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At present, as we know, no new prosecutions can be made under the Act as it stands, and those who make an appeal within the allowed timeframe cannot be opposed by the courts. Can the Minister inform the

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House precisely when that began? Can the Government estimate how many people should have been prosecuted during that time, but were not? Has any research been undertaken as to how much compensation, if any, might be demanded and possibly awarded as a result of convictions made under this legislation?

We look forward to ensuring that the legislation is re-enacted in its proper form as soon as possible to ensure the protection of consumers and to empower law enforcement agencies to implement its provisions. I wonder whether the Minister could inform us when the Cabinet Office will have completed its audits of all Acts passed into law since 1984 in terms of their compliance with the European technical standards directive. It would be useful to know whether there were any such similar problems in other pieces of legislation and indeed whether any other member countries of the EU have encountered similar problems.

Finally, we welcome the recommendations from the Constitution Committee, which were published in its report of 7 July 2009, Fast-track legislation: Constitutional Implications and Safeguards. The Government published their response on 7 December 2009 and agreed to implement the recommendations. This Bill is the first to be subject to these new procedures and has, I believe, shown the value of these proportionate and sensible proposals, provided that fast-track legislation is used only when appropriate and necessary.

One of the recommendations was that,

Thus, on 7 January, we had the benefit of an explanation by the noble Lord, Lord Davies, of the special procedure and the reasons for it.

A further recommendation was that,

As noble Lords will be aware, the Explanatory Notes do indeed contain these seven helpful questions and answers which provide reassurance that fast-tracking is necessary in this instance and that due attention has been paid to proper scrutiny.

We therefore thank the noble Lord, Lord Davies, for his explanation both of the Bill and of the new procedures. We look forward to reinstating the Video Recordings Act in an enforceable manner which will leave no uncertainty in criminal proceedings.

3.28 pm

Lord Clement-Jones: My Lords, I thank the Minister for his comprehensive introduction of the Bill. We all have the same purpose today. As a result of the then Government failing to notify the European Commission of certain technical aspects-the classification and labelling requirements-of the Video Recordings Act 1984, we now know that the Act is void-I assume we can use that word-in respect of those technical aspects.

The Act is important protective legislation which has always had the support of these Benches. It sets the basis for the classification of video recordings, it makes provision to prevent the sale of inappropriate

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material to children and it counters the ability of people to sell counterfeit video recordings, principally DVDs. We on these Benches have made it clear that we support steps to ensure that the legislation gets back on to the statute book as soon as possible. We agree that the key conditions for fast-tracking as laid down by the Constitution Committee of this House have been met.

However, despite what I am sure is both novel and impeccable drafting by parliamentary counsel, a number of issues arise from the fact that these provisions of the original Act are void. There is the important issue of previous prosecutions of people under the Video Recordings Act. The Minister has given us some reassurance, but how retroactive is the Bill in its impact on the 1984 Act? The Minister claims that convictions will stand, but surely that is true only if appeals are out of time-which is what I took from what he said. However, this may not be a matter of appeal. If the provisions are void, surely somebody can go to court and seek a declaration that the original prosecutions were void and that no appeal is necessary. I hope the Minister will deal with this matter. If the Act was never validly enforced then surely the prosecutions brought under it are void.

We have all had the very useful LACORS and BBFC briefing. Many retailers and producers have sensibly continued to behave as if the 1984 Act were still in force. However, we understand from the briefing that the number of submissions for classification has fallen dramatically. The noble Lord, Lord Luke, and the Minister referred to the reduction of 11 per cent, bearing in mind that for most of the year it was assumed that the 1984 Act was in force. By October the figure was down by 20 per cent, and for the first half of November it was down by 38 per cent, as the Minister mentioned.

Again according to the brief from the BBFC and LACORS, 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 Video Recordings Act. In hindsight, 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 why those people might be aggrieved and seek redress. What assistance are the Government providing to local authorities in that position?

As the briefing also points out, breaches of the Act have been taking place in a growing number of places around the country. The BBFC and LACORS are particularly concerned about the sale of inappropriate material to underage young people in the interregnum period. They cite many examples. In Cheltenham, law enforcement officers have been unable to pursue a newsagent selling R18 and unrated porn DVDs that are displayed above an ice-cream cabinet. In Manchester, trading standards officers have dropped three VRA cases involving 3,000 videos. In Powys, trading standards officers are unable to pursue seven cases of underage video games sales; and in Brent, trading standards officers are unable to prosecute three high street stores for selling age-restricted video games to children. Have all these retailers got away with it, or will they be prosecuted?



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Where prosecutions have been dropped, has the department considered whether prosecutions would be possible under the Obscene Publications Act 1959, which in certain circumstances could be used in respect of the sale of material to underage people? The 1959 Act proscribes the distribution, circulation, sale, giving or loan of obscene material. I recognise that it is not an ideal piece of legislation-that is why the 1984 Act was put into effect. However, if the retailers are going to get away scot free, what consideration are the Government giving to using other forms of legislation?

The Government are 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 to enable the BBFC and local authorities to continue their important work. However, important issues have been created, which I have highlighted and which I hope the Minister will address. We will debate amendments to the VRA during our consideration of the Digital Economy Bill, but let us first get the Act back on to the statute book.

3.34 pm

Lord Pannick: My Lords, in welcoming this very unusual Bill, I should like to mention three matters.

The first is to add my thanks to the Government for accepting and for implementing-the second does not necessarily follow from the first-the recommendations made by your Lordships' Select Committee on the Constitution, of which I am a member, on the procedure to be adopted in relation to fast-track legislation. As the Minister has said, this is the first such Bill to be presented to the House since our report, and I join other noble Lords in welcoming the fact that the Government have, in both the Explanatory Notes to the Bill and the Oral Statement made by the Minister immediately after the Bill's First Reading, fully set out the reasons for fast-tracking the legislation. I am sure that this practice is of considerable assistance to the House and provides a model for the future.

My second point is to draw attention to the expression of regret in paragraph 3 of the Constitution Committee's report on the Bill that the 1984 Act has been rendered unenforceable, as the Minister accepted, by reason of the failure to notify its provisions to the European Commission under the technical standards directive. The consequence, as the noble Lord acknowledged, is that criminal prosecutions cannot currently be brought under the Act against those who sell video games and DVDs which have no classification certificate, or for selling such material in breach of the classification certificate-for example, where it restricts sale to children or allows sale to adults only in licensed sex shops. A number of prosecutions have accordingly been abandoned, and appeals in time have not been resisted.

I was pleased to hear the Minister reassure the House that the Government are satisfied that no other Acts of Parliament have been enacted in breach of the requirements of this directive, but can he say a little more about what procedures the Government have put in place to ensure that there are no such omissions in future in relation to either primary or, indeed, secondary legislation? The same problem could well arise in relation to secondary legislation.



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Thirdly, I seek information from the Minister about the consequences of the enactment of the Bill later this week-as I am sure that it will be enacted. As your Lordships' House has heard, the 1984 Act is currently unenforceable. People are not being prosecuted. Can the Minister help on whether, after it is enacted later this week, the schedule to the Bill is intended to affect whether people may be prosecuted next week, under the revived 1984 Act, for alleged offences which were committed last week? That is a vital matter which needs to be addressed. It is inevitable that that question will arise. Prosecutors will inevitably have to consider next week whether they may bring prosecutions against persons for the publication of material which occurred last week or last month. It would be very helpful if the Minister could tell noble Lords whether the Government's position is that the Bill is intended to allow such prosecutions after Royal Assent; whether it is intended not to allow such prosecutions; or whether, as may be the case, it is neutral on this question-that is, it does not address the matter and leaves the courts to decide this question in accordance with whatever the general principles may be. I should be very grateful if the Minister could address that.

I have another, similar question. The Minister rightly pointed out that since 1984 a large number of people have been prosecuted and convicted under the 1984 Act. In many of those cases, the convicted persons also brought appeals, which were dismissed, yet they were prosecuted and convicted under a statute which at the time of their conviction was unenforceable, as we all agree. The question then inevitably arises of whether such persons can now have those convictions set aside as not being in accordance with the law. I declare an interest in respect of this matter because I have represented clients who, despite my best efforts, have been convicted under the 1984 Act. Indeed, I now represent one such client who is seeking to set aside the conviction on precisely this basis, having appealed in time but unsuccessfully.

Can the Minister assist on whether anything in the Bill-in particular, the schedule-is intended by the Government to address the rights and wrongs of this issue, whatever they may be? I say nothing about the merits of the issue, but is the Bill intended to say anything about the validity of those previous convictions or is the Government's position, as I think it is from what the Minister said earlier, that this matter will have to be addressed by the courts by reference to general principles, whatever they may be, and that the Bill is not saying anything on this subject? I emphasise that I am not asking the Minister for his views, interesting though of course they would be, on how the courts should address these problems-that is, the prosecution next week of alleged offences committed last week and the setting aside of previous convictions. I am simply asking him to confirm that the Government are not seeking to address either of those issues in this legislation. Subject to those points, I very much welcome the Bill.

3.43 pm

Lord McIntosh of Haringey: My Lords, I am not breaking any rules by intervening in the gap but I am certainly breaking the conventions of the House, and I

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apologise for that. I was not able to be here for the beginning of this debate or to hear the Minister on this subject. However, I remember the passage of the Video Recordings Act 1984 because Douglas Houghton and Hugh Jenkins-Lord Houghton of Sowerby and Lord Jenkins of Putney-and I carried on a three-man fight against that nasty little piece of legislation until the early hours of the morning. I remember calling a Division once and counting the House out at quarter past one in the morning. I do not suppose that we could do that sort of thing nowadays in the tamed House that we now have.

The Video Recordings Act was nasty; it was introduced as a Private Member's Bill by Lord Nugent of Guildford. In effect, it applied the rules of a public cinema or public display to people's video recordings in their own homes. In other words, it created censorship in individuals' homes where no censorship had existed before, and it made a difference between what you have on your video recording machine and what is on your bookshelves. Douglas Houghton, Hugh Jenkins, and I thought that that was deplorable and I still think that it is utterly deplorable.

It was characteristic that at the time the British Board of Film Censors, which was a classification body, was renamed the British Board of Film Classification, which became a censorship body. George Orwell would have been proud. I see that the Long Title talks only about repealing and reviving provisions, and I am sure that any substantive amendments to the original Act would not be accepted by the Table. I regret that very much. I am pleased that the Act has been out of operation for a time, and I wish that it were not being revived now.

3.46 pm

Lord Davies of Oldham: My Lords, I am grateful to all noble Lords who put their names down and who spoke constructively about the Bill. I note my noble friend's perspective on the Video Recordings Act.

Lord McIntosh of Haringey: It was not constructive.

Lord Davies of Oldham: Indeed, it was clearly very different from the tenor of the rest of the debate, but I shall address my remarks to my noble friend in due course. I am grateful to noble Lords who have addressed a number of pertinent questions, to whom I shall do my best to respond. In broad terms, I welcome the Bill as important and urgent, given the discovery that the Act under which prosecutions have been brought and which has been in force since 1984, is legislatively defective for the reasons I outlined in my opening speech.

The noble Lord, Lord Luke, asked a number of important questions. First, I reassure him that of course the moment that the problem with the Act was identified, urgent action was taken in relation to the Act, and, as I said, all departments were contacted to do a serious trawl on legislation to ensure that no other action, which would be remiss and have such serious consequences, had occurred. When departments do so much work in preparing legislation, obtaining the consent of both Houses, and then have due regard to how it is enacted, they take very seriously the point

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that legislation for which they were responsible may be flawed. I can give the House the assurance that this is a one-off, and I can tell the noble Lord, Lord Luke, that it is not a question of any particular procedures.

The procedures and nature of the work in departments are proof against mistakes of this kind. That is reflected in the fact that this is the first legislation that we have had to address in these terms. It raises all the issues of the fast-track procedure and engages the interest of the Constitution Committee, as the noble Lord, Lord Pannick, indicated. No department will be anything other than utterly scrupulous about its checks regarding legislation. A Minister would not be asked to stand before either House if we were not confident that this is the only case-important though the case is. We have given the fullest explanation that we can of how the error occurred.

The noble Lord, Lord Luke, asked a number of important questions. His most important question was that reinforced by the noble Lord, Lord Pannick. I want to put this on record again. He asked: what is the status of previous prosecutions? Previous prosecutions will stand unless and until set aside by the courts. This is an area untested by the courts, but we believe that the courts will set aside convictions only in exceptional cases, when they identify a substantial injustice. That is unlikely to be the case where convictions have been secured after a full court process, given the confidence that we all have in the way in which the courts conduct the business of due process. So we have reassurance on that front.

The noble Lord, Lord Clement-Jones, asked about the difficulties facing local authorities, particularly regarding claims for compensation. Local authorities will have to deal with that themselves, but we will be providing advice and guidance for them as required, because we appreciate that they have been placed in this position through no obvious fault of their own.

We are concerned about the point rightly raised by the noble Lord, Lord Pannick, about where the prosecuting authorities now stand and the issue of retrospection and where we all are with regard to the Bill. We considered retrospection at some length with the prosecuting authorities, but it was not considered appropriate in these circumstances. Retrospective criminal offences should be introduced only in truly exceptional circumstances, and the Government's view is that the use of the fast-track legislation route in these circumstances-where the legislation has been rendered unenforceable by a failure to notify the Commission in draft-is necessary to restore the public protection contained in primary legislation as quickly as possible. All that rather precludes the use of retrospection. The inclusion of such retrospective concepts in the Act would have weakened the justification for the fast-track approach. Given the contributions of other noble Lords, I am confident that the case has been made that the prime issue must be to correct the position as rapidly as possible through the fast-track procedure.

The noble Lord, Lord Clement-Jones, also asked whether the legislation is void. It is not void, but, as the noble Lord is all too well aware, the problem is that it was not notified to the Commission. The Bill repeals and revives the Act, and follows the previous procedure of omissions being corrected by notification, rendering

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it enforceable from when it becomes an Act. Effectively, we are in the most appropriate way making up for the error of the past and getting this law enforceable as soon as we can.

Lord Skelmersdale: I apologise for not having intervened earlier, although I have listened to the entire debate. As I understand it, the reason for notification to the Commission is to give time for other countries to comment on legislation. However, this legislation appears to waive that procedure, in that it is intended to come into operation immediately after it has been passed by both Houses. Can the Minister send me a letter to explain this?

Lord Davies of Oldham: My Lords, I will gladly do that. That point about the implications for our partners in the European Community and the timescale for notification, which was the error, has not been raised by any other noble Lord. The noble Lord will appreciate that the error is 25 years old and, therefore, if they were to object to this legislation, they would be objecting to something that the European Community has been obliged to live with for the past 25 years. The concept of notification is to see whether it is a restraint upon freedom of trade. Twenty-five years having passed probably suggests that it is unlikely to be a major issue. I am grateful to the noble Lord for having identified an issue that we have not considered in the course of these deliberations.

Lord Clement-Jones: I apologise for intervening again. The Minister was pretty clear about the non-retrospective effect of the Bill on the Act. Therefore, the answer to the question I asked about whether the examples in Cheltenham, Powys and so on have got away with it is, presumably, yes.

Lord Davies of Oldham: I am not in a position to comment on every instance. The noble Lord will fully appreciate the basis on which we are enacting this fast-track legislation. The courts still potentially have a role to play because of the timing of cases, but I have indicated our expectation of the likely judgments. The noble Lord raised compensation and local authorities. We do not keep data on how many prosecutions have been dropped. There were 111 ongoing cases in September 2009. They all had to be dropped because the law was not valid. We are not keeping a regular audit on this. We found out about this situation in August because the three-month notification period finished in September, and that is why we collected those figures. I am not able to identify the issues in the court cases involved.

In response to the comments made by the noble Lord, Lord Pannick, I can identify the principles on which we expect the courts to proceed. They will not reopen cases for compensation in circumstances where they conducted their proceedings entirely fairly and reached their judgments in accordance with that. This short interim period between when the Act was found to be invalid and when we obtain Royal Assent presents some difficulties on which we are not able to be definitive. We can, however, identify the principles on which action is taken.



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The noble Lord, Lord Luke, asked whether there is an audit of the procedure by which the departments are alerted to this. The answer is no; the departments' concern about the issues is as good as, if not better than, any formal audit.

I can add to the points that I made to the noble Lord, Lord Skelmersdale. I have had a note to the effect that we notified the European Commission between 15 September and 15 December. That is why it has taken some time since we discovered the problem and brought it to Parliament. We did not identify the issue until then: hence the difficulty in acting.

I am aware that this is a difficult situation that rightly prompted questions in some detail as well as questions about process. We are grateful to the Constitution Committee for having considered these matters, and we very much bear in mind its pertinent points, the most important of which the noble Lord, Lord Pannick, reinforced to a degree today.


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