Brexit, Fraud, and Law - update

A little over a year ago, I posted something about someone who had set up a crowdfunder campaign to bring a prosecution over Brexit.  I was not impressed.  I concluded by saying that the person behind it, one Marcus Ball, "should think very carefully about whether to keep his campaign going".  Of course, I'm not pompous enough to think that my opinion on this stuff counts for much, or that it'd make any contribution, or that Ball would even have read the post.  But if everyone with a blog allowed that to stop them, there'd be nothing on the internet.

I thought I'd have a look at what he's up to now.  There's still a website, but the clearest updates seem to be on the crowdfunder page.   Ball reached his initial target, so one might wonder what progress he'd made in his case.  The answer would seem to be... er... not a heck of a lot.  It appears that he contacted some lawyers, who told him in January that he didn't have a case, and he then went back to them in February with a 25 000-word document and had persuaded them that he did after all by March.  He is, though, unclear about what the legal objections were, and about how he overcame them.  One wonders why, if he is that much more competent than the lawyers he's hired at the expense of 6 000 donors, he needed them in the first place; but that's for another day.  Since then, he's written for his lawyers another pair of documents; one is 22 000 words long, and the other 10 000 words.  They must love him.  He's now asking for more money (some of which will fund a salary for him).  Hilariously, after the latest update on the BrexitJustice crowdunder, he adds a note:

Charlie Gard: An Ethical Analysis of a Legal non-Problem

(This is an extended version of a post that originally appeared at EJIL: Talk!)

For those with an internet connection and an interest in current affairs, the story of Charlie Gard been hard to avoid recently. A decent précis is available here; but it’s worth rehearsing.

Shortly after his birth, Charlie’s health began to deteriorate, and he was diagnosed with a terminal and incurable mitochondrial DNA depletion syndrome. By March 2017, Charlie needed artificial ventilation, and doctors at Great Ormond Street Children’s Hospital (GOSH) applied to the High Court for confirmation that removing that ventilation would be lawful, having judged that it was not in his best interests. This was contested by his parents, Chris Gard and Connie Yates; the High Court ruled in favour of GOSH. This was confirmed by the Supreme Court and the European Court of Human Rights. During all this time, Charlie remained ventilated.

In the High Court, Mr Justice Francis said that his decision was subject to revision should new evidence emerge favouring continued treatment; in July, Charlie’s parents returned to the High Court, claiming that Charlie might benefit from an experimental treatment being offered by Professor Michio Hirano of Columbia University. However, as proceedings advanced, it became clear that Hirano’s proposed treatment had never been used on patients like Charlie, that he had neither seen Charlie nor read his notes when he offered the treatment, and that he had a financial interest in that treatment. The position statement issued by GOSH on the 24th July barely hides the hospital’s legal team’s exasperation. On the 24th July, Charlie’s parents dropped their request for continued treatment. The details of Charlie’s palliative care were still disputed; his parents wanted it to be provided at home, with ventilation maintained for a few days. The High Court ruled against this on the 27th July. Charlie was moved to a hospice; his ventilator was removed, and he died on the 28th July, a few days before his first birthday.

The way this case has played out has not been pretty. Elements of the American media (this piece is one among many) and the political right wing used it to launch attacks on single-payer healthcare systems:

Our hearts weep for #CharlieGard Our prayers are w/ him. Pls read & ask WHY govt should have power to decide who lives & dies. It's wrong. https://t.co/MsvoJBqJyO

— Ted Cruz (@tedcruz) July 24, 2017

Nigel Farage weighed in, complaining about the state taking away parental rights:

UK medical establishment closed ranks on #CharlieGard's parents & the state took away their rights. Change required. What a total disgrace. pic.twitter.com/TRBWWYTwJb

— Nigel Farage (@Nigel_Farage) July 24, 2017

From the left, Giles Fraser wrote that the case was being dealt with too rationally. None of these claims is justified, and many left-leaning people have been surprised to find themselves in agreement with Melanie Phillips on this matter.

Legally, the case was very straightforward.

Dunkirk, British, and the Germans

OK. So I went to see Dunkirk, because the reviews have been almost universally excellent, and because (a) it was endorsed by Nigel Farage, and (b) everyone pointed out that Farage had missed the point.  Farage missing the point is hardly news; but I wanted to see how he'd missed it.

 

(In what follows, there may be spoilers.  But since what actually happened at Dunkirk is a matter of record, and since there're no twists, I'm not too fussed about that.  I'll say a little about a couple of characters, but nothing that'll mar the film.)

Now, I can see why Brexiteers are getting all excited about the film.  Dunkirk is part of the British national story, and anything that tells a story about plucky British fortitude in the face of a threat from Ze Hun is going automatically to have them wanking themselves square then round again.  In other words, it matters little what the content of the film actually was: it'd've been coopted into the Brexit narrative somehow.  No contortion would have been too wild, because if you've got a fixed idea about that threat and a need for the British to retreat back to the safety of Blighty in the face of a threat from the Continent... well, you get the picture.

And I know I have an idée fixe about Brexit from the other side, too.  But this is my blog, so you'll have to lump it.

Anyway: back to the point I was going to make, which is that those Brexiteers have missed the point entirely.  Dunkirk's an avowedly anti-nationalist film.  And that's apparent from the first minute - from before any character appears on the screen.

The first thing we see is a one-sentence preamble telling us about how the British and French armies have been forced into retreat by "the enemy".  Note that Christopher Nolan doesn't talk about the Allied forces being forced into retreat by "the Germans" or "the German Army" or anything like that.  "The enemy" is in a way more menacing - but it's hard to see how it's anything other than a deliberate move so as not to name the Germans.  One might go a bit further, and infer that Nolan is indicating that Nazism was not German, or at least that there's a clear distinction to be made between what might have been done in the name of Germany and what was done in the name of the Third Reich.  There might be mileage in that - lots of contemporary Germanophiles thought so - but it's not a rabbit I want to chase here.  It's enough to point out that, in the most obvious way, Nolan has deliberately avoided making this a story about Germans and Englishmen.

Thus primed, I would encourage anyone who's not seen the film to count how many times the word "German" or its cognates is used.  I did: I think it's four.  In all cases (which appear over about 3 minutes in total), it's used as an accusation of untrustworthiness.  So far, so standard war-movie.  But it's always from the same character.   And that character is a terrified, paranoid, dangerous idiot, who is looking for someone to blame, and someone to shoot.

That is: the only person who makes a direct reference to Germans is someone with whom you wouldn't want to be in a confined space.  Other British characters are, by turns, doughty, brave, or - in a couple of cases - cowards.  In other words, they're exactly like most people.  They are not made saintly by dint of being British.

Now, there are atrocities committed by the enemy.  A ship that's clearly marked with a red cross is bombed.  I don't know if that happened in reality.  But even there, the bomb is from a machine.  We don't see the face of the pilot.  By and large, the enemy is unseen.  There is a brief moment when we see actual members of the Wehrmacht; but in that moment, when it would be very easy for them to kill a defenceless man, they don't.  They are not made evil by dint of being German.

In other words, the enemy can't be identified with a particular nation.  We know the origin of the enemy, but Nolan doesn't labour the point.  Nation doesn't really matter to the film he's made, which is about people in a situation behaving as people do.  He could have made appreciably the same film about any conflict, real or fictional.  Hell, he didn't even really need a conflict.  Except that, by making a film set in the second world war and not talking about nations or national character, he gives quite a clear message about nations and national character.

Quite clear, but not clear enough for some.  Farage doesn't really do nuance, and he can't really see beyond the nation.  It's little wonder he misunderstood what he saw.