'There ought to be a law against it'
There probably is, says John Fitzpatrick, and if there isn't, there
soon will be
There it was again, on the front page: 'Union chiefs, furious about the
sackings, said writs could fly.' Writs! Not a strike, a go-slow,
an occupation, hardly even a protest. Just 'you'll be hearing from our solicitor'.
If anybody has a problem these days, from women with porn to the home office
with joy-riders, the reflex is automatic. Let's use the law, preferably
a new one, to sort it. The left, for example, wants a new Representation
of the People Act and a Bill of Rights to overcome its political impotence.
The government has a vested interest in having the law at centre stage.
The more the institutions of the state are seen as the appropriate forums
for the resolution of people's disputes and grievances, the greater is its
control over the terms on which any resolution is made. The more the state
can be projected as the defender of individual rights, the greater is its
authority as the arbiter of the nature and extent of those rights, and as
the enforcer of the limits it imposes on them.
Little wonder that one area of public expenditure in recent years which
has positively rocketed is that of legal aid (even if Lord Mackay is cutting
it now). Ensuring a certain level of access to the law is a constant imperative
for the state.
Whether you utilise the machinery of the law, personally or collectively,
is a tactical matter, informed by a high degree of pragmatism. If, for example,
you want to limit the damage of libellous statements against you, you may
be well advised to sue. A culture is developing, however, in which people
are making a virtue out of necessity. Increasingly, the law is no longer
seen as an occasional expedient but as a strategic route to both individual
betterment and social change.
Instead of asking what activity we can undertake ourselves to achieve our
ends directly, we ask a legal body to do it for us. For example, even 10
years ago, if a local authority changed its policy to make it harder for
women suffering domestic violence to be rehoused, the local response would
have certainly included some form of political pressure on the council.
Women's groups, the local left, trade unions even would have joined in some
form of direct action by way of protest. Who knows they may even have staged
a 'sit-in', a quaint term from the past. Today the same people would probably
turn immediately to judicial review.
This further weakens our confidence, not only in our ability to achieve
things ourselves, but even in our own judgment as to what is right and just
for us. It doesn't work either. They don't deliver the law we need. The
Commons may pass cosmetic anti-pollution laws to show us they have all our
best interests at heart; the judges may rebuke a minister to show how independent
and citizen-friendly they are. The truth is that, encouraged by the widespread
consent given to the rule of law, they pass and enforce the laws which they
Recently, the state's growing need to emphasise law and order, and scapegoat
as many people as possible, has led to a torrent of legislation. Any slightly
deviant behaviour is immediately criminalised, often irrespective of the
existence of perfectly adequate statute law. We can now see that over the
past decade the state has not only successfully moved into place a comprehensive
battery of repressive powers and procedures, it has become bolder and more
experimental by the year.
Forget the blockbusters like the Police and Criminal Evidence Act 1984 and
the Public Order Act 1986, which substantially extended police powers and
restricted freedoms. The latter also set a trend in targeting football hooligans,
nomadic hippies and racists. Forget too all the laws which make effective
trade unionism impossible within the law. Forget the Prevention of Terrorism
(Temporary Provisions) Act 1989 and the gagging laws like the Contempt of
Court Act 1981 and the Official Secrets Act 1989.
These days the state gets even more intimately involved. The Surrogacy Arrangements
Act 1985, the Human Organs Transplant Act 1989 and the Human Fertilisation
and Embryology Act 1990 all mark further interference in people's private
lives. And if you like having your scrotum pierced, you can now expect the
judiciary to stop your fun.
The government appears to have hit every panic with at least two criminalising
statutes: the Football Spectators Act 1989, the Football (Offences) Act
1991, the Dangerous Dogs Act 1989, the Dangerous Dogs Act 1991, the Breeding
of Dogs Act 1991, the Badgers Act 1991, the Badgers (Further Protection)
Act 1991, the Protection of Animals (Amendment) Act 1988, the Protection
against Cruel Tethering Act 1988, the Protection of Children (Tobacco) Act
1986, Children and Young Persons (Protection from Tobacco) Act 1991.
Hooligans, children and animals are standard fare. Sometimes only a new
crime will do: the Taking of Hostages Act 1982, the Video Recordings Act
1984, the Crossbows Act 1987, the Malicious Communications Act 1989, the
Computer Misuse Act 1990, the War Crimes Act 1991 and so on. Kenneth Baker
promised Aggravated Vehicle Taking (joy-riding) laws, and no doubt his plans
to criminalise squatters will be implemented by his successors. A particularly
nasty example is the Child Support Act 1991 (absent fathers' maintenance
payments) which is directed at developing the idea of the undeserving underclass.
Or of course Section 28 of the Local Government Act 1988, which promoted
The Daily Telegraph at least complained about new powers of search
and entry, and the tendency of new criminal legislation to adopt a presumption
of guilt. In the Wildlife and Countryside Act 1985, 'If, in any proceedings
for an offence, there is evidence from which it could reasonably be concluded
that the accused was digging for a badger, he shall be presumed to have
been digging for a badger unless the contrary was shown.' Similar presumptions
are to be found in the Football (Offences) Act 1991 (walking on the grass:
guilty until proved innocent). The Royal Commission on Criminal Justice
may well restrict the suspect's right to silence.
Unfortunately, there has been far too little resistance. Indeed many of
these measures have been welcomed by a law-happy culture. Too much state
power? Not enough, say some supporters of the Public Order Act. No doubt
parliament will promptly oblige. If you keep asking, they'll keep passing
What did the establishment see in a homosexual artist
who painted deformations? Alan Harding on the appeal of Francis Bacon
Life and death
The day after Francis Bacon died, Lord Gowrie, former Conservative arts
minister, said that until yesterday he was the greatest living artist. It
is debatable whether he was the greatest - if you have the time to waste
on the discussion - but he was certainly the most expensive. So expensive
that Bacon came to rehash his earliest and most celebrated paintings so
that he could donate them to the public galleries which could not afford
the real thing.
It is intriguing that a roguish homosexual who painted grotesque parodies
should be so celebrated by the establishment. There are exceptions of course.
Margaret Thatcher referred to Bacon as that man who painted those disgusting
pictures. But Thatcher would be off the scale if it were possible to measure
The honour afforded Bacon probably had three causes. The most simple is
that he was British (Anglo-Irish to be exact) and therefore gave the old
country a place in the artistic first division. Second, Bacon appeared to
challenge the professionalisation of the modern artist. Part of his appeal
lay in the fact that he was an exciting and gifted amateur. Bacon worked
against the grain of an academic world that got up everybody's noses because
of its selfrighteousness. Finally, Bacon is supposed to have had something
profound to say about the human condition.
Bacon came to painting by accident. When asked if he had always wanted to
be a painter, he replied: 'No, I expected to have to earn a living.' The
fact that Bacon enjoyed gambling and drinking champagne in considerable
quantities is neither here nor there. The issue is Bacon's aesthetic: 'I
think that painting today is pure intuition and luck and taking advantage
of what happens when you splash the stuff down.' In Bacon's work the artist
engages with chance and sometimes it comes off: 'the transforming effect
of cultivated accidents of paint' or 'the mysterious struggle with chance'.
Bacon's favoured method of painting --on stretched, unprimed canvass and
across the weave to get the rawness - was itself the result of an accident.
Out of money in the south of France in the winter of 1947-48, he started
painting on the back of his own canvasses and an image for the twentieth
century was born.
The technique favoured the attack and passion which are the characteristic
features of Bacon's best work. But Bacon has a limited amount to say, despite
his reputation as a commentator on the human condition. 'You live and you
die', observed Bacon, 'and that's it, don't you think?'. This is a rather
narrow picture of the human condition and its possibilities. It is the outlook
of a man detached from the life of society, pleased enough with his own
good fortune but involved only privately in the world outside.
Bacon's great achievement was his rendition of private grief. His work says
that human beings suffer, and since most of his human forms are alone, that
we suffer alone. Bacon's best subject is the single human form, incongruously
trapped in space, colour and memory - a friend, a lover or himself.
We do not have to celebrate this subjectivity as the representation of all
human life to recognise that Bacon captured with an astonishing intensity
one element of our lives.
Reproduced from Living Marxism issue 44, June 1992