Some legal thoughts for the end of the year

Libertarian Alliance, December 2013

Previously I have written on the Freemen-on-the-Land and Lawful Rebellion movements. These movements are based on a number of interpretations of law that maintain, in general terms, that it is possible for the individual to challenge given legal provisions on the basis that they use a particular form of words, issue given documents that are said to have contractual enforceability under law, or withdraw actual or implied consent from what is, or what is claimed to be, a contract with the state or agencies acting on its behalf.

Dr Gabb and I are in agreement that these points, whatever their merits – and argument is sharply divided as to whether there is merit to them – are not a magic formula that, when deployed in the face of the state, will result in capitulation on its part. The state rests upon a basis of coercion, and its judicial branch is just that; a branch of the state designed to do what the state bids. It is misguided to believe that the law can be used against the state; the law exists for the benefit of the state and will not be interpreted in such a way as to threaten its fundamentals.

However, it does seem that Freeman techniques may have some significant results when deployed in practice, and that these results may not be entirely undesirable. What they amount to is a campaign of civil disobedience, and such a campaign may prove effective in frustrating aspects of the administration of law and making its operation both more costly and more time-consuming.

An article from the Irish Independent published this October tells us that,

“There have been more than 100 cases in the last year in which borrowers have used versions of Freemen arguments to resist possession by receivers and banks.

The Freemen claim, amongst other things, that they don’t recognise the authority of the courts.

Borrowers have also sought to evade judgment or eviction by claims that they have transferred their mortgages to secret trusts, claiming they can’t be evicted from their homes or business premises.

[Barrister Rossa] Fanning said that while every case must be heard and determined carefully on its own merits, the prevalence of lay litigants defending proceedings on the basis that High Court judges are not properly appointed and don’t have jurisdiction to hear cases – on the basis of “Freeman of the land” theories of law – is a serious challenge facing our legal system.”[1]

One hundred cases in a year would indeed appear to be a serious challenge. It does not ultimately matter that Freeman language and ideas are the chosen vehicle. The defendants could just as well be resting their claims upon any theory designed to frustrate the proceedings. It may well be that some of their actions are fruitless or even counter-productive. It certainly seems to be the case that some of them are using this as a means to evade contractual obligations that they have properly entered into. But Mr Fanning seems to have grasped the effect that they are achieving,

    “These arguments constitute a threat to law and order in this society because they are being advanced by people who, being realistic about matters, are engaged in a campaign aimed at the wholesale tearing up of contractual obligations without any legal basis to support same”.

Governance, even by the most brutal of tyrants, is ultimately dependent upon one thing: popular consent. Rule by repression may be sustainable for a decade or so, but it is inherently unstable. History is full of the downfall of dictators and indeed of unpopular absolute monarchs at the hands of popular uprisings of various kinds. It is true that our many-headed hydra of a state is not as easily removed. But it is equally true that its rule depends upon consent and co-operation by the population at large. If that consent is removed in a few cases, there will be little effect other than the repression of the individuals involved. If it is removed in many cases, then the effect is more likely to be that of making the business of governance difficult and, in time, impossible.

I would not want it to be thought that I am inciting our readers to embark upon a campaign of lawbreaking. Rather, I would invite them to consider a number of factors before reaching their own conclusions. The first is the systematic misuse of our legal code for political ends. I have long believed that our membership of the European Union, so far as it involves the surrender of Britain’s sovereignty, is illegal. I find it fascinating that during the years that I and others have been saying so, we have been treated as voices in the wilderness. Now, however, we have a former Lord Chief Justice suggesting that there is no consensus as to whether European Court of Human Rights rulings are actually binding on the United Kingdom, as it has been widely assumed in the past that they are[2]. If they are not binding, as I believe they never were, then it follows that the copious additional legislation passed by Parliament in the belief that it was following obligations incurred by subsidiarity to the European Union has also wrongly been seen as binding, where in fact it was optional. The implications of this perception, were it to take hold among the population, could well be truly seismic. I do not doubt that there would be those who would try nevertheless to enforce such erroneously-passed laws, but I do not believe that such an enforcement could command any form of legitimacy, nor do I believe that it should receive popular consent.

That brings me on to the next factor, which is that our laws rest upon both a literal basis, that is to say their place as a part of the code of law per se, and a moral basis, the latter dependent upon consent. In the Irish cases, there is a popular perception that the use of the law by mortgage companies against individuals who have suffered hardship as a result of the financial crisis is unjust and immoral, and should be resisted through the withdrawal of consent. Meanwhile, in England and Wales, not so long ago, a number of offences were removed from the statute book; in some cases because they conflicted with later legislation, but in others because they had simply fallen into desuetude – the law had ceased to be observed to the point where it was futile to maintain it. The latter position is an eloquent argument against absolutism in legal matters. A further argument has been the increasing use of the law during the past few decades as a means of petty regulation of matters that are the subject of legitimate moral and ethical interpretation; in other words those laws that seek to enshrine explicitly political ideas, such as egalitarianism, and to suppress opposition to those ideas.

Clearly, there are proper limits to these arguments. I am not about to suggest, along with some of those from the far Left, that there is a moral case for the mass murder of one’s political opponents, or for the theft and redistribution of goods. Nevertheless, it is our government that has felt free to engineer the murder of thousands through its foreign expeditionary wars, and that continues to perpetrate the latter crime through the tax system. It can, I believe, be convincingly argued that our government has conclusively lost what moral authority it might once have had.

Moreover, it seems to me that while it is possible to enter into detailed argument as to the lawfulness of this or that legislative provision, or the right to enter into Lawful Rebellion under Magna Carta, or whether statute law is applicable in this or that instance, such argument leads ultimately to the same ends: consent can either be given or withdrawn to governance, and either way, consequences will ensue.

My point is that as principled libertarians, we should be ensuring that our resolution in the year ahead is to fully and consciously exercise our consent, to be aware of when and how we are giving consent, and to be prepared to withhold consent when not to do so would conflict with our ethical beliefs and involve consequences which we are prepared to accept. We may, and I would argue that as libertarians we should, hold that the government of the United Kingdom, as presently constituted, is both illegal and illegitimate, and further that it is immoral. It follows that we should consider carefully how we should engage with such an entity, on what terms and with what reservations.

We do not need to embrace the Freeman philosophy or even accept its legitimacy to see the value of even a relatively blunt instrument – a form of filibuster if you will – in the withdrawal of consent. It may be that the hundred Irish cases will ultimately be unsuccessful. Alternatively, it may be that they are the beginning of something interesting. Certainly, there are areas where the possibility of the exercise or informed withdrawal of consent may involve little cost to the individual but may have considerable effect if adopted on a wide scale. A number of our readers, for example, believe that the BBC should be abolished. The easiest way to achieve this aim is to participate in those groups that aim to resist, and in time to abolish the television licensing scheme by which the BBC is funded. Further information is provided at this website[3]. Increasingly, the subcontracting of petty legal enforcement of various kinds to private companies involves the citizen in the acceptance of contractual terms of various kinds, sometimes without explicit consent being provided. In certain cases, it may be that it is profitable to establish whether that contract is valid or whether there is a basis upon which it may be contested.

But these are only basic illustrations of what can form a much deeper challenge to the assumptions that underly the consent between state and individual. If we take as a resolution the phrase Question everything! for the coming year we may be in a position where we gain a greater understanding and benefit from that process as a result.

[1] http://www.independent.ie/business/irish/some-debtors-using-freeman-claims-to-evade-obligations-29695437.html

[2] http://www.bbc.co.uk/news/uk-politics-25535327

[3] http://www.tvlicenceresistance.info

The perils of professionalism

Libertarian Alliance, September 2013

There has been a good deal of talk recently regarding UKIP and “professionalism”. Will Gilpin, outgoing chief executive, thinks the party will remain “a bunch of enthusiastic amateurs”[1] unless it becomes less Farage-centred. Implicit in his commentary is that being enthusiastic amateurs is a bad thing. And in the wake of the departure of Godfrey Bloom – probably the party’s highest-profile figure after Farage – an unnamed UKIP source has opined “…we have to recognise that we live in a modern, inclusive society and we could help mould the future of that society. We have to recognise certain ways of thinking and speaking have changed.”[2] This seems to be a call for UKIP to choose between its present nature and the compromises that would be required of it, not so much so as to be electable, as to enable it to fit in to the prevailing political establishment and to work with bodies such as the Civil Service, the Foreign Office and local government without ruffling too many feathers at home and abroad.

What is not readily discussed in this context is the nature of professionalism and its alternatives. The assumption that professionalism is necessarily a good thing is not one that should follow for any party that uses the word libertarian in its publicity. Indeed, the professions carry with them the most double-edged of swords. On the one hand, there are areas where society is in need of rigorous bodies that ensure that standards are maintained to protect public safety – few, for example, would want to see a return to amateur brain surgery. On the other hand, professional culture has suffered mission creep. It now extends to areas that were not “professional” – and indeed had good reason for not being professional – only a few years ago. Politics is one of these. Where once the idea prevailed that politicians would have an existing career and achievements behind them before entering the House, and would be possessed of an independence of mind that would produce a bottom-up approach to politics, increasingly politicians – such as our own Prime Minister – are rising on the basis of a career entirely spent in politics and related fields such as public relations, and political parties have an authoritarian, top-down approach to policy and strategy, only occasionally derailed by the odd backbench rebellion.

Much that has gone wrong with our society in the last few decades can be laid at the door of a professional political class. Indeed, the rise of that political class exemplifies some of the most significant problems with professionalism. Perhaps the most glaring of these is the abnegation of personal responsibility. Because there is a collectivism inherent in the nature of professionalism, with an overarching set of systems, a common culture, bodies maintaining “standards in public life” and an admission process that is certainly selective (if not necessarily using the right criteria), individuals experience a disinhibiting effect that leads to their placing the culture and norms of their profession ahead of any personal opinions or morals. They are told that their actions must be construed as “for the team”, that interpretation is to be decided as party policy, that dissent is likely to be construed as disloyalty, and that adherence to the professional culture will likely bring about personal enrichment in due course. Moreover, professionalism leads to an expansion of the political class beyond MPs and office staff to a plethora of unelected ancillary political posts, including special advisers of various kinds, fixers and spin-doctors.

Recently, Damian McBride’s memoirs have been serialized in a daily newspaper. McBride, who has confessed to various unpleasant acts during his political career, claims that “the “dark” world of politics encourages vanity, duplicity, greed, hypocrisy and cruelty, and confessed that he was “sucked in like a concubine at a Roman orgy”[3]. It is, of course, possible that McBride’s apologia is not wholly sincere. However, his excuse is the more plausible because it has the ring of truth to it. Professional politics involves a bizarre and amoral set of attitudes and behaviours; in most cases, it is an exemplification of the principle that it is not enough that one must win – others must lose in the process. That the dirty work may be done by a spin-doctor rather than by elected politicians is no more an exoneration than the argument that another member of a murderous cabal struck the blow that proved fatal. That people periodically fall from grace is seen as a validation of the professional culture, which must be working if it roots out the bad hats from time to time. This is a convenient explanation, since it conceals both the precise mechanism that has been involved in that fall and also enables a degree of scapegoating that concentrates media attention upon the individual in question.

It seems not to have been widely considered that these behaviours may well be the consequence of the adoption of a professional culture. Most professions have in common that they are strongly protectionist. They exist not so much to keep the right sort of people in as to keep the wrong sort of people out. They encourage the view that the boundary between those on either side of that fence is rigid, permanent and fulfils an important purpose – typically “maintaining standards”, “protecting the consumer” or “ensuring quality”. Yet all of these matters, with the exception of those which are obvious points of public safety, are more subjective than is generally admitted. The question that is of interest is not so much where the line is drawn, but who draws it and what their reasons are for doing so. Often, there is a monopoly at stake.

Naturally, this process also serves to disempower the public. “Expert culture” is a modern phenomenon that has displaced the attitude, common a generation ago, that a rounded education enabled an intelligent person not only to hold forth with authority upon the subject they had studied, but to acquire related and indeed unrelated knowledge that could enable multi-disciplinary expertise. The view was formerly expressed that a person with a good degree from Oxbridge (or indeed any other competitive university) was equipped not only with a given set of knowledge but with the capacity to expand that knowledge to a potentially infinite extent, and without financial or career considerations necessarily being relevant. The argument that human knowledge has expanded so fast in the last few decades that this is no longer a realistic aim is false. On the contrary, access to information, particularly online, has accelerated to the extent that it is possible to brief oneself on a given topic with much greater ease than was the case hitherto. Certain sections of the public are significantly better-informed as a result.

The difficulty for such autodidacts comes not in the acquisition of knowledge, but in the impact of professionalism upon its effects. Only knowledge gained within the academy – with its certificates, letters and other seals of establishment approval – is admissable, leading to an epidemic of credentialism in areas that were previously blissfully informal. The professional regards the autodidact, as an amateur, as belonging to the other side of the fence – indeed as representing an active danger to the establishment. And indeed, some of those on the other side of the fence have little in their favour. But what is behind this division is not invariably the desire to avoid our universities becoming peopled by individuals in tin foil hats; rather it is the need for professions to validate themselves by defining a clear “out group” who are discredited and even demonized as a means of reinforcing the professions’ self-belief. In politics, which is supposed to be representative, these attitudes are especially dangerous. They have an impact not only upon Westminster, but on the public sector as a whole, whose role is not merely supportive to government but whose consent and active support is essential for governance.

Professionalism is intimately linked to the state. The first professions may have begun not dissimilarly from trades unions, as voluntary associations, but they have long outlived that role, and are now increasingly endorsed by the state as the gatekeepers to the practice of their respective arts and sciences. Specifically, they directly influence state education in their disciplines, act as influential lobbyists, and ensure that their members are kept up-to-speed with the direction that the state is choosing to pursue, which will often be internationally “harmonized” with comparable bodies abroad. When the state seeks to make decisions, it will invariably refer to the professions in the process of the formulation of policy. As a result of the symbiotic relationship of the professions to the state, the decisions that influence that process of gatekeeping are by their nature political decisions. More often than not, they reflect the cultural agenda of the Left – particularly, of course, those parts of that agenda that have become enshrined in law – as well as those that constitute modern-day political shibboleths.

It seems likely that most people who support UKIP (excepting those who derive their career prospects from that association) like the fact that it is not “professional”; indeed that it has clearly differentiated its brand from that of the professional political machine. UKIP will need to think carefully before it rushes to embrace professional culture. By doing so, it may well be abandoning something that is of far greater value than anything it might gain. But if it decides that it is going to oppose, rather than embrace, professionalism, then it will have a fight on its hands that, while in the most just of causes, I doubt it can win without first embracing a complete cultural restructuring of much of this country and in particular its public sector.

It is far easier to accept the establishment way of doing things. The business-as-usual nature of professional politics ensures that individuals can make handsome careers for themselves and the rest is compromise. Every other party that has had a realistic chance of significant electoral power has accepted that compromise and been subsumed into the political establishment. Anyone who does not accept the poisoned chalice risks demonization and a life on the margins. It remains to be seen what choice UKIP’s members will make, but I cannot say I am overly hopeful of the prospects.

[1] http://www.independent.co.uk/voices/editorials/a-more-professional-ukip-is-good-for-democracy-8778400.html

[2] http://www.telegraph.co.uk/news/politics/ukip/10324527/Selfish-Godfrey-Blooms-sluts-slur-has-killed-Ukip-conference-says-Nigel-Farage.html

[3] http://www.theguardian.com/politics/2013/sep/20/gordon-brown-press-secretary-cruel-vindictive

Old Holborn: a Juvenal for our times

Libertarian Alliance, September 2013

In 2010, he was flavour of the month as the Daily Mail reported the heroic £8,445.15 he raised from nearly a thousand donors worldwide to free Nick Hogan, the pub landlord jailed for refusing to pay a fine imposed for allowing customers to smoke in his pub.[1]

Today, the same newspaper has run a hatchet job on award-winning libertarian blogger and satirist Old Holborn[2], unmasking him as Robert Ambridge from Braintree, Essex, and describing him as “one of Britain’s vilest Internet trolls”.[3]

A broad-minded, indeed traditional conservative view of satire, would be that it is a necessary component within a healthy society; that there is always a need to question assumptions, to subject the powerful to scrutiny through satire as well as earnest discourse, to hold a mirror up to society and show us for what we really are.

Savage and offensive comment on those in public life has a long and distinguished history. Roman satire divides into two main schools named after their most distinguished exponents: the Horatian and the Juvenalian. Horatian satire is mild and dedicated to the exposure of folly – the style of most of BBC Radio Four’s satirical material. Juvenalian satire attacks what is perceived as evil through savage ridicule, sarcasm, scorn and invective that is less easily perceptible as pure humour. It is this tradition that was maintained by such as Gillray, whose cartoons spared their subjects few blushes. At times, the Juvenalian tradition has been maintained by various underground magazines, and  by Private Eye, though today that organ seems less inclined to end up in the courts tussling with the likes of Goldsmith and Maxwell than was once the case. Nowadays, Juvenalian satire and the blogosphere have found themselves natural partners.

Today, in contrast to the satire boom of fifty years ago, there is no longer a secure establishment to lampoon. The modern political class is not the Alec Douglas-Home-style aristocracy, entrenched in centuries of tradition and permanence, but a creature of the middle classes with all the uncertainty and herd instinct that this implies. It bends to public opinion, to fashion, to focus groups and spin-doctors because its principal ideology is the gaining and maintaining of short-term power and money, rather than any more nebulous or lofty moral concept of politics. This makes it a difficult target for satirists.

The global shift of politics to the left, and the embrace by neoconservatives of the culture of the left, is a particular problem because most comedians and satirists are themselves of the left. They are forced either into a position of arguing that politicians are not left-wing enough, and espousing instead a form of utopian or populist socialism, or of turning away from politics for their material. Without the distinct characters of yesteryear, satirists are also faced with politicians who have limited recognition among the general public and few personally distinguishing features. There may be enough there to make the odd joke, but there is no longer enough there to fill an act or to be sure of laughter. And there is nothing remotely that would recapture the edginess and the danger that is satire’s lifeblood.

In this atmosphere, there will inevitably be some who will seek out a Juvenalian option. This alternative is to find whatever the modern establishment holds dear that has the reek of humbug and, once that soft underbelly is revealed, to wield the scalpel without fear or favour. This is a significantly bigger game than previously, because now what is being attacked is not merely politicians, but a much wider section of society itself; its mainstream media, its sacred cows, its common values, its morality and hypocrisy – indeed, the way we live now. The target is not simply those who are most prominent in the public eye, but others who, despite their media portrayal, may not perceive themselves in any way as being part of something that can be a legitimate subject for humour.

By nature, this is humour that can – indeed must – give offence. Because of this, the satirist who adopts the Juvenalian approach is ultimately playing with fire. It is this spirit that prompted Jyllands-Posten to publish cartoons criticizing Islam and Muhammed. It is this spirit that inspires Frankie Boyle’s more outrageous (and memorable) moments. And it is the same spirit that prompts Old Holborn. It is humour on a knife-edge, provocation taken to its limits, the tense anticipation of the verbal gladiator who has the plain courage to say to a baying crowd something he finds funny in the full knowledge that he will be lucky to escape unscathed from the aftermath.

In this battle of wits, the sledgehammer response of mere outrage cannot be sufficient, though it is the most frequent recourse for those who cannot match the satirist blow for blow. Most have not understood that they are participants in this particular game in the first place, let alone the rules of engagement. The Mail’s response certainly has nothing about it that inspires such confidence. Lazy clichés about Mr Ambridge’s “gap-toothed” appearance and supposed resemblance to Coronation Street‘s Roy Cropper, his “dilapidated” home and his “battered” Toyota speak of journalistic desperation rather than insight.

It is worth noting that Old Holborn’s stance throughout his vicissitudes has been both consistent and dignified. He has constantly advocated free speech without boundaries. He is entirely happy for others to insult him or return his style of humour in kind. And he is astonishingly persistent.

On Twitter, Old Holborn has recently directed his invective towards the people of Liverpool. In the words of m’learned colleague David Davis, “Whatever it is that’s bad that happens to Liverpool, or its people, or the fans and supporters of LFC, it’s NOT their fault, OK, geddit?”[4] The victimhood of Liverpool has attracted further comment here in the past[5]. It seems that Old Holborn passed a few comments on Liverpudlian sensibilities one day and found that the reaction exceeded all expectations. Had those who read his Twitter account simply ignored or dismissed his comments, doubtless he would have moved on. But expressions of outrage, particularly when they are the bogus manifestations of the politically correct, are exactly the fuel that Juvenalian satire needs. They indicate that the target believes that they are entitled to special treatment; that they are above being ridiculed, and that they feel justified in silencing anyone who would disrupt that cosy arrangement. They are, in other words, the plainest sign imaginable that the satirist has hit home; that, as so often with humour, what is funny is funny because it reveals the truth.

As of last month, Old Holborn was on his 29th Twitter account; not only this, but he had spoken with the head of Twitter UK and the police regarding death and rape threats sent to Old Holborn and his family by online opponents. While the Mail is happy to report that Old Holborn’s opponents have made a complaint to the police about him, they fail to point out the full facts. Old Holborn may have offended many, but he has not threatened anyone. Rather, it is Old Holborn and his family who have been threatened with explicit and sickening violence. Being offensive, shocking or disturbing is permitted within the guidelines issued to the CPS in respect of the Malicious Communications Act[6].  Sending death threats most certainly is not[7].

Old Holborn writes,

“As an avid twitter commentator and satirist, I am regularly accused of being an abusive troll – mainly based on the fact that someone decides to take offense at something I’ve written and can’t be bothered to argue…

I receive death threats pretty much every day, as does my wife and family, employers, customers, the dog and anyone who knows me. We’ve all watched flame wars break out since the very first Compuserve account was launched – we all know there are idiots out there and we all know that making death threats is already illegal, so why the big fuss?

If we decide that Twitter is only for posting pictures of kittens and for celebrities to flog us more tat, we will have ruined one of the only free speech platforms we are still allowed to use. Yes, it can be ugly, like a loud row in a pub or fantastic as a method to interact socially and spread news and information and already has enough mechanisms built in to block abusive users or those who do not sing from your hymn sheet – anything further is simply a matter for the Police. Twitter is not a human right, free speech is.

Whilst Caitlin Moran struts around deciding what the rest of us can say on a free medium, Governments are itching to slap another level of moderation on what we can and cannot say to each other. Do we really want celebrities, backed up by arse licking Politicians to be the arbiters of free speech? Abusive, offensive, shocking and rude tweets are all perfectly legal. Death threats are not.

Offence isn’t given, it’s taken. Everyone has the right to be offended, but by the same token everyone has the right to offend. After all it is only words on a screen.

Free speech is either free or it isn’t. You can’t say “I believe in free speech but…” It just doesn’t work that way.”[8]

If the publicity given to Old Holborn – both today and on Thursday night’s Tonight programme on ITV (he persuaded ITV to send a limousine to collect him for the interview) – gets that message across more clearly, it will be more than welcome. He adds, “On Friday, I think the media will know what trolling actually is as I relax on a Greek beach. See how it works yet?”

[1] http://www.dailymail.co.uk/news/article-1257023/Pub-landlord-thanks-donors-helping-early-prison-release-flouting-smoking-ban.html

[2] http://bastardoldholborn.blogspot.co.uk/

[3] http://www.dailymail.co.uk/news/article-2415122/Twitter-troll-unmasked-Father-Britains-vilest-internet-trolls-exposed-posting-sick-jokes-Hillsborough-disaster.html

[4] http://libertarianalliance.wordpress.com/2009/04/21/rule-1-for-the-bbc-and-for-everybody-else-never-say-anything-bad-about-liverpool-and-especially-lfc-fans/

[5] http://libertarianalliance.wordpress.com/2013/04/20/the-problem-about-liverpool/

[6] http://bastardoldholborn.blogspot.co.uk/2013/06/freedom-of-speech.html

[7] http://bastardoldholborn.blogspot.co.uk/2013/05/scallyban-tactics.html

[8] http://bastardoldholborn.blogspot.co.uk/2013/04/anyone-can-be-old-holborn.html

Time to end the persecution of the street preachers

Libertarian Alliance, July 2013

Today’s Daily Telegraph reports the treatment of an American street pastor who was arrested after preaching outside a Wimbledon shopping centre[1]. Tony Miano, who in one of life’s little ironies is a former senior police officer, expounded a passage from Thessalonians which deals with sexual immorality and cited homosexuality as an example of contravention of the law of God.

A woman hearing this made a complaint to police, and two officers promptly arrested Mr Miano under Section 5 of the Public Order Act 1986 which deals with “insulting words and behaviour”. As Mr Miano explained to the officers, Section 5 has recently been amended so that what is merely insulting is no longer to be an offence. However, despite having been passed by the House of Lords, this change has yet to come into law and the arresting officers claimed that they were unaware of it.

Mr Miano was subject to questioning at the police station concerning his beliefs about the nature of sin and the way he would treat homosexuals. The prospect of police officers discussing hamartiology, which is an abstract and complex area of theology, beggars belief. Mr Miano said, “As the questioning started it became apparent that the interrogation was about more than the incident that took place in the street but what I believed and how I think…I was being interrogated about my thoughts … that is the basic definition of thought police…It surprised me that it is possible for a person to be taken to jail for their thoughts.”

Mr Miano was told that police expected to charge him, but on referral to an inspector this position was reversed and he was released at midnight that day.

Andrea Williams, of the Christian Legal Centre[2], which provided Mr Miano with a solicitor, said: “We might joke about there being ‘thought police’ but this case shows that it has already become a reality. Sadly we are seeing cases like this increasingly often”. Given this, it is clear that Christians who intend to be public about the full nature of their faith should be aware of the existence of the Christian Legal Centre and its valuable work in support of those who are persecuted by our political establishment.

Street preaching is an ancient and honourable tradition in Christianity. The Sermon on the Mount is surely its most distinguished example. It also finds an extensive place in English history. Methodism would hardly have existed were it not for John Wesley and George Whitefield preaching in the open air to crowds far greater than a church could accommodate. But Mr Miano is not the first to encounter official opposition as he sets out on a much-needed mission to remind Britons of their Christian roots.

Pensioner Harry Hammond, who preached in Bournemouth holding a placard saying “Stop Homosexuality, Stop Lesbianism” was arrested and charged under Section 5 of the Public Order Act in 2001. He was convicted, his placards destroyed, and he died soon afterwards.[3]

Philip Howard, who preached in “hellfire and brimstone” fashion for some years at Oxford Circus, was prosecuted for harassment of a passer-by in 2005, and cleared of all charges[4]. The following year, Westminster Council applied for an ASBO in an attempt to silence him[5]. This being granted, he moved to Brixton underground station where I understand he can still be found today.

New Yorker Shawn Holes, preaching in Glasgow, was fined £1000 after stating  that homosexuals are going to Hell.[6]

Stephen Green – now National Director of Christian Voice[7], a group with much to say on these matters – was arrested for handing out religious leaflets at a gay Mardi Gras festival in Cardiff in 2006; the charges against him were dropped.[8]

In 2008, American preachers Arthur Cunningham and Joseph Abraham handed out leaflets and spoke with local youths in Birmingham[9]. A PCSO, who was later given “corrective training”, allegedly told the preachers that if they returned to the predominantly Muslim area they would be beaten up.

The tide really appears to have started to turn with Cumbrian street preacher Dale McAlpine, who was arrested and charged under section 5 of the Public Order Act for stating that homosexuals were acting against the word of God. The charges against him were dropped, and he then won £7,000 plus costs in compensation from the police.[10]

Then Anthony Rollins preached in Birmingham against effeminacy and homosexuality and was arrested and charged; in court he was awarded over £4,000 in damages.[11]

Last year, Raj Bhachoo distributed anti-gay leaflets outside a Tesco store in Kent. His case was dismissed by the magistrates.[12]

Against this background, it has been notable that leading gay activist Peter Tatchell has consistently opposed the prosecution of street preachers and has called for the reform of Section 5 of the Public Order Act. He has said,

“Several Christian and Muslim street preachers have been arrested in Britain for hate speech. Their crime? They said that homosexuality is immoral and that gay people will go to hell. I disagree with them but opposed their prosecution. What they were saying was hurtful but not hateful. They did not express their views in a bullying or menacing tone.

“Free speech is one of the hallmarks of a democratic society. It should only be restricted in extreme, compelling circumstances. Criminalising views that are objectionable and offensive is the slippery slope to censorship and to the closing down of open debate. It is also counter-productive. It risks making martyrs of people with bigoted opinions and deflects from the real solution to hate speech: education and rational debate. Hate speech should be protested and challenged, not criminalised.”[13]

Mr Tatchell’s views are not dissimilar to those expressed by Mr Miano, who says, “I believe that every human being should have the right to speak their mind. Homosexuals should have the right to free speech, as should atheists, Muslims, Buddhists and Hindus. All I’m asking is that we are allowed to be part of the conversation and that society stops treating itself as tolerant when the authorities are intolerant to the Christian point of view.”

Society should indeed stop treating itself as tolerant. The prosecution and harassment by legal process of street preachers is a shameful slur on our tradition of freedom of speech and a thorough waste of public money. It is driven by an intolerant ideology that has no place in a civilized society and indeed is that society’s antithesis. It is this same ideology that listened to Abu Hamza preaching in the street outside Finsbury Park Mosque and did nothing to stop him.

Christian Voice has an explanation for how all this has come about, and it is one which is difficult to gainsay. They say, “It has come to this because our leaders try to run things in their own fallible wisdom.  Even though our Queen was anointed to reign under the authority of God in the Name of Jesus Christ and given the Holy Bible as “the rule for the whole life and government of Christian princes,” her ministers have passed law after law in opposition to the will of God.  They bear a huge responsibility for the way Britain has fallen into sin and misery.  Good laws might not make men good, but they can restrain the wicked, and bad laws certainly encourage men to do evil.”

[1] http://www.telegraph.co.uk/news/religion/10159420/Christian-arrested-for-calling-homosexuality-a-sin-warns-of-real-life-thought-police.html

[2] http://www.christianconcern.com/christian-legal-centre

[3] http://en.wikipedia.org/wiki/Harry_Hammond

[4] http://news.bbc.co.uk/1/hi/england/london/4100926.stm

[5] http://news.bbc.co.uk/1/hi/england/london/4969450.stm

[6] http://www.pinknews.co.uk/2010/03/30/homophobic-preacher-should-not-have-been-prosecuted/

[7] http://www.christianvoice.org.uk/

[8] http://news.bbc.co.uk/1/hi/wales/5388626.stm

[9] http://www.wnd.com/2008/06/65922/

[10] http://www.dailymail.co.uk/news/article-1339843/Homosexuality-sin-street-preacher-wins-7k-police.html

[11] http://www.dailymail.co.uk/news/article-1337292/Payout-anti-gay-preacher-Anthony-Rollins-Landmark-ruling-free-speech-battle.html

[12] http://www.pinknews.co.uk/2012/09/25/uk-christian-anti-gay-activist-acquitted-over-tesco-leaflets/

[13] http://www.freefaith.com/2012/12/03/peter-tatchell-defends-tolerance-even-of-preachers-who-condemn-gays/

Living without the state in Britain today: the case of the Irish Travellers

Libertarian Alliance, June 2013

Let us begin by defining terms. I am not talking about Romani Gypsies. Nor am I talking about New Age Travellers. Rather, I am talking about the distinct ethnic group present in the UK as well as in the USA – and rather obviously in Ireland itself – that defines itself as Minceir, or Pavees or an Lucht Siúil. In as much as anything is generally known about this community within the wider public, we have Channel 4 and its documentaries to thank. Even though these present a somewhat sensationalized and doubtless inaccurate view of Traveller life, and have given rise to complaints from Travellers themselves, they nevertheless are enough to enable us to understand some basic precepts of this extremely close-knit people whose society is otherwise impenetrable to outsiders.

Why should libertarians be interested in Irish Travellers? For the simple reason that when in the UK, Irish Travellers demonstrate how a life may be lived within a voluntary society that has minimal interface with the state. In addition, their life illustrates what happens when a community decides consciously to live by and to perpetuate a set of traditions and a strong ethnic identity that persists for many generations, and that shows little sign of adaptation to wider norms or assimilation into the broader mass of society. When libertarian utopians talk about the communal purchase of a plot of land, the establishing of roots and the inculcation of particular values into a future community, they should be looking to Irish Travellers both as a rare example of success in maintaining a separate way of life alongside mainstream society and also as a warning of some of the difficulties that are likely to be encountered.

The nature of Traveller life is not entirely itinerant, but certainly involves more movement and less permanence than most of the population. The caravan or mobile home is the usual dwelling-place, and although some Travellers own land, they mostly rely on the diminishing pool of public, council-run land and arrangements with private landowners. These can result in a semi-permanent settlement where residents may remain for part of every year, for several years at a time or simply for a few weeks or months. Often this is not a matter of choice; many Traveller encampments are illegal or rest upon the decisions of others as to their maintenance or eviction. Traveller caravans are often substantial dwellings, furnished to a high specification and whose cleanliness and standard of good order is a source of great pride.

To grow up in Traveller society is to be part of an enclosed community. The majority of Travellers are Roman Catholics, but in addition there is a strong moral basis for their society, known as the Travellers’ Code. Men and women have clearly defined roles; men undertake work outside the home while women have responsibility for the home and children. With sex before marriage frowned upon, most Travellers are expected to marry while they are still teenagers, and divorce is similarly taboo. The birth rate is extremely high, with large extended clans very common, but life expectancy for both children and adults is very low – partly because of genetic and related causes that are brought about by the closed nature of Traveller society, and partly because the nature of Traveller life involves exposure to more than the usual range of accident-based and other risks to life. While Travellers will have recourse to doctors when needed, there is also a strong emphasis on faith healing and self-reliance.

Education usually ends at age sixteen or so if it has continued that far; male Travellers are then needed to work and female Travellers to marry and have children. The nature of male work is invariably of a kind that produces cash in hand results, be it dog or horse trading or scrap metal dealing. Travellers do not generally use banks and are extremely wary about discussing their financial position, which may involve a highly irregular income; nevertheless some are undoubtedly materially wealthy. It goes without saying that the tax authorities find this situation a challenge.

Conflict resolution is one of the most prominent features of Traveller life, where feuds between families may continue for generations. The police or legal authorities are outside the Traveller code. A dispute is resolved by means of a bare-knuckle fist fight between the two men concerned (what occurs in disputes between women I have not been able to discover) with the participants required to shake hands to conclude the fight. A feature of most such contests, as well as enthusiastic betting, is that the fighters will usually have a second who prevails upon them to end the fight by shaking hands almost as soon as it has begun. While such fights can be bloody contests, it seems rare that serious or permanent injury results. They are a major source of cultural entertainment for Travellers.

As well as this overt violence, there is also misery behind closed doors. Alcohol abuse seems common, and domestic violence is also present, though again the Code means that it goes unreported and unresolved. Some of the “courtship” behaviour depicted in Traveller documentaries would be considered sexual harassment or sexual assault by mainstream society. Yet it would again be a breach of the Code for Travellers to consider involving non-Travellers in addressing this. Britain’s growing army of social workers also seem largely to leave Travellers to their own devices.

If Travellers leave their community, it seems that they find it difficult if not impossible to be accepted back into it should they wish to return. There are Travellers who marry outsiders, and others who leave to pursue education or careers. But Traveller identity depends upon a strict definition of membership whereby anything external is treated first and foremost as a threat and those who are not Travellers are regarded as inferior to those who are. In a rare court case last year, four Travellers were found guilty of keeping destitute men they had picked up off the streets in conditions that amounted to slavery, with violence and threats used to keep them in line.

More telling, though, was that such measures were not always necessary, since the victims “were controlled in such a way that in many cases they could not see it. They became conditioned to do what the defendants wanted.” It is this hidden hand that seems to run through much of Traveller life. There is no policeman that imposes the Traveller Code. In a fist fight, there is no reason why the victory should be to the just rather than the mighty. No-one compels a Traveller to stay in a caravan and work a precarious job in what may often be conditions inferior to a council flat with state benefits. And yet the majority of Travellers prefer their existence within the traditions and norms of their people to the available alternatives.

All this poses some interesting questions. Much of Traveller society is based not on explicit coercion but on the strength of tradition, group identity and shared morals. There is no centralization; no state or quasi-state; no government. Property is owned privately and material goods are a source of great pride. The hierarchy of society consists simply of three strata, listed in diminishing order of importance: the Traveller community at large, the family and the individual.

In a Britain that is increasingly atomized and where the reach of the state is growing rather than receding, the Travellers seem to have found a modus vivendi that maintains their identity and way of life while limiting the encroachment of the outside world. Their example is one that all libertarian theorists should study carefully. Their freedom may in many ways be a dystopian one, but it is freedom nonetheless, and as such it is surely the principal reason why Travellers choose to maintain their way of life.

The distortions of PRISM

Libertarian Alliance, June 2013

“Unwarranted government surveillance is an intrusion on basic human rights that threatens the very foundations of a democratic society.

I call on all Web users to demand better legal protection and due process safeguards for the privacy of their online communications, including their right to be informed when someone requests or stores their data.

A store of this information about each person is a huge liability: Whom would you trust to decide when to access it, or even to keep it secure?”[1]

Thus Sir Tim Berners-Lee, inventor of the World Wide Web, upon learning of the covert Prism operation, which has been reported extensively in The Guardian[2]. According to their report, “The US-run programme, called PRISM, would appear to allow GCHQ to circumvent the formal legal process required to seek personal material such as emails, photos and videos from an internet company based outside the UK…the papers describe the remarkable scope of a previously undisclosed “snooping” operation which gave the NSA and the FBI easy access to the systems of nine of the world’s biggest internet companies. The group includes Google, Facebook, Microsoft, Apple, Yahoo and Skype.” It is clear that the government is none too keen to have this matter discussed in the public forum.[3]

Listening to BBC Radio 4’s Any Questions debate the issue yesterday, the major point of concern to the government minister on the programme appeared to be that in his opinion and experience, GCHQ had always been scrupulous to operate within the law. This is a neat way of avoiding the real point at issue, which is that the law on security matters is more or less irrelevant if the stakes are sufficiently high. Secrecy or judicial immunity for security service personnel can be justified on national security grounds, and if inconveniences such as the human rights of the accused should threaten to intervene, there is always the option of extraordinary rendition[4], with any subsequent awkward questions firmly kicked into the long grass[5]. As the Guardian reported, the government’s critics have not been unobservant of these trends: “All too often in the years after 9/11, they argued, official secrecy and denials, and in camera courtroom procedure, concealed evidence of serious criminal wrongdoing on the part both of MI5 and MI6, and the ministers of the last government to whom the agencies answered.”[6] Yet this seems now to be the status quo; the security services engage in alleged “serious criminal wrongdoing”, but are effectively unaccountable to anyone. There is no genuine prospect of effective public scrutiny of these cases, nor in – it would appear – obtaining any form of redress for their alleged victims in respect of criminal convictions.

I have no doubt that this situation suits the governments of the UK and USA very well indeed. The UK, of course, has pursued a relationship with the USA that was well depicted by Gerald Scarfe when he showed the head of Tony Blair emerging somewhat petulantly from George W. Bush’s fundament[7]. If there has been any great change to that “special relationship” under Cameron and Obama, I struggle to see it. When the USA wishes to target a British citizen, using that unique combination of entrapment and plea bargains that passes for justice there, the British government not merely stands by impotently but extradites its own citizens – something the USA almost never does[8]. Nor should we think that this policy has changed[9] in the light of the recent Gary McKinnon decision,  which seems to have been merely an exception proving the rule.[10]

What should concern us in particular is the compromise of justice in the United States in favour of powerful corporate and political interests. For all that I find a good deal to criticize in our own justice system, we are still some considerable way from the point that they have reached, where the financial and lobbying muscle of the multinationals and the protectionism of the political class unites with the residual legacy of fundamentalist Puritanism at its least forgiving. I would like to think that had Aaron Swartz been British, our justice system would not have hounded him to the point of suicide[11]. I do not believe that had Bradley Manning been British, he would be facing such insuperable odds as are stacked against him in his current court-martial[12]. I am increasingly sympathetic to Julian Assange‘s actions in seeking to avoid what he believes is inevitable extradition to the USA by holing up in the Ecuadorian embassy[13]. All three men have in common that they are or were public activists against the American establishment. What they have said threatens the powerful, and the action against them seems at once designed to ensure that they should be broken, silenced and that a message is sent to others that if they act similarly they will face the same fate. If this is not tyranny, I don’t know what is.

The current revelations about PRISM show that the problem is growing rather than receding. Governments have for many years used the argument of increasing public safety (against terrorism or other threats) as cover for compromising individual privacy and rights. Moreover, the USA has been extremely belligerent in its attitude to the national rights of others, believing itself to hold a position of moral superiority that justifies outright “regime change” (Iraq, Panama etc.) In the case of New Zealand resident Kim Dotcom, charges from the USA concerning alleged copyright infringement were used as justification for an illegal raid and “fishing expedition” with the FBI copying hard drives and sending their contents back to the USA[14]. If PRISM is what it appears to be, then this is the sort of behaviour that may well be repeated before long.

Dotcom characterizes his fight as “U.S. Government vs. You & Kim Dotcom” and he is right to do so[15]. Dotcom’s fight against the IP lobby is a fight for freedom of expression that is ultimately as vital as that of the political whistleblowers, and in that it involves the battleground of electronic communications, is intimately connected with theirs[16]. The protections granted to activists and to those whose views are politically unpopular or controversial are among the most significant and the most vulnerable for a free society. Yet these are now under active threat, and the threat comes not from the expected old enemies of free speech but from a superpower that we are told is our ally, using rights that we have never authorized our government to give to them. Standing up to the USA will come at a price, perhaps a heavy one, but it is a price we must pay if we are not to find ourselves watching our every word and action online.

[1] http://www.itv.com/news/update/2013-06-08/prism-is-deeply-concerning-says-sir-tim-berners-lee/

[2] http://www.guardian.co.uk/technology/2013/jun/07/uk-gathering-secret-intelligence-nsa-prism

[3] http://order-order.com/2013/06/08/d-notice-june-7-2013/

[4] https://www.liberty-human-rights.org.uk/human-rights/torture/extraordinary-rendition/index.php, http://news.bbc.co.uk/1/hi/uk_politics/7256587.stm

[5] http://www.guardian.co.uk/politics/2012/jan/18/gibson-inquiry-torture-collusion-abandoned

[6] Ibid.

[7] http://www.geraldscarfe.com/shop/politics/blair-bush-in-a-terrible-hole/

[8] http://www.huffingtonpost.co.uk/tag/christopher-tappin

[9] http://www.guardian.co.uk/commentisfree/2013/feb/07/gary-mckinnon-extradition-law-proposals

[10] http://www.guardian.co.uk/commentisfree/2012/nov/08/britain-double-standard-extradition-us-prison-abuse

[11] http://www.guardian.co.uk/technology/2013/jan/13/aaron-swartz

[12] http://www.bradleymanning.org/

[13] https://twitter.com/JulianAssange

[14] http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10816159

[15] http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10816159

[16] http://mises.org/daily/3682

The scandal of endless bail

Libertarian Alliance, May 2013

Writing in today’s Guardian, Neil Wallis calls for an end to the present situation whereby thousands of people have been on police bail for over six months[1]. The Birmingham Post reported that 57,000 people are currently on bail, and of these, 3,172 have been waiting for more than six months with no decision on whether they will be charged or not. One person remains on bail having been arrested over three and a half years ago.

The Law Society has called for a review and has said there should be a statutory time limit for police bail, suggesting a maximum of 28 days. This could be extended by application to a magistrate in which the police would need to explain what stage their investigation had reached and why extension was necessary. Other groups have suggested a longer maximum than this.

Police cuts are one reason why bail times are being extended. Another is suggested by Wallis, “The level of “reasonable suspicion” needed by police to make an arrest is simply far too low. I hear time and again about ordinary people being arrested and kept on endless bail so police can mount a fishing expedition into their lives.”

I have recently written about the Emma West case as an example of “trial by process” – whereby the mechanism of the law is sufficiently drawn-out to place the accused under a pressure that is in itself punitive. Here is more of the same.

A related issue is the increasing use of conditional bail by the police against activists who are arrested and then bailed on strict conditions before an event at which they would be likely to be present. This was used at the Olympics and again at the wedding of Prince William. Conditional bail allows the police to impose conditions – for example, not going within 500 yards of a given place at a given time – that would otherwise be legal; breaking those conditions then becomes a criminal offence. The charges are then, in most cases, quietly dropped once the event is over. It used to be the case that conditional bail could only be given by a magistrate; this power was extended to the police under the Police and Justice Act 2006 schedule 6, which amended section 30 of the Police and Criminal Evidence Act 1984.

[1] http://www.guardian.co.uk/commentisfree/2013/may/28/britain-police-charge-without-bail

In May 2013, I was the author of an article for the former Libertarian Alliance blog (subsequently re-published in my book The Radical Traditionalist Today) discussing the age of consent in the historical and present context of English and European law. This article takes as its starting point a third party’s proposal to lower the age of consent in England and Wales. As will be seen, the article is academic and discursive in nature and addresses the concept of consent in the light of recent legislative developments. It does not at any point express support for the proposal to lower the age of consent.

Whither consent?

Libertarian Alliance, May 2013

Writing in spiked! recently, barrister Barbara Hewson suggests that the age of consent for sexual activity should be restored to its pre-1885 position of 13.[1]

Reducing the age of consent to 13 for all sexual acts would bring the UK in line with Spain, although Spain has a legal caveat that allows for prosecution where sexual consent is obtained by deception in the case of a person aged between 13 and 16. Until 1995, the age of consent in Spain was 12. Indeed, Britain’s age of consent is high by the standards of European countries, many of which have an age of consent for heterosexual acts of 14 or 15, although the age of consent for homosexual acts is not necessarily the same. Among other developed nations, Japan has an age of consent of 13, although this is subject to further restrictions.

An interesting note to this matter is that until 1993, English common law held that a boy under the age of 14 could not commit rape as a principal offender because he was irrebuttably presumed to be incapable of sexual intercourse. That a boy of that age is indeed so capable has been the subject of some publicity[2].

While there is some merit in arguing about the moral, physiological, emotional and cultural import of an age of consent, and the extent to which children need to be protected both from the attentions of adults and their peers, we should also consider all this in the context of what consent has come to mean in the implementation of the law. Consent is not, and never was, the same as a contract, whereby terms are mutually agreed and non-performance brings with it an entitlement to compensation. Rather, consent is a highly complex concept which is changing rapidly in its meaning.

It has been established in law that there is a point at which consent becomes ineffective. This has generally been expressed as the idea that a person cannot consent to an act that results in physical injury to him or herself where such injury amounts to a level just below actual bodily harm. Over twenty years ago, Sean Gabb wrote about this situation and pointed out that in addition to personal consent, an additional criterion of “public interest” is provided that judges the actions by “what is acceptable in a civilized society and what is not.”

Where there is widespread agreement on what constitutes civilization – and particularly where sexual morality is a matter of consensus, be that consensus the result of religious teaching or otherwise – there may be argued to be a valid argument as to what constitutes a public interest in sexual mores, even if such an argument is not in accordance with a purist libertarian worldview. If, on the other hand, the context is one of secularism, post-modernism and moral relativism, there can be no abiding public interest, because there is no commonly agreed moral basis for that public interest to rest upon.

There may be an appeal to “common sense” and reference to public opinion such as finds expression in the media and through various interest groups, but these things are shifting sands. To recognize that this landscape is changing is fundamental to understanding the way in which consent and sexual morality are being redefined in law. To apply these changed standards of today retrospectively to events that occurred thirty or forty years ago, and then to act as if these standards were somehow universal points of principle at that time, is a form of delusion that is dangerous and that would lead – indeed some would argue has already led – to a society that is unbalanced and hypocritical.

After the current purge of aged or dead media figures has run its course, the media caravan will doubtless move onwards –  perhaps in time to the rock stars of the era and their teenaged admirers, who were the subject of far greater infamy in their day than those currently under scrutiny. Again, there will be the suspicion that at least some of the accusations are motivated by a desire for financial compensation, and the defence put forward that only now, despite the effluxion of time, have the victims gained the courage to speak out against their attackers. For all those who are genuine victims with no ambiguity about that status, there are also those who come into a grey area where any victimhood is a matter of perception and a range of other subjective factors will come into play.

What is needed in such a situation is a proportionate view of all of the factors involved and a balanced judgement so that justice, and not merely a media-driven sector of public opinion that often veers close to a witchhunt, is served. It seems improbable that this can be satisfactorily achieved in the current circumstances.

What, then, does consent now mean? Consent can be given, but it has historically been considered invalid if there was fraud or deception involved, such that the person would not have consented had the facts been known. This has been applied in cases of impersonation, and also famously in R v Clarence (1888) 22 QBD 23 where the defendant knowingly infected his wife with a venereal disease. As well as the aforementioned invalidity of consent in cases of physical injury, R v Chan-Fook (1994) 1 WLR 689 established that the definition of actual bodily harm could apply to psychological injury as well as physical harm. This effectively means that consent can no longer cover anything more than trivial injury.

Consent within marriage was historically presumed, but from 1991 (R v R) the courts have removed the exemption in law for marriage and thus given rise to the offence of marital rape. Allied to this was a change in the definition of rape, in which hitherto the victim had had to prove that there was a “continued state of physical resistance.” Lord Hale, writing in the seventeenth-century, opined that “rape…is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” Until 2003, English law on the matter was largely framed with this maxim in mind. Since that time, however, the balance of the law has shifted considerably to give weight to the plaintiff (who may often remain anonymous) and to remove protection from the defendant (who is invariably publically named, often at the cost of his reputation even if acquitted.)

Under the Sexual Offences Act 2003, the requirements for a defence of mistaken belief in consent were made more stringent in that they must now be both genuine and reasonable. There is now a set of presumptions against said reasonableness, including where violence is used or feared, the complainant is unconscious, unlawfully detained, drugged, or is by reason of disability unable to communicate a lack of consent. This has changed what was formerly a subjective test into an objective test. It also means that a man may be convicted of rape even if he believed that the victim consented, if the court were to consider the circumstances unreasonable. It remains impossible for a woman to commit rape as a principal offender, although she may commit rape as an accomplice.

All of these things are the result of complex changes in the way that society sees the nature of consent, and of the weakening of consent as a concept and as a defence. One major factor that has prompted this has been the assertion that too few rapists are convicted; this perception continues although it would be near-impossible to establish a sound statistical basis for deciding whether someone who was in law innocent of an offence was in fact guilty of an offence. The weakening of consent has certainly resulted in an increase in rape convictions, and these are reported to be at an all-time high with a current 63% conviction rate[3]. It should not be a great surprise that if the legal definition of consent is weakened, it will become easier to obtain more rape convictions, an outcome which has been seen by a number of groups as highly desirable, and which serves both the ends of a near universally-accepted societal agenda (to see perpetrators of sexual violence punished) and a much more invidious Leftist political agenda that benefits from the demonization of men as creatures of violence and sexual aggressors. The corollary of this, however, is that some of those who are convicted would not have met the legal definition of rape that applied before the change in the law had occurred. The law is thus not merely convicting more rapists, it is creating more rapists.

It is because of this that any argument about the age of consent carries considerably less weight than it would have done in the pre-2003 era. It might, indeed, be argued that consent has largely lost the meaning that it once had. Its importance now is increasingly that of a folk memory of its former significance, where in practice such a wide range of circumstances exist that can override it or question its validity that any sensible person would be foolish to rely upon it alone as a defence. And where, as a society, does that leave us?

[1] http://www.spiked-online.com/site/article/13604/

[2] http://www.thesun.co.uk/sol/homepage/news/2233878/Dad-at-13-Boy-Alfie-Patten-13-becomes-father-of-baby-girl-Maisie-with-girlfriend-Chantelle-Steadman-15.html

[3] http://www.guardian.co.uk/society/2013/apr/23/rape-conviction-rate-high

Libertarian Alliance, May 2013

The recent case of Arthur Redfearn has proved to be of some significance in establishing a firmer basis for freedom of association within employment law.

Mr Redfearn, a bus driver, was considered a “first class employee” and had neither attracted complaints from his employers, West Yorkshire Transport Services (a subsidiary of Serco), nor from service users, during the short period of his employment. Not long after starting work with WYTS in December 2003, Mr Redfearn won a seat on Bradford Council representing the British National Party. He was featured in an article in the local newspaper and this prompted a trade union and other employees to make representations to WYTS. WYTS’s response to this pressure was summarily to dismiss Mr Redfearn on 30 June 2004. Because he had worked for them for six months only, which was less than the statutory minimum period, he was unable to bring a case for unfair dismissal against them. Instead, he was compelled to claim racial discrimination (on the basis that the BNP was, at the time of the case, a “whites-only organization”) – an ironic position given the BNP’s longstanding opposition to racial discrimination legislation.

Mr Redfearn’s employment had been principally as a driver of buses for Asian adults and children with disabilities. WYTS claimed before the employment tribunal that their buses could come under attack from opponents of the BNP and that passengers and their carers could be caused anxiety about this. They attempted to justify Mr Redfearn’s dismissal on health and safety grounds, and the tribunal found in their favour. The suggestion that opponents of the BNP might use violence against buses of disabled children is one that should raise eyebrows.

In July 2005, Mr Redfearn won an appeal against the tribunal decision on the grounds that no consideration had been given to him being offered alternative employment, for example on non-driving duties. In May 2006, WYTS appealed this decision in turn to the Court of Appeal[1] and won[2], the tribunal deciding that the discrimination Mr Redfearn had experienced was political, not racial, in nature and thus fell outside the scope of anti-discrimination laws. It concluded that Mr Redfearn’s beliefs were incompatible with the European Convention of Human Rights, which would not uphold rights where to do so would compromise its values of “tolerance, non-discrimination and social peace”.

Having been refused leave to appeal to the House of Lords, Mr Redfearn, who appears to have displayed more than usual reserves of persistence in the face of official adversity, took his case directly to the European Court of Human Rights. In November 2012 the ECHR gave judgement for Mr Redfearn[3], ruling that his human rights had been breached by Serco[4]. It stated that it was “struck by the fact that he had been summarily dismissed following complaints about problems which had never actually occurred, without any apparent consideration being given to the possibility of transferring him to a non-customer facing role”.[5]

The ECHR said that the right to freedom of association “must apply not only to people or associations whose views are favourably received or regarded as inoffensive, but also to those whose views offend, shock or disturb”. This is significant, because the legislative imposition of the values of “tolerance, non-discrimination and social peace” itself involves considerable curbs upon freedom of association: association is by nature exclusive to a greater or lesser extent, and thus is likely to involve non-tolerance and discrimination at some level , whether in prohibited areas or not.

Mr Redfearn not only won a personal victory, but his case has also resulted in a change to UK law, in respect of an amendment to the Enterprise and Regulatory Reform Bill which is currently before the House of Lords[6]. In its judgement, the ECHR stated that the UK must “take reasonable and appropriate measures to protect employees, including those with less than one year’s service, from dismissal on grounds of political opinion or affiliation, either through the creation of a further exception to the one-year qualifying period under the 1996 Act or through a freestanding claim for unlawful discrimination on grounds of political opinion or affiliation”. The change in the law – perhaps we could dub it the Redfearn Amendment – means that the right of an employee not to be dismissed by reason of his or her political views or memberships will now start from the first day of employment.

Writing in spiked! today, Rosamund Cuckston suggests that this ruling may in fact have the perverse effect of further constraining freedom of association, making employers carry out “risk assessments” before employing individuals with controversial views[7]. Although I share her mistrust of the ECHR and its imposition of core values that have potentially troublesome implications, I do not share her pessimism. As I see it, political beliefs have now joined the list of other protected criteria in employment that may give rise to a discrimination case. It is more likely that employers will be careful not to ask questions in interview or application concerning a candidate’s political beliefs that could be seen as potentially problematic for them, and that they will recognize that they need to be careful regarding this area in respect of their existing workforce.

What will also be interesting is whether this change in the law has implications for those employment situations in which membership of the BNP is at present the subject of overt and active discrimination in the form of an outright ban. Organizations that have a ban on BNP membership among their workforce include the police, the Prison Service, and the Church of England in respect of its clergy. Other employers have considered or have been reported to be considering similar moves. There have been several situations in the past involving BNP members who may also be affected by this change.[8]

While the BNP are understandably delighted at this situation, the implications go well beyond the party and its members. A free society must preserve the right of freedom of association as a core principle. It should also ensure that people cannot be sacked from their jobs for holding political views, however distasteful they may be to some, that are not in line with those of the prevailing orthodoxy. If the arguments of the BNP are to be challenged, the correct means to do so is by confronting those arguments in the course of open political debate, not by suppressing society’s freedoms.

These days we are often told that people do not feel they can speak their minds in opposition to a culture of political correctness because to do so would threaten their employment. It would appear that those people have been thrown a legislative lifeline by the present developments. This, as they say, could turn out to be a game-changer.

[1] http://tablet.yorkshirepost.co.uk/appeal-court-probes-case-of-driver-sacked-in-bnp-row-1-2611259

[2] http://tablet.yorkshirepost.co.uk/sacked-bnp-supporter-to-take-his-case-to-the-european-court-1-2371620

[3] http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-114240

[4] http://tablet.yorkshirepost.co.uk/bnp-bus-driver-wins-victory-on-human-rights-1-5098819

[5] http://www.bbc.co.uk/news/uk-england-leeds-20235101

[6] http://tablet.yorkshirepost.co.uk/bnp-bus-driver-sacked-over-bradford-asian-passengers-forces-legal-change-1-5409685

[7] http://www.spiked-online.com/site/article/13590/

[8] http://www.telegraph.co.uk/news/uknews/3484612/Rod-Lucas-dropped-by-TalkSPORT-after-BNP-links-emerge.html, http://www.dailymail.co.uk/news/article-1088392/Teacher-prestigious-prep-school-faces-probe-job-BNP-exposed.html, http://www.guardian.co.uk/uk/2010/mar/25/barrister-bnp-loses-chambers-grierson, http://www.thesun.co.uk/sol/homepage/news/article2333676.ece, http://www.bristol.indymedia.org/newswire.php?story_id=25066

Life versus art

Libertarian Alliance, May 2013

It has been reported that pressure groups representing the survivors of rape, sexual violence and childhood sexual abuse have called upon the BBC to remove a statue by the sculptor Eric Gill that adorns its London headquarters[1]. The statue, from 1932, is a depiction of Prospero and Ariel, the latter depicted as a naked boy. This is not a new demand[2].

While the BBC has, entirely properly, refused this demand and pointed out that Gill, for all his sins, remains a major British artist whose work is widely regarded as of importance, this situation illustrates a phenomenon among the Left that is worth examining further.

Two insidious ideas are prevalent among the Left today. The first is that of political correctness. In this context, this means that groups that constitute a minority whose rights are privileged by the Left are granted the specious right not to be offended. This right is purely an invention of the Left to prosecute its Marxist agenda of the destruction of Western culture. It creates no-go areas of taboo and state protection that fundamentally attack the freedom of speech and force opposition to the Left out of the public arena. The second, related, idea is that a leading means of pursuing this Kulturkampf is to attack the past, whether in the form of its artefacts, in a revisionist approach to history, or indeed in the ancestor guilt that is often foisted upon the White population in the name of the remembrance of slavery, and that periodically results in the absurdity of “apologies” by the living for the actions of the dead.

This is not to suggest that the victims of abuse, along with many others, are not genuinely upset or offended by aspects of the life of Eric Gill, an enormously gifted man and devoted Catholic whose lifestyle extended beyond adultery to the practice of incest and bestiality. Gill did not try to reconcile his faith and his behaviour on an intellectual level, nor to excuse the latter. He seems to have regarded a state of permanent penance and self-reproach through a strict religious observance as the most that he could achieve in ameliorating his excesses. But as an artist, it is precisely this tension between the sacred and the secular, and between the devotional and the erotic, that renders his work important and of stature. As his biographer Fiona MacCarthy has said, “Gill is too good an artist, too ferocious and intrepid a controversialist, to be protected and glossed over. We need to see him whole.” If the process of seeing him whole takes us beyond the norm and into some of the darkest recesses of humanity, then there would be a strong argument that this is precisely the purpose of his art. If Gill can transcend his sins and present his broken morality as transfiguration through his creative ability, we are then left with some disturbing conclusions as to our own basis for judging him and the religious significance of what he has to say to us.

In the end, Gill’s profound flaws are what makes him such a fascinating and controversial figure, and that make the utter beauty of almost everything he produced so remarkable. There is a simplicity of line, a boldness and a wildness in his art that is at once balanced by the limits of his essential Englishness and his Catholic understanding. Gill always points to something beyond himself, usually spiritual, and at the same time is utterly honest in the subjectivity of his approach; everything is seen through his own eyes and in the context of his own understanding.

The question of the extent to which one can separate artist from art is a matter for perpetual discussion. In 1935, the critic Ernest Newman published his book “The Man Liszt” which was a poorly-researched attack on its subject, who was both during his lifetime and today acknowledged as one of the most significant musical figures of the nineteenth-century. Newman writes little about Liszt’s work as a concert pianist, composer or advocate of other musicians. Instead, the book is devoted to lambasting its subject’s moral failings and social climbing. As scholarship it is nugatory, but the effect it had upon the musical world of the time both actively prevented Liszt’s music from being taken seriously and relegated those who performed him to the second rank of marketability for several decades. Some years ago, a similar online controversy arose in relation to the music and lifestyle of Benjamin Britten, with one writer in particular taking exception to any appreciation of Britten’s qualities as a composer because of his alleged pederasty and other moral failings. The comments pro and contra this viewpoint in an online discussion at the Musicweb International website[3] are interesting to read. Similar debates concerning Wagner have raged for over a century, and his music still cannot be performed in Israel today, despite the fact that some prominent Jewish musicians, notably Daniel Barenboim, have performed and advocated his work.

What can be concluded is that firstly, attempts to censor art on the grounds of contemporary morality are ultimately doomed to failure in the long run, and earn their proponents both ridicule and opprobrium. Many of our greatest artists have been prone to moral failings of one kind or another. But once a work of art is created, it takes on a life of its own, independent from that of its creator. It is perhaps not too far-fetched to suggest that, in the language of the Left, an artwork has rights.

Secondly, the past and the dead are vulnerable precisely because they can be the focus of subjective, and therefore politically-charged debate. This should be perceived for precisely what it is, and not confused with the practice or study of history in any true sense. The dead require the advocacy of the living; they have no means of arguing for themselves. In preserving the good in what they stood for, we therefore preserve our traditions and our humanity.

[1] http://www.news.com.au/world-news/bbc-told-to-remove-work-by-pedophile-sculptor-eric-gill/story-fndir2ev-1226626709154

[2] http://news.bbc.co.uk/1/hi/magazine/6979731.stm

[3] http://www.musicweb-international.com/classrev/2003/Sept03/Britten_comment.htm