Lawyer’s paradise

The authors of the SLP draft law document (printed below) clearly see law as a means of resolving disputes. However, one of the problems with this approach is that they do not make a distinction between law inside capitalist society, and law under the dictatorship of the proletariat. They suggest that law is for the protection of weaker parties against oppression. This is certainly not the case under the dictatorship of the proletariat, where we would be prepared to use law for the suppression of those elements hostile to working class rule.

It is very interesting to note that the document believes that the police could be fair and impartial. Any socialist society in its formation would immediately abolish the police force and replace it with a peoples’ militia. Obviously, if the working class has a state it will require a legal process. But this will be a matter of direct democracy, not a matter for law commissions.

The document suggests that we would wish to maintain the “United Kingdom’s” international legal obligations. We would not be prepared to accept either the dictates of the United Nations nor any other bourgeois international institution. In any case the revolution will inevitably take on an international dimension and any future negotiations would arise out of the cooperation between the international working class.

Turning to the question of particular institutions that exist at the moment, such as Acas, these bodies cannot be ‘improved’. They are simply to be wiped out of existence by the revolution.

Significantly, the authors look to the continuation of bourgeois judges. Communists, however, object precisely to the bourgeois nature of the whole judicial system. In fact, the entire document seems inordinately concerned to create a lawyers paradise.

As to the question of a written constitution, Britain has in essence a written constitution supplemented by convention. The problem lies with the very nature of the constitution - and who writes it. If it should turn out to be essentially a collection of conventions and traditions we find useful to rule with, that is something for the future to decide.

After all, the American constitution grants both direct elections of judges and police officers, the right to bear arms, etc. But we know that for all the voluminous guarantees in the constitution, American society is fundamentally exploitative, because the working class has neither its own organisation nor political power.

John Bayliss

Socialist Labour and the law

Laws are rules created by humans to regulate the conduct of humans. There is nothing natural about them. The sort of conduct they seek to impose (or to allow) reflects the struggle between the many interests (and in particular the classes) within society.

The most important determinant of the nature of the laws of any society at any particular point in time is the nature of the economic, and hence social relations of production - the relationships which make wealth by the creation of commodities and services. The most obvious characteristic of the law of any society (socialist, capitalist, feudal or ‘primitive’) is the tendency to maintain economic power in the hands of those who hold it. Apart from this fundamental economic and social factor, there are of course other determinants such as society’s cultural heritage - including religion, morals, traditions (which are usually themselves the product of economic relationships - though often from previous generations).

The law operates by way of resolving disputes. But it is only a limited objective to supply recommendations to remove what could be disruptive conflicts. More than that, the law is a principal (but not the only) means of social control. It tries to make people behave (or stop them from behaving) in particular ways. It achieves this by enforcing its rules by punishments and, much more effectively, by gaining acceptance for its rules through public acknowledgement of them as norms of behaviour. In either case, the law in order to function seeks deference to it.

The Socialist Labour Party recognises these elementary proportions about the nature of the law. It recognises that the law is the cement by which the building blocks of social policy may be laid to erect, in stages, a socialist society. It recognises, therefore, that a transformation of existing law and legal structures is necessary at each of the stages leading to a socialist future. Continuous evolution (and reappraisal) will be necessary.

At the heart of this process will be the requirement of the law to reflect and also to progress the economic and social objectives of each stage of development.

At this moment, as the SLP considers its policies, it is simply not feasible to get out in full the legal transformations which will be necessary for the future. But it is possible to establish some guiding principles.

First and foremost it must be recognised that - whether or not comprehensive laws will be necessary in the socialist world that we hope future generations will enjoy - for the foreseeable future law will remain an essential instrument to implement the policies aimed at establishing socialism and protect against unfairness and injustice during that process.

A socialist society will not be achieved overnight and even after socialism has taken root, there will remain fundamental conflicts of interest in society which will need dispute-resolution mechanisms, and in which weaker parties will need protection against power. So, even in a society where the workers own the means production there will remain a conflict of interest between workers and consumers (even though the consumers may be for the most part workers) in which both sides need clear, unambiguous rights enforceable by law (as well as by other mechanisms).

Families will continue to need a framework of rights and duties to provide the least damaging resolution of the problems which occur when things go wrong. Citizens will forever need protections and rights against even the most democratic and benign state. Dissent must also be protected. Crime and deviancy will diminish to negligible proportions in a socialist society, but the dignity of society requires that persons accused of lawbreaking have the fullest and most sophisticated rights to defend themselves and that those convicted are treated humanely and with dignity with a view to rehabilitation.

These observations confirm that not only must there be revision of substantive laws to achieve the new balances socialists want in society: they also make clear that there must be open access to a legal system, capable of protecting rights, resolving disputes and accommodating the public interest with fairness and justice. That means fundamental changes to the existing legal system where access to law is available primarily to rich and powerful interests and the courts and police are not perceived to be fair, impartial or representative of all sections of society.

The substantive laws required in a state moving towards socialism will be (as are the laws now) complex, lengthy and very extensive. It is only necessary to think for a moment of the range of subjects laws must cover to have some idea of the huge scope of the task of revision: dangerous dogs, railway safety, maintenance on divorce, maternity leave, tenancies, commercial contracts, planning, car exhaust emissions, conditions in zoos, health service, education, sewage disposal, unions, companies, terms and conditions of work, and so on and so on.

Law commissions will be needed to review and propose revision of all the laws. These law commissions will need to be representative, democratically appointed and highly skilled and resourced. They will have a socialist agenda, and will audit past and proposed laws with some cardinal principles before them. Those criteria will include requirements that laws:

In the field of economic activity (from which derives the wealth to sustain life) particularly fundamental change is needed. The process of transferring the ownership of the means of production, distribution and exchange to the people will take a variety of legal forms, such as common ownership/social ownership, cooperatives and partnerships. It will also take time. Existing and future forms of ownership will all need legal regulation in order to ensure democratic control and protection of workers, consumers and those (such as neighbours) affected by the activity.

Regulation will be required to ensure investment and to restrict export abroad of profits or capital. Such laws must be flexible and sophisticated. Whilst financial or custodial penalties may be useful in some respects, other mechanisms such as taxation, grant and eligibility, eligibility for representation on decision-making bodies, eligibility to advertise, eligibility for contracts, eligibility for registration as saleable products and so on offer a range of power levers to induce the responsible, just and efficient conduct of economic operations.

The SLP supports a written constitution. It is only right that people should know the fundamental principles by which their country stands. Such a constitution would, of course, comply with the international standards enshrined in the United Nations ‘Declaration of Human Rights’, the European Convention on Human Rights and Fundamental Freedoms and the Council of Europe’s Social Charter. But, the constitution would be wider than those principles which, whilst they establish minimum standards for civilised countries, do not pretend to contain the essential elements of democratic socialism nor such rights as those to free air, water and a safe environment. A constitution requires a constitutional court and the South African experience provides a useful indicator of a workable approach. No law could, of course, be permitted which was inconsistent with the constitution.

Britain’s place in Europe is for further discussion. Whilst it remains part of the European Union, it is essential that the European directives, the social chapter are all fully implemented here, and that pressure is mounted within Europe for extension of the social dimension, not least by amendment of the Treaty of Rome to allow directives imposing collective trade union rights on all member states.

It is important that all the anti-trade union legislation introduced since 1979 should be repealed and replaced with new laws based on positive rights for trade unions and trade unionists.

It is essential that trade union rights are fully restored in line with United Nations and ILO conventions - in particular there should be a right to strike in UK law without any fear of dismissal or reprisal on the part of the employer. Trade unions must be allowed to take part in secondary action and the immunities which existed from 1906 to 1982 should be restored. Employees who are unfairly dismissed must have the right to reinstatement, together with compensation. However, the anti-trade union laws can only be repealed provided the working class are prepared to organise, and if necessary, defy existing legislation.

Earlier this century it was stated by the great lawyer and human rights campaigner, DN Pritt QC, that the state of the law in a capitalist society is a reflection of the ability of the working class to organise against it. Certainly it is true that labour law reflects a complex balance at any moment of time between, on the one side, the power of the disparate elements of capitalism (eg, international corporations) and on the other, the organised power of the labour movement.

The legal system in this country needs fundamental overhaul. The tribunals should be called courts and brought into a single unified judicial structure with specialist courts for specialist subjects. Whilst lay people drawn from representative categories should be introduced into all courts, every court should be presided over by a qualified lawyer (the disgrace of the lay magistrates’ courts dispensing ‘justice’ in a truly eighteenth century manner must be abolished as soon as possible). All judges, lawyers and non-lawyers must undergo extensive and annual training. Judicial appointments must be democratic, but direct election is unacceptable and appointment by parliament destroys the separation of powers essential for the protection of individuals. A judicial appointments board - representative, highly respected and appointed by parliament - is necessary.

The procedures in courts must be streamlined and made more efficient at the same time as being made more just. Litigants must feel that, win or lose, they had a fair hearing and a fair opportunity to put their case.

This means access to lawyers must be reassured. This is costly, but costs can be saved by the removal of the causes of disputes. The eradication of poverty, the restoration of full employment, the fulfilment of people’s aspirations and the introduction of real involvement in Britain’s future will do much to reduce crime.

Restoration of house building will remove thousands of housing cases from the county courts. Full employment and minimum wages will all but remove the loads off the social security tribunals and cut the main diet of the county courts’ debt actions.

No-fault liability (or at least the reversal of the burden of proof on liability) will remove many personal injury cases from the courts. An obligation to prove products are safe before sale or use will cut product liability cases. And so on.

Wider powers for bodies like Acas and similar mediation, conciliation and arbitration roles for industry regulators will diminish recourse to the law. Extending the CROTUM and CPUIA to jurisdictions where they could do good by protecting the rights of consumers and workers would make a useful precedent of an odiously unfair initiative.

In fact, such commissioners could be extended very widely indeed to act as public advocates to take cases in their own name or for clients. They should also act as public defenders to protect members of the public. Inspectors (such as those of the HSE) with wider powers to intervene, enforce and, where necessary to prosecute, should be given more staff, more resumes and extensive jurisdictions in other fields than just health and safety. Likewise, representative bodies such as unions and environmental bodies should have rights to intervene and take cases directly on behalf of existing and prospective members and their own behalf (they should be given ‘locus standi’).

All bodies should be encouraged to subscribe to ‘alternative dispute resolution’ mechanisms provided by Acas and similar institutions or by private arbitration by approved and certified arbitrators.

In such ways, the pressure on the courts could be hugely cut and the costs of legal access slashed. Public provision would remain necessary not only through the system of public advocates, but by greatly increased provision of law centres - CABs and other specialist advice services. Decent salaries and career structures extending into the judiciary would be essential for such bodies so as to enhance their status. The use of para-legals should be encouraged and regulated. Legal aid should remain, but its scope must be extended to cover those cases not covered by the measures above. Only lawyers certified as having the necessary training, skills, experience and specialisms would be permitted to undertake legal aid work which would be paid at reasonable rates, though not those generated by commercial lawyers acting for commercial clients. The independent legal profession would remain, but there must be enhanced quality control by regulatory bodies.

Legal education of the public is essential. All schools would be required to provide education in the constitution, in the structures of society and in the law.

Access to the law and legal materials would be available in all public libraries and via modern communications such as teletext and the internet.

These proposals would involve some increased costs to an incoming SLP government (eg, cost of new constitutional court, qualified judges, etc). However, much - if not all - of this would be recouped by the dramatic reduction in the workload of the courts (and prisons) and inevitable fall in legal aid expenditure.