EMPLOYMENT (CHILDREN IN ENTERTAINMENT) (Hansard, 23 July 1965)

§ Mr. Hugh Jenkins (Putney)

The subject of children in entertainment first came to my notice about 15 years ago, when I became a member of the staff of British Actors Equity Association. That was in the heyday of the post-war pantomime period—the pantomime period of 1950–51. I then found to my astonishment, as a virtual outsider at that time, that in many pantomimes the "second line of the chorus", as it was called, consisted exclusively of girls between the ages of 12 and 15.

It was the custom then for the second line of the chorus to consist of these 2235 children because their employment was cheaper than that of adults. A few shillings a week was all that was paid, the conditions of employment were frequently quite appalling, and it was a large-scale employment. The nature of the exploitation of children has since changed, but I will show that it has continued.

As I say, in 1950, the pantomime season was a very big-scale piece of employment. It has since declined, but it still goes on, and very large numbers of children are still engaged each Christmas in the pantomime chorus. They are engaged because they are attractive—it is nice to see children dancing—but they are also employed because their labour is cheaper than that of fully-grown dancers.

The 1933 Act is supposed to govern the position, but by no means does so. It is in force in the area of the theatre, but is not in force at all in the area of television, and it is only partly in force in films. We therefore have the very peculiar position that the 1933 Act has not been fully carried out, and the law has been regularly flouted. This situation caused a great deal of uneasiness, and a few years ago it was decided to introduce a new law to cover the areas of films and television. As a result, we had the 1963 Act, but that will not come into force until regulations under Statutory Instrument are introduced by the Home Secretary. The 1963 Act will then become the effective law; in the meantime, the 1933 Act is the law.

What I have so far said, is, I hope, common ground between my right hon. and learned Friend the Attorney-General and myself, but we shall discover some areas where we do not get common ground. The present law was summarised by the hon. Member for Oxford (Mr. Woodhouse), in the Second Reading debate on 27th February, 1963, when he said of it: It provides that a child under school-leaving age cannot, in general, take part in any entertainment for which a charge is made to any of the audience except under a licence granted by the local education authority. A licence cannot be granted for a child under 12, or under 13 in Scotland, nor can it authorise employment on Sunday."—[OFFICIAL REPORT, 27th February, 1963; Vol. 672, c. 1279.] 2236 As to films, it was stated by the Department for Education and Science on 12th August last that a child of age 12 may not be employed at all. That is the law, but, as I shall show, the law is not being observed. For example, towards the end of 1963 an agency which specialises in the employment of childern—there are a number of such agencies—called the Phildene Stage School and Theatrical Agency, advertised a number of children as being shortly available. Among them was Elizabeth Dear, aged 10, child star of "Greengage Summer", who was currently working on "The Pumpkin Eater" for Romulus Films, would be shortly available.

The facts were drawn to the attention of Middlesex County Council, the licensing authority which licensed the agency concerned. The public control department officer said: I feel that it quite wrong for my department to try to initiate action to enforce the Children and Young Persons Act. Neither I nor any of my staff have any authority to make inspections or investigations in respect of it. When it was suggested to that authority that it should refer the matter to the education authority, it did so, but when pressed it said: Nothing has been heard as to whether or not the education officer … has done anything. The matter was taken to the Department of Education and Science which said: The Act does not specify who shall prosecute in a particular case, but it does seem that it ought to be the local education authority though presumably it is open to anyone to lay the necessary information for a prosecution. My right hon. and learned Friend the Attorney-General said quite recently that it is the Home Secretary who is responsible for legislation on the employment of children". At the local government level and also at national government level there is a great deal of passing the buck in this matter. No one is responsible. When we have a law which is not being observed, the tendency to pass the buck is inevitable.

The Postmaster-General was recently asked if he was concerned about the obvious breaking of the law in television programmes in which children of all ages 2237 are engaged. He said that it was nothing to do with him. The President of the Board of Trade was asked if the question of children under the age limit acting in the films came under his Department and he said that it had nothing to do with him.

My right hon. and learned Friend the Attorney-General has landed the buck and he is with it now. He pointed out in correspondence that paragraph 24 of the Bateson Committee's Report of 1950, which looked into the whole question, refers to some of the difficulties which had been encountered when attempts had been made to obtain information about the possibility that offences were being committed. It was suggested that people would like to enforce the law, but that, somehow, they could not manage it. The Attorney-General says "Local authorities can only enter studios where television or other films are actually being shot. If they think that the law is being broken they can obtain a justice's warrant, but, in practice, they have no knowledge of the matter until after a film has been shot."

The Bateson Report said: By mutual consent an extra-statutory settlement has been made for securing the right to require and to supervise arrangement for the welfare and continued education of child film actors. Over the whole 15 years what my right hon. and learned Friend said was the case has not been the case. In fact, film authorities have been associated with and conniving with education authorities that the law shall be broken. An education officer will say, "I will come to see that you have no children employed here tomorrow. Will you get them out of the way?" He does not actually see the children there, and puts the telescope to his blind eye.

The Bateson Report went on to say, in its recommendations: Subject to exceptions, … no child under the age of 16 years should be employed in any branch of entertainment except under licence". In other words, it was raising the age from 12 to 16 years. It went on: In view of the possible effect of lighting on eyesight in films and television, (a) in the preliminary medical examination special attention should be given to eyes; (b) all children under two years of age should be examined within 24 hours after employment 2238 ceases; and (c) the maximum exposure at any one time should be 30 seconds for a child under six months, 60 seconds for children between six months and two years of age, and two minutes for children between two and seven years of age. The Bateson Committee then contemplated that the law should be changed to permit the employment of children in certain circumstances, subject to very rigid safeguards and conditions which it laid down.

British Actors' Equity Association took a rather different view. Gordon Sandison, who was then General Secretary and one of the greatest general secretaries that any trade union has ever had, and whose early death at the age of 47 was a very great tragedy, said, on 21st December, 1950: It is our considered opinion that as a general principle the Committee should regard the employment of children in the entertainment industry in the same manner as they would regard such employment in any other industry …. The employment of children is prima facie harmful to their education, their development and their free life as children. If Gordon Sandison were alive today, he would be horrified with the developments over the last 15 years.

The evidence of the T.U.C. to the Bateson Committee was a follows: In all cases the onus should be on the would-be employer to prove the need to employ a child, and the responsible authority should consider not only the proposed conditions of employment, but also whether it was proper for the particular child to be employed. It went on: Employment in dangerous work, or training for such work, should be prohibited. But the legislation which will be brought into effect when the statutory instrument is produced will license dangerous employment in certain conditions.

Equity, in February, 1963, said: The Council is, however, alarmed by the proposal that a licence shall not be required"— which is one of the provisions of the 1963 Act waiting to be brought into effect— for the performance of a child if in the six months preceding the performance he has not taken part in other performances on more than three days. This seems to us to be a most dangerous proposal which could lift the employment of children in films and television right out of the protection of the Bill altogether, for it could be arranged for children to be employed on not more than three days every six months in these media. Furthermore, in 2239 these spheres of employment, the general protections of the Bill are absolutely essential. It is my contention that the new law will broadly sanction and legalise the exploitation of children which is now being illegally carried on. Why have there been no regulations in the two years since the law was brought into effect in 1963. It has been in abeyance, as far as this area was concerned, since that time. Why have regulations not been drafted? When it came to spelling out the phrases permitting babies to be used as salesmen, did the stomachs of the draftsmen turn and did their hands shrink from the gruesome task?

The Children and Young Persons' Act, 1963, says: (a) the licence is 'for acting' and the application must be accompanied by a declaration that the part he is to act cannot be taken except by a child of his age". The child must be required to act and, if it is not acting, then a licence will not be granted. This seems to be a reasonable proposal. It is right that it should be possible in a film for people to see a family portrayed, with reasonable protections. But it is wrong that children should be used to sell things on television in advertising films.

If the words "for acting" mean what they say, it might be said that the law, even under the 1963 Measure, will not permit what is currently going on, because this is not acting. My right hon. and learned Friend does not agree with me about this. He says this: It seems to me, however, that a child who is portraying a child eating a bowl of cornflakes with gusto to the delight of his parents is impersonating a fictional situation. He is not photographed at breakfast time in his real home in the company of his true parents. He is in effect acting within the meaning of Section 38. It was certainly the Government's intention at the time when the Bill was drafted that it should be permissible for licences to be issued in respect of young children for performances of this kind. See the speeches of Lords Lothian and Stonham at Cols. 516 to 520 in the OFFICIAL REPORT … I have looked at those speeches. I differ from my right hon. and learned Friend. I do not agree that Lords Lothian and Stonham were advocating this, or that their intention was what my right hon. and learned Friend has said. In any case, the Amendment to which the noble 2240 Lords were speaking on that occasion in another place was withdrawn. It is not part of the Act. The Act carries out the intention of excluding—I hope that on further consideration by right hon. and learned Friend will be able to agree with me about this—the employment of children as children and implies that licences may not be issued for the employment of children for the selling of articles on commercial television.

The employers do not say what my right hon. and learned Friend says. My right hon. and learned Friend says that it is acting, but the employers say that it is not acting. The reason the employers say it is not acting is this. If it is acting, they have to issue an agreement which provides for repeat fees and pay the children on the same basis as adults. If it is not acting and the children are appearing as themselves, the employers can pay them the very small fees which they in fact pay them. Therefore, the employers say that this is not acting. I hope that my right hon. and learned Friend will agree with me about this and say that it is not acting and that therefore it should not be permitted when the statutory regulations are drafted.

My right hon. and learned Friend requires, reasonably enough, a little time to reply. I will sit down shortly. Perhaps he will concede me a few more moments. Sometimes children replace adults. In a bread commercial on Independent Television child bakers bake bread and child shopkeepers serve it to child customers, and a child expert is seen testing the product. It will not have escaped the advertisers' notice that children are, in addition to being popular and cute, also cheap. The repeat fees are not paid.

It is just as well, perhaps, for the adult working population that television also advertises beer, cyder, petrol, deodorants and foundation garments, and it is difficult to imagine, although one never knows with advertising men, children being used to sell those. What Lord Stonham actually said in another place was this: the conditions under which these child performers are required to act in films for advertising purposes often leave very much to be desired."—[OFFICIAL REPORT, House of Lords 10th December, 1962. Vol. 245, c. 516.] 2241 To summarise my argument, it is simply this. The law is at present being flouted. The law should be enforced, and in such a manner that the exploitation of children which is taking place at present should not be legalised, but should be prohibited.

§ The Attorney-General (Sir Elwyn Jones)

My hon. Friend the Member for Putney (Mr. Hugh Jenkins) has drawn the attention of the House to a question about which I know he is very deeply concerned. That is the appearance on Independent Television of advertisements which contain parts played by young children. My Departmental responsibility for this matter is limited, but I will endeavour to deal generally with the matters which my hon. Friend has raised and, as he has put it, to carry the buck.

The conditions under which school children may be employed are regulated by law and, as my hon. Friend pointed out, the law which is at present in force is contained in Part II of the Children and Young Persons Act, 1933. An important section of that Act—that which deals with performances by children—will be replaced by Part II of the Children and Young Persons Act, 1963, but, as my hon. Friend pointed out and as I shall explain, that Act is not yet in force. My hon. Friend is right when he says that the employment of school children is, therefore, governed by the 1933 Act.

There seems to be no doubt that under that Act the employment of children under 13 to make advertisement films for showing on television is contrary to the present law. This is not a situation which applies to television films alone; it applies to film making for all purposes. The law is admittedly not being enforced against television advertisement film makers nor against the makers of films for cinemas and other purposes—there is no secret about it—and, as far as cinema film making is concerned, it is a position of long-standing. Indeed, the unsatisfactory nature of the 1933 Act in dealing with the employment of children in film making was one of the factors which led to the establishment in 1948 of a Departmental Committee on the Employment of Children as Film Actors, in Theatrical Work and Ballet. Its Report came out in 1950 and its recommendations were eventually the basis for 2242 the amending legislation to control performances by children contained in Part II of the 1963 Act.

Paragraph 24 of the 1950 Report drew attention to practical difficulties in the way of enforcing the total prohibition on the employment in film making of children under 13 and, for that matter, the control of the employment of children of 13 or over imposed by the 1933 Act. That is not surprising since that Act was never intended to deal with film making and contains no special provisions directed to that. However, as paragraph 24 recorded, the difficulty of enforcement led the enforcement authorities—that is to say, the local education authorities—to adopt the expedient of turning to account the willingness of the film studios to co-operate. My hon. Friend has called it connivance.

What happened was that by mutual consent what one might describe as an extra-statutory settlement was made for securing the right to require and supervise arrangements for the welfare and continued education of child film actors. My hon. Friend may agree that that objective is the main purpose of any statutory control. That was done many years ago in relation to the making of films for showing in cinemas.

However, I do not think the local education authorities ever reached a similar agreement with the companies making television advertisement films. The House may think that it was not perhaps unreasonable for the local education authorities to adopt that attitude, because by the time commercial television came along it was known that the Government of the day had proposals for implementing in principle the recommendations of the Departmental Committee and that it would be for Parliament to determine a new code for performances in films of all kinds.

That code is contained in Part II of the 1963 Act. This Part of the Act is not yet in force, as my hon. Friend pointed out, because it awaits the making of the regulations. I want to emphasise that those regulations will limit the number of days a year on which a child may take part in performances. They will lay down conditions to be observed with regard to the child's education and health. I have no doubt that the risk to eyes will be very 2243 much under consideration. There will be regulations as to working conditions imposed in any licence authorising the child to take part in the performance.

These regulations, which are being most carefully considered, will contain a number of very strict conditions as to the employment of the child. The very necessity for care in the regulations has been mainly responsible for the delay in bringing them about. My right hon. and learned Friend the Home Secretary is conscious that the work has taken a good deal longer than expected but I am informed that a draft will soon be ready for publication to the organisations concerned as a basis for discussion.

Under the 1963 Act, virtually all performances by children, including filming and television, will be subject to licences issued by the local education authorities. There is no lower age limit but by virtue of Section 38 of the Act a licence can be issued in respect of a child under 13 only if it is for a performance of one of three types specified in that Section. Subsection (1,a) allows a licence to be granted in respect of a child under 13 when it is for acting and the application for it is accompanied by a declaration that the part the child is to act cannot be taken except by a child of about his age.

My hon. Friend has challenged whether that is the effect of the Act. It will be for the courts to determine authoritatively the meaning of the Statute and to construe it. I am sorry to find myself in disagreement with my hon. Friend about this but I should think it certainly arguable that a portrayal of the part of a child in a situation which occurs in a television advertisement is acting and is covered by this provision. Adequacy of payment is another matter.

2244 My hon. Friend has called for strict enforcement of the existing law. That is a matter primarily for local education authorities. I have endeavoured to explain that since, for historical reasons, they have not made a practice in the past of enforcing the strict letter of the law in relation to film making, I should find it difficult to urge upon them in these changing conditions that this is the right moment for a change in their policy.

It is not for me to say but it would seem to me to be understandable if the enforcement authorities were not inclined at present to display great zeal in enforcing the prohibition of an activity which, although forbidden by the law, has been tolerated for so long and which will, in a few months, be permitted under strictly controlled conditions.

My hon. Friend may disagree with the provisions of this new law but the remedy is legislative. I hasten, however, to make this point. He referred, in terms which certainly leave me to think that the matter needs to be looked at very carefully, to Section 37, particularly subsection (3), of the 1963 Act, and when the new arrangements are operating I have no doubt that it will be watched with very great care by both my right hon. and learned Friend and the local education authorities and that if any alteration in the Act seems called for it will be most carefully considered.

In the meantime, I assure my hon. Friend that the Home Office is pressing on with the preparation of the regulations and in doing so I am sure that it will pay very close attention to the dangers to which he has so rightly drawn the attention of the House.