What's in a nonce's name?

On 'Della's law', and being a liberal who is against this sort of thing

Apologies for having missed last week’s post. Blame the Assisted Dying for Terminally Ill Adults (Scotland) Bill for me not having something prepared ahead of time, and the enjoyability of the Attic sun for my lack of motivation to catch up after the fact. Hopefully I’ll write a bonus post at some point to make up for it.

An underremarked-upon campaign in England and Wales, which may or may not have an impact here in Scotland and over in NI as well,¹ is the push for ‘Della’s law’. Like all campaigns to introduce a law named after a child with a sad story, this campaign (spearheaded in Westminster by Sarah Champion MP) is illiberal, simplistic, and ill-thought-out—and, like all such campaigns, it is almost certain to succeed.

But despite (indeed, perhaps because of) the relative unimportance of the change proposed, I find this campaign particularly odious and offensive. It strikes right at the heart of a freedom that has long made me proud of this country, a rare unqualified and complete freedom that has allowed me to believe—for all the counterevidence, all the Public Order legislation and police powers and coercion—that in the modern UK there is still a rump of English liberty left to treasure. ‘Della’s law’ would destroy this unqualified right completely, moving the remnants of liberty into the realm of bureaucratic oversight and legal straitjackets. When ‘Della’s law’ comes into force (as I am sure it will), I doubt many will notice; but that, in itself, is a depressing comment on the state of English liberty.

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Currently, everyone in the United Kingdom is completely free to use whatever name they wish, for whatever lawful purpose they want, in whatever circumstances they want.

Everyone, of course, starts with the name their parents give them. But the process to change that name as an adult is very simple: you just decide to change your name, and start using a new name, and legally you have changed your name. That’s it! That is the full extent of the law around name changes—legally speaking, your name just is whatever name you have chosen to live under, and can be changed at will.

Now, it is of course illegal to use a different name for the purposes of deception or criminality. If a fraudster gets out of jail and changes his name in order to engage in further fraud without being noticed, that name change will not be legally recognised. But that’s exactly the point: the only restrictions on your freedom to change your name are the restrictions already imposed by law. So long as you are otherwise acting lawfully, you will not create additional legal trouble for yourself by changing your name. A fraudster who gets out of jail and changes his name to avoid the papers finding him, so he can live a quiet, rehabilitated life, is fully entitled to do so.

People are sometimes surprised to learn that names in the UK are changed at-will, because they have heard of changing one’s name by ‘deed poll’. But a deed poll is (essentially) just a useful document to refer to when proving to institutions that you are not trying to deceive them, that you really are living under the name you provide. The DVLA might ask for a deed poll if you ask to change the name on your driving license, not because the deed poll is necessary for your name change to be legally valid, but just because they want to make sure you’re not committing identity theft.

But even this aspect of the process is simple and maximally unobtrusive. For example: you can, if you wish, ‘enroll’ your deed poll and place it in the public record. But you may wish not to do that, for whatever reason; and you are entirely free not to, to keep your deed poll a private matter between yourself and your solicitor. You do not have to publicly record your name change, or explain it to anyone, if you do not want to.

The name of a British citizen is thus a matter of complete and utter freedom. Every single step of the name-change process is conducted in perfect liberty, to do or not do as the individual sees fit. Bureaucracy is kept to a minimum, and insofar as it encroaches—as is inevitable in the modern world—the overlap is explicitly drawn so as to maintain privacy and give the individual power over the process. Emerging out of common law, but upheld and protected by subsequent statute,² the freedom to choose one’s name in the United Kingdom is absolute.

So what is ‘Della’s law’? It is the proposal to destroy this freedom.

I don’t mean to be hyperbolic, but that really is what it is. The campaigners for ‘Della’s law’ have not actually been all that consistent on what specific changes to the law they want to see made; but all their suggestions have involved removing, reducing, or bureaucratising the right to change one’s name.

The argument made by campaigners is that there is supposedly a ‘loophole’ in the current law. Sex offenders (and, I presume, other criminals, but you’ll always get a hearing in British politics if you raise the spectre of paedos) can change their name via private deed poll, then use their new name to dodge parole conditions or commit further offences. This ‘loophole’, campaigners argue, needs to be closed to protect vulnerable people, especially children (again, the mention of ‘safeguarding’ gets you a guaranteed hearing in British politics).

Of course, as should be apparent, this is not a loophole: changing your name in order to dodge parole or avoid police attention is already invalid and already illegal. I do not doubt that some people are ignoring the existing law, but criminals can always simply ignore the law—and indeed, they do ignore it, that’s the definition of ‘criminal’. The mere fact that murders occur is not evidence of a ‘loophole’ in murder law; and likewise, the mere fact that offenders on parole change their name to deceive the parole system is not evidence of a ‘loophole’ in the right to change one’s name freely for lawful purposes.

Nonetheless, it might be true that enforcement of the current law is imperfect, and lots of criminals are dodging parole conditions by changing their names. Equally, it might not be true! I’ve seen a small number of tragic anecdotes wheeled out over and over, but (as I will mention again below) no actual data suggesting that this is a widespread problem. But let’s grant for the sake of argument that there is a problem. Still, one might think that the obvious solution is better monitoring by police and parole officers.³ Why jump straight to undermining a basic freedom?

In fact, for all that campaigners claim that they are just closing a ‘loophole’ in law around the freedom to change one’s name, they are in fact fundamentally opposed to the freedom itself. The Safeguarding Alliance (the campaign group that’s led the charge here) has been entirely blunt about this: the current process for changing one’s name is ‘too simple, inexpensive and unregulated’. It must be made more complicated, more expensive, more regulated—in other words: less free.

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This proposal is particularly odious to me because the freedom to change one’s name is one I have long cherished. Not that I have ever taken advantage of it (indeed, even my wife did not take advantage after we got married, the most common use-case), but indeed that is partly the point. Even if it is a minor right, and not one that most of us have any reason to use, the purity and absoluteness of this freedom is a symbol of the tradition of liberty that is one of the proudest parts of British legal and political history.

By referring to a ‘tradition’, I do not mean to indulge in crudely Whiggish history. The freedom to change one’s name, whatever its long-term roots, has not come down to the modern day directly from from the ancient constitution or 1688 without any fight. It was suspended during the second World War as part of the logistics of ration books (which were tied to individual names). Temporary coercive measures during wartime are common but often necessary, so long as they are indeed temporary, which this one thankfully was. More serious was the ban that started during the first World War but persisted until 1971, whereby the right was suspended for foreigners in Britain.

No, my point is precisely that Britain has a long cross-party tradition of fighting for freedom. The xenophobic limit on this right was opposed and eventually defeated. Much of what was described as ‘English liberty’ arose from a tradition of watchfulness: of campaigning for civil liberties, forcing them into legislation, and (in particular) of ensuring that they were universal and absolute, taking away the twin powers of discretion and conditions from the state.⁴

The right to change one’s name at-will is intimately tied to opposition to state-mandated ID cards, which if introduced would (of course) enshrine one particular name as yours, with any change conditional on the approval of a bureaucrat. The anti–ID card campaign is one with deep and wide roots in British history; the most recent attempt to impose ID cards during peacetime was famously killed by the famous words, ‘I am a liberal, and I am against this sort of thing.’ It’s a key symbol of the tradition of English liberty.

Of course, the right to change one’s name is also very useful to a whole range of people. As a recently-married man myself, the benefit to newlyweds of avoiding yet another bit of bureaucracy cannot be overstated. Those who adopt noms de plume have an easier time with taxmen and landlords.

More politically and morally significant cases exist, too. Trans people have an obvious interest in this liberty. Irish people who decide that they want to start using the Irish version of their name (or whose Irish name was not registered at birth, for cough whatever reason) have used this right to avoid having to justify their politico-cultural views to an agent of the British state, which they almost certainly have (at best) an ambiguous relationship with. Women running from abusers, people trying to leave controlling religious organisations, rehabilitated criminals out of prison—all groups that have found utility in quiet, easy, at-will name changes. I could go on.

But I shouldn’t have to. More fundamental than any particular use to which the freedom might be put is the freedom itself—the fact that I am an adult, and so long as I am not breaking the law, I should be able to make my own judgments without the demand that I explain myself to the state. This is not a fetishisation of the word ‘freedom’: it is precisely generality that makes freedom so useful to such a wide range of people, ensuring its reach is not limited to what politicians have foreseen. Often, once you are at the point of enumerating cases, liberty has already been lost, as the question becomes regularised and bureaucratised. A list of use-cases can easily be turned into a list of exceptions to the state’s power, as a ‘compromise’ sop from the authoritarians.

The defenders of English liberty today are few, and their tradition has been retreating for many decades. Their most famous recent victories (on Scottish football and English public order) consisted merely in toning down and rolling back authoritarian laws, not progressing their own cause, while what was perhaps their best campaign of recent decades ended in defeat. But their past glories are still visible in some areas of our law and politics.

My earliest memory of forming a political opinion is of hearing from a schoolfriend that Britain has an absolute right of at-will name change, and thinking, ‘that is really smart’. The tradition of English liberty is still gloriously alive when it comes to names. It’s a minor freedom in the grand scheme of things; but its importance, practically but also symbolically, should not be underrated.

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Still, as every first year politics student knows, complete and total freedom for everyone is unachievable. All of life is trade-offs, rights and liberties regularly come into conflict, and nothing is absolute. After all, when criminals are sentenced, we remove many other liberties from them (when we send someone to prison, they are deprived of their liberty); so why not the freedom to change names?

It is entirely correct that a proposal that involves a cost to someone’s freedom is not ipso facto unjustifiable. But the idea that liberty is to be treasured, if it means anything, means the demand that any such proposal must be justified, that the burden of proof is on the advocate of restrictions. Again, this is not out of a fetishisation of the very idea of ‘freedom’, but out of a desire to provide people with meaningful space within which they can live their own lives, free from the burden of having to legitimate their own decisions to judges and politicians and bureaucrats.

So, can Della’s law be justified? Well, maybe. I don’t know!

The report from the Safeguarding Alliance that kick-started this campaign is being kept secret, provided only upon request and subject to extensive ‘due diligence’ on the requester. The evidence base for the proposed change is thus kept entirely out of the public eye, with scrutiny and criticism rendered almost impossible: any attempt to dispute the facts can be dismissed with reference to evidence that only one side of the debate has access to.

In such a situation, reasonable people should be deeply sceptical that there really is a widespread problem of sex offenders changing their names in order to commit further offences. We shouldn’t become dogmatically certain that the opposite is true, that there is definitely no problem. But in the absence of any evidence being provided to the public we should at very least suspend judgment, and certainly not undermine a centuries-old liberty on the basis of data kept entirely hidden from view.

Even without trying to second-guess the contents of the report, I tentatively might go further than just suspending judgment, and suggest that the campaign is making some fundamental mistakes about how and why sexual offending happens: associating it with fundamentally evil, unreformable predators who are willing to orient their entire lives around offending (by e.g., changing their names), rather than something that primarily happens within existing relationships as a result of the offender taking advantage of power given to them by those relationships.⁵ So soon after a certain Northern Irish man has been arrested for certain alleged deeds,⁶ it should be painfully obvious that sex offenders rarely upend their entire lives to offend, because (sadly) they rarely have to. A law that further reinforces the preconceptions that were already being mocked in Paedogeddon! could be, not just useless, but actively dangerous by distracting policymakers from the real risks and the real questions.

I might be wrong about this—I don’t have access to the data. Maybe name-changing nonces really are a major problem, and maybe there really is reason to think that better parole monitoring alone could not solve that problem. But that is exactly the point: we’re all at the level of ‘maybe’. There simply is not enough information for a sensible debate to be conducted in the public eye.

Which makes the all-but-guaranteed success of the campaign all the more depressing. In 1741, David Hume wrote that England was ‘obliged, for its own preservation, to maintain a watchful jealousy over the magistrates’. Today things are quite different. Not only are British citizens not jealous of their liberty, they seem actively keen to throw it away. When faced with a problem that might not even be real, and that (if it is real) has more than one possible solution, the immediate reaction is to kneecap freedom. Better to hand control over to the magistrates and civil servants than have to share one’s freedoms with sex offenders and immigrants.

The dominant tendency of today’s British politics is to regulate, to bureaucratise, to veto; the dominant assumption is that all of life is ‘too simple, inexpensive and unregulated’. ‘Della’s law’ is hardly the most dangerous or harmful example of this trend, but it is a particularly pure example, and one that has made particularly clear the degree to which the historical traditions I hold dear are alien to modern Britain.

1. Scots lawyers get in touch—the Westminster briefings and information resources I have found on this topic, like basically everything written in London, are premised on the assumption that ‘English law’ and ‘law’ are synonyms.

2. With one major exception, mentioned below.

3. And, in certain cases (see note 4 below), fewer crazy decisions from judges and social workers—a change we most certainly have independent need for.

4. I use the adjective ‘English’ deliberately, as Scotland’s traditions here are very different. For example, for all that I cite Hume below, the Enlightened Scots had little truck with this way of thinking about liberty; their stories about the history of freedom moved the focus elsewhere, and their ideas of freedom were quite a bit more sceptical. The tradition I am discussing is a particularly English (and, in many ways, Italian) contribution to British political life.

5. The story of the eponymous Della is one where the offender had been invited into the vulnerable child’s house to become her primary caregiver; without knowing the full details of the story I cannot say for sure, but it certainly seems plausible that in this case the fact that the offender had changed his name was basically incidental (or maybe even irrelevant) to his capacity to offend.

6. Taking all possible precautions to avoid trouble with the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022.