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|Video Recordings Bill|
1. These Explanatory Notes relate to the Video Recordings Bill as brought from the House of Commons on 7th January 2010. They have been prepared by the Department for Culture, Media and Sport in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The Notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
BACKGROUND AND SUMMARY
3. The purpose of the Bill is to secure the enforceability of provisions of the Video Recordings Act 1984 (c.39) (the 1984 Act). Certain provisions of the 1984 Act should have been notified in draft to the European Commission before the Act was passed in 1984 in accordance with Council Directive 83/189/EEC 1 of 28 March 1983 (the Technical Standards Directive). Failure to notify provisions in accordance with the Technical Standards Directive has the effect that the provisions are not enforceable against individuals 2.
1 As amended by Council Directive 88/182/EEC of 22 March 1998 and by Directive 94/10/EEC of the European Parliament and of the Council of 23 March 1994, codified by Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998, and amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 2006.
2 Paragraph 54, CIA Security International SA v Signalson SA and Securital SPRL, ECJ Case C-194/94.
4. The Technical Standards Directive requires that, where a member state wishes to impose a technical regulation, for example by making legislation relating to compulsory requirements as to the size, packaging or labelling of a product, it must send a draft of the regulation to the European Commission and other member states and, except in urgent cases, wait for a period of three months before adopting the regulation. The purpose of this is to enable the European Commission and other member states to comment on the draft technical requirements if they are concerned that the requirements will act as a barrier to Community
trade. Depending on the nature of any comments made by other member states or the European Commission, the waiting period of three months may be extended to a period of up to 18 months.
5. Sections 1 to 17, 19, 21 and 22 of the 1984 Act were notified to the European Commission on 10 September 2009. The three month waiting period required by the Technical Standards Directive expired on 11 December 2009. The Bill will provide for those provisions to cease to be in force and then immediately to come into force again.
6. Copies of the provisions of the 1984 Act notified to the European Commission under the Technical Standards Directive have been placed in the Vote Office of the House of Commons and the Printed Paper Office of the House of Lords. In addition, copies may be obtained from the DCMS website - - and from the Department for Culture, Media and Sport, 2-4 Cockspur Street, London, SW1Y 5DH (contact: Stephen Hodgson).
7. The Schedule to the Bill contains transitional provisions that are intended to secure that, apart from making the provisions of the 1984 Act enforceable, the repeal and revival of the provisions does not change their effect or the effect of other enactments, instruments or documents that refer to them.
TERRITORIAL EXTENT AND APPLICATION
8. The Bill extends to England and Wales, Scotland and Northern Ireland. The subject-matter of the 1984 Act is a transferred matter in Northern Ireland. The consent of the Northern Ireland Assembly to the Bill is being sought.
9. There is no effect on the Welsh Ministers or the National Assembly for Wales and no other particular effect on Wales.
10. The Bill does not contain any provisions falling within the terms of the Sewel Convention.
11. The Government intend to ask Parliament to expedite the parliamentary progress of this Bill. In their report on Fast-track Legislation: Constitutional Implications and Safeguards 3, the House of Lords Select Committee on the Constitution recommended 4 that where a Bill is to be fast-tracked, Parliament should be provided with the following information.
3 House of Lords Select Committee on the Constitution, 15th report of Session 2008-09, HL Paper 116-I.
4 Paragraph 186 of the report.
Why is fast-tracking necessary? What is the justification for fast-tracking each element of the Bill?
12. The Bill has only one purpose, which is to secure the enforceability of provisions which have been on the statute book since 1984. It is necessary to fast-track the Bill in order to restore the protection provided to the public by the 1984 Act as quickly as possible after the end of the waiting period under the Technical Standards Directive. Prosecutions under the 1984 Act have been suspended pending the repeal and revival of the provisions of the 1984 Act.
What efforts have been made to ensure the amount of time made available for parliamentary scrutiny has been maximised?
13. The Bill was introduced in the House of Commons on 15 December 2009, shortly after the expiry of the waiting period under the Technical Standards Directive.
14. The provisions of the 1984 Act to be repealed and revived were subject to parliamentary scrutiny when the 1984 Act was originally passed and on the amendment of that Act, in particular by the Video Recordings Act 1993 and the Criminal Justice and Public Order Act 1994.
To what extent have interested parties and outside groups been given an opportunity to influence the policy proposal?
15. The purpose of the Bill is to secure the enforceability of provisions of the 1984 Act. The Government have taken views on this from the classification authority under the 1984 Act (the British Board of Film Classification), from prosecuting authorities and from representatives of manufacturers and suppliers of DVDs. In addition, the issue regarding the failure to notify the 1984 Act under the Technical Standards Directive has received wide publicity since August 2009 and this has given a range of outside groups an opportunity to express their views to the Government.
Does the Bill include a sunset clause (as well as any appropriate renewal procedure)? If not, why do the Government judge that their inclusion is not appropriate?
16. The Government consider that the use of a sunset clause or renewal procedures is inappropriate for this Bill. This is because the sole purpose of the Bill is to secure the enforceability of provisions which are already on the statute book. The Bill does not make changes to the legislative regime contained in the 1984 Act.
Are mechanisms for effective post-legislative scrutiny and review in place? If not, why do the Government judge that their inclusion is not appropriate?
17. For the reasons given above, the Government consider that post-legislative scrutiny and review is not appropriate for this Bill.
Has an assessment been made as to whether existing legislation is sufficient to deal with any or all of the issues in question?
18. The Government have assessed the extent to which other existing legislation may be used to prosecute acts which would constitute offences under the 1984 Act. Depending on the circumstances of the particular case, prosecutions may be possible under provisions of other legislation such as the Obscene Publications Act 1959, the Protection of Children Act 1978 or the Criminal Justice Act 1988. The Government consider, however, that there is a considerable gap between the protection offered by the provisions of the 1984 Act and that potentially offered by other existing legislation. In addition, there is no other existing legislation that imposes a classification requirement in order to control the supply of video recordings in the UK.
Have relevant parliamentary committees been given the opportunity to scrutinise the legislation?
19. The Government has submitted a memorandum to the Joint Committee on Human Rights. In addition a letter has been sent to the Chairman of the House of Lords Select Committee on the Constitution. The Bill does not contain any delegated powers and the House of Lords Delegated Powers and Regulatory Reform Committee has confirmed that it does not require a memorandum relating to the delegated powers under the 1984 Act 5.
20. The Government has written to the Chairman of the House of Commons Culture, Media and Sport Select Committee.
COMMENTARY ON CLAUSES
Section 1: Repeal and revival of provisions of the Video Recordings Act 1984
21. Subsection (1) provides for sections 1 to 17, 19, 21 and 22 of the 1984 Act to cease to be in force and, having been notified to the European Commission in accordance with the Technical Standards Directive, immediately to come into force again.
22. Sections 1 to 17, 19, 21 and 22, which together make up the main provisions of the 1984 Act, provide for a system of age classification for video works, such as a film stored on DVD, in the UK. The purpose is to prohibit the supply of video works, particularly those with sexual or violent content, to persons below certain ages, and to prohibit generally the supply of unclassified video works. Sections 1 to 3 of the 1984 Act define key terms and exemptions. Sections 4 to 6 relate to the role of the classification authority (the British Board of Film Classification (BBFC) has been designated in this role). Sections 7 and 8 relate to classification certificates and labelling requirements. Sections 9 to 15 contain offences relating to the supply of video recordings in breach of classification and labelling requirements. Section 16 relates to offences by corporate bodies. Section 16A provides for enforcement by local weights and measures authorities, and sections 16B to 16D provide for the extension of jurisdiction of magistrates courts, sheriffs and magistrates courts in Northern Ireland in linked cases. Section 17 provides for powers of entry, search and seizure in relation to suspected offences under the Act. Section 19 provides for evidence relating to classification of a video work to be given by certificate. Section 21 provides for forfeiture of video recordings following conviction under the Act. Sections 18 and 20 have been repealed by earlier legislation.
Schedule: Transitional Provision
23. Paragraph 2(1) makes it clear that references to the 1984 Act in enactments, instruments and documents will not be affected by the repeal and revival of the provisions of that Act by the Bill. For example, the Criminal Justice and Police Act 2001 (c.16) (sections 50 to 55 and Schedule 1) refers to section 17(2) of the 1984 Act (in order to extend and modify the power of search and seizure under that section). Paragraph 2(1) ensures that this reference remains unaffected by the repeal and revival.
24. Paragraph 2(2)(a) provides that existing references to Acts passed before a particular date, or in a particular Session, that include the 1984 Act will not be affected by the repeal and revival of that Act effected by the Bill. For example, sections 281 and 282 of the Criminal Justice Act 2003 (c.44) extend the maximum term of imprisonment on summary conviction for certain offences in relevant enactments. Relevant enactments are defined as Acts passed, or subordinate legislation made, before or in the same Session as the Criminal Justice Act 2003. This includes the 1984 Act. Paragraph 2(2)(a) ensures that, in this example, the repeal and revival of the 1984 Act does not affect its being regarded as a relevant enactment.
25. Paragraph 2(2)(b) makes similar provision in relation to existing powers that are exercisable in relation to Acts passed before a particular date, or in a particular Session. For example, section 9(7) of the Administration of Justice Act 1985 (c.61) gives the Lord Chancellor the power to modify Acts passed before or in the same Session as the Legal Services Act 2007 (c.29). Section 19(5) of the 1984 Act has been modified by this power. Paragraph 2(2)(b) ensures that this type of modification is not affected by the repeal and revival of the 1984 Act.
26. Paragraph 3 makes it clear that the Bill does not affect the validity of certain things done under provisions of the 1984 Act prior to their repeal and revival. For example, the BBFC will continue to be the designated authority for the purposes of the 1984 Act and classification certificates issued by the BBFC will continue to be valid. Paragraph 3(3) provides that the Bill does not affect the date on which any of those things are treated as having been done.
27. Paragraph 4 relates to sections 4, 4A and 4B of the 1984 Act. Section 4 of the 1984 Act allows the Secretary of State to designate an authority as the classification authority. Section 4A requires the classification authority to have special regard to certain criteria in classifying a video work and section 4B allows the Secretary of State to authorise the classification authority to review any earlier determination in the light of the criteria introduced by section 4A. Section 4A first came into force on 3 November 1994. The purpose of paragraph 4 is to confirm that the reference in section 4B to the date on which section 4A came into force is unaffected by the repeal and revival of the 1984 Act.
28. Paragraph 5 confirms that the offences under sections 9 to 14 of the 1984 Act will continue to be relevant offences for the purposes of the Regulatory Enforcement and Sanctions Act 2008 (c.13). The Regulatory Enforcement and Sanctions Act 2008 makes provision for civil sanctions to be imposed for relevant offences, being offences that were in force immediately before the Regulatory Enforcement and Sanctions Act 2008 was passed.
29. The sole purpose of the Bill is to give effect to the system of video classification which has already been in operation since the 1984 Act came into force. The Bill will, therefore, have no additional financial effect.
PUBLIC SECTOR MANPOWER
30. There are no public sector manpower implications arising from the Bill.
SUMMARY OF IMPACT ASSESSMENT
31. The Better Regulation Executive has agreed that an impact assessment is not required for the Bill as the classification system has been in effect since the 1984 Act came into force and so there will be no change to the current regulatory regime.
32. An Equalities Impact Assessment has been prepared for the Bill. Copies have been placed in the Vote Office of the House of Commons and in the Printed Paper Office of the House of Lords. In addition, copies may be obtained from the Department for Culture, Media and Sport, 2-4 Cockspur Street, London, SW1Y 5DH (contact: Stephen Hodgson).
COMPATIBILITY WITH THE EUROPEAN CONVENTION ON HUMAN RIGHTS
33. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act).
34. Lord Davies of Oldham has made the following statement: In my view the provisions of the Video Recordings Bill are compatible with the Convention rights.
35. It is not considered that the provisions of the Bill raise any issues in relation to Convention rights or other international human rights obligations. To the extent that the provisions of the 1984 Act to be repealed and revived potentially engage Convention rights or other international human rights obligations, these are considered below.
Classification of video works
36. The BBFC is concerned with classifying video works, which includes the provision of age ratings to apply to those works and advice on what is contained within the work. The supply of a video recording other than in accordance with a classification certificate is a criminal offence under the 1984 Act. This may affect the economic interests of producers and publishers of video works and the freedom of such producers and publishers to impart information and ideas. But the system of regulation and control provided by the 1984 Act represents an acceptable balance between the rights of producers and publishers to distribute their work and the legitimate interest in the protection of health and morals and the prevention of crime or disorder. In particular, one of the purposes of the classification of video works is to protect children from the impact of age-inappropriate material.
Appeals from classification decisions
37. The designated persons who make determinations about the classification of video works under the 1984 Act are the principal office holders of the BBFC. An appeal from such a determination is arguably a civil right for the purposes of Article 6 of the Convention. In designating these persons, the Secretary of State must be satisfied that adequate arrangements will be made for an appeal from classification decisions (see section 4(3) of the 1984 Act). The Secretary of State requires the appeal body that hears such appeals to be structurally independent of that organisation, in that no members of the BBFC sit on the appeal body. In addition any decision of the appeal body may be subject to judicial review.
38. The 1984 Act contains a number of offences. For those offences, the primary burden of proof rests with the prosecution to establish all the elements of each offence. But the 1984 Act also provides a number of defences that require the defendant to prove his or her knowledge or belief of certain facts or circumstances pertaining at the time of the alleged offence. For example, a person does not commit an offence in relation to the supply of a video recording if he or she reasonably believed that the supply was exempted. This potentially engages Article 6(2). Such provision, however, is reasonable where the matters are matters which will be within the defendants knowledge and which it would be difficult for the prosecution to prove, such as matters relating to the defendants state of mind at the time of the alleged offence.
Enforcement of classification provisions
39. Section 17 of the 1984 Act sets out powers of entry, search and seizure. Judicial authorisation governs the use of those powers. A justice of the peace must authorise a constable to enter and search premises and he can only do so if he is satisfied that there are reasonable grounds for suspecting that an offence under the 1984 Act is being committed, and that there is evidence that the offence is or has been committed on those premises. A constable may only seize property in these circumstances if he has reasonable grounds to believe that that property may be required as evidence in relation to criminal proceedings under the 1984 Act. The 1984 Act therefore includes safeguards for the use of the powers. The provisions amount to an acceptable balance between Article 8 rights, and the public interest in upholding, by criminal sanction if appropriate, the classification system.
40. Section 21 of the 1984 Act provides for the forfeiture of a video recording where a person is convicted of an offence under that Act and a court orders that the goods are to be forfeited. Where a criminal offence has been committed and goods that were the subject of those proceedings are seized, it is in the public interest to dispose of such property to further prevent the commission of offences and the spread of illegal material. The court cannot make a forfeiture order unless it gives the owner of the goods (or any person with an interest in the goods) an opportunity to be heard or to say why the order should not be made. An order cannot be made until after the time to appeal against a conviction has expired and, if an appeal has been instituted, that appeal has been determined. This provision represents an acceptable balance between the private rights of persons adversely affected by the loss of their possessions through forfeiture and the public interest in the proper operation of the classification system and the enforcement of that system.
41. The Bill will come into force on Royal Assent.
|© Parliamentary copyright 2010||Prepared: 8 January 2010|