The snow has finally melted, the daffs are in bloom, and the Scottish Parliament is back doing their dirty work!
The Criminal Justice and Licensing Bill
The CJLB is now in Stage 2 of the legislative process. Stage 1 was passed 12 November 2009. Section 34 about the extreme pornography was included in the law.
Extreme Pornography: Section 34
The good news:
The Justice Committee writes:
“We agree that the Bill is right to distinguish between the possession of an image by those who participated in the sexual activity depicted and the onward transmission of that image to third parties.”
So they accept that it is okay for a person to have a picture of themselves, and may accept the defense that the owner of the picture actually participated (though that remains to be tested).
The bad news:
The Scottish Government writes:
“Our view is that there is a risk that such images normalize sexual violence and that the risk is greatest where such activities are depicted in a realistic manner. Where the image is realistic, the person possessing it may have no way of knowing that it does not depict a real image of a serious sexual offence.”
We’re idiots who don’t know what special effects look like.
The good news:
The Scottish Government continues:
“Although there is no requirement that it is actually real, the offence does not apply to cartoons or other animations which clearly do not depict real people carrying out real acts.”
So cartoons and animations are in.
The other good news:
They may not have listened to CAAN, but they show that they heard us!
283. Most of those who commented on this section supported the creation of an offence of possessing extreme pornography, although some argued that there is no evidence that pornography increases sexual offending and opposed these provisions as an unjustifiable intrusion into the private lives of citizens.217
See that “some”? That’s right, CAAN is in the footnote!
And even better, section 313:
“The Consenting Adult Action Network, which opposes making possession of extreme pornography a criminal offence, questioned whether the provision for “excluded images” was appropriate—
“If the material in question causes demonstrable harm, then it is totally utterly irresponsible on the part of government to insert the BBFC exemption – and suggests a bowing to commercial (film) pressure in preference to a genuine desire to protect members of society. Further, would not most BBFC material fail the ‘realistic’ or ‘pornographic’ test once it is known that the material is from a film? There is no reason for this section to be in there.”245”
Thus ended Stage 1. Now the fun part, Stage 2, happens, with its pork-barrel amendments.
Section 34 amendments
Amendments 361, 362, 363, 364, 366
Minor changes moving the “and sounds accompanying it” to a different part of the legislation. Will not drastically affect the law.
Amendments 365, 367, 368, 369
Minor changes to the classified works section of excluded images and minor syntactical changes. Will not drastically affect the law.
Adds extreme pornography to the list of sexual offences. Will not drastically affect the law.
So, overall, no huge changes to the extreme pornography section.
Planning for the future fight against the Extreme Porn Bill
An individual unrelated to CAAN is attempting to get Section 34 (the extreme porn section) of the Criminal Justice and Licensing (Scotland) Bill referred to the Supreme Court. Unlike England, bills passed in the Scottish parliament can be referred to the Supreme Court to ensure they’re compatible with human rights legislation. There are 3 people who can do that in the first instance; The Lord Advocate, the Advocate General and (strangely enough) the Attorney General of England and Wales. Failing that it’s also open to an Appeal Court to refer the matter to the Supreme Court, and if they refuse an appellant can even seek permission from the Supreme Court to refer the matter to them directly.
The bad news is that it all has to be done within about 4 weeks of a bill being passed, before it receives Royal Assent. As the Justice Committee has now reported on section 34 without challenging it to any extent, it’s as good a time as any to make the initial move to get a referral. It largely depends on the integrity of the 3 officers mentioned above; particularly the Lord Advocate who gives legal advice to the Scottish Government, because asking to ensure the legality of a controversial act is not such an unreasonable request.
So if there are any Scots willing to keep up the fight I would appreciate it if they could add their letters to my own. The more requests for a referral the better our chances. All I’m doing at this stage is writing to the 3 law officers mentioned, including a copy of Rabinder Singh’s legal opinion to give the request some weight(see the Backlash website for that). It’s probably best to base any letter around his legal arguments and be sure to mention the Scottish Government’s lack of justification for the legislation; there really has been absolutely none and that is a weakness if it wishes to derogate human rights.
Lord Advocate, The Rt Hon Elish Angiolini QC, Crown Office, 25 Chambers Street, Edinburgh, EH1 1LA
Advocate General for Scotland, Lord Davidson of Glen Clova QC, Victoria Quay, Edinburgh, EH6 6QQ
Attorney General, Baroness Scotland, Attorney General’s Office, 20 Victoria Street, London, SW1H 0NF
If those approaches fail it would need to be taken to an Appeal Court (Inner House of the Court of Session) and although an individual can do that his/herself it would probably be best done with the assistance of an advocate. So if there are any advocates here your help could be invaluable.
To the best of my knowledge the human rights aspects of the extreme porn legislation has yet to be settled. This may be a long shot but if it went to the Supreme Court and they ruled against the Scottish Act it would be busted in England as well. Worth a few letters don’t you think?
CAAN is interested in meeting with people with experience in these sorts of legal matters. Please contact us to get in touch. If you do not have experience in these sorts of legal matters, we may have to pay someone who does, so your donations are appreciated.
Now for the fun part:
NEW LAWS BEING SLID INTO AMENDMENTS!!!
Back in September 2009, CAAN was invited to support the International Union of Sex Workers in “Give Prostitution the Red Light? A Question Time-style debate on prostitution in Scotland – reform, regulate or reject?”. The audience was overwhelmingly in favour of criminalizing prostitution by any means necessary. The “balanced” views given in this “debate” seemed to have been considered by the Scottish Parliament because an amendment was produced which would have criminalized the purchase of sexual activities. (The Swedish model.)
CAAN wrote in along with many others opposing this amendment. In addition to the usual anti-sex groups, there were also sex worker rights groups and individual sex workers from around the country. ALL OF THIS EVIDENCE HAD AN EFFECT!!
Fergus Ewing said: (http://www.scottish.parliament.uk/s3/committees/justice/or-10/ju10-1302.htm#Col2898)
I note that, in written evidence that the committee received, a group of academics appealed for
“more extensive consultation with all key stakeholders which would presumably help to broaden out the current narrow focus of reform into a more inclusive, research-informed reform strategy. We would urge the committee to make a careful balanced assessment of this complex area”.
We would remind the committee that the stage 1 call for written evidence resulted in around 90 submissions, covering all the provisions contained in the bill, yet, in only two weeks, 93 responses have been received on these prostitution amendments alone.
The changes leading to the 2007 act had the benefit of proper consideration by the expert group on prostitution, and the Government’s view is that the significant changes to the law that are proposed by these amendments require similar scrutiny. I believe that that was the thrust of Margo MacDonald’s submission this morning. A more considered review of the issues is needed to ensure that any measures that are put in place are necessary, practicable and sustainable. The volume of written evidence offers overwhelming confirmation that prostitution is a complex area that requires careful consideration and debate prior to additional measures being taken to address the issue.
The amendment was deferred.
In other words, we won the battle!
So numbers DO matter and each letter DOES make a difference!
You may feel like your voice is one in a sea opposition, but the Scottish Government is obliged to read and listen to each person or group who writes in regarding a bill. Every letter is important!
Lap Dancing – Amendment 516
On 13 April 2010, the Justice Committee from the Scottish Parliament decided to issue a call for evidence for amendment 516 which equates lap dancing with sex shops. The text of the amendment can be found here: http://www.scottish.parliament.uk/s3/committees/justice/inquiries/CriminalJusticeandLicensing/amdt516.pdf
The amendment was put forward by Sandra White MSP (SNP) for Glasgow. The amendment is one of several hundred put forward to the Criminal Justice and Licensing Bill [http://www.scottishparliament.uk/s3/bills/24-CrimJustLc/index.htm], which also contains the extreme pornography law and amendment relating to the criminalising the purchasing of sexual services.
Amendment 516 changes the 1982 Civic Government (Scotland) Act [http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1982/cukpga_19820045_en_6#pt3-l1g46] of control of sex shops. The original act states that local authorities can decide how many sex shops can be in their authority and that the potential sex shops must advertise their intention to apply for a license. The effect that this has had is that some local authorities reject all applications for a sex shop license. In Glasgow, for example, the guidance notes for sex shop applications reads:
Be advised that, in the past, applications for a sex shop licence have been refused on
the grounds that the committee felt that the number of sex shops for the locality (ie.
Glasgow) should be nil.
Evidence taking closed on 27 April 2010 (but it’s never too late to write to the Justice Committee or your MSP!). CAAN was able to inform the proprietors of some of the lap dancing clubs in Scotland, and one even submitted evidence opposing the law. So far, 21 submissions have been received. Most of the submissions support the statement, though some only say call lap dancing “commercial sexual exploitation” and one even referenced the much derided Lilith Report. (Guardian retraction of the Lilith Report: http://www.guardian.co.uk/theguardian/2009/jan/12/corrections.) A number of theatre groups wrote in expressing concern that this amendment would extend to nudity in theatre and performing arts.
CAAN’s main concern is that lap dancing, like prostitution, as a sexual activity conducted between two consenting adults should not be regulated by the government any differently than any other form of employment. We also expressed concern that the amendment would apply to fetish clubs, professional dominatrixes, and all other manner of erotic activities between consenting adults.
The Justice Committee meeting regarding the amendment will be on 11 May 2010.
Support from Other Parties:
CAAN has been reaching out to others in an attempt to find support outside of the BDSM and fetish communities. One group that has similar views is the Scottish Libertarians. Representatives from CAAN met with members of the Scottish Libertarian Party and were pleased to find that they too feel that the government should stay out of people’s bedrooms. As the UK Libertarian Party webpage states:
“Libertarians believe that everyone has the right to ownership of their own bodies, thoughts and beliefs, and honestly acquired property, be those goods, land, or money. Owning these aspects of yourself means that you should be free to do with them what you choose. Libertarians believe that coercive actions by individuals, or groups of individuals—for example, the State—against others can never be justified. Such actions can rightly be seen as acts of aggression, and are simply an inappropriate way of behaving towards other people.”
The laws that CAAN is opposing in Scotland — the extreme pornography (Section 34), the control of lap dancing (Amendment 516) and the recently rejected amendments relating to prostitution – are against the Libertarian values and are seen as acts of aggression from the state. If you would like to learn more about the Scottish Libertarian Party, please visit http://scottishlibertarians.blogspot.com/. CAAN hopes to be doing more work with the Scottish Libertarians in the future.
Some months back, CAAN discovered that a petition regarding the display of sexually graphic newspapers and magazines is being considered!
The good old Scottish Women Against Pornography are behind this one. This petition is aimed at (as the petition says): “The Sun, The Daily Star and The Daily Sport newspapers and magazines such as ‘Loaded’, ‘Zoo’ and ‘FHM’.” They also seem to feel that, in addition to bondage and domination, “lesbian activity (“girl-on-girl action”)” is obscene enough to warrant the attention of the Scottish Government. Would you like a little homophobia with your tea?
The Scottish Government has seemed reluctant to pursue this petition, but the SWAP are quite tenacious. Several meetings have been held on the topic, but apparently the Scottish Government are following the Home Office on this one. Independence my arse!
Bill Butler of the Justice Committee (20 Apr 2010): John Wilson is correct: we should defer a decision. We should write to the Scottish Government to ask whether it welcomes and supports the recommendations of the Papadopoulos report—I hope that it does—and we can bring the petition to the attention of the Home Office, asking it whether it supports the recommendations and will do anything to endorse them. Until we get that information back, we should hold fire and defer any decision.
So for now the decision to even do research is deferred. Wait and see, wait and see. But as I said, the SWAP are quite tenacious and have been chasing the matter since mid 2008.
Scottish Petition Blog: http://scottishparliamentpetitions.blogspot.com/2009/10/phew.html
Petition PE1169: http://www.scottish.parliament.uk/business/petitions/docs/PE1169.htm
Please send letters commenting on this petition to:
Fergus D. Cochrane
Public Petitions Committee
The Scottish Parliament
WAYS TO HELP:
Order a copy of Beyond the Circle for your MSP! Simply note on your order that you wish the book to go to an MSP and CAAN-Scotland will take care of it for you.
Write in to the Justice Committee against the extreme pornography bill or lap dancing amendment! http://www.scottish.parliament.uk/business/parliamentaryProcedure/ParliamentPolicy.pdf
The Committee prefers to receive written submissions electronically in MS Word format. These should be emailed to: firstname.lastname@example.org
They welcome written evidence in English, Gaelic or any other language and you may also make hard copy written submissions to:
The Scottish Parliament
CAAN Scotland now have flyers ready for distribution, so contact us if you’d like some. We have had several requests from people who would like to distribute them in their place of business, university, club or even among friends, so jump on the bandwagon and help spread the word!
Keep updated on our news, because as the Criminal Justice and Licensing Bill progresses, events may be necessary!