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

RALPH STEADMAN
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The age of outrage

Why are we so quick to take offence? The Private Eye editor on Orwell, Trump and the death of debate in post-truth politics.

Anyone who thinks that “post-truth politics” is anything new needs to be reminded that George Orwell was writing about this phenomenon 70 years before Donald Trump.

Audiences listening to President-Elect Trump’s extraordinary disregard for anything resembling objective truth – and his astonishing ability to proclaim the absolute opposite today of what he said yesterday – will be forcibly reminded of the slogans that George Orwell gave to his political ­dictators: Black is White, War is Peace, ­Freedom is Slavery, Ignorance is Strength (the last of which turned out to be true in the US election). But any journalist trying to work out what the speeches actually mean, amidst the mad syntax and all the repetition (“gonna happen, gonna happen”), cannot help but fall back on Orwell’s contention that “political chaos is connected with the decay of language”. And the sight of Trump praising Secretary Clinton for her years of public service in his post-election victory speech while the crowd was still chanting his campaign catchphrase of “Lock her up” was surely a perfect example of Doublethink.

No wonder Trump is an admirer of Vladimir Putin, who is an admirer of the Soviet strongmen whom Orwell satirised so well. These echoes from the past are very strong in America at present but there are plenty of them reverberating through British and European politics as well. Our Foreign Secretary managed to accuse other European leaders of a “whinge-o-rama” when they issued qualified statements of congratulation to the new president-elect, even though he himself had previously accused Trump of being “nuts”. Black is White, Remain is Leave, a Wall is a Fence, two plus two equals five: but Brexit means Brexit.

You may find this reassuring, in that we have been here before and survived – or distressing to think that we are regressing to a grimmer Orwellian age. But one of the worrying developments attached to these “post-truth” political figures is the increasing intolerance in public debate of dissent – or even disagreement – about what objective truth might be.

A great deal has been written recently about the influence of social media in helping people to become trapped in their own echo chambers, talking only to those who reinforce their views and dismissing not only other opinions, but also facts offered by those who disagree with them. When confronted by a dissenting voice, people get offended and then angry. They do not want to argue, they want the debate to be shut down. Trump supporters are furious with anyone who expresses reservations about their candidate. Pro-Brexit supporters are furious with anyone who expresses doubts about the way the process of leaving the European Union is going.

I edit the magazine Private Eye, which I sometimes think Orwell would have dismissed as “a tuppeny boys’ fortnightly”, and after the recent legal challenge to the government about Article 50 being put before parliament, we published the cover reproduced on page 25.

It was a fairly obvious joke, a variant of the “wheels coming off” gag. But it led to a large postbag of complaints, including a letter from a man who said he thought the cover was “repulsive”. He also said he wanted to come around and smash up the office and then shove our smug opinions so far up our arses that we choked our guts out.

There was one from a vicar, too, who told me that it was time to accept the victory of the majority of the people and to stop complaining. Acceptance was a virtue, he said. I wrote back and told him that this argument was a bit much, coming from a church that had begun with a minority of 12. (Or, on Good Friday, a minority of one.)

This has become a trend in those who complain: the magazine should be shouted down or, better still, closed down. In the light of this it was interesting to read again what Orwell said in his diary long before internet trolls had been invented:

 

We are all drowning in filth. When I talk to anyone or read the writings of anyone who has any axe to grind, I feel that intellectual honesty and balanced judgement have simply disappeared from the face of the earth. Everyone’s thought is forensic, everyone is simply putting a “case” with deliberate suppression of his opponent’s point of view, and, what is more, with complete insensitiveness to any sufferings except those of himself and his friends.

 

This was in 1942, when the arguments were about war and peace, life and death, and there were real fascists and Stalinists around rather than, say, people who disagree with you about the possibility of reconciling freedom of movement with access to the single European market.

Orwell also made clear, in an essay called “As I Please” in Tribune in 1944, that what we think of as the new online tendency to call everyone who disagrees with you a fascist is nothing new. He wrote then:

 

It will be seen that, as used, the word “Fascism” is almost entirely meaningless. In conversation, of course, it is used even more wildly than in print. I have heard it applied to farmers, shopkeepers, Social Credit, corporal punishment, fox-hunting, bull-fighting, the 1922 Committee [a Tory group], the 1941 Committee [a left-liberal group], Kipling, Gandhi, Chiang Kai-Shek, homosexuality, Priestley’s broadcasts, Youth Hostels, astrology, women, dogs and I do not know what else.

 

When Orwell writes like this about the level of public debate, one is unsure whether to feel relieved at the sense of déjà vu or worried about the possibility of history repeating itself, not as farce, but as tragedy again.

The mood and tone of public opinion is an important force in the way our society and our media function. Orwell wrote about this in an essay called “Freedom of the Park”, published in Tribune in December 1945. Five people had been arrested outside Hyde Park for selling pacifist and anarchist publications. Orwell was worried that, though they had been allowed to publish and sell these periodicals throughout the entire Second World War, there had been a shift in public opinion that meant that the police felt confident to arrest these people for “obstruction” and no one seemed to mind this curtailment of freedom of speech except him. He wrote:

 

The relative freedom which we enjoy depends on public opinion. The law is no protection. Governments make laws, but whether they are carried out, and how the police behave, depends on the general temper in the country. If large numbers of people are interested in freedom of speech, there will be freedom of speech, even if the law forbids it; if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them.

 

This is certainly true for the press today, whose reputation in the past few years has swung violently between the lows of phone-hacking and the highs of exposing MPs’ expenses. In 2011 I remember at one point a football crowd shouting out the name of Ryan Giggs, who had a so-called superinjunction in place forbidding anyone to mention that he was cheating on his wife and also forbidding anyone to mention the fact that he had taken out a superinjunction. He was named on Twitter 75,000 times. It seemed clear that public opinion had decided that his private life should be made public. The freedom of the press was briefly popular. Later the same year it was revealed that the murdered schoolgirl Milly Dowler’s phone had been hacked by the News of the World, along with those of a number of high-profile celebrities, and the public decided that actually journalists were all scumbags and the government should get Lord Leveson to sort them out. Those who maintained that the problem was that the existing laws (on trespass, contempt, etc) were not enforced because of an unhealthy relationship between the police, the press and the politicians were not given much credence.

In a proposed preface to his 1945 novel, Animal Farm, Orwell wrote: “If liberty means anything at all, it means the right to tell people what they do not want to hear.”

This is the quotation that will accompany the new statue of Orwell that has now been commissioned by the BBC and which will stand as a sort of rebuke to the corporation whenever it fails to live up to it. The BBC show on which I appear regularly, Have I Got News for You, has been described simultaneously in the online comments section as “overprivileged, right-wing Tory boys sneering at the working class ” and “lefty, metropolitan liberal elite having a Labour luvvie whinge-fest”. Disturbing numbers of complainants feel that making jokes about the new president-elect should not be allowed, since he has won the election. Humour is not meant to be political, assert the would-be censors – unless it attacks the people who lost the vote: then it is impartial and neutral. This role for comedy would have surprised Orwell, who was keen on jokes. He wrote of Charles Dickens:

 

A joke worth laughing at always has an idea behind it, and usually a subversive idea. Dickens is able to go on being funny because he is in revolt against authority, and authority is always there to be laughed at. There is always room for one more custard pie.

 

I think there is also room for a custard pie or two to be thrown against those who claim to be outsiders, against authority and “the system”, and use this as a way to take power. The American billionaire property developer who is the champion of those dispossessed by global capitalism seems a reasonable target for a joke. Just like his British friend, the ex-public-school boy City trader-turned-critic of the Home Counties elite.

The emblematic quotation on liberty is from a preface that was not published until 1972 in the Times Literary Supplement. A preface about freedom of speech that was censored? It is almost too neatly Orwellian to be true, and in fact no one seems to know exactly why it did not appear. Suffice to say that it is fascinating to read Orwell complaining that a novel which we all now assume to be a masterpiece – accurate about the nature of revolution and dictatorship and perfect for teaching to children in schools – was once considered to be unacceptably, offensively satirical.

The target of the satire was deemed to be our wartime allies the Russians. It is difficult to imagine a time, pre-Putin, pre-Cold War, when they were not seen as the enemy. But of course the Trump presidency may change all that. Oceania may not be at war with Eurasia any more. Or it may always have been at war with Eastasia. It is difficult to guess, but in those days the prevailing opinion was that it was “not done” to be rude about the Russians.

Interestingly there is now a significant faction on the British left, allied with the current leader of the Labour Party, who share this view.

 

The right to tell people what they do not want to hear is still the basis of freedom of expression. If that sounds like I am stating the obvious – I am. But, in my defence, Orwell once wrote in a review of a book by Bertrand Russell published in the Adelphi magazine in January 1939:

 

. . . we have now sunk to a depth at which the restatement of the obvious is the first duty of intelligent men.

 

Orwell himself managed to come round to a position of accepting that an author could write well and truthfully about a subject even if one disapproved of the author’s politics: both Kipling and Swift were allowed to be right even though they were not left enough. So I am hoping that we can allow Orwell to be right about the principles of freedom of expression.

In the unpublished preface to Animal Farm he writes:

 

The issue involved here is quite a simple one: Is every opinion, however unpopular – however foolish, even – entitled to a hearing? Put it in that form and nearly any English intellectual will feel that he ought to say “Yes”. But give it a concrete shape, and ask, “How about an attack on Stalin? Is that entitled to a hearing?”, and the answer more often than not will be “No”. In that case the current orthodoxy happens to be challenged, and so the principle of free speech lapses.

 

One can test oneself by substituting contemporary names for Stalin and seeing how you feel. Putin? Assange? Mandela? Obama? Snowden? Hillary Clinton? Angela Merkel? Prince Harry? Mother Teresa? Camila Batmanghelidjh? The Pope? David Bowie? Martin Luther King? The Queen?

Orwell was always confident that the populist response would be in favour of everyone being allowed their own views. That might be different now. If you were to substitute the name “Trump” or “Farage” and ask the question, you might not get such a liberal response. You might get a version of: “Get over it! Suck it up! You lost the vote! What bit of ‘democracy’ do you not understand?”

Orwell quotes from Voltaire (the attribution is now contested): “I detest what you say; I will defend to the death your right to say it.” Most of us would agree with the sentiment, but there is a worrying trend in universities that is filtering through into the media and the rest of society. Wanting a “safe space” in which you do not have to hear views that might upset you and demanding trigger warnings about works of art that might display attitudes which you find offensive are both part of an attempt to redefine as complex and negotiable what Orwell thought was simple and non-negotiable. And this creates problems.

Cartoon: "Voltaire goes to uni", by Russell and originally published in Private Eye.

We ran a guide in Private Eye as to what a formal debate in future universities might look like.

 

The proposer puts forward a motion to the House.

The opposer agrees with the proposer’s motion.

The proposer wholeheartedly agrees that the opposer was right to support the motion.

The opposer agrees that the proposer couldn’t be more right about agreeing that they were both right to support the motion.

When the debate is opened up to the floor, the audience puts it to the proposer and the opposer that it isn’t really a debate if everyone is just agreeing with each other.

The proposer and the opposer immediately agree to call security and have the audience ejected from the debating hall.

And so it goes on, until the motion is carried unanimously.

 

This was dismissed as “sneering” and, inevitably, “fascist” by a number of student commentators. Yet it was only a restatement of something that Orwell wrote in the unpublished preface:

 

. . . everyone shall have the right to say and to print what he believes to be the truth, provided only that it does not harm the rest of the community in some quite unmistakable way. Both capitalist democracy and the western versions of socialism have till recently taken that principle for granted. Our Government, as I have already pointed out, still makes some show of respecting it.

 

This is not always the case nowadays. It is always worth a comparison with the attitudes of other countries that we do not wish to emulate. The EU’s failure to confront President Erdogan’s closure of newspapers and arrests of journalists in Turkey because it wants his help to solve the refugee crisis is one such obvious example. An old German law to prosecute those making fun of foreign leaders was invoked by Erdogan and backed by Mrs Merkel. This led Private Eye to run a competition for Turkish jokes. My favourites were:

 

“Knock knock!”

“Who’s there.”

“The secret police.”

 

What do you call a satirist in Turkey?

An ambulance.

 

As Orwell wrote in even more dangerous times, again in the proposed preface:

 

. . . the chief danger to freedom of thought and speech at this moment is not the direct interference of the [Ministry of Information] or any official body. If publishers and editors exert themselves to keep certain topics out of print, it is not because they are frightened of prosecution but because they are frightened of public opinion.

 

I return to stating the obvious, because it seems to be less and less obvious to some of the current generation. This is particularly true for those who have recently become politically engaged for the first time. Voters energised by Ukip and the EU referendum debate, or by the emergence of Jeremy Corbyn as leader of the Labour Party, or by the resurgence of Scottish nationalism or by the triumph of Trump, have the zeal of the newly converted. This is all very admirable, and a wake-up call to their opponents – the Tartan Tories and the Remoaners and the NeoBlairites and the Washington Liberal Elite – but it is not admirable when it is accompanied by an overpowering desire to silence any criticism of their ideas, policies and leading personalities. Perhaps the supporters of the mainstream parties have simply become accustomed to the idea over the decades, but I have found in Private Eye that there is not much fury from the Tory, New Labour or Liberal camps when their leaders or policies are criticised, often in much harsher ways than the newer, populist movements.

 

 

So, when Private Eye suggested that some of the claims that the Scottish National Party was making for the future of an independent Scotland might be exaggerated, there were one or two readers who quoted Orwell’s distinction between patriotism being the love of one’s country and nationalism being the hatred of others – but on the whole it was mostly: “When if ever will you ignorant pricks on the Eye be sharp enough to burst your smug London bubble?”

Those who disagreed with the SNP were beneath contempt if English and traitors if Scottish. This was matched by the sheer fury of the Corbyn loyalists at coverage of his problems with opposition in his own party. When we suggested that there might be something a bit fishy about his video on the lack of seats on the train to Newcastle, responses included: “I had hoped Private Eye was outside the media matrix. Have you handed over control to Rupert Murdoch?”

Their anger was a match for that of the Ukippers when we briefly ran a strip called At Home With the Ukippers and then made a few jokes about their leader Mr Farage: “Leave it out, will you? Just how much of grant/top up/dole payment do you lot get from the EU anyway? Are you even a British publication?”

In 1948, in an essay in the Socialist Leader, Orwell wrote:

 

Threats to freedom of speech, writing and action, though often trivial in isolation, are cumulative in their effect and, unless checked, lead to a general disrespect for the rights of the citizen.

 

In other words, the defence of freedom of speech and expression is not just special pleading by journalists, writers, commentators and satirists, but a more widespread conviction that it protects “the intellectual liberty which without a doubt has been one of the distinguishing marks of Western civilisation”.

In gloomy times, there was one letter to Private Eye that I found offered some cheer – a willingness to accept opposing viewpoints and some confirmation of a belief in the common sense of Orwell’s common man or woman. In response to the cartoon below, our correspondent wrote:

 

Dear sir,

I suffer from a bipolar condition and when I saw your cartoon I was absolutely disgusted. I looked at it a few days later and thought it was hilarious.

 

Ian Hislop is the editor of Private Eye. This is an edited version of his 2016 Orwell Lecture. For more details, visit: theorwellprize.co.uk

This article first appeared in the 01 December 2016 issue of the New Statesman, Age of outrage