Video Recordings Act 1984 (Exempted Video Works) Regulations 2014

Lord Stevenson of Balmacara Excerpts

Monday 28th July 2014 Grand Committee

[Lord Clement-Jones (LD)]

My Lords, I thank my noble friend for his introduction to the regulations. Over the past 30 years, the Video Recordings Act 1984 has certainly attracted parliamentary debate on a number of occasions. As noble Lords will recall, the Act had to be revived by a special Act in 2010 because of the then Government failing to notify the European Commission of the classification and labelling requirements of the Act.

I welcome these regulations but want to reflect briefly on the process by which they came about. Many of us present today were assured during the passage of the Digital Economy Bill that the situation of exempted works which contained unsuitable material would be dealt with by amendments to the Act. Indeed, we withdrew amendments on the basis that that would happen. Then the coalition Government came in and I asked an Oral Question about progress in March 2011, but it was made clear that the consultation had still not begun. Lack of an evidence base was cited as the reason.

In June 2013, my noble friend Lord Storey pursued the matter further in an Oral Question. The consultation had, it seemed, been completed and the intention to legislate had been recently announced but my noble friend Lord Gardiner said that definitions were still being formulated for violent sexual behaviour and swearing,

“so as to ensure that they identify all products that are unsuitable for younger children”.—[Official Report, 12/06/13; col. 1596.]

Finally, four and a half years after the passing of the Digital Economy Act, these regulations, which amend the 1984 Act, see the light of day. As I say, I warmly welcome the regulations, and the fact that they will fall within the BBFC classification regime, but how can we account for this snail’s pace of legislation when faced with such an important issue? How can we learn the lessons? Moreover, where are we with the original Digital Economy Act changes to the VRA regarding video games? Is it the case that certain sections still remain to be activated and amendments made? That certainly seems to be the case. If that is so, why?

My noble friend mentioned the online situation but, of course, that is on a voluntary basis. Will my noble friend explain the corresponding regimes that apply to videos and video games on the internet? I asked my noble friend Lord Gardiner a Question on this in March this year. Surely, is it not as important that online content is addressed, as physical product is under the VRA? Under voluntary arrangements, mobile operators are offering better protection and filtering against unsuitable content than wi-fi service providers. Is the DCMS capable of addressing this issue at any speed? How long must we wait before the Government review the situation? Can we not speed up the process and learn the lessons of the past?

[Lord Stevenson of Balmacara (Lab)]

My Lords, this has been a very interesting and important debate, although a relatively brief one. Many important points have been made to which I am sure the Minister will respond.

I broadly welcome the direction of travel represented by these regulations but have some questions and reservations which I am afraid are slightly at variance to those we have heard already. I worry a lot about restrictions being introduced on another creative activity even though I understand the dangers that may be exposed by that, but it is important that we bear that in mind.

First, we are exercising censorship of what may appear in front of people who wish to buy it, albeit it is obviously a restricted class, through a private company—the BBFC. I am not sure that we quite understand what the relationship between the BBFC and the Government is at the moment. It has changed a lot in the last 20 or 30 years since I was last involved in it. If the Minister has the information to hand, will he reflect on such matters as whether there is a formal memorandum between the Government and the BBFC in terms of their operations? Will the Government exercise control over the appointment of its board and other related matters? It is important to have that in context so that we understand the impact that these regulations may have. I have a general concern that the Government should not expropriate functions and responsibilities which should be exercised through Parliament to private corporations without providing serious reasons and explanations.

Of course, noble Lords will recollect that the 1984 Act was passed at a time of particular concern about videos. I think that the term “video nasty” was widely used. The regulations that were brought out were perhaps a reaction and, in some senses, account for why the BBFC is in its present form. However, times have moved on. As I will come to in a few minutes—and as referred to by other speakers—we have to be sure that what is being proposed now has a fitness and longevity that will be appropriate for the fast-changing nature of the technology which it is attempting to arrange.

I was glad to hear that the Government will be reviewing these regulations within three years. As the Minister said, that is a good thing, although a number of the points and questions raised by noble Lords already suggest that some of the issues are more important and might need more attention before then.

My first point, therefore, is about the status of the body that is being entrusted with the regulations that we are considering. My second point concerns the question of format. We are talking about video material in physical form. The impact, perversely, is largely on the purchasing decisions of people who are under 12, given that that, to a large extent, is the focus of the regulations. My personal view is that a very small number of citizens of this country who are 12 or under are going to be purchasing the videos we are talking about. I am interested to know whether the Minister has any figures relating to the likely impact on the market. If it is anything like what happens in my household, these children are much more adept at the virtual world and will be seeking out the information they wish and the material they want to watch in a non-physical form. We have talked about that issue; we still lack any real, credible strategy in relation to it. This particular set of regulations, although long promised and arriving at an interesting time, is in fact missing the boat in relation to where the majority of the viewing public are going to be—certainly those under 12.

My third point concerns the question that has been raised to some extent by the problem of the wording of the regulations, which seek in a curious way to specify the carve-out, not by putting down a simple principle about what would and would not be considered, but by listing in exhaustive detail the sort of things that would create a break across the various guidelines.

In its briefing for this meeting, the BBFC made it very clear that it was concerned that there was no blanket requirement that all video in physical form should be subject to BBFC review. It has a point and I would be interested to know on what basis the Minister has decided—I think I am right, but, again, I would be grateful if the Minister could confirm it—that the onus for submitting material to be classified will still lie with the producers of the material. Therefore it is possible that those who are producing material that perhaps is veering towards the boundary of the 12 certificate may take a view that the material does not fall within the new, enlarged carve-out. Would that constitute a defence in any court proceedings that might be brought forward as a result? The guidelines are only guidelines. The discrepancy between what the BBFC is saying and doing in practice and what is now going to be in the regulations in paragraphs (a) to (o) is going be a problem, not least because the BBFC—rightly so, although the timescale is slower than I would have liked—tries to keep in touch with the views of the public it is serving by carrying out triennial surveys and consultation with people about whether the guidelines it is currently using need to change and, if so, to what extent.

The regulations contain a set of statements, some of which, as has been said, seem to be rather loosely drafted. The noble Baroness raised the question of religion, but some of the drafting concerning sex and violence is equally culpable. Yet we will also have, by the time these regulations are in mid-flow, a new set of guidelines from the BBFC about where it thinks the boundaries of the 12 certificate are going to be. Can the Minister explain how we are going to reconcile that change?

It is perhaps not as important an issue in reducing the threshold from 18 and R18 to 12, but it is well known in the world of classification that, in Britain, we have an obsession with language, which is in stark contrast with, for example, the Nordic countries, which have a very different view of these matters. We are relatively relaxed about physical violence and a bit squeamish about explicit sexual activity, including sexual violence. It is almost the reverse situation in the Nordic countries. A lot of this will lie in education. The real remedy to this issue is making sure that parents take responsibility for what their children see and understand, and talk to them about what they do. To take examples from the list (a) to (o), how on earth are people to judge whether something includes,

“words or images intended or likely to convey a sexual message (ignoring words or images depicting any mild sexual behaviour)”—

a point picked up by the noble Baroness, Lady Howe? How are they to judge whether it affects,

“an animal that exists or has existed in real life”?

How far back do we want to go? The same goes for whether a human is being represented in proper description or in matchstick format. These can be very trivial or very difficult matters and should not take us away from the importance of making sure that children are not unreasonably exposed to images that they should not receive. On the other hand, I think that there are ways of doing it. It might have been better if the approach taken had been to try to work with what the BBFC has published as its principal guidelines without attempting to define them in a way that is bound to cause trouble.

Those were my three points, but as I said at the start of my speech, I am not against the direction of travel. I shall look forward to hearing the Minister’s response.

[Lord Bates]

My Lords, I am grateful for noble Lords’ comments and questions. Once again, we find an instrument that drifted through the other place with the mildest breeze of comment and scrutiny coming up against the deeply entrenched expertise that your Lordships’ Committee has shown today. I counted some 16 specific questions that noble Lords asked me to address. I shall do my best to do that, but I suspect that I will need to write, because a considered reflection might be useful and a fair response to the legitimate concerns that have been raised here today.

Let me go through as many of the points as I can, so that we might get at least some comments on the record. As I say, I shall write to noble Lords and expand on them. The noble Lord, Lord Stevenson, asked whether distributors would understand the definitions well enough in deciding whether to submit a product to the BBFC. The definitions are fairly detailed. Terms such as “mild” are long-standing features of the BBFC’s classification guidelines and are familiar to many video distributors and consumers. To help further understanding, the BBFC is preparing new guidelines specifically for industry, which will include clips from previously classified films to illustrate how definitions might be interpreted.

On the nature of the relationship between the Government and the BBFC, the BBFC is designated by the Secretary of State to classify video works. It is an independent body, but it is required to make an annual report to Parliament. Many noble Lords have welcomed the review after the regulations have operated for three years as being a sensible way forward, so that we might see from day-to-day experience whether fears are borne out in practice. Corrective action can be taken at that point.

Under the regulations, music, sport and education-related themed products will lose their exemption. This was the area that many noble Lords focused on. The latest guidelines issued by the British Board of Film Classification were produced after a major consultation exercise involving over 10,000 people. The listing, categorising and wording reflect what came forward from the consultation process.