A History of the Extreme Porn Act in Scotland

This page is under construction, and many links are out of date. (Many were taken from an email from last year and were working at the time.) A full listing of the links and documents relating to the bill can be found here.

A History of the Extreme Pornography in the Criminal Justice and Licensing (Scotland) Act (2010)

Pornography has been under attack in Scotland for many years. CAAN-Scotland completed a Freedom of Information Request to uncover the extent of support and evidence for the extreme pornography legislation which highlighted PE476 back in 2002-3 before Liz Longhurst was tragically murdered. (See Correspondence 13.)

PE476 was done by the group Scottish Women Against Pornography, and the petition is currently listed as having 2 – yes, TWO – signatures.

The petition was lodged in spring 2002, and followed up on several times by the Justice Committee. In the end, the Justice Committee decided to “no further action was appropriate at this stage in light of the Scottish Executive’s current research commitments in this area.”  That was January 2003. It’s worth noting that SWAP recommends changing the Civic Government (Scotland) Act 1982, the document which contains the definition of obscene used in the CJLA. According to the documents released by the Scottish Government (Correspondence 12), the “current research commitments” are “two-year study and research programme investigating violence in its different manifestations should include research into the harm caused by pornography.”

SWAP wouldn’t let it lie, and after a flurry of letters in 2003 (See Correspondence 11 & Correspondence 14), opened up PE752 in 2004 “calling for the Scottish Parliament to enact legislation to define pornographic material as incitement to sexual hatred and to make such incitement an offence similar to that of incitement to racial hatred.” This petition was less successful than the previous one, gathering only one signature. Yet it still resulted in the Equal Opportunities Committee questioning the Scottish Executive on the “harmfulness of pornography”. Meetings regarding this carried over into early 2005.

Up until this point, SWAP has been persistent, but also consistent. They are against all pornography, but especially the “pornography” (i.e. lads mags) that is visible to them. If the world was run by SWAP, there would be no “extreme” pornography law, there would just be a pornography law. So somewhere between SWAP’s petitions, a change occurred in the Scottish Executive, which decided that violent pornography was the problem. To continue following SWAP’s crusade against scantily clad women, please go to LADS MAGS (PE1169) page.

In 2005 the then Scottish Executive undertook a joint consultation with the Home Office  on proposals to criminalise possession of extreme pornographic images.  An overview of the evidence concerning the effects of pornography is contained at Pages 8-9 of that consultation. The consultation obviously hit a nerve, as this is the point where people started writing to their MSPs. During the span of the consultation, at least two MSPs had been written to. (See Correspondence 2 & Correspondence 7.)

The consultation closed near the end of 2005. 68 Responses to the consultation are available on the Scottish Government Website where the respondent agreed to their response being made public. The then-Scottish Executive published an analysis of the responses to that consultation in January 2006.

The consultation, which was referred to several times throughout the extreme pornography law debate, is well worth the read, if only for the list of contributors. What pornography has to do with children (e.g. Scottish Children’s Reporter Administration) is beyond me. Remember, this single document, with all its flaws, is pretty much the only research the Scottish Government relied on in the creation of the law.

The consultation stirred up more thoughts and communication. At least four more emails or letters were sent to MSPs in 2006. (See: Correspondence 4, Correspondence 6, Correspondence 3, Correspondence 5)

The then-Scottish Executive formed the Short Life Working Group on Extreme Pornography to look more in-depth at the possibility of creating a law banning extreme pornography. A Freedom of Information Request from CAAN-Scotland showed that they met at least three times prior to formally advising the Scottish Executive on the matter in September 2006. (See: FOI – short life working group 1, FOI – short life working group 2, FOI – short life working group email, FOI – Extreme Pornography – Proposed Scottish Offence 11-Sept-2006)

The proposal lay dormant for some time. Westminster, as you may gather, was equally busy at this time. After some naïve hope that the extreme pornography ban would not affect Scotland, the Scottish Executive announced the legislation on 11 Sept 2008 in the Revitalising Justice: Proposals to Modernise and Improve Criminal Justice. This announcement sent more ripples out. Between the announcement in Sept 2008 and the introduction of the bill into Parliament, there were 15 different emails or letters to MSPs or the Scottish Executive relating to the bill. You can see the snowball effect this law was having.

Responses Sept 2008-Mar2009: RJC Response 1, RJC Response 13, RJC Response 15, RJC Response 11, RJC Response 10, RJC Response 8, Correspondence 10, RJC Response 4, Correspondence 1, RJC Response 12, RJC Response 14, Correspondence 8, RJC Response 16, Correspondence 15, Correspondence 9

As you will be aware, provisions on extreme pornography were subsequently included in the Criminal Justice and Licensing (Scotland) Bill, introduced in Parliament on 5 March 2009.

In March 2009, CAAN-Scotland met with MSP Patrick Harvie and civil servants Ann Oxley and Gery McLaughlin to discuss the bill.

Patrick Down said in response to CAAN-Scotlands question regarding evidence supporting the Extreme Pornography legislation:

 The Standing Orders of the Parliament require that a Bill introduced by the Executive must be accompanied by a Policy Memorandum setting out:

(i) the policy objectives of the Bill;

(ii) whether alternative ways of meeting those objectives were considered and, if so, why the approach taken in the Bill was adopted;

(iii) the consultation, if any, which was undertaken on those objectives and the ways of meeting them or on the detail of the Bill and a summary of the outcome of that consultation; and

(iv) an assessment of the effects, if any, of the Bill on equal opportunities, human rights, island communities, local government, sustainable development and any other matter which the Scottish Ministers consider relevant.

Basically, the Policy Memorandum is the Scottish Government’s equivalent of a summary of evidence. (See pages 24-27 for the EP bit.)

The Scottish Government also published an Equality Impact Assessment for the Bill.  The assessment of the extreme pornography provisions can be found at http://www.scotland.gov.uk/Topics/People/Equality/18507/EQIADetails/Q/Id/400 LINK BROKEN – DOCUMENT LOCATION UNKNOWN

The Justice Committee also put out a call for evidence on the Bill. “Evidence” is a loose term, that runs the full gamut between in-depth researched summaries of a topic to personal anecdotes to one-page “I agree with so-and-so” statements. The fact of the matter is that it all counts. They don’t take misspellings into consideration, nor do they allow count the number of references a letter has. All they consider is whether it is the truth to the writer, and making sure there’s no slander. Even if one group writes an in-depth piece and 20 other people write in saying “I agree”, they still count 21 responses.

Responses to the Justice Committee’s call for evidence are published on the Scottish Parliament website, for both Stage 1 (all topics, including Extreme Pornography) and Stage 2 (the Prostitution and Lap Dancing amendments)

The Justice Committee also took oral evidence on the Bill at Stage 1.  The provisions on extreme pornography were discussed in evidence sessions on 26 May 2009, 2 June 2009, and 9 June 2009.

The Standing Orders of the Parliament require that the Lead Committee responsible for considering a Bill report to the whole Parliament on the general principles of the Bill.  That report supported the general policy behind the extreme pornography offence while asking the Government a number of questions concerning the detail of the provisions.

The Scottish Government’s response to the Committee’s report is published at http://archive.scottish.parliament.uk/s3/committees/justice/inquiries/CriminalJusticeandLicensing/Correspondence/20100203SGresponsetoStage1report.pdf  (pages 18-21 concern the extreme pornography offence).

The Stage 1 debate on the Bill at which the Parliament agreed to its general principles took place on 26 November 2009 (see http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-09/sor1126-02.htm#Col21574)

At Stage 2 of the Bill process, each section and schedule and the long title of the Bill is considered separately and the committee decide whether to agree to them. Consideration of the extreme pornography offence at Stage 2 can be found here: http://www.scottish.parliament.uk/s3/committees/justice/or-10/ju10-1302.htm#Col2914.

The Stage 3 debate on the Bill took place on 30 June 2010 (see http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-10/sor0630-02.htm#Col27815) and the Bill received Royal Assent on 6 August 2010.

A Commencement Order was made on 7 March 2011 which will bring section 42 into force on 28 March 2011 (see http://www.legislation.gov.uk/ssi/2011/178/contents/made) .  Guidance for the public on the new offence was published by the Scottish Government on 1 March and is available at http://www.scotland.gov.uk/Topics/Justice/crimes/pornography/ExtremePornograhicMateria/extremepornographyinfo