M1. SUMMARY. This is a published response which tries to be in plain English[01] and give the brief history[02]. The Video Appeals Committee recently made fair decisions to certificate more sexually explicit videos[04]; the government took political exception [05], and brought proposals to combat this[06]. They are aimed at changing the basis of the tribunal as to criteria (option one) or composition (option three) or, if the numbers certificated cannot be reduced, the combating the supposed extent to which they are accessed by under-16s and do supposed harm (option two). The manner of bringing them may itself evidence bias[07]. Any changes would be subject to Human Rights Act challenge[08] under article ten on freedom of expression[09], article eight on private life [12], or article six on fair and impartial hearing [14]; "courts" here include reviewable tribunals. It seemed appropriate to move option one forward to group it with option three, but the option are restated at the start of part II[32].

M2. Option one involves writing into the Video Recordings Act words which imply, though this is almost certainly not true, that such videos have a substantial circulation to and effect on under-16s[33]. Either this would be interpreted in accordance with reality and be ineffective, or all videos would have to be certificated so that they would not be too disturbing if inadvertently seen by five-year-olds. This would make Britain a world laughingstock[34]. It is absolutely disgraceful and utterly unacceptable to write falsehoods into statute. This option is totally unacceptable and would, moreover, be the most easily overthrown under article ten challenge [37].

M3. Option three deals with politically unacceptable judgements of a fair appeal hearing by introducing bias into that tribunal: either by amending the Video Recordings Act to make its members political appointees, or by more general voluntary changes in its terms of reference[38]. This is likely to provoke an article six challenge[40]. It is a good idea in principle to have the VAC as open as possible in reporting and explaining its decisions, though it is hard to see what extra could be done in practice [42]. Tribunals should not "represent" outside opinion in each decision by being biased or partial, though [43]. It is inappropriate for the government in any form to appoint members of a tribunal whose decisions are always contentious, and which the government is constantly a partisan seeking to bias the outcome, no more than it should appoint the governors of the BBC: it would be seen as putting the fox in charge of the chicken -coop[48]. Fixed periods of appointment to remove dissidents are likewise rejected [49] . An age limit is a bad idea in a body that profits from the experience of retired lawyers or researchers [50]. Lesser changes to the terms of reference are acceptable only if they tend in the direction of impartiality, and do not introduce absurdities such as requiring experts on 12-year olds to judge the circulation of videos to adults only [51].

M4. Option two seeks, if the number of such videos certificated cannot be reduced, to limit the supposed extent of their disttribution to under-16s and the supposed harm done thereby. This would be done with new offences of showing such a video to an under-16, allowing them to see one, or simply taking insufficient care to stop them seeing one; and it is envisaged these would be used against parents in respect of their own children[17]. Penalties and mode of trial are left vague

i.e. would such a parent even have the hope of jury trial[18]. It is not clear why there is an offence as, while under-16s seeing such material may be something one disapproves of, there is a world of difference between that and a wrong for which we can throw parents in jail[19]. Before even showing that harm is done the government would need to show that such exposure even occurs sufficiently often to make such a law necessary: they have brought no evidence of this [20], which they could perfectly well obtain by surveying people after they reached 18. The paper bases its arguments on taking opinion for evidence, and unsupported assertions [21]

M5. Proof of harm. The reason it is hard to show harm from sexually explicit material is probably that there is none [24]. It is possible to research the effect on under-16s without involving them: either supposed effects also exist on over-18s, or those exposed under-16 can be identified afterwards among over-18s [25]. There are not even grounds to think harm might emerge in future[26], and the risk assessment admits there is no proven harm[27]; I would like to see the "evidence" that paedophiles use such material, and how often it occurs compared to the overall consumption[28]. It is unclear whose rights this is all supposed to protect[29], and it does not meet any of the article ten exemptions[30]. Large fines for mail order are disproportionate, as mail order does no greater harm[31]. Even shorn of its worst excesses, the establishment of a politically- motivated offence for something which is not shown to even occur with much frequency let alone do harm is poor idea and likely to be unworkable. It is the least obnoxious of the three proposals, but it is still a very bad idea .

. D.Bird, August 2000.

01. Plain English. This is a public and published response to the consultation paper on R18s and aims to be accessible here and abroad by avoiding jargon terms and references [in particular it avoids the legal usage of "child" for under-16s as contrary to normal English usage, and potentially misleading].

02. The History. The British Board of Film Censorship was established in 1912. The Video Recordings Act of 1984 brought video works under its control, and made it a criminal offence to sell un-certificated videos. It also established an independent Video Appeals Committee, in practice appointed by the BBFC.

03. Nature of Judicial Review. Since the VAC is a tribunal whose decisions affect the public sphere but not an actual court, the decision can further be challenged at a judicial review. This is not yet a further appeal considering the decision from scratch on the evidence. Rather, it could only rule that the tribunal did not constitute a fair appeal in considering all relevant laws and facts.

04. Recent Decisions. In 1999 the BBFC refused R18 [restricted adults only] distribution to six videos from Sheptonhurst, arguing that they must consider these videos would fall into the hands of children and this would cause harm. The VAC rejected this argument, and restored certification. The BBFC as appellee then had the decision reviewed, but the court found that the appeal tribunal had acted reasonably in coming to this decision: as above, it was not asked to test whether the decision was actually correct on the evidence.

05. Government Reaction to them. The Home Secretary [interior minister] made public statements of political dislike for these objective rulings. At monthly parliamentary questions to the Home Secretary at the end of June he said he would bring proposals to change this, and at the end of July he issued the proposals responded to here.

06. Present Proposals. These divide into two areas. Firstly they could change either the basis of decision to mandate decisions politically biased in a direction to suit the government (option one) , or they could change the tribunal composition to remove its fairness by stuffing it full of government appointees to make decisions politically biased in a direction to suit the government (option three). Alternatively, accepting that the foregoing is not only unjust and disgraceful but will not be got away with, they could add new laws on distribution in an attempt to control the extent -- if any -- to which the material certificated reaches under-16s (option two).

07. Proposals as evidence of bias. The manner of public presentation may well , in any legal challenge, itself be introduced as evidence of ill-will in either introducing political bias into a fair proceeding, or introducing a politically-based offence which punishes something where there is no demonstrable harm done.

Human Rights Act.

08. Compliance. Legislation would need to comply with relevant sections of the Human Rights Act. Restrictions on how people can publish, distribute, read, or share books and films generally would have to comply with Article Ten (Freedom of Expression), and restrictions on how people behave with their own family in their own home may fall foul of Article Eight (Right to Privacy and Family Life). Conduct of tribunals may also relate to Article Six (Right to Fair Trial); terms applicable to courts generally apply to public-law reviewable tribunals, and fair hearing is generally held to include fair appeal. Changes which in substance and intent introduce political bias may lead to charges the tribunal was partial.

09. Article Ten, states the following: **1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

10. Nature of Exceptions. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, "Necessary" means that the existence and extent of curbing free expression must be needed to prevent some proven worse harm occurring, and (proportionate) that no lesser measure would be sufficient to do so; "in a democratic society" means that this must be judged on the assumption of the most diverse, liberal and plural culture possible; "prescribed by law" means that the rules and penalties then must not be arbitrary but spelled out in advance, so everyone knows where they stand.

12. Article eight states the following:
**1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society (etc).

13. Etc.

14. Article six states the following: **1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly.... The terms states for a criminal trial, so far as they are appropriate, also apply to the fairness of civil courts and other tribunals. For example (b) to have adequate time and facilities for the preparation of his defence.

The Review

15. Stated Purpose of Review. The Home Secretary took public objection to the effects of the judicial review, and undertook to review ways in which access to explicit material could be made more restrictive. "3. .... In view of the outcome of the judicial review and its implications for the Board’s classification policy, the Home Secretary undertook to consider whether any additional steps could be taken to protect under-16s from possible exposure to the sexually explicit material contained in R18 videos and to consult on the outcome" i.e. to reduce their unauthorised access to this material. "Protect from" (rather than "limit access to") is tendentious: it assumes facts not in evidence, viz that actual harm has been demonstrated.

16. Stated Options. "4. This paper therefore explores a number of options to improve the protection of under-16s in this area" i.e. to make whatever material is issued less available to minors: and "also looks at proposals to" [change the remit or composition of] "the Video Appeals Committee"... presumably, though this is never explicitly spelled out, so as to make it license more restrictively in future. Response to Option One is dealt with later, alongside option three.

PART I: RESPONSE TO OPTION TWO – PENALISING UNAUTHORISED ACCESS.

17. New Offences. Option two proposes "creation of criminal offences of
[a] showing an R18 video to a person under-16;
[b] allowing a person under-16 to watch an R18 video; and
[c] failing to take reasonable care to prevent an under-16 watching an R18 video"
These vary in the extent of intention from a positive act by an adult, to an act which requires the presence or at least knowledge of an adult, to something which can occur without knowing the person under-16 will act in a particular way.
In 3.11 "....in considering whether a prosecution should be brought, the likely trauma to the under-16 in acting as a witness, possibly against family members, would be a factor to be taken into account." Thus it seems to be envisaged that these offences apply to parents choosing their own offspring may see such videos.

18. Scant indication is given as to intended trial or penalty. QUERY #1: for each of the proposed offences can you indicate whether they are triable summarily, before a jury, or either way: also give clearer indication of the likely maximum penalty in each case. The third proposed offence is very widely drawn and involves no intent, so is particularly vulnerable to challenge. It may be held to have a chilling effect on freedom of expression purely among adults, in that people with children may be scared out of viewing material themselves if they risk criminal penalties for not storing it in a safe like fire-arms.

19. Why an offence? While clearly there is some minimum age at which young people become physically+socially ready for sexual activity and, presumably, expression, there is no proven harm in premature exposure to expressions. One sets a limit for the sake of parents’ control over their own children [but the same argument would also say they can choose that, yes, their offspring under-16 are nature enough to see such expressions]. To some extent it is a way of dealing with disturbed individuals who want to infantilise others, "no, you cannot tell another adult their business"; it is a way of keeping the lid on a contentious issue. I don’t think anyone is arguing a positive right or need that under-16s see sexually explicit material: as with a number of things in society, we may personally disapprove. This does not have the automatic contrary that it is therefore a severe wrong, which justifies locking people up in jail. Such restrictions would have to be justified in terms of article ten where they limit expression generally, and article eight where they limit private choice within the family home.

20. Does the event penalised even occur reasonably frequently? Before asking whether some event [in this case the showing of R18 videos to under 16s] does any harm, we must 1st ask whether it even occurs with more than negligible frequency. NO EVIDENCE HAS YET BEEN OFFERED THAT IT DOES, AND NO INVESTIGATIONS HAVE BEEN PROPOSED AS TO HOW OFTEN IT OCCURS. Such an investigation is perfectly feasible without putting under-16s at even potential risk of hypothetical harms. Obviously it would be a waste of parliamentary time to criminalise that which rarely or never occurs, simply as a publicity gesture. Of course it is possible in newspaper rhetoric to say that "one occurence is one too many". But in human rights considerations whether it is necessary and proportionate to outlaw some action supposed to cause minor harm, even before investigating whether there is proven harm, one might simply argue that criminal penalties are a sledgehammer to crack a nut if the event penalised is quite rare so that the sum total of supposed harm would not justify a legal ban anyway. Similarly it will seem odd to have such an offence for an R18 video, but not for an uncertificated explicit sex video, or a live or taped showing of an explicit satellite TV channel.

22. "There is concern that the mechanistic and impersonal way sexual activity can be portrayed in the videos could cause harm to under-16s if they were to view it." Again this is opinion not evidence. "Although the evidence of such harmful effects is limited," the correct word is "nonexistent". "This reflects the difficulty of conducting formal research in this area."

23. "[And that] would necessarily involve showing such material to under-16s." This is simply false, as analysed below. "The aim of this consultation exercise is to consider ways in which the most vulnerable in our society can be better protected from exposure to these videos" The word "protected" is inappropriate where harm is not proved, and would seem an attempt at circular argument: people must have their access to this material restricted because they need to be protected from it, because they need to have their access to it restricted, because... etc.

(re option two: ) Proof of Harm.

24. It is difficult to show "harmful changes in behaviour" caused by "sexually explicit material" because it is hard to precisely define and numerically measure each of these terms. Most studies show people more alert and responsive to their environment and more friendly to those around them when they have seen something enjoyable like sex, compared to when they have seen something nasty or tedious. While it is impossible to prove a negative, the failure to produce any consistent result under more and more frantic searches for harm caused certainly suggest those researchers are chasing after something which is non-existent.

25. A false notion is being smuggled in that we cannot test the effect on under-16s because it would be unethical to expose them to material which might, though it certainly doesn’t appear to, do them harm. In fact it is quite possible to measure such an imagined harm to under-16s without involving under-16s.

1. If it is imagined that there is some harm in viewing sexually explicit material, as in tobacco smoking or immoderate drinking, which affects all involved but which adults can choose to risk, then we could show harm to adults: studies show no such thing.
2. If it is imagined there is some harm in premature exposure which is greater the younger the exposure occurred, we could take 20 000 randomly selected adults and find those who had early exposure to sexual material then investigate whether it seems to have affected them adversely.

26. Precautionary harm. Sometimes it is reasonable to act as if there might be harm where (i) many other things of a similar category have been found to be harmful, or (ii) the material is so far from common experience that we have nothing to relate it to. Neither of these apply to sexually explicit material. To institute a law and jail people you need at least to show rational grounds for fearing harm might emerge, if not the fact of proven harm.

27. Under Risk Assessment, in R(3) "[......] Unlike tobacco and alcohol, which are widely available, there is no known and substantiated health or other risk associated with watching a video which has been given an R18 classification." In my view this is an absolute admission that any of the above proposed laws restricting distribution are contrary to the Human Rights Act / ECHR and should be thrown out. In this context "However, there is widespread public concern about the possibility of children viewing sexually explicit material" concern is not evidence such as is needed for a law restricting rights, and in "which is clearly unsuitable for them" the word "clearly" in inappropriate or inaccurate where the authors admit that the reasoning - even if it should run in their favour - is far from clear. Further in "the Government takes the common sense view that exposure to such material at an early age may be harmful to children. There is, therefore, a need to ensure that controls on the distribution and viewing of these videos is as stringent as possible" the words "therefore" and "need" make no sense: you cannot say "on the basis of this evidence", where you have offered no evidence.

I have further queried what is meant here by "common sense". Does this mean that law is to be based on that which is commonly believed without evidence [prejudice, fiddle-faddle, old-wives’ tales]? Or is it a claim to some sort of superior wisdom which trumps reason, and reality: ignoring the evidence is not wise but foolish!

28. In the executive summary at S(1), "There is, however, evidence that sometimes this type of material is used by paedophiles to ]'groom' under16s for sexual abuse." There is undoubtedly evidence that kitchen knives have once or twice been used in fatal stabbings: therefore kitchen knives should be banned? There is evidence that the kind of glue needed to make model boats, a wasteful and unnecessary activity, has been used for sniffing: therefore ban that glue? Perhaps not. Frankly this sounds like rubbish put in, without citing cases, to please the Daily Mail. I have written asking for clarification as to (a) what and where is the evidence; (b) in how many cases does this occur, and how much if anything would be gained in reducing paedophile offending by such a ban or would it continue more or less unabated; (c) roughly what proportion does this form of the over-all consumption of sexually explicit material, and is a ban on such expressions therefore likely to be considered necessary in its existence and extent to combat a real proven wrong. R v Whitehouse [1977] found, regretfully, that grooming or inciting someone to a paedophile act is not of itself an offence; though I can follow what you are saying that, if an actual sexual offence took place, then the preliminary showing of a video might go with that offence to indictment and attract higher penalties there.

29. Who is being protected? Along with the failure to coherently identify the supposed harm, there is a lack of clarity who restrictions are meant to protect. Are they meant to protect society from some crime or disorder induced, which would have to be proved. Are they meant to protect the young person from rashly making choices they might later regret, in which case again some actual harm needs to be shown. Or are they meant to define the rights of parents to make such choices for their offspring, in which case they should (i) defend the right to say yes as much as to say no and(ii) should be based on a complaint by a parent that the defendant "showed a person under-16 an R18 video, where they knew or should reasonably have suspected from parent or child that this was against the wishes of the parent."
Grounds for exception. Each of the grounds for exception to article ten listed in paragraph 11 supra, and of the similar exceptions to article eight, is not an excuse to make broad sweeping assertions but a basis to show specific harm. For instance, acting for the protection of morals should require showing that people in some measurable way acting less morally or considerately as a direct result of the material to be banned. There is no evidence to show that mail order distribut-ion of R18 does more harm than any other form of distribution, so increased fines are disproportionate to the supposed level of harm done: they are not justified in principle, and likely to be thrown out in any challenge under article ten.

30. A strange kind of law. A normal and sensible request for a a law on some unfair practice would start with (i) a large number of people complaining they had been hurt (ii)in ways which were clearly visible as loss or injury but which (iii) current law was inadequate to prevent. That no frequent occurrence of the event to be banned is shown, let alone harm done by it, speaks volumes: this is being done as a political sop to obsessives who think they are incorruptible but they must take charge of what their inferiors see. It simply cannot be demonstrated that such a law is "necessary in a democratic society". There is no need for it.

31. RESPONSE TO OPTION TWO. Option two should exclude any nebulous offence of "failing to prevent..." falling below the normal standard of culpable negligence, or it will be thrown out as disproportionate for the chilling effect of making adults with children fear holding such material. Any offence should be on complaint from the parent or guardian. Increased sentences for mail order are disproportionate, as mail order is not shown to cause more harm than other distribution. Option two is the least objectionable on social policy grounds, as it does not attack any freedom or fairness which we positively defend. Nevertheless, in creating politically-motivated offences whereby defendants can be jailed for doing that which the crowd disapproves of but which is not proved to do harm [and which are a restriction on rights of free expression or private conduct in the home], it is very likely to be thrown out on a human rights act challenge.

PART II: RESPONSE TO OPTION THREE (AND ONE) – CHANGING THE BASIS OF JUDGEMENT.

32. Preventive vs restrictive options. The paper was issued in response to objections that increasing numbers of sexually explicit materials were certif-icated, and would allegedly reach under-16s causing some supposed harm thereby. In 3.16 it is implied that, if the minister dislikes the VAC making fair and impartial decisions, then he make seek to alter the basis of the law on which they are made (option one) or of the tribunal which makes them (option three) so it becomes politically biased in the direction of licensing less videos. Failing this, if numbers certificated could not be reduced, then steps were to be taken be taken (option two, above) aimed at reducing the supposed extent -- if any -- to which this material reaches under-16s.

Option one.

33. The Review Decision. Per paragraphs 02 through 05 supra, the court confirmed that the VAC had properly followed principles of fairness and applicable statutes in deciding it was not reasonable to treat R18 videos as if people well below 18 also had access to them.   The court was not asked to find from scratch whether this decision was in fact right given the evidence, though it is likely a British or Strasbourg court would decide thus if asked.

34. Amending the VRA accordingly. In 3.1, noting that section 4A of the Video Recordings Act 1984 says videos must be classified with regard to their effect on potential viewers, it is possible to amend this to add "including under-16s". In assessing videos [but not films] for an age rating, the BBFC and VAC would need to consider their effect both (i) on the intended age of audience for which they were certificated, and (ii) on any unintended they might reach even down to age five, whether the effect of a few unintentional showings is so disturbing that the work should not be released to 16- or 18-year olds at all.

35. Interpretation.It is possible to interpret this (a) in a sane way, that it must take account of reality and consider it only to the actual extent younger people are likely to see the work concerned, in which case the amendment would be ineffective. Or it could be interpreted (b) in a Martian way, that the BBFC and VAC must act as if such material is proved to reach younger people and proved to cause them harm, even when this is in fact clearly false.

36. How the courts assess challenges. In assessing the validity of decisions based on statute the courts see that the actual words passed by parliament are given effect, but only the actual wording that was agreed to be fair and put forward to be voted upon. (i) The basis of judicial review is not in any case whether a decision was correct in fact, but whether it follows the literal wording of the applicable statues; therefore a court well say the VAC should follow a "Martian" interpretation of the law [without considering that the law is false-to-fact or an absurdity]. (ii) The basis of a Human Rights Act challenge is that parliament unintended the words of the human rights act, and it intended the words of a particular stature, but it intended them – unless it explicitly wrote otherwise – to be read as compatible with the words of the Human Rights Act. It then enquires whether they are. Such an amendment would then very certainly be thrown out.

37. RESPONSE TO OPTION ONE. Writing deliberate falsehoods into statute, so that tribunals such as the BBFC or VAC must rule as if they are true, is dishonest, dishonourable, despicable, and worthy of a dictatorship like Singapore. Rating all videos on the basis they will inadvertently be seen by five year olds would make us a worldwide laughing-stock. Further, of all the options, this is the one guaranteed not to last five minutes after accession of the Human Rights Act.

Option three.

38. Altering the tribunal. In 3.16 it is proposed that, if the minister feels the VAC is making impartial decisions he disapproves of, he may shift it in a political direction more to his taste. The word "modernisation" is inappropriate, since it implies a corrupt or politicised form of tribunal is better than a fair one if only it is newer. These changes can be divided by extent and method into (a) changing the direction of the BBFC to political appointees by an actual change of statute [presumably another amendment to the Video Recordings Act 1984]; or (b) what in 3.20 called "fundamental reorganisation of the BBFC" by agreement.

39. Context suggests bias. Per paragraphs 02 through 07 supra, the sequence of events is that the VAC came to a properly impartial decision, which the courts confirmed was properly arrived at [they were not asked to enquire if it was in fact correct], and the minister took political objection, therefore proposing to bring political bias to the tribunal concerned. Both the intention and effect is wrongful, and this is likely to be raised at any legal challenge to it.

40. Likely challenges. At some stage a maker or distributor of films is likely to be threatened with severe financial loss through non-certification, either because falsehoods have been written into the face of statute, or because the tribunal has been stuffed with political appointees and any dissidents threatened with early removal so that –- after sitting with every appearance of fairness which would be upheld at judicial review –- it nevertheless makes a biased and partial decision, contrary to evidence, against him. He will almost certainly hold that this abridges his rights of free expression under article ten. In the case of option three he is also likely to invoke article six, right to "a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". Fair hearing is held to include fair appeal, and it includes criminal or civil trials and other public law reviewable tribunals, with each of the terms for criminal trials applying to the extent individually appropriate. The suggestion will be that the hearing has deliberately been made biased.

Accountability.

41. In 3.17 it is asserted there is public feeling that the VAC is "unaccountable" and "unrepresentative" . Government must respond to public concern, but concern is not evidence of actual harm. This is evidenced by the number of letters received to that effect. I have asked approximately how many this is, and what proportion said it was too lax versus too strict (and equal level would suggest that the balance might be about right).

42. We need to analyse the terms "open", "accountable", and "representative". Open means the body pro-actively explains itself as to its policies in general and its reasons for particular decisions, as well as holding hearings in public.     Accountable means that it hears and answers criticisms after the fact though the answer may be "we stand by what we were obliged to decide out of fairness". Credibility or respect is a different matter: a tribunal which is baised or easily swayed may lose respect, and open accounting may then only worsen its reputation.

43. Representative is a strange word to apply to courts or tribunals. If the members "represent" some opinion group in their decisions, then surely this is the same as being partial and dependent –- very undesirable qualities in a tribunal.
A popular newspaper can be expected to be exactly representative of its readers views in forming a verdict on any particular case, i.e. it should say what the readers would want said if they had time to sit down and consider the case them-selves. In particular it would treat unpopular defendants worse than popular ones, prefer what is widely believed and false over what is fact, and so forth. A court must however, at very least, apply an even set of rules equitably to judge circumstances, rather than judge defendants personally.

44. Ways forward. I certainly favour the BBFC being as open as possible, and accountable in explaining its decisions after the fact. Given that its annual report to parliament [and the possibility of bringing it before the Home Affairs select committee], I cannot see what further accountability there might be, but I have asked for written clarification on this point. I cannot see what could sensibly be meant by making an impartial hearing more "representative" – I have also sought clarification on this – and do not generally favour any such thing.

OPTION 3(a) – Forcible Statutory Change, to State Appointees.

46. In 3.19 it is proposed to change the statutory basis of the VAC:
(a) to make the members government appointees; (b) to set a fixed term of office so that dissidents can in time be removed or can be threatened with removal; and (c) to lay down criteria of appointment which will cause more politically acceptable, and less impartial, people to be appointed.

47. Suggestions that the VAC, while remaining fair and impartial, might do more to explain its work and decisions are reasonable in principle, although it is hard to see what they would actually do in practice.

48. In 3.18 it suggests it "might be inappropriate for the Home Secretary to be involved in appointing"such a body, because it "needs to be seen to be wholly independent". I would say it is wrong to have any government appointment even by the Lord Chancellor [the justice minister, who appoints judges]. It is all very well for him to appoint some national planning appeals panel. In film and video censorship almost every major appeal ends with opinion groups, newspapers, and not least government, screaming the odds and trying to bias the outcome. The only worse context I can think of for direct appointment is the governors of the British Broadcasting Corporation, where they would be seizing control over broad-cast criticism of their own political acts. No government should be anywhere near any such tribunal appointments where it has a direct axe to grind in most of the decisions: any reasonable person would see it as putting the fox in charge of the chicken-coop. Far be it from me to say that any present or future Lord Chancellor would show bias, but the normal principle in law is to avoid any conflict of interests which might give the appearance of possible bias.

49. Fixed periods. For similar reasons, the state should not be able to set fixed periods of appointment so they can remove, or threaten removal of, dissidents.

50. Age Limits. An age-limit is not a good idea; typically such a tribunal might benefit from the expertise of retired lawyers, researchers, or film-makers, who would not be able to give the time during their working lives.

OPTION 3(b) – Voluntary Change, write Explicit Terms of Reference.

51. Terms of Reference. It is not unreasonable in principle to set more definite terms for the VAC – it depends what these terms are, they would have to be seen to be in the direction of fairness and impartiality, and they would have to be consulted on first. They are bound to be views with some initial suspicion, as the government started out in bad faith seeking ways to corrupt the impartiality of the tribunal and introduce political bias. They would also be crossing something of a rubicon as,if an attempt was made to decrease honesty and fairness, they would prove a clear target for an article six challenge.

52. Terms of reference in general would need to say something like:
(a) the BBFC decides whether film and video works should be released and to what age of audience, and the VAC constitutes an independent appeal body for videos.
(b) since their decisions bear on freedom of expression and have major financial effects, they are subject to judicial review and to human rights act challenges,
(c) such further rules as are set must be justified by the extent they help the fairness and impartiality of these tribunals.

On membership rules should say something like:
(d) Members of the VAC must be people of good character and sound judgement, they must be independent of any particular appellant or the apellee the BBFC, and they must not represent any group with a stake or opinion in the matter to the extent they cannot make fully independent and impartial decisions on each case.
(e) It is useful for members to have relevant experience in one or more of
[i] writing, publishing, distributing, on analysing book or film, or
[ii] researching the impact of media on behaviour, or
[iii]practising law, conducting fair tribunals, and writing reasoned judgements.
(f) To the extent a particular appeal considers releasing material to a particular age of minors, some of those involved should have expertise to that age-group; or if release will be only to adults then it is not relevant to include such members.

54. RESPONSE TO OPTION THREE. (i) Changing the law to make members of the VAC political appointees is absolutely unacceptable in matters of political controversy where government is a direct partisan, almost as much as it would be for the governors of the BBC. Fixed periods of appointment for removing dissidents are unacceptable. An age limit is simply misconceived, as such bodies often benefit from the wisdom of retired barristers or researchers. (ii) Changing the terms of reference voluntarily would be acceptable if, after starting off in bad faith, the government did so strictly in a direction of fairness; if the government is seeking to corrupt the tribunals fairness then frankly they would be better to do so quietly not write down what they are doing, as they would be painting a target on their backs for an article six challenge. (iii) It is always good that the VAC clearly explain what it is doing, as opposed to be swayed or partial, but it is difficult to say what in practical steps it could take to improve its reporting and explanation of decisions.

55. CONCLUSION. The Video Appeals Committee made a fair decision to certificate more sexually explicit videos, and the courts agreed it had acted reasonably in reaching this decision, but the Home Secretary made political objection to this and sought to propose measures which could prevent this allegedly getting explicit material to under-16s and thereby allegedly causing harm: either by changing the terms of judgement so less such videos were certificated, or by penalising their transfer to under-16s. Option one, writing falsehoods into the law so the VAC would have to act as if they were true is absolutely unacceptable. Option three, undermining the fairness of the tribunal by statutory change to make them state appointees is also unacceptable. Writing clearer voluntary terms of reference is, if it tends in the direction of fairness, not itself unreasonable – if intended to undermine fairness the governement would be making a rod for their own back in an article six challenge. Option two of creating new offences, shorn of its worst accesses, is not outright disgraceful in attacking rights and fairness which everyone defends. But, while circulating explicit materials to under-16s is something one might find objectionable, there is a world of difference between that and something we can throw people in jail for. The government have not even shown that this occurs to any significant extent, so that an offence might be necessary. Still less have they shown a proven harm such as would be needed to survive an article ten challenge. Therefore my advice is the same as that to a man in quicksand who asks me in which direction he should thrash around: the answer is "none of them, they will all dig you in deeper". While option one is worst, option three is worse, and option two is merely unworkable, the government would be wisest to see that none of them is any good in the end.

D. Bird, August 2000

56. Reply to my queries. I wrote to Steve Ruddell with some in initial queries, and received a response, which is dealt with below.

57. Accountability. "Accountability" was a code word for not doing what the writers wanted. Several hundred letters had been received, almost entirely advocating new censorship. However, the BBFC held widespread consultations by open meeting and by large-sample opinion polls: a much wider and more accurate test of opinion than a few writers in green ink. The conclusion was, while people wanted more censor-ship for young children on some areas such as drug use, they felt consenting adult viewers could see all consenting adult acts. 58. The VAC. The Appeals Committee rarely if ever meets because the BBFC, when over-ruled, immediately seeks to get a court ruling or adjust its judgements to the appeal criteria: it does not waste time on a see-saw of continually ruling to be over-ruled. Stuffing the appeal with government cronies as an act of spite would therefore, inter alia, have little or no effect on practical outcomes.

59. Harm done. Two arguments were advanced as to harm done. First that paedophiles definitely do engage in "grooming" behaviour and that this has on one or more occasion included sexually explicit materials, citing studies by Denis Howett at Leicester and others. This is akin to saying that kitchen knives have occasionally been used in violent stabbings because, as strong sharp knives, their nature is easily turned to such mis-use once their owner wills it. There is a big gap to saying that kitchen knives are the main instrument of most violent attacks, that banning kitchen knives would strongly reduce violent attacks, and that kitchen knives should therefore be banned. The second argument aimed at carelessly allowing etc is that under-16s "must be" prematurely sexualised by such experience and this "must be" to their detriment. This is arm waving rubbish: if true it could be shown to have practical outcomes such as younger first sexual experience and harm to later life resulting, by survey of over-18s to find those who have had such experiences.

60. Conclusion. My conclusion on "how to" cause increased censorship is the same as on "how to" saw your leg off or jump into quicksand: don't do it, it is harmful and stupid, and the public don't want it. The same goes for rendering a court politically biased (or passing token "dangerous dogs" act) out of spite even though they actually won't change the outcome, to "show something is being done" to make things worse. You don't need to make things worse, and the public don't want you to. Don't do it!

Dave Bird, Sept 2000.