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(13) THE RULE OF LAW
It remains to examine this high-sounding term which has been so often intoned since the IR Act became law in February. We must start from its phenomenal meaning - embodied in the usage of Sir John Donaldson, NIRC President, the Financial Times leader column and A. Wedgwood Benn. They all argue that the imprisonment of the 5 resulted from their individual relation to the law, and that it is the action of individuals or a minority re the nation's law which meant the rule of law was invoked. Wedgwood Benn and Donaldson have been quoted above. The FT leader of 28.7.72 states: "Will the country accept that the wishes of the majority and the law must be respected, that the interests of all those who cannot protect themselves against inflation are nonetheless legitimate and a matter of concern to all? Are we to go back to feudal times and the over-mighty subject who pursues his ends and his alone no matter what the cost to anyone else or are the normal political processes to be allowed to work?" The FT is truly representative of its class when it identifies a society where the right of the individual was the extent of his individual power with feudalism. In fact feudalism worked on the opposite principle, where the right of the individual depended upon his place in the social structure and was strictly delimited by it. The society of which the FT despairs was the society of an emerging capitalism. At that period of British history, that view did indeed reflect reality. So far has British capitalism evolved since that time, that the FT can only conceive of it in 'the mists of antiquity' and not remember the late l8th - mid 19th centuries when the 'dismal science of political economy' saw its highest development. The fact that these spokesmen of the ruling class and of the working class can still use the 'rule of law' in this way shows that British politics is still not completely objective. This definition is correct insofar as the individual still has the right as an individual to mobilise the law. More of this below.
Both the House of Lords and the FT's political correspondent David Watt assess 'the rule of law' more accurately; for it does indeed have a valid meaning in describing reality. The FT's legal correspondent describes the House of Lords role : "To arrive at the conclusion that new industrial legislation called for an extension of the established law to meet the peculiar needs for resolving industrial disputes is to involve the courts in policy decisions. From time to time the courts do indulge, consciously or unconsciously, in policy decisions. But labour law is one area in which English judges have always been chary of usurping the primary parliamentary role of law-making ... All this is stark recognition that labour law is more vitally concerned with the phenomenon of social power than most other branches of law. Law, as reflected in court decisions at least, is a technique for the regulation of social power, but it is not, and in the nature of things cannot be, the principal source of it. Social power rests on many foundations, all of which find their expression in the amalgam that is the Act of Parliament. Thus the courts take their cue from Parliament and show studied reluctance to do other than interpret the will of Parliament." (10.7.72)
David Watt: "One of the worst casualties of all has been the Law itself. Lawyers will say that there is nothing particularly odd in their world in a High Court judge having his judgement unanimously over-turned by three Appeal Court judges who are themselves unanimously slapped down by five Law Lords. It may be so, but the trouble is that when the subject under discussion is one of burning political controversy requiring special sessions, unprecedented interventions, and the ministrations of the tipstaff, the man in the street is quite incapable of accepting that the process has not been a political one. And who is to say that the man in the street is wrong in essence? It is frankly pretty steep to be told on Friday that the inexorable majesty of the law must take its course though the heavens fall, and to find on Wednesday when the sky has duly fallen in that the juggernaut can be handily put into reverse. Nobody sensible is going to say that the courts have become 'political' in the sense that the Government tells them what to do - clearly the Government last week-end was at a complete loss. On the other hand, the Industrial Relations Act does force the courts - and especially the NIRC - to behave politically in the sense that they are obliged to become judges in the national interest. This, traditionally, is a task not for the judiciary but for the politicians." (28.7.72)
When the Rule of Law is over-ruled
Formally, Edward Heath is absolutely correct when he insists that the IR Act was democratic because it was enacted by a Parliament under normal procedure and introduced by a Government which had a mandate to pass the Act; it was one of the 'election issues'. In substance, he is wrong. As stated in previous Communist articles and the above quotes, laws enacted by Parliament in Britain are the result of the bargaining process between the classes. The 'great British tradition of respect for the law' about which we have also heard so much recently has a material basis: the laws do not prescribe, they reflect.
Both the Labour Government and the Conservative Government introduced IR Bills because capitalism required them. But these Bills did not have the required consent of both classes. The Labour Government withdrew its Bill; the Conservatives passed theirs. Being aware of the prescriptive nature of the IR Act, the big bourgeoisie decided not to use it, hoping that the process of bargaining and eventual consent could take place after the law was passed. Indeed, as late as 3rd July (after Chobham Farm) the FT was able to be constructively optimistic: "But in any case the comparative calm in the NIRC in the past two weeks is worth noting. When the court first opened its doors to deal with industrial action, several employers seemed to regard it as an easy way for them to settle their disputes with shop stewards. About this time a serious situation started to build up from Merseyside and it was gradually realised that the NIRC was an integral part of the country's legal system with full High Court powers which it would not hesitate to use if there seemed to be a serious risk of the law falling into disrepute. The absence from the court of other disputes - the series of engineering strikes and sit-ins in Manchester and elsewhere, for example - demonstrates a realisation among many major employers that their general labour troubles are unlikely to be satisfactorily solved by recourse to the law. On the other hand, the existence of the Act and the new Court has undoubtedly concentrated the mind of management on voluntary methods of improving labour relations and quite a few employers have shown NIRC complaint forms to union officials in attempts to stave off industrial action." (3.7.72)
The trouble was that the less conscious, responsible members of the bourgeoisie escalated the implied threat of waving the complaint form. As opposed to voluntary agreements backed by the force of the state (the form of compulsory arbitration and enforcement of collective agreements established during the Second World War and operating until 1959 ), the use of the law is open to any individual or corporate individual. Voluntary agreements were reached as the result of 'reasonable discussion' within the bourgeoisie and the view of the most conscious and responsible usually emerged with predictable regularity out of them. On the working class side they were based on the trade union leaders being able to correctly assess the stand of their membership and present that to the bourgeoisie in a coherent and bargainable way.
But, the process of voluntary agreement definitely broke down in the 1960s. It broke down because the bourgeoisie were unable to go on making the concessions required if voluntary agreement was to have a real rather than formal meaning and because the working class would not accept that any changes in the structure of British capitalism could be in its interest i.e. modernisation meant to it the erosion of its level of subsistence and control over the level of exploitation of its labour power. Law had to be tried because there was nothing else left.
The result has not been particularly successful for the bourgeoisie. Why? and what next? "Everyone has known that something had to be done to curb inflation and improve our industrial performance, but equally everyone has known that whoever tried to achieve this would be courting unpopularity and difficulty, and each of the protagonists (Labour and Conservative Governments - NS) has shuffled off the responsibility on to everyone else or thrown up his hands in despair ... The Labour Government started off fairly promisingly with George Brown's Declaration of Intent but was soon forced, under pressure of economic events, into the negative expedient of direct wage control and eventually into a direct confrontation with ... organised labour - in the 'In Place of Strife' proposals ... The basic charge against the Conservative Government is that it too has shirked until lately the fundamental political task of creating an atmosphere of national co-operation. From the outset it took refuge in the law ... Certainly it was the mistake of a Government led by a man who likes hard, clear-cut solutions. But it overlooked the fact that under modern conditions laws with wide application must have their paths smoothed by a certain degree of acceptance or at least complaisance on the part of those whom they affect ... What is quite wrong and unrealistic is to expect that the mere fact that the measure has become law is enough to ensure that people will obey it ... Having made this mistake, the Government has no choice but to enforce its law ... For myself I don't believe that it is impossible to get quite large chunks of it permanently absorbed, particularly if the persuasive process is combined with a constructive dialogue about the economy with the TUC (real concession, NS). But until that has been done flare-ups and mishaps like last week's are bound to recur and by their occurrence, make the task of gaining acceptance for a sane industrial relations policy itself more difficult." (D.Watt, FT, 28.7.72)
The Mirror says the same thing: "The nation is not interested in the bickerings of politicians who give the impression of fighting the next election on the telly and in Parliament right now. The nation is interested in constructive efforts to get out of the present mess - and make sure we don't fall into the barbage [sic. garbage? - PB] ever again. It is rubbish to expect the Government to swallow the stony tablets they brought down from their own particular Mount Sinai only two years ago. Clearly the Tories will not repeal the IR Act. But they would be crazy not to admit - swiftly, honestly, without ambiguity - that the Act will be amended. And amended soon. Mr. Heath should invite the TUC to spell out the reforms they seek." (28.7.72)
For the sake of form it is necessary for the Government to (l) sit out the other episodes of 'misuse' of the Act by less conscious, responsible bourgeoisie and also some members of the working class and minimise the damage by quick material concession and less assertion of the rule of law (2) accept the loss of face in meeting the TUC with an offer of speedy substantial amendment. And for the working class, we have been told above it is necessary for the sake of form that the Government be allowed to keep the name of the IR Act while altering its substance.
It should be noted that the "fighting politicians" and the "shuffling off of responsibility" described by the Mirror and FT above are not just capricious, or cowardly behaviour from MPs or Governments, They are both reflections of the events in society and the position of the class forces. The confrontation in Parliament reflects the fact that the class struggle has intensified and the shirking reflects the fact that the bargaining process between the classes is not functioning - it has not been possible to arrive at or implement an agreed solution. Both the Mirror and the FT are asking the ruling class and the working class to put the national interest before their own class interest. However, it is necessary to modernise British capitalism, so the ruling class must press on; and the working class will continue to defend its interests within the ambit of its political consciousness - i.e. to resist that modernisation. Until some factor in this situation is changed, the best the nation and its politicians will be able to do is patchwork, temporary bargains
The one important addition to this analysis is the effect of the present inflation in aiding the 'moderate' trade union leaders in securing the General Council's consent to participating in substantial amendment to the IR Act rather than continuing its absolute non-co-operation policy. The Mirror's front page stated on 12th July "it cannot conceivably be in the interests of any wage earner that inflation should continue at its present devouring rate. Inflation does not damage the rich. The man of land and property, antique furniture and Rembrandts, can complacently watch his wealth multiply. Wage and salary earners see their pay packets shrivel in value as fast as increases add extra pounds." Though the rich can provide for their standard of living under inflation better than the working class, inflation is bad for capitalism. It is eroding Britain's competitive position in the world market and making the finance of capitalism more difficult - not to mention the unsettling effect on present efforts at badly needed monetary reform internationally. Some kind of threshold agreement providing for some increase in real wages would probably be accepted by the working class. The TUC/CBl/Government talks about inflation will be resumed (having been postponed by the TUC because it could not meet the Government while the 5 were imprisoned: the working class would simply not have stomached it) with all three bodies agreed on the need to contain inflation and increase real wages. The proposals from these meetings will be analysed in The Communist when they appear and their meaning for the working class discussed.