§ Lord Birkett
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Birkett.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES in the Chair.]
Lord Elton moved Amendment No. 1:
Before Clause 1, insert the following new clause:
§ ("Young persons employed in video hire shops
§ "Young persons employed in video hire shops.
§ .—(1) A person who carries on a business of supplying video recordings for reward shall not permit any young person to supply in the course of that business any video recording which, by reason of the classification certificate issued in respect of it, is not suitable for viewing by that young person.
§ (2) A person who contravenes subsection (1) above is guilty of an offence.
§ (3) In this section "young person" means a person who has not attained the age of eighteen years." ").
The noble Lord said: This Bill is designed to strengthen the Video Recordings Act 1984. I welcome
the Bill and support the noble Lord, Lord Birkett, in introducing it. I pause here, as the tide in the Chamber goes out in a manner which would have appeased King Cnut, had it happened to him! My noble friend on the Front Bench, Lord Astor, was kind enough to write to me about the amendments which I tabled and which I foreshadowed in my speech on Second Reading. He concluded his letter by hoping that a Private Member's Bill of this sort would not be,
over-burdened with controversial amendments going far beyond the scope of the 1984 Act".
I say by way of preliminary that I think it is worth remembering that a Bill in this House is not unlike a bus. It has a known destination and carries on board passengers in the form of clauses, all of whom intend to go to the destination on the name board. The destination on the name board on the front of this bus shows that it will go to the Video Recordings Act via the Criminal Justice (Scotland) Act 1980. Sitting in the bus already and waiting for it to go are four passengers put there by the noble Lord, Lord Birkett: three going all the way and one getting off in Scotland.
§ I wish to do nothing to impede their journeys but I notice that there is plenty more room in the bus; room, I hope, for the noble Baroness, Lady Fisher, as a passenger whom I shall certainly assist to get on to the platform; and room above for three.
§ The question is not therefore: is there room for these amendments?—because there is. A Bill can be as long as one wishes and the Committee may have noticed the astonishing thickness of the Bill laid on the Table a moment ago, to be discussed shortly by your Lordships, whereas ours is only three-and-a-half pages long.
§ Nor is the question whether the provisions are designed to do exactly what we had in mind when we drafted the Bill. That would be like expecting all the passengers in the bus to wear the same clothes and do the same work. The answer to that point is simple and has already been given by accepting the amendments onto the Marshalled List. They fall plumb into the Long Title of the Bill; so there is room for the passengers and they are going to the advertised destination. The real question is: is their journey really necessary? To decide that, we need to look at them individually.
§ I speak to the first amendment, which deals with the employment of young people under the age of 18. The object of the principal Act is to shelter.society at large from unrestricted availability of video porn and the younger members of that society from video sex and violence of a kind that may be damaging or disturbing to them. That is achieved by a system of licensing certificates and labels with which the Committee is familiar. Members are also familiar with the way in which the labels and certificates declare that certain videos are suitable only for those above a certain age.
§ Members of the Committee will certainly remember—if not from their own childhood, from the behaviour of their children and grandchildren—the attraction of anything to the young when they are told that they are not old enough for it. I wonder how many in this Chamber smoked their first cigarette as children 904 purely and simply to enjoy an experience forbidden to children; and how many would not have suffered the dizzy nausea of the second cigarette were it not for an urgent wish to seem grown up.
§ In an ironic way the labelling system itself therefore actually increases the pressure on youngsters to see that which it is designed to help prevent them seeing. We have all in our time resisted the clamorous pleas of the young for things meant only for their elders. For us it is a weariness; but for the newly adult it is an agreeable confirmation that they are of age.
§ I have little anxiety, therefore, about the ability of 18 year-old shop assistants to resist under-age requests for age-restricted videos. But I doubt the wisdom of expecting under-age shop assistants to enforce the rules against the wishes of their peers to see under-age material. Such assistants can at present sell or hire videos of any age rating. It is normal for them to handle over-18 stock for over-18 customers. That is rather as if 16 year-old children were allowed to sell beer or spirits to adults in pubs. I am not certain that a shop stocking over-18 videos is a good place for children of 14, 15, 16 or 17 to be working in at all. But given that that is accepted, I believe we should take steps to prevent them from handling material that the BBFC itself has specifically singled out as unsuitable for viewing by them and their age group.
§ The pressures upon under-18s from their peers to release the material to them will be enormous, as will be the temptation to view the material themselves and boast about it. They will be under the same pressures as we were to smoke that first and second cigarette. But whereas the cigarette smoked at the age of 10 or 12 is unlikely to cause lasting harm, the effects of an adult video on a 14 or 15 year-old can be both lasting and traumatic. If Members of the Committee have the slightest doubt of that, I ask them to read our debates in 1984 on the present Act and save themselves a long speech from me.
§ The amendment is designed to assist the implementation of the policies of the BBFC, of which the noble Lord, Lord Birkett, is vice-president. I very much hope that he and Her Majesty's Government will allow the clause to join his four clauses on the legislative bus, on which there is plenty of room. I beg to move.
§ 3.15 p.m.
§ Lord Birkett
In view of the elaborate metaphor of the bus introduced by the noble Lord, Lord Elton, if I am to be regarded as the conductor on that bus, it seems rather churlish of me not entirely to welcome the noble Lord on board. Although I share with him —as I am sure all Members of the Committee do—the concern about youth and that young people should not be subject to influences from which they are supposed to be protected by the classification system, I very much doubt whether his journey on this amendment is necessary.
It is perfectly true that people under the age of 18 serve in video shops. Such large numbers do so that I suspect that the legislation, if it were passed, would have a very serious effect upon their employment. Three of the biggest chains of video retailers, who 905 between them employ 25,000 people, have among that number 10,000 who are under the age of 18—in other words, 40 per cent. I believe, therefore, that, if passed, the amendment would have a draconian effect upon the industry.
Furthermore, a very large number of video outlets are not large chains. They are small corner stores. Sometimes they are more grocery than video shops. But (as I am sure all noble Lords have discovered) they sell videos, or they hire out videos as well. In many cases it is a member of the family who looks after the shop. In those little shops I believe it would be a very serious burden upon the shopkeepers if they had to have available at all times somebody over 18 simply to handle the videos.
It is quite clear that if somebody under the age of 18—or indeed under the age of 15—either sells or gives out for hire a video classified for age 15 or 18 to somebody under that age, whatever age he is, he is committing an offence. Those in charge of the shop should have made sure that he did not do so. I have no evidence—and I have asked around—whether there is indeed the sort of peer pressure to which the noble Lord pointed. Are under-aged children pestered by their friends of the same age to supply videos below the proper age? I can find no evidence of it at all.
Lastly, although I understand the noble Lord's metaphor when he says that a bus is big enough to take anything on board, this bus was intended to be a measure about enforcement. It was meant to make sure that the enforcement of an Act, which, I believe, is generally regarded as sensible all round, was made more streamlined, more effective and more cost-effective. The noble Lord's amendments will add to the regulations involved which the Bill otherwise does not do. Therefore they will create new potential offences. I doubt whether that bus is the right one to climb on for that purpose. In view of all those points, I hope that the noble Lord will see fit to withdraw his amendment.
§ Lord McIntosh of Haringey
I need say only once that our position on Private Members' Bills is that they are a matter for individual judgment and conscience. Therefore what I say from the Dispatch Box is said for myself rather than for my noble friends.
I will make one point in favour of the noble Lord, Lord Elton, followed by one or two points against what he is arguing. The first point certainly is that he is correct—the Bill is not long; it is not complex; it would not be an impossible burden in legislative terms to extend it. Having said that, the noble Lord, Lord Birkett, may be well advised to resist the amendment, even if only on the grounds that the Bill is a streamlining measure and that to add new regulation would complicate the issue.
But when we come to the substance of the amendment, I am bound to say that I do not see any evidence that the evil of which the noble Lord complains is likely to take place, or any reason why video recordings should be singled out in that way. It is not against the law for young people under the age of 18 to serve in grocery shops, newsagents, confectioners, tobacconists and so on. One of the peculiarities of videos is that one cannot be corrupted 906 by what is inside the case; whereas if one has a book or a magazine, if corruption were around, it could be obtained by opening the book or magazine. So videos are peculiarly safe from casual handling, if I may put it that way. I would have thought that the noble Lord is proposing an unnecessary complication, and an unnecessary regulation, for which he has not produced any adequate evidence. I hope that the Government, as well as the noble Lord, Lord Birkett, will resist the amendment.
§ Baroness Nicol
I hope that the noble Lord, Lord Elton, will not feel obliged to press the amendment. Although I have the greatest sympathy with much of what he said, this is the wrong place and the wrong time to raise it. If we are to accept a measure which would have the effect of causing severe unemployment among a group of young people who are desperately in need of jobs, then a great deal more consultation would need to take place as to what the exact effect would be—we are not at all sure of that—not only with the retailers concerned, but also with youth employment personnel in the areas which are likely to be effected.
I agree with the noble Lord, Lord Birkett, that it is an unfortunate time to put forward the amendment. I hope that the noble Lord will not press it. It may prejudice any future attempt to achieve the same objective. I do not doubt the noble Lord's integrity, nor the validity of what he says in regard to the effect that videos have on young people. I feel, however, that Amendment No. 1 is unnecessary and will not achieve what he hopes.
§ Viscount Brentford
I support Amendment No. 1. However, I am not sure whether what is proposed is the right way to go about it. The noble Lord may wish to withdraw the amendment and reflect upon it. I hear what the noble Lord, Lord Birkett, said in that regard.
My concern, which is well brought out by the amendment, is the fact that the 16 or 17 year-old working in a video shop is encouraged to see all the videos on sale. From my understanding and from what I have been told by teenagers, that is the policy of owners and managers of video shops. One must see what one is selling in order to be a good salesman, to enable one to push the videos. I am worried that the youngsters will need to see the videos while acting as salesmen, whether to other under age people or adults. I therefore support the principle of the amendment.
In regard to the bus analogy, I am not sure whether I am the bus inspector, the driver's assistant or indeed the apprentice mechanic—or a little of all three. I can add little to what the noble Lord, Lord Birkett, said. The Government are not persuaded that the amendment of my noble friend is necessary to meet any real need or remedy any real weakness in the way that the Video Recordings Act operates. Many small businesses supply videos as a sideline—for instance, in a grocer's shop. If they had to ensure that there was always someone on the premises who was at least 18 years of age that could drive them out of the video trade altogether. Even 907 large national chains employ young people. Amendment No. 1 would prevent such staff being used flexibly.
In short, the amendment would create serious practical difficulties for a range of businesses at a time when the Government are anxious that commerce should not be encumbered with red tape of doubtful value. There is a comparison with the law relating to the sale of alcohol. Shop assistants under the age of 18 are permitted to make off-licence sales of alcohol provided they do so under supervision, whereas the amendment would completely outlaw such sales in respect of age-restricted video recordings. The restriction on the sale of alcohol is also easier to obey and to enforce than the amendment would be because it relates clearly to one age and not to a range of age classifications. It also reflects the fact that young people should not be in a position where they may be tempted to assist in the offences of others since, unlike the situation with video recordings, it is also an offence to attempt to buy alcohol under age.
§ The Earl of Longford
Perhaps I can ask the noble Viscount a question. He said that young people under the age of 18 are allowed to sell alcohol provided they are supervised. Thinking of one of my local shops, young people are often not supervised by anybody except by a character who may be under suspicion.
I cannot answer the noble Earl's question in regard to the shop from which he buys his alcohol. My point is that the amendment would make it more complicated for shops. With that explanation I hope that my noble friend will agree to withdraw his amendment.
§ Lord Elton
One takes a little time to absorb the variety of arguments put forward. My immediate reaction is to say that I was anxious that a number of young people might not only be at risk themselves but also that they might place others at risk through being required to handle and distribute material which was thought to be harmful to themselves and others of their age. The first reassuring comment of the noble Lord, Lord Birkett, was that there were no less than 10,000 people at risk in that respect. That is not something which encourages me to relax my anxiety. I shall return to the question of evidence in a moment.
The noble Lord's next point was that the Bill was about enforcement. In strictly parliamentary terms, whether it is a Private or a Public Bill, a Bill is about whatever the Long Title says. In this instance the Long Title states that it is,An Act to amend the Video Recordings Act 1984",and so forth. That is no more and no less than what I am proposing.
The noble Lord said that there would be an addition to the regulations that apply to the industry. That I accept. But is that a necessary and worthwhile burden?
The noble Lord, Lord McIntosh, pointed out that people were safe from casual contamination—if that is a correct description—by the material in a video cassette, which I accept. The noble Baroness, Lady Nicol, was kind enough to say that she shared my 908 anxiety, but that this was the wrong place and the wrong time because of the desperate need for jobs for young people. That was mentioned also by the noble Lord, Lord Birkett. The analogy is perhaps disproportionate but otherwise just. One would not have advocated continuation of child chimney sweeps before the relevant Acts forced the practice to be abandoned on the grounds that there was massive unemployment at the time. This is a lesser threat, and therefore I do not press the analogy. However, the principle is clear. One fits the law to the circumstance. If the circumstance is that it is a threat to young people, then one should not make a greater exposure of them to that threat at the price of increasing the number of jobs.
It comes back to the question of the scales. I accept what the noble Lord, Lord Birkett, said. We need evidence of a considerable number of cases. My evidence is circumstantial. I shall withdraw the amendment and hope that the interested bodies following the arguments in Hansard come forward with the evidence I need to bring it back at Report.
An alternative route would be to require supervision of young people in the shops where they are to handle the material. I can find no reference to that, and it may be acceptable to include a requirement for their supervision by adults rather than to restrict the work that they do by amending the Act. That said, I thank the Committee for its patience and constructive attendance. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Elton moved Amendment No. 2:
Before Clause 1, insert the following new clause:
§ ("Video recordings shown in public places
§ "Video recordings shown in public places.
§ . If a video recording which is not suitable for viewing by persons who have not attained a particular age is shown in a public place, and any person under the age sees the video recording, or any part of it, in the public place, then the person responsible for the showing of that video recording is guilty of an offence." ").
§ The noble Lord said: Amendment No. 2 relates to the showing of videos in public places. I tabled the amendment to address the known evil of the showing of entirely unsuitable material to very young people. At present an adult can hire or purchase a video of any classification. Once he has done so, what he does with it ceases to be the concern of the existing Video Recordings Act. While the composition of audiences in private and domestic premises must be the concern of the people who live there, there is an anomaly in setting up the whole paraphernalia of certification and then turning a blind eye to what happens to the material in public. After all, the Act is designed to protect the public.
That is a matter with which the BBFC is concerned. Indeed, as early as in its 1986 report it drew attention to it. Paragraph 65 of the report states,
A recurrent problem considered at meetings of the council was that of unsuitable videos being shown in captive situations with children present, such venues including long-distance coaches, hotels and restaurants and video shops, where it was currently legal".
§ The chairman was asked to write to the Minister about the need to tighten up the rules. The Minister, it is recorded in paragraph 66, replied that the matter was already being considered as part of a wider review of the Cinemas Act and suggested that Home Office officials and those on the board should remain closely in touch on these matters.
In 1987, the annual report recorded in paragraph 57:
The council had asked the board and the Home Office to consider the best means of ensuring that the screening of unsuitable videos to captive audiences in long-distance coaches, restaurants, hotels and the public areas of video shops should be brought under some form of regulation".
There was particular concern that the screening of videos in non-domestic situations should be constrained by audience age, particularly where such screenings fell between the two relevant pieces of legislation. In paragraph 58 it is recorded that,
with the council's support an undertaking was given by the Home Office to explore the best means of introducing such regulation, perhaps through an amendment to the Cinemas Act 1985".
In the following paragraph Home Office officials said that they would consult both the film and video industries and coach hire firms, hoteliers and so on to see whether legislation was practicable or whether informal self-regulatory arrangements might suffice. I would add that the final sentence of the paragraph deserves attention:
A caveat was entered by independent members of the council expressing scepticism about how far self regulation could prove effective in areas of profitable commerce".
§ Some time has elapsed since then. I hope that the noble Lord or the Minister will be able to tell us how we have progressed in producing a framework to control this area. I regret to see that no reference is made to other places of public entertainment such as hired village halls and school halls where again materials which the board is concerned to regulate can be shown without any regard to the regulations. I have particularly in mind a recent occasion when a seven year-old girl went to the showing in a hired hall of a very violent video and was greatly upset by it.
§ This probing amendment is drafted to suggest one means of preventing a recurrence of that kind of thing. The Minister will doubtless tell us that the Bill is about the supply and not the exhibition of certificated material, and so indeed will the noble Lord, Lord Birkett—and that is absolutely right. But I hope that they will not go on to say that we need not therefore bother about this kind of abuse. If such conduct is a breach of other legislation such as the Cinemas Act, perhaps the Minister can tell us about that. If it is not, perhaps he can tell us in what respect that measure could be amended to bring it within the Act's scope. I beg to move.
§ 3.30 p.m.
§ Lord Birkett
Here again I fear I must say to the noble Lord, Lord Elton, that, although I too share his concern that films totally unsuitable for young people should not be shown in public places where they are more than likely to see them, I doubt whether there is very much abuse at all. The Cinemas Act 1985 defines a film exhibition as an exhibition of moving pictures 910 which is produced otherwise than by the simultaneous reception and exhibition of programmes included in a programme service within the meaning of the Broadcasting Act 1990. In other words, anything that is on film, tape or video; anything that is not coming live off a television or radio set. The Cinemas Act requires that premises other than private dwellings which are to be used for such exhibitions must be licensed and it permits local authorities to impose licence conditions, including restrictions on the age of those allowed in.
By and large, there are very few places in which the noble Lord's amendment would really bite. I refer in particular to video shops, which are now very widely spread. I suspect that the Video Standards Council's rules on the subject of what is and what is not shown in a video shop now bite very deeply and that that abuse is more or less non-existent. The noble Lord's next amendment deals specifically with that point so I shall not say any more on the subject at the moment.
It is of course possible to arrange a video showing in circumstances where quite a large number of people are present which is not a public viewing. There are exceptions for exhibitions of films not for gain; that is to say, for private purposes. But since those exemptions also apply to the cinema, it would be a little unfortunate to single out the video industry where such abuses, I suspect, are less likely than they would even be in cinemas.
As far as concerns the general tenor of the Bill, I take the noble Lord's point that if the Long Title of the Bill is,An Act to amend the Video Recordings Act",that is an invitation to amend it in any way you choose. I do not think it quite means an invitation to make all the amendments that occur to you at the time. There are suitable vehicles and unsuitable vehicles. Although I take the noble Lord's point that a bus is by definition big enough to take on lots of passengers, the purpose of a bus and where it is going are quite different. It would be unfortunate if this so far quite tight-knit and, I hope, potentially effective little Bill were encumbered by a vast number of additions which would slow up its progress. It is not so much the size of the bus but the speed and efficiency of it.
§ Lord Elton
Can my noble friend say in what way that would slow up its progress? It would go through the House in just the same number of days.
§ Lord Birkett
I was not entirely thinking of its progress through your Lordships' House or through another place. I was simply thinking of the efficacy of implementing it and how difficult or not it would be for those concerned, which is the video industry, to come to terms with it and operate it properly.
§ Lord McIntosh of Haringey
I am not very keen on this analogy of the bus. However, I wonder whether the noble Lord, Lord Birkett, would agree with me that the real restriction is likely to be parliamentary time in another place; and there the bridge that the bus has to get under is a very low one.
§ Lord Birkett
I fear that the noble Lord is all too right on that matter. I would not disagree with him for a moment. I am sure that that is true.
I see the purpose of the amendment but I believe that life is a great deal better than it was during the times that the noble Lord was originally referring to. I do not see the necessity for the amendment at this point. I hope that he will agree to withdraw it.
The noble Lord, Lord Birkett, has explained that current laws deal with any possible problem that can arise. I refer in particular to the Cinemas Act 1985. One aspect with which he did not deal totally was "public place". Perhaps it would be helpful to the Committee if I say that, if it were possible to show a video work in a public place in circumstances which were outside the scope of the Cinemas Act, such an exhibition would still be subject to the provisions of the Indecent Displays (Control) Act, which makes it a criminal offence to display indecent matter in a public place or where it can be seen from a public place. Such exhibitions would also be subject to the provisions of the Copyright, Designs and Patents Act, which makes it an offence to infringe a copyright owner's right by the unauthorised public exhibition of a film or sound recording.
Perhaps I may also make the point that we have found no evidence that there is any major social mischief being done by this. I quite understand my noble friend's concerns. The only other point I would make to him is purely a technical one. His amendment refers to "a video recording". I suspect that the correct term should be "a video work". That is purely a technical point. I hope my noble friend will see that his point is covered by existing law. We do not see this to be a problem area.
§ Lord Elton
I am most grateful to my noble friend for that technical point. I shall ensure that amendments when they later appear will be better drafted. I said that this was a probing amendment because in my view the proper destination for this passenger is quite possibly not on this Bill but on a Bill concerning the Cinemas Act. That is borne out by what the Minister has just said and that is what I wanted to extract.
I am not sure that either of the two noble Lords who have spoken are quite up to date with the extent of disquiet and abuse. I understand that there has been a succession of complaints about material shown, particularly, oddly enough, on long-range buses which have an audience of all ages and tend to get very adult material to entertain the passengers. That is an abuse and one which we should take note of.
I should like my noble friend the Minister to consider, between now and Report stage, putting the two Acts together perhaps in the next Session of Parliament. It is possible that unsuitable video material falls between the regulations of this Act and the Cinemas Act. Perhaps he will see whether anything needs to be done to them in respect of each other to ensure that the gap is closed. It would be very helpful if my noble friend were in a position to tell me 912 something about that at Report stage. Until then I shall leave the Committee in peace on this matter. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Elton moved Amendment No. 3:
Before Clause 1, insert the following new clause:
§ ("Videos on view in shops
§ "Videos on view in shops.
§ .—(1) A person who carries on in any premises a business of supplying video recordings for reward shall not permit the showing on those premises of any video recording, or part thereof, other than one in respect of which a classification certificate has been issued which satisfies the requirements of section 7(2) (a) of this Act.
§ (2) A person who contravenes subsection (1) of this section is guilty of an offence." ").
§ The noble Lord said: Again, this amendment is directed at what happens on the premises used for the hire or sale of video recordings. I need not remind the Committee that the principal Act is designed to protect people of tender age from seeing material suitable only for viewing by adults. It does so by requiring that all material be classified, preventing the hire or sale of certain classifications of videos to people under certain ages. Nevertheless, at present video shops are perfectly at liberty to run extracts, continuous loops or advertisements for such videos in premises in which children of any age can come and go without supervision.
§ That is the provision of the law. I have in my hand a copy of the Video Standards Council code of practice which deals with this matter and which makes it an unacceptable practice. I shall be most grateful if the noble Lord, Lord Birkett, would tell us the extent to which the code of practice is observed and the proportion of places where such video material is available and which actually subscribe to the code of practice. Perhaps he could also tell the Committee of the means of dealing with those places when they fail to observe the code of practice. I beg to move.
§ Lord Birkett
Once again, if there were any evidence of widespread abuse —the noble Lord has asked me very specifically to say how much there is or is not —I would be much in sympathy with the amendment. However, before I deal with that matter perhaps I may point out one rather serious flaw in the amendment as it stands—
§ Lord Elton
I am not going to press the amendment in its present form. I believe I made it clear that this is a probing amendment to ask the noble Lord to bring forward information, which I hope will be reassuring, so that I need not bring forward the amendment in any form.
§ Lord Birkett
I shall certainly do that. I was going to point out that there is a category of video which does not require classification at all. They are the most innocuous of all videos—that is to say, covering sport, religion, music and videos designed to inform, educate or instruct. They are exempt from classification. This 913 amendment would surely knock them out, which I am sure was not the noble Lord's intention. It is purely a drafting matter.
I have asked those concerned and, as I understand it, the code of practice of the Video Standards Council is widely followed. It is only in the larger shops where there is even the screen facility. I spoke about corner shops when we were dealing with the first amendment. Those premises rarely have a screen flickering away among the groceries. The screens are usually found in the bigger stores. By and large such stores almost invariably respect the code of practice. Very rarely are whole videos shown. They are much more likely to show a trailer from time to time. But trailers have to be certificated as well as videos. The trailer itself must have a classification such as U, PG, 15 or 18. It is possible to have a U trailer for an 18 film; that is, extracts which are in no way objectionable. Therefore, the material is classified as U.
The code of practice which the Video Standards Council recommends, and which is almost invariably followed, means that no under-age material of any sort is shown in the video shop, including trailers. Therefore, I believe that the noble Lord can be reassured that there is no misuse and that children of any age coming into a video shop are unlikely to see unawares any material on a screen which has not been classified either U or PG. Therefore, in those circumstances I believe that the noble Lord will be doing us all a service at this stage if he also withdraws this amendment.
Perhaps I may briefly say that video dealers cannot themselves compile trailer tapes for showing in their shops as that would be a breach of copyright, as would be any public exhibition of a whole work. We have looked at this matter and there is no evidence to show anything that is contrary to what the noble Lord, Lord Birkett, said. Like all the amendments that the noble Lord has spoken to this afternoon, between now and Report we shall look very closely at what he said.
§ 3.45 p.m.
§ Lord Elton
I am much obliged to my noble friend. If between now and Report stage I receive no evidence against what the noble Lord, Lord Birkett, said I shall not bring back this amendment; but if I do, I shall. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 [Titles to be assigned to video works for identification purposes]:
Lord Birkett moved Amendment No. 4:
Page 1, line 19, leave out ("reference") and insert ("registration").
§ The noble Lord said: This is a very tiny but technical amendment. The Committee will recall that the Bill requires that there is a unique title and number given to every video work simply to make the process of providing evidence in the case of prosecutions much easier. At the moment the Bill refers to a reference number, which indeed it is, but the number is effectively the one under which it is registered for 914 classification. The word "registration" seems better. Therefore, the phrase reads "a registration number" and not "a reference number". I beg to move.
§ On Question, amendment agreed to.
§ Clause 1, as amended, agreed to.
Lord Birkett moved Amendment No. 5:
After Clause 1, insert the following new clause:
§ General defence to offences under the 1984 Act
§ "General defence to offences under this Act.
§ 14A. Without prejudice to any defence specified in the preceding provisions of this Act in relation to a particular offence, it is a defence to a charge of committing any offence under this Act to prove—
- (a) that the commission of the offence was due to the act or default of a person other than the accused, and
- (b) that the accused took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by any person under his control." ").
§ The noble Lord said: The Committee will recall that on Second Reading the noble Lord, Lord Merlyn-Rees, proposed putting forward an amendment covering the defence of video retailers in a prosecution by the defence of due diligence. The noble Lord cannot be here today for one of the nicest of all possible reasons. He is in Leeds and he has just received the freedom of the City. I hope that the Committee will join me in congratulating him on that happy event.
§ The amendment now before the Committee is similar but very slightly streamlined and has the advantage of being tailored particularly for the Video Recordings Act rather than simply taken out of the Trade Descriptions Act 1968. It is very similar in effect.
§ The reason why the noble Lord originally proposed such an amendment, and why I have proposed a similar one myself, is because it was discovered that there are certain offences to which innocent video retailers would have no defence. The general defence of taking due diligence to make sure that the proprietors of shops see that all their employees respect the various regulations under which they operate, is hugely important. By producing an extra defence, even that of due diligence, may be seen as in some way weakening the effect of the Act whereas, as I have been saying all along, the aim is to strengthen the regulations and the means of prosecution.
§ I believe that the amendment will have the opposite effect. The good thing about a due diligence defence is that it places on the retailer an obligation to train his staff to exercise that due diligence and thus avoid offences under the Act. Therefore, it will have a very salutary effect. If due diligence cannot be proved, the defence is inoperative. Consequently, I believe it is a strengthening rather than a weakening measure, and only just where there are certain offences which would not otherwise be covered. I beg to move.
The Government have given careful consideration to the amendment proposed by the noble Lord, Lord Birkett, after the Second Reading proposals of the noble Lord, Lord 915 Merlyn-Rees. The Government agree that this amendment is sensible and will not weaken the enforcement of the law. The inclusion of a due diligence defence would remove the possibility of a conviction being unjustly obtained against an employer who has made every effort to avoid the commission of an offence but who is liable because of the actions of one of his staff. As the noble Lord, Lord Birkett, explained, the amendment would not weaken our existing controls on video recordings and could even assist in the operation of those controls by raising dealers' awareness of the provisions of the Video Recordings Act.
§ On Question, amendment agreed to.
§ Clause 2 agreed to.
Baroness Fisher of Rednal moved Amendment No. 6:
After Clause 2, insert the following new clause:
§ ("Offences due to fault of other person.
§ "Offences due to fault of other person.
§ 15A. Where the commission by any person of an offence under this Act is due to the act of default of some other person that other person shall be guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this section whether or not proceedings are taken against the first-mentioned person." ").
§ The noble Baroness said: As a vice-president of the Institute of Trading Standards Administration, I am speaking today on behalf of local authority trading standards officers, who very much welcome the aims of the Bill which the noble Lord, Lord Birkett, has put before the House. However, enforcing the Video Recordings Act is but one of the many responsibilities of the officers of the fair trading institutions. I know that there has been long and deep disappointment about the fact that the proper operation of the controls has been hampered by the shortcomings of the original Act.
§ The noble Lord, Lord Birkett, has already set out the intentions of his Bill and explained how such measures as he proposes will add to the effectiveness of the legislation. I can wholeheartedly support his views knowing only too well the unease that local authorities feel at having to return, say, 390 out of 400 illegal and unclassified video scenes to the retailer because of the exceptionally onerous evidential procedures currently included in the Act.
§ Equally, the six-month time limit on investigations is a significant hurdle as evidence may not be discovered until some time after the commission of an offence. The one-year limit which has been proposed by the noble Lord would enable investigations to be more thorough. However, it would also place a duty on local authorities not to delay initiating proceedings against suspected offenders. That is entirely right and local authorities will take particular note of it. The courts have made clear that a dim view will be taken of any prevarication by law enforcers when bringing a case to trial. With that safeguard, I am sure that the small extension of the time limit will be welcomed by all.916
§ However, there are two areas in which I believe that the proper and effective operation of the legislation could be improved still further. The first is the current absence of a defence of due diligence which the noble Lord has brought to the attention of the House. I am happy that the suggestions of my noble friend Lord Merlyn-Rees have been taken on board. It seemed unreasonable that a trader who had taken all possible steps to ensure that he had not broken the law was not able to be protected.
§ My second concern, in respect of which Amendment No. 6 stands in my name, relates to the cumbersome administrative arrangements which the Act imposes upon enforcement authorities. For obvious reasons, local authorities are empowered only within their own administrative areas—in the areas covered by their councils. Crime, however, does not stop at the borders of local authority areas. There may be a spill-over all over the country. Sensibly, therefore, most protective legislation which is enforced by local authority trading standards officers includes a clause which is commonly known as the "bypass". It enables a local authority to take action against the true perpetrator of an offence within its area even if that person is based many miles away. The bypass really means that one authority can investigate an offence from beginning to end.
§ Perhaps I may explain what I mean by "from beginning to end". It can mean tracing the importer, the manufacturer, the wholesaler, the local distributor, the retailer and finally the consumer. As it is often the consumer who brings the initial complaint to the attention of the trading standards officers, a long supply chain has to be gone through before the original wrongdoer is reached. The bypass should be thought of only as facilitating the existing role of the local authorities. It will not require any authority to expend further resources.
§ Perhaps I may give an example of how the bypass works. It was recently brought to the attention of trading standards officers in Kent that unsafe hammers were being sold in their area. Eventually, they were traced to a single supplier in Liverpool. The retailer in Kent did his very best to ensure that the hammers were safe. Indeed, he had written assurances about their safety from his wholesaler. Nevertheless, the hammers were found in his possession and in his shop. But why should he be prosecuted when he had taken all the legitimate steps? If we did not have the bypass procedure, prosecuting the retailer would be the only step that Kent trading standards officers could take. However, because of the bypass procedure the trading standards officers could trace the original wrongdoer, who came from the Liverpool area.
§ That example shows how, because of the bypass, one local authority could trace the supply chain right back until it found the real charlatan—if I may put it like that—that is, the person who had set out to break the law in the first instance. Therefore, the bypass provision allows rapid and effective action. At the same time, the costs of investigation are less because only one authority is following the matter instead of 917 the first authority passing it to another and so on, with court cases taking place, until the original wrongdoer is traced.
§ One obvious case of which many noble Lords are aware—it is discussed in your Lordships' House on many occasions—is that of the car mileage "clocker". Under the trades description legislation, the bypass procedure can be used against the clocker. A garage may be selling a car to somebody—as what I am saying now is causing great hilarity, perhaps I could share in the joke when I have finished. A car dealer may have sold a clocked car to a consumer who has bought it in good faith. The garage, too, might be selling the car in good faith, but we all know that there are auctions and that cars can be clocked. The bypass, however, means that the local authority can trace the person who actually committed the crime.
§ Given those examples, it seems strange that the suppliers of unclassified videos are treated differently from those who defraud or endanger the safety of consumers. It is a great pity that the Video Recordings Act does not contain a bypass provision and that streamlined investigation is therefore impossible. As I have said, local trading standards departments can operate only in their own administrative areas and perhaps cannot, therefore, give full justice to the consumers whom they serve.
§ If 200 unclassified works are seized in an area, it costs a local authority £500 or £600 for the investigation and prosecution procedures. Those people who are taken to court may be innocent. However, if there is a bypass procedure, the original wrongdoer will be caught at a far lower cost because the resources of only one local authority will be used throughout. Therefore, there will be savings not only for the local authorities but also for the courts. Members of the Committee will recognise that all local authorities are trying to save money as far as possible and are finding it difficult to do so at the present time.
§ It is hoped that the bypass procedure will tackle those parties which are acting in default and which are leading an innocent person to commit a crime. That is the essence of the wording of the amendment, which follows the wording in the Trade Descriptions Act, consumer protection and food safety legislation. The original wrongdoer will then be in no doubt as to his liability for a subsequent offence.
§ A bypass provision would make this a more effective piece of legislation at no extra cost. There will be a greater possibility of the original wrongdoer being brought to book and, as prevention is better than cure, it will also represent savings when compared with the cost of prosecuting traders for breaches of the Act as a result of the actions of the original offender. On Second Reading the noble Lord, Lord Birkett, described those people as the few individuals who deliberately flout the law and abuse the system. I beg to move.
§ 4 p.m.
§ Lord Elton
If the noble Lord, Lord Birkett, and the Minister are satisfied that this amendment has the effect which the noble Baroness claims for it, then I hope that they will accept the amendment as a means 918 of making this legislation more effective. It will also have the agreeable sub-effect of enabling Members of the Committee who have followed my analogy from the beginning to think of a bypass on a bus rather than vice versa.
§ Lord Birkett
This is by no means an unwelcome passenger and I thank the noble Baroness, Lady Fisher, for the care and clarity with which she outlined all the problems. I am sure that we all want increased efficiency and cost efficiency as regards the prosecutions procedure. I am sure that we all want to catch the real villains of the piece—the people of whom I spoke at Second Reading, as the noble Baroness reminded us, who deliberately flout the Act.
I am not sure whether the amendment tabled by the noble Baroness is the right way to deal with the matter. Perhaps the noble Baroness will allow me to use my best offices with all parties concerned to see whether I can provide an amendment which is similar in effect, achieves what she wants to achieve and which will meet with her approval before Report stage. I should be very happy to do that. If I fail to do so, the noble Baroness can table an amendment on Report to deal with the matter. I hope that the noble Baroness will withdraw the amendment today. Speaking from these Benches on a Private Member's Bill, I am in no position to give an undertaking but I shall do my best to bring all parties together to see whether we can resolve this issue.
§ Lord McIntosh of Haringey
My noble friend must make her own decision about the offer made by the noble Lord, Lord Birkett. I confirm that this is very much the kind of amendment which falls within the restricted scope of the Bill as outlined by the noble Lord, Lord Birkett. As my noble friend claimed, it would streamline the procedures. I hope that it may be possible to incorporate the amendment, or something like it, into the Bill.
While I understand what has been said this afternoon about a bypass provision, I am afraid that the Government have strong reservations about the amendment. As the noble Baroness, Lady Fisher, has explained, the purpose of this amendment is to assist trading standards departments to address the root of the problem of unclassified video supply, by enabling them to prosecute those wholesalers who supply retailers in their area for the offences then committed by those retailers. While the Government certainly share the objective of dealing effectively with the illegal supply of unclassified videos, we are not persuaded that this is the correct way to set about it. I shall try to explain why that is so.
Of course there are various precedents for a bypass provision, including that in Section 23 of the Trade Descriptions Act 1968, but that does not mean that such provisions are always appropriate or likely to be effective, and in this case we believe that such a provision would be misplaced for various reasons.
First, it must be remembered that wholesalers who supply unclassified videos to retailers are already guilty of a distinct offence of unlawful supply under the Video Recordings Act. This contrasts with the 919 position under the Trade Descriptions Act, where a factory which makes a contaminated tin of peas, for example, will not necessarily apply any description to it and may only be caught for the eventual retailer's offence when it is sold.
The noble Baroness's amendment is inappropriate in the context of the Video Recordings Act for other reasons. Let us take the case of a retailer who knowingly sells an unclassified video; surely, he is responsible for his own offence. It cannot properly be argued that his offence is a result of an act or omission by anyone else other than himself, any more than a drug dealer can argue that his offence was due to the actions of the original smuggler.
§ Lord Elton
Perhaps I may interrupt my noble friend. There is an analogy with a supplier of a tin of peas which contains a carrot. It is possible for a distributor to distribute unedited and, therefore, unclassified material in a case which advertises the film as having been edited and, therefore, classified. That can only be discovered when the film is shown. I should have thought that there is an exact analogy and that the noble Baroness's amendment applies to that.
There are two analogies: that of my noble friend Lord Elton and my analogy. They are slightly different. In these cases, therefore, the requirement in the noble Baroness's amendment that the commission of the offence was due to the act or default of some other person clearly will not be satisfied.
Equally, if a dealer carries out an unlawful video supply in all innocence, he may well be able to avail himself of the defences in the Act. If so, he will be acquitted, and no offence will have been committed. Because the noble Baroness's amendment requires there to have been an offence committed, in those circumstances also the proposed provision could not be used to catch a dishonest wholesaler elsewhere.
The Government therefore believe that it would be inappropriate simply to graft the Trade Descriptions Act "bypass" provision on to the Video Recordings Act, which is structured in an entirely different way. We believe that, where wholesale suppliers are situated outside a local authority trading standards department's area and have supplied unclassified videos to retailers within that area, the correct solution is for the different local authority departments to liaise together in order to bring their investigations to a successful conclusion.
Where trading standards officers have successfully identified a chain of illegal video supply but are unable to pursue the matter further as a result of jurisdictional restrictions, and for some reason collaboration between different authorities cannot be achieved, there is also the option of referring the matter to the police, who are not subject to the same territorial restrictions. Indeed, where training standards officers believe that they have uncovered a network of supply of obscene or other unlawful works then there will be strong practical reasons for the police, who are used to dealing with such offences, to be brought into the investigation at an early stage.
920 I sympathise with the intention behind the amendment, but I hope that I have explained why it is unnecessary. This is a complicated area and there can be a long chain of people. The noble Baroness described the numbers of videos that might have to be handed back. The certification procedure will make it easier to bring proceedings in respect of seized videos. We are dealing with a complicated subject and a complicated argument but I hope that, having explained the situation to the noble Baroness, she will withdraw the amendment.
§ Baroness Fisher of Rednal
I am disappointed with the reply from the Government Front Bench. If one wishes to use the analogy of drug trafficking, the real problem is not the man who is selling £5 worth of drugs on the streets in Birmingham or £10 worth of drugs in London; it is to find the supplier who is bringing the big consignments into the country—in others words, the big guy. That is the point that I have been trying to make. The real problem is not the little man in the shop who is doing his best to support the law, or the honest traveller; it is the person at the top of the chain, who deliberately flouts the law and who is determined to do so. The Minister is encouraging the big fish to allow the little fish lower down the chain to pay the penalties.
I did not say that at all. I specifically stated that in the case of a large dealer or a supplier, the matter could be referred to the police, who are used to dealing with such things. When I made the analogy with drugs, I intended to make a point about the offence and how it could be argued that an offence was committed by somebody who had been responsible for a previous offence. That is a separate point. I agree with the noble Baroness that we wish to prevent such videos coming into the country and being sold and shown.
§ Baroness Fisher of Rednal
Perhaps the noble Viscount can reconsider the matter. Will it be cost effective not only for the local authorities but for the courts? That is an important point because court time is expensive.
I am grateful to the noble Lord, Lord Birkett, who stated that he would give serious consideration to the matter. Perhaps I should rely upon the noble Lord to use his charms on the Minister, as mine seem to have failed. I shall await the results of that consideration and raise the matter at Report if necessary.
§ Amendment, by leave, withdrawn.
§ Remaining clauses agreed to.
§ House resumed: Bill reported with amendments.