Ai Weiwei and his legal team have, since 2011, fought allegations, arrests and fines for tax evasion case widely regarded as "political retaliation" by the Chinese goverment.
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The Ai Weiwei papers

On 27 September, the Chinese courts rejected Ai’s second appeal against a £1.5m fine for tax evasion. Here, his legal team sets out the facts of a case riddled with corruption and secrecy.

An Introduction
Jerome A Cohen

The New Statesman is rendering a great public service in making available an English-language account of the Chinese government’s use of its tax laws to persecute the innovative and courageous Chinese artist and activist Ai Weiwei. Having been pressured by world opinion to release Ai from the harsh and blatantly illegal confinement to which its police had subjected him for almost three months, the Chinese government decided to crush him by resorting to economic measures whose illegality would presumably be less apparent both to its own citizens and to the outside world.

Fortunately, thanks to the presentation that follows this introduction, the unfairness and abuses that have marked this tax case have been unmasked. As Ai’s lawyers make clear, at both the administrative and the judicial levels the proceedings against him have been a farce. Much of the evidence apparently used against Ai was unlawfully collected and retained by the police and the tax authorities. Administrative hearings that purported to determine his alleged tax liability were truncated and plainly in violation of international standards of due process of law, and the subsequent judicial reviews were no better.

I personally am saddened at this spectacle for reasons that transcend our friendship and my admiration for Ai. It is nauseating to witness the damage that the Chinese government has chosen to inflict on its reputation through the misuse of its criminal justice and tax systems. As an international lawyer and a law professor seeking to assist in China’s economic development, I spent over 20 years co-operating with Chinese officials who were seeking to develop a legal  system that would earn the confidence of its own people and of the foreign business community. Beginning in 1979, for several years I enjoyed especially close relations with the National Taxation Bureau, which, during the early period of the Deng Xiaoping reform era, led the way for other government agencies in establishing impressive regulations and procedures for carrying out its responsibilities and for developing a legal process worthy of respect.

The handling of the Ai Weiwei case has been totally inconsistent with that earlier accomplishment. Neither the Chinese nor the foreign communities can afford to ignore the scandalous mistreatment of Ai. If he can become the victim of criminal and commercial injustice, no one in China or who deals with China can feel safe.

Jerome Cohen is a professor of law at New York University and an expert in Chinese law

The Fake Cultural Development Ltd tax case

1. Process summary

On 3 April 2011 in the morning, Ai Weiwei was taken away by police at passport control at Beijing Capital International Airport.

On 3 April 2011 at midday, Beijing Public Security searched Ai Weiwei’s residence for almost 12 hours. They confiscated 127 items, including computers and CDs. Ten people were taken to the police station for questioning until the early morning.

On 3 April 2011 at midday, Ai Weiwei’s assistant Wen Tao was kidnapped by four plainclothes police officers and went missing. He was illegally detained at a secret location and not released by public security until 24 June. Before this, his family was unaware of his location and received no official notification.

On 6 April 2011 in the evening, Beijing Municipal Public Security went to Beijing Huxin Ltd, the bookkeepers of Fake Ltd. They searched company information, including bookkeeping records and financial statements, dating from its establishment. Xinhua News Agency then published an English bulletin: “Ai Weiwei is suspected of economic crimes and is now being investigated according to the law.”

On 7 April 2011, Beijing Public Security brought the company accountant, Hu Mingfen, who was visiting family in Lanzhou, back to Beijing. After being put in a detention centre for one month, she was transferred to a secret location and detained illegally until she was “granted bail” on 13 June. Her family received no official notification.

On 8 April 2011, the Second Tax Inspection Bureau and Beijing Public Security searched and confiscated all of Fake’s financial and accounting information, contracts and seals from 2005 to 2010.

On 9 April 2011, the Fake shareholder and manager Liu Zhenggang was kidnapped by four men in plain clothes. After being put in a detention centre for one month, he was transferred to a secret location and detained illegally until he was “granted bail” on 11 June. His family was unaware of his location and received no official notification.

On 10 April 2011, the driver Zhang Jinsong was taken away. After being put in a detention centre for one month, he was transferred to a secret location and detained illegally until he was “granted bail” on 23 June. During this time, his family was unaware of his location and received no official notification.

On 12 April, Beijing Local Taxation Bureau Second Tax Inspection Bureau questioned Fake’s legal representative, Lu Qing, for the first time. On 20 May 2011, Xinhua News Agency published a bulletin stating: “Public Security has investigated the alleged Ai Weiwei economic crimes case. The preliminary finding is that Beijing Fake Cultural Development Ltd, under the actual control of Ai Weiwei, has committed offences including evading a large tax payment and deliberately destroying accounting records.”

On 22 June 2011, after 81 days in detention, Ai Weiwei was released “on bail” and returned home. His family members received no official notification. They could not get information about his suspected crime, what forceful measures were used and where he had been detained.

On 14 July 2011, the Bejing Local Taxation Bureau Second Tax Inspection Bureau held a closed hearing.

On 1 November 2011, the Beijing Local Taxation Bureau Second Tax Inspection Bureau decided that Fake had committed tax evasion and was required to pay 5,263,756.61 yuan in back taxes, a 3,190,331.52 yuan late-payment penalty and a 6,766,822.37 yuan fine. The three payments totalled 15,220,910.50 yuan (£1.5m).  n 29 December 2011, Fake asked for an administrative review at the Beijing Local Taxation Bureau. On 29 March 2012, the Beijing Local Taxation Bureau turned down the request for a review.

On 13 April 2012, Fake sued the Beijing Local Taxation Bureau Second Tax Inspection Bureau at Beijing Chaoyang District People’s Court. The trial opened on 20 June 2012. On 20 July, the court rejected the entire Fake case.

On 3 August 2012, Fake lodged an appeal at Beijing Second Intermediate People’s Court. On 27 September 2012, in the company’s second and final appeal, the intermediate court upheld the original decision.

2. Points of controversy in the tax case

The Fake tax case contains grave problems and controversy in terms of both procedure and facts.

1. Points of controversy in the procedure

Procedure is essential in implementing justice.

Although Fake repeatedly raised serious procedural issues, the tax authorities and courts gave
no response. The main problems at each stage of the procedure are as follows:

1.1. Beijing Municipal Public Security Bureau
1.1.1. Public security exceeded its authority in the Fake tax case.

According to the Criminal Law Amendment (7) and the regulations on the administrative pre-procedure related to “Provisions (II) of the Supreme People’s Procuratorate and the Ministry of Public Security on the Standards for Establishing Criminal Cases under the Juris - diction of the Public Security Organs for In - vestigation and Prosecution”, only after the offending party has declined to implement tax administration penalties and after the tax organs have transferred the case to public security organs can public security organs establish a criminal case against the responsible parties. The Second Tax Inspection Bureau made its decision against Fake only on 1 November 2011. It is clear that in April 2011 public security detained five people in secret, including Ai Weiwei, on the grounds of “tax evasion”. They searched and confiscated Fake financial information, which was exceeding their authority and handling the case illegally.

In the Fake tax case, the tax organs were completely reliant on the Public Security Bureau for their evidence, and the police were pushed to the legislative foreground, which strengthened the contradiction and artificially produced   case of “major impact”. The police administration was brought into the government administration mechanism, which in essence weakened the function of legal and responsible adminstration.

1.1.2. “Arrest before investigation” is a violation of the law. On 3 April 2011, public security took Ai Weiwei away. They then detained four people, including a Fake shareholder and the company accountant. However, of the evidence  in the file put together by public security, none was collected before 3 April 2011. The essence of “an arrest before investigation” is assuming that a suspect is guilty.

1.1.3. The authorities confiscated all the company’s account books and refused to give them back. During the Fake case review, first hearing and final hearing, the company’s account books were confiscated by Beijing Municipal Public Security and not given back.

1.2. Beijing Local Taxation Bureau Second Tax Inspection Bureau

The Bureau was responsible for the adminis - trative handling of the case. The following problems existed in its administration and law enforcement:

1.2.1. More than 95 per cent of the evidence came from public security and was obtained illegally. The Second Tax Inspection Bureau issued the following statement on the composition and source of the “evidence list”:

“1. Account books, certificates and related tax documents were provided to the defendant after they were obtained by public security  organs from the plaintiff’s bookkeeping company;

2. Third-party account books, certificates, instructions and other materials were provided to the defendant after public security organs obtained them;  

3. Notes from public security questioning were taken by public security and then provided to the defendant;

4. Bank statements etc were provided to the defendant after they were obtained from the bank by public security;

5. Inspection process documents and notes were produced by the defendant; 6. Tax records, inspection materials and certificates from tax organs were obtained by the defendant.”

This indicates that most of the evidence that the defendant cited in the Fake tax case and for making a decision came from the Public Security Bureau.

Fake believed that: first, the evidence “transferred” from public security organs was obtained while violating legal procedures. It therefore constituted illegal evidence and should be discounted. Second, the Law on the Administration of the Levy and Collection of Taxes has given tax organs tax inspection rights through legal means. This is the responsibility of the tax organs, and the public security organs should not be investigating on their behalf.

The Second Tax Inspection Bureau argued that the public security organisations exercise judicial authority. According to the 57th and 58th clauses of the Law on the Administration of the Levy and Collection of Taxes, tax organs have the right to obtain relevant documents from organisations including public security organs. Based on this, obtaining evidence from public security organs is legal.

Fake believed that the 57th and 58th clauses of the Law on the Administration of the Levy and Collection of Taxes gave tax organs the right to investigate “relevant organizations and individuals, regarding taxpayers, withholding agents and other parties and their situation regarding tax payments or tax withheld and remitted or collected and remitted”. This is completely different from public security investigating taxpayers and transferring evidence, so the defendant’s response was irrelevant.

1.2.2. None of the evidence had been crossexamined. This should be regarded as a lack of factual basis. During the hearing procedure, the bureau presented only part of the review document. It had not been checked. During the trial, the plaintiff’s right to cross-examine was also removed by the court.

1.2.3. In order to comply with public security, coercive methods were used to obtain evidence. The Second Tax Inspection Bureau and public security, on condition of “bail”, coerced Ai Weiwei, who was in prison, to sign a “recognition of alleged tax violations” on 22 June 2011.
This was self-incrimination, and was used as forceful evidence that Fake had evaded taxes. It would be hard to imagine that the “recognition of alleged tax violations” could be a legal document at the tax inspection trial stage. However, it appeared at the previous tax inspection stage, as if a man-made satellite had appeared in the Qin or Han Dynasty.

1.2.4. The tax inspection work had no statutory elements or contents.

The Second Tax Inspection Bureau did not have documents such as the “tax inspection working paper”, “tax inspection report” and “tax inspection trial report”. The contents of the “decision declaration” were incomplete. It did not mention how the “tax evasion” amount or the late-payment penalty amount were calculated.

1.2.5. The hearing process violated the law. The Second Tax Inspection Bureau did not conduct an open hearing on the basis that the case involved commercial secrets. This reason is not valid, and the facts later confirmed that the socalled commercial secrets did not exist.

1.3. Beijing Local Taxation Bureau

The bureau carried out the review. On 2 February 2012, Fake applied to the bureau for a review of the documents and hearing attendance. On 27 and 28 March the document inspection started. On 29 March, the bureau made a decision about the review. Not only did it refuse to conduct a hearing, it made a decision about the review in less than 12 hours after the lawyers finished inspecting the document. They deprived the attorney of his right to state his case and the right to defence.

1.4. Beijing Chaoyang District People’s Court

Fake sued the Beijing Local Taxation Bureau Second Tax Inspection Bureau at Beijing Chao - yang District Court. The hearing was held on 20 June 2012.

1.4.1. It was called an open trial but in fact it was a secret trial. A trial as conspicuous as this was arranged in a small court, which could hold five spectators only. Five insiders were arranged to take up all the seats, and Fake was not allocated any spectator seats.

1.4.2. The court did not carry out its obligation in collecting evidence. Fake had previously requested the court to provide evidence of the plaintiff’s account books and certificates that were confiscated by public security, but the court had decided not to collect the evidence prior to the court session, nor had it sent a notification to the plaintiff saying that collecting this evidence was not allowed.

When Fake asked the court about this, the collegiate bench said, “We will answer this after the trial opens.”

1.4.3. The court did not carry out its obligationto call witnesses. Fake applied to summon Liu Zhenggang, Hu Mingfen and others as witnesses, but the court did not inform them. It claimed that the obligation to notify lay with the plaintiff. Fake asked for the defendant’s law- enforcement officials – ten people, including You Pengnan – to testify, but the court did not arrange for it.

On the contrary, however, after the court opened, You Pengnan appeared, representing the defendant. Fake raised an objection, but the collegiate bench replied that the company should raise it again after the trial.

1.4.4. The court removed the plaintiff’s right to present evidence. Fake requested evidence
from the collegiate bench prior to the opening of the court, but received no response. On 20
June in the morning, Fake went to the Three Shadows Cultural Exchange Centre and obtained evidence partly sufficient to overrule the decision. In the afternoon of 20 June, before the court opened and three times during the court session, the evidence was presented to the collegiate bench, but the court did not accept it, because it “overran the deadline for presenting evidence”.

1.4.5. The court refused to investigate the legitimacy of the sources of the evidence. According to law, the defendant can collect his own evidence, but it was all collected by public security authorities. More than 95 per cent of the evidence on administrative behaviour presented by the defendant was collected by public security organs.

Public security intervened in the tax case illegally, and the evidence was illegally obtained from detainees, which was not legitimate. Therefore, the plaintiff asked for the above evidence to be discounted. However, the court claimed that “the legitimacy of the public security investigations is not within the range of this court’s hearing”.

1.4.6. The court refused the plaintiff’s legitimate request to check the original evidence documents, and illegally removed the plaintiff’s right to cross-examination. During the session, the defendant failed to present any original documents for evidence. The presiding judge, Wu Nan, upon the request to see the documents, repeatedly struck his gavel and said, “As for the documents, the court has already made a decision; do not bring it up again!”

The court “summarised” when questioning the evidence and did not control the questioning time reasonably. Pieces of evidence numbering a thousand pages were given five minutes for questioning: on average, less than one second for every page of evidence. If the time exceeded five minutes, then the questioning would be regarded as abandoned.

1.4.7. The court removed the plaintiff’s right to debate. The plaintiff’s speech was repeatedly interrupted by the judges and was counted down. During the debate stage, three attorneys spoke for only ten minutes in total. The plaintiff could not fully express an opinion.

1.4.8. For these reasons, the plaintiff considered that the collegiate bench could not carry out this trial justly, and therefore requested the court to withdraw the case.

After the court was adjourned, the collegiate bench refused the request. The plaintiff appealed the decision, and the Chaoyang District Court refused orally, refusing to offer any written documentation.

1.4.9. The court refused to allow the litigants and the representatives to copy the court notes.
After the hearing, the court administrative divisional director promised the defendant that the following day at two o’clock in the afternoon they could come to the court to copy the notes, but the next day when they went to court, copying was no longer permitted, the court citing internal regulations.

1.4.10. The order of legal procedures was swapped when the court refused Fake’s request for evidence only after the trial. On 7 June 2012, Fake made its “application for collecting evidence” to the court.  The court did not respond. Yet after the court opened on 4 July, it decided not to allow any evidence to be collected. The reason given was that the defendant “did not meet the conditions for requesting evidence”. However, the decision did not contain a notification, required by law, to specify “which group and which piece of evidence violated which condition for evidence collection”.

2. Focus of controversy over the facts of the case 

Global Times, a subsidiary of the Chinese official newspaper the People’s Daily, published an editorial, entitled “The law will not bend for mavericks”, on the Ai Weiwei tax case, saying that certain western governments and “human rights organisations” had attacked China with strong commentary without understanding the true situation.

What is the truth behind the Ai tax case? Fake Ltd was established by the shareholders Lu Qing and Liu Zhenggang. Lu Qing was the legal representative and the wife of Ai Weiwei. Liu Zhenggang was business manager, responsible for company operations. The company’s income came mainly from design services. Ai Weiwei was not a staff member of Fake, but provided guidance and advice to the design services of Fake as an independent artist.

Fake went into operation in 2001. The tax organs believed that, over ten years of operation (until 2010), Fake concealed three counts of income, totalling 15,823,724.36 yuan. They pursued unpaid taxes of 5,263,756.61 yuan, a fine for overdue payment of 3,190,331.52 yuan and a penalty of 6,766,822.37 yuan, totaling 15,220,910.50 yuan.

Regarding the facts, the parties were in controversy over the following:

2.1. Who was the tax-paying entity for these three projects with alleged tax issues?

The standard for determining the tax-paying entity depends not on form, but on substance. This is the so-called principle of substance over formality in tax law. The heart of the problem is, who was the true controller of these three projects? Usually the actual controller is determined by who has the right to dispose of and the right to benefit from income. In tax law, the object of the test to determine the right to dispose of and the right to benefit from income is the sum of income. The public security organ, tax organ and the lawyers of Fake all acknowledged that Liu Zhenggang disposed of and controlled the project funding in the case. It is a shame that the conclusion drawn by each party was very different.

2.2. Was it tax evasion?

Regardless of whether the tax-paying entity was Ai Weiwei, Fake Ltd or Liu Zhenggang, the fact that tax duty had not been declared on the income for the three engineering projects is not in dispute. The key to the problem is, does the failure to declare taxable income constitute tax evasion?

According to China’s Law on the Administration of the Levy and Collection of Taxes, there are generally three types of failure to declare tax duty:

2.2.1. “Tax evasion”: falsely filing or deliberately failing to file taxes, causing an underpayment
of tax, following Term 63 of the Law on the Administration of the Levy and Collection of Taxes. This is breaking the law. If it reaches a certain ratio, it constitutes a crime.

According to Term 201 of the Criminal Law, it is the crime of evading payment of tax. The constituents must consist of the resulting elements, namely underpayment of tax and of a clear amount.

2.2.2. “Tax leakage”: not deception or concealment, but human error causing underpayment of tax, according to Term 64, Article 2 of the Law on the Administration of the Levy and Collection of Taxes. It counts as a normal administrative offence, not a criminal offence.

2.2.3. “Making up tax”: underpayment of tax caused by reasons not related to the actor (including incomplete factors in levying tax), as in Article 35 of the Law on the Administration of the Levy and Collection of Taxes. For example, where, although it is clearly income, the expenditure can’t be verified. The tax organ, by approving the profit rate, makes complete the factors in levying tax to realise the aim of levying tax. This type of underpayment of tax is the result of the expansion of administrative powers of the tax organs. It is not breaking the law, so the authorities cannot levy an overdue payment fine or penalty fine.

The contention of this case is focused on the dispute between “tax evasion” and “making up tax”. A simplified breakdown illustrates:

According to the law, when the cost is difficult to verify, an estimated tax should be levied. It should not be handled as a case of tax evasion. When the costs and expenses of a project cannot be checked, it cannot be asserted that the party has been evading tax.

2.3. The issue of verifying costs and expenditures for the three projects

The Second Tax Inspection Bureau said, “The defendant, upon confirming the total amount of taxes that the plaintiff should have paid, has also confirmed the costs related to the taxable income and subtracted it according to regulations.”

The plaintiff believed that the three projects that the tax bureau considered as evading taxes are defined by incomes that greatly mismatch with their costs. The Second Tax Inspection Bureau verified the income of the Boya Garden project as 1,107,716.00 yuan and its costs as nil. That goes against common sense. Income from the Three Shadows and Upper House projects was 14,716,008.36 yuan, the confirmed cost was nearly 1,047,349.39 yuan and the rate of profit was 92.88 per cent.

The costs were ridiculously low because the public security and tax organs jointly and deliberately concealed evidence of costs. For example, it has already been proved that Three Shadows, upon requests from the public security organ, presented it with receipts for expenditure of 3,738,551.06 yuan for materials used in the project. However, the total cost for all three projects that the tax organ received from the public security organ was only 1,047,349.39
yuan, less than a third of the cost for one project. Through this kind of deliberate selection of evidence, the profits of the projects were artificially enhanced to frame the company.

3. Conclusion

When one looks at the overall progress of the case, it is clearly an erroneous lawsuit. How could it have proceeded so smoothly? Because all the processes had already been arranged. The tax law-enforcement organ, the administrative review organ, the judicial court or representative lawyer were all following a set course. Administrative surveillance, independent trial and lawyer participation had no opportunity to exercise their rightful functions.

Tax cases such as that of Fake are ubiquitous in China. Unjust cases of sanctioning a party through tax means are also common. Most of the affected parties choose to remain silent in exchange for a reduction of the penalty by the tax organisation.

Fake used all means to fight its case, exposing illegality at each stage. This is unprecedented. The wish is that, through the heavy price paid by Fake, through the price for freedom paid by a person who doesn’t believe in following trends and who dares to speak the truth, we can make progress in China’s law enforcement.

The information used in this article was provided by Ai Weiwei’s lawyers

This article first appeared in the 22 October 2012 issue of the New Statesman, Ai Weiwei guest-edit

CLIVE BARDA
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The lost magic of England

The great conservative journalist Peregrine Worsthorne reflects on a long life at the heart of the establishment.

In a recent editorial meeting, our subscriptions manager happened to mention that Peregrine Worsthorne was still a New Statesman subscriber. A former editor of the Sunday Telegraph and, during a long Fleet Street career, a self-styled “romantic reactionary” scourge of liberals and liberalism, Worsthorne used to be something of a pantomime villain for the left, a role he delighted in. He had close friends among the “Peterhouse right”, the group of High Tory intellectuals who gathered around Maurice Cowling at the small, conspiratorial Cambridge college. He was a frequent contributor to Encounter (which turned out to be funded by the CIA) and an ardent cold warrior. His social conservatism and lofty affectations offended lefty Islingtonian sensibilities. On several occasions he was the Guardian’s reviewer of choice for its annual collection of journalism, The Bedside Guardian, and he invariably delivered the required scornful appraisal while praising its witty television critic, Nancy Banks-Smith. There is no suggestion, he wrote in 1981, that the “Guardian ever sees itself as part of the problem; itself as having some responsibility for the evils its writers described so well”.

His prose style was Oxbridge high table, more Walter Pater than George Orwell. It was essential not to take Worsthorne too seriously, because he delighted in mischief-making and wilful provocation – one of his targets for remorseless ridicule was Andrew Neil, when Neil edited the abrasively Thatcherite Sunday Times. He ended up suing Worsthorne, who was famous for his silk shirts and Garrick Club lunches, for libel; he was awarded damages of £1, the then cover price of the Sunday Times.

“I wrote that in the old days editors of distinguished Sunday papers could be found dining at All Souls, and something must have changed when they’re caught with their trousers down in a nightclub,” Worsthorne told me when we met recently. “I had no idea he was going to sue. I was teasing. I occasionally run into him and we smile at each other, so it’s all forgotten and forgiven.”

After his retirement in 1989, Worsthorne, although he remained a resolute defender of aristocracy, seemed to mellow, and even mischievously suggested that the Guardian had replaced the Times as the newspaper of record. In the 1990s he began writing occasionally for the New Statesman – the then literary editor, Peter Wilby, commissioned book reviews from him, as I did after I succeeded Wilby. Like most journalists of his generation, Worsthorne was a joy to work with; he wrote to length, delivered his copy on time and was never precious about being edited. (Bill Deedes and Tony Howard were the same.) He might have had the mannerisms of an old-style toff but he was also a tradesman, who understood that journalism was a craft.

Shortly before Christmas, I rang Wors­thorne at the home in Buckinghamshire he shares with his second wife, Lucinda Lambton, the charming architectural writer. I asked how he was. “I’m like a squeezed lemon: all used up,” he said. Lucy described him as being “frail but not ill”. I told him that I would visit, so one recent morning I did. Home is a Grade II-listed old rectory in the village of Hedgerley. It is grand but dishevelled and eccentrically furnished. A sign on the main gates warns you to “Beware of the Dog”. But the dog turns out to be blind and moves around the house uneasily, poignantly bumping into objects and walls. At lunch, a small replica mosque in the dining room issues repeated mechanised calls to prayer. “Why does it keep doing that?” Perry asks. “Isn’t it fun,” Lucy says. She then turns to me: “Have some more duck pâté.”

As a student, I used to read Worsthorne’s columns and essays with pleasure. I did not share his positions and prejudices but I admired the style in which he articulated them. “The job of journalism is not to be scholarly,” he wrote in 1989. “The most that can be achieved by an individual newspaper or journalist is the articulation of an intelligent, well-thought-out, coherent set of prejudices – ie, a moral position.”

His Sunday Telegraph, which he edited from 1986 to 1989, was like no other newspaper. The recondite and reactionary comment pages (the focus of his energies) were unapologetically High Tory, contrary to the prevailing Thatcherite orthodoxies of the time, but were mostly well written and historically literate. Bruce Anderson was one of the columnists. “You never knew what you were going to get when you opened the paper,” he told me. “Perry was a dandy, a popinjay, and of course he didn’t lack self-esteem. He had a nostalgia for Young England. In all the time I wrote for him, however, I never took his approval for granted. I always felt a tightening of the stomach muscles when I showed him something.”

***

Worsthorne is 92 now and, though his memory is failing, he remains a lucid and engaging conversationalist. Moving slowly, in short, shuffling steps, he has a long beard and retains a certain dandyish glamour. His silver hair is swept back from a high, smooth forehead. He remains a stubborn defender of the aristocracy – “Superiority is a dread word, but we are in very short supply of superiority because no one likes the word” – but the old hauteur has gone, replaced by humility and a kind of wonder and bafflement that he has endured so long and seen so much: a journalistic Lear, but one who is not raging against the dying of the light.

On arrival, I am shown through to the drawing room, where Perry sits quietly near an open fire, a copy of that morning’s Times before him. He moves to a corner armchair and passes me a copy of his book Democracy Needs Aristocracy (2005). “It’s all in there,” he says. “I’ve always thought the English aristocracy so marvellous compared to other ruling classes. It seemed to me that we had got a ruling class of such extraordinary historical excellence, which is rooted in England
almost since the Norman Conquest.

“Just read the 18th-century speeches – the great period – they’re all Whig or Tory, but all come from that [the aristocracy]. If they didn’t come directly from the aristocracy, they turned themselves very quickly into people who talk in its language. Poetic. If you read Burke, who’s the best in my view, it’s difficult not to be tempted to think what he says has a lot of truth in it . . .”

His voice fades. He has lost his way and asks what we were talking about. “Oh, yes,” he says. “It survived when others – the French and Russians and so on – were having revolutions. It was absolutely crazy to set about destroying that. There was something magical . . . the parliamentary speeches made by Burke and so on – this is a miracle! No other country has it apart from America in the early days. And I thought to get rid of it, to undermine it, was a mistake.”

I ask how exactly the aristocracy was undermined. Even today, because of the concentration of the ownership of so much land among so few and because of the enduring influence of the old families, the great schools and Oxbridge, Britain remains a peculiar hybrid: part populist hyper-democracy and part quasi-feudal state. The Tory benches are no longer filled by aristocrats but the old class structures remain.

“Equality was the order of the day after the war,” Worsthorne replies. “And in a way it did a lot of good, equalising people’s chances in the world. But it didn’t really get anywhere; the ruling class went happily on. But slowly, and I think unnecessarily dangerously, it was destroyed – and now there are no superior people around [in politics]. The Cecil family – Lord Salisbury, he was chucked out of politics. The Cecil family is being told they are not wanted. The institutions are falling apart . . .

“But there were people who had natural authority, like Denis Healey. I’m not saying it’s only aristocrats – a lot of Labour people had it. But now we haven’t got any Denis Healeys.”

Born in 1923, the younger son of Alexander Koch de Gooreynd, a Belgian banker, Worsthorne (the family anglicised its name) was educated at Stowe and was an undergraduate at both Cambridge (Peterhouse, where he studied under the historian Herbert Butterfield, the author of The Whig Interpretation of History) and Oxford (Magdalen College). “I have always felt slightly underprivileged and de-classed by having gone to Stowe, unlike my father who went to Eton,” Worsthorne wrote in 1985.

Yet his memories of Stowe remain pellucid. There he fell under the influence of the belle-lettrist John Davenport, who later became a close friend of Dylan Thomas. “He was a marvellous man, a famous intellectual of the 1930s, an ex-boxer, too. But in the war he came to Stowe and he was preparing me for a scholarship to Cambridge. He told me to read three books, and find something to alleviate the boredom of an examiner, some little thing you’ll pick up. And I duly did and got the scholarship.”

Can you remember which three books he recommended?

“Tawney. Something by Connolly, um . . . that’s the terrible thing about getting old, extremely old – you forget. And by the time you die you can’t remember your brother’s name. It’s a terrible shock. I used to think old age could be a joy because you’d have more time to read. But if you push your luck and get too far, and last too long, you start finding reading really quite difficult. The connections go, I suppose.”

Was the Connolly book Enemies of Promise (1938)?

“Yes, that’s right. It was. And the other one was . . . Hang on, the writer of the book . . . What’s the country invaded by Russia, next to Russia?

Finland, I say. Edmund Wilson’s To the Finland Station (1940)?

“Yes. Wilson. How did you get that?”

We both laugh.

***

Worsthorne is saddened but not surprised that so many Scots voted for independence and his preference is for Britain to remain a member of the European Union. “What’s happening is part of the hopelessness of English politics. It’s horrible. I can’t think why the Scots would want to be on their own but it might happen. The youth will vote [for independence]. This is part of my central theme: the Scots no longer think it’s worthwhile belonging to England. The magic of England has gone – and it’s the perversity of the Tory party to want to get us out of the European Union when of course we’re much more than ever unlikely to be able to look after ourselves as an independent state because of the quality of our political system.

“The people who want to get us out are obviously of an undesirable kind. That the future should depend on [Nigel] Farage is part of the sickness. I mean the real horror is for him to have any influence at all. And when you think of the great days of the Labour Party, the giants who strode the stage – famous, lasting historical figures, some of them: Healey, Attlee, who was probably the greatest, [Ernest] Bevin. I’m well aware that Labour in the good days produced people who were superior.”

He digresses to reflect on his wartime experience as a soldier – he served in Phantom, the special reconnaissance unit, alongside Michael Oakeshott, the philosopher of English conservatism who became a close friend, and the actor David Niven, our “prize colleague”.

“I remember Harold Macmillan saying to me, after the Second World War, the British people needed their belt enlarged; they’d done their job and they deserved a reward. And that’s what he set about doing. And he wasn’t a right-wing, unsympathetic man at all. But he didn’t – and this is what is good about conservatism – he didn’t turn it into an ‘ism’. It was a sympathetic feel, an instinctive feel, and of course people in the trenches felt it, too: solidarity with the rest of England and not just their own brotherhood. Of course he didn’t get on with Margaret Thatcher at all.”

Worsthorne admired Thatcher and believed that the “Conservatives required a dictator woman” to shake things up, though he was not a Thatcherite and denounced what he called her “bourgeois triumphalism”. He expresses regret at how the miners were treated during the bitter strike of 1984-85. “I quarrelled with her about the miners’ strike, and the people she got around her to conduct it were a pretty ropey lot.

“I liked her as a person. I was with her that last night when she wasn’t prime minister any more, but she was still in Downing Street and had everything cut off. The pressman [Bernard Ingham] got several of us to try to take her mind off her miseries that night. There’s a photograph of me standing at the top of the stairs.”

In the summer of 1989, Peregrine Wors­thorne was sacked as the editor of the Sunday Telegraph by Andrew Knight, a former journalist-turned-management enforcer, over breakfast at Claridge’s. He wrote about the experience in an elegant diary for the Spectator: “I remember well the exact moment when this thunderbolt, coming out of a blue sky, hit me. It was when the waiter had just served two perfectly poached eggs on buttered toast . . . In my mind I knew that the information just imparted was a paralysingly painful blow: pretty well a professional death sentence.”

He no longer reads the Telegraph.

“Politically they don’t have much to say of interest. But I can’t put the finger on exactly what it is I don’t like about it. Boredom, I think!”

You must read Charles Moore?

“He is my favourite. Interesting fellow. He converted to Catholicism and started riding to hounds in the same week.”

He has no regrets about pursuing a long career in journalism rather than, say, as a full-time writer or academic, like his friends Cowling and Oakeshott. “I was incredibly lucky to do journalism. What people don’t realise – and perhaps you don’t agree – but it’s really a very easy life, compared to many others. And you have good company in other journalists and so on. I was an apprentice on the Times, after working [as a sub-editor] on the Glasgow Herald.”

How does he spend the days?

“Living, I suppose. It takes an hour to get dressed because all the muscles go. Then I read the Times and get bored with it halfway through. Then there’s a meal to eat. The ­answer is, the days go. I used to go for walks but I can’t do that now. But Lucy’s getting me all kinds of instruments to facilitate people with no muscles, to help you walk. I’m very sceptical about it working, but then again, better than the alternative.”

He does not read as much as he would wish. He takes the Statesman, the Spectator and the Times but no longer the Guardian. He is reading Niall Ferguson’s biography of Kissinger, The Maisky Diaries by Ivan Maisky, Stalin’s ambassador to London from 1932 to 1943, and Living on Paper, a selection of letters by Iris Murdoch, whom he knew. “I get these massive books, thinking of a rainy day, but once I pick them up they are too heavy, physically, so they’re stacked up, begging to be read.”

He watches television – the news (we speak about Isis and the Syrian tragedy), the Marr show on Sunday mornings, and he has been enjoying War and Peace on BBC1. “Andrew Marr gave my book a very good review. He’s come back. He’s survived [a stroke] through a degree of hard willpower to get back to that job, almost as soon as he came out of surgery. But I don’t know him; he was a Guardian man.” (In fact, Marr is more closely associated with the Independent.)

Of the celebrated Peterhouse historians, both Herbert Butterfield (who was a Methodist) and Maurice Cowling were devout Christians. For High Tories, who believe in and accept natural inequalities and the organic theory of society, Christianity was a binding force that held together all social classes, as some believe was the order in late-Victorian England.

“I was a very hardened Catholic,” Worsthorne says, when I mention Cowling’s book Religion and Public Doctrine in Modern England. “My mother was divorced [her second marriage was to Montagu Norman, then the governor of the Bank of England] and she didn’t want my brother and me to be Catholic, so she sent us to Stowe. And I used to annoy her because I read [Hilaire] Belloc. I tried to annoy the history master teaching us Queen Elizabeth I. I said to him: ‘Are you covering up on her behalf: don’t you know she had syphilis?’

“Once I felt very angry about not being made Catholic. But then I went to Cambridge and there was a very Catholic chaplain and he was very snobbish. And in confession I had to tell him I masturbated twice that morning or something, and so it embarrassed me when half an hour later I had to sit next to him at breakfast. I literally gave up going to Mass to get out of this embarrassing situation. But recently I’ve started again. I haven’t actually gone to church but I’ve made my confessions, to a friendly bishop who came to the house.”

So you are a believer?

“Yes. I don’t know which bit I believe. But as Voltaire said: ‘Don’t take a risk.’”

He smiles and lowers his head. We are ready for lunch. 

Jason Cowley is editor of the New Statesman. He has been the editor of Granta, a senior editor at the Observer and a staff writer at the Times.

This article first appeared in the 11 February 2016 issue of the New Statesman, The legacy of Europe's worst battle