(11 years ago)
Grand CommitteeRead Hansard Text Read Debate Ministerial Extracts
Baroness Benjamin
“Part 8AChildren participation in performancesChildren participation in performances
(1) Section 25 of the Children and Young Persons Act 1933 (restrictions on persons under eighteen going abroad for the purpose of performing for profit) is amended as follows.
(2) For subsection (1)(a) substitute—
“(a) for the purposes of taking part in a performance to which section 37(2) of the Children and Young Persons Act 1963 applies,”.(3) In subsection (1)—
(a) for “this section” substitute “section 37 of the Children and Young Persons Act 1963”,(b) omit paragraph (a) and after “granted in respect of him under” omit “this” and after “section” insert “37 of the Children and Young Persons Act 1963”.(4) Subsections (2) to (11) of the Children and Young Persons Act 1933 are omitted.
(5) Section 37 of the Children and Young Persons Act 1963 (restrictions on persons under 16 taking part in public performances, etc.) is amended as follows.
(6) After subsection (2) insert—
“(2A) For the purposes of subsection (2), a performance does not include participation in—
(a) filming by private individuals for uploading onto the internet for transmission (“user generated content”);(b) observational documentaries in which the child’s life and routine remains to a significant degree the same as it would have been had filming not been taking place;(c) unplanned and spontaneous filming where parental consent is subsequently obtained for the purposes of broadcasting;(d) filming in the context of news and current affairs journalism, or filming in the public interest in circumstances where it is not practicable to apply for a licence, without prejudice to the effect of sections 39 and 49; or(e) any further category as the Secretary of State may specify by way of regulations.”(7) After subsection (3) insert—
“(3A) Where subsection (2A)(b) to (e) applies such that no licence is required, the person responsible for filming the child shall carry out an assessment of risk prior to the filming taking place, save where it is not possible to do so, in which case such a risk assessment must be carried out as soon as possible after such filming takes place.”
(8) In subsection (4) after “will not suffer” insert “and in particular, that the child would not be subjected to any risk beyond that involved in the ordinary course of their life”.
(9) In subsection (5) after “imposed by the authority” insert “; such conditions shall however, seek to minimise any differences in conditions imposed in relation to different media and any such differences must be necessary and objectively justified for the purposes of protecting the child against a specified risk, and in particular, regulations shall not prohibit the recording or broadcast of live performances where the child’s participation in that live performance is permitted by the relevant licence”.
(10) After subsection (1)(b) insert—
“(c) go abroad for the purposes of a performance to which subsection 2 applies save that this subsection shall not apply in any case where it is proved that the child was only temporarily resident within the United Kingdom.”(11) Section 38 is repealed.
(12) Section 42 is repealed.”
Baroness Benjamin
My Lords, first, I declare an interest as an independent film and television producer, making predominately children’s programmes.
So far, we have had a great deal of rich debate on the Children and Families Bill—right to the very end. The majority of our debates have had the protection of children at their very heart. This is no less the case with this set of amendments on child performance—a subject very close to my heart.
For children, having the opportunity to participate on a film or television set, on stage or in a sporting event can be of huge benefit. It may be an exciting step in their performance career, give them an all-important confidence boost or simply be something that they remember for ever.
However, at the moment many children are prevented from taking part in performance due to antiquated and out-of-date legislation from the 1960s. That was a time when there were only three channels, and there were not the wide variety and diversity of opportunities for children that are available today. More importantly, the current legislation fails to provide strong safeguards and protection for children in today’s changing environment. The current legislation is simply not fit for purpose and desperately needs updating.
Under the current regime, seeking a performance licence can be difficult, time-consuming and unpredictable. Some local authorities simply act in such a way as to deny licences to children in their region as a matter of course. Others feel that they must apply the current legislation to the letter, and therefore they, too, deny children licences in their regions, while others try to help parents, children and the industry by pushing the confines of the legislation as far as they feel they can. With some local authorities licensing freely and others failing to do so, we have what can only be described as a postcode lottery in which there is no equality of opportunity for children. This is clearly not what we should be promoting in a progressive and diverse country such as the UK.
In 2010, Sarah Thane, who was a content and standards adviser at Ofcom, carried out a comprehensive review into all aspects of child performance regulations. The report concluded that the system of licensing child performance needed urgent and radical overhaul. In February this year, the Government published the results of a wide-ranging public consultation. While a range of views was given, there was broad consensus in many areas, including on the fact that legislative change was needed to improve the situation.
I am sure that noble Lords will have noticed that there is no current wording on child performance in the Children and Families Bill. However, I see the Bill as an ideal opportunity to deliver much-needed change and to provide a better legal framework that will both protect and safeguard children and young people and, more importantly, give them equal access to opportunities. The changes will give clearer guidance, transparency and consistency among local authorities when dealing with these matters.
At this stage of the Bill, I am not suggesting that we try to change the whole of the out-of-date 1960s Act. These focused and targeted amendments are addressing the major concerns that urgently need reform. So what do they seek to achieve? I will talk about three key areas of focus: first, improving equality of opportunity; secondly, improving safeguarding and risk assessment; and, thirdly, working with local authorities to achieve compliance.
On equality of opportunity, at the moment not all children or even types of participation and performance are treated equally. Currently, the narrow definition covers only acting, singing or dancing and does not include the wealth of opportunities available to children in the 21st century, such as observational documentaries, reality shows or educational programmes. Only recently, an important educational documentary, which was to be filmed at the British Museum, nearly did not get the go-ahead because of the failures of the current legislation. These amendments would do away with this restrictive definition and allow all children under 14 to participate in a range of performances.
At this point, I want to make it absolutely clear that the rules in the amendments would not cover circumstances where someone has filmed content and put it on the internet themselves—also known as user-generated content—or where the filming involves children in the ordinary course of a child’s life, in which case there is no impact on them. This would include documentaries, news and vox pops, where it is simply not feasible to seek a licence in advance.
However, even here the amendments would still require a risk assessment and duty of care for the child when the programme is broadcast. The amendments would also put an end to different mediums, such as television and theatre, being treated differently. This would end the bizarre situation—for example, as happens with the Royal Variety Performance—where children cannot perform after 7 pm purely because the live theatre show is also being broadcast on television. Had the cameras not been there, the children could have performed. This is becoming a recurring problem as many theatre performances involving children are now being recorded live to be shown in cinemas across the country to make art and culture more accessible. Noble Lords might have read recently about the talented choirboy who missed out on the experience of a lifetime of performing in the Royal Albert Hall at the Last Night of the Proms. Because the selected young soloist would have been singing after 7 pm, the organisers had to use an adult to sing instead. The young boy was denied a wonderful opportunity.
I now turn to improving safeguarding. These amendments have the safeguarding and protection of children at their very heart. Even though we are removing old and narrow definitions, this is absolutely not about deregulation. It is about better and more consistent regulation. The amendment would introduce a proper risk assessment for producers to complete which would be approved by local authorities. The risk assessment will cover all health and welfare issues and ensure that they are properly and professionally addressed. These changes will provide clarity and consistency. They will also make sure that any British child performing overseas has the same level of protection as a child performing in the UK. This does not happen at the moment.
Finally, on working with local authorities to achieve compliance, from my conversations with the Local Government Association, I have found that it is supportive and agrees that times have changed since the 1960s. It, too, feels that the legislation needs to be updated. I have met Councillor David Simmonds, the chair of the LGA children’s board. He expressed the LGA’s concern about the existing regulations and said how exposed and uncomfortable it feels with them as they stand. This is why we need to be working with local authorities now, as they, too, recognise that the creative industries are an important driver of the economy and offer many employment and personal development opportunities.
If the amendments are agreed, the industry will work with the LGA to develop a risk assessment framework that will streamline the system and reduce bureaucracy. These amendments are absolutely not about creating more work and headaches for local authorities. The legislation would put the responsibility in the hands of the producer to achieve the required standards of risk assessment. This would be delivered through an agreed and standardised format. Local authorities would then be freed to learn more about the work of production companies and to focus more on the critical compliance issues. A great deal of work has already been done by the industry to develop a risk assessment framework, and it is ready to be developed further.
Finally, I point out that these amendments have been developed in collaboration with an industry-wide coalition of public service broadcasters, including the BBC, ITV, Channel 4 and Pact—the Producers Alliance for Cinema and Television. There is strong support from the National Network for Children in Employment and Entertainment, chaperones, schools and child psychologists. The amendments also have cross-party support, including from the noble Lord, Lord Inglewood, chair of the Lords Communications Committee.
I hope the Minister will agree that this Bill offers a key opportunity to address safeguarding for children around performance. These amendments would make sure that all children, no matter where they live around the country, have equal and safe access to positive development opportunities. So let us take this opportunity to update antiquated legislation that is not fit for purpose. We simply cannot leave this for another 50 years. I ask the Government to support these amendments and send out a clear message to all involved with child performance regulations that government are taking action now. I beg to move.
Baroness Howe of Idlicote
My Lords, I am a firm supporter of child protection, as well as someone with a long-standing interest and involvement in broadcasting issues. The amendment in the name of the noble Baroness, Lady Benjamin, aims to improve the legislative framework to the benefit of both those areas, ultimately providing children with more opportunities to participate in performances of all kinds under a clear and robust framework of protection. I therefore very much welcome and support Amendment 268.
Most of your Lordships will be familiar with the appearance of children on our television screens, whether it is in documentaries, dedicated children’s shows, dramas or entertainment programmes. Children benefit from these appearances by gaining confidence and new skills, and it is important for society as a whole that children are both seen and heard in the media. Equally, we can all agree that children should have the right to participate in such programmes and that the process for ensuring that they are appropriately protected should be clear and consistent. As we have heard, unfortunately at present this is not the case.
In particular, I welcome the comments made by the noble Baroness, Lady Benjamin, around improving equality of opportunity. I have been a long-standing campaigner for equal opportunities for adults, and they are of equal importance for children. The noble Baroness talked about how some local authorities deny children in their regions the opportunities to participate, while others try to navigate the legislation. It cannot be an acceptable state of affairs for some children to be given the opportunity to participate in a programme while others are denied it purely because of the lottery, as the noble Baroness said, of where they happen to live. That must be changed so that all children of all ages can participate in a full range of programmes.
Protection of the child is at the heart of our discussions throughout the Bill and must be at the heart of any considerations here. I am assured that the broadcasting industry is not looking to get out of its responsibilities. As the noble Baroness, Lady Benjamin, said, this is about better regulation, which is the goal of all who sit in this House. The amendment would introduce a comprehensive, standardised risk assessment, covering all possible health and welfare issues, and make it more efficient and consistent. It would be underpinned by the existing regulatory framework that would continue to be in place.
Broadcasters are obliged under the Ofcom Broadcasting Code to have a duty of care to the,
“physical and emotional welfare and the dignity of people under eighteen”,
participating in programmes. That applies to all television programmes at all times. I know that a great deal of guidance is issued and that efforts are made by all in the industry to meet these responsibilities.
The amendment is aimed at providing much-needed reform to the current system and replacing it with a more consistent, clearer and, above all, fairer framework that puts risk at its heart. That means that rather than spending their time trying to navigate the complex laws and arbitrary definitions, the production companies, local authorities and broadcasters can better spend their time analysing the real risks and putting child protection more at the heart of their work. These changes will provide clarity and consistency to ensure that every child in performance is properly protected and that all children are licensed. I therefore urge your Lordships, particularly the Minister, to support this amendment.
Viscount Colville of Culross (CB)
My Lords, I declare an interest as a television producer for the BBC. I support the amendment. It will both encourage children to extend their skills and protect them from the possible threats posed by the proliferation of new media platforms. It responds to the explosion in the range of media in which children can now appear. It takes into account the ever-changing programming available today, as factual and entertainment programmes are commissioned to entertain an audience with an increasingly short attention span and greater demands to be surprised and shocked.
The amendment would introduce a consistent local authority licensing system for under-16s who perform in the visual media, as we have already heard. As a television producer, it might seem odd that I should want to make my life and that of my colleagues more difficult by extending the regulatory regime, so that we would have to do more work when preparing for a production that involves young people. But it is because I am a television producer that I am well aware of how the present regulatory system is failing children. It often frustrates the hopes of children while failing to protect them from the dangers that may await them.
The noble Baroness, Lady Benjamin, explained the chaotic postcode lottery of different local authorities and their responses, which is very difficult for producers in the media who want to work with children. There is a case of children in a school that served two neighbouring local education authorities. The school was asked to take part in a concert to be broadcast on television. But when it came to transmission, only half the choir had permission to perform. One authority had given a licence to perform and the neighbouring authority had refused. How on earth can that be fair on the children involved?
Subsection (6) of the proposed new clause is in line with paragraph 104 of Sarah Thane’s review, which calls for a proper definition of what constitutes “performance”. The subsection is very important. It spells out which filmed activities involving children do not require a licence, although they will still of course require permission from parents and head teachers. It makes clear that everything else would be covered by the licensing system. The result would be that many new genres, which at present are not covered, would be included.
For instance, there is a new type of programming called structured reality TV, which masquerades as observational documentary while in fact the participants are open to direction. The genre covers shows such as “The Only Way is Essex” and “Made in Chelsea”, with which I am sure your Lordships will be familiar, which are massively popular with a young audience. At the beginning of the show “TOWIE”, viewers are mischievously warned, “Some of the tans you see might be fake, but these are real people, although some of what they do has had a little nip and tuck purely for your entertainment”. The warning should give the Committee a clue that the characters are subject to a narrative created by producers in which they are directed in a situation to ensure maximum drama, violence and even sex.
The Committee will be pleased to hear that at the moment most of the participants in these shows are aged over 18, but there are attempts to commission versions with much younger characters. The executive producer of “The Only Way is Essex” has said that when the producers are casting characters for these reality shows, they have to read them what is called “the talk of doom”, in which they warn them that people chosen to appear in the show will be recognised and abused in the street, their private lives will be watched and criticised by millions and their lives will be completely changed, not always for the better.
Apparently, the candidates, all from the social media generation, look at the executive producer with blank incomprehension. They cannot understand why they are even being warned about this. These young people’s private lives are already open books, thanks to social media. I fear that there is a generation who do not understand how psychologically damaging it can be have your privacy destroyed. We as lawmakers need to protect them and ensure that in an ever-changing media environment they are not exploited by the ruthless demands of the media.
Subsections (7), (8) and (9) of the proposed new clause are in line with the recommendations in paragraph 92 of Sarah Thane’s review, which suggests that, when it comes to licensing, the focus should be on the child—on what they are being asked to do and on the level of risk involved. This would ensure, as has already been said by noble Lords, that the consideration by local authorities of the risk to children is uniform and thorough. At the moment, decisions made by LEAs can be irrational. There was recently a case of a six year-old boy who was mentored and trained by the Olympic diver, Tom Daley, and who wanted to appear with him on the ITV show, “Splash”. All he wanted to do was dive with his hero on television, but at the last minute his local LEA in Cornwall refused him a licence to appear on the grounds that he was too young. You can imagine his disappointment.
If this amendment is adopted, a licensing code of practice will be rolled out uniformly to all local authorities across the country. Its risk assessment will cover the mental and physical health of the young people taking part in performances. Obviously, the risk assessments should be adhered to, but in the present climate of pressures on budgets and the intense competition to surprise and shock audiences across the media, enforcement will be crucial. The new system must include a tough regime of inspection of productions that involve children.
We are in a new world. The internet and digital television offer us a jungle of diversity and shock. We need to update, streamline and extend our present licensing system. Only then will our children’s performances on the media be directed with their best mental and physical welfare being at the heart of the production. I urge noble Lords to support this amendment.
Lord Storey
My Lords, I am tempted to suggest that perhaps there ought to be some regulations regarding the times that we can perform, so that we know when we will start and finish and that we are being safeguarded correctly—but clearly that is not going to happen.
I went along to an all-party group looking at children and young performers in the media. I did not realise the problems that not only children face in terms of safeguarding. I am being told to shut up—you see, I cannot even perform.
I will make three very quick points. First, the legislation that was quite rightly introduced in the early 1960s was to protect children, but since then history has moved on. Times have moved on. Never mind a few television channels, we have hundreds of them. We are seeing the law being broken. There are television shows that are breaking the law. There are others that are playing by the outdated 1960s regulations. For example, a poor lad wins a talent competition, but because the witching hour has passed, he has to sit in the audience and cannot be part of the winning group.
I remind noble Lords of the three concepts that my noble friend Lady Benjamin spoke about: consistency, transparency and making sure that safeguarding happens. Currently, safeguarding does not happen. If we take only one thing from this rather truncated discussion, it should be that safeguarding children has to be not only about safeguarding them as individuals but about safeguarding their opportunities. It cannot be right that children in some local authorities are allowed to take part while in other local authorities they are not.
When the Minister replies—briefly, no doubt—I ask him to consider how we can make this happen, because we cannot have legislation trying to protect our young people that goes back to the early 1960s. I had lots more to say, but perhaps I can save that for another time—or, hopefully, not.
Lord Stevenson of Balmacara
My Lords, I thank noble Lords who contributed to this debate. It is a good topic and one which we have been happy to put our names to in order for it to have the best possible chance of being successful.
The noble Baroness, Lady Benjamin, will not mind me saying that when I first came down as a raw and untutored-in-the-cinematic-arts person from Scotland, she was one of the first people I met. She wowed me then, and she wows me now. That performance—Floella, you were wonderful.
I am very pleased to be able to support this update of legislation that was last updated in 1963. Clearly, as we have heard, the world of television and film performance has been transformed since then. As noble Lords mentioned, it is important that the legislation properly reflects the full range of opportunities available to young people and at the same time builds in safeguards that will protect them from exploitation or physical or mental harm.
However, the chance to be involved in film and television work—indeed, this also applies to stage work—depends where you live, with local authorities operating rules in a very inconsistent way. There are also huge disparities in the amount of paperwork required. We need to update the legislation. It needs to widen the types of involvement suitable for child participants and to make sure that it covers the range, as has been mentioned, away from just simply acting and singing. What a wonderful world 1963 must have been if that was all you could do. I would not know. “Stop mucking about”.
Lord Nash
My Lords, I thank my noble friend Lady Benjamin and all other noble Lords who spoke in this important debate. My noble friend Lady Benjamin makes a heartfelt case for updating the law in this area. Her long involvement with the performing arts and her work with children make her extremely well qualified to speak on these matters—as of course is my noble friend Lord Colville.
The achievements of the UK broadcasting sector and the importance of the creative arts to our economy cannot be overestimated. Our cultural industries are recognised throughout the world for their groundbreaking innovation and their wealth of creative talent. We are proud of that, and we should continue to support them to grow and achieve. We must nurture our young talent. The child performance licensing system was designed to allow children to take part in performances and, importantly, to ensure that arrangements are in place to protect them when they do. The broad framework has done that effectively and continues to do so. This is also something to be proud of.
The system was designed in an age when broadcasting was in its infancy. New forms of media that are commonplace today were unheard of then. Our attitudes to children and to art have also moved with the times. However, some aspects of the licensing framework clearly have not. That is why, last year, the Government consulted on proposals for change. The consultation highlighted a number of problems. Some problems certainly stem from different local approaches to administration, as noble Lords have said. I welcome Councillor Simmonds’s leadership in tackling this. I recognise his concerns, and I am pleased that the Local Government Association plans to promote best practice to achieve greater consistency and reduce bureaucracy in this area.
We want to see more use of the flexibilities that already exist, especially when children perform in a non-professional capacity. More amateur groups and charities with a good track record for safeguarding should be approved to involve children in performances without the need for extra paperwork. Paperwork does not protect children.
Problems clearly exist in the system, but responses to our consultation were split on some key proposals. We do not agree the case for wholesale legislative change at this time. It is important that we get the balance right between increasing opportunities for children and protecting them from undue risk. We do not intend to take any action that could reduce the protections that are in place for child performers.
I recognise, however, that there are a small number of legal provisions that currently prevent children from taking up opportunities, for no good reason. We heard recently from the Royal Opera House about how an anomaly in the regulations meant it could not screen a ballet performance to a worldwide audience, or even to the home town of a very talented young dancer. The well-being of children is paramount, but there should not be unnecessary barriers to their taking part in performance arts, or to the airing of their talents.
I listened carefully to what my noble friend Lady Benjamin said tonight and at Second Reading, and to what other noble Lords said, and I am delighted that I shall meet her tomorrow. I look forward to that. We will explore what might be done to remove barriers without unpicking any of the important safeguards, and we are keen to be as helpful as possible. I therefore urge my noble friend Lady Benjamin to withdraw her amendment.
As this is the last debate in Committee, I take this opportunity to thank all noble Lords—those here this evening and those who have attended previous sittings—for their constructive, insightful and expert contributions to our Committee debates on the Bill. I also thank on behalf of us all the chairs, clerks and Hansard for staying on tonight.
This has been a most thorough and comprehensive scrutiny of the Bill. I and my noble friends Lady Northover, Lord McNally, Lord Attlee, Lord Howe and Lord Younger have learnt a great deal from noble Lords. We have a number of meetings already arranged, and I look forward to speaking to noble Lords here today and to many others about the issues that we have debated. I am committed to ensuring that those discussions move forward constructively so that we can resolve many of the issues that we have discussed ahead of Report.
Baroness Benjamin
I thank my noble friend for that response. I think that there is some sort of encouragement there. I cannot quite read the signs, but I hope that when we meet tomorrow I will get something perhaps a bit more constructive and concrete from him.
I am very grateful to all noble Lords who put their names to these amendments—it means so much to me—and to those who spoke so eloquently at this late hour. It is much appreciated. All noble Lords pointed out that the amendments represent an important step-change in addressing inequality as well as ensuring that there are provisions in place for strong safeguards and protection for all children who wish to perform and take part in any aspect of today’s vast media environment. I am encouraged to hear that the Minister will give guidance and recommendations to local authorities on how to have concise, coherent and consistent guidelines. That is wonderful. I strongly believe that we need to go further. I appreciate that using this Bill to solve the problem of children’s performance regulations might not be possible, but this is an important issue that ultimately will need more permanent change to the current outdated legislation.
I will say something now that I will probably say tomorrow—but I want to say it publicly. I intend to bring a Private Member’s Bill at an appropriate point to deal with child performance regulation, bringing it into the 21st century, to cover the range of concerns that those in the industry have with the existing Act. Will the Minister be able to give me a reassurance that the Government will give strong consideration and support to such a Bill if that were the case?
Baroness Benjamin
I thought that my noble friend might say that, but I wanted to say it publicly anyway. I look forward to discussing this matter further. I, too, thank Hansard for staying with us at this late hour to record what we have said on this important issue. With that in mind, I look forward to meeting my noble friend the Minister tomorrow, and I beg leave to withdraw my amendment.
“(6) A statutory instrument containing (whether alone or with other provision)—
(a) the first regulations to be made under section 49,(b) an order under section 54(1) or 55(1), or(c) an order under section 108 which amends or repeals any provision of primary legislation,is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”