28 April 2010

Sod it... Holyrood to abolish sedition!

... although I prophesied light and airy blogging, I can't resist mentioning the important and substantive business afoot in Holyrood's Justice Committee. They are considering amendments at Stage 2 to the many-headed hydra that is the Criminal Justice  and Licensing (Scotland) Bill. In their earlier session, on the casting vote of Baillie Bill the divided Committee supported Labour amendments to introduce a quasi-sorta-ish-mandatory presumption that those carrying knives get the jail for at least six months. They also opposed and voted down the progressive, sensible and radical SNP policy of shifting tack by enshrining in law the presumption that Scotland's shrieval and justiciars' benches shouldn't hand down sentences of less than six months. At the final vote in stage 3, it seems likely that both of these decisions may well be reversed by the full house. Although the official report of yesterday's Justice Committee meeting has not yet been published online (as I rattle this out, that is), the Scotsman clearly had an odd-bod in the room, taking notes. Important indicative decisions from the Committee here on important questions of wide concern, including how long the police should be allowed to retain the DNA of those who are not convicted of any offence - or what minimum age an accused person should attain before they're hauled in front of the nation's sheriff or even high courts. I'll probably come back to this, once I've a heartier text to feast the eyes on.

There were also a few interesting touches in the Committee's session last week which I couldn't resist sharing with you. After reviewing a roll of grim concerns - prostitution, people trafficking and any number of horrors - the Committee surrendered to a crackle of mirth over curious historical legal gewgaws which will be of some interest to those antiquarians amongst you, interested in the crooked historical timbers of Scots law, many beams of which are still technically the law of the land. At last! Holyrood is going to abolish sedition!  Journalists need fear the fate of Robert-Francois Damiens no longer, for lèse majesté is also following sedition into the consuming stomach of legal forgetfulness. I can almost hear Thomas Muir's cheers resounding from the mouth of his melancholy grave in France. As ever, Baillie Bill presided with his usual air of adenoidal levity -

Fergus Ewing: Amendments 114, 189, 192, 194 and 196 allow me to pay tribute to the Liberal Democrats—not in this Parliament, but at Westminster.  It was Dr Evan Harris MP who first raised the continuing existence in England of the offences of sedition and seditious libel during the passage through Parliament last year of the Coroners and Justice Bill. As he said, although it would be unthinkable for the state to use the offences today in the way that they were used against the likes of John Wilkes in previous centuries, they remain part of our law. Theoretically, every time that a journalist harangues the Government or a comedian insults the Crown, they are liable to be arrested.

The provisions are more than a mere theoretical curiosity to amuse law students. More importantly, the fact that the UK has such laws is used as a convenient excuse for repressive regimes worldwide to have, and to use, their own. In such countries not only is there a chilling effect—people being too afraid to air criticism of the authorities and elites—but citizens are regularly prosecuted for speaking out. The UK Government was seized of the force of the arguments and tabled amendments to the Coroners and Justice Bill to sweep away the offences of sedition, seditious libel, obscene libel and defamatory libel in the rest of the UK. We believe that it is appropriate for us to follow suit and lay finally to rest the Scots law offences of sedition and leasing-making, which is what amendment 114 does. That will help give the UK greater moral authority when dealing with repressive regimes.

Angela Constance: It would be interesting if the minister could explain leasing-making when he winds up.

The Convener: I am sure that he will do so. While he is being advised, I should say that there is a delicious irony in a Scottish National Party Government minister—a representative of a party that I have always thought to be a seditious bunch—moving that that part of the law be removed and those of us of greater ilk being denied the protection that the law presently allows against being traduced in such an unseemly manner.

Stewart Maxwell: I am not sure that that meets the criterion for being respectful to other members of the Parliament. [Laughter.]

The Convener: Mr Ewing, would you like to sum up?

Fergus Ewing: Indeed. I was not aware that every time a journalist harangues the Government, he is liable to be arrested. Had I known that, convener, history might have been somewhat different. However, as a habitually loyal colleague, I am happy to move the amendments. When I read out the words "leasing-making", I wondered whether a typographical error had crept into my script; that is why I paused momentarily. However, there is no error—one does not expect errors from one's officials—and it means lese-majesty, or the act of making critical remarks of Her Majesty, so I am happy to have lodged the amendment. I am pleased say that, according to the current edition of Gordon, there have been no reported prosecutions for leasing-making since 1715. Members can draw whatever conclusions they wish from that fact.

The Convener: Yes—we are entitled to some light relief after a heavy morning.

One bundle of weights pressing down on the Committee's collective mind were the sections of the Bill which will introduce offences of directing serious organised crime and failing to report serious organised crime. In particular, Robert Brown (Liberal Democrat) had a number of apt questions about the breadth of these provisions that needed asking. He didn't press his amendments, however, and further analysis of the detailed wording continues on into the stage 3 deliberations. Add to that possession of extreme pornography and voyeurism. As the Bill was introduced, extremity was defined in the following charming fashion. If you are unfortunate enough to be a soul who specialises in necrophiliac bestiality in Scotland, you are soon to be out of luck.

34 (6) An image is extreme if it depicts, in an explicit and realistic way any of the following—
(a) an act which takes or threatens a person’s life,
(b) an act which results, or is likely to result, in a person’s severe injury,
(c) rape or other non-consensual penetrative sexual activity,
(d) sexual activity involving (directly or indirectly) a human corpse,
(e) an act which involves sexual activity between a person and an animal (or the carcase of an animal).

I should also add, thank heavens I wasn't in the committee room when this was being discussed. I'm not sure if I could have survived the ordeal of listening to Fergus Ewing's repeated references to "so-called up-skirt voyeurism"...


  1. I really am curious as to what Leasing-Making is.

  2. And now I know, thanks to the dictionary. I presume there is some kind of Latin or Scots root there.

  3. Spreading calumnies against the sovereign just won't be the same any more *sniffles*. Still, promising material for the days when I'm an old(er) git, tediously lecturing the young by summoning up remembrance of baroque legalisms past.

  4. .....and so - does the rare and usually unintended flash (camera not required) of a highlander's but'n'ben not count, I do hope so.

    "A Man's a Man for a' that" - a poem and song of stature compared to the 6th verse - "crush" aye right!

  5. Fear not, Clarinda. I'm pleased(?) to confirm that up-skirt can be interpreted as up-kilt. A surreptitious glance may be forgiveable, but if you slyly produce recording devices unbeknownst to the tartaned object of your attention, you may be in difficulty.

    I quote from the minister, for your peace of mind. Brace thyself...

    "Amendment 110 extends the offence of voyeurism so that it is committed where a person records an image of the victim's genitals or buttocks from beneath their clothing or operates equipment beneath the victim's clothing with the intention of enabling any person to observe his or her buttocks or genitals, whether in a public place or not, in circumstances in which they would not otherwise be visible, and does so without that person's consent. As such, it ensures that so-called up-skirt voyeurism falls within the scope of the new offence."