§ 7.56 p.m.
§ Report received.
§ Clause 2 [Exempted works]:
§ Lord Houghton of Sowerby moved Amendment No. 1:
§ Page 2, line 5, after ("with") insert ("politics,").
§ The noble Lord said: My Lords, I am very grateful to the noble Lord the Chief Whip for the announcement he has just made. It will relieve us of any anxiety that we are keeping other noble Lords waiting for the conclusion of this business. That does not mean to say that I am going to prolong it any further than I think is necessary. I will do my best and I am sure other noble Lords will, too.
I beg to move Amendment No. 1. On 5th May The Times newspaper had a leading article headed, "Abusing the Statute Book". I am quoting when I say that I read:
Legislation thrust on a Government by the British public in one of its periodic fits of morality is apt all too often to prove irrelevant or actually harmful when it comes to be applied in the courts. The Home Secretary has done well to resist being bounced into hasty legislation by the wave of anxiety, real and justified as it is, over the problem of glue-sniffing".
The article went on to apply by inference those strictures to the Bill before the House tonight, because it described the Bill to control video nasties as,
another Bill conceived hastily in a moral fit".
If the quality of legislation has to do with certainty and clarity, this Bill must fail miserably by any test one likes to apply. No more is that so than in Clause 2 where we are dealing with exempted works. The more I think about the replies we have had so far on this clause, the more doubtful I am that this is a justifiable piece of legislation, worthy of the name of this House. But looking at it as it is we find that the clause says:
(1) Subject to subsection (2) below, a video work is for the purposes of this Act an exempted work if, taken as a whole"—
then paragraphs (a), (b) and (c) follow. Obviously there are difficulties about a video recording designed to inform, to educate or to instruct. It gets a little more specific when dealing with sport, religion or music. It has occurred to me that in the absence of a reference to politics we may get into some very difficult questions of what is an exempted work on a video recording dealing with politics. I know that in all cases of exempted works Clause 2(2) contains an overriding
condition. In my view it is an offensive one, but we are not dealing with that at this particular moment.
§ As I understand it from what the Minister has said so far on the Bill, the great difficulty is that we exempt ourselves under this clause and under the several headings given in it. It seems like a do-it-yourself exemption and one takes the risk oneself in exercising judgment. I do not know whether it would be permissible for a cautious or nervous producer to go to the censorship authority and ask: "Is this video in your opinion an exempted work?" They would probably reply that they are not the judges of what is an exempted work and that it is a matter for the courts.
§ But what about political and other controversial types of videos that do not fall within the mischief of Clause 2(2), but which may raise some questions of fitness to be viewed in the circumstances which this Bill envisages? My fears may be unfounded and it may be that the Minister can advise us as to where he thinks politics would come. Do politics come under information? Do they come under education? What about propaganda? What about something which may offend against good taste but which may not necessarily be either obscene or so deeply offensive as to excite censorship judgment?
§ We are promised guidelines, but we have not got them and it does not look as if we are likely to get them to allay these fears—certainly not in time to dispel some of the problems that we may have. In my view, videos will be used increasingly for political propaganda purposes. Let us suppose that we have one which is entitled, "The Knocking of Neil Kinnock" and it is very offensive about my right honourable friend the Leader of the Opposition. Let us suppose that there is a video entitled, "The Unfrocking of Mrs. Thatcher", which is suggestive of a very offensive video. Would the British Board of Film Censors recall the noble Lord, Lord Hill, to say, "Yes, but not in front of the children"?
§ Theatre censorship has been dismantled. We have a voluntary arrangement for the cinema. We are now erecting this third structure of censorship which relates to showing things in the home. Behind all three stands this macabre sentinel, the Obscene Publications Act 1959, to remind all and sundry—statutory bodies and voluntary bodies alike—that the ultimate censor is the Director of Public Prosecutions.
§ Can we be told when any Government last interceded with the Board of British Film Censors to influence its policy or decisions? Will the designated authority be clearly independent and not under Government influence or direction? Will there be consultation between the designated authority and the Government on matters which they fear might give rise to controversy but which do not fall, perhaps, within the four corners of the stipulations laid down in the Bill? I do not know. Without guidelines one has difficulty in judging the basis upon which the censorship authority is entitled to approach matters of some controversy or difficulty. So are we sure that offensiveness, bad taste, political bias, the criticising or lampooning of the monarchy, the Church or other institutions, including this one—because we will probably not be immune from some offensive references in the course of the development of political propaganda through video recordings—are dealt with?692
§ I suggested earlier in our debates that I thought that the main purpose of the Bill was for the protection of the children. I believe I am right in saying that the Minister said that it was more than that—it was for the protection of grown-ups as well. I have with me a list, with which I shall not trouble your Lordships, of the occasions upon which the Government of the day have interfered with the complete freedom and independence of the British Board of Film Censors. For example, a pacifist film produced by the Peace Pledge Union in 1935 was refused a certificate by the British Board of Film Censors on the grounds that it might lead to disturbance. However, in the following year a film on the territorial army was approved and widely exhibited.
§ The answer may be that they would be shown in the home. It might even be said that they would be shown in the privacy of the home and so they would not create any public disturbance. However, I would be glad of some reassurance on this point. There can, at any time, be doubt as to whether the instructions to the British Board of Film Censors are clear enough. Their approach to their statutory duty is clear enough. What comfort may individuals have in claiming that the works they are producing are exempted works under the Bill? I should be glad of any comments that the Minister may make on this matter.
§ In my view, politics should be included. After all, religion is a form of politics—it is a form of conviction and belief. Politics are a form of conviction and belief. They both can be extremely controversial. But religion is included because, presumably, it has a sanctity that politics do not have. I should like to be more certain in my mind than I am at present about the position of politics and political propaganda circulated among the faithful or among the widely spread public who care to buy it at any price that they might have to pay to view in the home. I am thinking, for example, of some political message or other. Where will the designated authority stand on these matters? Are they going to be concerned only with sex, horror, mutilation, genitals and all the things that they are supposed, under this clause and others, to exclude from films to be shown in the home? I beg to move.
§ 8.10 p.m.
§ Lord Nugent of Guildford
My Lords, I am sure that noble Lords are grateful to the noble Lord, Lord Houghton, for once again his interesting tour d'horizon of the Bill. He reminds me of that beautiful bird, the thrush:That's the wise thrush; he sings his song twice over, Lest you should think he never could recapture the first fine careless rapture".The noble Lord does just that: not just twice, but many times over he goes round the same course.
The simple answer to his point is that in Clause 2(1)(a) the words,designed to inform, educate or instruct".fully cover politics. I am perfectly certain that everything which the noble Lord himself has said in his long and distinguished career in politics has been said with just those motives. It may be that it all sounded like propaganda to me, but I dare say that he would have said the same about what I said. The fact is that in the world of politics we all know perfectly well what 693 it means, and it is just for those purposes: to inform, to educate or to instruct, and to hope that by the weight and logic of our orations we shall persuade people that our cause is the right one.
To ask that politics should also be included in this subsection is, I believe, quite unnecessary to the scope and substance of the Bill, and the noble Lord can rest easy on this. There may be other points of doubt—undoubtedly there are, with 50 amendments on the Marshalled List—which have to be cleared up, but this is one where he can rest assured (as I hope can all of us in the political arena) that we shall be able to continue to express our views with complete freedom and rest confident that Clause 2(1)(a) will completely cover us.
My Lords, I was most interested to hear what the noble Lord, Lord Nugent, said about this amendment. I shall resist the temptation to follow the noble Lord, Lord Houghton of Sowerby, in his general remarks about censorshp and the Bill as a whole, although I am bound to say that perhaps a more apt quotation to refer to the noble Lord, Lord Houghton, than the one produced by the noble Lord, Lord Nugent, concerning the thrush would be the words of Lewis Carroll in the Hunting of the Snark, who said:What I tell you three times is true".I am bound to say that some of the remarks which the noble Lord, Lord Houghton, has made more than three times seem to me to be entirely true.
The noble Lord, Lord Nugent, said that politics was wholly covered in Clause 2(1)(a), which states that a video work is:designed to inform, educate or instruct".If that be the case, I cannot see what possible harm could be done by inserting the word "politics" before the word "sport" in paragraph (b), so that if the video recording was concerned with politics, sport, religion or music it would have exemption. That surely would make the matter utterly clear.
I know that the noble Lord, Lord Nugent, has said that politics is entirely exempt; it is exempted under paragraph (a). If it is exempted, why not say so? Why not accept the amendment of the noble Lord, Lord Houghton, and include the word "politics" in paragraph (b), so that everybody knows exactly where they stand?
§ Lord Ardwick
My Lords, briefly, I am of exactly the same opinion as the noble Lord, Lord Winstanley.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Elton)
My Lords, I do not wish to plunge into silence simply because there is silence, but I would remind your Lordships that this is Report stage and my noble friend Lord Nugent cannot rise to his feet constantly. It seems to me that if we are to include the word "politics" we ought also to include "geography", "meteorology", and so on. We need a general definition, and that is what is already in the Bill.
§ Lord Jenkins of Putney
My Lords, with respect, I do not think that that is an entirely adequate reply. 694 After all, politics is a matter of political contention. It is something which people vote about: it is not in the same category as geography or even history, although, goodness knows, people get pretty excited about that from time to time. I should have thought that the issue of politics is something which ought to be included particularly. After all, to some people politics is a religion. If religion is included, what possible grounds can there be for excluding and not specifically naming the modern form of religion, unless the noble Lord, Lord Elton, is arguing (and I do not think he is) that politics is religion and thus is included?
The noble Lord, Lord Nugent, says that politics is information. There are those who think that politics is disinformation. Indeed, one might say that one man's information is another man's disinformation. Therefore, I do not think it is sufficient to say that politics is covered by information. I do not always agree 100 per cent. with my noble friend Lord Houghton, though I am inclined to follow the view expressed on this side of the House that for a good deal of the time he is very much on the ball. On this occasion I think that my noble friend is on the ball, and I hope it is possible that the noble Lord, Lord Nugent, or even the representative of the Government, the noble Lord, Lord Elton, might be prepared to say that at least they will look at this again.
§ Lord Houghton of Sowerby
My Lords, I am disappointed that neither the sponsor of the Bill nor the Minister is prepared to stand up and defend the right of your Lordships' House to include in this Bill our most noble vocation. Why should politics take a place in the list of exempted works subordinate to sport or, for that matter, music? I leave religion in a more pre-eminent position, but why sport? What special quality is there about sport which claims a particular place here? Politics is something by itself. It is not information, education or instruction; it is an activity, and a contentious one. It receives a great deal of publicity, and can give rise to deep passions—anger, and other human emotions.
Some words are regarded as unparliamentary. Apparently a new one—"fascist"—has been added to the book in another place in the last couple of days. But what if there is a video that begins to hurl that word about? Will that be regarded as being suitable for young children to listen to and view?—because they probably will not understand what it means. Other things could be ruled out because it is expected that children will react differently to them. I am very sad about this.
I do not think that, for the dignity of your Lordships' House or for the activity that we pursue in this House and outside, we should be content to have politics omitted and sport, religion and music included. There is no other claimant for inclusion; no other claimant has been put forward throughout the whole of these debates. In the circumstances, if the House wishes to go on record as having rejected the elevation of its activity to a place of exemption in Clause 2 of this Bill, so be it.
§ On Question, amendment negatived.
§ Lord Jenkins of Putney moved Amendment No. 2:
§ Page 2. line 7, leave out subsection (2).695
§ The noble Lord said: My Lords, under the subsection with which we have just dealt certain works are excluded from the consideration of this Bill. I have not yet become very clear about precisely how they are excluded, but that is a subject for later consideration. As I understand it, the authority will decide what the category of the work is, but I do not know whether the authority will also decide what works come before it or whether a work is exempted. That may have escaped me and it may have been explained previously, but I have not noticed it.
§ I take it that those submitting the works will argue that they are exempted works. But to whom will they submit the argument of exemption? Will it be to the designated authority? In other words, will the authority decide not only that which it categorises but that which does not need categorisation, as well as those which fall outside the scope and are not to be released at all? That is a preliminary point.
§ The real point is the question of whether, having exempted certain works, it is then appropriate to draw back from that and say that under certain circumstances although normally such works fall into the category of exemption, works falling into these categories—the categories set out in subsection (2)—are nevertheless not exempted. When one steps into that difficult situation one immediately has problems. From the moment one does that one descends into the question, or rises into the question—whichever it may be—as to what is the purpose of the work. Is it an elevating purpose, or is it a degrading purpose?
It is possible to say that a work may be concerned with human sexual activity and may be designed to inform, educate, and instruct, and that therefore in the normal course of events it should be an exempted work under subsection (2)(a). Now are we going to say that in all circumstances human sexual activity falls into a non-exemption category? A great deal of confusion arises here. Some of the activities which are set out here are obviously repugnant. But if we include in a single subsection,
human sexual activity or acts of force or restraint associated with such activity"—
in other words, ordinary human sexual activity, and human sexual activity which probably is not regarded as ordinary—then in that single subsection we are saying that something which is generally approved of, generally indulged in, is in the same category as things which are generally disapproved of and are probably not widely indulged in.
§ We are running into great difficulty here. Having considered it in some detail, I think that the only thing to do is to leave out subsection (2) and to provide that a video work is an exempted work if, taken as a whole, it is designed to inform, and not to seek to make the exclusions from the exemptions which are provided in the subsection. I do not think it would be necessary, because the works will come before the authority in any event, and I think that the authority can be relied upon itself to decide these difficult questions.
§ Whether something which is presented is in fact elevating and informative, or whether it is degrading and harmful, is a difficult and controversial question. One recalls the early anti-nuclear film "The War 696 Game", which the BBC decided not to transmit because they thought that it would frighten people too much and that it was too horrible. Nowadays, 16 years later, we recognise that nuclear war is much more horrible, and would be much more horrible, than anything depicted in "The War Game". We can now see in retrospect that the BBC were wrong to take that decision, although the purpose of the film was certainly to shock, perhaps even to frighten, people, since there are times when in the public interest it is necessary to shock and frighten people. It is not always wrong to do so.
§ So far as Clause 2 as a whole is concerned, I think that is a necessary part of the Bill. But so far as subsection (2) is concerned, the Bill would be better without it. It would be less confusing, and on the whole it would be a better Bill. I hope, therefore, that the noble Lord, Lord Nugent, will say that, provided he can achieve the central purpose of Clause 2, he will not seek to derogate from it and give the authority too close a guidance, which is what is attempted—and I think unsuccessfully and undesirably attempted—in subsection (2). I beg to move.
§ 8.24 p.m.
§ Lord Nugent of Guildford
My Lords, I must thank the noble Lord, Lord Jenkins, for arguing his case so ingeniously. As he knows, this question was debated at length during the Committee stage of the Bill. He is now really asking us to rehearse similar arguments to those we discussed before. I should like to remind him of the wise words of the noble Viscount, Lord Tonypandy—I am sorry that he is not well enough to be with us—when he said that if we take this subsection out of the Bill, we may as well say goodbye to the Bill. It knocks the heart out of it. This is an aspect of the matter of which we should all take note. There is real substance in it.
Of course the noble Lord is right that if a producer, or anyone producing a video work, wants an opinion about an exemption, at the end of the day he will have no alternative but to present it to the designated authority—the British Board of Film Censors, as it will be—for a classification. There is no other way of being sure. But in a general way this clause, and others, will be a guidance to producers as to what will, and what will not, be acceptable. This of course is an important part of that issue.
The noble Lord says that if we take out this provision, it will then be left entirely to the British Board of Film Censors to decide whether or not they think that a video work should be classified, and how it is to be classified. The general opinion of Parliament, up until now, has been that some guidance is needed on these more precise matters of sexual activity and violence. Where they meet the conditions set out in paragraphs (a), (b), and (c) they will, generally speaking, not be acceptable. That is a guide which I think in general, if my judgment is correct, most people feel is one that we should give to the authority, and which has in a general way guided them in what they have done in their work to date in regard to films. It is for those practical reasons that the subsection should remain in the Bill.
Again, without rehearsing all the arguments that we debated before, I would ask the noble Lord to see that 697 there is a cogent reason for putting in this, at any rate basic, guideline. Some people would like to say very much more, and others would like to say less. Again, as with so much of this Bill, it is a matter of balance. But when the noble Lord says that we should take out this subsection altogether, I say that most people would feel that we would be taking out what is regarded as a basic safeguard to prevent the extremes of sexual indulgence, or violence, being shown in this way. I hope that the noble Lord will see that there is another side to it in addition to the side that he argued so cogently.
§ Lord Howard of Henderskelfe
My Lords, I rise on only one small aspect because it illustrates the real difficulty which Parliament as a whole has been in over this whole field. It concerns the difference between films as shown in the cinema, cassettes which may be hired or bought, and broadcasting as a whole. I should like to remind the noble Lord that the BBC did not show "The War Game" precisely because it was thought that it would, or it might, considerably alarm in particular people living alone, old people, and perhaps children. But in fact during all that period "The War Game" has been available as a film to groups of people who wished specially to get together to view. This illustrates the real difference between what is broadcast into the home and what is available on video cassettes for the home, and what is seen in the cinema. Therefore, the same criteria do not necessarily apply.
§ Lord McIntosh of Haringey
My Lords, I refrained from adding my name to the amendment put down by my noble friend to some extent because of the reasons put forward by the noble Lord, Lord Nugent. I accept that, in the intentions of the sponsors of this Bill, to take out subsection (2) would cut the heart out of the Bill. I accept that the Bill has been promoted and argued for throughout as a Bill against, the phrase used was "video nasties". The only reason I rise now is to say that although I cannot support the amendment, I think that the attitude of many people, and certainly of myself, towards the Bill as a whole would be totally different if subsection (2) did not include the phrase "human sexual activity" and if subsection (2)(a) said "acts of force or restraint associated with humans or human sexual activity" and if the final sentence in the subsection did not say "designed to any significant extent to stimulate or encourage human sexual activity".
The Bill has been argued for—and this is common ground—as a Bill against video nasties. To extend it to be a Bill against the depiction of human sexual activities, erotography, pornography or whatever you wish to call it, is a very wide extension. It has not been argued clearly before the public and I believe, that if it had been argued more clearly and openly, the public—or at least a significant part of the public—would make a distinction between those two things and would wish to see a distinction in the legislation. Although I do not support the amendment, I do think subsection (2)(a) is significantly defective in that respect.
§ Lord Ardwick
Surely, my Lords, all the clause says is that a video work shall not be an exempted work if 698 it depicts these things. This surely does not mean that a work which does depict some of these things should not come forward for classification.
§ Lord Elton
My Lords, if I may add my mite of clarification, I shall be as brief as those who have spoken before me. Starting with Lord McIntosh of Haringey, I think the noble Lord, Lord Ardwick, has put his finger on it. The purpose of Clause 2(2) is to provide that a work which would otherwise be an exempt work under Clause 2(1) shall not be exempt from the need to be classified. It does not mean it shall therefore not be shown. The video nasty is normally a very violent thing: that is the creature which is not classifiable and because it falls in Clause 2(2) it would be subject to the need to be classified and therefore would not be marketable.
That brings me to the question of the noble Lord, Lord Jenkins of Putney. If I can take it a little further than he took it, it is about what happens to the unfortunate person who thinks he has an exempt article on his hands, puts it on the market and then discovers that it is not exempt. That is the logic of what he said. My Lords, of course, we all have to take that sort of decision a number of times, and, to take a rather absurd example that comes to mind, you know whether you have a bicycle or a motorbicycle. One needs to be licensed and the other does not and there is no reason for making a mistake here. There are other cases where the choice is perhaps more difficult and there is therefore a defence if you get it wrong innocently. The law is designed to catch those who get it wrong deliberately—in other words those who market without a certificate material which the law requires to have a certificate, because that is the only way they can sell it and they wish to make a profit. If the noble Lord will look at Clause 10(2)(a), if my memory serves me right, he will find that it is a defence to a charge of committing an offence under this section, that is the offence we are talking about,that the accused believed on reasonable grounds that the video work concerned"—I leave a few words out—was an exempted work. In other words, my Lords, if you innocently break the law you are exempted from the penalties of the law, although thereafter of course you would have to get the thing licensed, certificated.
§ Lord Jenkins of Putney
My Lords, I am grateful to the noble Lord, Lord Elton, for that explanation.
§ Lord Elton
If I may explain what is going on, my Lords, the noble Lord moved the amendment and he has the right to reply: in other words, he may speak twice.
§ Lord Jenkins of Putney
My Lords, I am grateful, I thought I was in order, although I am not necessarily always in order. I am most grateful to the noble Lord, Lord Elton, for that explanation, which I think does clarify the issue. It may not be usual to accept explanations given from that Box, but on this occasion I shall breach the rules and do so.
I nonetheless find this clause unsatisfactory. In spite of what has been said—and I recognise the strength of 699 it—it seems to me to be eminently unsatisfactory in subsection (2)(a) to have a sentence which puts in the same category "human sexual activity or acts of force or restraint associated with such activity". That means that it equates a loving human relationship with rape. It makes no difference between the two and it says that either of these is in the same category. I find that extremely unsatisfactory and I think that the public at large, when it comes to see what is involved in this Bill, will also describe that as extremely unsatisfactory.
We have sought, as it were, to exclude a loving human relationship—and there are films which have been produced which seek to depict in entirely acceptable terms what that relationship is—rather than to equate that with the horrible things which we are trying to prevent in this Bill. It seems to me that, in seeking to take out subsection 2(2) altogether, I may possibly be going too far, but I shall cudgel my brains and seek advice to see whether it is not possible at some later stage in the Bill to stop this procedure, which seems to me to be offensive in the extreme, of putting together a willing and entirely desirable relationship, sancitified by law, in the same sentence and of regarding it as similar to what this Bill rightly seeks to condemn.
Having said that, I think that perhaps the total omission of subsection (2) goes too far and, if your Lordships will permit me, I shall withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 8.38 p.m.
Lord Nugent of Guildford moved Amendment No. 3:
Page 2, line 19, leave out subsections (3) to (5).
§ The noble Lord said: This is a paving amendment, my Lords, to Amendment No. 15, to which, with the exception of the last subsection, subsection (12), I shall also speak.
Amendment No. 15: Clause 3, page 4, line 16, at end insert—
("(10) The supply of a video recording with a view only to its use—
(11)For the purposes of subsection (10) above, an occupation is a medical or related occupation if, to carry on the occupation, a person is required to be registered under the Professions Supplementary to Medicine Act 1960, the Nurses, Midwives and Health Visitors Act 1979 or the Medical Act 1983.
(12)The supply of a video recording otherwise than for reward, being a supply made for the purpose only of supplying it to a person who previously made an exempted supply of the recording, is also an exempted supply.").
§ My Lords, the thought here is to clarify the exemptions which are specified in subsections (3) and (4) of Clause 2 and put them into Clause 3, which deals with the exempted suppliers rather than the exempted works. Setting them out in this fashion, we shall achieve more precisely what we wish to do, and we 700 have at the same time extended in subsection (11) the list of professional people who will be exempted for this purpose. So we have now included midwives and supplementary professions which would also cover ambulance workers and so on who may very well need to have education which would require works of this kind. That is the purpose of the amendment. I beg to move.
§ Lord Houghton of Sowerby
My Lords, I do not think that the noble Lord has fully explained why this transfer of some items from the list of exemptions to the list of exempted supply is called for. This surely is a downgrading to a classification which is subject to the earlier part of Clause 3 of items which in the Bill as it stands are exempt works and receive with the exemption all the freedoms of movement and so forth that an exemption confers on a video recording.
At the bottom of page 2 we see in Clause 3(2): "The supply of a video recording by any person is an exempted supply if it is neither—
But in Clause 1(4) we see that "Supply" means:
- (a) a supply for reward, nor
- (b) a supply in the course or furtherance of a business".supply in any manner, whether or not for reward, and, therefore, includes supply by way of sale, letting on hire, exchange or loan; and references to a supply are to be interpreted accordingly".We should not have the discrepancy between Clause 1(4) and Clause 3(2).
It looks as if there is something in the background to "supply" which reduces the status of the work because it can be subject to a more stringent condition under subsection (2) than otherwise. I do not get this at all. I am sure, with great respect to the noble Lord. Lord Nugent, he did not think of this himself. Somebody put him up to it. I think the person who put him up to it ought to explain it so that we know where the truth lies. There is some hanky-panky going on here, and I should like to know what it is.
Why are we down-grading noble things which were exempt works up to now and at this moment we say we shall shovel them all into "exempted supplies" which are of inferior status and subject to different conditions from "exempted works"? After all, I think that there is question of comparable esteem in this matter. Why should some things be written down to be "exempted supplies" from being "exempted works" when such activities as sport are retained among "exempted works"? I think some further and more convincing explanation has to be given about why we have to do this, even though in this process, as the noble Lord, Lord Nugent, said that we are extending somewhat the list of exempted supplies.
Of all the confusions in this wretched Bill the difficulties between "exempted works" and "exempted supplies" will remain to the end of its day. It will not be obvious to many people what it is all about until they get caught by the conditions of "exempted supplies" which are very stringent indeed when one looks at them. Is it because these things which were "exempted works" before might be passed on for reward or might be the subject of business activities? What is it that has led to this reduction in status of these matters? A whole slab of them goes out from "exempted works" into "exempted supplies". I hope that the Minister can throw some light on this. 701 With deep respect to the noble Lord, Lord Nugent, I think that on this matter, if I may say so, although the voice is the voice of Jacob I am quite sure that the hand is the hand of Esau.
§ Lord Brain
My Lords, there is also concern from the aspect of medical photographers and people such as that who have to prepare this. As at present drafted, the Bill makes it quite clear that particular recordings are made for a certain purpose and are therefore exempt. They can be handled in a certain way; they can be catalogued and properly managed. But it also means that any tape can be used in an appropriate purpose without the time-consuming bother of editing it for a particular use. It means that a lecturer can use sections of a tape as he wishes during his demonstration and, if there is a question coming along, he can continue to tape something.
But with the proposed amendments the exemptions can only be decided when the recording is being supplied with a view to use. Who is to keep all the information to show at what stage a view is to be taken as to what a particular recording is to be used for, or a particular length of tape? What happens if a lecturer, having prepared a lecture, wants to use another section of a tape, or another tape, which has been given to him for a particular use which is totally different? I could continue to give further examples, but I will not delay your Lordships now.
The "view to use" wording also may cause confusion again with Clauses 9 and 10, because how does one take a "view to use" of something if it took place? I am afraid it seems to me to be a slightly difficult thing to anticipate the courts to rule on.
Clause 2 seems to me to be based on the idea that recordings are exempt if they are made to educate, inform or instruct. It then goes on to say that, if one brings into this certain matters, "Sorry, they are not exempt and have to go forward for certification". Then one says that, because of the particular nature of the people who are to see these tapes, they can then be re-exempted. I find that this amendment is defective.
§ Lord Ardwick
My Lords, I was going to suggest that it might be convenient if we were to take Amendments Nos. 7, 8 and 9 during the course of this debate. But in view of the arguments that have arisen, I wonder whether it might be more convenient if I were to wait for the Minister to make his contribution to the debate. I should perhaps leave it to the Minister to make his contribution to the debate. I thought that to introduce some new amendments would give the Minister the opportunity of speaking again on my particular section of this discussion.
§ Lord Elton
My Lords, I do not think that we want to get into a muddle with overlapping amendments. I am quite sure that my noble friend, having heard the questions put, is capable of replying to them himself. I was not intending to intervene and thereby protract this debate, which presumably means that the noble Lord will then be himself speaking to his own amendments in a separate debate. Is the noble Lord content with that?
§ Lord Ardwick
Yes, my Lords, as the amendment is an amendment to that of the noble Lord, Lord Nugent of Guildford, I thought that we might take them both together, but it does not really matter.
§ Lord Nugent of Guildford
My Lords, I should reply to the noble Lord since he has implied that I do not understand what the amendment is about. As I moved the amendment I have the right to reply to the debate. The justification for the amendments is exactly as I said: it is to ensure that the amendments more precisely fulfil their purpose in that these particular works will go to the professionals for whom they are intended. That is the specific intention. As originally drafted with these exemptions in Clause 2, where there were exemptions for the works, it would be possible for an unscrupulous producer to produce a work of this kind and introduce a pornographic feature to it which could then have a commercial value. The whole object of these exemptions is to provide for the needs of the professionals as set out, now much more clearly, in Amendment No. 15: the medical services, the health and personal social services and, indeed, for the Professions Supplementary to Medicine Act—the nurses, midwives and health visitors. This is the object of the exemption and, in so far as this amendment more precisely ensures that the supplies are directed to them and go to them, this is the fulfilment of the Bill.
If the exemption is operated as in the original Bill, then there could be a danger that it could be abused. But by redefining it in this fashion, that danger is removed. I hope that your Lordships will feel that this, after all, is what we are trying to do. We are trying to make proper exemption for these professional services whose needs we recognise.
§ Lord McIntosh of Haringey
My Lords, before the noble Lord sits down, I would say, with all respect to him, that he has answered very clearly the question raised about the categories of exemption which were intended—the degree to which related medical professions should be involved—but he has not at all answered the question as to why these exemptions should now appear in Clause 3, rather than in Clause 2. After all, throughout the proceedings in another place, and in Committee here, the question of abuse of supply was never raised once. Why should it arise now?
§ Lord Elton
My Lords, I shall come to my noble friend's aid to preserve the conventions. What we are arguing about is a very simple point, though it is wrapped up in a lot of subsections. In Clause 2 we are dealing with exempted works and in Clause 3 we are dealing with exempted supplies. If you produce a work which is nominally for a psychiatrist, let us say, or, first of all, if you produce one which is genuinely for a psychiatrist, then it will be supplied only to psychiatrists, and that would be perfectly all right. The noble Lord is not worried about that. But what happens if your unscrupulous producer produces something in a sham clinic which is, in fact, a pornographic film of which the public ought to have notice from the label that it is a pornographic film? If it masquerades successfully, it becomes an exempted work and it may be that one or two crooked psychiatrists will justify the production by accepting it. 703 The noble Lord again shakes his head, but I assure him that the people who produce these things command large sums of money and maybe some psychiatrists who have ceased practising may be rather short of funds: and it is not beyond the bounds of possibility that this loophole would be exploited.
I do not like using hypothetical illustrations, but it is possible that an improper supply would take place. That is why it is necessary to transfer this from the category of exempted work to the the category of exempted supply. The noble Lord can then produce it in his lecture theatre and use all or any part of it as he wishes, regardless of the content without fear of being in breach of the law. But if it was supplied to him for that purpose, it is also protected—that is the point; whereas, if it was supplied to somebody else for a different purpose, it would fall foul of the law. That means that works of this type require to be labelled so that people will know what is in them. It is no more sinister than that.
§ On Question, amendment agreed to.
§ 8.54 p.m.
§ Lord Howard of Henderskelfe moved Amendment No. 4:
Page 2, line 32, at end insert—
(" (6) A video is for the purposes of this Act an exempted work if it exclusively contains material broadcast over the transmitter of the Independent Broadcasting Authority or the British Broadcsting Corporation in respect of which the Independent Broadcasting Authority, the programme contractors to the Independent Broadcasting Authority under the Broadcasting Act 1981 or the British Broadcasting Corporation own the copyright, and which is material previously approved for broadcasting over such transmitters by the Independent Broadcasting Authority or the British Broadcasting Corporation respectively.").
§ The noble Lord said: My Lords, in moving this amendment, I shall inevitably, with the leave of the House, have to make the odd comment on Amendment No. 26, which is also in my name and the names of other noble Lords. I should make it clear that I am not moving Amendment No. 26 at this stage, but I shall have to make reference to it in order to illustrate one or two of the points which will come up.
Amendment No. 26. Clause 8, page 7. line 14, at end insert—
(" ( ) For the purposes of section 2(6) above, the Independent Broadcasting Authority, the programme contractors or the British Broadcasting Corporation, as the case may be, shall label the case in which the video recording is kept to show the time of first broadcast.").
§ I am sure your Lordships will not be misled into believing that we are trying to delay in any way, or to obstruct, the passage of constructive and necessary legislation. That some of us believe it might have taken another path through other channels and that some of us believe it might more properly have been dealt with under the Obscene Publications Act is irrelevant to what I am now about to say. I. and the noble and distinguished Lords who have joined with me in putting down these amendments, would be the last people to do anything to obstruct the banning of the pernicious trade in video nastier. I use the colloquial term in view of what has already been said about some of the beauties of human sexual activity because I think we can all recognise the difference between such cassettes and others which, while they may contain scenes of sex or violence, are not primarily designed for this purpose. They are not designed to titillate. 704 They may be designed in another way, but they are not designed as pornographic works, if you extend the word "pornography" to include violence, which we must do in this context.
§ This amendment is designed to deal with a wholly different problem. We hope, by it or some similar provision, to protect the arrangements for the independence of broadcasters and broadcasting. These have stood the test of time and have resulted in a television service in this country which I firmly believe to be, and is generally accepted to be, of a higher quality than that which obtains in any other part of the world.
§ It may well be asked why a requirement to submit video cassettes made by the BBC or by companies franchised by the IBA. is in any way objectionable and why these should not go through the same hoops as video cassettes made by others, and why, indeed, we are asking for any form of different treatment because it might give us some commercial advantage over those who have to go through these hoops. There may be some delay, inconvenience, or extra cost caused by the procedures laid down in the Bill, but this is a minor matter compared with my real fears. These can be briefly expressed by the suggestion that once video cassettes originated by the BBC and ITV companies are subjected to a form of outside censorship which is not within the control of the BBC or the IBA, this is the thin end of what may eventually become a very thick wedge and may well lead to a demand from the minority for a more general power of censorship over broadcasting as a whole. As gradual realisation comes about that programmes can be reproduced on cassette by recording direct from the air and that these, though not available for hire or sale, are available in the home, this may well increase the pressures to which I have referred.
§ In my view, particularly in quarters where some of the programmes which come from the BBC or IBA are already unpopular—and certain Members of your Lordships' House take this view—it will lead to a demand for some form of outside censorship of programmes which are broadcast. This may sound fanciful, and I think that many of your Lordships may say, "Do not be silly, this cannot come about. We have had far too long experience of self-regulation in this field for anybody to suggest that broadcast works should be censored in this way". Indeed, I hope that I shall be proved to be fanciful if this Bill, sadly, goes through in its present form. But one cannot be certain of what may result due to the agitation of articulate and vociferous minorities—activities which often result in legislation directed towards the protection of their particular sensibilities, which may well not be shared by the public at large.
§ The broadcasting scene, with the advent of the cassette, cable, and DBS, is likely to be very different at the end of this decade from that which obtains today. I am trying this evening to take the long view, the view which will protect broadcasting over a period longer than the two or three years which I think some thought of as a suitable period to experiment with what is suggested in this Bill.
§ I think that at this stage, particularly in view of the support which I have from the chairman of ITN, who 705 for many years (more than anybody else, I understand) was also chairman of the Independent Television Contractors Association, from an ex-chairman of the IBA who cannot unfortunately be in his place tonight, and from a distinguished Member of the Opposition Front Bench, I should say a word about the fundamental differences in this field between the BBC and the IBA.
§ The BBC originates the majority of its own programmes hut, of course, buys in a certain amount of material from abroad, largely of American origin. At present, the BBC never obtains other than the broadcasting rights to most of its bought-in material, except for a certain proportion, usually of a travelogue or natural history kind, which comes from countries other than the United States. Nor can I see this position really changing. I cannot, for example, see the producers of "Dallas" or "Dynasty" ever allowing the BBC to acquire the cassette rights to their material, even in Europe. Until recently, indeed, the BBC made a point of buying the absolute minimum rights which would enable it to broadcast a programme, in order to try to save money for the licence payer. It is only recently that we have started buying additional rights other than those purely for broadcasting. This has not always been the case with ITV, which I think has pursued a somewhat different line and has often acquired world rights from writers, producers, actors and so on.
§ So far as material originating in the BBC is concerned, an elaborate procedure ensures that it is examined at different stages, and programmes can be stopped at many stages of their production, from the writing of the script onwards, right up to their final edited form. This kind of arrest of a programme which might be objectionable can happen at many different levels. It can start with the producers themselves and go on to the heads of departments, the channel controllers, the Director of Programmes (Television) and the Managing Director of Television. Even the Director General himself could be involved.
§ If some of your Lordships who do not like this amendment were to quote examples to me of programmes which appear to have slipped through this net, I think I should rejoin by saying that I can certainly recall, without having to look up the facts, at least two occasions when the Director General himself forbad the broadcasting of fully-finished programmes ready for broadcasting. Cries of "Censorship!" went up from the producers when in fact he was exercising his proper managerial functions in saying that this was not a suitable programme to go into the home—and that, I may say, at considerable cost to the BBC in financial terms. The final longstop is the Board of Governors, which is responsible for all the programmes which emanate from the BBC. Although the board, as a matter of policy, does not view programmes prior to their transmission, it still reserves the right to do so. The reason for this is obvious if you think about it. The board cannot be critical of a programme which it has itself authorised for transmission.
§ The IBA procedure, of course, is somewhat different, just as the IBA differs from the BBC by being a statutory body instead of a chartered body. The 706 BBC's standards of decency, and so on, are incorporated in the Royal Charter and Licence, whereas the IBA is governed by its statutes. In addition to its work of providing and controlling transmitters, engineering, research, awarding of franchises and monitoring the way in which the companies carry out their franchises, the IBA has an important role to play in the regulation of programmes. It can forbid a programme to be transmitted, both by its own statutes and by its control of the transmitters themselves. Or it can demand changes in these programmes, and has frequently been known to do so. It has in fact a power which it has not been slow to exercise, quite properly in the past.
§ ITV is also different from the BBC in one other respect, in that rather more—and in the case of Channel 4 a great deal more—of its production comes from independent producers or quasi-independent companies rather than from within its own ranks; and I am not now talking about material brought in from abroad, but of material made in this country. In neither case, of course, are we talking about the numerous cinema films which both the BBC and ITV transmit, since again neither the BBC nor the companies buy the cassette rights of those films. We are therefore talking about programmes which have already been through a fairly stringent process of examination and, yes, indeed, regulation before they were ever broadcast.
§ Some of your Lordships may have thoroughly disliked some of these programmes. So have I. But this does not mean that they should not have gone out. Some noble Lords may have thought that brief moments, particularly in drama, were of a disgusting or obscene nature, but as a proportion of the whole these episodes have been miniscule. We are, in other words, so far as the BBC and ITV are concerned, using a steamhammer to crack a very small nut indeed. This seems to be an absurd state of affairs, and one which can be remedied by appropriate clauses in the Bill and not by the Bill as it stands at present.
§ We are concerned here principally, so far as the BBC and ITV are concerned, with programmes which go out after the so-called "watershed"—which in the case of the BBC is 9.30 p.m.—and not with peak-time programmes before that. I appreciate that the purpose of the Bill is so to classify video cassettes which are for sale or for hire that those buying or hiring such programmes will know the nature of their content. The simplest method of doing that would undoubtedly be by reference to the watershed—i.e., by reference to the time that the programme was originally transmitted—perhaps, on occasions, with some warning attached such as is already broadcast, suggesting that certain passages of a particular programme may be unsuitable for children or for those of a sensitive nature. I can, however, see that this might produce certain problems in other parts of the Bill, particularly in relation to the criminal sanctions which are available under it.
§ There are a number of different ways in which we could solve this problem. The corporation and the authority could perhaps be designated as agents of the certifying authority. The BBC and the companies could be allowed to do their own labelling, and no doubt ingenuity will discover other methods whereby the purposes of this Bill could not be circumvented, 707 and yet they would not introduce all the evils of outside censorship. What I do suggest, however, is that we must discover a way whereby programmes from independent TV and the BBC can be allowed to be self-regulating, which essentially consists of exempting them from certain provisions of the Bill but coupling that exemption with a requirement to label, which could bring into operation the other clauses of the Bill—and this is the amendment to which I am in fact speaking.
§ With your Lordships' leave, there is an alternative way of dealing with this problem, which I have not put down as an amendment at this stage and which I have not discussed with anyone since it only occurrred to me last night when I was re-reading the Bill in its present form. Briefly speaking, this would consist in designation by the Bill itself under Clause 4 of the IBA and the BBC as the appropriate authorities under that clause for classifying and labelling video cassettes of material which was originated by the authority and the corporation and which had already been broadcast. Coupled with this would be a requirement that such video cassettes would be classified and labelled in the same manner as is to be done by the authority which is to be designated by the Secretary of State, together with a requirement that the IBA and the corporation consult with the authority on criteria and standards, so that a substantial degree of uniformity would exist in their classification and labelling. That is something which I hope the Government and the sponsors of the Bill may well consider with all seriousness.
§ However, speaking as I am to Amendment No. 4, I merely put this forward as the basis for further discussion, although it is a basis which would retain the independence of the IBA and the BBC while avoiding the necessity for a submission of their programmes to an outside authority and, I believe, would cope with the problems posited by programmes commissioned from independent producers, which I know has much concerned those who have been drafting this Bill. The main copyright in these often does not rest with the authority or with the corporation; but under this system that would not matter. I think this is a way to proceed which may commend itself to those responsible for the Bill.
§ If this is not done—and I believe it is not beyond the wit of parliamentary draftsmen to achieve this, even in the short time which remains to us before the Bill must leave this House—then I fear there are very sinister implications for the future of broadcasting. We may well end up, unless we are careful, with a fully state-regulated system such as obtains in the majority of other countries. I do not believe that the majority of your Lordships would want us to reach the position, which has obtained in the case of the BBC for 60 years and in the case of the IBA for 30 years, in which we would no longer hear from Ministers, in answer to questions about programmes, that this is not a matter for Ministers but one for the members of the Independent Broadcasting Authority or the governors of the BBC. To destroy the independence of broadcasting at some future date, as a by-blow to an otherwise welcome Private Member's Bill, would indeed be a bitter pill to swallow. I beg to move.708
§ 9.12 p.m.
§ Lord Buxton of Alsa
My Lords, in rising to support the noble Lord, Lord Howard, I should like to assure your Lordships that I do not intend to speak at length because I have done so twice on two previous occasions when moving this amendment, and everything that I have to say is already on the record. Therefore, it would be wearisome for me to extend the debate. However, I should like to add just one vital point to what I have said before. I understand that there are advantages and benefits in this Bill going through in the form of a Private Member's Bill, because of the advantages of the time-scale and the urgency of dealing with the "video nasties" which concern us all.
The noble Lord, Lord Howard, has said again, as I have said before, how much we support this objective; and everything I have said and what my fellow movers feel is not in any way antagonistic towards the rapid fulfilment of the objectives. I would be happy about it except for one thing, and that is where it impinges in any way on the traditional freedom. independence and judgment of our public broadcasting services. I really think that, after 60 years and 30 years, this is one of the things that are held most sacred by Parliament and public.
I do not believe that anything which impinges upon that traditional independence of the broadcasting services should be attempted in a Private Member's Bill. If there is to be any tampering or dealing with the public broadcasting services and anything which some of us believe might carry grave consequences in the future, with a sort of reverse take-over and ultimate censorship in one form or another, then it is my belief that it should be done only in the form of major Government legislation following a White Paper and prolonged public debate.
To sum up, I should like to say this, with great respect and with due humility. When so many of us with a long life in broadcasting, and especially when supported by former chairmen of the BBC and the IBA, are so convinced after several debates and after several meetings outside the Chamber about the dangers of censorship, we cannot just let it go at this stage and allow ourselves to be steamrollered when we know that we are really looking after the interests of the public. We cannot all be wrong about this and we know that there is very considerable unanimity on the matter on all sides of the House. I therefore urge my noble friend once again to give us, as he has so kindly and considerately done before, some opportunity for continuing to try to persuade the Government on this very vital matter.
§ Lord Ardwick
My Lords, my noble friend Lord Mishcon, whose name is down to this amendment, has had to take leave temporarily of this Chamber to expend his eloquence on another gathering which has been looking forward to it for some weeks, but he will be coming back. He will be sorry to have missed this debate. Speaking for myself, on Second Reading I was in complete agreement with him, and with the noble Lords who have just spoken on this subject, and I have great sympathy with the amendment.
The only thing I was worried about was that the time classification was simply not good enough. I thought 709 that some advantage would be taken of the time in the interval that has elapsed to translate the time classification into some kind of categories analogous with those used by the British Board of Film Censors. That has not been done, but apparently it is now to be done. I hope it will then prove to be acceptable, because I see all the dangers and all the difficulties of subjecting the broadcasting companies to external censorship.
There are bound to be differences in any other judgment from those which the broadcasting companies take on some occasions, and this can only undermine and rob the broadcasting companies of their self-confidence. So I hope that there will be some successful conversations. There is always a danger from these vociferous and articulate minorities, as they have been described, that a successful plea for retrospective censorship, which is what is being put, will lead to a demand for a pre-censorship by an external authority of things which are to be broadcast. This is dangerous and very much to be feared.
My Lords, so that there can be no possible doubt about the extent of support in your Lordships' House for this amendment, may I indicate as briefly as possible that my noble friends and I who sit on these Benches are deeply concerned about the dangers inherent in this Bill, if it is unamended, to the freedom and independence of the BBC and the independent sector of broadcasting—dangers so admirably and succinctly illustrated by the noble Lord, Lord Buxton. An amendment of this kind is absolutely essential. Indeed, I hope that it will be pressed, if it is not accepted by the sponsors, or if we do not get some very clear assurance that something will be done.
My main anxiety about this Bill is that in general terms I do not think that it will achieve its purpose. The main thing it will do is to erect a layer of bureaucracy which will cause an immense amount of trouble to sensible and serious people who are doing very valuable work, and the villains whom we are trying to catch will merely go underground. We are dealing here not merely with administrative and bureaucratic trouble for people doing valuable work; we are dealing with the very freedom of broadcasting in this country.
As the noble Lord, Lord Howard of Henderskelfe, illustrated admirably, the controls over the two sectors are rather different. In many ways the independent sector is more closely controlled. If the Director General of the BBC, as once happened, decides that a certain programme should not be transmitted, this, it seems to me, is the exercise of editorial discretion. If, on the other hand, one of the independent contracting companies prepares, after very careful thought, a programme which is looked at by all its own authorities and finally the IBA says that the programme must not be transmitted, that, frankly, is censorship. If we are going to have another element of censorship, we are embarking upon a very dangerous course.
I hope I shall hear that the sponsors accept the amendment or, if they do not accept it precisely, that they are prepared to take some steps before the Bill is 710 enacted to make absolutely sure that this very real danger— and the bother and trouble which could arise from the Bill, unamended, quite apart from the danger—is dealt with in some way.
§ Lord Robertson of Oakridge
My Lords, I should like to assure the Minister that the argument is not all one way. I oppose the amendment for the following reasons. The television authorities are feeling unnecessarily threatened and slighted. We need go back only an amendment or two to what my noble friend Lord Howard of Henderskelfe said: that the classification of videos for home viewing is a totally different matter from the control of material to be broadcast over the networks.
It seems to me to be right that there should be one designated authority to deal with the classification of videos. We are concerned here not with video nastier but with the more general aspect of consumer protection; namely, to help the buyer of a video to have some idea of its nature. If all television programmes were such as to qualify for "U" certificates there would be no problem, but that is patently not so. Some programmes are considered by the television authorities themselves as suitable for showing only late in the evening. Other programmes, while largely unexceptionable, contain some material that is unsuitable for viewing by children.
Many of your Lordships will have seen and enjoyed the wonderful series "The Jewel in the Crown". However, it contained one or two scenes of very explicit sex, which most of us, I am sure, would consider to be totally unsuitable for children. If the videos of these programmes were sold without any indication of their suitability for viewing by young children, somebody might well hire a video of part of the series for, say, a children's birthday party. Imagine the embarrassment of that person if one of the explicit scenes came on the screen. For this reason I believe it to be essential that the Bill should make adequate arrangements for the classification of all videos, including those broadcast by the television authorities.
§ 9.23 p.m.
§ Lord Elton
My Lords, I wonder whether your Lordships consider that the feelings of your Lordships are sufficiently on the record now for me to reply to them. We are addressing ourselves, as both my noble friend Lord Buxton of Alsa and the noble Lord, Lord Ardwick, said, to an amendment which is in the same form as when we saw it before. During the Committee proceedings I explained the Government's principal objections to the proposal that material which had been broadcast by the BBC or the IBA should be exempt from the need to be classified under the arrangements set out in the Bill. My honourable friend Mr. David Mellor has since had some very useful discussions with my noble friend Lord Buxton of Alsa, the noble Lord, Lord Howard of Henderskelfe, and other representatives of the broadcasting interests to see whether some of the difficulties we see could be resolved to everyone's satisfaction.
We have further considered the matter, in consequence, but I have to tell your Lordships that, despite those helpful discussions, the Government are not convinced that material which has been broadcast 711 should, for that reason, be exempt from the need for classification.
Perhaps I may first remind your Lordships very briefly of the points I adduced in Committee. I was, first, anxious to give—and am even more anxious to repeat—the assurance that our position does not for a moment imply a criticism or lack of confidence in the broadcasting authorities. The reasons for my being able to say that in this context may become clearer as we go on, but we believe that if broadcasters wish to enter the video market—and we see every reason why they should do so—the guiding principle should be that they ought to conform to the same rules as everyone else competing with them in the same market.
Much of the material broadcast by the BBC and the IBA will benefit from the exemptions in Clause 2. These exemptions apply according to the nature to the material in question—not to its source. They will exempt material designed to educate, inform or instruct and material concerned with sport, religion or music so long as it does not fall foul of the proviso in Clause 2(2). We are therefore talking in the main about material designed to entertain. As I have said before, there is no question of such material—if it has been seen already on television—being refused a certificate by the BBFC. But outlawing video works in respect of which a certificate cannot appropriately be given is not, of course, the only purpose of the Bill.
Another very important aspect is that it will provide for classification across the board, so that customers and retailers may know the kind of audience for which a video is suitable. I am obliged to the noble Lord, Lord Robertson of Oakridge, for the illustration he gave of the necessity for this provision. Furthermore, the Bill provides statutory controls to back this up by making it an offence to supply or offer to supply a video recording in breach of the certificate attaching to a video work contained on that recording. A video of a horror movie, say, which might well fail to be caught by Clause 2(2) could be exempted under this amendment and could therefore be supplied to children—even if it had been shown late at night precisely because few children would be watching at that time. It was the noble Lord, Lord Ardwick, who, at Second Reading, pointed out how unfortunate it would be if a parent assumed that "The History Man" would help his children with 0-level history.
The amendment to Clause 8 seeks to meet this difficulty but, in our view, it does not do so adequately. It would require contractors to the IBA or the BBC, as the case might be, to label the case in which a video recording is kept to show the time of first broadcast. I am not sure that the time of transmission is always a proper guide to the suitability of the programme concerned and, in any event, it is asking a lot of the retailer and of the customer to have regard to two quite separate and different systems of classification. Furthermore. the amendment would do no more than provide guidance. It would not, for exemple, make it an offence to supply to even the youngest child a recording containing a programme which the broadcasting authorities may have put out late at night precisely because they considered it to be unsuitable for such children. That is a serious weakness.
712 Those, broadly, are the reasons why we are opposed to the proposals in the noble Lord's amendment. But I wonder if there are not various ways in which we can move forward within the Bill as it now stands. Clearly, it would be unreasonable and unnecessary for a designated authority's examiners to scrutinise frame by frame (although that is not an apt term because frames go with cinematographic film and so perhaps I should say "strip by strip") every programme which the broadcasting authorities may wish to issue in video form. That would be a waste of everybody's time. I know that the BBFC fully recognise this point and have it mind to propose the setting up of machinery to ensure that material submitted by the broadcasting authorities can be classified with the minumum of difficulty. The Government strongly support the establishment of liaison arrangements along these lines, and the board will have our full backing in initiating discussions with the broadcasting authorities to sort out the practicalities.
That, I suggest to your Lordships, is a better way forward. The arrangements I have outlined do not detract from the principle that, save for specific exemptions listed in the Bill, video material will need to be classified under the arrangements made by the designated authority before it can be supplied commercially. The full range of controls, including the restrictions on supplies in breach of a classification certificate, will apply to video works comprising programmes which have been broadcast as they will to other material. At the same time, the sensible arrangements which we propose should be looked at would avoid expensive and time-wasting duplication.
The noble Lord went on to speak about what he termed the thin end of the wedge, and the noble Lord, Lord Winstanley, said that the effect of the Bill, because of the necessity for parity with material not broadcast, would threaten the independence of the broadcasting authorities. The noble Lord, Lord Ardwick, said that it would threaten their self-confidence and my noble friend Lord Buxton said that a Private Member's Bill was not appropriate to a threat of this stature to bodies of such constitutional importance.
With the very greatest of respect—and I take on board the extraordinarily wide and distinguished support which noble Lords have on this amendment—I wonder whether they are not slightly over-stating their case in this regard. Nobody is proposing to touch their product in the medium in which they were principally constituted to operate and in which they have won the outstanding opinions of people throughout the world—and our own very high regard—but only in a medium where, if they embark on it, they will no longer be on that ground. I have expressed that badly, but if they produce broadcast material, they are masters in their own house.
For example, if they produce books which are not broadcast material but which are based on broadcast material, they are subject to the regulations applicable to that medium; such as the copyright laws and the obscene publications laws. I do not think it is a breach of a fundamental constitutional principle if, when they go out of their home medium, as it were, in another direction, that should be subject to the same regulation as other people who are in the same medium.
713 However, I recognise the concerns which have been expressed by noble Lords and I appreciate that they are genuinely felt by the broadcasting authorities, and I understand their reasons. Despite that, as I made clear, I cannot commend the amendment to your Lordships. However, I should like to assure noble Lords that the Government stand very ready indeed before Third Reading to discuss with the broadcasting authorities and other interests, and with the noble Lords who have spoken in support of the amendment, the possibility of alternative arrangements being made which might meet their concern without, so to speak, damaging the fabric of the Bill. I make that offer without commitment as to the outcome of any discussions. Nevertheless, I make it in earnest, and noble Lords will have access to those with the responsibility directly in their hands, which will be to their advantage.
I can also undertake that if the Bill remains in its present form—and perhaps I make this offer precipitately, because we do not yet know—and when the arrangements have in that case bedded down, if the broacasting interests remain convinced that the arrangements are damaging to broadcasting in the long term, the Government's interest will be the same as that of the authorities. We do not wish to challenge or weaken them in any way, and the Government will be willing and ready, under those circumstances, to re-examine the position and consider whether a change in the arrangements is, indeed, necessary.
I do not think I can go further at this stage and your Lordships will not wish me to take longer. However, if noble Lords will stay their hands, I think that the conversations which I propose they should have with my right honourable friend might very well be the best way for them to proceed.
§ Lord Houghton of Sowerby
My Lords, I am sure the House will be grateful to the Minister for what he has just said, but since there is a good deal of mutual respect going around, I shall say to him, with respect, that at this stage in the consideration of the Bill it is incumbent upon the Government to show their hand a little more firmly and a little more clearly as to what they are prepared to do. After all, these discussions have been going on right from the beginning of the consideration of the Bill in your Lordships' House. There was a very unsatisfactory debate on this matter in another place in Standing Committee and, I believe, on Report. This is a very grave matter and unless the House is prepared to show some determination of its own to get suitable accommodation on this question, we shall not get from the Government the response that the matter deserves.
If I may say so with double respect to the noble Lord, what we have listened to is a very rapid reading of a classic example of the Civil Service mind where logic is carried to the extreme. Apparently there is no Minister who can brush it aside and say, "We are having none of this nonsense. There is a limit to what we are prepared to do to achieve the purposes of this Bill and one thing we are not prepared to do is to subordinate the statutory broadcasting authorities to the miserable conditions of the Bill, which is intended, 714 if possible, to prevent throughly objectionable video recordings reaching children in the home".
The trouble is that when you embark on a Bill of this kind you never know where to stop; you want to carry it to the bitter end so that there are no loopholes. When the noble Lord said that the broadcasting authorities who go into the video business should be subjected to the same conditions as everybody else, I would point out that they are unlike everybody else. They are two statutory bodies, one governed by an Act of Parliament and the other by its Charter. They are given statutory responsibilities and appointments are made by the Government of those who are judged to be capable, honourable and wise enough to discharge them. I think both the broadcasting bodies have been treated in a derogatory way. There is something which I am sure the broadcasting authorities can offer by way of indication of when the particular films concerned were broadcast. We have heard that.
Quite frankly I do not think it matters an awful lot that every household has not got the clearest indication of what to show on a video. Have they not got any discretion of their own? Have they not any judgment of their own? Do they not look at programmes themselves and exercise some responsibility? The way in which the whole of this subject is put in the hands of a sort of nanny state I think is quite objectionable, and I think that this is one of the most disgraceful features of the Bill.
Unless the House shows some resistance to this palsy that we listened to a few moments ago, then I think the Government will never come to terms. I think if it is still in the Bill there ought to be a very strong movement in your Lordships' House to reject the Bill on Third Reading and put our foot down. We have already been subject to the whole of the discussion on this Bill—on a Private Member's Bill which contains proposals relating to civic freedom—and the position of the two statutory authorities which are quite unsuited to be included in a Private Member's Bill and sponsored, if I may say so, by a noble Lord of the House, other than of the Government.
The Government should take responsibility for what they are putting in this Bill and not keep up the pretence that it is really nothing to do with them; they are getting up now and again in order to assist the House to reach a conclusion on submissions in response to the Bill. I think it is disgraceful. I cannot understand why noble Lords opposite sit there in a conspiracy of silence, just ready to vote everything down, apparently having no minds of their own or courage of their own to get up and make a stand for liberty and the independence of our statutory authorities. I know that noble Lords opposite do not like this, but occasionally they have to put up with it.
§ Lord McIntosh of Haringey
My Lords, I do not think the noble Lord, Lord Howard, would welcome general support from me for his amendment, but I feel it necessary to respond to one particular point which the noble Lord, Lord Elton, made in his speech when he referred to the fact that BBC publications—the written word—are subject to the Obscene Publications Act. Indeed, they are and so would videos produced by the BBC and IBA be subject to the Obscene Publica- 715 tions Act. Although some of us would feel that the interpretation of the Obscene Publications Act recently has been particularly harsh, I do not believe that either the BBC or the IBA would have objections in principle to that subsection of the Obscene Publications Act which provides for the courts to interpret the law as to what is acceptable to the public. It is quite a different thing from the censorship which is proposed in this Act, which establishes an authority which carries out the classification and by implication, or indeed explicitly, non-classification if a classification is not to be awarded.
Those are the differences. It is not a difference between the printed word and videos. It is not to say that the broadcasting authorities wish to be above the law. It is to say that the Obscene Publications Act does that task very adequately at the moment—some would say more than adequately—and that the imposition of censorship is the thing which is objectionable in this Bill as it now stands.
§ Lord Howard of Henderskelfe
My Lords, may I, with the leave of the House, reply to one or two of the points that have been made. I have personally been convinced during the course of discussions that it is essential to classify, not perhaps in a complicated way, videos that are for sale or for hire and that to do so by the time at which those videos were originally broadcast may—and I only say "may"—not be entirely satisfactory. I do not believe that the present classifications that the BBFC operates are entirely satisfactory. I should not like to see them applied as they stand at present to video cassettes. Nevertheless, there is much to be said for some similar system.
I am in absolutely fundamental disagreement with the noble Lord, Lord Elton, on only one aspect. If we are entering a new field—over the years we have entered many new fields—we should be subjected to exactly the same constraints, the same hoops and the same impositions as all other entrants. We have not been so constrained in the past. I would remind him that the BBC was given the first two channels on DBS. Certain events have occurred since then which have 716 made it somewhat difficult for advantage to be taken of it. This was not giving everyone an equal start, and this equal start business seems to conflict in some measure with other aspects of Government policy in regard to commercial trading. On that matter, therefore, I differ from the noble Lord wholeheartedly.
I detect a willingness to move some way towards us. I also see that there are problems with exemptions in relation to the criminal sanctions that apply under the Bill. I think that there are ways through. I have tried to suggest that there are various alternatives that we could discuss in the short time remaining to us before Third Reading. As the noble Lord has told the House, I am to see his right honourable friend the Home Secretary next week. This could have advantages. We might be able to devise a system that would satisfy all of us whereby cassettes are satisfactorily labelled but are not examined by some outside censorship body. I cannot promise any more than the noble Lord that I shall carry all my colleagues with me. I shall, however, do my best to see whether we cannot reach agreement to ensure that the Bill leaves the House in a better shape than it entered it. We pride ourselves on doing this to Bills. I see no reason why we should not do so on this occasion.
I can assure the noble Lord, Lord Houghton, that I do not lack fire in my belly on occasions. If we are unable to reach some form of agreement and if we cannot see our way forward to something that can satisfy either of us, not fully but in some measure, then I shall be perfectly prepared at the next stage of the Bill to divide the House on the amendments that I shall then put down. I hope that we shall be in a position where the sponsor of the Bill himself will be able to put down amendments that we have agreed beforehand. If this is not so, I shall be perfectly prepared to divide the House on amendments that I shall put down. Obviously, that means that I do not wish to divide the House this evening. I have consulted with my noble friends and supporters, and they agree that it would be inappropriate to do so when we have been generously offered the opportunity of much fuller discussions during the short time that remains. I therefore beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.717
§ Clause 3[Exempted supplies]:
§ 9.45 p.m.
Lord Nugent of Guildford moved Amendment No. 5:
Page 3, line 3, leave out ("The supply of") and insert ("Where a person (in this subsection referred to as the "original supplier") supplies").
The noble Lord said: My Lords, in moving this amendment I should like to speak also to Amendment No. 6.
Amendment No. 6: Page 3, line 5, leave out from ("recordings") to end of line 8 and insert ("the supply is an exempted supply—
§ For the purposes of this subsection, any supply is a supply to the public unless it is—
- (i)a supply to a person who, in the course of a business, makes video works or supplies video recordings,
- (ii)an exempted supply by virtue of subsection (2) above or subsections (5) to (10) below, or
- (iii)a supply outside the United Kingdom.").
§ The purpose of these amendments is as follows. Clause 3 is concerned essentially with supplies in one direction. In many cases the return of a video recording to the maker of an exempted supply will itself be exempted; but we have realised that this will not always be the case. For example, the return by the broadcasting authorities of a video recording supplied by an amateur producer-that is, one who does not make video works or supply video recordings and therefore does not benefit from Clause 3(4) as it now stands-may not be exempted under either Clause 3(4) or, indeed, Clause 3(2).
§ The point I am making is that in certain circumstances where an amateur producer of a video recording supplies it, for instance, to broadcasting authorities and they wish to return it to him because they decide not to use it, he does not benefit from the exemptions in Clause 3. Thus the broadcasting authorities may not be able to return to an amateur a video which they decide not to broadcast. There are similar considerations applying to other sorts of exempted supplies.
§ These amendments deal with this point by ensuring that the supply of a video recording otherwise than for reward, for the purpose only of returning it to a person who previously had made an exempted supply of the recording, is also an exempted supply. The necessary consequential changes are made to Clause 3(4) and the opportunity has been taken at the same time—this is what my brief says—to make the subsection more readily comprehensible. I apologise to noble Lords for the complexity of the matter but I think the point is a clear one. I beg to move.
§ Lord Mishcon
My Lords, I wish to apologise to your Lordships for the garb I am wearing in addressing your Lordships from this Dispatch Box. May I assure your Lordships that it is not in purported celebration of my carrying any amendments tonight.
I am wondering whether the noble Lord, Lord Nugent—I almost called him my noble friend, and I know he will not object to that—could help me on this, 718 for the convenience of the House. He has just moved Amendment No. 5. May I take it that at this stage he is moving only Amendment No. 5 and is not carrying forward in his speech Amendments Nos. 6, 12, 14 and 15? If he were, then, of course, I would address your Lordships on my amendment to his amendment, and then on the main amendment, Amendment No. 9. I am wondering whether the noble Lord can kindly help me.
§ Lord Nugent of Guildford
My Lords, I am moving only Amendment No. 5. I am speaking also to Amendment No. 6; but if Amendment No. 5 is accepted I shall then proceed to move Amendment No. 6 and the noble Lord will be able immediately to move his amendment to my amendment.
§ On Question, amendment agreed to.
§ Lord Nugent of Guildford moved Amendment No. 6:
§ [Printed above.]
§ The noble Lord said: My Lords, I beg to move Amendment No. 6, to which I have already spoken.
Lord Mishcon moved, as an amendment to the amendment, Amendment No. 7:
Line 12 (paragraph (i)), at end insert ("or").
§ The noble Lord said: My Lords, I repeat my gratitude to the noble Lord for guiding me as to the sensible way in which to deal with his amendment and my amendments to it. I have no objection whatever to the spirit of the noble Lord's amendment. My sole reason for moving an amendment to his amendment is that, if his amendment were passed as it is, it would mean that the question of exports of videos from the United Kingdom would in no way be covered by this Bill-indeed, they would be exempt.
§ As your Lordships will know, it is the purpose of my Amendment No. 9 to see that exports are covered by this Bill. Therefore, I believe that it would be for the convenience of the House if, at the same time as I move my amendment to the amendment of the noble Lord, Lord Nugent, I speak also to Amendment No. 9, which I will move formally later.
Amendment No. 9: Page 3, line 6, leave out from ("persons") to ("other") in line 7.
§ At the Committee stage of the Bill, I made a plea, which received a measure of support in the Committee, that it would be extremely wrong for exports not to be covered by the Bill, and I gave the following reasons for saying so. First, as the main target of this Bill are what we have termed in shorthand English "video nasties"—and we know exactly what we mean by that—there will be, on the passing of this Bill, (which many of us hope will take place soon) a situation where those who deal in video nastier will find that they have no trade, certainly no legal trade, and if they carry out illegal trade it will be subject to grave perils. There will be no trade left for them in the United Kingdom. That will mean that there will be a great temptation to see that the stocks that are then carried, and that would be valueless in the United Kingdom, are at once got rid of overseas.719
§ Secondly, as it is not usual for people of this ilk contentedly to be put out of business, one can well imagine that their next attempt will be to continue in business and again to see that their goods are exported overseas in future and that fresh videos of this nature are either made or purchased. That is hardly going to redound to the credit of the United Kingdom. In Europe there has already been expressed grave anxiety as to the extent and possible growth of this wretched trade in video nasties. As a member of the European Community—quite apart from exports to countries outside it—I should not have thought that this country would want to be known as being one of the main exporters to the European Community.
§ There is a third reason. One imagines that the only way in which those videos that have no categorisation and which, therefore, are illegally dealt with in the United Kingdom, will be traced, is when inspectors under this Bill go into premises because they have reason to believe that there are video nasties there. Without exports being covered by this Bill and, indeed, with exports being exempted from this Bill, all the owner of the warehouse or other premises has to say to an inspector is: "You have no right to inspect that pile of video tapes over there; I intend them for export". That means that the inspector has no rights whatever to inspect.
§ It has been said that there are two answers to this plea for exports to be covered. One answer is that it really is not for us to put classifications on videos for people overseas, that we ought to leave it to their own law to deal with the matter. If I may say so, that is no answer at all to a caring community. We either care for our own people and say that it is necessary in regard to these goods that there should be a warning as to the nature of the goods that are being acquired, or there ought to be some way of preventing these goods falling into the hands of young people and being put before the eyes of young people. Surely we also owe a duty to our export trade.
§ The second answer that is given is that we shall harm our perfectly proper export trade in video tapes. That is a much more powerful argument and must be dealt with. I was in communication with the association representing the video industry and I told it of my concern. It told me that it shared my concern and I think that I can properly say that it was the hope of that association, of myself and of those who think with me that this situation could be covered by an amendment which would have met with the association's blessing. I must say frankly that that was not achieved, but not because the association did not agree with the spirit of the amendment: rather, it said that there were two respects in which it felt that the very proper export trade might be adversely affected.
§ One was that very often British firms of repute in this industry are asked to manufacture or process parts of a video production, and that it would obviously be impossible for a classification procedure to be applied there and for an export trade properly to be carried on. I hope my recollection is right when I say that I believe that that is covered by Clause 3(4) of the Bill. If I happen to have quoted the wrong clause, I know that 720 I shall be corrected by those who oppose me on this amendment but who are always extremely courteous and helpful in doing so. However, I think it is Clause 3(4) which would exempt that in any event, even if it were dealt with in the United Kingdom.
§ The second category of case where British firms thought that they might be hurt if exports were included in the Bill is where they are asked, usually as a very speedy matter, to duplicate, to copy, a tape which is sent over here and which has to be processed in some numbers. They felt that if there were a classification procedure applied to those tapes, there would be such a time lag that the export trade and the orders for the export trade would be adversely affected.
§ My suggestion in that connection is simple. All that the British Board of Film Censors, if they are to be the designated authority, would have to do would be to see that there was on hand at all times a small branch of the inspectorate—it might be one or two members—to deal specifically with the export trade, or indeed with matters which have to be dealt with urgently. I see no difficulty in that. We all know that in the normal case of the reputable trader all he would have to do would be to tell any member of the inspectorate exactly the nature of the tape and the source of the order. A quick test by the inspector would then obviously reveal whether the description was correct, and there could easily follow classification, or a decision—and a speedy decision—as to whether it was not exempt at all.
§ We have, on the one hand, some maybe hypothetical difficulties, maybe even a few practical difficulties, but, on the other hand, if we do not include exports, we are passing a Bill in this House and sending it back to the other place completely imperfect in the very realm where we are trying to gain success. In other words, we are radically interfering with the power of inspectors in appropriate cases to inspect, and we are, furthermore, walking into a situation where the unseemly trade which we are trying to stop will in fact be diverted overseas. It is not good enough to say that we do not manufacture at the present moment to a large scale, that we only import these video nasties and get rid of them again. That market will still be there, and one does not know whether or not, if the market is stemmed in the United Kingdom. manufacture would perhaps start here purely and simply for export.
§ I again emphasise, as I hope I have done throughout the time I have addressed your Lordships on this Bill, that I and my noble friend Lord Ardwick are expressing a personal view upon this matter. We have no right to express anything other than a personal view. But I think I can tell your Lordships that it is a personal view strongly held, and is certainly not on any party lines at all, but is shared, as your Lordships will remember at Committee stage, in all parts of your Lordships' House. I beg to move.
§ The Deputy Speaker (Lord Wells-Pestell)
My Lords, amendment proposed, line 12 (paragraph (i)), at end insert ("or"). I would remind your Lordships that Amendments Nos. 7 and 8 are amendments to Amendment No. 6.
§ 9.59 p.m.
§ Lord Elton
My Lords, the noble Lord once kindly said that he found me more acceptable after dinner than before. On that occasion he referred to my dinner. On this occasion I refer to his. It is always a pleasure to see him coming back if, as I believe, he has already delivered himself of one speech to rapturous applause elsewhere. I can only say that perhaps he is too eager for success if he comes here immediately expecting a repetition.
I accept that this is not a party point, and that the noble Lord is as anxious as are my noble friend and I that the Bill should be as good as we can get it. I know that is why he has put his amendment forward.
May I first briefly explain how the Bill deals with exports as it is now drafted, or as it will be drafted when my noble friend's amendment is—as I hope it will be—accepted? The effect of the Bill—and I will use the numbering as it is now—is that Clause 1(4), together with Clause 23, ensures that the Bill applies to supplies in this country, whether or not they are for export. That is the first thing: any supply for export within the United Kingdom is caught.
However, Clause 3(4) exempts supplies to a person who, in the course of business, makes video works or supplies video recordings, unless the video recording is supplied with a view to the supply of the tape or disc in question to ordinary members of the public in the United Kingdom; that is those of us who do not in the course of business make video works or supply video recordings. Broadly, therefore, a supply to a dealer overseas is exempted provided it is not with a view to the re-export of the video recording in question to ordinary members of the public here. If it is, again it is caught. Supplies direct to non-dealers overseas are not exempted.
Now we come to the nub of the matter. Finally, as the House will appreciate, the controls in the Bill cannot, of course, apply to supplies which take place abroad, because we have no means of enforcing them. As I understand it, the noble Lord, Lord Mishcon, has three main concerns. He is worried that dealers would offload overseas offensive material which would be likely to be refused a certificate once this Bill comes into force; that some of those dealers who are prepared to peddle this sort of material will go further and will produce or re-export objectionable videos for overseas markets; and that dealers in unclassified material may be able to circumvent the controls in the Bill by claiming that they have them in their possession for export purposes. I think that was his last point.
As always with the noble Lord, there is a great deal in what he said on each of these points. I am not certain that the picture is quite as bleak as may sometimes appear, however. It will, of course, be possible for dealers to send overseas material liable to be refused a certificate. Indeed, even if this amendment were accepted, they could do so at any time before the Bill comes into force. For most dealers, however, the potential profits would simply not be sufficient to justify their seeking out the necessary markets; nor, as has already been pointed out, are the sort of video nasties which have concerned us all generally made in this country. The noble Lord 722 disarmed that point before I make it. But the Bill will not therefore be forcing existing manufacturers to find a new market abroad, and by closing off the home market we shall, I think your Lordships will agree, make the United Kingdom even less attractive as a manufacturing base for this sort of material than it is evidently at present, because you need a home market to justify an export manufacture.
We then come to the difficulty that would be faced by law enforcement officers who, when searching premises where video recordings are stored, are confronted with a claim that they are intended for the overseas market. The noble Lord argued most persuasively about this. Under the Bill it would be for the defendant to show that on the balance of probabilities the supply was an exempted supply. I should not have thought that a simple claim to this effect would be sufficient to satisfy the court, and of course a warrant could be secured to secure the material so that the person who had it and who intended to supply it would have to justify his having it to the court. Moreover, the noble Lord will no doubt remember that the Obscene Publications Act would apply in many such circumstances, and this will again provide certain safeguards.
There is a further consideration which applies to all the points which the noble Lord has raised. The Bill does not of course apply to supplies made overseas. The noble Lord, with his great experience in these matters, will appreciate why that should be so. I am not quite sure whether I am repeating that point, so I will go on to say that even if this amendment were accepted the dealers would still be able to send the material abroad by the simple expedient of ensuring that the supply takes place overseas. This is the story which could be fed to law enforcement officers in the sort of example which the noble Lord, Lord Mishcon, has cited. I do not really feel that his amendment would suffice to tackle the potential problems to which he has drawn proper attention.
Those are regulatory considerations. We must not forget the commercial considerations. I recognise the hard work the noble Lord has done, which is not always possible or often done from the Opposition Benches, of going to the people directly concerned and consulting them on the matter. Your Lordships will probably all have seen the British Videogram Association's letter of 2nd May addressed to Members of your Lordships' House. This points out, as I mentioned in Committee, that British laboratories earn considerable sums from making copies of video works for distribution overseas. There is no reason why such material should be classified before copies of it can be sent overseas, and not much assurance that people abroad want to know what our classification authorities think of the material that they are importing. Any such requirement could, therefore, tip the balance of foreign producers' preference against British laboratories and lead them to take their work elsewhere.
The noble Lord sought to make little of that, but I would add this cautionary thought. The arguments which I put forward will probably not suffice to persuade the noble Lord, reasonable though be is, that his amendment is not satisfactory for its purpose. But 723 if they do not, I hope he will recall that they appeal to others, including as he has made clear, the trade. Even if the objections appear to him to be hypothetical that interest is not unrepresentative of another place. This argument would have to be re-run there.
I am sure that in considering how it should proceed he will consider the point which I know is of great concern to him, that for those reasons this amendment might not be acceptable in another place. If we were to agree it, we might therefore jeopardise the prospects. If it seems to him that there is possible gain—and it is an attractive gain which he seeks to make in the cause of the Bill—I wonder whether it is not outweighed by the possible risk that it might entail.
I am not counselling your Lordships to make an ill-advised decision which is contrary to their moral instincts, because I sought to show that most of the areas with which the noble Lord is concerned are either entirely or partly covered by what is already in the Bill. I have also sought to show that, where they are not, his own solution is not entirely effective. I wonder whether he would care to reflect on that.
§ Lord Mishcon
My Lords, while walking from my seat to the Dispatch Box I have indeed reflected. I must tell your Lordships that I am extremely unhappy that exports will not be covered by the Bill. The noble Lord, with his usual courtesy, was answering the arguments and said that they were fairly and reasonably presented. So were the answers of the noble Lord the Minister. But I must tell him, in all frankness, that I found them unconvincing, except when he talked to me and to your Lordships about the risks that there might be to this Bill.
The last thing I want, again talking purely personally, is for this Bill to be put in jeopardy. I would be less than frank if I did not say that it is my view—I put it forward most respectfully—that when a serious Bill of this kind is to be brought before Parliament, it is so much better if it starts its life as a Government Bill. Then one knows that the Bill is not in the jeopardy to which the Minister has just referred. Because I know I must take seriously what he says, if he says to the House that there is this jeopardy, that is the only consideration—I tell your Lordships this absolutely frankly—that moves me at this moment to say that I withdraw the amendment. But I do so with great unhappiness.
§ Amendment to the amendment, by leave, withdrawn.
§ [Amendment No. 8 not moved.]
§ Amendment No. 6 agreed to.
§ [Amendment No. 9 not moved.]
§ 10.15 p.m.
Lord Nugent of Guildford moved Amendment No. 10:
Page 4, line 3, leave out from ("recording") to end of line 4 and insert ("with a view only to its use for or in connection with—
- (a) broadcasting services provided").
The noble Lord said: My Lords, I beg to move Amendment No. 10 and I shall speak also to Amendments Nos. 11 and 12.
Amendment No. 11: Page 4, line 6, leave out from ("or") to ("a") in line 7 and insert ("b").
Amendment No. 12: Page 4, line 11, leave out ("its distribution by").
§ Noble Lords will remember that at the Committee stage the noble Lord, Lord Houghton, moved an amendment expressing anxiety about certain supplies between the various broadcasting interests of a video recording containing a work broadcast or intended to be broadcast. I saw the noble Lord's point and felt that something should be done to meet it. These amendments are designed for that purpose. We realise that certain supplies among broadcasters are not covered by the existing exemptions in Clause 3. We have had some discussions and I am happy to put down these amendments, which I hope will meet the point which concerned the noble Lord. I believe that they should relieve the anxiety of the interests concerned.
§ Lord Howard of Henderskelfe
My Lords, I should like to say that the corporation with which I was formerly connected has some anxieties about the lack of any such protection for works moving between various parts of it and, therefore, I am grateful to the noble Lord for proposing these amendments.
§ Lord Houghton of Sowerby
My Lords, may I join in the shower of gratitude which is now being poured upon the noble Lord, Lord Nugent? Praise is difficult to get in this debate, whichever side you are on. I think that I should say that I am grateful to the noble Lord for having taken the trouble to meet us.
§ On Question, amendment agreed to.
§ Lord Nugent of Guildford moved Amendment No. 11
§ [Printed above.]
§ On Question, amendment agreed to.
§ Lord Nugent of Guildford moved Amendment No. 12:
§ [Printed above.]
§ On Question, amendment agreed to.
Lord Nugent of Guildford moved Amendment No. 13:
Page 4, line 14, after ("purpose") insert ("only").
§ The noble Lord said: My Lords, I beg to move Amendment No. 13 and I should like to speak to Amendment No. 14 with the leave of the House.
Amendment No. 14: Page 4, line 16, after ("certificate") insert ("or otherwise only for purposes of arrangements made by the designated authority").
§ This amendment widens the scope of the exemption in Clause 3(9) to deal with a small but important point which is being drawn to our attention by the British Board of Film Censors. Under Clause 3(9) as it stands the supply of a video recording for the purpose of submitting a video work contained in that recording for the issue of a classification certificate is an exempted supply, as we all know. But supplies are 725 sometimes made through the BBFC for other purposes. For example, the board may ask to see a video work not so that it can be classified but so that the board can keep abreast of standards which apply abroad. The board sometimes finds itself considering a video work to see the version of the work approved by an overseas classification authority. In certain cases, such a supply would be exempted under Clause 3(2) as being neither for reward nor in the course of business; but not all such supplies would benefit in this way. This amendment ensures, therefore, that the designated authority can conduct its work without the possible difficulties to which I have referred, I beg to move.
§ On Question, amendment agreed to.
§ Lord Nugent of Guildford moved Amendment No. 14:
§ [Printed above.]
§ On Question, amendment agreed to.
§ Lord Nugent of Guildford moved Amendment No.15:
§ [Printed earlier: col. 699.]
§ The noble Lord said: I have already spoken to this amendment.
§ On Question, amendment agreed to.
§ Clause 4 [Authority to determine suitability of video works for classification]:
Lord Jenkins of Putney moved Amendment No. 16:
Page 4, line 19, after ("person") insert ("recommended by the British Board of Film Censors").
The noble Lord said: My Lords, it may be for the convenience of your Lordships if, in speaking to Amendment No. 16, I refer also to Amendment No. 19:
Amendment No. 19: Clause 5, page 5, line 38, at end insert—
(" ( ) Before proposing a designation the Secretary of State shall consult with the British Board of Film Censors.").
§ Although it is an amendment to the following clause rather than to Clause 4, the purposes of the two clauses are similar except that Amendment No. 16 is somewhat more draconian than Amendment No. 19.
What Amendment No. 16 seeks to do is to limit the persons who may be designated by the Secretary of State to those recommended to him by the British Board of Film Censors. What Amendment 19 seeks to do—I assume that I have your Lordships' permission to refer to it—is a more customary and less rigorous thing. It says that:
Before proposing a designation the Secretary of State shall consult with the British Board of Film Censors.
§ This is a common form in legislation. It is rather unusual that the appointees of the Government shall be limited to those actually recommended by a particular body and, on reflection, I think that this may go a little far. I felt it desirable to introduce the subject at this stage because I think, more properly speaking, it is the point at which the issue should be raised, although I think the course proposed under Amendment 19 is one more likely to commend itself 726 to the noble Lord who has responsibility in this matter than the course proposed under Amendment No. 16.
§ The object of the exercise will be plain to your Lordships. There is obviously and desirably in this matter a close association—though we do not know precisely how close or what the particular relationship will be—between the designated authority and the British Board of Film Censors. Whether it is the British Board of Film Censors or a sub-committee of the board, it is desirable that the relationship should be extremely close; otherwise, we could have a complete nonsense between what is being done by the voluntary body and what will be done by the statutory body to be created. It is rather unusual that on one hand we have a voluntary self-governing organisation in relation to cinema films while on the other we are proposing to set up a statutory body to control video films. That is a peculiar relationship and perhaps the Minister will take the opportunity to tell us what the relationship between the two is to be after the Bill is enacted.
§ In any event the relationships will be close. It seems to me that there ought to be not merely an understanding between the two but a statutory relationship. I think that the British Board of Film Censors, which if I understand what the Minister has said on previous occasions, is to be closely associated with the matter, has already been consulted. If that relationship is to exist, it ought to be given statutory form, and the minimum statutory form which I think it ought to have is that which is set out in Amendment No. 19. But for the moment, my Lords, I move Amendment No. 16.
§ Lord Elton
My Lords, I start by answering a point which I think I heard the noble Lord, Lord Jenkins of Putney, make which anyway is of substantive, if curious, importance to his amendments. The British Board of Film Censors is not a body corporate. It is simply a name given to an extra-statutory collection of people. It is therefore not a legal entity as such. The substantive importance of course is that the noble Lord uses it as a point of reference in his amendment. To that extent it is substantive because it makes the amendment effective. But, leaving that aside, I am not certain that I have altogether followed the noble Lord because I take it that his reference is to the principal officers of the board who are to be the designated authority and I do not see why the Secretary of State should be required to consult them about the proposed designation when they are in fact intended to be the designees, as it were. Again, it would be odd, would it not, if, as the amendment proposes, the Secretary of State, in making a designation which could, in theory at least, involve the replacement of the principal officers of the BBFC, were to be permitted to propose only those persons who have in turn been proposed by them. It stretches the imagination to expect such a conflict, but it would be an odd way of tying the Secretary of State's hands. I wonder whether I have set at rest the noble Lord's concern at not finding there a form of words which is perhaps customarily present in other circumstances.
§ Lord Jenkins of Putney
My Lords, I am most grateful to the noble Lord. I wonder whether he would be kind enough to clarify this a little further. He says that the British Board of Film Censors, or, rather, their 727 senior officers, are intended to be the designees. Perhaps I am wrong, but so far as I am aware it does not say this in the Bill, and consequently what I am seeking to do is to establish in the legislation that the British Board of Film Censors or their officers are in fact to be the designees. I am not quite sure whether I have gone the right way about it, but it seems to me very important that we should not have a situation arising in which the noble Lord has told us that these people are to be the designees but where, in point of fact, without any breach of the law, a subsequent Minister could decide to appoint Tom, Dick or Harry.
To me it is extremely important that these people should be the officers of the British Board of Film Censors, and what I seek to do is to establish in the legislation in one way or another that it shall be those people, because I regard the link between the two as absolutely essential. Therefore, if the noble Lord can tell us that in some way or other this purpose will be achieved, that it will not be just something that a Minister has said at a particular time but that it will be in some way incorporated in the legislation so that there will be an obligation on future responsible Ministers to ensure that this relationship between the designated authority and the British Board of Film Censors is maintained, I shall be happy. But until that assurance is given I am still not happy.
§ Lord Elton
My Lords, with your Lordships' leave—I know it is not lightly given—I would say that the proposal in the Bill is that the Government should designate an authority, and that is the designated authority. We have from the outset made it clear what our intention is and we have made it manifest by long discussions with the British Board of Film Censors—which I understand I can refer to in conversation but not in statute because it has an existence which I can recognise but which the statute cannot—that it is our intention to designate their principal officers; but that does not appear on the face of the statute and I cannot bind successor governments. However, I would be very surprised if a body which has survived without a statutory entity for so long a time were now suddenly to fade into insignificance because it is not mentioned in this statute either.
I fear that I may not have convinced the noble Lord. If there is more technicality that I can bring to bear at a later stage, I shall do so; but I have to remind him that what he has on the Marshalled List will not do anyway.
§ Lord Jenkins of Putney
My Lords, I entirely accept the last point, and, whatever may be future action in the matter, with your Lordships' permission I would seek to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 10.29 p.m.
Lord Houghton of Sowerby moved Amendment No. 17:
Page 4, line 25, at end insert ("privately").
§ The noble Lord said: My Lords, I beg to move Amendment No. 17. I gave notice during the Committee stage that I would come back to this 728 matter at a subsequent stage of the Bill. What I am proposing to do is to try to restore something of a balance in subsection (1)(a) of Clause 4.
During the Committee stage I proposed to leave out the words which were added in two instalments in the Committee stage in another place, because I thought that these cautionary words were out of place in this clause of the Bill dealing with making arrangements. The words were not in the Bill as originally drafted. The arrangements were,
for determining for the purposes of this Act whether or not video works are suitable for showing".
§ That is how the Bill was worded when it received its Second Reading. But in the course of discussion in the Standing Committee in another place it became quite obvious that every opportunity would be taken in the Bill of indoctrinating the censorship authority. They were not to be left to think for themselves. They were to have an indication given to them at every touch and turn.
§ During the Committee stage in another place the view was expressed by some Members that the words that were added were declaratory—a term which, it is said, lawyers use, which is why it is so long—and that where they were not obvious they were meaningless, so it did not matter tuppence whether they were in or not. Of course, it was in the home. That is what the Bill is all about. Why tell the censorship authority that they must have special regard to this matter in the home? Home, sweet home, is the label on the whole Bill. As to having special regard, nobody knows whether you have had special regard if you declare on your honour that you have had special regard. It is almost a clinical judgment. and no reasonable person can say that you have not had special regard. Nevertheless, these words are here, and I have been wondering what could be done just to put the matter in a slightly different perspective.
§ There was a report issued by a video working party in January 1983, convened by the British Board of Film Censors at the request of the British Videogram Association. So far as I can recall, this report has never been referred to in the whole of the debates. It was an attempt to find a basis for voluntary regulation of the whole problem. But almost by the time the report was issued the Government had decided that they were going to introduce statutory provisions to deal with the matter. In it went into the manifesto, and the Government had no further interest in a report which dealt most intelligently with the idea of voluntary rating.
That is merely an introduction to what I am about to quote, because they put it very fairly in paragraph 8 on page 3 of their report. They stated:
Of all the media of screen entertainment, video is the one which permits the greatest degree of private and deliberate choice. A videogram is a physical entity obtained from the shop, much like a bookshop, and selected from a wide choice of available material. It is carried home privately by the consumer to be viewed in private whenever and in whatever circumstances he chooses. There is no common carrier as there is in broadcasting or even in the narrow casting of cable television. Nor is there the sheer theatrical experience of the cinema. Of all the new technologies, therefore, video is the closest to traditional publishing. But"—
on the other hand. there are some powerful social considerations to be balanced against this".
They went on to say what they were. We are very familiar with them.
§ They pointed out, for example, that video is viewed on an ordinary television screen and frequently in a family setting and that it is watched in the same physical manner, if not always with the same mental attitude, as broadcast television. They said that there is a need to guard against the confusion of young children as between one programme and another—a familiar line of country—with social considerations to be set against the fact of private and deliberate choice, which confers upon the citizen some responsibility for his own actions.
§ In that sense there is a balance between the liberty of the person and the social responsibility of what he may do. But the Bill does not recognise any balance. It is pitched wholly one way. It is against freedom and it is for statutory discipline and restraint. The words that were put into Clause 4 were wagging a minatory finger at the censorship authority without the slightest acknowledgment that there was such a thing as privacy in the home.
§ Noble Lords may say, "Is it not obvious that the home is mostly private? An Englishman's home is his castle—or we think that it is". But the obvious was not allowed to go unstated in their own amendments to the Bill because that did not suit the purpose of those who drafted them. They wanted to say to the censorship authority, "You are making these arrangements, but you must bear in mind the likelihood that the films you are passing will be seen in the home. We want you to have special regard to this fact when making your decisions on classification".
§ I tried to find a way to put the privacy of the home together with the possibility of dangerous exposures in the home. I thought of the words "the privacy of the home". Then I thought that people would say, "But the home is not so private as all that". Privacy suggests the closet where people are almost in solitude, looking at something alone, whereas the home is not like that. There will probably be three or four children in the home, although we have to bear in mind that today two-thirds of the households in Britain contain no young children under the age of 16. However, some homes still have young children in them.
§ Then I considered the word "privately". Is anybody going to argue about the factual likelihood that videos will be watched privately in the home? But the critics may say, "You are putting the wrong idea into the heads of the censorship people. You are suggesting to them that they could stretch their judgment a little further than they would otherwise do, because they will be made conscious of the fact that what is shown will be shown privately in the home". Where are we on this use of words? The problem is that when one first uses words which are probably unnecessary and harmful in the first instance one gets into trouble trying to put them right.
§ The Bill, as drafted by Mr. Graham Bright, was a tolerable Bill which met the wishes of the House of Commons at the time of its Second Reading. But the almost vicious morality lobby drew inspiration from the campaign which had waged at the time they were sitting in Committee and another place rather lost their sense of what was just.730
§ The video industry is now suffering from the smear that the press, Parliament and the public have cast over the whole of the video trade. It is a great pity. I am trying to take a slightly more tolerant approach, so that we manage to get the common sense of this into perspective.
§ The duty of this House—here as nowhere else in the land—is to hold balances and make judgments which are respected for their wisdom. This clause, as drafted, does not, I think, fulfil that standard. The censorship authorities do not need to be nudged in this way. They should not be nudged in this way. They are given a duty. When they are appointed, they should know what is that duty. If they are given guidelines, then they will have more help still.
§ No one can deny the factual validity of the balancing word I am trying to introduce. The likelihood is that everything will be seen privately in the home; that is the likelihood. It will not be seen publicly in the home. The chances are that the videos will not be seen by people other than those in the home. Families usually take their enjoyment together.
§ I am now looking to see whether your Lordships are free from the bias which has afflicted the approach to this Bill in another place, and whether this House will ask another place to adjust their approach by the use of one true and non-emotive word, which will at least indicate that there are two sides to the home. One side is where people may be free to come and go, and where neighbours may come and go. But in general, when videos are being shown in the home, they will be shown privately and will not be open to other people. There may be children in that home, or there may not, but the videos will be seen privately.
§ If this amendment is objected to, I shall listen carefully to the reasons in a spirit of common sense, in terms of preserving a balance of approach to this matter, and in the interests of truth. I beg to move.
§ Lord Nugent of Guildford
My Lords, I have listened with close attention to the noble Lord, and yet I am bound to say that I cannot see that his amendment would add very much to the existing subsection. Perhaps I may refer to his own words, which I wrote down: "The likelihood is that everything will be seen privately in the home". That is the case; and so by inserting the word in question we would not be adding anything that could be considered as either guidance or declaratory. The noble Lord himself has objected strongly to including anything that is declaratory. If this amendment had any value at all, it would be only that.
§ Lord Houghton of Sowerby
My Lords, if the noble Lord will allow me to intervene, I must say that he cannot have it both ways. My first proposition was that words as words—not perhaps having any very useful meaning—should be left out. But, no, they had to stay in because they had a significance. Therefore, my word "privately" has a significance. I am adding a word to words. If, with great respect, the noble Lord wants to keep the words, then I want him to add this word. He may say that it does not add very much. All I am saying is that it adds what I think should be added.
§ 10.45 p.m.
§ Lord Nugent of Guildford
My Lords, when the noble Lord reads his speech tomorrow he will see that he has said both things that I have said to him. I made a note of them as he said them. But the point he made towards the end of his speech, that the likelihood is that everything will be seen privately in the home, is the fact of it. There is no particular objection or significance in the word, either way. It will not add anything because it is the case that normally things will be seen privately in the home. In the circumstances, I do not think that I should advise your Lordships to accept a word which will add nothing of any kind to the Bill.
I hope the noble Lord will see the logic of what he said. The word adds nothing to the Bill. He does not like the words "in the home" and he has made that point very clear. A great deal of his speech was directed to that. But his amendment is about the word "privately" and he has answered that himself. I hope he will see the logic of that.
§ Lord Houghton of Sowerby
My Lords, if I am pressing the noble Lord to add a word which has a significance to the mover of the amendment which the noble Lord thinks does not add anything to the words already in the Bill, does he not attach any importance to the desire of someone to put it there? It may be that this is all semantics and that we are only playing with words. If the noble Lord reads his own speech tomorrow he will, if I may say so, see that at the end of it what he should have said was, "Nevertheless, in the circumstances if the noble Lord presses for the word to be there I will accept it, but I warn him that it does not seem to me to make any difference. If he thinks that it does, who am I to stand in his way?" That is what I expected the noble Lord to say. I was waiting for it.
If he had done that it would have been the first concession that has so far been made to the Bill on a straight amendment from this side of the House. I was going to attach great importance to that fact alone. But no, there is no feeling of concession anywhere here. What is the reason? Why is this House betraying its traditional role and just doing nothing except sit quiet and stick to it and let the talking go on? There should be some give somewhere. If there is no give on something that does not matter, how can we get some give on something that does? There is some logic in that, too.
It is extremely difficult to keep calm in this atmosphere. There are no party politics in this. Your Lordships' House is surely not afraid of the House of Commons on a matter of this sort. I believe that the sponsor of the Bill and the Government have got entangled in the procedural problems of a Private Member's Bill. They feel they have no control over it because it is not a Government Bill. But it is monstrous that a Bill of this significance should be subject to all the problems of a Private Member's Bill, either here or elsewhere. It is much too important for that. Why do the Government not come out into the open and say they will take over the Bill and provide the necessary time for adequate discussion and do the job properly?
732 There seems to be no point in dividing the House on this or anything else. Some Divisions have to take place in order that those of us who take a point of view should be able to have it on record. I am gravely disappointed in the noble Lord if he is arguing, as he has done, that the word adds little or nothing. Of course, what he says is true and it would be done privately. Whoever said it would not be? I said earlier, when I wanted to take words out, that of course it would be done in the home. Why are we saying that it will be in the home when everyone knows that it will be in the home?
But would the noble Lord agree to the words being taken out? No, of course he would not. When we said, "having special regard to the obvious", that is really what we are talking about: special regard to the fact that it is in the home. Would he take out the words "special regard"? No, he would not, because he wanted this minatory finger to be pointed to the designated authority. I am not going on chastising the noble Lord. I must say he puts up with it with remarkably good humour. I am glad that my noble friend appreciates the nobility of his character, but I feel very angry.
§ On Question, amendment negatived.
Lord Houghton of Sowerby had given notice of his intention to move Amendment No. 18:
Page 5, line 11, at end insert ("or a licensed video shop").
§ The noble Lord said: My Lords, I shall not move this amendment at this point. The reference to a sex shop in Clause 4 is very much out on a limb. I hope your Lordships will allow me not to move Amendment No. 18. I do not think that the whole debate on the licensed video shop proposal should take place at that point. Where I propose to move the major amendments will be at Amendment No. 30 when a number of amendments, all related, follow and a reference is made to the schedule in which the full proposals of the scheme are set out.
§ If, by any good fortune, the amendments that I want to make are accepted, then it would be possible to come back at a later stage and just deal with the reference to a video shop in Clause 4, which would only require the addition of just two or three words in order to tidy it up. That would come on Page 5, line 11. So I think it would be for the convenience of the House, and it would certainly make it easier for me, if I deal with the main issue on Amendment No. 30.
§ [Amendment No. 18 not moved.]
§ Clause 5 [Parliamentary procedure for designation]:
§ Lord Jenkins of Putney had given notice of his intention to move Amendment No. 19:
§ [Printed early: col. 725.]
§ The noble Lord said: My Lords, in stating that I do not propose to move this amendment, I should like to express my appreciation of the manner in which the noble Lord, Lord Elton, has this evening reinforced the assurances which have been previously given and expressed the hope that some way will be found of legislatively giving effect to those assurances.
§ [Amendment No. 19 not moved.]733
§ Clause 6 [Annual report]:
Lord Houghton of Sowerby moved Amendment No. 20:
Page 6, line 17, after ("Act") insert ("together with a statement of accounts").
§ The noble Lord said: My Lords, this may be superfluous but I wanted to make sure that in the annual report of the censorship authority we could see something of their finances because they are going to operate at the expense of consumers. I feel sure that in any adequate report to Parliament and to the public information about where they got the money from, what they did with it, how much they paid out in salaries, and the conventional contents of a financial statement should be available.
§ I do not know what the British Board of Film Censors do now regarding their finances. It is not a public body and they are not answerable to the public. Therefore, for all I know they may circulate all the relevant material within the industry itself. However, I beg to move this amendment. It seems to me that it goes almost without saying that there would be a statement of accounts; but in a Bill which, in order to get anything done at all it has to be written into the Bill. this provision may be desirable. In any event, I beg to move.
§ Lord Nugent of Guildford
My Lords, the noble Lord is right in saying that the amendment is superfluous. The provision in Clause 6(1) gives the Secretary of State power to require the report to be made in any form he wants. It is perfectly obvious that he would want a statement of accounts because, among other things, somewhere else in the Bill he has to approve the tariff that will be charged for the classification function. So the noble Lord is right.
However, if it will not upset the noble Lord for the evening, I shall be prepared to accept the amendment so that he may feel that he is playing the very constructive part which, indeed, he is playing, in helping us to get this Bill in the best shape possible when it goes on the statute book.
§ On Question, amendment agreed to.
§ [Amendment No. 21 not moved.]
§ Clause 7 [Classification certificates]:
Lord Houghton of Sowerby moved Amendment No. 22:
Page 6, line 29, leave out paragraph (a) and insert—
§ The noble Lord said: This is an attempt to straighten out in better form the requirements of a certificate under Clause 7(2)(a). The paragraph as it now stands contains a long description, part of it within parentheses, which combines several different classifications, and does so all in one gulp. The purpose of my amendment, supported by my noble friends, is to pull out the concertina, so to speak, and to identify the classifications separately and more clearly.734
§ This may be thought to mean that the classifications for the purpose of the Bill will be those used by the British Board of Film Censors: that there will be "U" meaning universal; "PG" for parental guidance; "15" meaning passed only for persons of 15 years and over; "18" meaning passed only for persons of 18 years and over; "18R", which is the restricted 18 classification; and "Universal UC", meaning particularly suitable for children. It is quite a good idea when the whole purpose of the Bill is directed towards preventing children seeing things they should not see that the British Board of Film Censors should indicate what is suitable for them to see.
The amendment proposes only to separate and identify the components of subsection 2(a)—that is to say,
(a) a statement that the video work concerned is suitable for viewing by persons of any age; or
(aa) the statement mentioned in paragraph (a) above together with a statement as to the particular suitability of the work for viewing by children; or
>(aaa) a statement that the video work concerned contains material which may make parental guidance desirable as to the viewing of the work by young children".
§ We then come to the existing paragraphs (b) and (c), which are clear enough and do not need amendment.
§ It may be that the main problem here is PG (parental guidance) but I see no reason why the classification used by the British Board of Film Censors in that particular respect should not also be used for videos seen in the home. To get this clear in this way would be so much better than leaving subsection (2)(a) in this rather jumbled condition. It may be put there to enable the British Board of Film Censors, as the designated authority, to have some room for flexibility in shades of differences or classification, but I am sure we all understand that if the classification for videos in the home is the same as the classification for the cinemas, it simplifies the matter and everybody has a clear recognition of what are the distinctions.
§ That, of course, does not remove from parents their own discretion in showing to children films that may have the classification which means young children would not see them in the cinema; but we cannot have a detective in every home. I hope, therefore, that this proposal simplifies the situation, clarifies it, and makes it understandable to all concerned that we have one set of standards and that they can be followed for videos as well as for films. I think also that if there is to be a classification given to films that have been shown by the broadcasting authorities, it would help if, in any identification that was thought to be needful, they would follow the same standards and degrees of classification.
§ I hope that appeals to the House as being a desirable improvement to the subsection as it is at present. It does not detract from it; it adds nothing to it. It just makes it clear, orderly, and well understood. I beg to move.
§ 11.2 p.m.
§ Lord Elton
My Lords, I am grateful to the noble Lord for bringing us succinctly to ground on which we are in discussion with the British Board of Film Censors. As it now stands, Clause 7(2)(a) deals with 735 the PG category as follows. It makes clear that PG certificates must contain a statement that the video work concerned is suitable for viewing by persons of any age, with a qualification—I emphasise the words, "with a qualification"—as to the desirability of parental guidance with regard to the viewing of the work by children.
The PG category was introduced by the board for the cinema some 18 months ago. The Bill was drafted with the intention of allowing the board to continue to award such certificates to works in video form as they would for the same works in relation to the cinema. In our view, the form of words contained in Clause 7(2)(a) is the best way of reflecting the PG category in language appropriate to legislation and in a form consistent with the Bill.
Under the Bill as it stands, PG material is to be made available to persons of any age. Both the BBFC and ourselves are agreed on this. But certificates will contain a specific warning as to the desirability of parental guidance. The PG classification is therefore a half-way house between, on the one hand, U certificates awarded under Clause 7(2)(a) and, on the other, the categories dealt with in Clause 7(2)(b) and (c) for material which is not to be supplied to persons below a certain age.
Thus, in awarding a PG certificate the designated authority will be saying, in effect, that they do not think it is necessary to stipulate in the certificate that the work is suitable for viewing only by persons of, say, 15 or 18 years and above, but that they consider that parental guidance is desirable with regard to the viewing of the work by children. "PG" therefore carries with it the connotation that parents may feel that the work is unsuitable for their particular child; or unsuitable at that particular time for their child; or may wish to ensure that their child does not watch the work, or does not watch it on his or her own.
Under the Bill as it stands, therefore, a PG certificate does not mean that the video work concerned is suitable for viewing by all persons. Instead it means that it is suitable for viewing by at least some persons of all ages with a qualification as to the desirability of parental guidance.
Turning to the amendment of the noble Lord, Lord Houghton, paragraphs (a) and (aa) reflect provisions already in the Bill and our difficulty is not with them. Like the Bill, your Lordships will see that they state the extent of the suitability of the work in question for viewing by particular people. That is to follow the scheme of the Bill.
Where we still find ourselves in difficulty is as regards paragraph (aaa) of the amendment, because that paragraph does not mention suitability—it only mentions that, so far as children are concerned, parental guidance may be desirable. That, of course, is a description that could apply to a very wide range of material indeed—much wider than that to which I am confident the designated authority would, in fact, apply it. In this context, your Lordships may regard as a molehill what the trained legal eye detects as a mountain. Laymen among your Lordships can fairly ask why—if we are confident that the authority will 736 only put what we and the public already know so well as PG material in this category—it is necessary to get so fussy about the language.
As we demonstrated earlier this evening, in legislation language is important and a statute that does not say what it means is, in an important sense, not as good as it should be. However, your Lordships will by now have realised that the difference between the parties in their discussion is a narrow one and that we have the common objective of getting the categories in the cinematic and the video fields as similar to each other as is possible. It does not seem possible that this difficulty will not be overcome. Therefore, I am obliged to the noble Lord for this opportunity to explain where we are.
We will continue to be in discussion with the British Board of Film Censors on this matter. We are. of course, always ready to improve the Bill if that appears to be possible and there will, of course, be an opportunity to bring forward an amendment at Third Reading if, in the event, it seems possible to express the PG category in the Bill any more clearly.
I hope therefore that, on the basis of this explanation and of the assurances that I have given, the noble Lord will, with his customary forbearance, not now press his amendment.
§ Lord Houghton of Sowerby
My Lords, I hope that the noble Lord really meant it when he talked about my forbearance. I accept his compliment with humility. I certainly do accept what the noble Lord has said, and I look forward to the result of further consideration of the matter. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 23 not moved.]
Lord McIntosh of Haringey moved Amendment No. 24:
Page 6, line 42, at end insert—
("( ) In any statement made under subsection (2)(b) above no age shall be specified above the age of 18.
§ The noble Lord said: My Lords, I am encouraged by the recent words of the noble Lord, Lord Elton, in my belief that this amendment does not propose anything which is at variance with the Government or the sponsor's intentions, but does make clear what might be an anomaly at some time in the future, although I understand from what the noble Lord has said that it is not in the Government's mind at the moment.
§ Your Lordships will recall that at the Committee stage it was not initially clear whether there was a possibility of an age older than 18 being specified as part of a classification system. On further inquiry the noble Lord, Lord Elton, did say that the Bill, as drafted, does not actually rule out the possibility, for example, of a classification being at the age of 21. I drew attention to the fact that, although 18 is the age of consent and has been, I would think, universally accepted as being the age at which cinema censorship and video censorship ought to stop, the age of 21 still has legal significance as the age at which homosexual practices between consenting males is permitted, and that it would be possible for a future government or a future designated authority to take the view that, 737 because the age for homosexual practices is 21, there would be an argument for introducing a classification for the depiction of those practices also at the age of 21.
§ I do not believe that that is the intention of the sponsors of the Bill. I do not believe that it is the intention of the Government. I believe that it would be repugnant to have censorship for any other than those who have not reached the age of consent, and I hope that the Government, either by indicating that they can find a better way of doing it or by accepting this amendment, will give effect to what I believe ought to be the universal wish of the House. I beg to move.
§ Lord Nugent of Guildford
My Lords, this is a point which was discussed in a slightly different form at some length at the Committee stage, and I quite understand the noble Lord's anxiety that he does not want to see this age limit raised from 18 to 21. I can assure him that the Government's intention is that it shall be introduced at the same levels as are now being used by the BBFC—that is, the ages of 15 to 18—and that there is no intention of changing it in any way.
We should prefer not to put ages into the Bill. We think that the right thing to do is to leave the board of film censors to make such changes as they think are necessary from time to time. However, I am bound to say that, if they raised the limit, it would clearly be a matter which all governments should closely examine. As the noble Lord knows, the Home Secretary has an overruling hand on this body and apart from his contacts in the meantime, he receives a report which he can look at every year. Therefore, I do not think that it is very likely that the kind of change which the noble Lord fears would take place. In the meantime, we should prefer the Bill to remain as it is without specifying age limits, and I hope that, with the firm assurance that the 15 to 18 age limits, as now, will be continued in the future, the noble Lord may feel content to withdraw his amendment.
§ Lord McIntosh of Haringey
My Lords, I am grateful for the assurance that the noble Lord has given, and I share his view about the undesirability of having an age older than 18. However, I am afraid that the noble Lord's firm assurances are not good enough. If we are in agreement, that is excellent for the proposed designated authority and the existing Government. My point is that, under the terms of the Bill as drafted, it is possible for another designated authority and another government—a more censorious government, if I may put it that way—to do something which would be legal within the terms of the Bill and yet would be profoundly repugnant to those who have come to accept that the age of consent is 18 and not an older age. I am sorry that the noble Lord has not felt able to accept this amendment, and I am sorry to say that I think it is necessary to test the opinion of the House.
§ Lord Elton
My Lords, before the noble Lord tests the opinion of the House, I think it would be as well to pause for a moment to consider. I am not clear what are the grounds on which be thinks the age of consent might appear to the Government to be more appropriate at a level higher than the age of majority. The age 738 of majority is clearly fixed at the age of 18 by statute. I have always thought that that sort of change was on account of the ratchet effect. I cannot see voters of 18 flocking to the polls to deny themselves the vote until they are 21.
Therefore, I wonder whether the noble Lord could explain a little more fully what it is that leads him to fear that this change might commend itself to a future government, to the extent that they would not merely believe that it was in the public interest to raise the age of consent, or whatever, above 18, but would actually direct an independent body to introduce this into its policy. The Bill is careful to avoid Government censorship and does not give the Government power to direct the authority in this sort of matter. I wonder whether the noble Lord would feel that this was something on which he could reflect further and perhaps return on Third Reading if he is still not content.
§ 11.15 p.m.
§ Lord McIntosh of Haringey
My Lords, I take it that that was an intervention in my speech and that I therefore have your Lordships' permission to speak again. I realise that this is not normal, but it was a direct challenge to me.
§ Lord Elton
My Lords, it is only abnormal in that I forgot the customary preface of, "Before the noble Lord sits down". I add it posteriorly, perhaps.
§ Lord McIntosh of Haringey
My Lords, I am grateful to the noble Lord. The position that the noble Lord describes is not one that I recognise. It is true that the Bill deliberately puts the Government at arm's length from the process of censorship. That is agreed. The Bill provides for the appointment of a designated authority which determines the categories of censorship. But although the Government have some responsibility for it, it is the designated authority which determines the classification, and it is possible for a Government, in one of this country's periodical fits of morality—I think that is the Victorian phrase—to seek to advance the limits of censorship.
That is happening now. We are seeing the limits of censorship advanced in this Bill and in the application of the Obscene Publications Act. I am not satisfied that there is no chance that this would happen in the future. I am confirmed in my lack of satisfaction by the words of the noble Lord, Lord Nugent. He said that it was very likely that the age of 15 would be the age used for classification purposes. For this purpose "very likely" is not good enough. I beg to move.
§ Lord Houghton of Sowerby
My Lords, may I offer two or three observations here. The danger in the Bill as at present drafted is that it leaves open the possibility that at some stage the classification of videos might be pressed to run, with certain restrictions, to the age of 21. In another connection entirely the adulthood of persons at the age of 18 has already come under some criticism; this has been in regard to marriage between persons of prohibited degree. I am referring now to the marriage of a person to his stepdaughter. In the consideration of that proposed legislation there was a distinct movement to 739 put the age of marriage in those circumstances at 21, notwithstanding that it is lower than that for people in general.
It may be that a Government even more reactionary than the present one might wish to put certain video material beyond the reach of people until they are 21. I believe that the more flexibility the sponsors of the Bill wish to keep in it, the more room there will be for manoeuvre, which may be used in undesirable, as well as desirable ways. I believe, too, that that will later make the stronger my case for setting a limit of five years to the lifetime of the Bill without renewal by expressed wish of both Houses of Parliament. Otherwise we shall be putting into this Bill a provision which may last for many years to come and which could be dangerous in the hands of people who had a different sense of responsibility.
If the age of 18, as a numeral, raises difficulties, why cannot it be stipulated that the age limit should be that at which a person reaches manhood, or womanhood, within the law, expressed in terms of ability to sign contracts, to vote, or whatever it may be. There is an age at which a person at present reaches adult status, and that is the age beyond which we do not want any of this to go. That is the point. If it is not there, if it is an age stipulated by the authority, it can be any old age that they like to think of.
Again, I cannot understand what the difficulties are. I know that in drafting Bills advisers say, "Keep it open, don't commit yourself, don't get tied down, leave room for manoeuvre. We don't want to have amending legislation; be able to do it within the ambit of the discretion left to you". and so on and so forth. There are, however, some things that do have to be stated clearly, and I think this is one of them.
§ Lord Monson
My Lords, I started off with no very strong feelings either way about this amendment, but having heard all the arguments I simply cannot understand why it is being resisted, if it is simply a question of dotting the i's and crossing the t's. Like the noble Lord, Lord McIntosh, I am becoming rather suspicious and therefore will certainly support him in the Division Lobby if need be.
§ Lord Nugent of Guildford
My Lords, perhaps, with the leave of the House, I could say just one further word. First of all, I did say to the noble Lord—not that it was very likely that the ages of 15 to 18 would be the ages used by the BBFC—that they would be, definitely. So let us get that on the record.
§ Lord Nugent of Guildford
My Lords, I hope that will have reassured him, but at any rate we shall start on the basis that he, and I imagine his noble friends, would wish. However, the point is again a very small one, although I agree that the significance the noble Lord. Lord Houghton, has attached to it makes it seem a very great one. I do not think any government or any Home Secretary would ever wish to see the age raised above 18.
740 However, I am willing to look at it in the circumstances, as these grave doubts have been expressed, to see how it should be amended, if we are to put it in, and come back to it on the next stage. Perhaps with that undertaking the noble Lord would be willing to withdraw his amendment.
§ Lord McIntosh of Haringey
My Lords, with the leave of the House, I am grateful to the noble Lord for that undertaking. I take it as being somewhat stronger than simply considering the position; I take it as saying that it is a question of the appropriate wording, and I hope I am correct in that. If I am, then I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Jenkins of Putney moved Amendment No. 25:
Page 6, line 42, at end insert—
("( ) All films classified prior to the date of this Act by the British Board of Film Censors in the categories (U.) (P.G.) or (15) shall receive a similar video classification certificate from the Authority without further examination.").
§ The noble Lord said: My Lords, this is quite an important amendment because there are, I understand, some 4,000 to 6,000 titles already on the market and, if no such clause as this is included, all those films which may become videos which were classified prior to the date of the Act by the British Board of Film Censors would have to be reviewed afresh. In order to make the amendment noncontroversial, I have in fact removed from it the controversial category of 18. Therefore, it is only those in the non-controversial categories of U. PG or 15 which are, under this amendment, required to receive a similar video classification—not the same video classification because it may be that the authority will decide to adopt some different nomenclature or wording—without further examination.
§ If this is not done, upon its constitution the authority will be, so far as I can see under the Bill as it stands at present, required to reclassify everything which comes on the market irrespective of whether it has already been classified by itself under another hat—by the British Board of Film Censors operating under another hat.
§ What this amendment seeks to do is to make the work possible, to prevent a great hold-up, to enable the new authority to get on with the job and not to put it to the necessity of re-examining every film which comes out as a video which has already been classified in a non-controversial area by the British Board of Film Censors.
§ I move this amendment in the confident expectation that it will be accepted, if not in its actual sense in the spirit in which it is moved, by those responsible for the Bill.
§ Lord Elton
My Lords, I recognise an amendment which is intended to be helpful when I see one. I am grateful to the noble Lord for his good intentions. It is aimed at reducing the considerable backlog of existing video works which the board will have to examine. It seeks to do so by requiring video works which have already been classified U, PG or 15 for cinematograph exhibition to be given the same classification under the arrangements set out in the Bill without further examination.
741 I have great sympathy with that approach. It is in everybody's interests that the board should be able to get through the backlog of existing films as quickly as possible. We do not want the British Board of Film Censors to give a meticulous examination to every piece of obviously innocuous material where it is possible to avoid this. We hope that this will be avoided in connection with the backlog of video material in the same way that we have said we hope to help it in the matter of broadcast material.
Unfortunately, although the designated authority will be required under the Bill to keep records of video works which it classifies, the British Board of Film Censors does not, at present, have comprehensive records of works which it has classified for the cinema. Therefore it will not have a means of knowing if a video work submitted for classification is in the same form as the work originally classified for the cinema. It gives me real regret to have to say that, because it would be a tremendous saving in work if this was not necessary. But I hope that a great deal of effort can be saved by establishing, where works are in common format, that there can be the most cursory examination.
§ Lord Jenkins of Putney
My Lords, I felt a little uneasy about this. The amendment does not actually ask for the same video classification as the noble Lord just suggested. It asks for a similar video classification, recognising that it is not absolutely certain that the authority will adopt the categories of U, PG, 15 and so forth, but that the new authority should be able, if it so chose, to say, "We know all these films, or large numbers of them to be completely innocuous and we would therefore he able to say that they can go through." Such films would be Mickey Mouse and all kinds of thing of that sort which are quite likely to be reproduced on video. It would seem to me to be absurd to put the board under the necessity, as I believe is the case under the Bill as at present drawn, to re-examine every single film which has already been passed by it. I wonder whether the noble Lord can be a little more reassuring than he has been on this question.
Is it the case, as I rather suspect it may be, that the new authority will be under the necessity of reexamining every video, even if it knows, before it is examined, from the nature of the film and from the nature of the applicant in question that it could do a complete en bloc classification and thereby could get on with the real job and not spend an enormous amount of time looking through films which are of no offensive nature at all?
§ 11.30 p.m.
§ Lord McIntosh of Haringey
My Lords, I wonder whether it is possible to find agreement on this matter, in which everybody is agreed on intention. Surely, not necessarily the British Board of Film Censors but film archivists of the British Film Institute maintain records of what films have been classified and the length in numbers of minutes. The risk of seven minutes of inoffensive material being taken out and exactly seven minutes of offensive material being put in is. surely, not very high. If the number of minutes is the same and the title and description are the same, 742 surely it would be satisfactory for the British Board of Film Censors to give a similar certificate, without examination, with no significant risk whatsoever.
§ Lord Mishcon
My Lords, I wonder whether I could assist my noble friend in order that we may proceed, though not with undue rapidity for there are material points to be made. I see nothing in this Bill—and I stand to be corrected—which says that the designated authority has to carry out any examination at all. The duties of the designated authority are set out in Clause 1. All that they have to do is to determine, for the purposes of this Act, whether or not video works are suitable for classification. Quite obviously, the designated authority will not be anxious to give itself unnecessary work, especially at the commencement; and, if acting at all intelligently, what it will do is to say, "There has been a classification in the past. What we will do is not to give it a similar classification because there may be differences in classification, but to use the words, possibly, 'a similarly appropriate classification'." That, quite obviously, would be done.
I repeat that there is no duty to examine every inch of the tape. There is no duty, in fact, to examine one inch of the tape. The discretion is that of the designated authority, for them to determine, in all the circumstances, in all their discretion and in all their wisdom, what the classification ought to be.
§ Lord Elton
My Lords, will your Lordships permit me to speak briefly? I think the Minister is allowed sometimes to speak twice if your Lordships are willing. The noble Lord, Lord Mishcon, has been extremely helpful and absolutely right. It is in Clause 4(1) that the need to determine is placed, and it is up to the authority to decide how it determines. The noble Lord, Lord McIntosh of Haringey, has suggested both an ingenious way of doing this and an ingenious way of circumventing it. But the fact remains that it is up to the board to decide, and we are anxious that the process of determination should be as rapid and practical as possible. In other words, the Bill does allow what the noble Lord, Lord Jenkins of Putney, wishes it to allow. I do not wish to offend him in any way, but perhaps I cannot stand up again and if he is still wedded to the idea I have to say that were I to return to my feet I would tell him three matters in which the amendment that he has put down is defective, so that it would be necessary for him to return at a later stage anyway.
I may have been too precise in what I said about the records which the BBFC keep. They do not keep comprehensive visual records although they have comprehensive written records. The point is that you could not tell from the piece of paper what was on the piece of cellulose or tape. I have gone on for far too long. What I want to say is that, as Lord Mishcon has said, the Bill allows the board to operate in the way that the noble Lord, Lord Jenkins of Putney, says he wishes it to operate.
§ Lord Jenkins of Putney
My Lords, I am grateful. I had no illusions about the beauty and excellence of the drafting of the amendment. It was my intention originally to leave the question of the ultimate drafting to those responsible for the Bill. However, in view of 743 the assurances that have been given it may be that it will be found that no further drafting is necessary. I intend at this stage, at any rate, to leave the question in abeyance and to seek your Lordships' leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 26 not moved.]
§ Clause 12 [Supply or possession of video recording on certain premises]:
Lord Jenkins of Putney moved Amendment No. 27:
Page 8, line 34, leave out ("a licensed sex shop") and insert ("premises licensed for the purpose").
§ The noble Lord said: My Lords, the Bill as presently drafted seems to me designed to assist sex shops which are in difficulty. By deciding that only existing sex shops shall be licensed for the purpose of selling these videos we are really giving to the existing sex shops or future sex shops a monopoly for the sale of this particular product. I find this a most extraordinary provision in the Bill. Why on earth should we decide that sex shops should suddenly have this additional benefit thrust upon them? Why would we not create in the Bill the term. "premises licensed for the purpose"?
§ It might be appropriate that a sex shop should be the premises which would have the ability to deal with videos. It might be appropriate that some other premises should be designated. But should we decide in this Bill that all existing sex shops are apparently to be the premises which are to have the privilege (if that is the right word) of selling this product, which may turn out to be extremely profitable?
§ If your Lordships are a society for the preservation and the enhancement of sex shops, the Bill as presently drafted is no doubt an excellent one. But I rather suspect that that is not your purpose; and if it is not your purpose to be regarded as benefactors of sex shops and as a Chamber which exists for the purpose of encouraging and supporting them, I suggest that your Lordships accept the amendment.
§ Lord Houghton of Sowerby
My Lords, may I raise a question of order? I beg the pardon of the right reverend Prelate, hut, beginning with Amendment No. 30, I have a whole string of amendments on this point, including a new schedule which is set out on the Marshalled List, and which is essential if premises other than a sex shop are to be included with a sex shop, or otherwise, in the Bill.
I do not mind where we take it. The main arguments have to be deployed somewhere. I have let go already two references to a sex shop in order to concentrate on the main group of amendments which begins with Amendment No. 30 and goes on to Amendment No. 38. I wonder whether my noble friend would feel that Amendments Nos. 27, 28 and 29, to which both our names are attached, should not be moved so that we can get on to the substantive amendment, Amendment No. 30, which then deals with a whole 744 group of amendments, and then on to the schedule. Otherwise, I think that we are going to deal with this in penny numbers.
§ Lord Jenkins of Putney
My Lords, I am sorry to say this to my noble friend, but I do not feel entirely happy with that suggestion, for the following reason. Both our names are attached to this group of amendments. I think that they are all alternative. On the one hand, the first series of amendments suggests the substitution of,a licensed sex shop",with the words,premises licensed for the purpose".That is one series of possibilities. If that series of possibilities were proved to be acceptable to the House, then what follows would be unnecessary.
On the other hand, if those series of possibilities proved to be unacceptable, it might be necessary for one to proceed to the other possibility which is,a video shop for which a licence is in force under this Act",as suggested by my noble friend. It seems to me therefore that one ought to deal with Nos. 27, 28 and 29, which deal with the question of premises, before dealing with the series of amendments which I think suggest an alternative to the first three amendments.
§ Lord Nugent of Guildford
My Lords, I wonder whether I may add a word to this little procedural discussion. I do feel that the noble Lord, Lord Houghton, is right. There is a major point here and it is of course related to the schedule. I should have thought that it would be for the convenience of the whole House if we debated the issue as one. In the schedule is set out an alternative scheme which would make other licensed premises, at any rate in principle, workable; and therefore I would strongly urge the noble Lord, Lord Jenkins, who I think has the ball in his court, that it really would be for the convenience of everybody if we proceeded as the noble Lord, Lord Houghton, has suggested. so that one debate could then cover the whole issue.
§ Lord Jenkins of Putney
My Lords, if that is the general wish of the House, I would see no objection to a general debate covering the whole field; but I think it ought to be agreed that, if the position arises in which the matter is put to the Question, then the amendments would be separate and would not form part of the whole.
§ Lord Denham
My Lords, if I may intervene at this point, of course the noble Lord, Lord Jenkins of Putney, is absolutely right. The matter before the House at the moment is the amendment of the noble Lord, Lord Jenkins. It is quite possible to debate other amendments, but the one we are actually considering is the noble Lord, Lord Jenkins', and when the debate is finished his amendment will be taken before any other. Of course. with the leave of the House, we can discuss any other amendment on the Marshalled List, but what I think we must be careful about is that this is Report stage and any noble Lord, other than the mover of the amendment is entitled to speak only once on any particular debate.
§ Lord Mishcon
My Lords, if I may intervene—only to be helpful, I hope—I personally, if I may respectfully say so, agree with every word of what the Government Chief Whip has said. I think that what we want to achieve is one debate on the whole issue of whether or not this should be limited to licensed sex shops; and, as my noble friend Lord Jenkins said, there are alternative ways of looking at this.
I think the proper procedure is what has been outlined already—namely, that there should be one debate on whether or not they should be limited to the licensed sex shop, and which alternative is the better alternative. It may be the one moved by the noble Lord, Lord Jenkins, or the one moved by the noble Lord, Lord Houghton, but I think the House wants to avoid—and this is why I am rising—that there should be a misunderstanding and that there should be a debate on this series of amendments by the noble Lord, Lord Jenkins, and a further debate hereafter in respect of the noble Lord, Lord Houghton's amendments. Therefore if we can have one debate and then the House can express its approval or disapproval of both alternatives, or one alternative, by the separate amendments being called, I think that would be desirable.
§ Lord Houghton of Sowerby
My Lords, may I pursue this point of order just one stage further? What I am anxious to avoid is Amendment No. 27 being put to the House and decided upon, which might preclude me from putting my subsequent amendments to the House. Sometimes the Lord Chairman says: "If Amendment so-and-so is adopted (or rejected), it will not be possible for me to call Amendment so-and-so". If I am under no such disqualification, then we can start the main debate at any moment. There will be one debate; but when we come to decide on which alternative the House may choose to have, we would reach separate decisions on separate amendments.
§ Lord Denham
My Lords, of course that is right. Just to put ourselves in order, all this discussion is taking place before the noble Lord, Lord Jenkins of Putney, sits down, so that none of us is precluded from taking part in this debate at a subsequent stage. Of course, this happens very often in the Committee stage of a Bill. Two amendments are mutually non-compatible and this is, I think, the case here. So the debate takes place on the amendment of the noble Lord, Lord Jenkins. We discuss all the other amendments. When, eventually, the Question is put, the House decides whether it is going to accept the amendment of the noble Lord, Lord Jenkins, the amendment of the noble Lord, Lord Houghton—in turn, as they are on the Marshalled List—or neither, or an alternative. So perhaps we can accept that the debate takes place on this amendment, with a general debate on this issue.
§ Lord Jenkins of Putney
My Lords, I find that entirely satisfactory and, as I have already moved the amendments in my name, perhaps it would be in order for someone else to proceed to move subsequent amendments or to take part in the debate which I have initiated on my amendments—
§ Lord Denham
Unless, my Lords, the noble Lord, Lord Jenkins, wishes to deal with the subsequent amendments on this point, which he has not yet had an opportunity to do.
§ Lord Jenkins of Putney
My Lords, it might be convenient, then, if, before I hear other views expressed, I were to say why at the moment it seems to me to be better to deal with the point in the way I suggest, rather than in the way that my noble friend subsequently suggests. One of the reasons why it is better to deal with it in the way I suggest—although my noble friend and I are close together on this, as has been seen by the fact that our purpose is identical, because we have signed each other's amendments and are therefore involved in suggesting alternatives—is that my amendment is simpler. It removes the sex shop from the scene and simply substitutes the words, "premises licensed for the purpose". In some cases it may be decided that the premises will be a sex shop. In some cases it may be decided that they will be some other premises. That seems to me to be simpler than the other method, which is more complicated, of introducing the words,or a video shop for which a licence is in force under this Act".I do not think I need spend a great deal more time on this amendment. We both seek the same purpose, and at the present moment, before hearing anybody else on the subject, it seems to me that my way is the easier.
§ 11.48 p.m.
The Lord Bishop of Norwich
My Lords, I have much sympathy with the amendments of the noble Lords, Lord Jenkins of Putney and Lord Houghton of Sowerby. I should like to apologise to your Lordships for not being here for the first two hours of our debate. I was, in fact, at the BBC doing a recording of three hours about fascinating work on the Video Recordings Bill which should come out next week, all being well. But it brought me back post-haste to the House at 10 o'clock, ever more eager for us to make sure that we have this Bill as well as we can make it in this way.
It is delightful to find both the noble Lord, Lord Jenkins of Putney, and the noble Lord, Lord Houghton of Sowerby, with these amendments on what can only be called the vicious morality lobby, because it looks as though they are both determined to do down these sex shops. As I have always wanted to do the same, I am rather delighted. At the same time, I have a feeling that the noble Lord, Lord Nugent of Guildford, has a few shots in his locker and has reasons for restraining us from doing down these unpleasant sex shops. So I shall hold my counsel until I hear the reasons why I should not be swayed into the vicious morality lobby by the noble Lords opposite.
§ Lord Houghton of Sowerby
My Lords, I prefer the version on this matter that I already have on the Marshalled List, because, if I may say so to my noble friend, his amendment requires a very long tail to it. The conditions under which the premises shall be licensed are required to be spelled out for inclusion in the Bill. That is an intricate task, as my noble friend will see if he peruses the long schedule which is the necessary accompaniment to the proposal to 747 alter—and extend, for that matter—the supply of material which, for films for public showing, is classified as 18R.
In an earlier debate the noble Lord, Lord Renton, said that he did not know the difference between 18B and 18R. There is a good deal of misapprehension about what 18R is. 18R is short for 18-restricted. There are two categories of videos and films which may be regarded as appropriate for viewing by people who are aged 18 or over. One is 18, simple, and the other is 18R. What is the difference? The difference was made clear by the Minister at col. 196 in the Standing Committee of the House of Commons. He quoted from the Home Office circular of 1982 which said this about the classification:The classification will be applied to films which, while not portraying illegal acts or extremes of sexual perversion or horror or violence, are likely to be more explicit than films at present given an 'X' certificate".This means that 18R is not a definition of video nasties; 18R is open to viewing either in a viewing booth in a sex shop or under club conditions outside a sex shop.
That is the position regarding films. Nobody has suggested that 18R material, classified as such by the British Board of Film Censors, includes what can be described as horror nasties. When I hear noble Lords saying that we all know what 18R is and what video nasties are, may I, with great respect, say that there is a good deal of misunderstanding about it. I have just read out what 18R is. 18R was a classification created on the recommendation of the Cinema Consultative Council and it obtained the consent of the Home Office. The words I have read out were part of the Home Office circular on the subject. At the same time as giving the description of the classification of 18R, it stated where they could be seen. They would be for restricted distribution only, through segregated premises to which no one under 18 would be admitted. These films are to be seen in club conditions and in sex shops.
But now we are dealing with videos. At present, 18R material in video recordings is available at video shops. It can be sold or hired from video shops which offer this material, though not all of them do so. Under the guidelines generally followed by retailers, these videos are available only to people over the age of 18. Under the Bill, 18R material is to be available only in licensed sex shops. This applies both to video recordings of classified films as well as to the new material which may be put on video only.
The amendment which I favour and the one which my noble friend moved removes the exclusive point of availability of 18R videos from the sex shop. Under my proposal, I do not deprive the sex shop of its part in the distribution of this material, but I add to it "or a licensed video shop".
The 18R material has excited a good deal of controversy. The Standing Committee in another place spent more time on this issue than on any other. Indeed, my calculation is that it spent more than half its time dealing with this issue. The reason was that many people had confused 18R with video nasties. But I want to emphasise that 18R is a classification 748 given by the British Board of Film Censors to films—and it will be given to videos. The question is: from where should one be able to obtain 18R material?
When Mr. Graham Bright's Bill was first introduced into another place, it referred to this material as being available only on premises entry to which was restricted to persons over the age of 18. It said nothing at all about sex shops. or about licensed video shops. It just stated that they should be available on premises restricted to people aged over 18. That is how the Bill went into Standing Committee.
When the Standing Committee was in the middle of its deliberations on this matter, and just before the fifth sitting. the Home Secretary made an intervention which created a great deal of trouble inside the committee. On 20th January the Home Secretary—according to press reports available on 21st January—said this (and I am quoting from The Times):The Government will support an amendment to the Bill to be debated next Wednesday which will make unlawful the sale to any person, adult or minor, of sexually explicit material in the so-called restricted 18 category".That was his proposal: to outlaw 18R altogether, giving it no classification and leaving it to the Obscene Publications Act 1959 to deal with any material that it was thought should be taken to court.
This created some consternation in the Standing Committee. After a very long debate over three sittings, it finally rejected the Home Secretary's proposition by 11 votes to 5; the reason being that the public would not stand for the complete banning of 18R material, which they can now obtain from video shops and which the Home Secretary was proposing to outlaw altogether. That is why such a decisive vote of the committee retained 18R material within the classification for video recording purposes.
Then came the day of 16th March and the Report stage of the Bill and its Third Reading. At a quarter past one on the afternoon of Friday 16th March an amendment was proposed to restrict 18R material to licensed sex shops. By a quarter to two, that amendment had been passed. That is how sex shops got into the Bill. I submit to your Lordships that Members of another place did not realise the consequences of the decision that they took.
I am not saying that the decision of the House of Commons was not substantive. When the sex shop proposition was put to a Division in another place at Report stage, the proposal to restrict 18R material to licensed sex shops was carried by 98 votes to 3. So the House was certainly doing it firmly, but it was doing it in haste and it probably thought it was doing something more sensible than it turned out to be. It is the decision to restrict 18R material to the licensed sex shop that I believe your Lordships' House should reconsider and we should ask the other place to have another look at the consequences of what it did.
First, a person over 18 is an adult. He or she has the vote, the right to marry, enter into contracts, take out a mortgage and is a grown-up person who does not need the guardianship of the state censor. Secondly, the decision of the House of Commons on the final 749 hurried stages of the Bill on 16th March took little account of the divergencies, attitude and policies of local authorities in granting or not granting licences for sex shops. On reaching this decision Members of another place had never looked at the map of licensed sex shops. There is not one. I have tried to obtain one. I have asked the Home Office and the Department of the Environment how many licensed sex shops there are, but they cannot tell me. They say there is no central information about them. The best I can get through the trade is that there are about 100 licensed sex shops in England and Wales. There is certainly none in Scotland or in Northern Ireland. There is certainly none in West Derbyshire and I am informed that there is none in the county of Hampshire. That is the disparity of distribution of sex shops.
Mark you, to go from outlets which at present run into thousands to 100 sex shops in England and Wales and none in Scotland and Northern Ireland is a very drastic curtailment of availability of 18R material whether we like it or not. It could not have been understood in another place that its decision would be as restrictive as it turns out to be on the availability of this material.
Another point is that sex shops are not video shops in the sense we are considering here. The licence for a sex shop depends mainly on its having for sale what are euphemistically called sexual articles. That is its main trade. To make the sex shop the exclusive supplier of 18R material is inappropriate. It seems to me that at the time the decision was reached in another place on Report, on 16th March, Members of another place could see no ready alternative to the sex shop which they were able to deal with in the Bill. Therefore, they turned, unwisely in my view, to the licensed sex shops without knowing how many or how few they were or what their distribution was throughout the country.
In my amendment I extend the right of lawful supply to video shops expressly licensed to sell or hire 18R recordings. Most of the provisions in the schedule follow closely, or even precisely, the conditions laid down for sex shops in the Local Government (Miscellaneous Provisions) Act 1982. No video shop need seek a licence, but all who wish to supply 18R recordings must have a licence from the local authority. Many shops which supply videos alone with other goods will not wish to embark on this line of business at all, with all the strict conditions applying to it. Videos are on sale at garages, newsagents, booksellers, and are available in all sorts of places. But any video shop which wants to sell 18R would have to restrict entry to their premises to those aged 18 or over and their premises would have to be completely segregated from others, with separate entrance, exactly the same as sex shops. The local authority granting a licence would have control over the degree of exhibition of this material in the shop and in the window.
Where I have departed from the provisions of the Local Government (Miscellaneous Provisions) Act 1982 is in the right of appeal. The Act of 1982—and this amendment was carried in your Lordships' House—empowered local authorities as a matter of policy to decide within the discretion given to them that they would grant licences or refuse all licences.
750 Some local authorities have done that. There were two sex shops in Glasgow and the local authority refused licences to both of them. There was one in Aberdeen and the local authority refused it a licence. There were two in Edinburgh: one has been refused and the other is at the present time under appeal. But if a local authority decides, as a matter of policy, to have no sex shops at all, then there is no right of appeal against that decision by any applicant. It is only if they discriminate between one applicant and another that the right of appeal may be granted.
I feel that in this matter some right of appeal has to be given where a licence is refused, more especially as steps are taken in the granting of licences for other purposes which do safeguard the applicant against any capricious or arbitrary decision of the local authority. For example, for the premises of betting shops, gaming establishments, bookmakers, betting agencies, licences are required but it is not the local authority that grants them. The licences are granted by a committee composed of not less than five nor more than fifteen of the justices who sit for the relevant petty sessions area. They must sit at least four times a year, and there is a right of appeal to the Crown Court. Local authorities do not have the power to ban all licensed premises from serving alcoholic drinks whether on the premises or off. Those applications are dealt with by the licensing justices.
I think that in the circumstances it is reasonable, when dealing with applications for a licensed video shop, that there should be the right of appeal if necessary to the magistrates' court and also to a Crown Court if so wished, because the video shop will not be dealing with a whole range of sexual articles, or even exclusively in 18R. If they stock any 18R material, they will be banning entry to their shops except to persons over 18 years of age. For the local authority to decide, as a matter of policy, that they will not grant any licences to video shops in these circumstances I think would be quite unsuitable.
So I am suggesting that in common fairness to the consumer and to the industry, we must provide more outlets for 18R material than 100 shops spread throughout the whole of England and Wales, with none in Scotland and none in Northern Ireland. I think it is unfair and contrary to the original proposal in the Bill to impose distasteful and irksome conditions upon the citizen who wishes to acquire lawfully and with reasonable convenience a product that he may choose to have for his own personal use in his own private home. The existing sex shops would retain their rights under the Bill.
The question is, how many video shops would be likely to apply for licences to sell 18R and thereby have premises exclusively open only to people over 18 and entirely separate from any other premises whatsoever? The best estimate I can get from the trade is that between 1,500 and 2,500 throughout the country might apply for licences as licensed video shops. We have to bear in mind that, in making that application, they close the shop to young people under the age of 18, that it means adult business only, and that they have to weigh up where their interest lies. Many of them, as I have said, will decide that they do not want 18R because they want free entry into their shops for 751 other purposes and at a younger age. That is the best that I can do with this amendment. I commend it seriously to your Lordships' House.
I warn the House that there is going to be trouble when the public realise that, under the Bill, material that is now freely available to them if they are over 18 will not be there, that it will be miles away or inaccessible altogether. There must be more than a hundred outlets for 18R, when there are thousands at present. Otherwise, this is a form of censorship that was refused in principle in Committee. It becomes a form of censorship by restricted opportunity of acquisition. That is not the straight way of proceeding. If Parliament wants to make this material unlawful, it should do so by law. It should not just push it away and have such restricted opportunities of acquiring it that it really amounts to a form of censorship by deprivation.
That is, I think, all that I can say, and it is quite a lot. I do stress, however, the importance of the matter. We do not want an underworld of video work to start and to be widened. It has to be borne in mind that the underworld can take place in the field of 18R just as it can take place in the field of videos given no classification at all. It would be a great shame if lawful 18R material went into a kind of black market simply because of the restricted opportunity of buying it over the counter in a lawful fashion in a licensed video shop. If there is anything left in your Lordships' House that is worthy of respect, it is surely to consider what has been done and to reserve to ourselves the right to send something back to the other place if we believe that circumstances which were not known to it, which were not debated there and which, in my opinion, were imperfectly understood, should be reconsidered.
I stress that the material we are talking about is not nasties. It is classified material restricted to people over 18, who have a restricted opportunity of gaining it. I draw the attention of the House to the recent survey of British social attitudes, the 1984 report, which showed that in 1983 48 per cent. of people were in favour of pornography being available in special adult shops but not displayed to the public. One notices that the proportion of those in favour rises substantially in the younger age group and declines among those aged 55 or over. This rather suggests that the viewpoint of noble Lords might well be more consistent with the lower level of approval to be found outside among the 55s and over than that among the 18 to 35 age group. Whichever way one looks at it, there is a substantial body of opinion that believes that even what is called pornography should be available at special adult shops, but not on display.
The display would not be there if they obeyed the conditions of the granting of the licence by the local authority. When the time comes I shall move my amendment in the hope that it makes a complete job of it, and the House may feel that it is in the sort of shape that could be added to the Bill for reconsideration in another place.
§ 12.15 a.m.
§ Lord Ardwick
My Lords, before the noble Lord sits down, can be tell us whether he found out from the trade how many club cinemas there are? These are the only cinemas where the 18R films can be shown.
§ Lord Houghton of Sowerby
My Lords, I have not got any information about that. I realise fully that the club cinemas are the only places where it may be shown publicly. Bear in mind that a club cinema is open to the public if they are members of the club. The difference is between showing in a club to a number of people or in a viewing booth at a sex shop, and having it in the home.
The Bill says people can have it in the home. The Members of another place decided that it should not be made unlawful. All I am dealing with here is whether the opportunities the Bill gives for acquisition of 18R films are reasonable in the circumstances and will give contentment to those who desire to have the arrangements, quite properly and lawfully, on a convenient scale for their own personal use.
§ Lord Robertson of Oakridge
My Lords, I want to be very brief. I have some sympathy with the thoughts behind these two groups of amendments. I must say that I thought licensed sex shops were set up in 1982 for the very purpose of dealing with this sort of material we are considering. I do not see that Amendment No. 27, by the noble Lord, Lord Jenkins of Putney, is a runner until we know more about it. Who is going to do the licensing? Under what arrangements will the licences be given? What is the actual purpose for which they would be licensed?
§ Lord Monson
My Lords, both the series of amendments are extremely important and worthwhile. On balance, I prefer the series headed by the name of the noble Lord, Lord Jenkins of Putney. The noble Lord, Lord Nugent of Guildford, is no friend of sex shops; I do not think there is any secret about that. Yet if this Bill remains unaltered it will mean enormous profits for certain sex shops, especially those in areas of the country where they are thin on the ground in consequence of earlier legislation with which the noble Lord had something to do. The huge profits will come about because of their quasi-monopoly position.
But there is a much more important factor. Some of your Lordships may have had a letter from a video dealer in Essex—a responsible-sounding individual who was strongly in favour of the Bill as a whole but who had important reservations. This dealer revealed that, contrary to popular supposition, the main customers for 18B or 18R films were not, as might be imagined, single people, mainly young bachelors. On the contrary, they were married couples who bought or hired these films in order to add spice to their sex life.
Generally such couples are interested only in normal, straightforward heterosexual sex. But if they are driven to sex shops in order to secure these 18B and 18R videos, is there not a danger—this was pointed out by the dealer in question—that for hardheaded commercial reasons the proprietors of these shops will try to interest these married couples in 753 much of the other material that they sell, a great deal of it nowadays concerned with perverted sex? Surely this is not something that we should wish to see.
§ Lord Nugent of Guildford
My Lords, I listened with close attention to the noble Lord, Lord Houghton. I have spent a good deal of time studying his schedule, because that is the substance of his proposition. While I take the point which the noble Lord, Lord Jenkins, was making, his amendment does not have substance until we suggest how we are going to license, how the licences will operate and how they will be controlled.
Therefore, I regard Lord Houghton's amendment as a very serious amendment. I have spent a great deal of time studying and thinking about his schedule. Our difficulty is that in one way the noble Lord approaches the point, but in another way he does not. He speaks at length on the point about R 18 videos and their handling by the Bill. It is a fact that the R18 point is the most sensitive point in the whole Bill. That was certainly the case in another place, the history of which the noble Lord recounted very fairly and at length. It was clearly a matter of great difficulty in the Commons for a consensus to be achieved, but it was finally achieved.
The fact is that many noble Lords in this House, as well as many honourable Members in another place, wanted to see R18 videos excluded from classification on the grounds—and they were perfectly sound, practical grounds—that the viewing of films with that classification is legally limited to adults of 18 and only in licensed cinema clubs, and converting them to video tapes for viewing in the home or anywhere would allow them to be seen by anyone and by children of any age. So there was a perfectly logical point made by those who put forward that contention.
However, as the noble Lord had reminded us, the contrary argument is that the Bill is primarily a classification Bill and not a censorship Bill, despite what the noble Lord, Lord Houghton, says from time to time. Thus it was that those who objected to R18 being classified were persuaded to accept that R18 should be included in classification. But they did propose the safeguard of limiting the sale or hire of such video works to adults by confining it to licensed sex shops, where such regulations already exist.
As the noble Lord has rightly recorded, this amendment was put in by the House itself by a very large majority. I am not sure that the noble Lord was on very good ground when he said that the House of Commons did not understand what they were doing when they did it. They did it. The point here is that they felt that they had got to achieve a consensus somehow. They felt that classification was needed, and, therefore, they had to achieve a balance; and this is the way in which they did it.
I must say that throughout the conduct of this Bill in this House—and I will certainly admit to all noble Lords that this is a very complicated little Bill; indeed, as the sponsor I should apologise for its ever-growing complexity—I have tried to maintain that balance. I am perfectly certain that that is the only basis upon which either this House or the other place would accept it. It is a very delicate balance.
754 That is the background to what the noble Lord is now proposing. The conditions applying to the licensing of sex shops by local authorities are very tight indeed. Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982, in the discussion of which many noble Lords took part, was completed after many hours of debate in this House to get it, as we thought, entirely right.
Local authorities were insistent that they should have the decision as to whether or not there should be a sex shop at all in their locality. Therefore, that was included in the schedule: they could decide that there should be a nil provision; they could also decide exactly what were the physical conditions with regard to the location of a sex shop. They were particularly keen that it should not be located alongside a school or anywhere like that. They were very strict that only adults over the age of 18 should enter, and that breach of that regulation would incur a penalty in that schedule of up to ₣10,000. Now I imagine that it is ₣20,000.
Although a great deal of work has been done on the new schedule (and that I recognise) which the noble Lord proposes in Amendment No. 51, it sets out a much looser control. It is true that the licensing authority may prescribe standard conditions applicable to licences, but those are not specified in the tight fashion that they were in the 1982 Act, and there is no obligation in the schedule with regard to limiting window displays. The age limit of 18 is there, but no penalty is mentioned as to what would happen if the regulation is broken. This means that the safeguard in that respect is greatly weakened. This is what it is all about.
Furthermore, the attitude of local authorities, which presumably would be the licensing authorities (although we do not know precisely), is that they are completely opposed to any extra duties without the certainty of the cost recoupment, and it is most unlikely that a fee of ₣350 would recover all their administrative costs.
However, much more serious from the point of view of local authorities is the lack of adequate power for a local authority to reject an application if it so desires. I can imagine that local authorities would have very much the same feelings about this as they had about sex shops. Of course, there would be no appeal. They were very firm about that. They realised that they were dealing with people who had vast financial strength behind them, and that if these facilities were made available, their legal costs would be infinite. Therefore, the House agreed that the proper way was for there to be no appeal.
Therefore, there are some very substantial practical points, which I am sure the noble Lord fully understands, involving the difference between his kind of licensing scheme and the scheme for the licensing of sex shops which now exists. I do not believe that in this delicate balance, to which I referred at the beginning, a change from the tight control of sex shops under the 1982 schedule regarding the sale of R18 material would seem the same to noble Lords here who are interested, as well as to honourable Members in another place. I think that they would regard this as a major change in the balance of the Bill. I am bound to 755 say that I regard it as seriously weakening the purpose of the Bill unless one could be absolutely sure that the licensing conditions were as effective as they are for sex shops. I do not think one could be sure on a schedule, even if local authorities were willing to do it.
Therefore, I believe that the objections which I have mentioned are of such gravity that if we proceeded to amend the Bill in the way in which the noble Lord wishes to amend it, we would endanger the passage of the Bill here and, most certainly, in another place, because we would disturb the balance on which a consensus was achieved in the other place. I believe that we would then lose the Bill itself.
I recognise both the hard work which the noble Lord has done in drawing up this schedule and the reasons that he has adduced to us for the way in which he has drawn it up. But I do not believe that, in these very difficult circumstances with which we are dealing, something which is so different from the very tightly regulated conditions of the 1982 schedule would be satisfactory. Therefore, I must advise your Lordships that we could not accept this amendment.
§ 12.30 a.m.
§ Lord McIntosh of Haringey
My Lords, I appreciate that the strong feeling in the great majority of Members of this House is of almost instinctive disgust at the kind of videos which the Bill is concerned with, and, from some of the sotto voce interjections this evening, at the things which are sold in sex shops. I appeal to the House not to allow that feeling of disgust to cloud its judgment when considering this series of amendments. As my noble friends have said, and indeed as the noble Lord, Lord Nugent, said, none of these preceding amendments makes any sense unless we are also considering Amendment 51 which brings in the new schedule.
It is necessary to look at the context in which these amendments are put forward. These amendments do not challenge the categories of film which are to be covered by the Bill. They do not challenge the classification. They are not concerned with those films—I take it they would be the video nastier—which are excluded from any classification by the designated authority. In other words, they are not concerned with those types of videos for which Members of this House feel this unfeigned disgust.
They are concerned with a different category, the category 18R, which in the terms of this Bill—which failed to be amended in another place—is approved of for selective viewing in certain places. The more general issues of morality which arise when considering the other categories, and those which fail to get classification, do not arise when we are concerned with this amendment.
The issue here is whether, having formed this category and allowed certain people to see those films under certain circumstances, it is right and proper to restrict that possibility to those who have access to—I must take my noble friend Lord Houghton's figures because I have no others—the fewer than 100 outlets in the country. Is it right to restrict it to those outlets 756 when, as has been said, also in those outlets are other materials (sexual aids and printed materials, and so on) which may well disgust those people who see no objection to the films in the 18R category?
It is a question here not of defining what is a proper thing to be shown. For the purpose of these amendments that is taken as read. It is a question of saying—having defined it, having said that it is acceptable for certain kinds of people—is it now the right thing to do to restrict it to a small proportion of the population simply dependent on where they live and on the attitude of their local authority to the wider range of materials available at sex shops?
I cannot see how the firm defenders of the Bill can defend this particular final restriction on the availability of material which they themselves wish to be available for certain categories of people. I cannot see how in the general terms—although in the fairly expressed general terms—in which the noble Lord, Lord Nugent, has objected to these amendments it can be possible for Members of this House to object to the principle behind these amendments.
I do not know whether the differences between my noble friends Lord Jenkins and Lord Houghton are important. I do not know whether the final drafting of the schedule, or of some of the preceding amendments, is perfect and beautiful. I know that it is not inconsistent at all with the purposes of the Bill, and it removes from the Bill the possibility that there is in effect a rationing by price to be introduced if these amendments are passed. I shall support whichever amendment is put to the vote.
§ Lord Jenkins of Putney
My Lords, before I briefly give the further views to which I believe I am entitled, I should like to say to the right reverend Prelate that I do not go along with him in his wholesale condemnation of sex shops. I just see no reason at all why they should be selected out for special privilege in this fashion and given a monopoly of a new development which will no doubt increase their prosperity enormously. For that reason, I think this matter must be persisted with. But between them, my noble friends and the noble Lord, Lord Nugent, have convinced me that there must be a schedule to the Bill. One cannot provide for licensing without providing the means whereby the licensing may be carried away. I am therefore persuaded, having listened to the discussion, that my noble friend's amendments are more compatible with the schedule, because they were designed with the schedule in mind, than are my own amendments.
It would therefore be my view that, since this matter is one where I share my noble friend's views so cogently expressed just now, this matter must be pressed, and under those circumstances it would be my desire to withdraw my own series of amendments in favour of those in the name of my noble friend Lord Houghton, and to express the wish that he will seek the opinion of the House upon them.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 28 and 29 not moved.]757
Lord Houghton of Sowerby moved Amendment No. 30:
Page 8, line 36, at end insert ("or a video shop for which a licence is in force under this Act").
§ The noble Lord said: My Lords, I beg to move Amendment No. 30.
§ Lord Elton
My Lords, if I understand correctly that the noble Lord, Lord Houghton of Sowerby, is not intending to speak more than those few words, I would only respond that I think my noble friend has spoken so ably on this Motion and given such cogent reasons, it is not necessary for me to speak further.
But I would just say to the noble Lord, Lord Houghton of Sowerby, who said that the honourable Members in another place had acted, in effect, in ignorance and haste, that, as he rightly said, they spent a very long time discussing the matter of the 18R issue. That was exhaustively discussed in the committee. Then, at the end of it, my honourable friend, Mr. Graham Bright, came to the House at Report with the sex shop provision, and that was debated for exactly an hour. It happens, my Lords, that your Lordships debated the same issue for almost an hour a moment ago, and, if the subject was not completely exhausted, I think it very nearly was, and I think some of your Lordships nearly were too. So to suggest that the other place had acted in haste and ignorance, my Lords, I am afraid is simply not the case.
What the noble Lord is inviting your Lordships to do is to take the opinion of the House, and he seeks to persuade the House to fly in the face of the considered and long-gestated opinion of another place. Your Lordships will know what effect on the fate of this Bill that decision would have.
§ Lord Mishcon
My Lords, I want to add a plea, if I may, and I do it in all frankness. There has been a complaint made, as it were, by my noble friend Lord Houghton, that there are some local authorities—indeed, in Scotland, Northern Ireland and my own very dear county of Hampshire—which have decided that there should in fact be no sex shops.
This House has listened to many eloquent speeches from all Benches—and certainly not least the Benches on which I proudly sit—for the independence of local government and for the rights of local people and their representatives to decide what ought to be done in their locality. I am sure, therefore, that my noble friend Lord Houghton of Sowerby will at least respect—whether or not he pities the people of Northern Ireland, Scotland and Hampshire—the fact that local, democratically elected representatives have decided what should happen in their area.
My noble friend Lord Houghton, as well as my noble friends Lord McIntosh and Lord Jenkins, all of whom have served in local government, or Government, or both, know that there are also democratically elected representatives who sit in another place representing the views of the people. They are the elected representatives of the people. That is supposed to be one of the reasons why complaints are made about the composition of this House. That is certainly not an issue that I intend to debate at this hour, nor on this subject. But the noble 758 Lord, Lord Houghton, has already said that this matter took up one half of the whole of the Committee's time which was given to this Bill. That democratically-elected House, through their representatives at Committee stage and, even more vocally, at Report stage—
§ Lord Mishcon
My Lords, my noble friend asks me to "Come, come". I certainly will "come, come" with the figures in the Division Lobby: the answer was 90-odd to three. If my noble friend does not like Division Lobbies and Division votes because he feels that they are automatic, I would remind him that to try to take any decision of a democratic nature at twenty minutes to one in the morning with a diminished House is hardly a way to test opinion in a Division Lobby. But the directly-elected representatives of the people decided by that 90-odd votes that this is the provision that they wanted in the Bill and that they did not want these 18R films to be procurable in any place other than licensed sex shops.
The third point is the last one that I make in an appeal to my noble friends, all of whom are as democratically minded as I am. I give myself no superiority to them at all in that regard; that is a matter on which we are completely united. The other place, having decided after that debate, both at Committee and Report stages, on the present provision, having debated all the issues, made their decision. My noble friends know as well as I do that it is impossible to envisage that the other place will change their decision if an amendment is put tonight and passed. It may be—and my noble friends, I am sure, realise it—that not only would their amendment not be passed tonight, but, because of numbers, it might succeed in adjourning the whole of the proceedings, which would hardly be a democratic thing to do. It would be done in the face of knowing perfectly well that this amendment, if passed, would not be accepted in another place. I speak again personally, as I have the whole time.
What would happen is that at nearly a quarter to one in the morning, with this sparse House, this Bill, which the majority in this House favour and want to see passed as soon as possible, would, by undemocratic methods, be defeated and would stand right in the face of the opinion of the majority of the people in this Chamber, not only tonight but on previous occasions.
I appeal to my noble friends in these circumstances not to press this matter to a Division when they know that the result will be a completely negative one in the face of the democratic wish of this House and another place, and of local government as a whole. In those circumstances, I can but make the plea. If it fails, I shall be disappointed in my noble friends; but then my noble friends are often disappointed in me. I shall therefore have to go away from this place with that feeling of disappointment. But I do make that plea because I know that I am talking to democrats and if they force this issue in these circumstances, it will be the most undemocratic thing that they have done.
§ Lord Houghton of Sowerby
Really, my Lords, no one would think that I had been in two Houses of Parliament for 35 years, would they, after having listened to this patronising lecture from my noble friend. I am fully aware of all the problems and circumstances here. But your Lordships' House will be urged by my noble friend in connection with the Police and Criminal Evidence Bill to send things back to the House of Commons knowing just as firmly that they will not have them on that Bill as he believes that they will not have them on this.
This House does not pay regard necessarily to the attitude of the House of Commons. What it does is to send something back to the House of Commons for reconsideration in the light of new circumstances or of different opinions. I claim to have brought before your Lordships' House conditions which were not known to Members of another place when they reached their decision on 16th March. The main point of the debate in the Standing Committee was not whether 18R should go to a sex shop but whether they should support the Home Secretary who wanted to ban it altogether. And they were expressing good reasons from the point of view of representations made by the constituents why they should not ban it altogether. Nothing was done in Standing Committee about sex shops, and the consideration came in the afternoon of Friday, 16th March, when the Report and Third Reading were completed in another place.
I can only say that when the House is sitting, those who are not here could be here if they chose and were able to be. Democracy has not excluded anybody. Therefore, decisions have been reached one way or another at all hours of the day and night on matters of great importance. One can only follow the procedures of the House. What does my noble friend think I am going to do by not pressing this to a Division or withdrawing it or surrendering it?
I will not surrender on this matter. I believe that this is of profound importance to those who are entitled under the law to reasonable convenience in the procurement of something which at the present time is open to purchase freely in shops up and down the country. And let me just remind him finally of this. The Local Government (Miscellaneous Provisions) Act, which gave local authorities the power to ban sex shops altogether from their areas, was at variance with the provisions made in the past on similar controversial activities which sought to open up in local authorities up and down the country. Betting shops were one instance. The publicans do not go to local authorities; the off-licencees do not go to local authorities; the betting shops do not go to local authorities; the gaming shops do not go to local authorities. Some local authorities would probably stop the lot if they had the opportunity of doing so.
But there are some things which rise above the so-called democratic decision of a local authority—very often capricious, very often on party lines, very often for all sorts of other reasons which we need not discuss. But the issue is plain. This House is not asked to pass changes in the Bill in its final form. This is what this House should traditionally do if it so feels; that is, send something back to the other place and say, "This is what we think. Do you agree?" If they do not, it comes 760 back here and, traditionally also, we give way to the final view of the elected Chamber. My noble friend is seeking to deny some of us the opportunity of doing this. With great regret, I must say that I did not deserve his lecture. I will not accept it. So far as I am concerned, I am going to say. "Content!" until I cannot speak any more.
§ Lord Mishcon
My Lords, with the permission of the House and before my noble friend takes his very honoured seat, I say only this to him. I do not impose any lecture upon him. I merely talk to him as one colleague to another, and I hope with due respect. If a democratic decision upon this issue is really wanted, my noble friend has a completely obvious task; it is to withdraw the amendment at this stage—
§ Lord Mishcon
My Lords, if my noble friend will allow me to finish, I shall give way. The task is not to try to impose a Division at this time, with this meagre number and with the obvious result, but to withdraw at this stage and bring it forward if he wishes at Third Reading at a respectable hour and with noble Lords present who could not be present at 12.50 a.m. only because they do not have the agility of my noble friend even though they may be considerably younger.
That is the appropriate thing to do so that a proper vote can be taken without the defeating end which taking a Division at this hour would have. I can only make the appeal to my noble friend. He has rights, and all noble Lords know it, but I do make the appeal because I know that when I am talking to my noble friend I am talking to a democrat who has sat with great distinction in two Parliaments.
§ 12.51 a.m.
§ On Question, Whether the said amendment (No. 30) shall be agreed to?
§ Their Lordships divided.
|DIVISION NO. 1|
|Houghton of Sowerby, L.||McIntosh of Haringey|
|Jenkins of Putney, L.||Monson, L.|
|Ardwick, L.||Long, V.|
|Attlee, E.||Mishcon, L.|
|Beswick, L.||Morris. L.|
|Buckmaster, V.||Norwich, Bp.|
|Denham, L.||Nugent of Guildford, [Teller.]|
|Elton, L.||Robertson of Oakridge, L.|
|Grantchester, L.||Rugby, L.|
|Halsbury, E. [Teller.]||Saltoun, Ly.|
|Lauderdale, E.||Swinfen, L.|
§ The Deputy Speaker (Lord Aberdare)
My Lords, as it appears that fewer than 30 Lords have voted, in accordance with Standing Order No. 55 I declare the Question not decided, and the further proceedings on the Bill stand adjourned.