My Lords, while I was a Member of another place, I promoted an amendment to protect children from gratuitously violent video material. Happily, an alliance of Members from across the political divide came together and we persuaded the Government of the day of its merits. Ultimately it was down to your Lordships’ House to then incorporate that amendment into law, which it did. It will come as no surprise, therefore, that I warmly welcome the Bailey review recommendations for a new approach towards protecting children from adult content in music videos, and I welcome what the noble Lord, Lord Bates, has said today, especially about extending the criteria and the logic of these regulations to online as well as offline material.
I would like particularly to mention an issue that I have raised with the noble Lord, Lord Gardiner of Kimble, on previous occasions, and that is the use of suicide sites. That has led to deaths, including the death of a child at a school where just a few months ago I gave out the school prizes. The child had visited one of these sites and had taken their own life. Indeed, the headmaster of that school told me subsequently that five other students had also been visiting the same site. This is not an abstract or theoretical question.
Perhaps I may turn specifically to the regulations before the Committee. I have to say that it perplexes me that any exempt DVD, be it for music, sport, religion or education, should have been able to show any of the depictions which are listed in the criteria set out in paragraphs (a) to (n) of proposed new subsection (1ZA) of the 1984 Act. Whether we are talking about suicide or self-mutilation, the use of illegal drugs and other very inappropriate imagery, these are all either objectively present or not. If they are, the DVD in question should not have been exempt. However, the depiction listed in paragraph (o) prompts some concern, and is the paragraph to which I should like to draw the attention of the Minister and the Committee. It states that a work is not exempted if,
“(o) it includes words or images that are intended or likely (to any extent) to cause offence, whether on the grounds of race, gender, disability, religion or belief or sexual orientation, or otherwise”.
Unlike the other depictions I have referred to, this depends on a very subjective category which is heightened by the fact that paragraph (o) makes it plain that “intent” and “extent” are completely irrelevant. At a time when there has been an increase in illiberalism and intolerance towards people of faith, it is not difficult to imagine that any religious DVD could cause offence to someone. Something that is violent or hateful and encourages such behaviour would in any event be covered by other statute. When we consider that according to the wording of paragraph (o) it does not matter whether the creators of a religious DVD intended it to cause offence and that it does not matter how minor the offence is, these regulations seem to threaten implications that the Explanatory Memorandum makes plain are simply not intended. As currently drafted, the regulations may well move us from one pole where no religious DVDs are rated to a place where as a matter of practice all religious DVDs will need to be rated.
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I dare say that the Minister will respond by saying that the BBFC has balanced ways of assessing offence and that I have no cause for concern, but in response I would say that I have no difficulty with the BBFC’s approach. My problem is this: what if someone with an agenda asks a judge to adjudicate what the law actually says rather than what is the BBFC guidance? The judge would have to make his or her assessment ultimately on the basis of the letter of the conditions set out in paragraph (o), not on the basis of the BBFC guidance or, indeed, of the Explanatory Memorandum. Page 5 of the 2014 BBFC guidelines states:
“Potentially offensive content relating to matters such as race, gender, religion, disability or sexuality may arise in a wide range of works”,
but adds that,
“the classification decision will take account of the strength or impact of their inclusion”.
That is quite different from the provision in paragraph (o) where the extent of the offence caused is irrelevant. If someone with an agenda finds a religious DVD offensive, then regardless of the fact that it was not intended to cause offence and regardless of the limited extent of the offence that has been caused, it is likely that the judge will be compelled to rule in a way that would require the BBFC to change its guidelines. The default position is that paragraph (o) would be the law.
I suspect that the Minister will revert and quote from paragraph 8.7 of the Explanatory Memorandum which states:
“Under the current legislative framework, it is not possible for the BBFC Guidelines to be referred to in the legislation”.
But surely this is the nub of the problem. Moreover, it is compounded by the fact that the provisions made in Section 2A of the Video Recordings Act 1984 mean that video games can be amended by regulation, and under subsection (6) that these regulations,
“may make provision by reference to documents produced by the designated authority”.
This clearly implies that the classification guidelines produced in the case of video games by the Games Rating Authority, an arm of the Video Standards
Council, could be referenced for exemption criteria for video games in the legislation. Why can this legislation similarly not make provision by reference to documents produced by the BBFC? That would be consistent and logical, and it would surely allay fears.
In that context, I am looking for some urgent reassurances from the Minister. First, can he explain how and why the BBFC guidance would be pre-eminent over paragraph (o) in a court of law? Secondly, can he explain why paragraph (o) sets a different threshold from the BBFC guidance? Thirdly can he explain why Section 2A(6) of the Act makes it plain that legislation can,
“make provision by reference to documents produced by the designated authority”,
in this case the Games Rating Authority, although the Act does not make and will not make as a result of these regulations any parallel provision in relation to the BBFC, and why he thinks this is satisfactory? Finally, can he assure me that if a church or a para- church charity hosts a conference and films all the talks, songs and music at the event and offers them for sale to conference attendees, an interested person who could not attend and sells at a small profit, which could then be used to reinvest in the church’s work, to perhaps 70 people, would not be burdened with the requirement of a rating? If they did, paragraph (o) would have a very clear, chilling effect because the costs involved would put this beyond the reach of most churches.
Your Lordships’ House has only recently amended the Public Order Act to remove the word “insulting” from Section 5 because the view was that the threshold of “threatening, abusive or insulting” was too high. It therefore seems very odd that today we should be contemplating the extraordinarily low threshold in paragraph (o).