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'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 want.

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 anti-homosexual prejudice.

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 them.

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 philistinism.

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

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