natural end, and I also wanted to do lengthier pieces – essays, in a way – to be published as-and-when I got round to finishing them.

(I also am making actual progress with an e-book about a famous historical legal case. )

My blogging from 2009 to 2012/3 was at the time great fun to do – BCA v Singh, Twitterjoketrial, David Rose, Nightjack, Assange, and so on – but what I may do next will be a little different and less “investigative” or “campaigning” and more analytic and explanatory.

And so the FT is a good place for me.  I enjoy analysing and explaining, and I think I am often good at at it (though not as good as I would like to be).

There are plenty of others who want to debunk and campaign, and I am happy to leave them to it.

After a bit of a gap caused by a bout of bad health which prevented me from blogging for while, I today posted a detailed account of the recent prosecution of some men arrested for taking discarded food from a skip.  Please have a look – I hope you find it interesting.

Planned posts include scrutiny of the government’s  ‘good law’ initiative, a look at the state of the probation service, what the ‘Naked Rambler’ case tells us about the limits of the legal process, as well as a series of posts on public procurement and government contracts.  I will also keep on with the occasional analyses of cases in the news.

The FT blogs are free to access: but they are behind a registration wall.

That is a pity in that those who don’t want to register (or are not able to click through easily at the time they see the link) will not get to see the post.

All I can say in consolation is that it is worth registering as there is a lot of first-rate stuff to read at the FT.  But I am sorry if my main posts being behind a registration wall annoys or disappoints you.

Anyway, thanks for keeping an interest.

Nine hours in the life of David Miranda

Was the nine-hour detention of David Miranda lawful?

 

To answer this, let us start with what we know about the detention..

The official statement of the Metropolitan Police was as follows:

At 08:05 on Sunday, 18 August a 28-year-old man was detained at Heathrow airport under schedule 7 of the Terrorism Act 2000. He was not arrested. He was subsequently released at 17:00.

This provides official confirmation of three crucial facts.

First, that the duration of the detention was just under nine hours.

Second, that the man was not arrested in respect of – still less charged of – any criminal offence.  The man was allowed to fly on to his destination.

Third, that the detention was under schedule 7 to the Terrorism Act 2000.

 

Now, taking these three facts together a fuller picture begins to emerge.

 

The power to question

The use of schedule 7 of the 2000 Act is significant.  The schedule is set out here, and it provides at paragraph 2(1):

An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).

(Schedule 7 has legal effect under section 53(1) of the 2000 Act.)

The paragraph 2(1) power is limited to a specified purpose, that of “determining”  whether a person falls within section 40(1)(b) of the 2000 Act.  Therefore, if that is not the purpose then the power to question is not being lawfully exercised.

Paragraph 2(4) goes on to provide that an examining officer may exercise the power  whether or not he or she has grounds for suspecting that a person falls within section 40(1)(b).  This means that there does not actually need to be a reasonable suspicion.  However, paragraph 2(4) does not negate the requirement that the power be exercised for the purpose specified.

 

The power to detain

A power to question is not the same as a power to detain.

And so paragraph 6(1)(b) provides a power to detain a person for the purpose of questioning.

However, paragraph 6(1)(b) does not provide a power to detain that person – unless they are being questioned to determine whether they fall within section 40(1)(b) of the 2000 Act.

Therefore, this is not a general power to detain, and it is conditional on the person (a) being questioned for (b) the specified purpose.

So if the person is being detained for any other purpose then the power to detain is not being lawfully exercised.

As long as the power to detain is being used for its appropriate purpose then under paragraph 6(4), that detention can be for up to nine hours. However, the nine hours long-stop only applies whilst  the examination continues.  Once it is over before the end of nine hours, then the person should be released.

 

What section 40(1)(b) says

So schedule 7 provides a limited power to question and a limited power to detain.

Both the powers to question and to detain are conditional on the purpose of whether a person falls within section 40(1)(b) of the 2000 Act.

So the next question is fundamental – what does section 40(1)(b) say?

Section 40(1)(b) is a definition clause, and it provides the following definition of “terrorist”:

a person who…is or has been concerned in the commission, preparation or instigation of acts of terrorism.

Section 40(1)(b) thereby is a  limiting definition – the questioning (and any period of detention) under schedule 7 is for seeing if a person falls within this definition.  Accordingly, any questioning (and any period of detention) which is not for this specified purpose is outside the scope of the provision.

This limit is also significant as we look at the power of search and examine: paragraph 9 limits the power to examine property to determine whether the person falls within section 40(1)(b).  It is not a general power of search.

However, once property has been taken, then paragraph 11(2) provides it can be retained:

(a) the purpose of examination, for a period not exceeding seven days beginning with the day on which the detention commences, [or]

(b) while [the officer] believes that it may be needed for use as evidence in criminal proceedings […]

So, once the property has been taken from the detained person it can be kept for evidence in criminal proceedings, regardless of whether the detained person is within the category of “terrorist”.

 

Compulsion and coercion

Under paragraph 5(a), the detained person “must give the examining officer any information in his possession which the officer requests”.  Under paragraph 18, it is an imprisonable offence for that person not to comply with any duty (including the duty to provide information).

So the questions are asked under threat of coercion.

 

What schedule 7 is for and what it is not for

The legal powers provided under schedule 7 are broad, but they are also confined.

Unless they are being used for the specified purpose of determining whether the detained person fills the definition of “terrorist” under section 40(1)(b) then the power to detain and question cannot be lawfully used.

And if that is not the purpose, then the power to search for property to assist in determining whether a person is a terrorist is not triggered, and this in turn means that the power to retain any property for evidence in criminal proceedings is also not triggered.

In other words, schedule 7 cannot be used as a fishing expedition for property.

 

A detention of nine hours

David Miranda was detained for just under nine hours.

This is exceptional.

According to the official report on use of terrorism powers, only 0.06% of detainees are held for more than six hours.  This is not surprising given the limited scope of the question to be determined.  It seems 97.2% of those detained are freed in less than one hour.

For someone to be detained for almost the full nine hours is exceptional.  Even the “watchdog” for anti-terrorism legislation has called it “unusual”.

 

What the Americans have said

All the above can be worked out just from the Met police confirmation.

But what makes this case especially interesting – and, for me, worrying – is something which has been reported about what the American government knew. (Transcript.)

It is reported that the American government had advance notice of the detention.

If this is the case, then this appears to open a serious question [*Add for clarity – in this particular case] – if the officers knew in advance that Miranda was to be detained, they knew who he was.  He was not some random passenger.

Accordingly, if they knew who he was, then it would seem – to me – that [*Add for clarity – in this particular case] they would not therefore need to question and detain him to see if he fulfilled the section 40(1)(b) definition.  They knew full well whether he did, or if he did not.  The questioning would be artificial.

In other words, by flagging the American government with an advance notice of the detention [Add for clarity – in this particular case], it would seem to me that [*this] detention could not have been genuinely for the purpose of determining if Miranda fell within section 40(1).

And if  that was not actually the actual purpose of the detention, then there would be no power to question, detain and search David Miranda at all.

 

But in any case, and in summary: if the questioning, detention, and search of Miranda was for a purpose other than to determine if he was a terrorist, then it was unlawful.

 

[Add – 20 August 2013 – Joshua Rozenberg raises the alternative ground of illegality that the nine hour detention was disproportionate.]

[*Adds – 20 August 2013 – changes in the last few paragraphs to make intended meaning clearer – I was not making a general point that prior notice and awareness always meant a detention unlawful – but that in the case of Miranda it seems to me that they would have been aware that he was not a terrorist.]

 

 

 

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On “armchair defendants” and Bradley Manning’s lawyers

Today Bradley Manning apologised at the military tribunal – the apology is here.

 

The apology reads as if it was drafted by his defense lawyers: it is not only contrite, but it presses every button for the tribunal not to impose a harsh sentence.

 

This should not be a surprise, for the impression which has formed for many following this prosecution is that Manning is getting very good legal advice.

 

Instead of denying all charges, a wise decision was taken to admit the lesser charges and focus the defense on the more serious ones.  That tactic worked: Manning was found not guilty on the more serious charges.

 

Now at sentencing,  there is contrition and not crowd-pleasing defiance.  It may not be enough to prevent a heavy sentence, but it certainly will not provoke the tribunal into wanting to make a lesson of him.

 

Any lawyer defending a case in the public eye is aware that the defendant’s supporters will often want a more robust and confrontational approach to the case.  This pressure should be disregarded: the priority is always the client’s interests.  The media or political context of a case should not, of course, be ignored – and there are benefits to having external support – but the most important goal must be to get the optimal outcome for the defendant.

 

By concentrating on defeating the more serious charges, and by this show of contrition, it would seem that Manning now has the best possible chance of the lowest sentence available in the circumstances.  And if this is so, then it is the lawyers which should be thanked for that.

 

It is easy to be an “armchair defendant” – but it is less easy to be a real one sitting in a court room, or in a prison cell.

 

 

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The law and culture of phone hacking

Ignorance of the law is no excuse, as the old maxim says.

Nonetheless, there is something troubling about the spate of phone “hacking” which allegedly occurred in the first decade of this century. (Yes, I know the alleged interceptions of voicemail were not hacking in a precise technological sense, but bear with me.)

 

Newspaper offices are notoriously risk averse when it comes to the law.  That is why, for example, “libel chill” had the impact it did: there were things which would not be published, whatever the public interest.  The possible legal exposure was too much.  And even if an experienced editor would want to take a “robust” view, the in-house lawyers are there to urge due caution.

 

So what happened?

Why did any alleged phone hacking take place in this environment of compliance and risk avoidance?

 

Part of the answer was perhaps that the areas of law which dealt with phone hacking – namely the Regulation of Investigatory Powers Act and the Computer Misuse Act – were simply not well known to newspaper editors and lawyers steeped in the old media laws of libel and copyright.  As technology changed, the applicable laws changed as well, but that was not realised until far too late.

But part of the answer may also be  that it did not occur to anyone involved that it could even be a breach of the criminal law.  So, with no apparent law to comply with, only culture and ethics would act as any restraint on accessing the voicemails of others, or instructing private detectives to do so.

In practice, culture and ethics provided no barrier at all.

 

Phone hacking was probably never, in essence, a problem of illegality but one of culture.

There was this great new way of getting stories, and there seemed no compelling reason not to exploit it.

And so people did.

Ignorance of the law may never be an excuse, but sometimes it can also explain certain things.

 

 

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What we know – and what we don’t know – about the death of Lucy Meadows

A week ago primary school teacher Lucy Meadows was found dead at her home.

Over the last week there has been a great deal of interest in the case.  There has been a vigil outside a national newspaper office; there are petitions calling for an individual journalist to be sacked; there is the prospect of a House of Commons debate; and various groups have claimed the tragedy supports their objectives.

In all this, there is little concrete information. This post sets out, as of today, what we know and – more importantly – what we don’t know about what happened to Lucy Meadows before she died.  This post deals with these points in broadly chronological order, and as this is not a “blame” piece, I have anonymised the names of all but Lucy Meadows.

The full sources and other links for what follows are here.

 

What happened with the school

We know Lucy Meadows was a primary teacher at a certain school and that she was transitioning from male to female.  We know she had the support of her headteacher and of the diocese.  It appears she was popular and highly regarded.

We know that the headteacher put thought into how to communicate this news to the school, and it appears the headteacher decided to do this by means of a low-key announcement in the “staff changes” part of the school newsletter.

 

The local press

We know that the local press covered the story before the national press were aware of it.  We know that the local press – one paper in particular – were able to get a quote (and a photograph) of a concerned parent.  We know that claims were made that other parents were concerned, but there is no explicit evidence of this.

We do not know what either Lucy Meadows or the School did about this local news coverage, other than to provide statements.  Lucy Meadows and her headteacher released statements asking for privacy to be respected.

(26/3/13 ADDED: See Dan Waddell’s two detailed posts http://dan-waddell.blogspot.co.uk/2013/03/here-there-be-monstering.html and http://dan-waddell.blogspot.co.uk/2013/03/here-there-be-monstering-follow-up.html on how the news story went from local to national level.)

 

The national press

The national press picked up the story soon after it was published in the local press.  We know that the national press sought “before” and “after” pics of Lucy but had to settle for unauthorised Facebook pics and a child’s drawing.  We know that the national press took the decision to publish a story in December 2012 based on the adverse reactions of the parents.  However, there were still no more named concerned parents.

Once the story was covered in at least two national tabloids as a news story, we know that a controversial columnist used the information acquired by others for a critical main piece in his weekly column.  We do not know what Lucy Meadows thought of this column, as it is not mentioned in any of the emails which have so far been published.

 

The complaints of harassment and press intrusion

We know that Lucy Meadows complained of the press intrusion in emails sent to another trans person.  These emails have not been published in full.  In these emails we are told that Lucy Meadows was concerned at the presence of photographers at her school and the attempts to obtain private information (and pictures).  We are also told that the press seemed uninterested in the parents who wanted to say positive things.

Lucy Meadows also wrote that she had to significantly change her routine to avoid the press attention, arriving at school early and leaving late.

We do not know whether this is correct (though there is no reason to doubt it). We also do not know whether the press which were present were freelance or were staff journalists/photographers.

We know that Lucy Meadows submitted a PCC complaint in January 2013 and it is understood that there were others.  We know that her complaint was “resolved” but we do not know on what basis.

We know that the columnist’s piece was edited on-line on or before 12 March 2013 and that it appears text and photos were removed.  We do not have a reason for that edit.

 

The death of Lucy Meadows

We do not know the cause of death, though very early reports said it was suicide.  We do not know the relevant circumstances if it was suicide, and the Samaritans caution that no suicide should attributable to one factor.

We know that the police do not believe there were suspicious circumstances and that the death was unexpected. We know that a file has been passed to the coroner and that the coroner is expected to have an inquest.

We do not know what, if any, relationship there was between the press coverage/conduct and her death.  And even if there was a relationship, we do not know what aspect of the press coverage/conduct is of most importance.  In particular, we do not have any evidence that the columnist’s piece was directly relevant.

 

The significance of the death

We do not know the significance, if any, of the death.  We do not know whether it supports “press reform” or is irrelevant to it.  We do not know whether it is linked to transphobia or to any other cultural point.  We do not know whether it justifies the sacking of any reporter, photographer, picture desk editor, or news editor.

We simply do not know.

 

But what we do know is that the press coverage/conduct in December was personally unpleasant to Lucy Meadows and that she complained of it both to a contact and the PCC, and that it appears that the press coverage/conduct was in breach of her own stated preference for privacy.

And we are also entitled to form a view as to whether the press coverage/conduct in December was humane and decent; and in my personal view, it plainly was not.  In particular, what one can only call a “monstering” was wrong on its own terms, regardless of what happened afterwards.

 

 

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The death of Lucy Meadows

Lucy Meadows is dead.

 

She was a popular teacher at a primary school. But on Tuesday, police and an ambulance were called to her home. She was found dead. Her death is not being treated as suspicious. Already various people have said she took her own life. Helen Belcher reports that friends said that Lucy Meadows had spoke of suicide. The police told me today a file will be passed to the coroner.

 

At the moment we do not know how she died and, if it was the case that she took her own life, what the relevant circumstances were.

 

But what we do know is that Lucy Meadows was monstered by tabloid newspapers when news emerged that she was transitioning from male to female.

 

Suddenly she became not only an unwilling figure in sensational news reporting, but someone ridiculed and criticised by a national newspaper columnist. There was, of course, no public interest in any of this.

 

Such “monster” pieces are easy for tabloids to produce (especially if they get “before” and “after” photos), and the powerless figures caught up – victims – are unlikely ever to fight back. In a way, the tabloids treat trans people the way they would treat anyone, if they could get away with it.

 

In December 2011, the group TransmediaWatch made a submission to the Leveson Inquiry (I helped with some of the drafting). It documents the monstering of trans people by tabloids. Anyone with an interest in media matters should read it. The stories are horrific.

 

A person in transition is likely to be going through intense psychological and emotional changes: the worst thing for them is the humiliation of a sudden tabloid monstering (see more on this here). They are also having the most personal surgery one can perhaps imagine; but no other comparable group of people having surgery – say women having a mastectomy or hysterectomy – would feature in such sensationalist news reporting. Instead such intimate matters are rightly regarded as nobody’s business but that of the person involved.

 

And this should be the case for trans people. It is a basic privacy matter. The fact that someone is in transtion does not create any automatic public interest in their national media exposure. In fact, their situation calls for a genuine respect for their privacy and autonomy. The monstering of Lucy Meadows and other trans people is wrong on its own terms, regardless of any consequences.

 

Such monstering pieces really must now come to an end.

 

 

You can follow TransMediaWatch on Twitter. The Samaritans can be contacted here.

 

Post script – I have created a resource page here.

I also did an interview for Radio 4 on the above – you can hear it here at 25:20.

 

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Human Rights Act and Bingham’s Question: which rights are we to discard?

So the Human Rights Act and the European Court of Human Rights are in the news.

One Tory Minister wants to repeal the Act, and another wants us to withdraw from the Court.  The extent to which either of these propositions make sense is expertly set out by Adam Wagner, perhaps the UK’s leading legal blogger.

The proposals are depressing on two levels.

First, it is clear that such calls are gesture politics.  The Tories have lost a by-election and feel the need to play to the audience.  There is no real chance that the Act will be repealed or the UK withdraw from Strasbourg.

Second, it represents a failure by those in favour of human rights law.  It is now over twelve years since the Act took effect, but still uninformed and misleading statements about human rights law are made by those who should know better and circulated by those who could not care less.

But since 2000, human rights have become part of the mainstream in litigation.  Even Associated Newspapers has sought to rely on its Article 10 right to free expression under the ECHR (see paragraphs 33 and 36 here).   But the frequent use of human rights law in the courts has not been matched by a more informed public debate.

Indeed, one of the shortest conversations one can have in British politics is when a critic of human rights is asked to be specific as to which rights under the ECHR and provisions of the Human Rights Act should be abandoned.  It is almost as “human rights” is a hobgoblin with no more substance than is necessary to scare us.

In fact, the Human Rights Act is an instrument which should be commended by those who want the UK courts to decide things instead of Strasbourg.  The Act’s existence has made it rare for applicants to go to the European Court of Human Rights, and the case law developed by UK judges in UK courts since 2000 means that Strasbourg jurisprudence has become less relevant.  The Human Rights Acts also provides that UK judges cannot disapply primary legislation on human rights grounds, and so the supremacy of parliament is maintained.

And as for the convention rights themselves, which ones should we not have as protections?  As the late Lord Bingham said in a lecture which should be read in full by anyone interested in the human rights debate:

The rights protected by the Convention and the Act deserve to be protected because they are, as I would suggest, the basic and fundamental rights which everyone in this country ought to enjoy simply by virtue of their existence as a human being.

Let me briefly remind you of the protected rights, some of which I have already mentioned.

The right to life.
The right not to be tortured or subjected to inhuman or degrading treatment or punishment. The right not to be enslaved.
The right to liberty and security of the person.
The right to a fair trial.
The right not to be retrospectively penalised.
The right to respect for private and family life.
Freedom of thought,conscience and religion.  Freedom of expression.
Freedom of assembly and association.
The right to marry.
The right not to be discriminated against in the enjoyment of those rights.
The right not to have our property taken away except in the public interest and with compensation.
The right of fair access to the country’s educational system.
The right to free elections.

 

Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any them un-British? 

There may be those who would like to live in a country where these rights are not protected, but I am not of their number.
Human rights are not, however, protected for the likes of people like me – or most of you. They are protected for the benefit above all of society’s outcasts, thosewho need legal protection because they have no other voice – the prisoners, the mentally ill, the gipsies, the homosexuals, the immigrants, the asylum-seekers, those who are at any time the subject of public obloquy.

Here Lord Bingham nails it: just which of these rights do we really wish to discard?

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The debate about juries which came from nowhere

 

And so it came to pass, that a debate about the role of juries came out of nowhere.

 

Whatever we were expecting from the Huhne and Pryce trial (he pleaded guilty, she faces a retrial), it was not a discussion about the composition and function of juries. Points about reporting restrictions (the case has had many and some are still in force) perhaps, or about the scope of the curious “marital coercion” defence. But not about juries; that was a shock.

 

However, the Pryce jury’s questions prompted many responses outside of the courtroom.

 

The most detailed and fascinating of these responses was by Richard Moorhead, which should be read in full. The legal blogger Obiter J has set out a number of other links. My own contribution (the chief merit of which was the punning title) was at the New Statesman (and I also debate juries with Joshua Rozenberg, who did a misconceived and illiberal piece on juries, in the Observer tomorrow).

 

I am actually no great fan of juries. But they are better than the alternative, and their questions – however daft – should always be encouraged and not ridiculed.

 

For me, what was most interesting about the Pryce jury questions was how a combination of in-court tweeting and outside-court blogging led to an immediate and interesting public debate about juries in general.

 

For, in a week when it emerged that the Guardian law page is to become a zombie, automated site without dedicated editorial staff, the speedy, varied and relatively informed response to the Pryce jury questions shows that legal tweeting and blogging is now, in effect, the standard form of legal commentary on developments in the news. This is just as well, as soon there will be no full-time legal or court correspondents on any national paper.

 

But is legal blogging and tweeting really any adequate replacement for full-time legal journalism? On that the jury is still out…

 

 

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The question of Calvin Candie.

(Spoilers below for Django Unchained.)

 

 

I remember the buzz about Reservoir Dogs going around college.

 

It would have been during the final year of my degree; and suddenly it seemed everyone was discussing it, forming an opinion on its merits and its violence, and just quoting and alluding to it whenever they could.  Then came Pulp Fiction, and we were all in awe.

 

 

So a generation was formed of Tarantino fans, and our fate became to look forward to each of his films hoping to re-capture that high of 1992 to 1994.

 

And so dutifully I went to see Django Unchained.  The generally positive advance publicity suggested it would not just be another Four Rooms or Death Proof, thank god.

 

Would it be a sequence of showy fight scenes, like Kill Bill?   Or an attempt at a story telling relying on great acting, like Jackie Brown?  Or would it simply make no sense at all, like Inglourious Basterds?  At least there would not be Mexican vampires.

 

Would the film get a supportive nod, or a wince at self-indulgence, before thinking back to the wonder of Tarantino’s first two major releases?

 

 

What I did not expect was what interesting me most about the film – the way Tarantino explored and represented legal issues.

 

Here the crucial question is that posed by the plantation owner Calvin Candie:

I’ve been surrounded my entire life by black faces. I only have one question: Why don’t they just rise up and kill the whites?

 

The film suggests that part of why there was no slave rebellion in the southern states was because of how the law was used.

 

At the film’s very start, Dr Schultz makes sure he gets a bill of sale for Django.  It seems like a theatrical affectation, but it becomes clear its importance is very practical.  Later on it appears Django rules out a simple snatch of Broomhilda as he would need a bill of sale for her, and at the end of the film he makes sure he has that bill of sale before riding off with her, and leaving the burning manor house behind.

 

Furthermore, the film sets this pedantic regard for legality into a wider context of the rule of law.  On two occasions  Dr Schultz gets away with what otherwise would be murder because of a piece of paper and the announcement he is an officer of the court.  And Candie himself boasts that his property rights are his to exercise as he wants.

 

How realistic is all this?

 

Well, one cannot help thinking that waving bills of sale and warrants for capturing dead or alive would not have got two protagonists like Schultz and Django very far in the Dixieland of 1858.  One suspects they would have both been shot the first time they tried it.

 

But Tarantino perhaps has a point: why do the repressed not rise up when they are many when those repressing them are few?  In terms of simple numbers, the “elite” would not have a chance.

 

One reason is that, absent a general revolution, the same legal system will always be there when the dust of revolt settles.  The rebels’ claims to the property of the overthrown will not be respected by the civil law; and the criminal law will protect from sanction those killing and arresting the rebels.  Being an outlaw may well be a nice pose; but the reality means that your rights to life and property no longer exist.

 

There are, of course, other reasons for a lack of revolt – the inequality of arms, the routine use of sheer force, the use of spies and informers, the rewards given for collaboration,  and the promotion of ideologies that promote deference.

 

But the question of Calvin Candie is a good one, and it is not easily answered.

 

I was just not expecting a Tarantino film to be so thought-provoking in this way.

 

 

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Why did George Orwell call his last novel Nineteen Eighty-Four?

 

 

 

Why did George Orwell call his last novel Nineteen Eighty-Four?

The usual explanation for the choice of title of Nineteen Eighty-Four is that it was a play on the last two digits of 1948, the year the manuscript was finished.

This has never convinced me. I think there may be a better explanation, which comes from George Orwell’s intellectual hostility to the Catholic writer G. K. Chesterton.

This post sets out this alternative explanation as to why Orwell did give his novel the title Nineteen Eighty-Four. It is culled from work I did some time ago when I was considering a higher degree. Although the coincidence on which it is based has been noticed before, I am not aware of any other attempt to assess the alternative explanation that I offer.

 

A choice of title

In autumn 1948, Orwell is uncertain as to the title of his new novel. He has two titles in mind, and he asks at least two people for their view. In a letter dated 22 October 1948, Orwell explains the dilemma to his literary agent:

“…I have not definitely decided on the title. I am inclined to call it either NINETEEN EIGHTY-FOUR or THE LAST MAN IN EUROPE, but I might just possibly think of something else in the next week or two.”

On the same day he also writes to his new publisher and makes the same unsure admission:

“…I haven’t definitely fixed on the title but I am hesitating between NINETEEN EIGHTY-FOUR and THE LAST MAN IN EUROPE.”

However, within a month, the first of these two titles appears to have stuck. At least other people had taken it up. In December 1948, the publisher had compiled a report on the novel, calling it “1984”, as did one of the professional readers.

By 17 January 1949, Orwell himself has clearly made his choice of title and was now discussing whether it should be entitled “1984” or “Nineteen Eighty-Four”.

The book was published later that year.

 

The conventional explanation

The conventional account is now almost an urban myth. Everybody knows it, so to speak.

This 1948 explanation, although widely adopted, is actually not that well attested. For example, I have not found it stated anywhere by Orwell or by anyone with whom he conversed.

So far, I have only been able to trace the 1948 explanation to an American publisher called Robert Giroux, who saw Nineteen Eighty-Four through the press for the US edition.

However, Orwell was not particularly close to Giroux, and there is no reason to believe that Giroux was privy to any special information about Nineteen Eighty-Four. Although there is some correspondence between Orwell and Giroux, I have not seen any mention in that correspondence of why the book had this title.

In passing, I note that Orwell complained that he did not like what Giroux was doing to the book in the US edition. Nor did he appreciate the unsolicited requests for writing blurbs.

 

An alternative explanation?

If the 1948 theory is possibly not correct, why did Orwell choose to set his dystopia in the year 1984? My alternative explanation brings us to G.K. Chesterton, an earlier and very different writer to Orwell.

 

Chesterton was, of course, the writer of the Father Brown stories, as well as a prolific poet and journalist. But it is one of his two famous novels (the other being The Man Who Was Thursday) with which I am concerned here: The Napoleon of Notting Hill.

 

The Napoleon of Notting Hill is a fantasy set in a future London. (As a fantasy writer, Chesterton has the deserved admiration of modern fantasy writers such as Neil Gaiman.) The hero is Auberon Quin, a well-meaning eccentric who suddenly becomes King. The political context for all this is set out when the story begins:

VERY few words are needed to explain why London, a hundred years hence, will be very like it is now, or rather, since I must slip into a prophetic past, why London, when my story opens, was very like it was in those enviable days when I was still alive.

The reason can be stated in one sentence. The people had absolutely lost faith in revolutions. All revolutions are doctrinal…such as the French one, or the one that introduced Christianity.

For it stands to common sense that you cannot upset all existing things, customs, and compromises, unless you believe in something outside them, something positive and divine. Now, England, during this century, lost all belief in this. It believed in a thing called Evolution. And it said, “All theoretic changes have ended in blood and ennui. If we change, we must change slowly and safely, as the animals do. Nature’s revolutions are the only successful ones. There has been no conservative reaction in favour of tails.”

And some things did change. Things that were not much thought of dropped out of sight. Things that had not often happened did not happen at all. Thus, for instance, the actual physical force ruling the country, the soldiers and police, grew smaller and smaller, and at last vanished almost to a point. The people combined could have swept the few policemen away in ten minutes: they did not,because they did not believe it would do them the least good. They had lost faith in revolutions.

Democracy was dead; for no one minded the governing class governing. England was now practically a despotism, but not an hereditary one. Some one in the official class was made King. No one cared how; no one cared who. He was merely an universal secretary.

In this manner it happened that everything in London was very quiet. That vague and somewhat depressed reliance upon things happening as they have always happened, which is with all Londoners a mood, had become an assumed condition. There was really no reason for any man doing anything but the thing he had done the day before.

The Napoleon of Notting Hill is, however, now more famous for its preface, entitled Introductory Remarks on the Art of Prophecy. Only a few hundred words long, it is a much-quoted source of Chestertonian wit. (It begins wonderfully with “THE human race, to which so many of my readers belong…”.)

The preface is not used to introduce the story but to undermine both modernist pretensions and radical predictions. Chesterton ridicules in turn H. G. Wells, Edward Carpenter (the early environmentalist), Leo Tolstoy, Cecil Rhodes, Benjamin Kidd ( a sociologist), W. T. Stead (a campaigning journalist), and Sidney Webb. In each instance their views are stated and then juxtaposed with an absurdly exaggerated view of an invented eccentric.

For example:

There was Mr. Sidney Webb, also, who said that the future would see a continuously increasing order and neatness in the life of the people, and his poor friend Fipps, who went mad and ran about the country with an axe, hacking branches off the trees whenever there were not the same number on both sides.

And so on. Chesterton then concludes the preface with a provocative challenge to every other forecaster or prophet. They would err as every such pundit had erred:

All these clever men were prophesying with every variety of ingenuity what would happen soon, and they all did it in the same way, by taking something they saw ‘going strong’, as the saying is, and carrying it as far as ever their imagination could stretch.

So:

When the curtain goes up on this story, eighty years after the present date, London is almost exactly like what it is now.

The Napoleon of Notting Hill was published in 1904; the curtain therefore goes up in 1984.

 

Orwell and Chesterton

Orwell intellectually loathed GK Chesterton and other Catholic conservative writers.

If this aspect of Orwell’s thought is less appreciated today, it is perhaps because the debates changed. However, Orwell’s criticism of the intellectual and moral dishonesty of Catholic conservatives was a common theme in Orwell’s journalism and other published writing, and he often bracketed Catholic conservatism and his other bugbear, Stalinism.

Indeed, one can often swap his comments on Stalinism and Catholic conservatism. They are almost invariably interchangeable.

Orwell wrote only one major political essay in 1945 (the year he started Nineteen Eighty-Four. This was Notes on Nationalism. This influential essay sets out how certain ideologies (or “nationalisms”) can undermine clear political and moral thinking. And only one writer or politician is examined in this context: Chesterton.

In the essay, Orwell introduces both Chesterton and his long held attitudes towards him:

Ten or twenty years ago, the form of nationalism most corresponding to Communism today was political Catholicism. Its most outstanding exponent – though he was perhaps an extreme case rather than a typical one – was G. K. Chesterton.

Orwell characterises Chesterton:

Chesterton was a master of considerable talent who chose to suppress both his sensibilities and his intellectual honesty in the cause of Roman Catholic propaganda.

And Chesterton’s method:

Every book that he wrote, every paragraph, every sentence, every incident in every story, every scrap of dialogue, had to demonstrate beyond possibility of mistake the superiority of the Catholic over the Protestant or the Pagan.

In a Tribune column in February 1944, Orwell specifically attacked Chesterton’s assertions about change over time:

It is not very difficult to see that this idea is rooted in the fear of progress. If there is nothing new under the sun, if the past in some shape or another always returns, then the future when it comes will be something familiar.

Orwell continues by contrasting Chesterton’s Catholic conservatism with his own democratic socialism:

At any rate what will never come – since it has never come before – is that hated, dreaded thing, a world of free and equal human beings.

 

Orwell and Catholic conservatism

Orwell’s hostility to Chesterton has to be seen in the context of his disdain for other Catholic conservative writers. In a book review as early as 1932, Orwell is dissing Catholic writers:

Our English Catholic apologists are unrivalled masters of debate, but they are on their guard against saying anything genuinely informative.

Later, a central theme of Orwell’s hostility towards ‘political Catholicism’ was its close relationship with Fascism. In 1944, he notes almost in passing,

Outside its own ranks, the Catholic Church is almost universally regarded as pro-Fascist, both objectively and subjectively.

And in a Tribune column of 1945,

The Catholics who said ‘Don’t offend Franco because it helps Hitler’ had more or less consciously helping Hitler for years beforehand.

Animosity towards ‘Catholic conservatism’ was perhaps most obvious in his weekly Tribune column. For example, two favourite straw-dollies were the right-wing, Roman Catholic journalists ‘Timothy Shy’ and ‘Beachcomber’. In 1944, Orwell warned readers that,

their general ‘line’ will be familiar to anyone who has read Chesterton and kindred writers. Its essential note is denigration of England and of Protestant countries generally.

And therefore,

It is a mistake to regard these two as comics pure and simple. Every word they write is intended as Catholic propaganda.

In a Tribune column in October 1944, Orwell discussed the writing and broadcasting of C.S. Lewis :

[I was] reading, a week or two ago, Mr C. S. Lewis’s recently-published book, Beyond Personality…The idea, of course, is to persuade the suspicious reader, or listener, that one can be a Christian and a ‘jolly good chap’ at the same time. I don’t imagine that the attempt would have much success…but Mr. Lewis’s vogue at this moment, the time allowed to him on the air and the exaggerated praise he has received, are bad symptoms and worth noticing…

A kind of book that has been endemic in England for quite sixty years is the silly-clever religious book, which goes on the principle not of threatening the unbeliever with Hell, but of showing him up as an illogical ass, incapable of clear thought and unaware that everything he says has been says has been refuted before. This school of literature started with W. H. Mallock’s New Republic, which must have been written about 1880, and it has a long line of practitioners – R. H. Benson, Chesterton, Father Knox, ‘Beachcomber’ and others, most of them Catholics, but some, like Dr Cyril Allington and (I suspect) Mr Lewis himself, Anglicans.

The line of attack is always the same. Every heresy has been uttered before (with the implication that it has been refuted before); and theology is only understood by theologians (with the implication that you should leave your thinking to the priests)…

One reason for the extravagant boosting that these people get in the press is that their political affiliations are invariably reactionary. Some of them were frank admirers of Fascism as long as it was safe to be so. That is why I draw attention to Mr C. S. Lewis and his chummy little wireless talks, of which no doubt there will be more. They are not really so unpolitical as they are meant to look

 

Most relevant for the purpose of connecting Orwell to The Napoleon of Notting Hill is his 1946 book review of The Democrat at the Supper Table, where Orwell forcefully attacks the author’s conservative politics and the sophistry of the novel’s central character:

Without actually imitating Chesterton, Mr. Brogan has obviously been influenced by him, and his central character has a Father Brown-like capacity for getting the better of an argument, and also for surrounding himself with fools and scoundrels whose function is to lead up to his wisecracks.

When a clergyman wrote to complain about the tone of Orwell’s review, the reply elaborated on the initial attack:

Ever since W. H. Mallock’s ‘New Republic’ there has been a continuous stream of what one might call ‘clever Conservative’ books, opposing the current trend without being able to offer any viable programme in its place.

Orwell continued, appearing to have in mind the Preface to The Napoleon of Notting Hilll

If you look back twenty years, you will find people like Ronald Knox, Cyril Alington, Chesterton himself and his many followers, talking as though such things as Socialism, Industrialism, the theory of evolution, psycho-therapy, universal compulsory education, radio, aeroplanes and what-not could be simply laughed out of existence.

 

So did Orwell take the year 1984 from The Napoleon of Notting Hill?

Taking the stories as a whole it is not too much of a strain to see Nineteen Eighty-Four as a riposte to The Napoleon of Notting Hill. There are many points of comparison. Both books show that a belief in revolution that appears to have gone wrong, and both focus on the frustrations of a sympathetic central character as he attempts to challenge the prevailing system. Both are utopian/dystopian visions, containing prophecies extrapolated from current trends.

There are also many telling contrasts. The Napoleon of Notting Hill is written from the point of view of a Catholic populist and Nineteen Eighty-Four is by an almost secular social democrat.

It is, in many ways, a plausible explanation.

However, this alternative explanation has gaps.

For example, even though Orwell has a clear disdain for Chesterton and is antipathetic to the prophetic pretensions of Chesterton and other religious conservative writers, there is actually no direct evidence that Orwell either had read or even possessed The Napoleon of Notting Hill.

One feels he “must have done” as it is one of Chesteron’s three best-known works and probably his most quoted, but one cannot invent convenient evidence. The best I can say is that it difficult to imagine Orwell committing his attacks in Notes on Nationalism without being aware of Chesterton’s clearest and best known statement against “progress”.

Subject to further research, the final position on the question must be inconclusive though fascinating.

However, the possibility that the title of Nineteen Eighty-Four was derived from The Napoleon of Notting Hill does allows us to explore an often overlooked part of Orwell’s political outlook: the deep hostility of a decent and progressive liberal to the intellectual and moral dishonesty of religious conservatives.

 

This post is republished from my old Jack of kent site.

 

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