Another fine mess…
Julian Petley says the Video Recordings Act fiasco offers a chance to review the UK's censorious laws
26 Aug 09

Legislate in haste, repent at leisure — that, most assuredly, is the lesson of the really quite extraordinary news that the Video Recordings Act 1984 was never referred to the European Commission, was thus never officially enacted and now cannot be enforced. But no one who can remember the really quite demented moral panic about “video nasties” which bounced the ill-conceived measure onto the statute book in the first place, or the absolutely ludicrous attempt to pin the murder of James Bulger on the video of Child’s Play 3, which resulted in the Act being amended in 1994, should be remotely surprised that, in desperation to appease at all costs the ever-vociferous Something Must Be Done lobby, corners were cut. And how!

The opportunities here for Schadenfreude are truly delicious. First of all, the original Act was passed when Leon Brittan was Conservative Home Secretary and amended, in a deal brokered by the then shadow Home Secretary, one Anthony Blair, when Michael Howard was in charge at the Home Office. One really couldn’t wish comeuppance on a more loathsome trio. Second — and I’ve seen no discussion of this anywhere in the media — the reason why the Act should have been referred to the European Commission is because it constitutes a restraint on intra-EU trade, in that it entails that videos/DVDs which have not been certificated by the BBFC cannot legally be imported from another EU country and then sold or rented in the UK. Far from being an example of Britain being “ruled from Brussels”, as Little Englander xenophobes are all too predictably shrieking on the Daily Mail and Times websites, this requirement is in fact a perfect expression of the “free trade” philosophy which so many Conservatives find the only attractive aspect of the European Union (which the Neanderthal tendency still insists, of course, on calling the Common Market).

The Department of Culture, Media and Sport has said that it has received legal advice that people who have been found guilty under the Act (1,659 between 1995 and 2007) would be unable to overturn their convictions or seek compensation. But this is quite simply whistling in the dark. Hard though it may be to agree with Keith Vaz, the normally highly censorious chairman of the Commons Home Affairs select committee, he is surely entirely correct in asserting that “if the Act has never been brought into force, prosecutions under it are void. You cannot prosecute someone and convict them on the basis of legislation that has never been in force.” Far from being the case, as Barbara Follett, Minister for Culture and Tourism, put it, that the Act “is no longer enforceable in against individuals in the United Kingdom courts”, it was clearly never enforceable, and thus never should have been enforced, in the first place! If I was one of the unfortunate victims of this un-enacted Act, I would most certainly be consulting m’learned friends without further ado.

The government has made it clear that it intends to re-enact the legislation. However, rather than letting them simply rubber stamp this non-Act and proceed as if nothing has happened, would this not be the perfect opportunity to engage, finally, in a sensible debate about video regulation, a debate which was quite impossible in the over-heated and febrile atmosphere of 1984 and 1994?

The British Board of Film Classification actually does a very useful job of classifying films and DVDs and offering consumer advice, but thanks to the censorious flummery contained in the Act, in 2007 it cut a staggering 206 of the 950 DVDs which it passed at “18” and 314 of the 1,159 which it passed at “R18”. What most people entirely fail to realise (because the press never tells them) is that the vast majority of cuts which the BBFC makes to films and DVDs are not in the categories aimed at children and young people but in those meant solely for adult audiences. Furthermore, children and young people don’t need either the Act or the BBFC to protect them from being exposed to pornography, as this is the province of the vast (and ever-expanding) battery of child protection legislation and agencies which now exists in the UK.

If the Act were expunged from the statute book, as it should be, the BBFC could finally settle down to being the purely consumer advisory body which it doubtless longs to be, and adults in the UK would finally be treated as adults when it comes to their choice of viewing. Is this really too much to ask in a democracy in the 21st century? The fact that the answer is “probably yes” shows, once again, just how peculiarly suffocating and tenacious is the stranglehold exercised by censorious opinion on matters pertaining to freedom of expression in the UK.

However, this is just too good a story to end on a downbeat note. This is an excruciatingly embarrassing occurrence for all those involved, and much more so than has been admitted by the press, most of which, having played an absolutely key role in panicking the Act and its later amendments onto the statute book in the first place, should (but won’t) take its fair share of blame for bringing about this truly ludicrous state of affairs. But for all those who suffered the nightmare years of the “video nasties” and the heavy-handed policing of the Act which followed, there is really only one possible response to this gob-smacking piece of news –– HA-BLOODY-HA!

An edited version of this article is published at Liberty Central