Government's Northern Ireland Protocol Bill and domestic & international law

A few days ago — at the second reading stage in the House of Commons — the government secured a majority to abrogate the Northern Ireland arrangements under the Brexit deal. (It would appear that Former Prime Minister Theresa May condemned the Northern Ireland Protocol Bill as illegal and damaging to the UK's international standing. Mind you, she abstained from voting against the government?)

I have concluded that the Northern Ireland Protocol Bill is very damaging in terms of domestic law and, as far as international law is concerned, the treaty abnegations are apt to be regarded as unlawful. I will first introduce the essential background to the ongoing political issues with the remarks by Sir Jeffrey Donaldson, leader of the Democratic Unionist Party (DUP, advocating Northern Ireland's continuation as part of the UK). Then, I will discuss the troubling issues as regards domestic law before turning to the international dimension.

By way of introduction, the Northern Ireland Protocol is part of the Brexit withdrawal agreement which falls within the ambit of international law. The Northern Ireland Protocols were special rules concerning the need for a border with the European Union through the Republic of Ireland. This stems from protecting the spirit of the Good Friday Agreement which put an end to "The Troubles". 

The problem here is that the DUP have declined and vetoed the formation of Northern Ireland's power-sharing executive with Sinn Féin. They contend that the Irish Sea border undermines Northern Ireland's bearing in the UK.

What does Northern Ireland Protocol Bill seek to change

• "Regulation of goods: option to choose between dual routes" as either "a UK regulatory route or the EU regulatory route (or both) as respects regulated classes of goods" — section 7
• Treasury to be able to regulate Northern Ireland's "value added tax, excise duties and other taxes" — section 17
• Ministerial powers with regards to future Northern Ireland Protocol related matters: "Minister of the Crown may engage in conduct in relation to any matter dealt with in the Northern Ireland Protocol (where that conduct is not otherwise authorised by this Act) if the Minister of the Crown considers it appropriate to do so in connection with one or more of the purposes of this Act" — section 18
• Northern Ireland's courts and tribunals will not be bound by European Court — section 20
• Regulations under this Act will have the power and force to make "any provision that could be made by an Act of Parliament". This regulation may contradict any erstwhile Northern Ireland Protocol agreements (section 22(a)) and even our domestic law (section 22(b)) — section 22

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Tremendous government power and the separation of powers doctrine

The most surprising - and disturbing - element of this Bill is towards the end (under heading "Final provisions") . It is section 22. In that section, a minister of the government has the power to effect law-making regulation with "any provision that could be made by an Act of Parliament". These "Henry VIII powers" (as they are referred to) are very alarming. It would permit a minister to exercise a law-making competence which has the standing of primary legislation (without the express need or oversight of Parliament). 

An enduring aspect of our constitution is that ministers act within their discretion accorded to them by Parliament - not replace Parliament. Moreover, our uncodified constitution also preserves the separation of powers. In this context, it requires the executive and legislative organs of the state to be clearly divided to ensure proper control and accountability. This prevents the concentration of power. The problem with this Bill is that it accords a power to make provisions which have the standing of primary legislation - which can even amend that original nominal statute - without any further active recourse to Parliament.

One may ask: why on earth would any government bill accord an almost unconstrained ministerial discretion vis-à-vis creating a "provision that could be made by an Act of Parliament"? I smell a rat. Under the doctrine of Parliamentary sovereignty, primary legislation is the highest superlative body of law which cannot be overruled in our lands. Our courts - when confronted with primary legislation - endeavour to interpret that law. Not only do the courts not strike down an Act of Parliament; they don't even question the validity of an Act or inquire into its legislative process. (In legalese, this doctrine is known as the "Enrolled Bill Rule" as per Lord Campbell in Wauchope (1842) and affirmed recently by the Supreme Court in the famous HS2 Action Alliance case [2014] UKSC 3.) This fuzzing of the separation of powers may have been engineered to place the courts in the invidious position of having to interpret ministerial law-making provisions as though it were Parliament's by virtue of its designation as an "Act of Parliament" whose Parliamentary procedure was, as I explained, exempted from judicial scrutiny.

This strikes me as an authoritarian attempt to place the government beyond the purview of the courts. In Miller II, Boris Johnson's government argued that prorogation was a non-justiciable exercise of a prerogative power (i.e., that prorogation was not a proper subject for the courts). However, the Supreme Court held that it was alien to our constitution to have an executive power that was unaccountable to the other organs of state - especially Parliament (having been obviously prorogued).

In the aftermath of Miller II, Lord Sumption endorsed the judgment observing that we should be concerned with the process - not the politics. He commented inter alia that: 

"the court's judgment, however, is concern not with the political issues of Brexit but with the process by which those issues are to be resolved." (The Times: It's about the process, not politics).  

I suspect that this Bill is will be a licence for the government to do what it can to negotiate a better protocol deal for Northern Ireland. But, as Lord Sumption remarked, we should be very concerned about the process - and not the politics.

The ongoing debate and strife concerning the legal structure governing Northern Ireland is a deadlocked fiasco and the British government is still navigating the crisis. But, it does strikes me that this is a subject that demands the participation and oversight of our Parliament. Ministerial discretion covering a substantial issue of national importance should be subject to proper Parliamentary accountability and scrutiny. Not to mention proper judicial oversight.

The doctrine of necessity and international law

Interestingly, the government has published it's legal position. The Attorney General's legal justification relies on Article 25 of the UN-based International Law Commission 1948 and the "doctrine of necessity" which the Attorney General maintains is "a clear basis in international law to justify the non-performance of international obligations".

Under Article 25, the circumstance of necessity involves satisfying the following criteria:

1. Action must relate to safeguarding an "essential interest" of the State
2. Interest must be subjected to a "grave and imminent peril"
3. Action must have been "the only way" to safeguarding that interest
4. Action should not have "seriously impaired an essential interest" of the other State
5. Obligation must not expressly excluded the defence of necessity
6. State invoking necessity must not have contributed to or caused the situation

In the Danube Dam case, Hungary and Czechoslovakia signed the Budapest Treaty of 1977 to construct a vast barrage project on the Danube to produce hydroelectricity. Later, Hungary abandoned its role in the project and submitted the dispute to the International Court of Justice on the grounds "of ecological necessity" to avert serious water supply damage and destruction of the aquatic marine environment. The Court held (in paragraphs 51-52) that: 

The Court considers, first of all, that the state of necessity is a ground recognized by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation. It observes moreover that such ground for precluding wrongfulness can only be accepted on an exceptional basis. The International Law Commission was of the same opinion when it explained that it had opted for a negative form of words in Article 33 of its Draft

"in order to show, by this formal means also, that the case of invocation of a state of necessity as a justification must be considered as really constituting an exception - and one even more rarely admissible than is the case with the other circumstances precluding wrongfulness.. ." (ibid., p. 51, para. 40).

Thus, according to the Commission, the state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied; and the State concerned is not the sole judge of whether those conditions have been met. (Emphasis added)

While the state of Northern Ireland is undoubtedly an "essential interest" of the UK (point no. 1); Northern Ireland would most probably not be regards as subjected to a "grave and imminent peril" (point no. 2). In the eighteenth-century Neptune case, an American-registered vessel on voyage to France was captured by the British and its cargo seized. The British government justified the seizure on the grounds of necessity a propos being "threatened with a scarcity of those articles". It was dismissed as being imaginary and neither real nor pressing. In this case, "grave and imminent peril" translates as a situation of danger to the State or its population. 

Northern Ireland is beset by political crisis - but its citizens are not in any danger. Neither Sinn Fein nor the DUP have suggested a return to 'The Troubles'. The DUP merely have to assent to the election of the Stormont Assembly Speaker Michelle O'Neill. As with the Neptune case, the present crisis would probably not meet the standard of a "grave and imminent peril". Even if assuming that Northern Ireland was in peril, how would such disparate addenda (such as the authority of the European Court) assuage this "grave and imminent peril"? The very fact that tax-related regulations and the Luxembourg Court are also being repudiated would — to my mind — militate the ostensible "grave and imminent peril" claim. At any rate, there is little point in proceeding with the other criteria as we have hardly satisfied this point.

My hunch is that the government's attempt to manoeuvre via the doctrine of necessity to renege on treaty obligations would probably fail. It would most likely engender certain diplomatic and political blow-back.

Dominic Raab’s “Bill of Rights” Bill and the Constitution and human rights

Justice Secretary Dominic Raab has recently announced the government’s intentions to reform the structure of the courts in our Constitution with regards to the protection of human rights in Britain.

I have had a brief read through it (only takes 30 mins or so), and I would like to share a few of my thoughts on some interesting aspects of the Bill. I do not believe that it is possible to be a signatory of the European Convention without being bound by its Strasbourg Court. Therefore, if the government intends to repeal the Human Rights Act 1998, I argue that it should also withdraw from the European Convention on Human Rights. Lastly, I end with a discussion on an interesting miscellany of legal concepts that hinge on the relationship between Parliament and the Courts. I hope you enjoy.

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Purpose

“Bill of Rights is intended to repeal and replace the Human Rights Act 1998” — [1(1)]

“This Act clarifies and re-balances re-balances the relationship between courts in the United Kingdom, the European Court of Human Rights and Parliament” — [1(2)]

It seems that we are not withdrawing from the European Convention. From what I have seen, the Convention rights are listed in the schedule which seem to replicate the present configuration. Other uncontroversial aspects (such as definition and obligation of public authorities) remain analogous.

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Are British courts bound by Strasbourg

“The Supreme Court (and not the European Court of Human Rights) determines the meaning and effect of Convention rights for the purposes of domestic law” — [1(2)(a)]

“The Supreme Court is the ultimate judicial authority on questions arising under domestic law in connection with the Convention rights” — [3(1)]

This is intended to counteract section 2 of the Human Rights Act 1998. Under section 2, the UK courts have a duty to “take in to account” Strasbourg decisions. Of course, in practice, the question is what does this entail? It was never very clear. On one end of the spectrum, in Ullah [2004] UKHL 26, Lord Bingham argued that “national courts [have] to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less”. However, more recently, in Pinnock [2010] UKSC 45, Lord Neuberger held that while domestic courts normally follow clear and constant Strasbourg jurisprudence, they do not have to so if Strasbourg was wrong.

The intent here is to make Strasbourg jurisprudence persuasive — but not binding on the British courts. This seems sensible and may clear up a bit of confusion inherent in section 2 of the Human Rights Act. Moreover, on the face of it, this should also be inoffensive to the Strasbourg court as the development of our British jurisprudence should be in line with their own doctrine of the margin of appreciation.

However, there is an insuperable contradiction which I don’t think has been addressed in this Bill. The European Convention is ultimately a subject of international law. The Convention was never incorporated into UK law until the Human Rights Act 1998. Until then - as a signatory state - the UK was bound to the terms of the treaty under international law. Only until the Human Rights Act, were rights conferred on individual citizens. Until then, UK citizens had to exhaust all domestic remedies (through the entire UK legal system) before a case reached the Strasbourg Court. Therefore, disregarding the rulings of the Strasbourg Court would still put the UK in violation of the international treaty under this Bill. Under Article 46 of the Convention, the Committee of Ministers would be able to commence proceedings against a member state which failed to comply with a judgment of the Strasbourg Court.

Under the doctrine of Parliamentary sovereignty, the UK courts could decline to be bound by a judgment of the Strasbourg Court and it would have no effect in domestic law. Notwithstanding a decline in (let’s say) international reputation and standing, the UK government would suffer penalties as reparation for consequences of the breach. On that footing, the UK government might as well just secede from the Convention. One cannot be a signatory to an agreement whilst also not wishing to be bound by its terms.

The heart of the problem is the constitutional legitimacy of the Strasbourg Court (in its “development” of Convention jurisprudence) via the “living tree” doctrine. I think it is unacceptable for a foreign court to assume its own jurisdiction unilaterally.

In Lord Sumption’s “Trials of the State”, he outlines how the Convention has — after the UK’s accession — morphed into a very different species in which the Convention has been expanded and adapted in ways not originally anticipated, or understood, when the UK signed up. Notably, Article 8 has involved the Strasbourg Court broadening the range of interests and rights falling under the “principle of personal autonomy”.

The Convention was originally conceived as a partial statement of rights universally regarded as fundamental: no torture, no arbitrary killing or imprisonment, freedom of thought and expression, due process of law and so on. It was not originally designed as a dynamic treaty. It was the Strasbourg court which transformed it into a dynamic treaty in the course of the first two decades of its existence. Its doctrine has been that the Convention is what it calls a ‘living instrument’. The court develops it by a process of extrapolation or analogy, so as to reflect its own view of what additional rights a modern democracy ought to have.

The law that has emerged from this system is applied by the Strasbourg court in all forty-seven countries that have signed up to the Convention, with only very limited allowance for differences between their moral values, their political culture or their institutional traditions. Indeed, as a result of a series of controversial decisions of the court, parts of it are applied to military operations by Convention countries in non-Convention states such as Iraq and Afghanistan for which the Convention was never designed and to which it is ill adapted.

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The relationship between the judiciary and Parliament — interpreting the Convention & declarations of incompatibility

“no longer required to read and give effect to legislation, so far as possible, in a way which is compatible with the Convention rights” — [1(2)(b)] 

“Give the greatest possible weight to the principle that, in a Parliamentary democracy, decisions about the balance between different policy aims, different Convention rights and Convention rights of different persons are properly made by Parliament” — [1(2)(b)]

Under Section 3 of Human Rights Act, the UK court’s ordinary rules of statutory interpretation were expanded such that a court can deviate from the ordinary interpretation of language in a statute to avoid clashes with the Convention. In Wilkinson [2005] UKHL 30, Lord Hoffman held that section 3 created a form of statutory construction with the presumption that Parliament intended not to interfere with Convention rights. Whilst this may have effected a dilution in the practical reality of parliamentary sovereignty, the standard law-student’s rejoinder was that such an arrangement was parliament’s mythical intention. From this Bill, it would seem that such abstract presumptions about parliamentary intention would no longer be valid and, accordingly, the modern practice of purposive statutory interpretation would, in this vein, no longer be tenable. 

But, it is worth asking whether the genie is out of the bottle? In Evans v Attorney General [2015] (‘Black Spider Memo Case’), the Supreme Court effectively re-interpreted a statutory provision to introduce various ‘constitutional’ considerations which went against the plain intention of Parliament. The logic here seems to be to “give the greatest possible weight to the principle that, in a Parliamentary democracy, decisions about how such a balance should be struck are properly made by Parliament” [7(2)(b)]. If so, then I do agree with such an objective. It strikes me as a healthy and salutary attempt to increase Parliamentary scope (and thus raising the legitimacy) in the gamut of political issues that reach the court.

In addition, the corollary would be an increased expectation that the High Court would issue more “declarations of incompatibility”. These are fairly innocuous procedures intended to alert Parliament to amend or repeal the offending Act — if Parliament chooses to do so. What is interesting is that the government is entitled [11(2)] to notice and to be joined as a party to the proceedings. Again, nothing controversial here.

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Update (2nd July 2022): Adam Tomkins has written (The Herald) defending the repeal of the Human Rights Act 1998 arguing that “our civil liberties are better protected by parliamentary legislation than by judicial decisions”. Also “I do not want to live in a country where rights and freedoms are the playthings of judges. I want to live in a country where their articulation and defence is a matter for Parliament”. 

US Supreme Court judgment: Dobbs v Jackson Women's Health

This week has been very interesting. The US Supreme Court — in Dobbs v Jackson Women's Health — has overturned the famous Roe v Wade judgment. 

I have read the abridged Dobbs judgment (which was succinct and straightforward) and then went to Roe briefly and the Fourteenth Amendment to double-check for myself the reasoning and logic. 

I think I provisionally agree with the direction of the Supreme Court in Dobbs. 

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The Roe precedent

In Dobbs, the Supreme Court held:

The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.

On examining the logic of Roe (which, from the perspective of English law, included an analysis discussing Sir Edward Coke, Sir William Blackstone, and the Abortion Act of 1967), it seems that the contemporary concept of "privacy" underpins the framework of abortion which, in turn, stems from the Fourteenth Amendment. It finds that:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law ...

The problem has been that to "deprive any person of life, liberty, or property, without due process of law" does not readily transpose an explicit "right to privacy" within the Constitution – much less a right to abortion. In Isaiah Berlin's Two Concepts of Liberty, he distinguished between positive and negative liberty. Negative liberty is the freedom from coercion, interference, arbitrary authority. Positive liberty is freedom to do things, i.e., a right in a given society that resources shall be provided to enable a person to enjoy that liberty. 

The US Constitution was designed and drafted to provide various restraints on the power of governments. Its construction was steeped in that of negative liberty. So, the 1st Amendment, as an example, provides that the government cannot restrict the freedom of one's religion, speech, and whose to whom one associates. The 5th Amendment provides that the government cannot compel a person to reveal their private thoughts. In Roe, the Supreme Court deduced that a right of privacy "emanates" from the aforementioned amendments and the case law. However, I think such a formulation is forced and incongruous with the construction of the Constitution. 

Moreover, it is worth noting that Roe did not make abortions legal. It merely held that is was unconstitutional for abortions to be illegal. The finding that the "Constitution does not confer a right to abortion" seems quite plain.

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The Supreme Court as a law-making body

The Court held that the "authority to regulate abortion is returned to the people and their elected representatives". To my mind, this transfers the thorny subject from the legal realm into a political issue for the legislature to grapple with.

In any democracy, judge-made law suffers from an inherent problem of legitimacy and is apt to engender blow-back. In common law systems, the courts are not law-making bodies. They do not exists to create law. Instead, they interpret, weigh, and apply law created by the legislature. 

If the US Supreme Court creates a new law establishing a new legal standard; then any law passed by a state conflicting with it are apt to be struck down. Constitutional amendments can override US Supreme Court decisions – but it requires two-thirds majority of Congress. Because the US Supreme Court was not envisaged as a law-making body, there exists no feasible means to change law the Supreme Court had made.

In Lord Sumption's book Trials of the State, his Lordship articulated the effects of judge-made law on controversial political issues and specially referred to abortion debate in the United States and the Roe case;

The chief function of any political system is to accommodate differences of interest and opinion among citizens. Resolving these differences by judicial decision contributes nothing to that end. On the contrary, characterising something as a constitutional right removes the issue from the arena of political debate and transfers it to judges. In the United States, it does this irreversibly, unless the Supreme Court changes its mind, or the constitution is amended. The debate about abortion conveniently illustrates many of these themes. I am in favour of a regulated right of abortion. But I question whether it can properly be treated as a fundamental right, displacing legislative or political intervention. Abortion was once just as controversial in Britain as it is still in the United States […] I suspect, although I cannot prove it, that one reason why abortion remains so controversial in the United States is that it was introduced judicially: i.e., by a method that relegated the wider political debate among Americans to irrelevance. This has distorted American politics by turning Presidential elections into a contest for the power to appoint politically dependable justices to the Supreme Court.

In Roe, the rationale of Justice Blackmun (writing for the majority) was to devise a whole cloth scheme around the trimester system (pregnancy divided into three categories). According to a trimester period, the law may be legal, illegal or up to the state. But, that is fundamentally arbitrary. There is no more good reason for dividing a pregnancy into three categories than four or five (let's say). Because Justice Blackmun's rationalisation took the form a Supreme Court judgment; it meant that, for all practical purposes, everybody was stuck with it. People who may have felt that abortions should be more freely available were hampered by Roe which ossified the debate. It is interesting that Justice Ruth Bader Ginsburg also appeared to have also thought that Roe was wrongly decided.

Striking down Roe perhaps may turn out to be the best thing for the abortion debate in America. Now states have to implement policies based on the broad views of the polity. One of the most striking aspects of abortion subject is how the radicals on both ends of the political spectrum have hijacked and dominated the debate for so long. 

In truth, as with own position in England, most people are quite reasonable and are prepared to compromise somewhere in the middle. Abortion, for all of its ethical dilemmas, is not going anywhere. I fully expect, over time, the subject on the political landscape to improve and calm itself. In the meantime, America now has to navigate through the political landscape that once animated quondam eras of British life on the abortion debate.

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Update (3rd July 2022):

Boudreaux (see below, from The Sunday Telegraph) commenting:

The ultimate question before the court in both Roe and Dobbs was not the normative one of whether or not American women should have legal access to abortion. Instead, the question was one of fact, namely: does the US Constitution protect the right to abortion? Roe found that it does; Dobbs found that it doesn’t.

Lord Sumption's piece (Politics undermines legitimacy of the US Supreme Court) had some interesting points: 

There is no legal principle capable of resolving this debate. The circumstances in which the question arises are too varied to admit of a single answer. The views of individuals will depend on their moral values and on the intensity of their emotional commitment. A judge faced with such a question is no better off. They have no juridical tools at hand with which to resolve the conflict. They have only their personal moral and emotional preferences. Behind the structured legal arguments in last week’s judgments, it is not difficult to discern that the real difference between the justices and their predecessors in 1973 was that they had different preferences. The majority were conservative Republican Catholics, whereas their predecessors were liberals. Nothing else has changed. It is difficult to regard a decision as law that is so sensitive to the feelings of nine individuals. That applies as much to the original Roe v Wade ruling as to the decision to overrule it. Both are politics in solemn tones and black robes. The vice of judicial legislation in a democracy is that it makes law in a way that renders the opinions of the electorate irrelevant. When the courts profess to be interpreting the constitution, the result is also immune from political change, barring a constitutional amendment or a judicial change of heart. (Emphasis mine)

Review: BBC drama Four Lives – serial killer Stephen Port

I finally got to watch BBC drama Four Lives which was the story surrounding the serial killer Stephen Port and the lives of four gay men that he ended. 

I really must recommend it. Not sure if I can say I "enjoyed" it — but I found Stephen Merchant's performance really very interesting and quite absorbing.

Stephen Port is shown to be a somewhat emotionally-inert human being, lacking social awareness and graces, and an exceptionally monotonous and banal person. He spends most of his day in house and hardly does anything. It's interesting that he has only one friend; and when they meet-up at their local cafe for a chat, Port talks about his collection of Transformers (which he trades?) whilst sipping a glass of Fanta. I noticed the Fanta on two separate occasions which made me ask myself how often I've seen a grown adult drink Fanta. There is something tragic about Port. (I wonder if Stephen Merchant subjected his eyes to something to give them that red sanguinary look). 

Moreover, he isn't intelligent or perceptive. It was not as if Port eluded or dodged the police. He used his smartphone to dial 999 to report the first dead body which (in my view) easily confirms his numb and/or dormant intelligence. In court, he appeared not to have considered his version of events sufficiently or deeply to withstand cross-examination. At times, he could not properly answer simple questions put to him. 

Much has been made in the press about the latent homophobia of the Met (for example, the late Deborah Orr of The Guardian). I suspect the Stephen Lawrence case has calcified a perception about the police as being prejudicial. In Four Lives, there was nothing to suggest why the officers were incompetent — or even discourteous (especially to Sarah Sak).

My hunch is that it may come down to a lack of resources to do old-school police work. In the BBC drama, the two officers appear to have spent most of their time hunched at the tables filling out forms.

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BBC News Update: The way Metropolitan Police initially handled the deaths of four men murdered by serial killer Stephen Port is to be reinvestigated by the police watchdog. A solicitor representing the families said they believed the police's actions were "driven by homophobia".

Review: Everything Everywhere All At Once – an exhilarating masterpiece

Have you ever laughed so hard – you started convulsing and shouting?

That is Everything Everywhere All At Once. 

I shrieked in laughter and convulsion, wept and sniffed in the deep poignancy of the denouement, and gasping in despair and shock. And I don't mean the dignified type of laughing – I mean the misshapen monstrous type of laughing!

This movie is an exhilarating rollercoaster. It plunges the viewer across the gamut of emotion - guffawing at the absurd and teary at the beautiful and profound. 

I left the movie theatre glowing and beaming with joy and convinced it was one of my favourite films of all time. This film has reminded me what movies can do – make us feel like children again.

Let me explain something. I am the worst type of viewer – sceptical, incredulous, impassive. I cannot watch a movie without quietly raising an eyebrow as I picking holes in the plot, or roll eyes at soporific dialogue, or grunt at CGI-overreliance etc... But I was spellbound and transported away by its originality, chaotic filmmaking and deeply-moving elements of the modern human condition. The film is immersive and its underlying subject really hit home. Michelle Yeoh was marvellous.

Please go and watch it on the the big screen while you still can. 

I feel bad for people who don't get to see it.

Review: Decline and Fall by Evelyn Waugh

This novel is a creature of its time. It does not translate so effortlessly to a twenty-first century audience. But, it's certainly fun and witty; and it goes some way to rehabilitating Waugh. Given this is his first novel, I am intrigued to review his later works. 

There are no heros in this novel. Pennyfeather is the canvas of novel's characters' villainy, pretensions, and deficiencies. He is ridiculously naive and credulous; and projects Waugh’s satire and caricature. Pennyfeather fills the novel with his wit and chuckles. That wit is sometimes undercut by an enduring sense of tragedy (Lord Tangent’s death, as an example). 

Waugh's BBC interview depicts a somewhat stout if not cantankerous old bean; but I think he's most famously known as a very religious Catholic. Thus, the novel is quite surprising. Waugh is full of the joie de vivre and lampoons 1920s British society for its hypocrisy and hollowness of ideals and values.

It is interesting that his novel was dedicated to his contemporary Sir Harold Acton. Researching this chap a bit, it seems that he was a famous gay member of the Hypocrites Club; and that he may have had an affair with Evelyn Waugh. If so, it makes the book dedication very sweet. Its a fascinating aspect of Waugh before his later religiosity. (On the subject of religion, in Decline and Fall, Grimes hints at the interface of the religious instinct and sexual repression — a very interesting observation.)

At the end of the novel, there is an enigmatic allegory between life and riding a great wheel at a park. I have not been quite sure what Waugh was hoping to convey. Pennyfeather ends up where he started. Captain Grimes appears to have two resurrections. Is Waugh arguing that life is roundabout and circular?

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Decline and Fall by Evelyn Waugh

(Penguin Books 2012)