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Mr. Simon: With the leave of the House, Mr. Deputy Speaker, I shall reply to the debate-and what a pleasure it has been. What a bijou gathering of wisdom and experience this is. Two Select Committee Chairmen, the venerable battler from Bath and my old friend from Wantage have all, in their different ways, made valuable, insightful and often entertaining contributions. Would that it were always thus.
We have already congratulated the British Board of Film Classification on the job that it does, by which we meant the job of classifying films, but I think I ought also to congratulate it on the job that it does in lobbying Members of Parliament and providing briefing for these debates. Rarely can the entire participating body in a debate have been so thoroughly and extensively briefed by a single organisation. I visited the BBFC's offices fairly recently and heard its arguments about one or two aspects that we may not see in exactly the same way, but I think we are in accord on most of the issues that Members, in their different ways, have discussed today: that is, the central issues. Let me deal with a few of them, hopefully not leaving out too much but also not using up too much time.
The hon. Member for Wantage (Mr. Vaizey) could not quite resist making the anti-European point that the 1984 Act was clearly a single market liberalisation measure leading up to the Single European Act of 1985-that crowning, triumphant, extraordinary piece of Thatcherite European legislation that is the rock on which the European single market is founded, and the basis on which it continues to exist and derive so much prosperity for our countries and our Union. He mentioned several times-and other Members mentioned it as well-that the Cabinet Office had been looking into the issues. I cannot give him any more detail of who in the Cabinet Office has been doing what, but I can tell him that the need to ensure that the omission was an isolated incident and will never happen again is being taken very seriously.
I agree with the hon. Member for Bath (Mr. Foster), who praised the zeal and efficiency of the DCMS officials who finally discovered the omission and set us on the road to where we have arrived today. If we are not keen-as I am not-to get into the business of allocating blame for causing the problem in the first place, I am sure we can all unite in wholehearted praise for the people who identified it and are helping us to solve it.
The issue of appeals and past convictions is a difficult one. It is not as simple as some Members seem to think. None of the questions involved has been tested in court. To date, the courts have dealt with no attempts to set aside past prosecutions. Successful prosecutions issued before the failure to refer the 1984 Act to the Commission were dealt with through due process, and as such they still stand. The courts are very reluctant to set aside convictions made years ago when the offence was proved and the defendant found guilty under an Act of Parliament passed by the House, only the enforceability of which has been invalidated by a technicality. The Act remains an Act of Parliament. It remains in force. Only the ability of the authorities to enforce is affected by the failure to notify under the technical standards directive.
We think that claims for compensation are very unlikely to succeed. There is no automatic right to compensation, and any legal right to it in these circumstances would be unprecedented. I understand the prism through which Members have viewed the issue. The hon. Member for Wantage claimed that I had been given bad advice. He described the move from the current boxed physical product world to the online world, and said that he was minded to give me better advice on that than I was currently receiving.
Keith Vaz: My hon. Friend has taken definitive legal advice from the Attorney-General, has he not? The fact that the granting of compensation in such circumstances is unprecedented does not mean that it is not right. Will he confirm that he was given that advice?
Mr. Simon: I have taken a great deal of my advice from my officials. I cannot tell my right hon. Friend from whom-in which other parts of Government and which parts of the Government Legal Service-they took advice, but their advice to me has been very clear. Although it is impossible to be certain, there is very little doubt on the issue.
Keith Vaz: My hon. Friend's officials may not be legally qualified. They may be the greatest people in the world, but my hon. Friend is a Minister in the Government and the Attorney-General is the chief Law Officer. I am not trying to trip my hon. Friend up; I am merely trying to establish the facts. If there were a problem relating to legality, surely the Department would have contacted the Attorney-General. It is not a secret. A question could have been tabled to the Attorney-General. Did the Government go to the Attorney-General and ask for her advice?
Mr. Simon: As I have just told my right hon. Friend, I took advice from my officials. By "my officials" I mean the legal officials in the DCMS. As I have said, their advice was very clear. They also made clear to me that they had taken plenty of legal advice from many different parts of the Government, and that, although there could not be certainty when there was no precedent, there was very little doubt. I am sorry, but I cannot tell my right hon. Friend whether the officials questioned the Attorney-General personally and specifically.
I am not sure whether I have fully covered the question of appeals and compensation, but in the absence of further interventions, I shall proceed to answer the questions about the potential for insertion of what might be described as the PEGI clauses of the Digital Economy Bill, which introduce the PEGI European classification system for video games in this country into this Bill.
One of the fundamental reasons why the House has considered the Bill, and why Opposition parties in both Houses have indicated that they consider it appropriate to fast-track it, is that we are not amending an existing piece of legislation which has been in force for 25 years. If the two main Opposition parties had come to us in advance and said "We think it important to include the PEGI clauses", we might have been able to discuss the matter, but I do not think that that happened. We needed to act swiftly, and, legitimately, to use the special fast-track procedure. Part of the reason for concertina-ing
the House's usual precautionary procedures was that we were making no change whatsoever. The point is that we need to get the legislation repealed and revived so that it can be amended during the passage of the Digital Economy Bill.
Mr. Don Foster: I apologise for asking a question the answer to which I should really know. I accept the Minister's point as to why the Government have not adopted the PEGI system amendment in this Bill so that we could fast-track it, but can he give me an absolute assurance that, if necessary, the appropriate consultation with the EU is taking place in respect of the PEGI amendment that is being discussed in another place?
Mr. Simon: As things currently stand, we are not minded to accept that amendment, although I am not averse to talking about it. I take note of the uniformity of view on that matter, on the Labour Benches anyway. However, I know from my recent visit to the BBFC that it takes the strong view that we should make this change, and the BBFC is very influential in these matters.
Mr. Vaizey: I should remind the Minister that on Tuesday one of his own Back Benchers, the hon. Member for Hendon (Mr. Dismore), is introducing a ten-minute Bill that would bring about this exemption, so there is all-party support for it.
Mr. Simon: I take that point. I do not have a strong, dogmatic view on this. I have considered it, and on balance I have come down on the side that says that given that it is about where we draw the line, the vast majority of content in music and sport videos does not need to be classified in this way, to the extent that it would be an intolerable burden. That is a reasonable position, and that is where I stand. We are not currently minded to accept an amendment to the Digital Economy Bill to that end, although I do not take a dogmatic view on it.
Mr. Don Foster: During my speech I asked the Minister to clarify whether he believes that if such an amendment is not tabled there is still scope for prosecution of that type of material under other legislation.
Mr. Simon: The hon. Member for Maldon and East Chelmsford (Mr. Whittingdale) kindly referred to that. There is still scope for prosecution under the existing legislation because the exemptions apply only up to a certain level. There are several categories of content, at a certain point of which the exemption lapses. Roughly speaking, something like an 18-level content in a music video would need to be classified.
Hon. Gentlemen mentioned one or two examples of what seem like misclassifications. However, that is the road of argument by second-guessing, anecdote and example, and it does not take us very far. The issue
would be about whether the video had been classified appropriately. The power already exists to classify extreme or 18-ish-rated music videos. Their comments are reasonable, but the fundamental point is that the place for us to have this discussion-I have no doubt that we will do so at great length and in considerable detail-is in the Committee proceedings on the Digital Economy Bill.
Several hon. Gentlemen-including the hon. Member for Maldon and East Chelmsford, with particular erudition and wisdom-talked about the internet and a future in which it will be incredibly difficult to regulate and legislate for these things. I take all those points but merely restate what I said in my opening remarks. The boxed market is still huge and will be so for a considerable period of time, and that is why it is so important that we use this procedure to close the loophole so that we protect the public in general, but particularly children, from the irresponsible retailing of unsuitable and inappropriate material.
Mr. Simon: If the House will permit me, I will omit, in these circumstances, the usual courtesies attached to the beginning of a Committee stage, and move straight on to speak to the clause, which is at the heart of the Bill.
The purpose of the clause, as stated in subsection (1)(a), is to repeal all the provisions of the Video Recordings Act 1984, which should have been notified to the European Commission in 1984. Subsection (1)(b) then immediately revives all those provisions, which have now been notified to the European Commission. As a result, it makes them enforceable again in law. The Bill and the 1984 Act were formally notified to the Commission in accordance with the technical standards and regulations directive, and it is necessary for the 1984 Act to be repealed and revived in this way to ensure that all its provisions are fully enforceable again. The failure to notify the 1984 Act was a procedural error under the terms of the directive. The purpose of the Bill is to correct the procedural irregularities arising from that omission and to restore the important public protections that the 1984 Act contains and that the public have come to expect regarding the sale of videos and DVDs.
Mr. Simon: The schedule sets out the transitional provisions whereby a bridge is built between the 1984 Act spanning the lacuna of the time when the Act has not been enforceable, and into the future, when the status quo ante is restored. It also ensures that all consequent legislation and administration is kept in balance with the new legislation and the previous Act.
Thank you, Mr. Deputy Speaker- [Interruption.] Understandably, I am being ribbed from sedentary positions by Opposition Members about what I might say about the Bill on Third Reading, given that we have considered it in so many stages so recently.
Mr. Simon: I am very grateful to the hon. Gentleman for that; I did fail to answer that question, although not intentionally. Considerable advice and support are being given to local authorities. The Crown Prosecution Service has produced comprehensive guidance on all the relevant issues for local and trading standards administrations, and we are confident that that guidance will equip them to deal with the situation appropriately.
This Third Reading is a conclusion to the Bill. I need only repeat my gratitude to Members on both sides of the House, and particularly to the Opposition parties, which have supported us wholeheartedly as we have used this procedure to get the measure through the House very quickly. We have done that to restore the safeguards for people of all ages, but young people in particular, so that they are not harmed and outraged by the unscrupulous sale of offensive and inappropriate material.
In conclusion, as the Bill moves to the other place, I add a plea to Members there: debate on this Bill is not the appropriate time for discussion of the Digital Economy Bill, or even the detailed provisions of the Video Recordings Act 1984. This is an emergency, fast-track measure that, by its nature, could not be fast-tracked if it were amended. [Interruption.] The hon. Member for Maldon and East Chelmsford (Mr. Whittingdale) looks quizzical. In case he was "quizzicaling" at me, I should say that if the Bill were amended it would have to be renotified in draft again, and that would take another three months.
We need to do this quickly. We are grateful for the support that we have had across the House in getting it done quickly. I commend the Bill to the other place in that same spirit of urgency and seriousness.
(1) Standing Order No. 14 (Arrangement of public business) shall have effect for this Session with the following modifications, namely:
In paragraph (4) the word 'eight' shall be substituted for the word 'thirteen' in line 42 and in paragraph (5) the word 'fifth' shall be substituted for the word 'eighth' in line 44;
(2) Standing Order No. 90 (Second reading committees) shall have effect for this Session with the following modification, namely:
In paragraph (2) the word 'fifth' shall be substituted for the word 'eighth' in line 21; and
(3) Private Members' Bills shall have precedence over Government business on 29 January; 5 and 26 February; 5 and 12 March; 23 and 30 April; and 7 May. -(David Wright.)
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