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I am always delighted to be involved in debates in which the hon. Gentleman has participated. I confess that it came as a complete surprise to hear that this was
his maiden Second Reading speech as a shadow Minister. He seems to have been in his place as a shadow Minister for so long; it demonstrates how scarce is the legislation on matters within the portfolio of the Department for Culture, Media and Sport. Had we been allowed, many of us would have liked to see legislation such as the Heritage Protection Bill, which would have given him an earlier outing on his party's Front Bench.
The hon. Gentleman occupied the crease for 36 minutes, during which he did a great deal, rightly, to praise the British Board of Film Classification for its work. However, he failed to praise it also for its work in speech writing-I recognised quite a large chunk of his speech from the excellent briefing notes that the organisation provided to all hon. Members likely to be taking part in the debate. However, he raised some important points, and I do not wish to repeat many of them, given that he occupied the crease for so long. We know why we are here and we know what the problem is.
As the right hon. Gentleman said, the Minister was generous in not seeking to gain party political advantage on where the error occurred, whether in 1984, in 1993 when the first revisions took place, or in 1994 when the second revisions took place. One might have expected the concern now discovered-about the provisions not having been reported to the European Union-to have been discovered at that time. Nevertheless, let us praise the current civil servants in the Minister's Department for finding the problem and helping the Minister and his predecessor to find a way to deal with it swiftly.
Swiftness is the essence of why we are here today. It is vital that we get back on to the statute book, as quickly as possible, legislation that provides protection against the sale of inappropriate material to children, and counters the ability of people to sell pirate DVDs and so on. We have all made it clear that we are keen to support the Minister in his desire to fast-track the legislation back on to the statute book and then, if there is sufficient time-I am increasingly concerned about that-to make subsequent amendments to it in light of, for instance, the introduction of the PEGI system for video games. There is support for that on both sides of the House.
Reference has been made to the case for amending the Video Recordings Act itself, something that we could have done today. It might have delayed proceedings, but it could have been an option. The hon. Member for Wantage made a point about some of his party's proposals for changes to the legislation. I would like an assurance that the issues raised will be dealt with in the Digital Economy Bill, so that there will not be a need to amend the Bill that is before us.
I share the concern expressed by the current shadow Secretary of State for Culture, Media and Sport, the hon. Member for South-West Surrey (Mr. Hunt), about DVDs and videos relating to sport, religion and music that do not carry ratings but which often contain material that many of us would think inappropriate, in particular for sale to young people. Such videos include self-mutilation, erotic dancing, sex toys, drug use and so on.
The Minister's officials have made clear a point that was not picked up by the hon. Member for Wantage. They have said:
"Music, sports or religious videos lose their exemption from classification if they depict sexual activity, mutilation, gross violence or other practices likely to cause offence,"
and that in those circumstances,
"it is for the appropriate enforcement authorities to take action."
The implication is that there is no need for an amendment, because other bits of legislation could be used to prosecute people distributing such material. I would be grateful if the Minister could clarify that issue, because it is one that those in probably all parts of the House want to be resolved. My concern is to find out the means by which it is going to be resolved, or whether the Minister believes, as his officials appear to be saying, that there is no problem and that action can be taken under existing legislation.
I will not dwell on my second point for any length of time, because it has already been raised by the right hon. Gentleman and the hon. Member for Shipley (Philip Davies), who is no longer in his place, despite the fact that the race meeting to which he was hoping to go today has been cancelled because of bad weather. The hon. Gentleman rightly raised the issue of the degree of complacency-I choose my words carefully-that the Minister appears to have about people who have already been prosecuted under the Video Recordings Act 1984, which we now understand was not correctly enforced.
The Minister seemed to imply that the reason why he had been advised that there would be no redress was that people would be too late to make an appeal. However, as the right hon. Gentleman made clear-I think that the hon. Member for Wantage made a similar point-if the legislation was never enforced correctly, we are not talking about an appeal; rather, I suspect that we are talking about a very different legal process. Others have asked, and I, too, would be grateful if the Minister could give us clearer assurances about why he and his officials are correct in this matter.
Keith Vaz: If the law is logical-the Minister will know more than we do about that, because he will have consulted the Attorney-General-and there was, in effect, no conviction because there was no proper legislation, the money from any fines would have to be handed back. If anyone received more than a fine-I am not sure what the penalties are-there would have to be additional compensation.
Mr. Foster: The right hon. Gentleman makes a compelling point. Indeed, I noticed some months ago that he was reported in one newspaper as saying that
"if the act has never been brought into force, prosecutions under it are void. You cannot prosecute someone and convict them on the basis of legislation that has never been in force".
That seems very compelling indeed. I confess that I have so far heard nothing from the Minister to assure me that the right hon. Gentleman, with his great experience as Chairman of the Select Committee on Home Affairs, is wrong.
Mr. Vaizey: The right hon. Gentleman is also a distinguished lawyer.
Mr. Foster: The right hon. Gentleman is distinguished in many regards, but we will leave it to the equally distinguished, relatively new Minister to come up with an answer to those questions.
I want to pick up a point that I mentioned in an intervention and to take it a stage further. As I have said, the Minister rightly praised the many responsible retailers and producers who have continued to behave as if the 1984 Act were still in force. I add my congratulations to them. However, he also pointed out that there are some problems developing. The first, which I mentioned earlier, is that the number of firms seeking classification has fallen dramatically. Year on year to September last year, the reduction was 11 per cent., bearing in mind that for most of the year it was assumed that the 1984 Act was in force. It is therefore not surprising that by October the figure was 20 per cent. or that by the middle of November it was 38 per cent. There was therefore a significant reduction in the number of people who wanted their material classified.
Mr. Vaizey: Is the hon. Gentleman reading from the BBFC briefing?
Mr. Foster: Indeed, and I am grateful to the hon. Gentleman, because when he made that very point earlier, I looked at the briefing and intervened on him. He is absolutely right.
The other point, which has not been touched on so far, is that as I understand it-from the same, excellent brief from the BBFC-a number of councils and their trading standards officers are being pursued through the courts for carrying out what they thought in good faith were statutory obligations under the VRA. Clearly they were wrong: if the VRA was not in force and they were seeking to prosecute people for breaches of a non-existent Act, one can understand that those people might be aggrieved and seek redress from them. My question for the Minister, therefore, is, what assistance are the Government providing to local authorities in that position?
The third point that has already been touched on-again, by the Minister and others-is about the large and growing number of examples of places around the country where breaches, as they would have been if the law had been in force, of the VRA are taking place. The Minister cited Bournemouth, Conwy and Milton Keynes, while the hon. Member for Wantage referred to a number of other places. In Cheltenham, for example, law enforcement officers cannot pursue a newsagent selling R18 and unrated porn DVDs that are displayed above an ice cream display cabinet. In Manchester, trading standards officers have dropped three VRA cases involving 3,000 videos.
However, there are two examples that I want to draw to the Minister's attention in particular. The first is from Powys, where trading standards officers are unable to pursue seven cases of under-age video games sales. The other example is from Brent, where trading standards officers are unable to prosecute three high street stores for selling age-restricted video games to children. In both cases, as the right hon. Gentleman said, we are particularly concerned about the sale of inappropriate material to under-age young people.
Where those prosecutions have been dropped, I wonder whether the Department has taken note of its own explanatory notes, which point out that, even with the 1984 Act no longer on the statute book, there are other bits of legislation, such as the Obscene Publications Act 1959, that in certain circumstances could be used in
respect of the sale of material to under-age people. Being interested in that point, I looked at the equally excellent briefing produced by the Library. In paragraph 2.2 of that briefing, the Minister will find the following reference to how the 1959 Act might be used in such circumstances:
"The 1959 Act proscribes the distribution, circulation, sale, the giving or loan of obscene material. A point to make here is that at least some successful prosecutions under the 1984 Act could well have been made under the 1959 Act: pornographic material that might be legally supplied to an adult could be obscene if given to a child."
The briefing then quotes the case law on that issue, but my question is, given that there are, and will continue to be, outstanding cases where prosecutions could not now be taken forward under the re-established VRA, will the Department seek to provide support to those local authorities concerned, to see whether they could use other bits of existing legislation on the statue book to help bring prosecutions against those who have sought to abuse the loophole created by the error made back in 1984?
I made it clear-I repeat the point now-that the Minister is absolutely right to get the Bill on to the statute book as quickly as possible, in order to return the protection that the VRA brings and enable the BBFC and all the enforcement authorities to continue their excellent work to date. For that reason, we give the Minister our full support and hope that we get the Bill through quickly today.
2.19 pm
Mr. John Whittingdale (Maldon and East Chelmsford) (Con): It is a pleasure to follow all four previous speakers in what has been a remarkably harmonious debate. I do not intend to change that. This is an important measure, and I welcome the fact that the Government have moved so swiftly to close the loophole that has been identified. I will not dwell on how it came about, but I merely observe that the Government are very fond of blaming almost every ill in society on the actions of the previous Government, and this is one of the very few examples where there may be some merit in that claim.
I hope that the Minister will address the questions raised by the previous speakers about the consequences of the loophole, because I share their concern about the status of those who have been convicted over the course of the past 25 years and the possibility of their bringing actions for what now appear to have been unlawful convictions. I hope that he will spend a little more time on that subject when he responds.
I wish to make a few observations about the Video Recordings Act 1984. I always approach any such legislation with some suspicion, as I am fundamentally opposed to censorship. I believe that in a free society it is up to adults to choose what they wish to see, but there are two important qualifications to that. The first is that there will always be some material that is so unacceptable in its violent or explicitly sexual content that it is deemed to be damaging to people to view it. I accept that, and some examples have been given in the debate.
I shall return to that matter, but perhaps more important is the fact that while adults are free to choose, we have always accepted that children require protection. I join right hon. and hon. Members in paying tribute to the work of the BBFC. It is in the area of age classification
that some of the most difficult decisions have to be taken. The film that required perhaps more cuts than any other, some time ago now, was "Teenage Mutant Ninja Turtles", because the distributor was keen that it should be given a certificate that meant children were able to see it. The BBFC felt that it contained inappropriate material, and there was lengthy negotiation. A lot of the controversy about films such as "The Dark Knight" and "Casino Royale" is about whether they should appropriately be 12 or 15.
The virtue of the 1984 Act was that it extended that protection, which already existed in cinemas, to viewing in the home. The Minister gave the statistics on the extent to which viewing in the home has taken off in the past 20 years. When the Act was originally introduced back in 1984, it was accompanied by a degree of what one can only call hysteria about video nasties, and it is worth reflecting on what has happened to some of the most notorious examples of films that were widely cited at that time.
The then Minister, Mr. David Mellor, named three films in the course of the debate. The first was "The Driller Killer", which was banned after the passage of the 1984 Act but then released uncut in 2002, and last night I checked and found that it is available on Amazon for £3.98. The second was "Zombie Flesh Eaters". That, too, was banned under the Act but then released uncut in 2005 and can now be found on Amazon at £5.98. The third was "I Spit On Your Grave", which was also on the list of prosecutable movies until 2001 but was then released, although with substantial cuts made by the BBFC, and is now widely available. Perhaps the most remarkable example is a film that was on the Director of Public Prosecutions' list of films that were banned, Sam Raimi's "The Evil Dead", which at the time was regarded as wholly unacceptable but, indicating how tastes change, two years ago was given away free with copies of The Sun as a promotional move.
There is no question but that tastes change and we have become more liberal, which I welcome. However, as I said, there will always be films that go beyond what is generally regarded as acceptable. The Minister mentioned one particular film, "Grotesque". Two films were banned by the BBFC in 2008. The first was "Murder-Set-Pieces", described as having scenes in which
"a psychopathic sexual serial killer...is seen raping, torturing and murdering his victims".
The second has the unlikely title of "The Texas Vibrator Massacre"-I leave its contents to the imagination of hon. Members. I shall return to those two films in a moment.
My hon. Friend the Member for Wantage (Mr. Vaizey) made the important point that there are loopholes in the existing legislation, which existed for good reasons at the time. It was not regarded as possible that a video concerning music or sport could be unacceptable. That loophole has undoubtedly been exploited. I hosted a dinner that the BBFC gave in the House just before Christmas, at which it showed us examples of some of the material that is now available in music videos and sports games that does not require certification because of the loophole in the 1984 Act. I understand why the Government did not feel able to address that matter in the Bill, but I share the wish that has been expressed that the loophole should be closed, and I hope that it will be in the Digital Economy Bill.
The second main point that I wish to make is that at the time of the passage of the 1984 Act, the world was completely different. Mr. Graham Bright, the Member who moved Second Reading, said that he defined a video recording as
"a video tape or video disc. It is thus a physical product."-[ Official Report, 11 November 1983; Vol. 48, c. 525.]
Of course, it is now not necessarily a physical product. More and more video is being made available through online distribution, which at the time perhaps could not even have been conceived. We are seeking to address that through moves such as those by the BBFC to impose a voluntary system of regulation, but the films that we are concerned about are now very widely available. I return to the two that I mentioned, "Murder-Set-Pieces" and "The Texas Vibrator Massacre". I checked last night and found that both those films are widely available through file sharing sites. An internet search for either with the words "download" or "bit torrent" will bring up any number of sites from which one can obtain them. Equally, they are available through cyberlockers. Both are on Megaupload and RapidShare and can be accessed without any attempt to verify the age of the person downloading them. There is serious concern about how we can continue to protect young people when it is now so easy to obtain such films.
We will debate the matter at greater length when we come to the measures against piracy through illegal file sharing that the Government are proposing to take in the Digital Economy Bill. It is worth remembering that it is not just protection of copyright that is at stake when we consider file sharing. There is equally the concern that it is being used to circumvent the protections that the House has put in place. In the most extreme cases, as I am sure the Minister will be aware, child pornography is being widely distributed through illegal file sharing. That is another reason why I share with other hon. Members the view that it is important that we get the Digital Economy Bill on to the statute book.
Having said that, I agree with the Minister that the majority of distribution of video content will still be through physical product for the foreseeable future, so it is certainly important that the Bill should be passed today and that we should reinstate the protections that we thought were already in place. However, there is a danger that we will be seen to be bolting the front door when the back door is wide open, and we will have to consider that in future.
That leads me to the more general conclusion that I suspect that there is nothing that this House can do to legislate to prevent the distribution of material online from sites that may be located on the other side of the world. When we consider what it is appropriate for people to view, we must remember that that is a matter for adults to decide. The most effective means that we can have to protect children is for parents to exercise responsibility, watch carefully what their children are doing and ensure that they are not obtaining access to content that could be damaging to them. I support the Bill, but I fear that it is beginning to look increasingly old-fashioned and outmoded given the extraordinary pace of development throughout the video sector.
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