HL Deb 30 March 1993 vol 544 cc792-802

7.28 p.m.

Read a third time.

Clause I [Titles to be assigned to video works for identification purposes]:

Lord Birkett moved the first Amendment: Page 1, line 17, leave out ("submitted") and insert ("determined to be suitable").

The noble Lord said: My Lords, this is a very small and technical amendment. As I mentioned to the House at Report stage, it is concerned only with the list of titles. Noble Lords will recall that the Bill streamlines the procedures for providing evidence in the case of prosecutions by providing that there shall be a list which includes for every video a unique title. It must be unique so that there can be no confusion with others.

The title of a video work, in the form which it is approved by the board for certification, is an integral part of the work. The board requires that that title appears on the screen, usually in the opening shots. That title will also appear on the video itself, and on the box. Originally the title was supposed to be the title under which it was submitted to the board for classification. Although it is possible that that might have been interpreted as the final title—it is obviously important that the title of the work shall be the real title under which the video goes out and under which it has received its certificate—it would he clearer to state that the moment of its registration as the title should be when it was determined to be suitable by the board. In other words when it received its certificate. Instead of the word "submitted" I suggest that we insert the words "determined to be suitable" in that clause. I beg to move.

Viscount Astor

My Lords, the issue that the noble Lord, Lord Birkett, raises is a technical one relating to the drafting of the Bill and not to the policy underlying it. During the debate on the Report stage of the Bill, I said that I would look carefully at the implications of the amendment. We have done so and although we were happy with the original wording, we accept that if your Lordships feel that the noble Lord's amendment puts the issue beyond doubt we would advise your Lordships to accept the amendment moved by the noble Lord.

Lord Birkett

My Lords, I commend the amendment.

On Question, amendment agreed to.

Lord Birkett moved the second amendment: After Clause 2, insert the following new clause:

("Offences due to fault of other person

. After section 14A of the Video Recordings Act 1984 there shall be inserted the following new section—

"Offences due to fault of other person.

14B. Where the commission by any person of an offence under section 9, 10, 13 or 14 of this Act is due to the act or 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 Lord said: My Lords, the amendment concerns the famous bypass provision which has been before your Lordships in various forms throughout the Bill. I put the amendment in my name rather than in the name of the noble Baroness, Lady Fisher, not in order to deprive her of any credit for having been so persuasive and clear throughout the debate, but simply because if it were not accepted I would prefer that it stood in my name and no one else's.

The point of the proposed bypass provision was simply to get to grips with one of the evils of the video world. There are distributors who distribute videos, usually of an extremely questionable character, often without certificates, sometimes with false certificates. Many of those videos are the very types which the Video Recordings Act 1984 was brought in to remove —the video nasties. Not all of them fall into that category; a great many do. The problem is that although trading standards officers have the right to prosecute people within their own area, if they discover that the fault lies not with the retailer in their own area but with the distributor in another area, at present they must go to that other area and ask for a prosecution to be brought. Often prosecutions are not brought by local authorities which are too busy or have a different policy and simply fail to mount the necessary prosecution.

The bypass power enables the trading standards officer who first discovers the fault to proceed right the way down the line. It would have a salutary effect on the extremely ugly end of the video trade.

The amendment proposed today is similar to the one proposed by the noble Baroness, Lady Fisher, except that it would be in a new position in the 1984 Act. By inserting the proposed new clause after Section 14A of the Act, and providing that, Where the commission by any person of an offence under section 9, 10, 13 or 14 of this Act", (instead of a general provision under the Act), we would remove some anomalies which might have occurred had the provision been in the old position. For example, let us consider under-age supply. That is to say, a 10 year-old hires or buys a video with an "18" classification. That occurs not infrequently. That offence obviously does not need a bypass power. Quite plainly, that can be an offence only in one place. There cannot be someone in another part of the country involved in that offence. The offence takes place where the video is passed over the counter. It was pointed out that a bypass provision would be unnecessary for that, as indeed is the case. The amendment means that the provision applies only where it is effective and necessary. It is therefore an improvement upon the previous amendments moved by the noble Baroness, Lady Fisher. I beg to move.

Baroness Fisher of Rednal

My Lords, I support wholeheartedly the amendment moved by the noble Lord. I thank him for the tribute that he paid me. I hope that the Minister will look kindly at the amendment. The Home Office will have to consider seriously video recordings of all types. A television programme last week on citizen's rights showed quite clearly how video pirates (or whatever we wish to call them) are in the market, whether marketing films, games or whatever.

The issue began with this Bill, but it needs serious consideration because of the way in which the market now operates with the modern technology of video recordings. Referring to the place of first instance, I have defined those persons as the real offenders. However, the person speaking on television last week was far more unkind. He was nearly as unkind as the Minister when referring to such people in a letter to me. On television that representative of recording companies described them not as real offenders but as counterfeiters, bootleggers, parasites and parasites of legitimate trading recording organisations.

If the Government really wish to protect such people, heaven help us in the future. That representative referred to the issue that we are debating: such people have to be traced through from source. Therefore one agrees with the amendment of the noble Lord, Lord Birkett. It simplifies the whole procedure and sounds a little more legal than the amendment which I moved.

For that reason I hope that the noble Viscount will accept the amendment and that it will go to another place with the blessing of this House. I therefore support the amendment.

Lord Elton

My Lords, since we have discussed the amendment in various forms, I made my own inquiries. It is quite clear that there is a problem and that fact is not in dispute. The problem is that a person in a central place may generate counterfeit videos, and videos of a wholly unpleasant nature, and send them under innocent labels as though they were originals produced under licence, or fit for general view, to a number of different destinations. The place where that offence is discovered may be many miles away.

Noble Lords are familiar with this matter, but I quickly remind them that the problem is this. Under existing legislation, when discovery is made the only recourse of the trading standards officer of the local authority in which it is discovered is to pass the information for a prosecution to the place where the material is generated. That is self-evidently an inefficient method of procedure whatever the circumstances. The circumstances now are such that even that procedure does not take place. The place where the central offence is dealt with is too overburdened with work to put its own trading standards officers on to it. The police are too overburdened to take on the work and I have to tell my noble friend that during my inquiries I discovered that agencies representing every single local authority in England, Scotland, Wales and Northern Ireland want the amendment. The police want it; the regulatory body itself, ably represented by the noble Lord, Lord Birkett, wants it; the public want it. It therefore falls to the Government to explain why we should not have it, if that is the Government's position.

I know that there were legal objections to the amendment of the noble Baroness, Lady Fisher; I know that there were legal objections to that of the noble Lord, Lord Birkett. He considered them and it will be for him to endorse this, but I understand that he took legal advice and adjusted his amendment to meet the objections. He has spared us all the intricate arguments and it is possible—since it is difficult to think of any other defence that the Minister could advance for rejecting the amendment—that the Minister will advance intricate arguments in another sense which persuade him.

In that case we are debating the wrong issue. The issue is not: should we pass the amendment? It is: should the wrong be addressed and righted by such an amendment? I cannot conceive of any argument whatever which would persuade noble Lords to the contrary. It seems to me that my noble friend is in a position of some embarrassment, from which he could extricate himself were he free to say that the wrong was acknowledged, that the present proposals to right it were deficient, but that the deficiencies would be remedied by Her Majesty's Government in time for the proposals to be accepted in another place.

No doubt behind those arguments stand arguments about the management of time in another place. However, noble Lords would he reassured by the volume of support which such an amendment might have in another place and the complicity in which all parties would indulge to see that it did not take up unreasonable time.

I hope that I have not spoken with too much heat. I admire the work which the Home Office has done to improve legislation by taking the Bill on board. I admire my noble friend's tenacity and perspicacity in improving the Bill since it came to the House. I hope that he will add to the glitter on his laurels by making this simple, sensible, inexpensive and welcome undertaking.

Lord Merlyn-Rees

My Lords, I too wish to speak briefly. I am concerned about the issue that underlies the amendment, which we have discussed on a number of previous occasions. As I explained, I am chairman of the Video Standards Council. We are worried about standards in videos and about violence on TV and in videos, and so, at the moment, temporarily, when famous cases arise, is everyone else in the media. However, the problem will go on. That is why I support, for example, the classification procedure of the BBFC, whose members, if not appointed by the Home Office, receive its approval. The amendment comes from a noble Lord whose position in the BBFC receives the approval of the Home Office.

I am concerned about the under-the-counter videos that have not been to the BBFC. So, in preparation for the Minister's reply, I wish to raise two issues which will enable us to focus on tightening up the procedures, so that something can be done about the problem.

Incidentally, I have now seen the correspondence sent to my noble friend Lady Fisher from the Home Office as well as that from the noble Viscount opposite and the Minister of State at the Home Office. At its worst, if I play nasty, narrow politics, I read the correspondence as saying, "Don't press your luck, lads, or we'll withdraw the Bill". In the best interpretation, what it really means is, "We wouldn't like to lose the Bill".

I have no desire to lose the Bill, but I wish to pursue the legal side and then give an explanation of what we might be able to do in the existing situation. I know that the amendment will not be pressed, so this intervention is in order to find out what goes on.

On the legal side—and I do not say this just because the Home Office staff are here—I always, in my periods both as a junior Minister and as Home Secretary, had regard for the legal department of the Home Office. I have not understood what the Government are up to. What the new clause proposes is to insert into the Video Recordings Act a new Clause 14B. Thus, where A's commission of an offence under Section 9 is due to the act or default of another person, B, the latter may be charged. In its letters to my noble friend, the Home Office said that such a bypass provision, though found in other legislation, simply would not work and could not operate. Then it explains.

There is no point in reading out what has been said and written, the Government do not believe that the Video Recordings Act defences can simply be said to mitigate the offence in relation to a particular defendant, leaving an offence to be passed back to someone else. In the view of the Home Office, if one of those defences can be established, there will be no offence at all and a bypass could not operate.

Thus there is no point in us pressing the amendment. Of course that is the view of the Home Office, but, if it is the true and right explanation of the law, there is no point in our pursuing it. However, pointing to the contrast between the wording of Section 24 of the Trade Descriptions Act 1968 and the wording of Section 24(3) of that Act, the Home Office argues that where an offence is established, an offence can still be treated as having been committed for the purposes of the bypass.

There is no point in my going right through the legal explanation, but in the letter to my noble friend Lady Fisher, the noble Viscount said that he saw the attraction of the amendment, but he did not think a bypass would work. The letter states: Instead I think we must expect a degree of co-ordination and co-operation between different departments, if necessary, including the financial transfers between authorities which are permitted under the Local Authorities (Goods and Services) Act 1970". The precise question I wish to put is this. All right, despite the legal advice given to the BBFC, the strong feelings of the noble Lord who introduced the amendment and of my noble friend Lady Fisher, myself and others, despite all that, we are wrong. But the letter from the noble Viscount says, "Don't worry, we can deal with the situation under the existing law, under the provisions of the local authorities Act".

How does that work? What do we say to the trading standards officers? What do we say—and this is the next point—in explanation to the magistrates' courts in different parts of the country? The Government say that the amendment will not work, therefore how can we carry out the paragraph in the letter sent to my noble friend Lady Fisher? It stated that under the existing law, by transfer financially and otherwise, something can be done about it.

If there is a proper answer to that, I shall sleep better in my bed tonight than I should otherwise have done. In other words, all that we are doing is a waste of time, but something can be done about it. What can be done about it under existing law? Through the Video Standards Council, I shall make sure that we get in touch with the trading standards officers and say, "This is what the Government say you can do, we don't need the amendment which has been sponsored". What can we do under the existing law?

Viscount Astor

My Lords, those of your Lordships who attended the earlier stages in the progress of the Bill will be familiar with the amendment. As the noble Lord, Lord Birkett, said, it was originally proposed by the noble Baroness, Lady Fisher. I have listened with great care to the arguments put forward today by the noble Lord, Lord Birkett, as I have listened to those put forward on previous occasions by the noble Baroness. I have also had the benefit of considering a detailed legal opinion which the noble Lord, Lord Birkett, kindly sent to me, about which I replied to him earlier this week. Today, the noble Lord sent me a further opinion based on the letter that I had sent to him. That too has been carefully considered today by the Government.

As I explained during the debate at Report stage of the Bill, the Government fully accept that the proponents of this change aim to achieve a more effective enforcement of the Video Recordings Act by the trading standards authorities. We all share that aim and all the provisions in the Bill have it as their objective.

Without wishing to get into a complicated legal debate, I am afraid that I must inform noble Lords that, having carefully considered the arguments put to us last week and again today, the Government have taken advice and have not been persuaded that a bypass provision would operate successfully in the context of the Video Recordings Act. We therefore believe that it would not produce the savings in local authority resources which supporters of the amendment had hoped for. In short, our view is still that the amendment would not only fail to achieve its desired results, but, because of the doubts which it could well cast on existing aspects of the Act, that its effect could be positively harmful—a result which I am sure noble Lords would wish to avoid.

The noble Lord, Lord Merlyn-Rees, asked me about local authorities. Perhaps I may start by reminding him that at Report stage I said that it was our view that, where there is an extended network of supply, the appropriate way of investigating is by means of close co-operation between differing trading standards authorities. Those local authorities have the power now to make any transfer of funds that they wish from one local authority to another. So if, for example, a trading standards officer in Birmingham discovers that there is a chain which leads back to some other city, but the trading standards officer in that city may for various reasons be swamped with work or is unable to deal with the problem, he can say: "This is important; we want to follow it up. It is important for our city. We will ask the local authority to give you the resources to follow it up. Those are the resources we would have spent in doing it ourselves".

I fully accept that that is not exactly what the noble Lord wants. He wants those trading standards authorities to be able, as it were, to follow that chain themselves. But we think it is important that the trading standards officers work and co-operate with each other. The trading standards officers know their own areas best—indeed they know them very well. Therefore they should be involved. So there is a way forward.

Baroness Fisher of Rednal

My Lords, perhaps I may intervene. I do not suggest that the trading standards authorities do not know. They have a very good electronic network, and offices all round the country know if scares of any description take place. Very often one authority takes a lead on the matter, with the support of all the others—but with the support of evidence, not money. I am not sure that in the dire circumstances in which local authorities find themselves, with cut-backs in funding, that they will pass any money over to another local authority. I am not sure that I would accept that as an argument so far as local authorities are concerned.

I was worried by the Minister's phrase, "positively harmful". I shall be glad if he can define the phrase when he returns to the Dispatch Box.

Viscount Astor

I was addressing the argument put to me by the noble Lord, Lord Merlyn-Rees, about resources. I accept that there could be some reluctance on the part of a local authority to do that. But, if the trading standards officer in that local authority chose to follow it up, there would be an implication for resources. We say that it need not necessarily cost that local authority any more money to achieving the route with the co-operation of the trading standards officer in another authority.

With regard to the point made by the noble Baroness, I made a point about a specific amendment and how that amendment was cast. I did not make a point in terms of the principle of what she wants to do. I think I explained quite fully, not only in the letter but at Report stage. I am sorry that the noble Baroness regards my letter as unkind. I fully accept that it was complicated. I felt it was important that the noble Baroness had a full reply setting out exactly why we felt that the amendment did not work.

Lord Merlyn-Rees

My Lords, again I am trying to be helpful in practice. Perhaps I may give an example. In Leeds, in my old constituency, Morley, there is the trading standards office. It has a lot of work to do in many fields. I know (as well as one can) the staff there. Let us suppose, to take a practical example, that they found that the distributor or the illicit manufacturer was in Birmingham. It would be possible, in terms of resources—they would be extra resources, it is true, but the resources would be there anyway, even under the amendment—for trading standards officers to go down to Birmingham and meet the authorities there, present the evidence they had and make sure that the evidence was there for the Birmingham TSO to present the case in the Birmingham court. It is possible, administratively, under the existing legislation for that to be done. That is correct.

Viscount Astor

My Lords, that is the point. Trading standards officers can co-operate with each other and pass any information on.

Lord Elton

My Lords, perhaps my noble friend will forgive me if I ask him a question—since he seeks to persuade us with that argument—which I would otherwise ask before he sat down. Can he tell us whether he is saying that it is possible to go beyond what the noble Lord, Lord Merlyn-Rees, described, and for the trading standards officer in the distant place to authorise money—which my noble friend seems to think that he would have—to be sent to the area in which the offence is taking place to pay for the work that would follow the prosecution to be done there. It seems to me that the shoe that pinches in Birmingham, if that is where the offence is committed, is the time of the trading standards officers. Not only is there unlikely to be money for the man in Cornwall to send a postal order to Birmingham, but the man in Birmingham has his diary full for the next 18 months and will not be able to do the work. How, under those circumstances, does what my noble friend says do anything to address the problem we are trying to solve?

Viscount Astor

My Lords, I address the problem of resources as opposed to time. I tried to explain that if, in the noble Lord's example, a trading standards officer in Leeds did not feel that he had the resources with which to follow up the complaint that had come from a trading standards officer in Birmingham, and if that trading standards officer in Birmingham felt it was an extremely important issue for Birmingham and for his particular area, the local authority could transfer funds so that it could go to the local authority in the other area and say: "We accept that you have a lot of work. Perhaps it is your area where these tapes are being made and then being distributed round the country. You have a lot of complaints coming in and it is a big issue. You are flooded with complaints and therefore we are happy to help you with the resources to deal with that problem". I am not entirely sure whether the trading standards officer could do that. If I understood him correctly, I agree with what the noble Lord said.

8 p.m.

Baroness Fisher of Rednal

My Lords., before the noble Viscount moves on from that point, perhaps I may repeat that it is not a matter of just going and making the seizures. It is a case of pursuing the case through the courts. That is a very expensive business. Counsel have to be employed and long procedures have to take place. It is not a matter of saying, "It's £20 or £25. Here you are. Here's the money for your officers." It is a matter of all the court cases, and one may lose the court case as well. I feel sure that Leeds would not then want to send the money down to Birmingham because it would be said, "You lost it, Tommy, and that's a bit of bad luck."

Viscount Astor

My Lords, the noble Baroness appears to imply that there is additional money involved. We are only talking about money that the trading standards department would have spent in its own area following the matter up. If the case is in another area, that other local authority will follow it up. It is not an extra burden. If it were in the area of the original trading standards officer, he would have the burden of expense in following it up. So the money is not additional from that point of view if it results in a satisfactory conclusion from a conviction.

I understand your Lordships' anxiety. I hope that I have been able to explain the Government's view and point out that there are possibilities. The trading standards officers are very concerned about the issue. We know that they co-operate very well with each other. As I said, we listened carefully and gave particularly careful consideration to this matter. We knew that your Lordships were worried about it. But the Government have to advise the House that after such careful consideration we cannot recommend acceptance of the amendment.

Lord Birkett

My Lords, I am deeply disappointed that the Government will not accept the amendment. As the noble Viscount said, we took very distinguished legal opinion on this matter. I accept that legal opinion. It says quite categorically that there will he no harm whatever in a bypass provision to the remainder of the Video Recordings Bill. It also states quite categorically—and I accept that opinion—that there is no reason why a standard bypass provision will not sit perfectly well with the Act. I have an immense weight of legal opinion which says that it will be perfectly possible.

But at the bottom of the amendment lies the fact that there is an evil, as the noble Viscount himself acknowledged. This would have been a simple way to cure it, but the Government will not take it.

One cannot describe the absence of a bypass power as a piece of deregulation, but I fear that it will have exactly that effect. We all know that deregulation is intended to help small traders, and so it has proved. I fear that it will prove so in this case. It will indeed immeasurably help the small traders. It is just a pity that the trade of which we are speaking is in pornography and sadism.

This was an opportunity missed. I am well aware that the timetable in another place will not make it sensible should we pass from this House to another place a Bill with controversy hanging from it and with opposition attaching to it. I am well aware of that. I believe that the rest of the Bill is important enough for the provisions to go through. However, in view of this sad, missed opportunity, I very much hope that the noble Viscount will say both to his noble friends and his right honourable friends that, if they care to utter opinions about violence on video and violence on television, they will have a very hollow ring. I shall expect no more words on the subject. More in sorrow than in anger, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Birkett

My Lords, I beg to move that this Bill do now pass.

It is only fair for me to tell your Lordships that, despite the rather uncomfortable things that I have had to say to the Government, I owe a debt to the Home Office and its officials for very courteous and full treatment throughout the passage of the Bill. They have been immensely helpful to me. Although I disagree profoundly with the noble Viscount on the last amendment, he has conducted the Bill with his usual impeccable courtesy. I am obliged to him as I am to all noble Lords who have striven so hard for this measure. I beg to move.

Moved, that the Bill do now pass.—(Lord Birkett.)

Viscount Astor

My Lords, I should like to congratulate the noble Lord, Lord Birkett, on successfully taking this short but important Bill through your Lordships' House. Other noble Lords have made valuable contributions at each stage of the Bill's progress and in particular the noble Lords, Lord Merlyn-Rees and Lord McIntosh of Haringey, my noble friend Lord Elton and the noble Baroness, Lady Fisher.

The Government recognise that all the amendments that have been suggested have been put forward with one overriding aim in mind, which they share with all the provisions of the Bill; namely, the objective of improving the enforcement of the controls which Parliament rightly saw fit to establish in the Video Recordings Act 1984 and which have contributed much to the success that the video industry now enjoys. We appreciate the value of all those suggestions, even when we found ourselves unable to support them. I must point out to the noble Lord, Lord Birkett, with great respect that our advice was different from that given to him. He will understand that even on his Benches the noble and learned Lords do not always agree with each other.

We accepted the amendment suggested by the noble Lord, Lord Merlyn-Rees and the noble Lord, Lord Birkett, to include in the Bill a "due diligence" defence. I am sorry that we were unable to accommodate the amendment of the noble Baroness, Lady Fisher, however much we sympathised with her laudable intentions. I hope that I explained the very good reasons why that was not possible.

The Bill has been welcomed on all sides of your Lordships' House. I commend it to your Lordships and I am glad that noble Lords have given it the Third Reading requested by the noble Lord, Lord Birkett. We wish it well in another place.

Lord Graham of Edmonton

My Lords, I speak in the absence of my noble friend Lord McIntosh who, in essence, would want me to echo the words of the Minister. Noble Lords who participated in the Bill are well experienced in the parliamentary realities. The words of the noble Lord, Lord Birkett, were very profound; namely, that it is better to have a Bill that makes progress than to insist in this House on spatchcocking into it a provision which would virtually sound the death knell of the Bill in another place. He was exceedingly wise.

The whole tenor of the debate has been to recognise that good legislation has on occasion appeared to have been brought into disrepute by the activities of an unsavoury sector of a fraternity. The noble Lord, Lord Birkett, with the assistance of my noble friends Lady Fisher and Lord Merlyn-Rees, sought to make some progress toward trying to obliterate some evils. We very much hope that the noble Lord, Lord Birkett, can be assured that the words of the Minister indicate that his Front Benches would not seek to impede the Bill as it stands at the moment. The noble Lord, Lord Birkett, cannot expect more than that. It may not remedy all the ills that have been brought to the house but it certainly goes some way toward doing so.

The Government have been very fair in their treatment of the noble Lord, Lord Birkett, and my noble friends. From this Front Bench I appreciate what the Minister said and incidentally what the noble Lord, Lord Birkett, has done.

Lord Birkett

I am much obliged to the noble Viscount and to your Lordships. I hope that the House will now see fit to let the Bill pass.

On Question, Bill passed and sent to the Commons.