Second Reading

Video Recordings Bill – in the House of Lords at 3:07 pm on 18 January 2010.

Alert me about debates like this

Moved By Lord Davies of Oldham

That the Bill be read a second time.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords) , Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (and Deputy Chief Whip) 3:08, 18 January 2010

My Lords, the Video Recordings Bill is a short Bill with a single, but important, purpose. It is designed solely to repeal and revive the provisions of the Video Recordings Act 1984, including the offences under the Act. The 1984 Act established a system of age classification for video works, administered by the British Board of Film Classification together with a regime of criminal offences and penalties.

As I explained in my business statement to this House last week, this Bill is the first to be introduced with the intention of fast-tracking it since the Constitution Committee published its report on Fast-track Legislation: Constitutional Implications and Safeguards. Also in my statement, I gave a full explanation of our reasons for seeking to use the fast-track process, which are set out more fully in the Explanatory Notes. However, I know that many in the House are concerned by the constitutional implications of fast-track legislation. To help to allay those concerns, and for the benefit of those noble Lords who were not able to be present last week, it would be helpful for me to briefly restate our reasons for taking this approach.

Unfortunately, the offences under the 1984 Act were made unenforceable because of a failure to notify the offences and other provisions of the 1984 Act in draft to the European Commission in accordance with the technical standards directive. This failure to notify was discovered only in August last year in the course of preparing the draft Digital Economy Bill, to which we will be returning in Committee later today.

Until the provisions of the 1984 Act are made enforceable, no new prosecutions can be made under the Act. This means that publishers of video games and DVDs can distribute their goods free of classification requirements, and retailers can sell or supply classified and unclassified material, including explicit pornography, to any person regardless of age, with limited statutory powers to stop or prosecute them.

This is not a theoretical concern. While many suppliers, to their great credit, are continuing to act responsibly, some are not. A briefing paper on the Bill produced jointly by the British Board of Film Classification and the Local Authorities Co-ordinators of Regulatory Services, which I am sure many members of this House will have seen, lists a series of infringements of the VRA's provisions taking place across the whole country. I will not repeat them here, but suffice it to say that this is a real problem and unscrupulous suppliers across the whole country are taking advantage of the unenforceability of the Act. The Government are therefore seeking to fast-track the Video Recordings Bill in order to restore the protection afforded to the public under the 1984 Video Recordings Act as soon as possible.

The Bill consists of only two clauses and one schedule. Clause 1 repeals the provisions of the 1984 Act and immediately revives them. Clause 2 relates only to the Short Title, commencement and extent of the Bill. The Schedule to the Bill sets out transitional provisions to ensure that the repeal and revival of the provisions of the 1984 Act do not change their effect. The Bill does not introduce any new provisions or offences into the 1984 Act; the 1984 Act is simply revived without any substantive changes.

On the issue of repealing and reviving the Act, I know that there is a great deal of interest in the question of whether past convictions under the 1984 Act will stand. I am pleased to reassure noble Lords that, as I understand it, these convictions continue to stand unless and until they are formally set aside by the court. The normal time limit for making an appeal is 21 days from the magistrates' court and 28 days from the Crown Court. Where the normal time for appeal has expired, the Crown Prosecution Service has advised prosecutors to oppose applications for extensions of time and permission to appeal against conviction.

My understanding is that the court is likely to give permission to appeal out of time in these cases only in exceptional circumstances, as it will look beyond technicalities and consider whether there has been any substantial injustice. As such, the court would be unlikely to grant permission to appeal out of time where the conviction was obtained following a full court process.

I am also aware that the fact that the 1984 Act is currently unenforceable due to a failure to notify in draft under the technical standards directive has caused concern that other legislation might be affected in a similar manner. Once again, I am pleased to reassure the House that the Government are not aware of any other UK legislation that is currently unenforceable because of a failure to notify its provisions in draft under the technical standards directive. Furthermore, to make absolutely sure, the Permanent Secretaries of the Cabinet Office and the Department for Business, Innovation and Skills have written jointly to colleagues in other departments to bring this matter to their attention. They have stressed the need to check current compliance with the directive and have provided help and guidance on how to do that.

The House may also ask whether the Video Recordings Act is still relevant in an age when films and video recordings can be downloaded from the internet at the click of a button and are available to view in the home, with no censorship or control over inappropriate content. The internet, of course, raises important questions about how to control inappropriate content and the Government have some concerns in this area. That is why we followed Professor Tanya Byron's recommendation and established the UK Council for Child Internet Safety.

None the less, it is important to realise that the market for boxed videos and video games is still considerable and is likely to continue to be so for some time to come. When the Video Recordings Act was passed in 1984 there were 4 million video recorders in the United Kingdom. In 2008, according to the British Video Association, there were 55 million DVD players in the UK. The total market of DVDs, Blu-ray DVDs and videos sold in 2008 in the UK was worth £2.3 billion. That is a large industry and there continues to be a large market for buying a physical product containing video recordings and video games. Indeed, senior executives in three of the major electronics companies-Sony, Nintendo and Microsoft-have gone on record recently as saying that the technology is such that it will be some time yet before the digitally distributed product will overtake sales of the boxed product.

Noble Lords may also ask whether it is necessary to repeal and revive the 1984 Act against such a tight timescale, given that there is other legislation which can be used to prosecute those supplying obscene material, particularly to young people. While there are some limited legal protections afforded by the Obscene Publications Act 1959, which can be applied to video recordings, the threshold for the commission of an offence under that Act is very high. As a consequence, there is a considerable gap between the protections provided by the classification regime under the 1984 Act and what might fall foul of the Obscene Publications Act.

There is another important facet of the Video Recordings Act which is missed by focusing on legal sanctions. It is true that the Act stops the circulation of the worst kind of material by ensuring that it will not receive a classification and by making it an offence to supply unclassified video works. However, the vast majority of DVDs and videos on sale do not contain material which is unacceptable. A majority, of course, contain material which attracts an age classification. It is these age classifications which are used by consumers, particularly parents, to help them make purchasing choices about the suitability of the content of such products for their children. Independent research conducted on behalf of the British Board of Film Classification shows that 71 per cent of adults make use of the classification rating of films to guide their purchasing decisions at least some of the time.

The briefing document on the Video Recordings Bill, which I referred to a moment ago and which is jointly produced by the BBFC and LACORS, contains the worrying information that submissions to the BBFC in November last year are down, year on year, by 38 per cent since the problem with the Video Recordings Act came to light. Thus, there is a compelling case for the Government to take action as quickly as possible to close this legal loophole. Indeed, all the key stakeholders representing those who manufacture and supply videos and DVDs, and those who enforce the regulations on video classification, have endorsed the need to close the legal loophole which currently exists by making the 1984 Act enforceable as soon as possible.

In concluding, I will also touch on the issue of video games and how this Bill interacts with the Digital Economy Bill, which is currently before the House. In line with the recommendations made by Professor Tanya Byron in her report Safer Children in a Digital World, we plan to amend the Video Recordings Act 1984 as part of the Digital Economy Bill. Our amendments will introduce a new system of classification for video games using the Enhanced Pan-European Games Information system and will appoint a new statutory body, the Video Standards Council, to undertake the role of classifying games. We cannot bring these changes into force, however, until the Video Recordings Act has first been repealed and then revived by this Bill. I know that a number of noble Lords feel strongly about the need for an improved approach to classifying video games. In furtherance of that objective I urge all those who take this view to support the passage of this Bill to ensure that this can subsequently happen in the Digital Economy Bill.

Thus, in summary, the Video Recordings Bill does not introduce any new provisions or offences into the 1984 Act. It simply restores a system of classification that has been in operation for the past 25 years and which has worked to stop the circulation of the worst kind of video material. It is a system that is well understood and liked by a clear majority of the public and the industry. Indeed, the latest survey carried out on behalf of the BBFC shows that those surveyed agreed 99 per cent of the time with the classifications set by the BBFC.

The Bill is essential to ensure proper protection of the public from the inappropriate supply of violent and sexual video material by making the offences under the Video Recordings Act 1984 enforceable. As soon as the Bill has received Royal Assent, we will issue a press release announcing that fact and ensure that all the key stakeholder bodies are aware so that they are able to notify their members that the Act is enforceable once again.

I am sure noble Lords will share the Government's desire that these public protections be reinstated as soon as possible. Accordingly, I beg to move.

Photo of Lord Luke Lord Luke Shadow Minister (Also Shadow Minister for Defence), Culture, Media and Sport, - Shadow Minister (Also Shadow Minister for Culture, Media and Sport), Shadow Minister 3:21, 18 January 2010

My Lords, we on these Benches are most grateful for the opportunity to put on record our absolute support for the speedy passage and implementation of the Video Recordings Bill. I underline the fact that we endorse the purpose and intentions of this Bill. It is most regrettable that there has been uncertainty in criminal proceedings, and so we look forward to reinstating the legislation in the proper manner.

As we are all now aware, this Bill was a Private Member's Bill which unfortunately did not complete due process. Regrettably, the new procedure was not recognised in time for this Bill and consequently the Act is not currently enforceable. The mistake was first noticed when preparations were made for the current Digital Economy Bill, which, as the noble Lord has mentioned, has amendments to the Video Recordings Act within its scope. The result has been that publishers of videos, DVDs, X-rated and R18-rated video games can distribute their wares without any classification. Moreover, it means that no further prosecutions can be made.

According to the British Board of Film Classification, many responsible members of the home entertainment industry have continued to submit their works to the BBFC to be classified. However, as the Minister said, submissions were 11 per cent down in September 2009, 20 per cent down in October 2009 and 38 per cent down in the first half of November 2009. Can the Minister inform the House of any updated figures since that time? We can see, therefore, that it is vital to ensure that this legislation is once again active and enforceable.

Perhaps the Minister can provide the House with more details about the possible consequences and effects of the discovery that the Act is not enforceable. Can he, for instance, inform us what the status will be of those with previous convictions under this piece of legislation? The Minister said that those who are outside the timeframe of 21 days for appeal would be unlikely to be successful if they now tried to appeal. However, might there be a case for saying that those people may not try to appeal against their conviction, but may try to set aside the Act altogether?

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 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,

"the Minister responsible for the Bill should be required to make an oral statement to the House of Lords outlining the case for fast-tracking".

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,

"the details contained in the oral statement should also be set out in a written memorandum included in the Explanatory Notes".

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.

Photo of Lord Clement-Jones Lord Clement-Jones Spokesperson for Culture, Media and Sport 3:28, 18 January 2010

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 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?

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.

Photo of Lord Pannick Lord Pannick Crossbench 3:34, 18 January 2010

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.

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.

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Labour 3:43, 18 January 2010

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 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.

Photo of Lord McIntosh of Haringey Lord McIntosh of Haringey Labour

It was not constructive.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords) , Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (and Deputy Chief Whip)

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 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 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.

Photo of Lord Skelmersdale Lord Skelmersdale - Shadow Minister, Shadow Minister

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?

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords) , Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (and Deputy Chief Whip)

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.

Photo of Lord Clement-Jones Lord Clement-Jones Spokesperson for Culture, Media and Sport

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.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords) , Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (and Deputy Chief Whip)

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.

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.

I hope the House will feel that the Government have acted in the most able way they could to deal with what is undoubtedly a most unfortunate but, so far as we can identify, unique occurrence.

Bill read a second time and committed to a Committee of the Whole House.