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When the Video Recordings Act was drawn up, it was felt that, although the vast majority of this content should be exempt, if any otherwise exempted video work contained certain elements, such as sexual activity, they should fall back within the scope of the Act, because we recognised the capacity for the giving of offence, and in particular we were concerned about children. The current criteria listed in Section 2 of the Video Recordings Act have been working well for the past 25 years. The right reverend Prelate testified to certain successes in those terms. The vast majority of exempted video works are innocuous, and we believe that the existing text is sufficient to maintain the balance of proportionate regulation-which is what we are seeking-in an admittedly difficult and sensitive area.

The existing criteria mean that video recordings are not exempted if they contain material such as gross violence or depictions of sexual activity et cetera. The Government remain unconvinced that the issue extends beyond a handful of titles. I know that there are concerns about one or two titles. We do not think that this is reflective of gross abuse, but one or two titles cause concern. Even with those, we are not convinced that the existing criteria set down in the Act are not sufficient to cover most of them in any event. Just because some video publishers claim exemption does not mean that they have a right to it.

The Government believe that the intention behind the amendment, which was so articulately expressed this evening, is absolutely right; particularly the desire to protect children from inappropriate content. Although we do not believe that the amendment is the right way to achieve this-the noble Lord, Lord De Mauley, indicated that he had some anxieties about the drafting of his amendment-we do agree that we need to consider the issue further. I hope the noble Lord will accept that the Government are not cut and dried in defence of what we have presented in the Bill. We think it has real substance to it, and we are talking about a very limited number of instances. Anxiety has been expressed, and there is wide support across the House for the general theme of the amendment in this difficult area. We intend to consider the matter further and bring forward a position on Report. Therefore, I

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hope that the noble Lord, Lord De Mauley, will feel that his amendment has advanced the cause a considerable way. The Government will consider the matter further.

Lord De Mauley: My Lords, I thank the noble Baroness, Lady Howe, not only for speaking, but for adding her name to the amendment. I thank the noble Lord, Lord Addington, for speaking on behalf of the noble Lord, Lord Clement-Jones, who had done the same. I am grateful to the noble Lord, Lord Monson, for his helpful contribution. I completely accept his correction. Indeed, when I moved the amendment, I acknowledged that it needed improvement. Likewise, I accept and welcome the contribution made by the right reverend Prelate the Bishop of Manchester. He is absolutely right, especially on the free speech point.

I thank the Minister for his response. He has not entirely convinced me, and I think that he has not entirely convinced himself, that we should let the matter rest. I am grateful for his last few words, which confirmed that. There is still work to be done. For today, I beg leave to withdraw the amendment.

Amendment 246 withdrawn.

Amendment 247

Moved by Lord De Mauley

247: Clause 40, page 43, leave out lines 41 to 44

Lord De Mauley: Amendment 247 is designed to probe the use of the power which Clause 40 would give to the Secretary of State. As I understand it, it is intended to allow for the implementation of the updated Pan-European Games Information, which is the European standard for video games. I hope that the Minister will be able to confirm that when he responds. Could he tell the Committee whether the clause permits the Secretary of State to carry out other activities, or is it exclusively to implement PEGI? Would the Minister not agree that matters would be improved by putting in some safeguards around the use of the power? A requirement for consultation would seem to be appropriate. Defining a specific purpose, such as allowing an order to ensure consistency with an international standard, would also be useful. I beg to move.

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Lord Davies of Oldham: My Lords, I am grateful to the noble Lord for his amendment. Proposed new Section 2A sets out the conditions that determine whether a video game is exempted from classification. The purpose is to define the criteria that mean that the video game is suitable only for persons aged 12 years and above. That is in line with the recommendations by Professor Tanya Byron for a statutory system which covers only games suitable for those over 12.

The content of video material is subject to change in a growing and developing technical world. Types of content many indeed change over time. The list of criteria currently set out in proposed new Section 2A will ensure that content suitable only for children over the age of 12 is covered by statutory regulation.

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We cannot predict what alterations to the current criteria might be necessary in the future. If the type of content that is considered to be suitable only for children over the age of 12 changes, it is important that the Secretary of State and Parliament have the opportunity to reflect such matters of detail in the Act and make appropriate adjustments. It would be unworkable and overly restrictive not to allow changes to be made to these relatively low-level criteria set out in proposed new Section 2A to take account of any possible future developments and changes. I emphasise that the Secretary of State is not being given a power to make changes without accountability. The power to amend the criteria is subject to the affirmative resolution procedure and therefore subject to parliamentary scrutiny and debate. We are not seeking to extend the Secretary of State's powers arbitrarily. We are seeking that essential flexibility-future-proofing, if one likes-against a background where we all recognise that the Bill has to tackle, and be valid to deal with, changes which may occur.

We looked closely at the scheme that best met the criteria set out by Professor Byron in her report. As she recommended, we began by consulting on various options. Following the consultation, which weighed four suggested options against the nine criteria put forward by her, and having carefully considered all the responses and all the issues, we concluded-as I think the noble Lord, Lord De Mauley, was arguing-that the PEGI system best met all the requirements. The enhanced PEGI option was selected because it best meets all the criteria that the professor set out in her report, it will offer excellent protection to children-which is the position that all noble Lords adopt with regard to these issues-and it will last into the future as far as we are able to identify. It also has the least negative impact on industry.

I hope it will be appreciated that the Government have taken into account all aspects of this challenging area. In reserving potential changes to these criteria for an affirmative resolution procedure rather than having to go back to re-establish primary legislation, the Government are not seeking to present the Secretary of State with grossly enhanced powers but merely making provision for the fact of potential change without recourse to primary legislation. I hope the noble Lord will feel that that is a satisfactory answer and that he can withdraw his amendment.

Lord De Mauley: I thank the Minister for his response and will think carefully about what he has said. For today, I beg leave to withdraw the amendment.

Amendment 247 withdrawn.

Clause 40 agreed.

Clause 41 : Designated authority for video games etc

Amendment 248

Moved by Lord De Mauley

248: Clause 41, page 44, line 42, at end insert-

"( ) Where there are two designated authorities, the video games authority must allocate to the video works authority-

(a) if the primary purpose is not gaming; or

(b) if the video game is likely to be rated R18."

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Lord De Mauley: Amendments 248 and 249 explore the point at which the video games authority passes over responsibility for the classification of game material to the video works authority. According to the Explanatory Notes, the purpose of the proposed new subsections is to ensure that the classification of video games which are similar to video works that would rate a restricted classification or would lead to that sort of video work remains in the hands of the British Board of Film Classification, which has experience of handling such material. This is a sensible policy. It is a shame that, as drafted, the Bill does not set it out as such. Why have the Government not specified, as Amendment 248 does, the purpose of the subsection? What other purpose have the Government in mind for it?

Amendment 249 looks at where the responsibility lies for passing over material to the BBFC for classification. I understand that since responsibility for games generally lies with the video games authority, it needs to take an active part. How does the Minister envisage that a body with no experience in distinguishing between an 18 and R18 classification will identify the works that need to be sent to the BBFC? Are the Government proposing a whole new department within the video games authority which duplicates the work of the BBFC? I beg to move.

Baroness Howe of Idlicote: Again, I have added my name to the amendments of the noble Lord, Lord De Mauley. I am equally glad that they have secured Cross-Bench support. The Bill allows the video games authority to allocate certain classes of work to the video works authority. Interestingly, it is left to the Explanatory Notes to give Blu-ray discs and R18 games as examples. I understand that there is already agreement that these will be allocated to the BBFC. Since that is already agreed for good reason, it would make sense to include it in the Bill.

On the first class of work, films are increasingly being marketed with ancillary games attached to the same disc. The basic product is a film with some minor gaming additions. The BBFC has extensive experience of rating films and games together. I understand that the home entertainments industry wishes this situation to continue. The Bill should specifically enable this allocation to the BBFC.

R18 material consists of problematic and extreme material which can be sold only in a sex shop, and rightly so. The BBFC has years of experience in classifying such material. It is so trusted that, under the Criminal Justice and Immigration Act 2008, if a video work has a BBFC classification it is accepted that there cannot be a charge of possession of an extreme pornographic image. This exemption was included because the BBFC is recognised as the expert in judging what is often quite a fine line between acceptable and unacceptable content. Noble Lords will understand that this form of expertise has taken a number of years to develop and should be more sensibly recognised in the Bill. We should also be aware that if this does not happen it would be possible for pornography distributors to use a game format in an attempt to secure classification with fewer cuts.

Amendment 249 is also important as otherwise the clause establishes a potentially damaging inequality

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between the two regulators. In short, the existing regulator-the BBFC-is made completely subordinate to the new video games regulator in matters of determining which body should regulate a particular product. This is undesirable as a matter of principle and also as a matter of practice. If, because of its expertise, the BBFC is given responsibility for classifying R18 games, it makes no sense for the Video Standards Councils-with no experience of such content-to have the power to determine whether the game falls to the BBFC. Such decisions on individual works within a class of work that have been allocated should be left for the regulators to reach agreement.

I received a briefing from the VFC last week which implied that if this allocation were enforced, and if the BBFC were to judge a game to be 18 rather than R18, it would still rate the work, thus creating a dual system. I have checked this with the BBFC, which confirmed that it would do no such thing. It would refer the work back to the VSC with a recommendation that the game was not R18. The VSC would then be able to rate the game as it saw fit. This is already agreed between the VSC and the BBFC. This amendment in no way proposes otherwise. As the Bill stands, the VSC could judge a work as 18 and not refer it to the BBFC, and the BBFC could not overrule that decision, even if it were convinced that the work in question was an R18. Given the implications in law of such a mistake, this amendment should be accepted in full by the Government.

Lord Addington: It seems we are once again addressing clarity and which group has the expertise at the moment to be able to give that clarity. The Government should look hard at this amendment, and I look forward to hearing their answer.

Lord Davies of Oldham: I am grateful to noble Lords for their contributions to this debate. The Government maintain that Clause 41 provides clarity about the division of responsibility between the video works authority and the video games authority. This is absolutely fundamental in creating a seamless system that delivers the policy intention, subscribed to by all the parts of the Committee, to adopt the Pan-European Games Information system of classification for video games.

The clause balances this clarity with the necessary degree of flexibility to deal with certain types of video games and the manner in which some games are now supplied with films. This flexibility is important to ensure that we have a clear, sensible and effective system that actually works on the ground. The overriding principle is that the video games authority is responsible for determining the classifications of video games. However, following detailed discussions with the BBFC and the VSC, and in order to allow a degree of flexibility in the system that will make practical sense to everyone, the Bill allows the video games authority to allocate to the video works authority a particular class of video game, such as R18-which the noble Baroness described accurately in her speech-or a game that is to be supplied in a particular way, such as the Blu-ray discs. This means that the Bill already allows what the noble Lord is seeking to achieve with

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Amendment 248. We do not need to say anything more in the legislation. Clause 41 achieves what is required in a neat, clear and helpful manner, without unnecessary complication or definition. I am at one with the noble Lord in his efforts with the amendment to achieve those aims: I am merely indicating that they have been achieved already.

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I emphasise that the Secretary of State can issue guidance. Both the BBFC and the video games authority must pay attention to that guidance. I assure noble Lords, because I am responsive to the concerns expressed in several parts of the Committee, that the Government will include specific guidance that R18 video games should be allocated across to the BBFC, underpinning the agreement that we already have in place and in practice. I give the assurance that the Government will include that in guidance. Therefore I hope that noble Lords will feel that they have pressed the Government on these issues, that we are fully cognisant and aware of the anxieties, and that the Bill as it stands, and the way in which it is intended that it should be implemented, meets their anxieties and concerns, so that they will not press their amendments.

Lord De Mauley: My Lords, I thank those from all parts of the Committee who put their names to the amendment, and those who spoke. I am grateful for what the Minister said, in particular about the proposed guidance. We will all think about the matter before Report. I beg leave to withdraw the amendment.

Amendment 248 withdrawn.

Amendment 249 not moved.

Amendment 250

Moved by Lord Howard of Rising

250: Clause 41, page 45, leave out lines 21 to 23

Lord Howard of Rising: My Lords, I will be interested to hear the Minister's response to these amendments. Both amendments in this group deal with hybrid games material: that is to say, games containing both games and linear material. The amendment probes PEGI, while the amendment of the noble Baroness, Lady Howe, suggests a more specific solution. Does the Minister envisage PEGI automatically volunteering to give the BBFC classification rights over all linear work in a relevant game? Or does the Minister consider that there will be occasions where confirming the classification formally will be unnecessary?

There is concern also about the labelling of such works. Games and linear material follow different levels of classification. A game based on a film that was classified as a 15 by the BBFC could be turned into a work with a minor amount of interactivity, which would suddenly move it to a 16 under games classification. I beg to move.

Baroness Howe of Idlicote: My Lords, Amendment 251 is in my name and those of the noble Lords, Lord Gordon of Strathblane and Lord Clement-Jones. The amendment replaces proposed new Section 4ZC of

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the 1984 Act and seeks to enshrine in law the current situation whereby the BBFC, which the Government plan to designate as the video works authority, remains responsible for any non-integral video works in a video game. This could include films or even TV series accessed as a reward for reaching a certain level in a game.

Last week, I and other noble Lords received a briefing from the Video Standards Council. It referred to Amendment 251 as a wrecking amendment. Not only is this not my intention, but I do not accept that it is one. I was also grateful to the noble Lord, Lord Young, for arranging a meeting last week with his officials. I acknowledge that, again, he and the officials tried to persuade me that the amendment was unnecessary. However, I am afraid that I remain firmly of the belief that, if the Byron report is to be implemented in full and in a way that does not undermine the system that we have in this country for the classification of linear, film-type material, we must amend the Video Recordings Act to make it clear that the BBFC remains responsible for film-type material.

It was suggested to me that the BBFC would classify film-type material and games, and then hand over the classification to the Video Standards Council to take account of its overall classification of the game. This is not what was suggested by Tanya Byron: nor was it the stated intention of the Government. The Government's response to the consultation on options for a strengthened video games classification states that,

However, if I understand it correctly, the Bill raises a series of new questions and concerns. Could the VSC overrule the BBFC on non-integral linear material? Where does this leave the consumer? We could have a situation where a video game contains a series of films and yet the disc has a PEGI classification, which, according to the Bill, could bear no relation to the BBFC classification.

LACORS is the body that represents local authorities. Its trading standards officers must enforce these regulations, and it has informed me that it supports the amendment. It, too, has no reason to wreck the Bill. It is worried about enforcement and believes that the Bill could mislead consumers because a PEGI rating on a disc, which could be a hybrid product, would lead them to believe that it was a game rather than a series of films-or even pornography accessed through a game. This would mean that the product could also fall foul of the Consumer Protection from Unfair Trading Regulations 2008.

It is important to recognise that the public are used to seeing the BBFC classification symbol, and understand what it means. Independent research undertaken for the BBFC in 2009 shows that 71 per cent of viewers check the BBFC classification before deciding whether to watch a video work, while 88 per cent of parents with young children rate the BBFC as effective. We cannot ignore the fact that a PEGI classification for film-type material would be confusing to the public and to law enforcement agencies.

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LACORS is also deeply concerned about how, on a practical level, it would enforce these classifications. If it was pursuing a prosecution over the sale of a game because of the linear content in that game, to whom would it turn for support in court? The VSC could say only that it had rated the product 18, for example, because of a classification given to it by the BBFC. Does this BBFC classification have any legal standing under the current terms of the Bill in relation to provision of evidence? If the BBFC could not go to court, would this leave law enforcement officers with no support in their prosecution? This is not an insignificant issue because in 2009 alone, the BBFC provided evidence in 211 cases; that was a year in which, from August, the VRA's problem meant there were no prosecutions. The only solution I can see to this issue is to allow the BBFC to remain responsible, as it is now, for non-integral linear content in games.

In its evidence to the Byron consultation, the VSC's own data stated that in 2007 it referred 101 games-8.2 per cent of the total classified by PEGI-to the BBFC for a combination of gross violence, sexual activity and non-integral linear material. Of these 101 games, 51 were referred because they contained linear content only. Based on the VSC's own data, therefore, and assuming 2007 to be broadly representative, the percentage of games containing non-integral linear content to be rated by the BBFC would be 4 per cent of the total. Ninety-six per cent of video games would be rated exclusively by PEGI.

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