Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill

The Convener

Agenda item 5 is our second evidence-taking session on the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill at stage 1. I refer members to paper 3, which is a note by the clerk, and paper 5, which is a Scottish Parliament information centre paper. James Kelly is attending the meeting as the member in charge of the bill.

I welcome to the meeting Danny Boyle, who is a parliamentary and policy officer with Black and Ethnic Minority Infrastructure in Scotland, or BEMIS (Scotland); Tom Halpin, who is the chief executive of Sacro; Sandy Riach, who is the vice-chairman of the Scottish Disabled Supporters Association; and Colin Macfarlane, who is the director of Stonewall Scotland. I thank all the witnesses for supplying written evidence, which we have found particularly helpful: indeed, some of the responses have been very detailed.

We move straight to questions. First of all, are the panel members in favour of or against repeal, and why do you hold that view? Who would like to start?

Danny Boyle (BEMIS (Scotland))

I do not mind going first. Thank you very much for having us along this morning to discuss this very serious bill and the general issues and social concepts that surround it with regard to hate crime, inequality and human rights.

The convener asked whether we support repeal of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. The direct answer is yes—we support repeal of the act because we are not convinced that it appropriately or effectively tackles hate crime. If the committee will allow it, I will give a brief overview of our rationale for that.

In 2016-17, there were 3,349 racially aggravated charges brought in Scotland. Over the lifetime of the act, between 2012 and 2017, there have been more than 20,000 charges. Over that period, there have been a total of 64 racially aggravated charges under the act.

The predominant hate crime charge under the act has been for religious aggravation, and the predominant characteristic within the religious aggravation is anti-Catholicism, which accounts for over 75 per cent of charges in every reporting year. That being said, in relation to the volume of attendees at Scottish football matches, hate crime charges under the act actually account for less than 50 per cent of all charges in every year of reporting. Indeed, in the year in which the act was used most often—2016-17—in which there were 377 charges, only 18 per cent were for hate crimes.

We support a policy of mainstreaming and coherence that strives to ensure that there is a remedy for those who face hate crime on a daily basis in Scotland. The 2012 act does not achieve that; rather, it creates a disproportionate focus on one section of society when the overwhelming majority of hate crime is taking place somewhere else.

It is also misleading to promote the act primarily as hate crime legislation. It deals mostly with threatening behaviour, fighting or threats to fight, so it has reclassified offences under section 74 of the Criminal Justice (Scotland) Act 2003 and under breach of the peace. That is a laudable aim, but those are not a hate crime charges.

We are additionally concerned that the breadth of the law may create restrictions on freedom of expression and equality for all—specifically section 1(2)(e) of the 2012 act, which covers

“other behaviour that a reasonable person would be likely to consider offensive.”

From a minority community’s perspective, that poses challenges. Some of the communities that we work with are not always part of the dominant social narrative. When it comes to contested social issues, two valid but opposing opinions can exist, which can create real problems.

We are aware of some of the broader discussion of the idea that the act should be extended to other sections of society. We are slightly concerned about that. There is recognition in “Race Equality Framework for Scotland 2016-2030”, which was published in March 2016, that we must have a much broader conversation about Scotland’s role in the transatlantic slave trade and Scotland’s co-participation in colonial endeavours in the empire, and how those are now manifested in social issues that affect communities in Scotland today. To apply section 1(2)(e) in a much broader context to contested social issues could pose much larger problems for minority communities.

For those reasons, we support repeal of the 2012 act. We look forward to extending the discussion with members.

The Convener

Before I move on to the other panel members, will you comment on the policy memorandum to the 2012 act? You highlight in your submission the acknowledgement that sectarianism is a social concept that has no legal character in Scots law, which I find quite interesting.

Danny Boyle

The general point is that the concept of sectarianism remains a contested social issue. We have had recommendations from Dr Duncan Morrow’s independent advisory group on what the definition of sectarianism should be, but our general argument is that it has to happen independently of the judiciary as a first port of call because it remains a contested term. When hate crime occurs, irrespective of whether it is anti-Catholic, anti-Protestant, anti-Semitic or Islamophobic, it is quite clear.

However, the general jargon, particularly in relation to the contested concept of sectarianism, has been caught up with section 1(2)(e) of the 2012 act. From our perspective, things that are not necessarily sectarian are being called sectarian, which is clouding the broader narrative on what the 2012 act sets out to achieve and its purpose.

The Convener

I am more interested in the point that the concept has not been tested in Scots law and has no legal character, and so might be based on a false premise. Is that more or less what you mean in your written submission?

Danny Boyle

The policy memorandum that supports the 2012 act acknowledges that sectarianism is not a legal concept in Scots law.

The Convener

Is that part of the problem, as you see it?

Danny Boyle

That debate has to happen in civic society independently of cases being taken through the courts: the social and political issues must be debated independently of the catch-all legislation.

The Convener

Thank you. Who would like to go next?

Tom Halpin (Sacro)

On behalf of Sacro, I endorse the 2012 act’s initial intention in terms of hate crime and prejudice, so anything that I say about repeal should in no way detract from our regarding them as reprehensible. However, I have learned, from working with people who have been arrested or reported for that crime, something that is more around the sectarianism element.

Sacro operates a project on tackling offending prejudices, in which we receive referrals from the Crown Office and Procurator Fiscal Service. We also work with people who have been given community payback orders for other offences, but who have exhibited those attitudes of prejudice. The project has a cognitive behaviour therapy programme that gets into attitudes and belief systems. The reality for the year that had most cases—2016-17—is that the project received 26 referrals. There is therefore inconsistency in how the 2012 act is applied in terms of the numbers that are coming through.

Of those 26 cases, seven included what would be defined as sectarianism, and one of those was about sectarianism and homophobia. However, of those seven cases, only three were referred through the 2012 act, so we know right away that legislation beyond the 2012 act is also taking such behaviours into account. Through the 2012 act, we are applying specific legislation to one group in society—football supporters—of whom many come from disadvantaged backgrounds, so we are stigmatising them because we have legislation specifically for that group.

When I was putting together my written submission, I was trying to find a balance in respect of why we would legislate against a behaviour, and so on. For me, there has to be a compelling case for doing that. However, four of the seven cases that were referred to the project were not dealt with under the 2012 act, so how compelling a case is there for having that legislation for only one group in society? I acknowledge that broader prejudices have been referred to in the discussion here. That is a bigger discussion, but we are talking about the area that the 2012 act relates to, which is bringing out quite controversial views at the moment.

At the start of the legislative journey, Sacro supported the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill and lots of its principles. However, we say that broader legislation is available. With regard to giving fixed-penalty tickets to people, the ages of the 26 people who were referred to the project range are pretty balanced through the range from 20 to 50, so is not just about young people or middle-aged people. As a sample, that group includes a broad age range. However, if we simply give a fixed-penalty ticket to someone who is chanting something that they would say their uncles and fathers had chanted in the past, and they do not understand why they have been given a fixed penalty, we are sending someone away who has not changed their attitude and who might be even angrier because they have just lost money, which they do not have a lot of in the first place.

The Convener

On the fixed penalty, are you talking about the transitional arrangements and when they would come in, or more generally?

Tom Halpin

Exactly: part of my submission says that that should not happen. Unless people are looking at and working on the behaviours and the belief systems that underlie them, they will not change things. The low level of referrals shows that there is, at the moment, inconsistency in how the legislation is applied.

The Convener

Thank you for that. Who would like to go next?

Colin Macfarlane (Stonewall Scotland)

Thank you for the opportunity to give evidence. Stonewall Scotland supports the principles of the 2012 act, and we supported the then bill when it went through the parliamentary process in 2011 and 2012. The act sends a clear message that abusive behaviour at football is not acceptable.

We know from our research that a clear issue is that lesbian, gay, bisexual and transgender people fear attending football matches. We know that 60 per cent of sports fans in Scotland have witnessed anti-LGBT language or abuse in a sport setting in the past five years, and 82 per cent of those fans witnessed that behaviour in a football setting. LGBT people tell us that football is a sport in which they do not feel safe or secure, whether that is because of chanting or comments that are made in the stands.

Our view was that the act would send a clear message that such behaviour is unacceptable. Repealing the act without putting other measures in place could undermine work that has been undertaken by organisations such as Stonewall Scotland, the Equality Network, football clubs, Police Scotland and the criminal justice agencies to increase LGBT people’s confidence not only in reporting hate crime but in attending sporting events such as football.

We agree that there are implementation issues. We said in our submission that, as the act has been in place for five years, it is probably time for a review of what is and is not working. Our view is that nothing should happen until the review of hate crime legislation that Lord Bracadale is undertaking has reported back. That would be a good time to look at what needs to be done, whether the 2012 act needs to go and what reform it needs if it is to stay, and to look at hate crime legislation in the round.

Repealing the act without putting anything in place would be damaging—it would send a negative signal to LGBT people. Most LGBT people will not be watching today’s meeting and will not pore over the Official Report or look at the intricacies of the different elements of the act, but they will see a headline that says that the act that potentially protects them at football matches has gone. That would lead to a lack of confidence.

Sandy Riach (Scottish Disabled Supporters Association)

Thank you very much for allowing me to speak today. I am new at this so, if I seem unprepared, that is probably right, because we came into this late. The Scottish Disabled Supporters Association is a young organisation—it was formed on the back of UEFA—and I look after all the clubs and their bits and pieces in Scotland.

I agree with the rest of the team of witnesses that we cannot have nothing at all, not just because of elements but because of what happens across the board. People do not care. Sometimes they do not realise how something affects people with disability—how they take chants, songs and speech. That is across the board, whether someone is in a wheelchair, is ambulant disabled, is autistic or has learning difficulties. A lot of people forget that such behaviour has a different effect on those people from that on someone with a normal ability.

It would be wrong to get rid of the legislation completely. Something needs to be put in place or kept in place for the future.

The Convener

To be clear, if something else was in place, might you be in favour of repeal, or are you against repeal per se?

Sandy Riach

I am against repeal unless there is something in place, if the position is reviewed or updated.

The Convener

Is it your submission that the act is not perfect? Would you like it to be looked at again and reviewed?

Sandy Riach

Yes.

The Convener

That is clear—thank you.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Despite differing views, everyone would probably agree that offensive behaviour does take place, generally and at football. Is such behaviour at football matches a problem that the clubs could deal with? Mr Riach just said that he thinks that something needs to replace the act if it is repealed, and I ask the other panel members for their views on that. It is clear that, if the act was repealed, a gap would be left.

Tom Halpin

The problem is broader than just the clubs. There is offensive behaviour, which is on many occasions criminal behaviour, and broader legislation is available to deal with aggravations and hate crime. I am not a lawyer, so I would have to defer to others on the specific acts, but our referrals show that people are being charged with offences under other legislation and are being referred to initiatives such as ours, which includes outreach and education and is not just about the 26 people with whom we worked directly. We could work with more people, as we have trained people across Scotland, and there are other initiatives like ours. The idea that the clubs will change someone whose behaviour is so embedded and so offensive by taking away their season ticket will not tackle the hatred that is out there; the approach has to be broader than the clubs.

Rona Mackay

By extension, that means that you think that there would be a gap if the act was repealed and that there would have to be something else.

Tom Halpin

The point that I made was about the cases that were referred to us, four out of seven of which did not come through the act. Other legislation is available and I believe that, if that was applied appropriately, it would cover the gap.

Danny Boyle

I will cover briefly what is criminalised by the act and then touch on the most pertinent point, which is where we will go from here and what we will do next. As I said in my introductory comments, the act primarily reclassified beach of the peace as threatening behaviour, and 60 per cent of the charges over the act’s lifetime have been for offences in that category. In the words of the Crown Office,

“The offence was classified as threatening where the accused threatened another/other person/people; it involved the accused acting in a disorderly or aggressive manner, making threats or challenging others to fight, or where they engaged in fighting.”

It is a laudable criminal justice aim to prevent such offences. We can see that the majority of the charges relate to a single game—the 2016-17 Scottish cup final. In short, the act covers serious public order issues, so it is unclear to BEMIS why those issues are being collated and portrayed as relating to hate crime. We already suffer from a lack of clarity as to the locus and motivation of perpetrators and the ethnicity or other characteristics of victims of hate crime. The dissemination of statistics in relation to the 2012 act further clouds what is ambiguous and offers no illumination on the extent of hate crime issues in Scotland.

We have touched on the fact that the act covers some instances of hate crime but, as I outlined, that constitutes less than 50 per cent of all charges in each year of reporting, and the figure is as low as 18 per cent for 2016-17. The vast majority of instances are anti-Catholic, which reflects a broader issue that we know about—that the vast majority of religiously motivated hate crimes in Scotland are anti-Catholic and have been in every year since devolution. Disaggregated data on the ethnicity of those who suffer racially aggravated crime would be incredibly helpful. That being said, any hate crime is utterly unacceptable and, whether it is anti-Protestant, Islamophobic, anti-Semitic or against any other protected characteristic, we need to identify such crimes individually and not consume them in a generic, catch-all narrative.

Over the five-year lifetime of the act, specifically in relation to hate crime—not a reclassified breach of the peace—we have had 64 race charges, six anti-Semitic charges, four Islamophobic charges, eight homophobic charges and one aggravation where anti-disability was the charge. All those hate crimes would be covered by pre-existing legislation. There is absolutely nothing new in the act that did not exist before 2011 to deal with hate crime.

As an aside, although it is a key point, the Bracadale review was initiated to bring clarity to the suite of hate crime laws and live legal instruments, so we know that the spread of those laws is confusing to the victims of hate crime in knowing which piece of legislation to use to get an effective remedy. The football act has increased that confusion, as opposed to helping us to deal with it.

As we said in our submission to the Bracadale review—I discussed this with Colin Macfarlane as we came in earlier—we think that the most sensible thing is to create a universal approach to tackling hate crime that is preventative and rooted in education but which also has a strong legal remedy when necessary. The most simple way in which we envisage that being taken forward is to have a piece of hate crime legislation that reflects the characteristics in the Equality Act 2010 and which can be evolved and updated as society changes. Some of the contested issues that remain live in the context of the football act are about things that do not constitute hate crime and are separate—they are about what would be offensive to a reasonable person. They have to be dealt with outside the legislation.

We have seen that the implementation of the legislation has polarised the judiciary, the police and certain sections of football fans and, to an extent, it is polarising equalities organisations in relation to the best approach to tackling hate crime. We struggle to see the value in continuing down this road and we would much rather see an informed universal approach and strategy for challenging hate crime in Scotland.

Rona Mackay

Some of your remarks do not reflect what we heard from the police at a previous evidence session. They are not finding the situation confusing, but—

Danny Boyle

To be perfectly frank, the 2012 act has created an anomaly in our relationship with the police. We have an incredibly positive and proactive working relationship with the police in every other facet of our work. Police Scotland’s equality and diversity unit does fantastic work, as do community police officers on the ground, in engaging refugees and minorities. Our most robust and frank conversations with Police Scotland have related to the implementation of the act.

It does not surprise me that Police Scotland wants to maintain section 1(2)(e) of the act, which refers to what would be offensive to a reasonable person, as it is in Police Scotland’s interests to do so. That power is instilled in police officers on the ground, who then assess any given situation. We feel that it places police officers in a precarious position. They are not anthropologists, sociologists or political commentators, so the act is a difficult piece of legislation for them to implement and it immediately puts them in a negative interaction with football fans or other members of society. It fundamentally undermines the concept of policing by consent. We therefore have a degree of sympathy for police officers in that context.

Rona Mackay

I am sure that that is your view, but it is not what we heard from the police.

Does Mr Macfarlane have any comments?

Colin Macfarlane

There was a lot in what Danny Boyle said, but I will pick up on some of it. I do not agree that equalities organisations are polarised; I think that we are probably coming from the same place overall, which is that we want to ensure that our constituents feel safe and secure when they attend sporting events, whether that be football or whatever.

As I said, we agree with the principle of the act and the message that it sends. We are not religiously wedded to the act, and we highlighted in our written evidence areas where improvements could be made if it is to stay and where some of the implementation has not been quite right—particularly in relation to LGBT reporting and recording. However, our big worry is about the signal that will be sent to LGBT people if the act goes and nothing is put in its place.

Police Scotland has been doing really good work along with organisations such as mine, the Equality Network and LGBT Youth Scotland, and we have been working with the Scottish Professional Football League and clubs to start building the confidence of LGBT people in attending matches and to allow them to feel safe and secure in sporting environments. The act is symbolic for them, because it gives them the sense that they are covered. As I mentioned, people often do not know about the intricacies of the legislation that does and does not cover them, but they know that, if they go to a football match and hear homophobic chanting or if somebody throws homophobic, biphobic or transphobic abuse at them, the act will protect them. The bit that we support is the principle of the act.

To go back to the Bracadale review, Danny Boyle is right that the gamut of legislation is confusing. I do not want to pre-empt what Bracadale will say, but it probably would be better if there was a streamlined system of hate crime legislation. We should wait and see what Lord Bracadale comes back with and then consider and review the situation and move forward on deciding whether the act should remain and be reviewed and improved or whether something else should be in its place. The Bracadale review is the best way to look at that—it would be folly to get rid of the act before Bracadale reports back.

Liam McArthur (Orkney Islands) (LD)

Thank you for your evidence. I am struggling to get my head around the concept of the message that repealing the bill would send. I can understand why, in part, legislation can be about sending a message about Parliament’s—and wider society’s—acceptance or rejection of particular behaviours, but we are hearing that the 2012 act is not delivering beyond the gamut of existing legislation. It is not sending the right message if it is convincing people that it provides protection that it does not. Would those protections not be better provided by repealing the act and, through the Bracadale review and—as Danny Boyle suggested—equalities legislation, creating a more effective catch-all approach to behaviours that we all agree are reprehensible? I cannot understand why we would want to keep the act in place as a way of sending a message about protection, given that it does not provide that protection.

Colin Macfarlane

We support the principles of the 2012 act, but we are not wedded to the act itself, should it be repealed or reviewed. The implementation of the act is what is important. We have looked at some of the implementation issues and we do not disagree that they are there. However, the act sends a signal: for an LGBT fan or person, the fact that the act exists and will protect them—although there are other bits of legislation that can do that—has a symbolic element. We are not wedded to whether the act should stay or go, but we want to ensure that the signal that it sends remains. If it were to be repealed and nothing was put in its place, what would that say?

The Bracadale review is looking at elements of hate crime reporting in general. We know that very few LGBT people report hate crimes. It is a confidence issue that we need to work on with Police Scotland and civic Scotland. In the context of football, that means making clubs safer places for LGBT people. We are not saying that the act is perfect—it is not. We are saying that if you simply get rid of the act without putting something in its place, that will send a negative signal to LGBT people about whether they can feel safe and secure in a football or other sports setting. That is where we have an issue with a blanket repeal and that is where the Bracadale review comes in. Bracadale will come back with recommendations and we should look at those, see what is suggested and take it from there.

Liam McArthur

As someone who has expressed concerns about the 2012 act and who supports its repeal, I am concerned that my position, which I share with other members of the Parliament, will be construed as sending a unfortunate message to the LGBT community, particularly given that the Scottish Parliament has an unrivalled track record in doing much to support that community. We are hearing the concerns that Mr Boyle and others have raised about the effectiveness of the act and the effect that it has had on relations in the network of equalities organisations and between that network, individuals and the police.

I am very wary about the issue regarding the message and I am interested to hear Mr Boyle’s position on that matter. The idea that repealing the act would somehow send an unfortunate message about the Parliament’s support for people in the LGBT community is something that I find difficult to understand and accept.

Colin Macfarlane

Can I just come back on that? LGBT people tell us that the act gives them confidence to attend those events and that they feel protected, safe and secure. They also tell us that if the act were to go, they do not know what would protect them. In place of the act, you would need a proper information campaign, with the Scottish Government and Police Scotland taking the lead, to remind LGBT people about other legislation—

Liam McArthur

If we are being told that the act is not providing the protection that people in the LGBT community believe that it does, that is a problem, irrespective of the bill that we are considering.

Danny Boyle

I am entirely sympathetic to colleagues’ concerns about hate crime aggravations in any circumstance in Scotland. They have us as an ally in challenging that behaviour. However, we are making a point about the danger of the act in relation to people’s perceptions of the coverage of support and the lived experience of the act’s implementation. The act is unnecessary precisely because it rides on the back of tackling the problem of hate crime and the public consciousness that goes along with that. As we have already said, the vast majority of charges are not hate crime charges. A point that develops from that concerns the different experiences of people with different protected characteristics in relation to different pieces of legislation.

We share the aspiration to tackle and challenge hate crime across the board. What is potentially unique to the issues of race and ethnicity concerns the legal definition of race in the Equality Act 2010 as it relates to the 2012 act. Minority communities have a different experience by virtue of the new offence under section 1(2)(e) of the 2012 act, which criminalises something that would cause offence to a reasonable person. I will try to frame that from an LGBT perspective without putting words in anyone’s mouth. If, for example, a football team in Scotland that had a really strong LGBT identity—perhaps because the LGBT community had created and developed that club—found that, under section 1(2)(e), its members were being criminalised by virtue of other people in society finding that to be offensive, MSPs would take a different stance on the issue.

We absolutely share the aspiration to tackle hate crime across the board, but the 2012 act does not achieve that. I am surprised that human rights advocates have not been invited along today to give evidence, because the act raises fundamental issues around freedom of expression. The highly respected Liberty organisation described section 1(2)(e) as a “breathtaking expansion” of the criminal law. We would encourage the Scottish Human Rights Commission and the Equality and Human Rights Commission to say something in that regard.

The Convener

Have no fear, Mr Boyle; we have that covered.

Ben Macpherson

I have a short supplementary question. Colin Macfarlane spoke about partnership working with other organisations in the lesbian, gay, bisexual, transgender and intersex community. The Equality Network recently published its Scottish LGBTI hate crime report for 2017, on which Mary Fee lodged a motion that received cross-party support. The report acknowledged concern about the existence of LGBTI discrimination in football, with 66 per cent of respondents stating that they had either experienced or witnessed homophobic, biphobic or transphobic hate crime at matches, when travelling to and from matches or when attending a venue at which a match was being shown. Are you concerned that repealing the 2012 act would remove a key part of the criminal justice system that is used to tackle that hate crime?

Colin Macfarlane

Exactly. Further, as I said, our research showed that 82 per cent of Scottish fans said that they had witnessed anti-LGBT language and abuse in a football setting.

I sometimes look at the issue as being like a jigsaw puzzle. The legislative framework and the work that is done in our schools and communities and by organisations such as Stonewall are pieces of that jigsaw puzzle that create the final big picture. Stonewall’s view has been and continues to be that the principle of the 2012 act is part of the armoury that we can use to tackle homophobic, biphobic and transphobic language, abusive behaviour and discrimination in Scottish society. In 2011, we said that we supported the principles of the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill. The research that has been done by Stonewall and the Equality Network has shown that such behaviour is a clear issue in a football setting. If you take the 2012 act away, you will take away part of the jigsaw puzzle and we would worry that, unless it is replaced by something to fill that gap, things will fall through the net.

There is also an issue about the message that taking away the 2012 act would send. The act symbolises something and sends a message. Such messages are important to LGBT people. They need to know and feel that they are safe and secure whether they are in school, in the workplace, in their communities or attending a football match.

I will use a personal example if the committee will allow me to do that. My dad died 20 years ago. He was a huge Rangers fan. I was an only child—his only son—and he wanted me to go to football matches with him. As a teenager, I was coming to terms with my sexuality and I knew the kind of language that was used on the terraces—you could hear it consistently on match days around Ibrox. I used every excuse possible not to attend those matches with my father because I was absolutely terrified about what I would hear and whether any of his friends who were there might use that language and what it would mean for me. It is a great regret for me that I was not able to spend that time with my dad and be a good son in that way.

For us, it is about ensuring that any LGBT kid is able to participate fully in a family environment. They need to be able to go with their families to take part in sport or watch their football team and not feel worried or scared that they will hear that kind of language or see abusive behaviour. The 2012 act is the piece that holds the jigsaw puzzle together because people can feel confident knowing that it is there. I repeat that they will not be watching the committee today and they will not look at the Official Report, but they will see a newspaper report or hear a news report that the act that is in place, which protects them at football matches, might go, which will send a negative message to them and will mean that they might not feel safe or secure in a football setting.

Ben Macpherson

Thank you for that, and for your personal reflection.

The Convener

Stewart Stevenson has a supplementary. It would be helpful if members’ supplementary questions could be less long winded.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

It will probably be very brief and it is directed to Mr Macfarlane in particular.

Section 6 of the bill, on commencement, says:

“This Act comes into force on the day after Royal Assent.”

Am I hearing, implicitly if not explicitly, that if Parliament passes the bill into law, commencement should not take place until there is a replacement regime, or, as an alternative, that there should be a specific timetable so that the bill does not become a blank cheque for never doing anything? Is that what I am hearing?

Colin Macfarlane

Are you talking about the transitional arrangements?

Stewart Stevenson

Yes.

Colin Macfarlane

Our view is that the 2012 act should not be repealed until something is put in its place. I am sorry to keep going back to this, but the Bracadale review will be the opportunity to do that. If the 2012 act is going to go, we would say that its repeal should be delayed until Bracadale has reported and made recommendations. Bracadale gives an opportunity to look at whether the act should remain and be improved or, if it is to go, what should go in its place.

I do not want to pre-empt what the Bracadale review will say, but if it says that there should be a whole new system that lumps together our equality rules and hate crime rules, that will create an opportunity to look at how we move forward.

Danny Boyle

I appreciate the narrative that is accompanying some of the discussion but I refer members and the public back to the statistics that we have in relation to the 2012 act. As we have already said, it was used most often last year and 18 per cent of the charges related to hate crimes. Since it was enacted, there have been eight charges for homophobia—

Stewart Stevenson

I am asking a specific question about commencement. Could you address that? You do not have to if you do not want to.

Danny Boyle

I am quite happy to address it, because it is pertinent to the point that I am in the middle of making.

Assistant Chief Constable Higgins said in evidence that, out of 4 million attendees at football—I am guessing that that is not 4 million Scottish citizens because that would be quite an incredible attendance rate—0.00005 per cent—

Stewart Stevenson

Forgive me—

Danny Boyle

Your specific question was on section 6 and whether it means that repeal of the act would leave a major gap in the law.

Stewart Stevenson

No, I am not asking about that, because it is self-evident that it would. In response to the specific point that LGBT people are making, which is that they feel protected by the intention of the act, regardless of its legal impact, I am asking whether it would be appropriate for commencement to wait for a replacement regime, whatever its nature, and whether there should be a time limit so that there is no blank cheque meaning that the passing of the bill can be ignored. That is a very specific question. If you do not have an answer, you are perfectly entitled to say so.

The Convener

The question is about section 6 of the repeal bill.

Stewart Stevenson

Yes.

Danny Boyle

Understood. I refer you to my previous comments, in which I addressed a lot of the substance of your question. This is about the perception and experience of the 2012 act. On experience of the 2012 act and protected characteristics, it is important to recognise that the 2012 act is significantly broader than an act that deals with just one protected characteristic. In my opening statement, prior to Colin Macfarlane’s eloquent input, I said that, from the perspective of race equality and the legal definition of race, which is very broad, section 1(2)(e) of the 2012 act creates specific problems. Although there is a potential injustice via the implementation of the bill, we do not support—

Stewart Stevenson

Mr Boyle, my colleagues will ask many—

Danny Boyle

Given that the hate crime legislation—

The Convener

If you talk over each other we do not get anywhere. I think that you have the answer to your question.

Stewart Stevenson

I am not getting an answer.

The Convener

I have given a lot of latitude on supplementaries. I will move to the next question, which is from Maurice Corry.

Maurice Corry (West Scotland) (Con)

Good morning, gentlemen. This question is for Mr Halpin. Has the 2012 act led to a change in behaviour at football matches or in communities?

Tom Halpin

Our experience comes through the referrals that we get, and there is no doubt that we have seen the biggest number of referrals in 2016-17, although we are still in year at the moment.

You need to go to football matches and observe the behaviour to see whether the 2012 act has changed societal behaviour and behaviour at football matches. There is a long way to go. It is true that the 2012 act has, to a huge extent, raised the issue in the consciousness of everyone who has any connection to football, whether professionally, as a supporter or whatever.

We have a concern. Our experience is that interventions can be very successful, with well over 70 per cent of the people whom we work with reporting a real change in attitude. We would agree with them. However, if we do not work with people in terms of their belief systems and boundaries and how they sustain change once they have accepted it, this could be a very shallow change in Scottish society.

Maurice Corry

Has the 2012 act made the experience of football matches more or less enjoyable for the people from whom you get your information?

Tom Halpin

There are hugely positive outcomes, but even today there are broad things in Scottish society that people do not want to confront. For example, one person who went through the programme was happy to tell their story, but the minute that their representatives—their support system—realised that they were going to speak up, the person was advised not to go public. There is still a stigma; there was a real risk that speaking up would affect that person’s future employment opportunities.

Maurice Corry

But overall there is a positive effect.

Tom Halpin

The interventions have had a positive effect. There is no doubt about that.

The Convener

Liam Kerr has a supplementary.

Liam Kerr

I want to drill into that point. Mr Macfarlane, you talked about your personal experience. Empirically, will you say whether there has been a reduction in the singing of songs and use of language that you spoke about since the 2012 act came into force? If so, is there any evidence that the reduction is a function of the act and not something else, such as a change in societal attitude, for example?

Colin Macfarlane

I cannot say whether there has been a reduction in the past five years. All that we can comment on is our latest research and the Equality Network’s latest research. I do not know whether the Equality Network did research before the 2012 act came into force.

Through what we do here, what we have seen, what LGBT people tell us and what our research tells us we know that there is a problem around LGBT people, homophobia, biphobia and transphobia at football matches, be that in chanting, song lyrics or LGBT people not feeling safe and secure attending football matches or watching a live football match in a pub, for example. Our research has also shown that a percentage of that language or abuse happens in a live sport setting, for example at the stadium or club, or in the pub.

Where we have seen a shift is in the work that we are doing with clubs. We are working on our rainbow laces initiative, which we launched in November. We work with grass-roots clubs and we are also now working with the SPFL, which supports the rainbow laces initiative. We are in conversation with some of the premier league clubs about how they can take part in that initiative. That represents a shift in the past five years because, before that, organisations did not want to work with us on those issues.

Liam Kerr

Has there been a reduction in the behaviour that you talked about, as a specific function of the introduction of the act?

Colin Macfarlane

I cannot answer that because we do not have the evidence from our research to suggest that.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

The issue of a gap in the law has been touched on. In our last evidence session before the recess, we heard a strong statement from Anthony McGeehan from the Crown Office and Procurator Fiscal Service that repealing the 2012 act would lead to a gap in the law. The Scottish Women’s Convention said the same in its submission. What are the panel members’ thoughts on that? Some of you have already touched on that, so I leave it to each person’s discretion whether they want to give a brief answer.

Tom Halpin

I refer to cases that we have actively worked with, which include behaviour that could be described as hate crime occurring in a public house, and that were referred to us for attitudinal change programmes. It was very similar to behaviour that was referred to us under the act from a football ground.

Danny Boyle

We have previously outlined at some length our opinion that hate crime elements that are dealt with in the act are covered by pre-existing legislation.

Inherent in your question is the narrative about hate crime. There is an anomaly there, in that the two representative intermediary bodies that work directly with the Scottish Government’s equality unit on the development of the race equality framework for Scotland—whose members, whom we work with, face the overwhelming majority of hate crime aggravations—are both in favour of repeal of the act. That is quite a strange circumstance.

We remain unconvinced that behaviour that would otherwise not be considered criminal should be criminalised by section 1(2)(e). Five years on, we are unconvinced that the act is necessary and believe that it creates confusion and double standards in hate crime policy. If the act was coherent, provided a balanced remedy and took forward the social conversation about hate crime, we would back up the Crown Office, the police and the Scottish Government, as we do on various other strands of hate crime and equalities work in Scotland. However, the act does not provide a balanced remedy.

As I think that Mr McArthur touched on earlier, a social narrative is developing that organisations such as ours, by criticising or challenging the act, are somehow pro hate crime or sectarianism. That narrative has begun to manifest on certain websites and in the editorials of some newspapers. That is not only insulting to various organisations that have challenged hate crimes throughout their existence, in conjunction with key stakeholders, including the Scottish Government, but is a really dangerous political binary to set with regard to legislation that is contested. For those reasons, we do not see that repeal of the act will lead to a gap in the law.

Fulton MacGregor

I do not think that anybody around this table would suggest that. I just want to clarify whether, in your opinion, Anthony McGeehan was incorrect when he gave us evidence.

Danny Boyle

I will not sit here and say that another person’s submission is incorrect; obviously, from his perspective, it is entirely correct.

Fulton MacGregor

I do not think that it is really a matter—

The Convener

Wait a minute. Let Mr Boyle answer the question.

Danny Boyle

I am quite happy to respond to the question, convener. Our analysis is different from that of the Crown Office and Mr McGeehan in relation to many aspects of the legislation. As a humble public servant, Mr McGeehan has a duty to respond to and protect the legislation at his doorstep. This is an absolutely critical matter with regard to this piece of legislation, because the fact is that some issues that we are dealing with should be crossing neither Mr McGeehan’s table nor the table of any individual police officer. These issues have to be debated and discussed outside the criminal justice system.

On the gap in the law, I have already covered sections 1 and 2 with regard to hate crime and the additional aspect of generally offensive behaviour. My understanding from the submission provided by Police Scotland in addition to its oral evidence is that

“an individual making a threat intended to stir up racial hatred could not be dealt with using the Section 6 offence but would risk being prosecuted using other legislation.”

That could not be clearer with regard to the additional aspect, which we have not yet covered. There is no gap in the law.

The Convener

I think that Mr MacGregor also has a question about travel. That was a pretty long supplementary, and you are moving into other members’ lines of questioning.

Fulton MacGregor

I also want to hear from the other panel members. Perhaps, as the convener has said, you could make your answers brief.

Colin Macfarlane

Our understanding is that the 2012 act covers—I need to get my teeth around this word—extraterritoriality, which basically covers Scots going to watch, say, the Scottish team at international matches and means that an incident of hate crime or abuse either online or at such a match can be prosecuted consistently abroad. Indeed, the COPFS has stated to the committee that it has used that piece of legislation to prosecute hate crimes under those circumstances. Taking away the act leaves a gap with regard to international matches, and the Crown Office and Procurator Fiscal Service has said as much, too.

Fulton MacGregor

My next question is more for Sandy Riach. Colin Macfarlane and Danny Boyle have said a bit more about the groups that they represent, but has the 2012 act led to any changes for the folk that Mr Riach’s association represents as far as going to matches is concerned? What sort of things have you experienced at matches? I believe that you touched on that issue in your opening remarks.

Sandy Riach

Our organisation is still young, and I have not been able to do the same research or get any data on what has happened over the past five years as those in other organisations—although I will gladly get involved with such research in order to find these things out. However, having done this for 14 years now, I can tell you that I have seen aggressive behaviour towards disabled people. It happens partly because of ignorance; after all, can you tell whether I have a disability? That sort of thing cannot be dealt with through stewarding or by the police. We have addressed, highlighted and reported such incidents in the past, but nothing has been done. Where do we go from there? How can we get that kind of information progressed? I would like to hear the experiences of other clubs and other disabled supporters associations, and what I think I will take from this meeting is a road map—for want of a better word—for finding out about these things and hearing those experiences.

I recall an incident at Celtic Park in which a section of fans directed abuse at disabled supporters at the front. We could not get anything done about it. That needs to be stopped; after all, it was quite clear from the closed-circuit television that things were happening and that there were other incidents of drunken and disorderly behaviour. That sort of thing might be dealt with under another part of the law, but I am not 100 per cent sure about that. Something needs to be in place, but I am not 100 per cent sure what it should be.

The Convener

Is it fair to say that there is still more work to be done by your association in contacting other clubs to pin the matter down?

Sandy Riach

Yes—definitely.

The Convener

What you have said is helpful, but it is good to put it in context. We really have to move on now.

Fulton MacGregor

I suppose that I have asked a supplementary question.

The Convener

You have just done that. At the very beginning, you certainly were not on-message. We need to move on.

Mary Fee (West Scotland) (Lab)

Good morning, panel. A lot of what I was going to cover has been touched on, but I want to pick up on something that Colin Macfarlane mentioned in his answers to Liam McArthur and Liam Kerr. He said that the 2012 act gives LGBT people confidence that they will be protected at football matches—you know that I support anything that can be done to make any sporting event more supportive of LGBT people in general—and that very few LGBT people report crimes. I understand that the act may give the perception that it is safer to attend a sporting event, but do you have any evidence that LGBT people are using it to report crimes?

Colin Macfarlane

No, I do not have evidence of that. However, I take you back to my jigsaw analogy. We know that there is a problem with LGBT people feeling confident in reporting hate crimes to the police but, as I have said, we also know that 82 per cent of LGBT people have heard homophobic, transphobic or biphobic language and abuse at football matches. The principles of the act form part of the jigsaw that builds confidence, but there is still work to be done in our schools and our communities and with the criminal justice system, Police Scotland and the clubs. The act forms part of the armoury to make LGBT people feel safer and secure in their communities, at work, at school or attending football matches. We do not have evidence about whether or not they are using the act to report, but we know that it makes people feel confident that there is something in place as part of the jigsaw puzzle and armoury that protect them and make them feel confident and safe.

Mary Fee

Okay. I will go on to talk about how hate crime can be tackled, but do any of the panel members have anecdotal evidence that the behaviour that we are talking about is less prevalent now at football matches because of the act? I would appreciate it if we did not rely so much on statistics.

Tom Halpin

An attitude comes through that there is more likely to be robust enforcement towards people who have been referred to our project. The key point is whether that robust enforcement would have been possible with the existing legislation. Because of the examples that I have given, there is nothing to suggest that that could not be the case with the proper briefings. My understanding is that, consistently in police briefings at the start of the journey, there was confusion among officers about what act should be used. Their thinking was so ingrained and they were so used to the existing legislation that they tried to understand why the act would be used at the start. The commanders at the matches had to explain that and take the matter forward.

The act has raised matters in everyone’s consciousness. That is why we supported it at the start. However, on everyone’s belief that there will be robust enforcement if a matter is properly reported and responded to by the match commander, we have heard about disability examples that were clearly not appropriately responded to. The issue might be circumstantial, but what was the retrospective investigation?

The message that the act sends to those who are victimised is hugely important, but the issue is also the message that it sends to those who have such beliefs and cultures. How do we change them? That has an impact on how we change others who are going into the sport. From my experience, my strong belief is that the low levels of prosecution and referrals show that we do not have a grip of that yet.

Mary Fee

Does Danny Boyle want to add anything?

Danny Boyle

Yes—I am considering whether or not to give a personal anecdote. I think that I will, because I think that it is relevant to the point that you asked about and where we are going.

In 2011, when the concepts behind the act were being developed, I was working for a Glasgow-based organisation called the Irish Heritage Foundation, which is funded via the Irish Government’s immigrant support programme, which puts money into communities in which there is a large Irish diaspora. I know that you do not want me to focus too much on the statistics, but they are important as a subsidiary to my main point. Under the act, as it has been implemented, people who share my identity—that of a lay Catholic member of the Irish diaspora—are most likely to be viewed as victims. In 2011, I was one of the people who were warned by Strathclyde Police to be careful about what we receive in the post and where we go in public.

The Irish Heritage Foundation’s submission to the consultation process on the bill said that the organisation was against the bill because we did not see that it would add any value, from a race equality perspective, to the work that is being done around a much broader societal issue. We felt that it was unhelpful to focus primarily or disproportionately on football.

From a personal perspective, over the past five years, I have not seen any evidence that the act has had a meaningful outcome in terms of the behaviours that have been identified in relation to football.

Mary Fee

Colin Macfarlane talked about the rainbow laces campaign—I am the proud owner of a pair—and there is also the charter that the Equality Network is trying to get clubs to sign. Those campaigns represent an important way of tackling homophobic abuse, sectarian abuse and other sorts of abuse, and they involve everyone from members of the club all the way down to the supporters. Danny Boyle spoke about the importance of education in that regard, too.

What other tools can we use within the framework of education to change what are in some cases quite deep-seated and deep-rooted views on sectarian and anti-LGBT behaviour?

Colin Macfarlane

I can speak only from an LGBT perspective, but you are right to say that education is critically important. Our schools report, which we published last month, showed that there are still shockingly high levels of homophobic, biphobic and transphobic bullying in our schools, and we know that teachers still do not feel confident about talking about and tackling those issues. The TIE—time for inclusive education—campaign has done a lot of work to raise issues around that. We run a train the trainer course that was set up in direct response to our first schools report, which showed that something like 75 per cent of primary school teachers and 44 per cent of secondary school teachers were told that they cannot talk about LGBT issues in the classroom. Our course trains teachers specifically on LGBTI issues, and involves those teachers then going back into their schools to train their peers.

I do not have the exact statistics, but I know that Leadership, Equality and Active Participation in Sports for LGBTI people in Scotland, a campaigning organisation, is engaging in interventions around sport in school, because that is where a lot of LGBT young people’s negative experiences of sport arise—I can personally vouch for that. That is all part of the jigsaw puzzle about how we make those changes.

With regard to the rainbow laces campaign, there has been a bit of education for football clubs themselves around the work that they need to do. I know that the Equality Network has been working hard for a long time in that regard and we have been working hard for the past three or four years to get our foot in the door so that we can talk to the SPFL, the Scottish Football Association and the clubs about the fact that homophobic, biphobic and transphobic abuse happens at football matches and that LGBT people do not feel safe attending football matches. All that work is making things better, and the act is part of that jigsaw puzzle.

We believe that the shift that we have seen in relation to the fact that clubs and the governing bodies now want to talk about and actively tackle the issue has come about as a result of the higher profile that the issue has had, which is due in part to the existence of the act. We believe that that is the case because that is what they tell us.

That answer was rather rambling. Education is key, but again, it is part of the jigsaw puzzle and just one element in our armoury for tackling the issue.

Mary Fee

Do you think that education will tackle the very deep-seated behaviour? Will education tackle sectarianism?

Colin Macfarlane

Are you asking me directly about sectarian behaviour?

Mary Fee

Yes.

Colin Macfarlane

If you look at social change programmes and how you can nudge the dial, I would hope so, although I do not have a definitive answer about whether we will completely eradicate either homophobia, biphobia and transphobia or sectarianism. However, through education and teaching our young people about what it is like to grow up and live in modern 21st century Scotland, we have to be able to talk about those issues and tackle them in our education system.

Danny Boyle

I have two brief points. Education has an incredibly important role to play. The curriculum for excellence and rights respecting schools are two examples of conduits for increasing knowledge about 21st century Scotland and the diversity of the communities and populations that live here and the fact that they are all intrinsically valuable to Scotland—both the individuals and the communities of protected characteristics.

We run a number of campaigns, such as the enhanced by our diversity, combined by our humanity campaign, and much of that is about celebrating the intangible cultural heritage of the diverse communities that call Scotland home. Embedding those ideas in our education process is incredibly important. I am happy to say that, in the context of the race equality framework, we will be taking forward work with Education Scotland and other race equality partners to review the curriculum for excellence resources with regard to that specific point.

I will shift things back to the specifics of football. If, as a catalyst of the technical disagreements and discussions that we have had about the value or otherwise of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, we are able to put more emphasis into progressing the issues outside the criminal justice system, that is a positive that has significant value. Hypothetically, if we had a coalition of organisations such as those represented here today and fans groups and so on that could put into a sporting environment what we intend to put into an education environment, that could be highly beneficial.

In respect of the 2012 act, there is a tendency to talk about or assess football fans entirely negatively. I will say something beyond the statistics, which, as I have said, show that there is less hate crime in football than there is in the general populace. Football fans are running food drives and I have attended football games where there have been pro-refugee banners and anti-racism banners. A couple of weeks ago, I saw, probably for the first time, some pro-LGBT banners at a game. There is a lot of progressive stuff happening in football clubs and among football supporters and in fan culture, and that should be appropriately acknowledged.

The stats are saying something and the development of how people support their teams in Scotland is also changing. We need to harness that as opposed to holding discussions in the context of the criminal justice system, because that polarises opinion and creates some significant issues that could be tackled through other means.

Tom Halpin

A huge amount of work goes on to educate young people about diversity, inclusion and the law. Our experience, and part of our approach, is that where a school has specific issues with particular individuals and behaviours, it needs more than the broad educational approach and we have to work with the young people on their beliefs, cultures and all the things that go with that. I urge caution about saying that we are already doing all that. There need to be interventions when such behaviour bubbles up through the school.

Sandy Riach

I want to add something that is partly about education but is at a bit of a tangent to that. Many disabled people who go to football matches are scared. They are scared of the environment and of what happens at grounds, including noise, singing, chanting and general foul language, because sometimes it is difficult for them to perceive what is going on. I have done some stuff on autism, and there is an organisation called the Shippey Campaign down in England that tries to educate and integrate people so that they can go to a game and enjoy football. There are quite a lot of people who will do that, so there is the education aspect.

People need to be made aware that there is stuff in place to make sure that they are safe—people will look after them when they go to football matches and something will be done if something goes wrong. That is what I want to make sure of. A couple of times, I have seen situations after which nothing has been followed through. We need to make sure that the element of society who want to go to football matches can do so and know that they will be safe.

Rona Mackay

We have talked about Lord Bracadale’s hate crime review. Given that that is due to report in spring 2018 and will include the 2012 act, do you think that it is sensible to wait for the outcome of that review? You can answer fairly briefly if you wish.

Colin Macfarlane

Yes.

Sandy Riach

Yes. I need to catch up.

Tom Halpin

I would not be opposed to that.

Danny Boyle

No. The act should be repealed at the earliest possible opportunity, because it is not dealing with hate crime and it is creating significant issues independent of some of the concerns that have been raised today.

Rona Mackay

You do not think that it would be sensible to wait until you see what the review says. It might address the points that you are raising.

Danny Boyle

We have called for an educational and universal approach to taking forward the strategy for tackling hate crime. There are far too many contentious issues inherent in the implementation of the 2012 act. It is now no longer policing by consent, as I talked about already. The act no longer has the respect or credibility that such a piece of legislation needs and I support its repeal as soon as possible. That will not leave any gap in the law in terms of tackling hate crime.

Rona Mackay

Could Colin Macfarlane elaborate a wee bit on the online abuse that LGBT people suffer? Presumably some of them report it, although you say that there are difficulties with that. Do you think that the repeal of the 2012 act would make them even less likely to report it?

Colin Macfarlane

We know that individual LGBT people experience elements of hate online—let me see whether I can find the stat for you. One in 12 LGBT people have experienced online homophobic, biphobic and transphobic abuse or behaviour. That increases to 23 per cent—or one in four—of trans people. When the question is about communication that is not aimed at someone as an individual, nearly half of LGBT people have seen some of that kind of abuse, whether it is on Twitter, Facebook or forums, and that is just in the past month.

Our view is that section 6 of the 2012 act, which covers the communications element, is vitally important. Again, it goes back to the signals that it sends. I honestly cannot say whether the repeal of the act would stop people from reporting abuse. People understand that there is something in place that helps them and protects them against online abuse—what happens if that disappears and there is nothing in its place? There is the Communications Act 2003, but we were not able to find available figures about whether online hate cases are prosecuted under that act, so I cannot say what the correlation would be. For us, section 6 of the 2012 act is an important piece of legislation.

Rona Mackay

Colin Macfarlane said that the LGBT community feels a bit more protected by the 2012 act and talked about the fears if it is repealed. Is that how disabled groups look at it as well? Does the act make them feel a bit more protected, either at matches or travelling to and from them?

Sandy Riach

Yes. We have people who have put a big sign on the bus that says “Disabled Supporters”, but they have still experienced abuse. I agree with Colin Macfarlane on this one.

Ben Macpherson

My questions relate both to section 6 of the 2012 act, which Rona Mackay asked about—not section 6 of the bill, which Stewart Stevenson referred to—and to the Bracadale review. It has been made clear to us that there is strong support from prosecutors and Police Scotland for section 6 of the act, in that it has been successfully used to prosecute individuals who have made serious threats of violence against members of the public, including threats of murder, and to prosecute individuals who have made threats towards the Jewish, Muslim or Catholic communities designed to stir up hatred on the basis of religious grounds.

I have concerns about the repeal of the act relating to those who experience hateful communication online. Do witnesses feel that the introduction of the 2012 act has had any impact, not just in terms of the practical effect on the criminal justice system but in sending a message about what online behaviour is unacceptable?

Danny Boyle from BEMIS made the point earlier that we should always look to challenge legislation and consider its effectiveness. I am absolutely with him on that. What I am finding hard to concur with is the strong view that he expressed in response to the previous question that repeal should happen as quickly as possible. Surely we have a constructive opportunity here, with the Bracadale review, to work together consensually across the sectors involved and across the parliamentary chamber, looking at how we pull all this together, utilising section 6 of the 2012 act and the strong support that there is for that and thinking about other aspects in the repeal bill?

It is important in our communications that we think about this piece of legislation that is under review as having those two elements—the offensive behaviour at football aspect and the threatening communications aspect. I would be interested in hearing your thoughts, and I may have a supplementary or two after that.

Danny Boyle

I am happy to respond. I understand that section 6 of the act has been used to bring 17 charges over the five years of the act—feel free to correct me if I am wrong.

Ben Macpherson

I am not able to clarify that figure as things stand, but that is a very utilitarian perspective, rather than thinking about the categorical imperative and the fact that it has been useful for prosecutors in certain circumstances for achieving the ends of justice. That is extremely important, so I think that the focus on whether it is an effective piece of legislation should not be judged on the stats—

Danny Boyle

It may also be utilitarian to consider whether the justice that has potentially been attained with the use of section 6 has more value than the volatile injustice that is potentially contained in sections 1 to 5 of the 2012 act.

We are not averse to reviewing hate crime legislation, which is exactly what we are doing within the context of the Bracadale review. As I have already acknowledged, the suite of hate crime laws are difficult to navigate and it is difficult to access a remedy for those who are victims of breaches of the law relating to protected characteristics.

As I have already said—I do not know how many times I can repeat it—sections 1 to 5 of the 2012 act do not primarily deal with hate crime; 18 per cent of the crimes for which charges were brought under the act last year were considered to be hate crimes. I cannot see how we can track the trends of hate crime—where it is manifesting and what the genesis of that thought or behaviour is—via the opaque set of statistics that we receive in regard to the 2012 act.

It becomes even more complicated when we add in the general offensive behaviour aspect and I have outlined already that there are particular issues and concerns for minority communities in relation to the social, cultural, and historical analysis of events that have taken place in the United Kingdom.

Both our points are equally justified. I do not think that your point should necessarily supersede the issues that we have identified with sections 1 to 6, and I think that my argument may hold more weight, considering that there is no gap in the law with hate crime aggravations. With specific reference to section 6, we have already acknowledged from police evidence that a racial aggravation would not necessarily be used with the threatening communications aspect of the act, so we retain our position that the act can be repealed and that, if there is any positive learning that we can take from the 17 charges made under section 6 of the 2012 act, we can take that into the Bracadale review. However, we cannot see the justification for maintaining the implementation of a piece of legislation that has no credibility and does not, in its entirety, challenge hate crime.

Ben Macpherson

The alternative perspective would be that, by losing section 6 through repeal, there would be a gap in the law. I appreciate that you have disputed that today, but others would substantiate it.

Danny Boyle

There have been 17 charges under section 6, and I know that your point is to ask about the 17 people who have been the victims of those crimes, but there have also been more than 130 charges for other offences, and the 130 people charged with those offences—the specifics of which we have no knowledge of—could claim in their defence that those charges are unjustified. That is our particular concern with section 1(2)(e). If we are playing a numbers game, who is more important—the 17 victims or the potential victims of a miscarriage of justice?

Ben Macpherson

You may want to play that numbers game, but I certainly do not.

Danny Boyle

You started it.

The Convener

We are going round in circles. We have heard the witness’s response. Is there anything new that you want to bring up?

Ben Macpherson

I just want to state that the question should be about how we should look to reform rather than repeal the legislation. That would be a more constructive approach, considering the substantial review that lies ahead of us. Do any other panel members want to come in, particularly on the importance of section 6?

Tom Halpin

There are no cases referred to our service under that section so, from my perspective, the question is about how we apply it.

Colin Macfarlane

I agree with the point about implementation, but the point that Ben Macpherson has made about the Bracadale review being the opportunity to have an overarching review is pertinent. We know that it is coming. We cannot pre-empt what will come or what recommendations Bracadale will make about the act, but it would not be helpful to remove the legislation and have nothing in its place. We should at least be able to have a considered view of what Bracadale is likely to come back with and how the review will address concerns that we have all raised about implementation and about whether the act is right or wrong. That is the point at which to have the discussion. Taking away protections or affecting the symbolism of the act without putting anything in its place or waiting to hear what Bracadale says would be folly. It would be the wrong thing to do, and an immediate repeal to get rid of the act before Bracadale has reported back does not make sense from our perspective.

Maurice Corry

Mr Boyle, let me cut to the chase. If, as you suggest, the 2012 act has done little or nothing to tackle hate crime, what needs to be done, in your opinion, to eradicate such crime, as well as tackling offensive behaviour at football matches? That is a basic question.

Danny Boyle

I may already have touched on what our suggestion would be. We share the view of our colleagues on the panel and Mr Macpherson that the Bracadale review offers a perfect opportunity to bring clarity to the suite of hate crime legislation that we have at the moment. Independently of that, we feel that we need to be careful not to conflate hate crime with the criminal justice system, and that we need alternative approaches starting at the earliest stage, with education. That is where our focus will be, and I understand from discussions with Police Scotland that that will be the police’s additional focus with regard to the Bracadale review. The focus will be on taking a lot of the momentum and the burden of hate crime issues out of the criminal justice system and beginning preventative educational measures. That should happen across society. There should not be a disproportionate focus on a sport where the statistics tell us that hate crime happens less than it does in the rest of society.

The Convener

We have heard good examples of initiatives.

Fulton MacGregor can ask a brief supplementary question.

Fulton MacGregor

I want to ask Tom Halpin about the STOP—Sacro tackling offending prejudices—programme. It is disappointing that it is not being used as much as would be expected, especially as it gives young men in particular an opportunity to divert away from prosecution. As I mentioned in a previous evidence session, that seems to me to be more of an implementation issue rather than an issue with the legislation. If the act were not to be repealed and were to stay, would you welcome some sort of guidance on the greater use of that programme? As a former criminal justice social worker—I should probably declare an interest in that regard—I know fine well about the good work that Sacro does, and I am sure that the programme could be very effective, given the opportunity. What are your thoughts on that?

Tom Halpin

Actually, there is an awful lot of common ground between us, and I thank you for your comments. The harsh reality in Scotland is that, because of the need to send the right message to the groups who are victims of the legislation, those who are making decisions are defensive about their decision making and nervous about diverting people away from prosecution. That service is one example. If you had conversations with marking fiscals about the circumstances in which they mark cases away, you would get different answers. Although there are consistent marking policies and all the rest of it, the issue is how we ensure that we are respectful to the victims and to the affected groups and other interests.

Repealing the act will not greatly change the profile of that service. It is not only about individual interventions; a huge part of it is about education and reaching out. It is about working in prisons and going straight to the source—in other words, the groups who predominantly show those behaviours and have those embedded beliefs. I acknowledge that there is an issue about the application of the act and the process, but Sacro thinks that we are disproportionately targeting, criminalising and stigmatising one group, which impacts on their future opportunities. My view is that we should legislate to criminalise conduct when the reason to do so is compelling, overwhelming and beyond reasonable doubt. In this case, maybe it is, maybe it is not—I am not convinced.

Liam Kerr

I want to take you back to the act’s aim of tackling sectarianism. I appreciate the point that Mr Boyle made at the start about the definition of sectarianism but, that aside, is sectarianism a significant problem throughout Scottish football or, as some have suggested, is it limited to two particular clubs? Has there been any change, pre and post 2012?

Tom Halpin

The referrals to our service are not exclusively from the two clubs that you are referring to. I bet that everybody on the panel will have their own anecdotes, as will those on the opposite side of the table. If you have grown up in Scotland, you will have been touched by the issue in some way. I in no way hold the view that the issue is restricted to two particular football clubs in Scotland—it is a Scottish societal issue.

Liam Kerr

Is that view echoed by the rest of the panel?

Sandy Riach

I am from the north-east and, over the years, as I grew up, I heard about sectarianism but, as a child, I did not know what the word meant, because nobody ever bothered about it. It did not really matter whether someone was Catholic, Protestant or whatever, or whether they had a blue scarf, a green scarf or a red one. I wish that it was like that today, but it is not.

The issue is also about where you are and where you live, whether it be Glasgow, Edinburgh, Inverness, Wick, Stornoway or Lerwick. The situation is different everywhere. You might not necessarily experience it in Aberdeen, but you might experience it in Peterhead, Fraserburgh or Forres. It might even cross religions. It is really diverse and I have difficulty setting it in one straight line, if you understand what I am trying to say.

Liam Kerr

Do you think that the 2012 act, then, has had any impact? If we start from the position that there is sectarianism in football, has the 2012 act impacted on that? If so, where is the cause and effect? If not, what would be a better way of impacting on sectarianism?

Danny Boyle

That is the perennial question about sectarianism. As we said in our introductory comments, sectarianism has become like chewing gum. It is what we apply when we disagree with someone’s point or opinion and, as a concept, it is becoming valueless for trying to describe a set of circumstances or situations.

The act identifies sectarianism in the traditional sense as intra-Christian sectarianism around anti-Catholic or anti-Protestant issues. Relative to the number of attendees at football, the number of prosecutions and charges under the act is tiny. That does not necessarily mean that there is not a broader issue with regard to the social, cultural and political histories of different people in Scotland and how they interact with each other, but the act does not provide an appropriate place for informed discussions and debates.

It is also largely a fallacy that sectarianism is primarily the responsibility of two particular clubs. The fact that only 12 per cent—just over a tenth—of charges brought under the 2012 act related to Rangers v Celtic matches does not reflect the narrative that sectarianism in Scotland is primarily the responsibility of those clubs.

As far as sectarianism is concerned, I have said time and time again that we should look at section 1(2)(e) of the act, which covers generally offensive behaviour. As I have said, individual police officers are not sociologists, anthropologists, or historians, but they are faced with the challenge of having to interpret songs that are sung at football matches as sectarian and focusing on them as generally offensive or otherwise offensive. That is the complication.

As we heard from Supporters Direct Scotland, offensive behaviour could be something as innocent as people doing the conga at a football match; their being filmed doing so is a procedural issue that is also of concern. In all seriousness, we know from the Lord Advocate’s guidelines and the jurisprudence in relation to the act that it is most likely to cover songs that show support for terrorist organisations or which glorify or celebrate events involving loss of life or serious injury.

BEMIS maintains the position that we articulated throughout the act’s implementation and which we identified to Police Scotland in relation to the decade of centenaries touched on in our written submission: celebrating a British, Scottish or Irish social, cultural or political identity does not, in itself, constitute sectarianism or offensiveness worthy of criminal proceedings. That is our bone of contention with the 2012 act, section 1(2)(e) and charges that are made under the provision on generally offensive behaviour. That is the intersection where possible miscarriages of justice could be identified because of misinterpretations of what constitutes sectarianism. Instead of me and members of this committee, organisations or, indeed, the people who come from those communities having those conversations, it is being left to the individual interpretation of one police officer.

Liam Kerr

Mr Boyle, I will stop you there. You can come back in in a second, but I know that Mr Halpin wants to come in.

Tom Halpin

There is no doubt that the 2012 act has had an impact on football matches and travelling to and from them. The leadership of the Scottish Parliament in passing that legislation sent a very strong message to society as well as to agencies, clubs and associations around the clubs that the offensive behaviour concerned was totally unacceptable. As we know, the legislation came out of certain events and the public conversation around them, but why was that needed for the lead to be taken and for attention to be focused on the issue? The briefings around football became more focused on the issue of offensive behaviour, as did briefings in clubs around their own security arrangements et cetera, and society moved on. The question for the Parliament today is: did it have to be that legislation that brought that change? That is a bigger discussion, but there is no doubt that having the legislation shifted the dialogue on at the time.

Liam Kerr

Can I press you on that? I saw Mr Macfarlane nodding, so he, too, might want to come in on this point. In Sacro’s submission and throughout this evidence session, the suggestion seems to be that criminalisation does not address the underlying attitude, and it raises the question whether, instead of using the blunt tool of legislation to suppress attitudes and criminalise people, it would be better to change people’s views and address the underlying prejudices to ensure that their offensive behaviour stops and that they self-police.

Tom Halpin

It will come as no surprise that I do not have a yes or no answer to that question. The reality is that we have this blunt instrument that says to someone, “You are being criminalised for this”; as I have pointed out with regard to fixed-penalty notices, they are used as symbols of our distaste for what that person has done, but does anyone honestly believe that such an approach is going to change their beliefs and attitudes?

I have vignettes and case studies of people who have reported to us that their thinking has changed, that they now understand, that they are now at college and so on. We are talking about real life-changing things, and they come about through working through people’s belief systems and having them recognise the risks of their behaviour. Some of the issue is about being taken along by the crowd and by their peers; the question is how they withstand that, and that requires them to make the brave decision to be different. That is a small example of the societal shift that we are talking about.

There has to be a mixed approach. However, there are only 26 referrals a year to our project from the much higher number of cases that are being prosecuted, so what is happening to the others? What intervention has there been with them other than prosecution?

Danny Boyle

As a supplementary to that, I point out that we do not have sufficient awareness of the narrative of cases in which people have been charged and prosecuted and then found not guilty. There is a significant number of such cases; different figures were given for them in the committee’s previous evidence session, but it is clear that a significant number of charges and prosecutions have happened under the 2012 act. They take up a significant amount of time; however, they might be precarious with regard to the individual arrested, whom they have offended and who the victim is, and as a result, those individuals might end up being found not guilty.

What we have not analysed is the impact on the life of the person charged over the duration of the trial diet and so on, and I encourage the committee to revisit what I think is a fundamental issue. Colin Macfarlane might not have heard the things that I am hearing about the implementation of the legislation, but they are why we are taking such a strict line on its being repealed as soon as possible. We have to illuminate and consider the impact on the individual.

The crux of the matter—the fundamental issue—is that we are criminalising people for conduct in a specific set of circumstances that is not criminalised in another set of circumstances. Indeed, I could go into specific examples of two different approaches being taken to the exact same thing being expressed at football and in this Parliament.

The Convener

Did you want to add something to that, Mr Boyle? Will it be lengthy, or can you provide it in written form after this evidence session?

Danny Boyle

I will be very quick. The issue that I have in mind relates to parliamentary motions and songs sung at football matches. As we said earlier, and as we set out in our written submission, we met at the request of FoCUS—the football co-ordination unit for Scotland—which was concerned about how it would police events or commemorations that might take place at Scottish football grounds during the decade of centenaries. Its concerns were based primarily on the commemoration of the 1916 Easter rising in Ireland and the battle of the Somme, which has significant connotations for many of those in the Ulster Scots community in Scotland.

The advice that we gave the unit was, as we have pointed out, celebrating a social, cultural or political Scottish, Irish or British heritage is not offensive or criminal in itself. However, outside the parameters of that discussion, we know that people have been arrested for singing songs that pertain to that period. In that respect, people at a football match might be arrested for breaching section 1(2)(e) of the 2012 act, while, at the same time, a motion might be lodged in the Scottish Parliament celebrating exactly the same thing: 1916, the Irish rebellion and the formation of the modern Irish state. It strikes people on the ground, who deal with such issues on a day-to-day basis, as class hypocrisy that a social and political privilege given to someone within the confines of the Scottish Parliament is not extended to the individual layperson on the street. That is the definition of inequality. It lies at the root of our concerns, and it is not properly acknowledged or understood in the broader debate on equalities in relation to the legislation.

The Convener

Your point about context is well made.

I am conscious that Mairi Gougeon and John Finnie have not yet asked questions. Before I ask the member in charge to confirm his position, is there anything that either of you wants to ask?

Mairi Gougeon (Angus North and Mearns) (SNP)

Most of my questions related to the Scottish Women’s Convention, the members of which were not able to attend today.

The Convener

And John Finnie?

John Finnie (Highlands and Islands) (Green)

I have no questions.

Liam Kerr

Forgive me, convener. I wonder whether Mr Macfarlane might want to come back in.

The Convener

Do you want to come back in, Mr Macfarlane? I am sorry; I was justifying bringing Mr Kelly in.

Colin Macfarlane

That is okay. Is Mr Kerr’s question primarily about whether we need blunt instruments such as legislation to change societal views? Is that where it is coming from?

Liam Kerr

To an extent. My concern is whether legislation is the right way to address such views. A number of panel members have made the point that there is an underlying attitude here. My question is whether criminalising it is the best way to change such an attitude, or whether it is better to address the attitude, because it will continue to exist. Even if I am criminalised for singing a song, I may still hold that attitude.

Colin Macfarlane

I go back to the analogy about the jigsaw puzzle and about legislation being part of an armoury. Our view is very much that legislation can change such attitudes and that the legislative element could lead to prosecutions.

We might look at the example of drink driving legislation, before which it was considered fine for someone to down five or 10 pints and then drive their car; they were not arrested for that. Then the legislation came in and societal views started to change, because such a person would be prosecuted for drink driving. Another example is the smoking ban and the health effects that it has brought in. The blunt instrument is that smoking in a public place could lead to prosecution, and society’s attitudes to smoking have changed. We might also look at domestic abuse legislation and how that changed society.

There is a view that, at points, there needs to be a stick that moves society forward. If people thought that it was acceptable to drive after drinking so many pints and potentially take lives by drink driving, because there was no consequence for that, everybody would still do it. From an LGBT perspective, there is no consequence if someone at a football match turns round to somebody and says that they are a faggot, a poof or a queer and means them harm. Yes, legislation is necessary as part of a wider gamut of societal change: it does change attitudes.

Liam Kerr

That is a fair point, but does the legislation require still to be in place or is it merely a kick start, such that, once the process is in motion, there is no further requirement for it?

Colin Macfarlane

The ideal perspective is that we would never need to have in place legislation to stop criminal or antisocial behaviour or abusive language—but we are not there yet, are we?

The legislation is absolutely central to changing such attitudes and acting as a deterrent to people acting in a specific way, whether that be discriminatory or whether it be about, say, getting into a car after you have been drinking. The legislative element is crucial to changing people’s attitudes, but there also needs to be some recourse or some enforcement action to send a signal to us that, on this particular issue, such behaviour will not be tolerated and will be acted upon and that there will be consequences for people if they behave in a certain way.

Mary Fee

I have a final, very brief question. Prior to the introduction of the act in 2012, what legislation or law was in place to tackle people who committed a sectarian act or behaved in an offensive manner either at or travelling to and from a football match?

Danny Boyle

There was, as I have said, the religious aggravation provision in the Criminal Justice (Scotland) Act 2003. Indeed, the police still use section 74 of that act to deal with religious aggravation in the context of football.

Mary Fee

Thank you.

Mairi Gougeon

I want to go back to a small point that Mr Macfarlane touched on in relation to Liam Kerr’s question. First, though, I should say that I perhaps disagree with some of Mr Kerr’s comments. The domestic abuse legislation was mentioned. I think that by creating a specific offence of domestic abuse and highlighting coercive and controlling behaviour as part of that, we as a Parliament are telling people that we are not going to accept the patterns of psychological abuse that we have seen. It is about sending a message to people that such behaviour is not acceptable. I understand the point that some changes might need to be made to that legislation, but I think that for such matters legislation will always be needed in order to help deal with such behaviour.

To me, that is what is important about the 2012 act. I completely agree with Mr Macfarlane’s earlier point that, if we repealed the act, a message would be sent to people about behaviour that might be permitted again. I wonder whether other panel members can comment on that. When we consider similar examples such as domestic abuse legislation, do you not agree that the Parliament needs to send a message about such behaviour to try to tackle some of these issues and that we need legislation in place to lead the charge in that respect?

The Convener

I will give you the final word, Mr Halpin.

Tom Halpin

Thank you very much. The difference is that this legislation is aimed at a specific group and a specific activity. I totally agree with your point about domestic abuse, but my view is that the issue here is slightly different. The message that needs to be sent to society is about more than this one act. This behaviour is absolutely unacceptable—and no one here will think anything different—but the question is whether you need to carry on with this particular act in order to send the message that you are talking about. I am not convinced.

The Convener

I will bring in James Kelly.

James Kelly (Glasgow) (Lab)

Thank you, convener. I have a question for each of the panellists, beginning with Mr Macfarlane. With regard to section 6 of the 2012 act, you referred to the high incidence of your members reporting online abuse. However, as we have heard in evidence—and as the financial memorandum makes clear—only 17 prosecutions have been made under that section in the past five years. Do you accept that, although it is absolutely correct that people who report incidents of online abuse should expect them to be investigated and that those who are involved in such abuse should be brought to justice by the criminal justice system, the logical conclusion of there being only 17 prosecutions, despite your members reporting such incidents, must be that the vast majority of those reports are being dealt with under the Communications Act 2003, not section 6 of the 2012 act?

Colin Macfarlane

As I have said, we could not find any figures or statistics for prosecutions and complaints made under the Communications Act 2003, so I cannot make any comparison in that respect and say whether these things are being dealt with more under the 2003 act than under the 2012 act. I do not know.

It is about the signal that an act sends to the LGBT community that threatening communications and abusive behaviour online will be tackled—from a football perspective, in the context of this discussion. However, I cannot make a comparison between the two acts, because I have not seen the figures for prosecutions under the 2003 act and I do not know whether they are higher or lower than the figures for prosecutions under the 2012 act.

James Kelly

The committee heard from Police Scotland that the Communications Act 2003 is the route that the police use. The evidence seems to point to that. What message is sent to your members if legislation is in place that the police and prosecutors have decided is not good enough to secure prosecutions, so they are, in effect, voting with their feet and using a different route?

Colin Macfarlane

That takes me back to my point about there being a gamut of legislation and a jigsaw, and to what I said about Lord Bracadale. We know that there are implementation problems—you mentioned 17 cases, but I do not know how many prosecutions there have been under the Communications Act 2003, because I have not seen the figures, so I will not say whether one piece of legislation is better than the other.

The Bracadale review is an opportunity to look at everything in the round. If it appears that the 2003 act is working perfectly well and there are more prosecutions under it, that might form part of what Bracadale comes back with, and decisions can be made then.

James Kelly

Thank you.

Mr Riach, let us leave aside issues to do with the 2012 act and consider the promotion of a good atmosphere in the context of football. The committee heard from the Scottish Football Supporters Association that it would like local forums to be created, in which clubs, football supporters and police would get together to look at the issues and consider how to promote good behaviour and relations around football. Is that something that you and your members would be interested in participating in?

Sandy Riach

That is one of the things that we have been working on with Supporters Direct Scotland and the SPFL and the SFA over the past four or five years; we have built up a dialogue to improve things. It is about getting the approach drilled down into the clubs. A lot of clubs have already put in place liaison officers, who work with communities and fans, but disability liaison officers are not in place in every club. That approach would go a long way towards improving the atmosphere and improving the relationships between clubs and the police, stewards and the authorities.

James Kelly

I think that there is broad agreement on that.

Mr Halpin, you said today and in your submission that your interaction with the 2012 act has been to do with interventions. You said that three people have been referred to your STOP programme under the 2012 act and others have been referred under pre-existing legislation. Is it fair to conclude that the legislation that pre-existed the 2012 act is effective and will continue to be effective in capturing the offences that we have been discussing?

Tom Halpin

I can say from the experience of the cases that have come to our attention that if the pre-existing legislation is applied appropriately, with the right message, it will identify the same people and refer them to the same interventions.

James Kelly

Thank you.

Mr Boyle, in your written submission you talked about inconsistencies in the legal judgments. A principle of the Scottish legal system is that there must be legal certainty, with consistent judgments in cases that come before the court. Will you give a bit more detail about the inconsistencies and how they have caused confusion and division among the judiciary?

Danny Boyle

From memory, I think that we picked up on two examples in our submission. One was the case of Mr Richmond, who made a derogatory comment about the head of state of the United Kingdom and the leader of the Catholic Church. He was only admonished under the 2012 act, because the judge said that this type of legislation was not meant for the likes of him, despite the fact that he quite clearly said something that could easily be construed as sectarian. In fact, the case was one of the few examples where the word “sectarian” applies under the 2012 act, obviously with regard to both parts of what Mr Richmond said.

That same judgment, using section 1(2)(e), has not been applied in cases where people have been found guilty of a sectarian crime, when the much broader interpretation of “sectarianism”, which has no legal validity in Scots law, is applied. I understand that there was a challenge under article 7 of the European convention on human rights to the Donnelly and Walsh case, with regards to the specifics of a particular song, although it was not successful.

From our perspective, that variation in justiciability is a strong argument that the 2012 act, and particularly section 1, is incompatible with the Human Rights Act 1998.

The Convener

That concludes our questions. It has been a lengthy but helpful evidence session and I thank the witnesses for attending.

Our next meeting will take place on Tuesday 31 October 2017, when we will take evidence from Sheriff Principal Taylor on the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill and take evidence at stage 2 of the Domestic Abuse (Scotland) Bill.

The Convener

Item 2 is our third day of taking evidence on the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a Scottish Parliament information centre paper.

I welcome James Kelly, the member in the charge of the bill, to the meeting. I understand that he can stay only for the first panel of witnesses and that Claire Baker will attend for the second.

I also welcome our first panel of witnesses. Anthony Horan is the director of the Catholic parliamentary office of the Catholic Bishops Conference of Scotland, the Rev Ian Galloway is from the Church of Scotland’s church and society council, Chris Oswald is the head of policy at the Equality and Human Rights Commission, Ephraim Borowski is the director of the Scottish Council of Jewish Communities, and Debbie Figures is a development assistant at the Scottish Women’s Convention. I thank the panel members for all their written submissions, which have been extremely helpful to the committee.

We will move straight to questions. I begin by asking the witnesses to say in general terms how they feel about the repeal bill. Do you support it or not? Do you have general concerns?

Anthony Horan (Catholic Bishops Conference of Scotland)

First and foremost, the Catholic church takes the position that the decision on whether to repeal the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 is for Parliament.

When the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill was introduced in 2012, we supported its broad principle, which is to tackle offensive behaviour and everything that goes along with it. The church will always condemn any behaviour that fosters hatred of any kind. So, we support the broad principle of the act, but underneath that there are questions about the overall efficacy of the act and about how it was introduced and brought into being. I am not sure whether you want me to tease those out now, or whether they will come out in the evidence, but I could give you a broad-brush view.

The Convener

You could mention your areas of concern.

Anthony Horan

It appears that, when the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill was introduced, it was fast-tracked somewhat. It seems that it was rushed through and was perhaps not given proper scrutiny—such as, for example, the bill to repeal the act is currently being given. Questions also remain about whether it was necessary. I know that the committee has heard evidence that there was pre-existing legislation and common law that would have covered the offences that are cited in the act. That broadly describes our concerns.

The Rev Ian Galloway (Church of Scotland Church and Society Council)

When the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill was introduced, the Church of Scotland cautioned that it was important to see the impact of the eventual legislation in the context of taking a wider view of how we deal with issues around sectarianism in our society. It is to the Government’s credit that, in the years since the act was passed, considerable work has been done on where we sit with those things. We recognise that sectarianism is still very much an issue and that it shows up in lots of different places, including at football.

We cautioned then about the speed of the passage of the bill, and we caution now about the speed of repeal. We note that sectarianism can be seen to be part of a weave of attitudes and behaviours that relate to other issues in our society—racist attitudes and behaviours and other religious attitudes and behaviours, including Islamophobia. It seems to us that, given that a wider review of hate crime is being undertaken, it would be wise to see society’s response to sectarianism in the context of that wider review. Particularly for young people, who inherit our legislative decisions along with all the other decisions that we make, sectarianism does not sit on its own, separate from all of those other attitudes and behaviours that they have to encounter, decide about and respond to. That overall weave is where we would like to see the matter resolved, so we think that it would be wise not to rush the question of repeal or amendment but instead to wait for the review’s outcome and then to see where the bits of the 2012 act sit in relation to that.

Also, sometimes we make a decision for one reason but send a message that is not the one that we intended to send. We think that there is a danger of sending the message, by the simple repeal of the act, that we are not taking seriously enough such behaviours and attitudes, or society’s need to say that those behaviours and attitudes are unacceptable. We want to know very clearly what the alternatives are before we remove one or two of the safeguards that are in place through the legislation. It is largely a question of timing and of that wider review that we think could, in an overarching sense, include how we should respond to this issue.

Chris Oswald (Equality and Human Rights Commission)

I very much agree with Ian Galloway that it would be unwise to proceed with repeal of the 2012 act until the wider review has been progressed and its findings have been discussed and debated. Although the discussions around the act are predominantly about sectarianism, we must note that protections for disabled people and trans people would be lost if the act were to be repealed, and there is at this point no prospect of their reintroduction. The threatening religious communications aspect of the act would also be lost: again, there is no prospect at this point of its being reintroduced.

Although the EHRC recognises that freedom of speech and freedom of expression are enormously important and are protected by article 10 of the European convention on human rights, they need to be balanced against the International Covenant on Civil and Political Rights, which says that states need to have in place laws that counter

“incitement to discrimination, hostility or violence”.

It is the commission’s position that the international convention overrides the ECHR, in this case.

There are also wider implications, because this is not just about people who want to gather at football grounds and who feel that their rights are being infringed by their being unable to sing particular songs. It is about the broader base of fans who wish to attend football matches but are put off doing so because of the conduct of others.

Debbie Figures (Scottish Women’s Convention)

I will start by describing our organisation. The Scottish Women’s Convention is funded by the Scottish Government to consult women across Scotland—we are not a lobbying organisation. We hold roadshows and round-table events that can be very small or have up to 40 or 50 women in a room at a time. We discuss what is happening in their local area and how they feel about that, what is going on in policy and anything else that they wish to discuss. We also hold thematic conference events, which tend not to be about things that are happening locally but about bills that are going through Parliament.

We have held a number of events, from the top of Scotland down to the Borders, and on the islands. Women come to our events to tell us what they feel and to have their voices heard. As a women’s organisation, we welcome any moves to offer protection for women where other things do not. We feel that the 2012 act offers some extra protection for women in terms of its equality aspect.

I should mention a campaign that took place over the weekend by a group of women who wanted to get in touch with us. I cannot ignore their voices, because the convention is about women’s voices. We had 40 emails from women asking us take back the evidence that we provided for this session. We feel that all women’s voices are very important. Women have come to our events and discussed the bill with us—that is what appears in our written evidence to the committee.

Women are not protected against hate crime: that is not part of hate crime legislation. We feel that using the offence of breach of the peace for acts such as rape threats and sexual harassment at football games is unacceptable. That is where we are coming from in our evidence to the committee.

Ephraim Borowski (Scottish Council of Jewish Communities)

I apologise for the state of the M8, although this is not a transport committee.

In general, my position is almost identical to that of Ian Galloway. Anybody who is old enough to remember the original race relations act, the Race Relations Act 1965, will realise how much society has changed, in that, for example, people do not say things now that they would have said in the 1960s—at least not in public. That is partly down to legislation, so I do not think that we should underestimate the effect that legislation has on attitudes. That is one marker. I am therefore predisposed towards anything that criminalises hate crime, because it will ultimately feed into society’s attitudes. I am also therefore predisposed against repealing any anti-hate crime legislation, for exactly the reason that Ian Galloway gave: doing so could inadvertently send the wrong message, that somehow some kind of hate crime, speech or action is now acceptable in society.

I have not read all the submissions to the committee, but I read those from what we might call the representative groups. I would not go so far as to say that they are unanimous, but I was taken by the fact that they are nearly unanimous in their opposition to repeal, largely for reasons such as I mentioned. If all the victim groups—as we might call them—say that they feel protected by the legislation to any extent, that is a reason for holding on to it.

As Ian Galloway and Chris Oswald said, the 2012 act has been criticised for being piecemeal and hurried. We are talking about repealing it at exactly the time when there is a large-scale review of hate crime legislation. Whatever the deficiencies of the current legislation, about which I would not pretend to have any expertise, we should listen, in the context of the Bracadale review, to what people tell us about deficiencies, and we should not repeal the existing legislation hurriedly and in a piecemeal manner.

In the detail, as has been said by others, the issue is not only about football or sectarianism—which is an iffy concept—or religious hatred. We should think in terms of wider hate crime legislation, in this form or a different form, that should cover all hate crime in all contexts equally and not single out a particular group—which is one of the criticisms of the 2012 act.

The Convener

Submissions have been received from a variety of organisations. I have not done a count to see what the majority look like, but there are strong views on both sides of the argument. It is good to put that up front.

Ephraim Borowski

With respect, I say that my impression is that the submissions from groups that are representative of the protected characteristics are notably against repeal.

The Convener

It is good to put that in context.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Good morning. Do witnesses feel that the act has led to a change of behaviour at football matches? If you feel that it is for the better, has it led you to enjoy football matches more—if you attend matches?

Ephraim Borowski

The last time I attended a football match was when I was aged about 13, so I cannot respond to that question.

Debbie Figures

I do not attend football matches at all—I have no strong interest in football.

Chris Oswald

I was struck by a report in the Glasgow Evening Times last week of fans being sought after sectarian and homophobic chanting on a train between Edinburgh and Glasgow, I think, in advance of a match. The act has not had the full intended impact, but it is still a relatively new piece of legislation.

It is hard to say whether the act has changed behaviour at football grounds. There will be situations where people’s behaviour may be constrained by knowledge that the act is in force, and situations where people do not care about those constraints. I am not sure how you could measure that. However, as has been said, there is a strong symbolic element to the Scottish state saying that such behaviour is unacceptable, which I think has been communicated quite successfully and will have had some impact on some fans.

The Rev Ian Galloway

I have led a very sheltered life, but I have been to quite a lot of football matches. As a young person I used to go all the time, and some of the scariest events of my life, in terms of feeling under personal threat, happened in that context. That includes being subjected to violence and abuse.

I was privileged to be on the advisory group on tackling sectarianism that the Government set up. In the course of that work, I attended a number of football contexts in association with police operations to get a sense of the issues that were involved and how they are working out.

I would not say that anything has got worse than I remember from before, but I would not be able to say with any confidence that things have got markedly better. When you go to events where aggressive hostility is expressed between groups of people, and when you go to events at which deliberate physical damage is done to property—as a matter of course and as a normal expectation—you have to say that things are not great. I know people who experienced those things for the first time and were horrified that their children attended those kinds of events.

I think that it is easy for us to normalise, in the context of football, behaviour that should not be normalised and should not be acceptable. I know of a number of people who are what I would call middle-class people with significant responsibilities whose behaviour when they attend these events is unlike at any other point in their lives—I hope. I do not know what they do behind the closed doors of their homes, and sometimes I worry about that. If it is anything like the behaviour that they exhibit at football matches, it is very concerning. Football matches are one of the few contexts in our society where people behave in that way and think that it is okay and normal. Actually, it is not normal and we should not be accepting it as normal.

I do not think that behaviour in football contexts has improved dramatically, although some people will be aware that they are more under scrutiny and are more liable to a response than they were before the act was passed.

I do not think that the act is a panacea, by the way—I am not here to hold a candle for it. I am here to say that we cannot accept the behaviour that we get in the context of football any more than we would accept it anywhere else. We need to look for leadership on that approach, and I do not see the leadership that we need coming from, for example, the football industry. I just do not see it. Therefore it is important that Government takes a lead on our behalf and encourages us all to take a lead in saying that it is unacceptable and we will not put up with it.

Anthony Horan

I used to attend football matches regularly, but having a very young family has somewhat put paid to my attendance at games. However, I still go to the odd one, and my experience is similar to what Mr Galloway described. It does not appear to have got any worse, but I do not think that it has got any better either. As Chris Oswald said, it is very hard to gauge, but I do not see any improvement in behaviour at football matches. It has not changed dramatically.

Rona Mackay

Debbie Figures, I appreciate that you said that you are not a football fan but, based on the women’s forums that you have held and on your previous submissions, can you give us a flavour of whether the legislation makes you feel safer? Does it help when you are travelling to matches, and is that why you do not want to see the act repealed?

Debbie Figures

The women who have come to our events—I emphasise that we can take the voices only of the women who attend our events, who number in the hundreds; we are a small organisation but we cover Scotland widely—have felt increasingly terrified and scared, particularly on public transport and in public places such as pubs, when football games are on. They have given us evidence on that. Our evidence contains direct quotes from women. We held round-table events with young women and found that it extends to school uniform and feeling that they cannot wear their school tie because they have been subjected to abuse according to what school they go to. That is completely unacceptable. As a women’s organisation, we think that any form of violence against women is completely unacceptable, and attacking someone for their gender is a form of violence against women. I cannot tell you whether it has improved in the football grounds because I do not have that experience and women have not told us about that in particular. However, they have told us how they feel. The emphasis from the women who have come to us is that they are scared and feel under scrutiny when they are at matches.

Mary Fee (West Scotland) (Lab)

I want to pick up on the communications and engagements that you have had with women across the country. You said that you have held a number of events and have consulted women. Can you give us an idea of how many women you consulted?

Debbie Figures

Every six weeks, we host a round-table event, which involves eight to 12 women—I am in charge of dealing with those. We hold roadshows—80 to 120 women turned up to our last two roadshow events. We also have conferences and things come up in general conversation, because after our panels of speakers there are round-table discussions. There can be anything up to 140 women at a time at those events. We hold a lot of events and round tables with women. We also speak to women daily about blogging. We have feedback on our website and other social media where women can send in comments if they need to—we are very inclusive of all women’s voices.

Mary Fee

Have you had any specific events to discuss the repeal of the act?

Debbie Figures

Yes.

Mary Fee

That is what I am interested in.

Debbie Figures

We recently held two events on the topic, one with young women of school age to 20 and another round-table discussion with women of a mixture of ages. We have had constant discussions about it as well—there is always talk about what is going on.

Mary Fee

How many women attended the two specific events?

Debbie Figures

There were 20 young women at the young women’s event and about 40 women at the other event where there were two round tables.

Mary Fee

Was the evidence that you gave to the committee based on what you heard from those 60 women?

Debbie Figures

No. We had widespread evidence from our roadshows and from women coming to us and discussing the issue.

Mary Fee

I am keen to understand how many women support the repeal and how many do not, given that you said at the start that you have been contacted by 40 women asking you to withdraw your evidence.

Debbie Figures

Yes, we were. I have printed them out for you.

Mary Fee

I was keen to get a sense of how many of the women you spoke to support the repeal.

You say in your evidence:

“Women have reported being groped, physically assaulted or even threatened with rape”.

I struggle to understand why you think that the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 gives you protection against being groped, physically assaulted or threatened with rape. Those are all in the range of sexual offences. I put it to you that there is protection under the law for women who are threatened with sexual assault, regardless of the provisions of this act.

Debbie Figures

Threats of rape?

Mary Fee

If someone was threatened with rape, sexual assault or violence out in the street today, they would be protected under the law.

Debbie Figures

You will find that numerous threats of rape have been dealt with under breach of the peace. As far as we are concerned, that is not adequate. Threatening rape is a form of abuse against women. We are not covered by hate crime. We have a submission to Lord Bracadale’s review of hate crime legislation suggesting that women should be included in hate crime. A lot of abuse is targeted at women because they are considered an easy target, because they do not fight back as much. Women who get rape threats are not covered by sexual harassment, which is being touched on your body. Everyone has a voice, and threatening women because of their gender and shouting, “I’m going to rape you,” because they have a different view is unacceptable.

Mary Fee

Historically, the police have used an aggravator in breach of the peace. Is that not sufficient?

Debbie Figures

No.

The Convener

That gender is not covered by hate crime is a very good point. I hope that Lord Bracadale is going to look at that.

Debbie Figures

We hope so.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I just want to ask Debbie Figures whether the views that she is expressing are those of the Scottish Women’s Convention. I know that Mary Fee would not have intended it in this way, but I think that her line of questioning was slightly unfair because we have not asked any other organisation how many individuals they have spoken to. We have asked those individual organisations and agencies for their view of the bill, so I want to ask Debbie Figures whether the view that she has expressed is the view of the Scottish Women’s Convention.

Debbie Figures

It is totally the view of the Scottish Women’s Convention. We are an inclusive organisation and hundreds of women submit evidence to us on various issues. We are open to anyone who comes forward to us and every woman’s voice is important to us. That is why I talked about the 40 women who contacted us over the weekend. We would not ignore the fact that there was a campaign over the weekend to contact us, but the women who turned up to our events in numbers have said what is included in our consultation response. We cannot include the voices of those who did not come forward to us. We have given the voices that we have and we deal with a lot of women every day.

Mairi Gougeon (Angus North and Mearns) (SNP)

I have a couple of quick questions particularly on some of the elements of your evidence and I am glad that you were able to come along this week.

We heard from Fans Against Criminalisation in evidence to the committee on 3 October. Mary Fee touched on how you compiled your evidence, which was certainly a point that Fans Against Criminalisation raised. Jeanette Findlay said:

“We tried to correspond with the Scottish Women’s Convention in particular, but it was unable to provide us with any details about where it had collected that evidence, how many women it represented, the age ranges involved or any basic statistics.”—[Official Report, Justice Committee, 3 October 2017; c 34.]

I just wanted to give you a chance to respond to that.

Debbie Figures

I can say that Jeanette Findlay did not contact the organisation via email or in any other form. She did tweet to us occasionally, but our policy is not to respond to tweets that create any sort of negativity. She never actually sent us any form of question. We had one woman contact us when that evidence was given, but it was not Jeanette Findlay herself. We are still in the process of trying to arrange a meeting with her outwith work hours, which is causing a bit of an issue, but we will get around to talking to her at some point. Jeanette Findlay herself has not contacted us except through Twitter.

Mairi Gougeon

Thank you. I just wanted to clarify that.

In your written evidence to the committee, you say that breach of the peace legislation does not

“send a strong enough message of condemnation in regards to the offensive behaviour that can occur at football events.”

That is one of the fears that have been articulated.

In his opening remarks to the committee, Mr Borowski said that we should not underestimate the effect that legislation has on attitudes. Although the argument has been used in the committee that we should not be legislating ourselves out of a problem, the legislation sets the tone for the type of behaviour that we are willing to accept. What is your opinion of that?

Debbie Figures

Our consultation response clearly says that amendments need to be made to the act, and there should be clarification of how it should be used. We also think that there should be education of the police and people of all ages, including in schools, on how the act affects people’s use of sectarian language.

It is important to say that women are not covered by anything other than what is in the 2012 act. It covers the equalities strands, and therefore includes women, giving them the extra protection so that, whatever is said to or done to women, they can use the act to get the justice that they deserve.

Not all women agree with what we are putting in, but we have to make sure that all women have a voice, and we are a voice for those women who feel that they are treated unfairly at these matches. We are here to give that voice, so that is why we are giving this evidence today.

George Adam (Paisley) (SNP)

I know that I have already declared this but, for transparency, I say that I am convener of the St Mirren Independent Supporters Association.

The Convener

That is duly noted.

George Adam

An urban myth seems to have taken over that the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 was a knee-jerk reaction to the game of shame between Rangers and Celtic in 2011. A lot of fans like to paint the idea that it was the result of the two managers effectively going toe to toe with each other—that is parochially known in Glasgow as “having a square go”. However, although there were 34 arrests at the game of shame, there were 229 arrests in the whole of Strathclyde during the previous game. Sixteen people were arrested at the game of shame for offences of a sectarian nature. That came on the back of around three or four games at which things were constantly getting worse. The football commentator Chick Young said:

“In 40 years of covering Old Firm matches, this one is up there with one of the most scandalous I have ever seen.”

He was talking about what happened on the football field and off the park.

With that backdrop, do the witnesses consider that the legislation was necessary to tackle offensive or hateful behaviour at football matches?

The Convener

Who would like to tackle that briefly? We are running quite a bit behind, so I would be pleased if members’ questions and witnesses’ answers could be as succinct as possible.

The Rev Ian Galloway

That is a difficult question to answer. I do not think that the issue is one particular incident or one short period of time; a culture of behaviour has been around for a long time that has not responded to pressure from society in other ways to change. I am not saying that the legislative approach has been any more successful, but I am concerned that we still have the potential for such behaviour and for arrests and flashpoints. Removing the legislation without serious consideration of what the alternatives are to make a difference is a matter of concern.

The Convener

Do any other panellists want to comment? If not, we will move on.

George Adam

May I ask another question, please?

The Convener

I think that that is what you more or less did.

George Adam

I have a supplementary question on the back of that.

The Convener

Okay—if it is brief.

George Adam

The whole point of the act was to deal with what a reasonable person finds offensive. Back at the time that we are talking about, Rangers supporters sang the famine song. That caused such a stushie, to use a Scots word, that UNICEF and the Irish Government talked about it. I think that the Rev Ian Galloway referred to the idea of culture. A lot of football fans believe that that is part of their culture. Surely the act along with a basket of other measures helps to ensure that we get to a place where that is not allowed any more.

The Convener

Is that question directed to anyone in particular?

George Adam

It is directed to the Rev Ian Galloway, as he mentioned culture.

The Rev Ian Galloway

You have more of a view of the evidence of what has happened since the act was passed than I have, but I think that there have been a number of instances when people stopped singing particular things when they knew that they were being filmed and were under additional scrutiny. I am not sure how effective the approach has been, but I would like people to stop singing those songs completely, and I would like them to do that because they know, as human beings, that singing them is wrong. Singing them is offensive to people beyond those who are there; it is offensive to people who hear that when they are watching the highlights of the match. I would like people to stop doing it now, because it is the wrong thing to do to their neighbours.

George Adam

Can I ask—

The Convener

I am afraid that we have to move on.

The Rev Ian Galloway

I am not sure how important the legislation is in that regard.

George Adam

Anthony Horan—

The Convener

You have had a really good go at that issue, George. We must move on to Ben Macpherson.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

Good morning, panel. As the Rev Ian Galloway has said, the legislation is not a panacea, but there is evidence that it is making individuals think twice about singing certain songs and behaving in certain ways.

On that theme, I note that, in its submission, the Church of Scotland’s church and society council says:

“repealing the Act without replacement would be a symbol that our elected representatives do not think that behaving offensively or sending threatening communications is problematic.”

In light of that statement, do you have concerns that if the 2012 act were to be repealed, some supporters might believe that certain behaviours would become acceptable, because they would have been decriminalised?

The Rev Ian Galloway

I think that there is a danger that people will make their own interpretation in the light of their own predilections. Although certain reasons might be put forward for repealing the act, people might well take something completely different out of it. There is a danger of some people seeing the act’s repeal as a form of victory, which would be extremely unhelpful. That would not be the reason for repealing the act, if that were to be proceeded with, but that is the way in which it would be perceived, and perceptions are very important on such matters.

We think that there is a significant danger in that regard, unless it were to be stated clearly that all such behaviour was unacceptable and alternatives were put forward to strengthen society’s way of dealing with them. At the moment, I do not see that happening in this process.

Ben Macpherson

Would any of the other panellists like to comment?

Chris Oswald

I agree.

Ephraim Borowski

Likewise.

Ben Macpherson

I think that that covers the point.

Mairi Gougeon

Some of you have mentioned Lord Bracadale’s review. Do you feel that it would make more sense for us to wait for the outcome of that before considering the repeal of the act? I would just like a simple answer from all the panellists.

The Convener

A yes or no will suffice, as we have covered the issue.

Ephraim Borowski

Yes.

Chris Oswald

Yes.

Debbie Figures

Yes.

Maurice Corry (West Scotland) (Con)

Good morning, panel. With regard to the most appropriate way to tackle hate crime at football, is some form of legislation required to tackle offensive behaviour and hate crime at football? Again, a yes or no will suffice.

Chris Oswald

Yes.

Ephraim Borowski

Yes. However, I do not think that the question is quite as amenable to a one-word answer, because in the background there is the question whether there is adequate legislation other than the 2012 act. I would look to the lawyers for an answer on that.

This might be in part an answer to George Adam’s question, too, but I am struck by the fact that the act is being used. There is a substantial number of prosecutions each year, which suggests that the general common-law and statutory offences that could otherwise be used are thought by the police and the Crown Office not to cover the entire patch. That is before we come to section 6 of the act, which relates to offensive communications and which I assume we will address at some stage.

Chris Oswald

I very much agree. In the 1990s, I spent a lot of time working with people who were victims of racial harassment. At that point, racial harassment was often prosecuted as a breach of the peace, which simply did not reflect the impact and the social significance of such behaviour and the dangers that it presented. It deals with the physical act, but it does not deal with the motivation behind it, the behaviour itself or the social impact of it, and I would worry if we were to move back to the catch-all of breach of the peace.

Debbie Figures

That is exactly my opinion. Indeed, I have stated as much already: breach of the peace is simply not what is needed to capture the fact that a woman is being abused for being a woman. It is not enough.

The Rev Ian Galloway

Before this legislation, the law was being enforced in a relatively ineffective way at matches; the act has given an additional focus in that regard, and there is a need not to remove that. Whether through the legislation or through other means, we need that focus to make it clear to people that, as far as football is concerned, we will no longer put up with the sort of behaviour that we would not put up with elsewhere. That is not what football is for, and it is not what it is about.

Anthony Horan

It is important to have legislation that is well thought out, suitable and proportionate to its aim—that is not in question. However, Mairi Gougeon made a good point when she said that we should not necessarily be legislating ourselves out of a problem.

We need to appreciate that legislation, whether we mean this act or other legislation that has similar offences attached to it, must be accompanied by something else; it must be more than just words on the page. It is incumbent on the Government to ensure that there is awareness of this across the country, but in all honesty, people should know what is right and wrong. We need to be careful here; we have talked about sending out the wrong message, but there is a danger that we are underestimating the public. Most people know what is right and what is wrong, and they know what is appropriate and what is inappropriate behaviour, whether it be at football, on the street, in a pub or wherever. Unfortunately, people’s behaviour is often fuelled by alcohol. In that case, it does not matter a jot what law is in place, because those people will behave inappropriately anyway.

We need to do more than simply throw legislation at the problem. For example, according to religious aggravation statistics released in May, 57 per cent of charges were for anti-Catholic abuse or abuse that targeted Catholicism. That figure has been consistently high for a number of years now; last year, there was a slight dip, but it has always been more than 50 per cent. The next group is the Protestants, with 23 or 24 per cent of religious aggravation being anti-Protestant. Given that Catholics make up only 16 per cent of the Scottish population, the religious aggravation against them is significantly disproportionate. Legislation has its place but, as I have said, instead than simply throwing legislation at the problem, we need to get to the root of it. It is important for Government to accept and acknowledge, as it has in other areas, that there is a distinct problem here. I think that there is a distinct anti-Catholic problem in Scotland.

Ephraim Borowski made a very good point when he said that sectarianism is an “iffy” concept. He is absolutely right. If something is anti-Catholic, we should call it anti-Catholic; if something is anti-Protestant, we should call it anti-Protestant; and if something is anti-Semitic, we should call it anti-Semitic. We need the leadership from Government that the Rev Ian Galloway referred to on this issue, because we must get to the root of the problems. First of all, though, we need to accept that a problem exists.

Fulton MacGregor

I am interested in hearing the panel’s views on other initiatives, such as those in education, to tackle the root cause of sectarianism. Previous witnesses have talked about education programmes that could work in that regard, and I am particularly interested in what happens in schools. As you will know, in a survey of schools that it undertook, the committee found that a lot of young people are aware of the act. Given that and given that those young people responded with their thoughts to the survey, how might repealing the act impact on education programmes? We have touched on how such a move might send the wrong message to wider society, although others have said that it might not.

I know that we are running out of time, convener, so I ask that the witnesses frame their responses to my question in terms of the education of young people. That is what I want to tease out.

Ephraim Borowski

Unfortunately, education is open ended; it is not indoctrination. You give young people information and they will make of it what they want, which in itself will be informed by their pre-existing prejudices. That is simply a sad fact, but I can give you one appalling example that I heard about this week. This Parliament and the Scottish Government support the programme of school visits to Auschwitz, the intention of which is to educate young people about where hatred can lead. A young girl in the Jewish community who had recently visited Auschwitz with a youth group received from her supposed best friend a text message or a tweet of an extreme and outrageous anti-Semitic nature. What that shows is that education sometimes actually provides the ammunition that people can use to fuel their pre-existing hatred, so I do not think that education alone, any more than legislation alone, can be looked to as a panacea.

In this particular context, there is obviously a lot to be done. I do not want to end up merely swapping statistics, but the hate crime statistics published by the Government and the Crown Office—which Anthony Horan has already referred to and which show that he is absolutely right to say that, relative to the size of the community, there is a disproportionate representation of anti-Catholic hatred—show that the level of anti-Semitic hatred is 40 times that, relative to the size of the community. As I have said, there is a lot of work still to be done.

Debbie Figures

As far as we are concerned, education is vital, and we have stated that there needs to be more education in schools on sectarianism and its impact. A mixture of young women from all areas have come to us, and not just about the Catholic and Protestant sides of it. It is a mixture of everything. The fact that they feel intimidated because they go to certain schools is indicative of what happens in daily life. It is important that young women—indeed, all young people—should feel safe in their own systems. If education has failed in that way, we should perhaps be educating people more about this issue, and that is why we are calling for more education in that respect. On a personal level, I would hope that people would not do it to one another; however, it does not work like that, so as far as the women who come to us are concerned, I would say that education is vital.

Fulton MacGregor

I know that a lot of good work is going on in schools and by organisations such as Nil by Mouth, and I know that the football authorities and the churches are behind that and that various folk are involved in it. What I am trying to look at is the fact that there is wide knowledge about the act among school children and young people, and I wonder where the witnesses think the repeal bill would fit into that. The two responses that we have heard so far have been absolutely great and I agree with everything that has been said, but I think that we have time for only one more answer, so I would like to hear about the repeal bill in the context of any further work.

The Rev Ian Galloway

These things are separate. A huge amount of very good and committed work is going on locally. For example, in the south side of Glasgow, we work with hundreds of young people across the education spectrum, and each year we take about 100 16-year-olds from the local Catholic secondary school and the non-denominational secondary school to Belfast so that they can reflect more on these issues.

An enormous amount of that sort of work goes on. The question is whether having too hasty a repeal at this point sits in contradiction to it or whether engagement with those issues needs a wee bit more consideration. Young people clearly understand that sectarianism is like racism, Islamophobia and anti-Semitism, and in their lives they develop a response to that weave of attitudes and behaviours. We want to support them in that, and we should be very careful before we introduce any message that might suggest to them that sectarianism is not as important as they have begun to think it is.

The Convener

We are running badly behind time now, so I ask members and the panel to be as succinct as possible, because we want to get through all the questions.

Chris Oswald

If we were to repeal the act and move to a purely educative system, we would go back to the same old ways. My concern is that young people would go to a game, see unacceptable behaviour and, because there was no sanction, believe that they could behave in the same way.

Fulton MacGregor

Perhaps I can join up two questions. Concerns about the repeal of section 6 of the 2012 act have already been mentioned. Can you elaborate on your concerns about the repeal of that section and, in particular, an increase in online abuse?

The Convener

It would be good to hear from Ephraim Borowski, because of his written evidence.

Ephraim Borowski

I am sad to say that I am more of an expert on online abuse than I am on football. I have been targeted for being a witness in a court case; instead of sending messages to an organisation, somebody took the trouble to find my personal email address. We have to take account of the electronic world in which we live, which does not recognise national boundaries. The lawyers tell us that section 6 is an important transnational power that catches conduct that would not otherwise be caught by Scots law, and that is another important reason why, if this legislation is not to be retained in exactly its present form, it should be amended rather than repealed. Given the runaway growth of social media, this matter probably needs more careful and extended consideration of the kind that Lord Bracadale is giving it instead of simply knee-jerk repeal.

The Convener

You are referring to the extraterritorial aspect that is not covered elsewhere in Scots law.

Ephraim Borowski

Yes.

Debbie Figures

It is vital that we keep section 6 to ensure that online abuse of any sort is criminalised. It is not just young people who are affected by social media, but people of all ages; indeed, the women who come to us about abuse on social media are not just young, but all ages. It is very important that online sectarianism is dealt with appropriately.

The Convener

I see that the other panel members concur with that.

Liam Kerr (North East Scotland) (Con)

Staying on section 6, on threatening communications, a number of witnesses have suggested that a key function of the 2012 act is to send out a message. Is it your view that section 6 has an impact in sending out a message that that particular type of behaviour is unacceptable and illegal?

Chris Oswald

Section 6 is perhaps the part of the 2012 act that comes closest to prohibitions that are already in place around incitement to racial hatred. It is a very high bar and there are very few prosecutions on that issue. However, it is a serious issue and I would be concerned if section 6 were to be removed. It might not be a provision that is used particularly often, but it has a strong significance.

Liam Kerr

Such behaviour is still going on, yet there have been very few prosecutions under section 6. Mr Borowski made the point that the act is being used, but the fact that there have been so few prosecutions suggests that that part of the act is not being used. Why is it not being used?

Chris Oswald

You would probably need to direct that question to the police and prosecutors. Incitement to racial hatred, which is a similar type of offence, is used on perhaps a dozen occasions a year. The frequency of its use does not undermine the importance of those prosecutions.

Ephraim Borowski

I have two brief points to add to that. My understanding from some of the other submissions to the committee is that section 6 adds the extraterritorial element to other legislation. If that is the case, it might well be that the provision is not used as much as it might be, or such cases do not get to court as often as they might, because of the unhelpful attitude of international social media companies, which are not prepared to provide the evidence that would allow a prosecution to succeed. It might not be to do with the nature of the offence.

I am most concerned that individuals—whether they are members of my community or any other community—should feel safe, particularly in their own homes. In section 6, we are talking about people who are being targeted—in effect, anonymously—by the so-called bedroom warriors. Those people do not see the effect of their actions, but the result can be exceptionally serious for people’s sense of wellbeing, their welfare and, indeed, their continued existence.

Liam Kerr

Given the lack of prosecutions and the fact that section 6 seems to be the less well-known part of the act, what would happen to the type and volume of online abuse if it were to be repealed?

Anthony Horan

I have been subjected to online abuse because of my faith, and I know that I am not alone in that. It is a vile and growing problem. Ephraim Borowski is correct to suggest that Lord Bracadale’s review is an opportunity to achieve the most appropriate legislation to tackle the problem. As Liam Kerr says, section 6 is not used very often and that needs to be considered.

One of the problems here is the behaviour of adults. We tend to blame young people for most of the behaviour that we see on social media, but baiting by celebrities and even civic leaders on Twitter, for example, creates a culture that suggests to young people that social media is a free-for-all, where they can behave in any way that they like. That is why we have the bedroom warriors that Ephraim Borowski referred to.

Ownership needs to be taken of the issue. Section 6 is not being used very often. Some people would argue that there are other provisions that would cover the behaviour that is cited in section 6. The act could be repealed, but there will be a problem either way. The Government needs to take ownership of the issue so that it can find a solution that tackles the behaviour in question.

Fulton MacGregor talked about education, which is vitally important, but if we want to change the culture of online hate and abuse, we need to look first and foremost at how the adults behave, because they are setting an example to young children that certain behaviours are acceptable.

Debbie Figures

It is important to remember that social media can sometimes be anonymous and that we will not know who the abuse is coming from. In addition, the names and pictures on social media might not represent the person behind the abuse. It is dangerous if we do not get information from social media companies about who the person behind the image on a social media account is.

The Convener

I have always maintained the policy that committee members should ask all the questions first, as it is our duty to scrutinise the bill, but given that James Kelly has time constraints that mean that he must leave the committee early, I am going to bring him in now. Mary Fee will conclude our line of questioning after James Kelly has exhausted his line of questions.

James Kelly (Glasgow) (Lab)

I am appreciative of that, convener, and of the time constraints.

I want to raise just one point with the panel. We have heard in previous evidence sessions that 72 per cent of the people who have been charged under the 2012 act are under the age of 30. We have also heard that many of those people have been brought into the criminal justice system for the first time by being charged under the 2012 act. Does the panel share the concerns that have been raised about the number of first-time offenders who have been brought into the criminal justice system in that way? Does the panel think that alternatives to prosecution should be sought in some cases?

Chris Oswald

If we look at the profile of people who are convicted of racially motivated offences, we find that 50 per cent of them are under the age of 20 and that 50 per cent of those people are under the age of 16. I think that the figures to which Mr Kelly referred reflect the fact that those people are more likely to carry out such acts rather than indicating a focus on younger people.

As to whether people are being brought into the criminal justice system because of the 2012 act, I would say that that is happening because of their behaviour rather than because of the 2012 act, which simply sets out behaviour that is felt to be socially damaging.

The Rev Ian Galloway

We should always look for alternatives to prosecution, not simply with the 2012 act but in our approach to people, particularly young people. The important question is how we encourage people to move away from behaviour that is detrimental to other people and to society, but it would be very unfortunate not to have a sanction for such behaviour. There comes a point when people have to learn that certain behaviour is unacceptable and will not be tolerated. For me, it is always unfortunate when a young person goes into the criminal justice system, but flexible responses are available and we need to exercise those. However, as a way of enabling that, we should not do away with all the relevant legislation.

Ephraim Borowski

I agree with everything that the two previous speakers have said. Unless there is independent evidence that the proportion of prosecutions is out of line with the proportion of perpetrators, the proportion of prosecutions is simply a fact. I suspect that we might find the same proportion if we looked at driving offences, for example.

Mary Fee

I will roll my two questions into one, and I would be grateful if the panel could answer with a yes or a no, if they have a view. Does the panel think that the 2012 act has had an impact on reducing sectarianism? I specifically mean sectarianism. Given that there is no definition of sectarianism in Scots law, would it be beneficial to have one?

Ephraim Borowski

I am happy to start on the last part of that question. Whether there is a definition of sectarianism in Scots law is possibly a different question. As a couple of us have already said, the issue is not sectarianism as properly defined. Dare I say it, that is itself a sectarian concept, because sectarianism is an intra-religious phenomenon. We are talking here about religious hatred or hatred of a religion. It is interesting that the way in which the statistics are published means that they do not talk about incidents that are directed against somebody of a particular faith; rather, they talk about how people are motivated by hatred of that particular faith. Frankly, that is how it should be.

Having said all that about the second part of Mary Fee’s question, I do not think that I can answer the first part of it.

Mary Fee

Okay. Thank you. Does anyone else want to comment?

Anthony Horan

I do not believe that the 2012 act has had any impact on overall behaviour in tackling sectarianism.

On the point about the definition of sectarianism, I refer to my earlier evidence. It is an unhelpful term; we need to call specific behaviour what it really is and not just put it under the banner of sectarianism.

Mary Fee

That is helpful—thank you. Does anyone else want to comment?

The Rev Ian Galloway

The act has not been around for very long. Sectarianism has been around for a very long time. I would like to see what difference the act might make over a slightly longer period of time, along with other initiatives.

The hardest thing that the advisory group on tackling sectarianism had to do was to define sectarianism. We bandied that around for quite a long time and came up with something that was entirely unsatisfactory.

We have different forms of sectarianism in our society, but the intra-religious issue that Ephraim Borowski talked about is clearly part of it. That is true within the Christian tradition and within the Muslim tradition. These things are very difficult, but we just have to accept that they are there and they have to be responded to. When they become detrimental to people on the other side or to people in our society at large, we have a responsibility to intervene and to try to make a difference to the behaviour, even where there are sensitivities.

Mary Fee

Thank you. That is helpful.

The Convener

That concludes our questions. I thank the witnesses for being brief when they were asked to be. We are under huge time constraints and have to hear from another panel of witnesses today, as well as from all the other people we want to hear from when we are scrutinising the bill. Thank you all for appearing today; it was very helpful.

The Convener

I welcome our second panel of witnesses who are giving evidence on the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill: Desmond Ziola of the Glasgow Bar Association; Alan McCreadie, the head of research at the Law Society of Scotland; Professor Fiona Leverick, the professor of criminal law and criminal justice at the University of Glasgow; Stewart Regan, the chief executive officer at the Scottish Football Association; and Neil Doncaster, the chief executive of the Scottish Professional Football League.

I thank you all for your written submissions. In particular, I thank Stewart Regan and Neil Doncaster for coming here, as it has been quite difficult to find a mutually convenient time. I am pleased that you are able to attend and also that you managed to make an excellent submission, as have all the other witnesses.

We will move straight to questions, starting with Rona Mackay.

Rona Mackay

Good morning, panel. The bill proposes to repeal the 2012 act in its entirety. In general terms, do you think that that is a sensible proposition? If so, why?

Desmond Ziolo (Glasgow Bar Association)

Good morning. I am grateful for the opportunity to come before you this morning and speak on behalf of the Glasgow Bar Association.

It has been stated before that it is probably unfortunate that sections 1 and 6 of the 2012 act were amalgamated into one act. It is clear that section 6 in its entirety was an issue for the members of the previous panel and that they were concerned about its repeal. However, I want to touch on the point that was made to one of those panellists by one of the committee members—I think that it was Mr Kerr—that there is a question about why the power in section 6 has not been used.

I think that Police Scotland’s submission to the committee says that the power in section 6 is not being used because of the narrow scope of the section and its wording. Clearly, it is not working and it is not applicable in that the police do not feel comfortable using it. I accept what the faith groups are saying; however, if the Police Service of Scotland is not comfortable using the power in section 6 due its narrow scope, surely it is time to revisit it, maybe as part of consideration of the suggestions and comments that have been made regarding section 1.

Alan McCreadie (Law Society of Scotland)

I thank the Justice Committee for affording the Law Society an opportunity to provide evidence this morning.

The Law Society has no view at all on whether the 2012 act should be repealed and takes the view that that is a matter for the legislature. We did, however, provide both written and oral evidence at the bill stages of the 2012 act, much of which has been replicated in our written evidence to the committee. The Law Society has highlighted, and continues to highlight, some of the more practical aspects—the clarity that the act affords and its enforceability. Those issues remain very much live for the Law Society.

Professor Fiona Leverick (University of Glasgow)

I do not have a particularly strong view on whether the 2012 act should be repealed. The main reason for that—I confirm what other witnesses have said in other meetings—is that pretty much all the behaviour that is described in the act is covered by other criminal offences, whether common-law breach of the peace or statutory offences.

There are two advantages to keeping the act. First, it is very specific. When somebody is convicted under the act, the type of behaviour that they have engaged in is recorded very specifically, whereas, if a common-law offence such as breach of the peace is used, that specificity is lost. Having said that, breach of the peace can be racially or religiously aggravated, so those aspects can be captured.

Secondly, the point that some people have made about symbolism is a good one. If you repealed the act now, that might send a message that, all of a sudden, behaviour such as sectarian chanting is acceptable, so you would need a strong education campaign around that. The argument for repeal is possibly that the act has lost the confidence of the people who are targeted by it—football supporters—even though it did not create any new criminal offences, or, if it did create new criminal offences, they are for conduct that is already covered in other legislation.

It is very unusual—almost unheard of—for an act containing criminal offences to be specifically targeted at football supporters. We conducted a review of worldwide legislation for Lord Bracadale’s hate crime review, and the only other comparable piece of legislation that we could find was one that prohibits racist and offensive chanting at football matches in England and Wales. Nowhere else has specifically football-related criminal offences, so you can see why football fans might perceive that they are being targeted by the act. Nevertheless, the reality is that pretty much everything described in the act is covered by other criminal offences.

Stewart Regan (Scottish Football Association)

I thank the committee for giving me the opportunity to come this morning at short notice, as we are unable to attend on 14 November. That is really appreciated.

Like those who have spoken previously, I would say that the decision whether the act should be repealed is a matter for others rather than for the Scottish Football Association, but I would like to make a number of points relating to the act.

Back in 2011, after the Celtic-Rangers Scottish cup replay, which led to the summit being set up by Alex Salmond, supported by Stephen House, we participated fully and debated fully the making of improvements to behaviour in Scotland generally. The Scottish FA said at the time that anything that could help to improve behaviour had to be seen as a positive thing, and I stick by that position. The direction of travel of the act was definitely to be encouraged, but things have changed since then and we have moved on.

The Scottish FA completely overhauled its disciplinary procedures in 2011 and introduced a new, independent judicial system. In partnership with the Scottish Professional Football League, we have strengthened our guidelines on unacceptable conduct, and we have seen a number of other developments including the introduction of supporter liaison officers across the Scottish Professional Football League clubs, who have worked closely with fans’ groups to improve behaviour.

Although the act might have had the best of intentions, it has served to damage relationships between a number of key stakeholders. In a recent survey of 13,000 football fans, 71 per cent of them said that the act had not been effective. If that is the case and there is a belief that it is not working, and if the police are not using certain parts of it, there must be questions about its effectiveness.

The review of hate crime has the potential to pick up many aspects that are perhaps positive in regard to the 2012 act. I recently met Lord Bracadale and expressed a number of points about how he may be able to address hate crime generally through measures that could be put in place to address all of Scottish society and not to target football fans unfairly.

The key point that I would like to make in this evidence session is that football has been targeted and singled out, and a piece of legislation has been put in place that focuses exclusively on football. No other sport has that, and no other element of society has that. Over the past 24 hours, when I was preparing for this evidence session, I looked back at the music industry and identified that, between 2004 and 2013 at T in the Park, there were 3,600 incidents, three attempted murders, three drug-related deaths, 10 sexual assaults, one abduction and 2,000 drug offences. A summit was not called after T in the Park events and no emergency legislation was put in place. Football has been targeted, and many of the issues that the act sought to address can be addressed by other legislation.

Rona Mackay

Do you accept that sectarian songs are sung mostly at football matches?

Stewart Regan

Football gets tarred unfairly with being the source of a lot of unacceptable behaviour. None of us likes to hear sectarian songs being chanted, but that does not happen just at football matches; it is society wide. As the Rev Ian Galloway said earlier, sectarianism has been around for hundreds of years.

Yes, there are incidents at football matches, but we believe that we have rules and guidelines to address those. The direction of the legislation can be caught in existing and perhaps amended legislation through the hate crime review.

Neil Doncaster (Scottish Professional Football League)

I can add little to what Stewart Regan has said. There is very little interaction between the 2012 act and the work that the clubs and the SPFL do. The act is concerned with a criminal standard of proof and sectarian behaviour, whereas the work that we carry out relates to unacceptable conduct, which is a much broader concept with a much lower standard of proof—the balance of probabilities.

We have detailed rules and guidelines that govern unacceptable conduct and we work closely with clubs to minimise the incidence of unacceptable conduct within stadiums.

Rona Mackay

Have the 41 recommendations that were drawn up by the joint action group been implemented? If so, has that resulted in improved behaviour at and around football matches?

Neil Doncaster

We are going through a process with the Government to monitor what is going on at games. We appoint SPFL delegates to all the premiership matches, all televised games in the league and any other high-profile games. We take reports from those delegates and use that information to take any action that might be required against the clubs concerned in accordance with our rules. We will be—and are—monitoring what is going on within stadia, but it is too early to say what the trends are.

Rona Mackay

You did not answer my question. Have the 41 recommendations been implemented?

Neil Doncaster

I do not have that information to hand.

Stewart Regan

Without having a list of the 41 recommendations in front of me, I cannot go through them one by one. We were part of the group that designed the 41 recommendations, and we worked hard in June, after the summit met, to change our rules and governance procedures and to implement new initiatives. We worked with the SPFL to deliver a single league body for Scottish football, which resulted in the merger of the Scottish Premier League and the Scottish Football League. Many of the issues that were identified at that time have been addressed. I cannot say whether all 41 recommendations have been implemented, but I would like to think that the majority of them, if not all, have been.

Rona Mackay

When was the joint action group set up?

Stewart Regan

The joint action group was set up after the Celtic-Rangers Scottish cup semi-final in March 2011.

Rona Mackay

There has been no monitoring of the implementation of the recommendations since then, and you are not sure how many have been implemented.

Stewart Regan

We have been working with the various authorities and the Scottish Government ever since. As you know, the Scottish Government has a football lead and, since 2011, we have been having regular meetings with the Scottish Government that have led to a number of changes such as the strengthening of the guidelines on unacceptable conduct and the introduction of delegates at matches in the league and the Scottish cup. We have worked very closely with the Government.

We do not have a tracker on every recommendation but, if the committee is looking for feedback on that point, we can certainly provide it.

The Convener

That would be helpful.

George Adam has a supplementary question, after which he will ask another question.

George Adam

I am aware of what supporter liaison officers are meant to do, and I know that there was a great change in fan behaviour in European football, particularly in the Netherlands, because of them. Can you expand on that programme for my colleagues on the committee?

Stewart Regan

The Scottish FA has funded Supporters Direct Scotland to implement a programme of introducing a supporter liaison officer at every one of the top clubs and working its way down the league. In some cases, that will be a full-time paid position; in other cases, it will be a voluntary position. The role of the supporter liaison officer is to act as a bridge between the club, the supporters groups and the football authorities. They run a number of workshops and training sessions at which they share best practice, and they work with groups to identify ways to improve behaviour—for example, by looking at travel initiatives to get fans to grounds safely. The officers work with the clubs to identify areas of discontent and put in place action plans to address those.

George Adam

There seem to be three debates on the bill currently: the political debate that is going on here, the debate between Rangers and Celtic fans, and the discussion between all the rest of us football fans. There are huge differences in opinion. Nil by Mouth did some work recently in which it found that fans of teams apart from Rangers and Celtic say that sectarianism is a real problem, whereas Rangers and Celtic fans say that it is not.

What are the SFA and the SPFL doing to ensure that they are part of the solution?

Stewart Regan

Do you mean specifically in relation to sectarianism?

George Adam

Yes.

Stewart Regan

The Scottish Football Association partners with organisations such as Show Racism the Red Card, for example. Our clubs also have initiatives in place. We have worked with the Scottish Government. We have held seminars and workshops for various parties at Hampden park, which were led by Show Racism the Red Card. We have changed our rules to ensure that we can deal with unacceptable conduct, including sectarianism and other forms of unacceptable behaviour.

We continue to work on a raft of areas with various stakeholders across the game, including the Scottish Government.

Neil Doncaster

We have employed someone specifically and the bulk of his role is to monitor what is going on at our games and to use the reports of the SPFL delegates to ensure that we have a record of what unacceptable conduct is taking place and where. We want to ensure as best we can a consistency of approach to such conduct.

We have amended our rules and the guidelines of which clubs must take account considerably. The focus of the SPFL and all its member clubs remains on tackling unacceptable conduct where it occurs.

George Adam

However, today, the Rev Ian Galloway—albeit as a Church of Scotland minister—told us that from the perspective of someone who is not a football fan, he is not seeing leadership from football authorities in any shape or form. Given that comment, do you have anything to add to what you have just said?

Stewart Regan

I would encourage the Rev Ian Galloway to come and spend some time with Scottish football clubs and the authorities to see exactly what is happening—the education programmes and the literature that is out there.

Without minimising or diminishing sectarianism and its impact on Scottish society, I want the committee to be aware that Scottish football is seen to be the 12th best behaved association out of 55 in Europe. When I look at some of the footage from other countries, particularly those in eastern Europe, I see huge issues with police with riot shields, police horses on the pitch and pyrotechnics across the stadium, which lead me to believe that we control behaviour as well as we can. There is always room for improvement, but I want to put it in perspective. There are occasional outbursts of sectarian activity and we try to deal with those. It is not something that happens at every football match across Scottish society.

George Adam

Let us be honest with each other. As I said earlier, there are three debates—the political one, Rangers and Celtic fans and the rest of us. It may not happen at all the games in Scottish football, but there is a problem. I did not let my son or daughter go to see St Mirren play Rangers or Celtic until they were well over 12 because I did not want them to have to go through that sort of problem. It is still a major issue.

As the Rev Ian Galloway said, the situation is a cultural thing—Rangers and Celtic fans will say automatically that it is part of their culture. However, songs such as the famine song, which I mentioned earlier, and other popular songs that have always been a part of football are taken away from their context and are sung in the parks in a sectarian manner. What are the football authorities doing to say that that is unacceptable?

Stewart Regan

Neil Doncaster can comment on that more than I can, but the clubs are providing stewards to accompany their fans and monitor behaviour at home grounds and, more important, when they go away. We tend to see more activity away from home, where there is perhaps less control than there is at home grounds. There is also education at the club level.

Finally, in the SPFL delegate reports, to which Neil Doncaster referred earlier, there is monitoring of any sectarian activity, and a record is kept of any bad behaviour. We have agreed to share that information with the Government as part of our on-going focus in the area.

Neil Doncaster

I echo Stewart Regan’s comments. If there are concerns about what is going on at football matches, we absolutely invite people to come along, see what is going on at matches and see the work that the clubs are doing in communities. We have seen the bhoys against bigotry campaign from Celtic and the follow with pride campaign from Rangers. An awful lot of work is going on to address what is a wider societal issue, and we welcome that.

The Convener

I want to pursue with the SFA the issue of discipline before we go on to consider wider aspects, which will involve more of the witnesses. The SFA’s written submission talks about—you have also talked about this today—the

“revised guidance to members last year, providing the governing body with enhanced powers to sanction under its jurisdiction”

any behaviour that does not comply with having taken

“all reasonably practical steps to prevent unacceptable conduct.”

Will you outline what those steps might be? What can a club do to comply with that test on whether you would intervene?

Neil Doncaster

I am very happy to answer that question.

I do not want to bore the committee, but annex 5 to our rules is specifically guidance for clubs on what they should do. The rules state that, when it comes to unacceptable conduct, any commission that is convened to look at alleged breaches of our rules has to look at the extent to which clubs have adhered to our guidelines, which are extremely in-depth. I urge any member of the committee who is interested to look at annex 5, which is available online, and to go through the extremely long list of all the things that we expect clubs to do to address unacceptable conduct before it occurs and to deal with it when it has occurred. There was a change to the rules last summer to deal with the aftermath of unacceptable conduct and identify any perpetrators.

We continue to refine the rules and make improvements. The league and its clubs have a genuine and on-going focus on ensuring that unacceptable conduct is tackled where it occurs, on trying to prevent it from occurring, and on appropriate measures being taken after the event when it has occurred.

The Convener

So there should be absolutely no doubt about what that test means. It would be good to see those in-depth guidelines. If you would not mind sending them or providing a link, that would be very helpful.

Neil Doncaster

I would be very happy to do that.

Liam Kerr

The Glasgow Bar Association and the Law Society of Scotland stated in their submissions, and Professor Leverick has stated this morning, the clear view that there would not be any gaps in the law were we to repeal the 2012 act. Not all the witnesses who have been before the committee have seemed to agree with that. Confine yourself purely to the legality of the approach rather than dealing with the wider messaging or anything like that. How confident are you that there will be no gaps if that law is taken away?

Alan McCreadie

In our evidence on the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill back in 2011, we identified a number of standalone offences and some statutory aggravations, and took the view that any new standalone offence of offensive behaviour at regulated football matches would be adequately covered. We also recognised that the offences, the common-law crime of breach of the peace and section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 would apply across the board.

Perhaps one issue that continues to be considered with the legislation is that a special capacity offence is involved, in that it can take place only at a regulated football match. Perhaps I can come on to that definition later. I accept that a view has been taken abroad that that is a concern and that that targets those who attend football matches.

We are of the view that the common-law crime of breach of the peace, section 38 and a number of statutory aggravations are in place and continue to be, and that offensive behaviour at football matches could be dealt with under pre-2012 legislation.

Liam Kerr

I understand.

Professor Leverick

I echo that. I am confident that, if the 2012 act was repealed, measures are in place that cover the behaviour that is prosecuted under the act. The only possible issue is the extraterritorial behaviour that was mentioned earlier, which the act makes provision for. Behaviour that takes place entirely outside Scotland probably would not be covered. That may be the one gap, but whether that is important is open for debate. We may want not to prosecute behaviour that takes place entirely outside Scotland but to leave it to the national courts of that jurisdiction.

The Convener

Do you have any statistics on how often that part of the 2012 act has been used outside Scotland?

Professor Leverick

Gosh—I do not know the figure. It has been used in at least one case. I know that because I have read the earlier evidence that was from, I think, the Crown Office representative. I have no personal knowledge of the figure.

Alan McCreadie

May I interject, convener? Although I, like Professor Leverick, have unfortunately no information as to its use extraterritorially, the issue is reflected in our written submission or in what was provided to all MSPs in advance of the debate in the Scottish Parliament on 2 November 2016. A reference is made to the Lord Advocate’s guideline on the extraterritorial application. He states that,

“given the practical and logistical difficulties of investigating and prosecuting a crime that occurred outside Scotland, a careful and measured approach must be taken and the authorities in the place where the offence occurred should ordinarily have primary jurisdiction.”

That deference to the jurisdiction in which an offence is alleged to have taken place is as it should be.

Liam Kerr

Does Mr Ziolo want to say anything on that point?

Desmond Ziolo

The Glasgow Bar Association believes that there would be no gap in the law. I accept the evidence, which I think Mr Kerr is referring to, from the Crown Office representative and Assistant Chief Constable Higgins. ACC Higgins said that, if the 2012 act was repealed,

“we would still challenge that behaviour under existing legislation and we would still arrest people for it.”—[Official Report, Justice Committee, 3 October 2017; c 9.]

Therefore, by his own admission, there is existing legislation.

The only issue, as Professor Leverick said, is the extraterritorial issue. I think the issue that was touched upon in the Crown Office’s written submissions concerned a Berwick Rangers match with Rangers fans. That issue only encompasses section 6, which goes back to the previous panel discussion and the implementation and use of section 6, which is not widespread in any event.

Liam Kerr

I want to press you on section 6. The Scottish Government’s view is that a section 6 offence specifically addresses threats that are intended to stir up religious hatred, and that there is no other legislation to cover that specific mischief. What is your view on the Government’s position?

Desmond Ziolo

The position with regard to religious hatred?

Liam Kerr

Sure.

Desmond Ziolo

At this stage, we would maybe need to consider more formal written submissions on it. The issue with section 6—which allows prosecutors and Police Scotland to arrest people for the commission of offences—is with the wording of section 6(2), which refers to “a seriously violent act”. That is causing concern with Police Scotland, which needs to be addressed before we can take on the issue of whether any legislation is available to prosecute certain offences.

As I understand it, the term “seriously violent” is not defined. I think that that is why Police Scotland will try to use a section 127 offence, which the committee has heard about before. If that is the offence that will primarily be used by Police Scotland and the Crown Office, surely the Crown Office should instigate greater sentencing power for it. I know that it has told the committee that the sentence for that offence is limited to 12 months, as opposed to five years for the section 6 offence.

I cannot really comment on the extent of religious hatred because, before we get to that, the issue concerns the wording in section 6(2).

Liam Kerr

Do you concede—this appears to be the Scottish Government’s position—that if section 6 of the 2012 act were to be removed through repeal, there would be no other act through which that mischief could be attacked?

Professor Leverick

I do not think that that would leave a gap, because if someone behaves in a threatening manner or makes a threat, that would be covered by section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, which is on threatening or abusive behaviour. If someone engaged in such behaviour online, that would be covered by section 127 of the Communications Act 2003. The fact that the offence was religiously motivated or had a religious aggravation could be recorded using the sentencing aggravation provisions. Therefore, I do not think that there is a gap.

Liam Kerr

My final question is for Mr Ziolo; it relates to the comments that he made at the outset. I ask him to forgive me, because it is a slightly leading question. You talked about the lack of use that has been made of section 6 of the 2012 act. Are you suggesting that that is because, as it is drafted, section 6 is not fit for purpose?

Desmond Ziolo

I mentioned what the Police Service of Scotland said in its submission about section 6. It said that

“due to its narrow scope”,

it

“has not been widely used by Police. This section is not restricted to a football context”.

In the next paragraph, Police Scotland goes on to say:

“due to the wording of Section 6 of the Act, the majority of this cannot be dealt with using this provision and is in fact dealt with as an offence under the Communications Act 2003, Section 127”.

It is clear that there is a problem with the wording. As I understand it, that was highlighted in various submissions to this committee and other committees back in 2011. It is not for me to say whether it is badly drafted, but if Police Scotland is advising the committee that section 6 cannot be used because of the wording, the inference may be drawn that there is an issue with the drafting of the act.

Liam McArthur (Orkney Islands) (LD)

Good morning. The previous panel told us that there is a general belief that the 2012 act has not had a discernible effect on behaviour at football grounds, and that there is a serious concern that repeal will send an unhelpful message.

Given what you have all said about the absence or gap that would exist were repeal to take place, is there a risk that people with protected characteristics—the groups that we heard from on the previous panel—might feel that they are protected by law when, in effect, the protection is not real but is more presentational and superficial than they imagine? Are there inherent risks in having a law that gives people false comfort that they have protection under it?

Professor Leverick

There might be such a risk. It is clear from listening to members of the previous panel that some of them feel that the act gives them protection that they would not otherwise have, even if that perception is not correct. There is a risk of that.

That is an area in which we should be thinking about Lord Bracadale’s hate crime review. Under the 2012 act, the only protection that such groups have is in relation to a regulated football match, but I am sure that people want a more general protection against hate crime. Therefore, I think that there is something to be said for putting the hate crime element on pause and waiting to find out what Lord Bracadale comes up with.

Liam McArthur

In committee, one often hears that constant amendment of legislation over time leads to complexities. As a result, there are clamours for new legislation that pulls all that together. Is there a risk that we will, in holding on to the current legislation and trying to amend it to expand its provisions or reach, build in that complexity? Whether they are arguing for repeal of the act or not, pretty much everyone has admitted that the legislation is defective in certain respects. Should we clear the slate on the legislation, allow Lord Bracadale’s recommendations to be taken forward and consider the whole gamut of hate crime that we all wish to deal with?

Professor Leverick

Not everything in the 2012 act is a hate crime provision; a lot of it relates to hate crime, but not all of it. Some parts are about straightforward public order offences that have no connection to hate crime whatever. At least part of the section 6 criminal offence is not a hate crime related provision. I said that we should hang on and wait to see what Lord Bracadale says, but that will take us only so far because there are parts of the 2012 act that do not relate to hate crime.

Alan McCreadie

There is a view that repealing the 2012 act could send out the wrong message. I contend—Professor Leverick has just alluded to this—that the 2012 act is not just hate crime legislation, albeit that its scope is subject to Lord Bracadale’s review. However, I guess that that would have to be weighed against the content of the act and how it is working at present in terms of how the courts interpret it and how it can be enforced.

Ben Macpherson

The witnesses’ responses have covered some of Liam Kerr’s points about the advantages that the Crown Office and Procurator Fiscal Service has noted regarding section 6. Police Scotland has suggested to the committee that the 2012 act is a useful tool for policing football matches and the areas in and around the grounds, on top of the common-law breach of the peace offence and section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. Can Professor Leverick and Alan McCreadie, in particular, comment on Police Scotland’s point?

Professor Leverick

I cannot speak for Police Scotland. All I would say is that, as we have pointed out, Police Scotland also said in its evidence that if the 2012 act is taken away, nothing would really change and the police would simply use other provisions of the law. The 2012 act might be an important tool in communicating that certain types of behaviour are unacceptable, albeit that they are covered by other parts of the law. However, that is not my area of expertise.

Alan McCreadie

I confess that there is not much that I can usefully add with regard to section 6. Unlike the section 1 provision, the section 6 offence is not a special capacity offence, so it applies across the board. Obviously, I take on board what Police Scotland says about the 2012 act being another useful tool in the armoury for dealing with what seems to be online abuse. However, as was previously stated, the society would very much take the view that there are existing provisions in place. It is worth noting that there were—I think—only 51 prosecutions last year, so it is fair to say that there has been a low number of prosecutions. I am unaware of the reasons for that, but it seems that there has been a relatively low number of prosecutions under section 6 of the 2012 act.

Ben Macpherson

I was curious to know whether, from an objective or theoretical position, you see value in the Police Scotland view that the 2012 act is a useful tool. I know that that is quite a conceptual question, but I thought, given that Professor Leverick is a professor of criminal law, that it might be interesting to touch on that. However, I appreciate what Professor Leverick has said.

Professor Leverick

I do not know what reason Police Scotland gave for why it sees value in the 2012 act, given that the behaviour in question would be covered by other criminal law provisions.

Alan McCreadie

It is fair to say that section 6 allows for prosecution on indictment. One of the offences to which we referred in our written submission, and to which Mr Ziolo referred earlier, is the section 127 offence in the Communications Act 2003 on improper use of a public electronic communications network. Such offences can be tried only summarily, whereas what we have in section 6 is the ability to prosecute on indictment if the offence is serious enough.

Fulton MacGregor

My question follows on from Liam McArthur’s, but has a slightly different twist on accessibility. I welcome the commitment of the SFA and SPFL to look at accessibility through my recently established cross-party group.

One of the things that all the witnesses have talked about is football fans being singled out, but the reverse of that is shown in some of the strong evidence that we have heard from Stonewall Scotland, the Scottish Women’s Convention and the Scottish Disabled Supporters Association, among others, that the 2012 act makes their members feel safer when they go to football games. Is there concern that we will, if the act is repealed, make the game less accessible to those protected groups, given their evidence?

Stewart Regan

Perception is not reality. It is important that the hate crime review consider some of the softer issues as well as some of the gaps that have been identified in the evidence sessions. None of us wants to get to a position where fans do not feel safe, but if part of the act is not being used, and if the police are challenging its ability to be implemented, that needs to be addressed. Perhaps the way to deal with that is to let the hate crime review play out, see what comes of it, and then decide whether the 2012 act can be repealed.

Fulton MacGregor

That was an interesting answer, which also addressed what was going to be my next question, about the Bracadale review.

Mairi Gougeon

My question is also about the Bracadale review. A few of you have already expressed opinions on that, so I am just looking for Desmond Ziolo’s and Neil Doncaster’s opinions on whether we should wait until the Bracadale review comes through.

Neil Doncaster

I am loth to offer advice on timing to people who understand the criminal law a lot better than I do. The SPFL has met Lord Bracadale once already and we will certainly continue to engage with him and do what we can to support his work.

Desmond Ziolo

I do not think that we should wait for the Bracadale review. I understand that the faith groups that the committee heard from this morning feel that it would be better for the assessment of hate crime legislation to be carried out under that umbrella. However, the bill and Lord Bracadale’s review should be looked at as two separate entities. The Glasgow Bar Association and other witnesses coming before the committee and submitting that the 2012 act should be repealed does not mean that we would not support other acts or statutory instruments that the Government might want to introduce in relation to hate crime or Lord Bracadale’s review.

Mairi Gougeon

I agree that they are two separate entities, in a way, but I still think that the bill will be impacted by the review. It makes sense to me that when we have the results of the review will be the time to consider the issue.

Desmond Ziolo

I accept your proposition: many other witnesses have come before the committee and said the same thing. However, from looking from a legal perspective at what is happening in sheriff courts around Scotland on section 1 of the 2012 act, and at the contentious issues that have gone on for the past five years, along with the lack of use of section 6, I go back to where we were in the beginning: there is no gap in the existing legislation that protects people. As Professor Leverick has already correctly and succinctly narrated, aggravations exist and presiding sheriffs at first-instance cases can sentence accused persons if they are found guilty or plead guilty to offences under section 38(1) of the 2010 act, or to breach of the peace with a racial or sectarian aggravation. Those substantive offences are recorded as criminal convictions under breach of the peace with the specific aggravator. Hate crime is therefore being prosecuted.

Fulton MacGregor made a point about people feeling that they cannot go to the football, but legislation is already there through common-law powers, and other legislation, to protect persons who go to football. It will be a shame if people feel that they cannot go to football for a variety of reasons, especially if they believe that repeal of the act would stop them going because there would be no protection. There is protection under existing legislation. Those organisations and groups may have an issue with the Police Service of Scotland in respect of why it is not implementing the charges and making the public feel safer by going for those specific groups.

Maurice Corry

Mr McCreadie, can you elaborate on the Law Society’s written evidence, which suggests that confusion has arisen about what is considered to be offensive or unacceptable behaviour with regard to section 1 of the 2012 act?

Alan McCreadie

Of course; I am happy to do so. The Law Society has taken particular issue with section 1(2)(e) of the act. The act defines the behaviour in section 1(2), paragraphs (a) to (d), and paragraph (e) refers to

“other behaviour that a reasonable person would be likely to consider offensive.”

In the act, there is no definition. I understand that the courts have expressed some concern about the lack of definition of what would constitute offensive behaviour under section 1(2)(e) for the purposes of a section 1 offence.

My reading of the act is that a safeguard seems to have been put in place in section 1(5)(b), which includes the phrase,

“persons likely to be incited to public disorder”.

That might be an issue, in that there might be an offence in the abstract, in that the offensive behaviour took place, but what must be disregarded is measures such as segregation at football matches in the stadium, or that the people who would be

“likely to be incited to public disorder”

are not present, so there is simply nobody there to be offended by the behaviour.

I appreciate that the offensive behaviour is set out in section 1(2), but I think that particular reference has to be made to section 1(2)(e), which seems to be something of a catch-all.

Maurice Corry

You would like some clarity.

Alan McCreadie

There could be more clarity. I add that regardless of whether the act is repealed or otherwise, there is provision in section 5 for Scottish ministers to amend sections 1 and 4 by order. That is a fix that would not need primary legislation.

Mary Fee

I have a couple of questions for Mr Regan and Mr Doncaster. Can you give us some detail about how the relationship between supporters and clubs has changed since the introduction of the act?

Stewart Regan

You would get a much more detailed answer if you spoke directly to the clubs, and the clubs would be delighted to welcome any member of the committee to visit and see the work that they do. I believe that the working relationship has improved through the introduction of the supporter liaison officer, and that has provided a bridge between the clubs and the supporters groups, as I said earlier.

Key topics are discussed, particularly ones that are of concern to supporters, and that does not cover just unacceptable conduct, but a wide range of issues. Fans have certainly got more of a voice. The relationship that the SFA has developed with Supporters Direct Scotland has allowed us to carry out things such as the national football survey, and has provided an opportunity to hear from supporters’ organisations. There has been an improvement in that relationship.

Neil Doncaster

I echo that. The relationship between clubs and supporters’ groups is a very positive one and it is improving. That is largely due to the excellent work that Supporters Direct Scotland is carrying out. There is no doubt that, as a result of the act some fans groups feel demonised, but that does not affect their relationship with their club. The relationship between supporters and their clubs remains extremely strong.

Mary Fee

Is there still a problem with offensive behaviour at football? Has that problem decreased since the introduction of the act?

Neil Doncaster

In the work that I mentioned earlier, we are monitoring all aspects of unacceptable conduct, including acts that are criminal. We look at all the unacceptable harm that takes place at all the games across the 42 clubs in the SPFL. We monitor that very carefully, particularly at the top end, through the delegates. We share the results with the Government and will continue to do that.

Stewart Regan

There are examples of the 2012 act being used. I read in the national policing strategy for Scotland that in the past 12 months, 52 per cent of cases in which the act was used came from just three football matches. The question is first, whether football fans are being unfairly singled out, and secondly, whether other legislation can provide cover for dealing with unacceptable conduct. We have heard from a number people who are more expert in the field than I am that there is provision elsewhere. Therefore, as long as there are no gaps—that is where the hate crime review comes in—there may be an opportunity for the committee to consider the next step.

Mary Fee

Are football fans being unfairly singled out?

Stewart Regan

When you look at the survey, 71 per cent of 13,000 believe that the act is not working. The consultation that we have done suggests that fans feel demonised—as Neil Doncaster said—and singled out because football is the national sport. There is no other legislation that focuses on a single sport or other societal area—art, culture or music, for example. The law in general picks up everything else.

The Convener

I notice that you mention in your submission the proposed member’s bill on strict liability as well as the Bracadale review. You say that that has only served to add to the confusion among supporters and has heightened anxiety that they are being unfairly discriminated against. Will you elaborate on that?

Stewart Regan

When it comes to the topic of behaviour, the focus has been on many different areas. Back in 2011, we were of the mind that we did not want to see behaviour get worse and that we wanted to address it, which is why at the time we were very supportive of the direction of travel and the bill. However, over time, the topic of strict liability has been thrown into the mix and that has created some confusion, because many people do not fully understand the term. There is also the Bracadale review of hate crime, which tiptoes into the area of football-related unacceptable conduct. We have got three key areas, all of which are focused in some way on football. You can imagine the reaction of the football fan being, “Why is this all about football? Why can’t unacceptable conduct in society be addressed by standard legislation?”

The Convener

As you have said clearly, the clubs are already doing a lot with supporters to improve behaviour through various activities. Perhaps there is not an equal discussion about that aspect of things.

Mary Fee

I have a brief follow-up question before I move on to my question for Professor Leverick. In our evidence sessions, we have talked a lot about the importance of education and how it is key in tackling some of the behaviours around football. Both of you will be aware of the Equality Network sports charter, which several professional clubs have signed up to. It has had various successes in promoting inclusion across the lesbian, gay, bisexual, transgender and intersex community. The charter has a trickle-down effect, because it works with young supporters to change the whole ethos of the club. Do you see something similar to that having a beneficial effect in tackling sectarianism and offensive behaviour?

Neil Doncaster

We are proud to be signatories to that charter, which we think is a positive step, and we know that a number of our member clubs have done likewise. I believe that, in general, the clubs carry out a huge amount of positive work in their communities. Earlier, I talked about the follow with pride and bhoys against bigotry campaigns, which are just two examples of the work that clubs are carrying out in this area to educate and improve society.

Stewart Regan

The Scottish FA recently appointed an equality and diversity manager. We were recently nominated for a Scottish diversity award and we are being held up by FIFA for best practice in the area of equality and diversity. We have also signed up to the charter. We are doing some fantastic work in relation to LGBT issues, para-football and the girls’ and women’s game. We are very proactive in this area.

With regard to unacceptable behaviour, I mentioned earlier the relationship that we have with the clubs and with the show racism the red card campaign. We are also big supporters of positive coaching Scotland, which is an initiative that is being driven through the Winning Scotland Foundation, and it has now been embedded into our coach education programmes. We are trying to start at the grass-roots level in order to reinforce the right behaviours at the outset so that they can permeate throughout the grass-roots level as children get older.

Mary Fee

Professor Leverick, can you give us some detail on the approaches that are taken in other jurisdictions in relation to sectarian and offensive behaviour? You spoke about what goes on in England and Wales, but does any other country have similar legislation that targets one specific group of people? If so, what impact has that had?

Professor Leverick

The simple answer to the question is no, as far as we can tell. I do not want to give a definitive no, because our review focused mainly on materials in the English language, so I cannot absolutely promise that there is not something out there in Serbian or another language that we have missed. Our review showed that there is nothing else that specifically targets football supporters in this way.

I have already mentioned the English legislation. Apart from that, the closest thing to the 2012 act is the Justice Act (Northern Ireland) 2011, which prohibits various types of chanting at sporting fixtures, including sectarian chanting, racist chanting and other types of offensive chanting. It does not confine that prohibition to football, though; it covers rugby union and Gaelic games as well. Aside from that, we could not find anything else worldwide that is as narrowly focused as the act in Scotland. There is legislation around the world that targets public order or hate crime offences relating to sporting events or large public events generally, but nothing that targets football specifically, aside from the English legislation.

Mary Fee

As you know, there has been some confusion about the legislation here. Are you aware of whether there have been any difficulties in implementing the legislation in England?

Professor Leverick

I do not think so. The legislation in England is much more straightforward. It is very narrowly targeted at chanting—racist or what is termed “indecent” chanting—at football matches. It also has a much lower maximum penalty. From memory, I think that you cannot be imprisoned for breaching the English legislation, and that the maximum penalty is a fine. It does not have a link to public disorder; it just prohibits racist and indecent chanting—there are no add-ons.

As far as I can tell from my review, there have been no problems in implementing the English legislation. It seems to have been successful in cutting out racist chanting, although that might have happened anyway. It is hard to pin it to the legislation. It has probably not been that successful in cutting out indecent chanting—a lot of that still goes on in English football grounds—but the racist chanting has pretty much gone now.

Maurice Corry

Sectarianism is currently not defined in Scots law, as you probably know. Is that a barrier to tackling what is perceived to be sectarian behaviour? Perhaps Mr McCreadie could kick off on that.

Alan McCreadie

You are quite correct to say that sectarianism is not defined in law, and I suspect that that may cause some issues as to how to specifically criminalise the offence of sectarianism. It has been my understanding that it is incitement to hatred of a religious group, for whatever reason. That is in section 1(2) of the act, but it does not have to be a religious group—it could be a social or cultural group with a perceived religious affiliation. I suspect that it would be problematic to define sectarianism.

Professor Leverick

I do not really have anything to add to that. The act does not specifically refer to sectarianism at all. It is not part of the terms of the act, but the act has still been used to tackle what most people would perceive to be sectarian chanting and sectarian songs. The fact that sectarianism not only is not defined but is not even in the act has not stopped it being used to prosecute what most people would regard as sectarian conduct.

The Convener

I think that the policy memorandum mentions that the act is to tackle sectarianism.

Professor Leverick

That is true, but the act itself does not use the term “sectarian” at all.

The Convener

“Offensive behaviour” is in the act.

Professor Leverick

I accept that that was the purpose of the act, but that might answer the question. Despite sectarianism not being defined in the act, or even forming part of the text of the act, the act has nonetheless been used to tackle sectarian behaviour.

The Convener

That probably adds to the confusion.

Desmond Ziolo

I do not have a view on behalf of the Glasgow Bar Association as to whether there should be a definition. I noted that the absence of a clear definition is one of the additional difficulties that are highlighted in the Police Scotland submission, but over 10, 15 or 20 years there have been definitions in cases that have gone before the courts and the appellate courts with regard to certain words, banners and offences that have been classified as sectarian, so there is already an existing body of case law, and the existing common-law powers could be used to prosecute certain offences and diagnose them as sectarian.

Maurice Corry

May I ask Mr Regan and Mr Doncaster a supplementary question?

The Convener

Certainly.

Maurice Corry

An issue that has arisen in evidence is that, when a large number of fans engage in offensive behaviour, it often cannot be tackled at the time, given the disparity between the number of police and the number of fans. How are the SFA and the SPFL ensuring that clubs take action as appropriate?

Neil Doncaster

We amended our rules in the summer and the amendment put a specific obligation on clubs—that obligation is referred to in the guidelines, which I will share with members—to deal with unacceptable conduct after it has occurred. We accept that, in the moment, there might be public order reasons why behaviour cannot be tackled at that time, but it should nonetheless be tackled appropriately after the event and appropriate efforts should be made to identify the people responsible and to take them to task accordingly.

Maurice Corry

Are you working with the clubs to do that?

Neil Doncaster

Absolutely.

Stewart Regan

I have nothing to add, other than to say that the Scottish FA rules mirror those of the SPFL. The members are the same members, so we deal with those clubs in exactly the same way. If something happens, clubs are expected to take action after the event to identify perpetrators using closed-circuit television, to remove season tickets, if necessary, and so on.

Maurice Corry

Do you follow up on that?

Stewart Regan

Yes.

Liam Kerr

Can I clarify something? I presume that that applies only when the behaviour takes place within the confines of the ground and that it would not apply outside the ground, which, as I understand it, is where a lot of the behaviour takes place. Is that correct?

Neil Doncaster

That is correct. From our point of view, we are a members’ organisation and we govern our members. They are clearly responsible for what happens within their grounds; what happens elsewhere is a police matter and that is outwith our jurisdiction.

The Convener

That concludes the committee’s questions. Does Claire Baker have any questions for the panel?

Claire Baker (Mid Scotland and Fife) (Lab)

In its written evidence, the Law Society says in response to question 3:

“If the 2012 Act is not repealed, it is likely that we will see further cases in the appeal courts”.

That is mentioned a couple of times, in recognition of the need to clarify the act and the reach of the act. Will you expand on that?

Alan McCreadie

That relates to the point that I made earlier about interpretation, particularly the interpretation of section 1. I mentioned that the catch-all provision in section 1(2)(e) might be subject to further judicial interpretation. It refers to

“other behaviour that a reasonable person would be likely to consider offensive.”

A point that the Law Society made at the bill stage in 2011 and has continued to make is that, because it is a threefold offence, the behaviour has to be behaviour that

“is likely to incite public disorder”

or, in the abstract,

“would be likely to incite public disorder”

but for the fact that no one is there, and it has to take place in relation to a regulated football match.

The Law Society has also commented on the definition of “regulated football match”. That is where the offence becomes a special capacity offence, because it has to take place in relation to a regulated football match, which is defined in section 55(2) of the Police, Public Order and Criminal Justice (Scotland) Act 2006. I appreciate that, as I understand it, there has not been any judicial interpretation of “regulated football match”, but I understand that it would not cover, for example, Scottish Junior Football Association games or a football match between clubs from two foreign countries that was taking place in Scotland. Hampden park has held the European cup final, the champions league final and the UEFA cup final, and such matches would not be covered.

In addition, the Law Society has made the point that journeys to and from a regulated football match have not been the subject of any interpretation. Section 2(2) is very widely drawn. Concern has also been expressed about televised football matches. There is no indication as to whether a regulated football match has to be live or whether recorded highlights of a regulated football match would be covered. The provision covers anywhere other than domestic premises, and it refers to television, but since 2012 more and more people have used mobile telephones, iPads or tablets to watch football matches. I would contend that those issues have not been resolved, perhaps because the case law has not been built up. Those are examples of difficulties of interpretation that the courts might have with the act in its present form.

Claire Baker

What does that mean for people who are being prosecuted or pursued using the act, and for the people who are representing them?

Alan McCreadie

When it comes to law reform, the Law Society always strives for clarity and certainty in the law. I certainly do not seek to minimise the issues that have been referred to by previous speakers concerning offensive behaviour within football stadia in Scotland, but one could conceivably have a situation in which someone was in a pub watching a series of football matches on a Sunday and the offence could take place when they were watching one game but not another. One match might be an English premiership match, such as the Manchester City against Arsenal match that was on at the weekend, which is clearly not a regulated football match for the purposes of the 2012 act, whereas the other match might involve two Scottish clubs and would therefore be a regulated football match—on Sunday, that would have been the Hearts against Kilmarnock game at Murrayfield.

The Convener

We know from the SFA submission that there were concerns about enforceability before the legislation was introduced, and those same concerns are still to the fore. The Glasgow Bar Association’s submission refers to the act’s failure to properly define the behaviour element of the offence.

Before we finish, it would be good to get a view from panel members on whether the act has been effective in deterring offensive behaviour per se.

Desmond Ziolo

It is difficult to say. The crime statistics will speak for themselves, but I note that the statistics that have been proffered by the Crown and Police Scotland relate only to the 2012 act—the committee has not been provided with statistics on other offences, such as the common-law breach of the peace offence under section 38 of the 2010 act, which has been used widely. That is unfortunate. We are only really assessing the 2012 act, but I think that we must look at the broader picture with regard to other offences—those that are committed outwith the stadia and those that are committed within the stadia but which are not prosecuted under the 2012 act. I know that the act is another tool, but if police officers are interchanging offences, it would be good to know about those other offences so that we can take a broader view of all the figures.

The Convener

So it might be the case that the number of breach of the peace offences has gone down because the police have been using the 2012 act instead.

Desmond Ziolo

That could be the case, or there could be a number of breach of the peace charges—section 38 offences, with the various aggravations—that we do not know about. If we had those figures, we could compare and contrast them with figures from previous years. That is something that the committee might want to analyse. That is just a suggestion, but it would make more sense to have all the figures, because then we could say whether the level has gone down or up. Police officers are clearly using the 2012 act, because the statistics are there, but I think that we need more information.

Alan McCreadie

There is not much that I can usefully add to that, other than to note that figures are being kept on prosecutions. I think that there were 377 last year, and reference has been made to that reflecting what happened at one high-profile game—the 2016 Scottish cup final. However, perhaps there should be concern about the level of charges that are being profiled with regard to section 1 and, in particular, section 6—under which I think that 51 offences were prosecuted—of the 2012 act.

Professor Leverick

If the question was whether the act has been effective, I do not have any personal experience of that, but I point to the official evaluation of the act that was undertaken by Niall Hamilton-Smith and some other colleagues, which was referred to in a previous evidence session. The evaluation concluded that there certainly had been a reduction in offensive chanting in football grounds since the act came into force, but that it was impossible to tell whether that was because of the act. I do not think that we will ever solve that conundrum, because so many other factors could have had an effect—changes in social attitude or policing strategies and so on. It will always be extremely difficult to attribute improvements to the act.

Stewart Regan

I do not have a view on how effective the act has been from a legal perspective. However, 71 per cent of football fans do not think that it has been effective, and I think that the relationships between fans and the various stakeholders have been damaged, because of the act and the fact that football feels that it has been singled out. There are clearly issues that need to be tackled.

Neil Doncaster

There is nothing that I can usefully add.

The Convener

On that note, I thank all the panellists for what has been an excellent evidence session. Our next meeting will be on Tuesday 14 November, when we will continue our consideration of the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill and the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill.

We now move into private session.

The Convener

Item 5 is our fourth evidence session on the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill. I refer members to paper 5, which is a note by the clerk, and paper 6, which is a private paper.

I welcome the member in charge of the bill, James Kelly, who is a regular visitor to the committee; Andrew Tickell, lecturer in law, Glasgow Caledonian University; Dr Joseph Webster, lecturer in anthropology, Queen’s University, Belfast; Dr Stuart Waiton, senior lecturer, division of sociology, school of social and health sciences, Abertay University; and Dr John Kelly, lecturer in sport policy, management and international development, University of Edinburgh.

I thank all the witnesses for providing written submissions. It is really helpful to have written submissions when we are preparing to take evidence.

We will move straight to questions. Without going into too much detail, do you wish to comment on the general terms of the proposal? Do you see any merit in the legislation?

Who would like to kick off? Do not all rush at once.

Dr Joseph Webster (Queen’s University, Belfast)

Just to clarify, are you asking us to comment on whether we support the repeal of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 and, if so, why?

The Convener

Yes.

Dr Webster

Okay. There are three compelling reasons why that act should be repealed. As I outlined in my submission, the first is that the legislation is currently unworkable in practical terms. Having reviewed the transcripts of the earlier oral evidence, I was very interested to see Assistant Chief Constable Higgins’s response to a question that Liam Kerr asked. Essentially, the question was: what would happen if an entire stand broke into chanting? The response was that closed-circuit television is used to identify the main protagonists and arrest only them. The point is that the police have given evidence suggesting that such behaviour is a mass phenomenon but that it is only possible to arrest individuals. If the legislation were followed to its fullest extent, there would need to be mass arrests, and that is simply not happening because it cannot happen. Practically, the act is unworkable.

The second point, which is briefer, is that the act is not justified on free speech grounds. In essence, it says that it makes acts of hatred illegal but does not restrict

“antipathy, dislike, ridicule, insult or abuse”.

However, section 6(5) does restrict those behaviours, which are set out in section 7(1)(b). The key problem is that there is insufficient ability to parse the behaviours. That has been evidenced in earlier oral submissions in which the committee has heard that police officers need to be trained on how to interpret different behaviours and on how to classify any given behaviour as hateful or perhaps abusive and where to draw the line.

My third point, which is slightly finer but absolutely essential, is that not only does the 2012 act fail to understand that the behaviours that it attempts to make illegal are a type of performance, which is an important point and which the Scottish Parliament information centre briefing on the repeal bill outlines on page 10, but—crucially from my perspective, which is based on my five years of ethnographic research on the topic—it does not take into account who the audience of the performance is. As I said in my written submission, the 2012 act fails to understand that the types of chanting, banners and behaviours that it seeks to criminalise are, in essence, offered by fans to fans of their own side. The behaviours are not primarily an attempt to enrage an imposing side; they are an attempt to build intra-group solidarity. It is about members of single fan bases communicating things to each other to affirm their collective belonging, rather than an attempt to enrage an opposite fan base.

The empirical evidence for that is pretty clear. The vast majority of that type of behaviour occurs in single stands where fans are strictly segregated or in pubs and social clubs where the opposing fan base is simply absent. The behaviour is about single fan bases building collective identity among themselves and is not primarily an attempt to enrage the opposite side who, in most cases, are simply absent from the situation.

Dr John Kelly (University of Edinburgh)

I, too, support the repeal of the 2012 act, because I think that some of the issues that were warned about when the original bill was considered have come to fruition. In Scotland, there is still a misunderstanding of what we are trying to police or legislate for when the word “sectarian” rears its head. The act does not mention the word “sectarian” but, nevertheless, much of the public commentary on it frames it as anti-sectarian legislation.

There are problems with the way that the issue is being policed and legislated for. In reality, the act potentially does the opposite of what it sought to do. It sought to protect ethnic and national identities as well as a variety of other identities around sexual orientation, gender and disability. When certain people from both of the major groups on either side of the sectarian divide in Scotland exhibit elements of what they believe are their national identities and diaspora group attachments and identities—I would argue that they do so quite correctly in many respects and that those are legitimate identities for diaspora groups—rather than being protected, which the act sought to do, some of them are being accused of inciting hatred and intolerance and performing offensive behaviour.

That is not to suggest that some of those national identities cannot have intolerance attached to them, but this is the key for me. We do not seek to protect gay, homosexual and lesbian communities with this bill—or any other bill—by stopping people from expressing elements of their gay identity. That is a subtle but crucial distinction.

In Scotland, when we seek to police and legislate to stop what some people perceive to be negative sectarian behaviour, we confuse sectarianism, intolerance and hatred towards the other based on people’s belief about the other person’s religious or national identity. That is different from policing someone who is exhibiting elements of a national identity, which is what has been happening in Scotland, particularly with some of the fans who are being arrested for singing two or three particular songs, which do not in fact mention any intolerance or hatred of any protected characteristics that are in the 2012 act.

That is a key element for me: offensiveness and the nature of racism, bigotry, homophobia and the other isms, if you like, with regard to the other protected groups are open to interpretation. The nature of those problems is that some of the prejudices are very subtle, to such an extent that it is difficult for even the police and the law courts to agree on what is or is not offensive. I support the repeal of the act for those reasons, and some others, but those are the main ones.

The Convener

Professor Tickell.

Andrew Tickell (Glasgow Caledonian University)

I am not a professor. You have promoted me and I am grateful for it.

The Convener

Did I? I knew I would get your name wrong somehow or other.

Andrew Tickell

Well, thank you very much—I appreciate the effort.

Thank you for inviting me again. My attitude towards this legislation is probably unpopular with more or less all of you. I think that it is a bad piece of legislation; in parts it reads like magic realism. The legal criticisms of great parts of the 2012 act are very well founded. I think that Parliament should respond to those failures in the bill by amending it and fixing the problems, rather than repealing it.

It is actually quite straightforward to transform what is in the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012—particularly section 1 of the legislation, which has been the focus of the session thus far—into a pretty mainstream public order offence. Parliament has the opportunity to do that. If you choose not to, that is obviously your choice, but I think that there are big problems with that.

I would argue that striking this act completely aside is like using a sledgehammer for a task for which a scalpel is better devised, particularly in the context of something that a number of the witnesses from whom you have heard have mentioned, which is Lord Bracadale’s on-going review of hate crime legislation. In that context, it seems to me that it would be more sensible to make amendments to parts of the 2012 act that are bad, to listen to what Lord Bracadale has to say about the future of hate crime in Scotland and then to revisit the issues. That, in a nutshell, is my attitude, more or less.

Dr Stuart Waiton (Abertay University)

As the committee knows, I oppose the act. It has to be put more generally in terms of the political culture, because a key element of the act could be described as part of creating what we could call a safe space society—a society in which people learn that, if they say certain words, they will be shunned, possibly sacked or, in the case of football fans, arrested. That is essentially what the 2012 act does. We hide behind the public order issue, but essentially it is about the criminalisation of words and thoughts, and the arresting and imprisoning of people because we do not like their words.

I listened to a Radio 4 programme in which they were talking about the Profumo affair and Christine Keeler in the early 1960s, and about obscenity and the use of the idea of obscenity. I find it quite difficult to explain what we are looking at with acts such as the 2012 act. They seem to be political, because they talk about things such as racism and sectarianism, but at the same time it seems much more to be a form of etiquette and the training of correct behaviours.

I watched the previous discussion, in which you were constantly talking about behaviour—the behaviour of fans. We do not usually talk about the behaviour of murderers or rapists—a crime is a crime and we talk about people’s crimes. However, you are talking about educating their behaviours in quite a school-marmish and, arguably, patronising way, saying, “We need to make these people aware of how they should behave.”

One element of the argument seems to be around etiquette and what is seen as correct and civic behaviour. When you talk about racism and sectarianism, you are really saying that you find racism and homophobia obscene. It smacks of the 1950s to me and a type of conformism and conservatism that is being forced on society. The bill is probably the best example, possibly in Europe or even the world, of a new type of politically correct form of policing of civility and society.

The Convener

Is your question very brief, Fulton?

Fulton MacGregor

Yes. I thank the panel for their comments so far. I want to pick up on a comment that Dr Webster made. It is the first time that we have heard the angle that people who are engaging in songs and behaviour are doing so for the benefit of their own fans and supporters. That goes against much of the evidence that we heard about people saying that they were put off from going to games because of that. In other words, they may be a fan or supporter of that club, but they choose not to go to the games because of the offensive behaviour.

I know Rangers and Celtic fans—and we will all have heard this—who are saying quite clearly that they would not go to Parkhead or Ibrox because of that offensive behaviour. It is interesting that when those fans become fathers or mothers, they say that they are not going to take their son or daughter to those places either. How does that fit with your overall analysis that people are not offending anyone because they are talking to each other?

Dr Webster

Can I clarify that I am not saying in any way that the people singing are not offending anyone. The point that I am making is that we need to understand the motive behind the behaviour. We are assuming that such songs, chants and displays of banners and other symbols are specifically designed to bring about maximum offence. If you spend time conducting the type of ethnographic research that I do among people who engage in such behaviour, you quickly realise that their primary motivation is not to offend the other but to build bonds of sociality between each other.

I take your point that that does not then preclude the possibility that other people listening might find some of those things to be offensive. My point is that we often attribute false motivation—that is what the act does—to those who engage in such behaviour. That is an important point, because if we reconfigure our understanding of what motivates such behaviour, it might assist the committee in trying to figure out the best way forward, whether that is amending the legislation or bringing in something else.

I am not convinced that any of us fully understands what is going on in the social world of the people who engage in these behaviours. Without really understanding what is happening, we cannot act to correct it, deal with it, police it or politely ignore it—whatever course of action is deemed to be most useful. We do not understand the type of behaviour that the act attempts to address.

Fulton MacGregor

I thought that your point was well made and in a way that we had not heard before. However, my understanding of the act—before and since becoming an MSP—was that it was intended to address offensive behaviour for everyone. I did not think that the offensive behaviour had to be addressed to an opposing group of fans; rather I thought that it was mainly to protect folk who supported the same team. That was why I was interested to hear your angle.

Dr Webster

That is not my understanding of how the people who I have spent time researching among would understand the act. They see themselves as the victims of the legislation because they see themselves as the ones being policed. From my perspective as an ethnographer, whether that is accurate is beside the point. The point is how the 2012 act is interpreted by people who think of themselves as the victims of the legislation. It has all sorts of unintended consequences for how they relate to the police and to one another. I am sure that we will come on to talk about that later. It is essential to understand the internal social life of the groups that the legislation targets to figure out how it will or will not work and what unintended consequences it is bound to have.

Dr Waiton

It is worth bearing in mind the fact that, if you want to get a ticket for an old firm game, you have to bite somebody’s hand off for it. People are queueing up to get to the games and the viewing figures when they are on television are bigger than those for any other games. There might be some people who are offended by the behaviour at those games but there seem to be an awful lot of people who are desperate to watch them, as I would be if Rangers were any good and they were worth watching.

It is also worth bearing in mind the fact that you do not have to go to a Celtic Rangers type game to find people who find football offensive. I grew up in Newcastle. I knew lots of people who would not touch football with a bargepole. They generally saw themselves as more respectable than that. Football was seen as uncouth and, to some extent it is. That is what a lot of people love about it. It is an offensive, in-your-face, sweary, shouty atmosphere. Some people do not like that. You do not have to go to an old firm game to find people who are offended by football.

There has also been a lot of snobbery about this. The Times had a nice article in the 1980s that said that football was a “slum game” watched in “slum stadiums” by “slum people”. There remains a snobbery about football fans except that, today, it takes a more politically correct form. If we are looking at people who are offended by football fans, we can look at prejudice and bigotry towards fans rather than just take it on good faith.

The Convener

I have allowed quite a lot of latitude. That was a supplementary question and we have a lot of questions to get through in a limited time.

Rona Mackay

My initial question is for Dr Waiton. We have heard evidence from the Scottish Women’s Convention, disability groups and equality groups, which all say that they feel protected by the 2012 act and fear its repeal. Do their views matter to you?

Dr Waiton

I am sorry, it was women, disability and what was the other group?

Rona Mackay

The Scottish Women’s Convention and the Scottish Disabled Supporters Association.

Dr Waiton

Was there not another one? I thought that there were three.

Rona Mackay

Sorry—lesbian, gay, bisexual and transgender groups.

Dr Waiton

I have lots of problems with this, actually, because I do not think that those groups are representative. They are not elected. They seem to be special interest groups. There seems to be a problem at the minute, especially in the framework of identity politics, that such groups need to be represented and represent themselves in a prism of victimhood. It is very rare to find one of them—in fact, I suspect that we would almost never find one—that does not demand that there be more awareness, legislation or regulation because, in the framework of identity politics, there is a tendency for groups to represent themselves as victims.

That is a good example of the new type of politically correct conformity and prejudice about football fans. There is a presumption that football fans are bigots, racists, sexists and homophobes and do not like disabled people. Then we get groups such as those that you mentioned, which are represented by tiny numbers of people, who say that they find that a problem. That is grotesquely patronising to football fans.

In my experience and as social attitude surveys have shown, society in Britain and Scotland in general is far more tolerant, far less racist and far less homophobic than it has ever been. However, football fans are represented in a way that, in essence, says that there is a seething bigotry just waiting to get out and, if we do not have more and more laws, there will be a problem. I find it interesting that we did not apply that approach to rugby fans, opera goers or anybody else. It seems to be football fans, who are mainly the white working class.

The big prejudice that we, as sociologists, should explore is your prejudice that represents football fans as potentially violent bigots.

Rona Mackay

I do not identify with anything that you have said. You are essentially disregarding the evidence that we have heard from those groups—they are not protest groups; they are made up of members of the community who like to enjoy football like everyone else. Equality matters, so I fundamentally disagree with you.

My main question is for the whole panel. Andrew Tickell mentioned Lord Bracadale’s review of hate crime legislation. Mr Tickell has given us his view on that. Do the rest of you agree that it would be sensible to wait until that has completed next spring before repealing the act?

Dr Kelly

No. The act has shown that it is not fit for purpose. However, I agree to some extent with the Scottish Women’s Convention and the disability and LGBT groups on the point about rights. I agree that those rights need to be protected but I wonder what the figures are for arrests, convictions and non-convictions for offences against those groups at football since the act came in. Like my colleagues here, I have done and still do ethnographic research with these groups and I am not aware of any such case. However, that is not to say that we should not protect those people.

If it is agreed that the act is flawed and faulty—I know that there is not complete agreement about that—the fact that some minority groups feel that it has protected them is not a good enough reason to hold on to it. We could come up with something better. As I said, I am not entirely sure that people have been arrested for attacking people from those groups.

Rona Mackay

We are not necessarily talking about people being arrested. It is about people feeling comfortable and able to go and watch and enjoy football.

Dr Kelly

Yes, but my point is that I do not know why people from those groups are more comfortable going to watch football under the act. As Stuart Waiton and Fulton MacGregor have said, some people are not comfortable going to the football for a variety of reasons. Perhaps people can enlighten us, but I do not know why the act is giving this women’s group comfort or encouraging them to feel safe and secure at football.

Rona Mackay

I am not sure that it is for you to question how they feel.

Dr Waiton

Let me just chip in here. If someone came in here and said, “I feel really uncomfortable when I sit among a group of black people,” we would think that they were a bigot and would question their fear. Other groups say that they feel scared when they sit among a group of football fans and you just take that as good coin. You do not question whether their fear is legitimate. It has certainly not been legitimised by any of the statistics that I have seen about attacks on gay people, black people or women at football games. It is zero, as far as I can tell—actually, that is not true. As far as I am aware, there have been two arrests for homophobic incidents.

You take that fear as good coin instead of saying that we should not just accept fear of other people as legitimate. Perhaps that fits into our own prejudices and then it goes unquestioned.

The Convener

I think that the original question was on the Bracadale review.

Rona Mackay

Yes, and I think that we got the answers. Mr Tickell, do you have a view on the equality aspects?

Andrew Tickell

There has been an awful lot of discussion around the act and messages. As a lawyer, that disturbs me, because the act has content that we need to address, whether we are for or against getting rid of it.

Lord Bracadale is likely to come up with a comprehensive report or proposals on hate crime that the Parliament will be invited to consider. As an area of law, it is a mess. No tidy-minded lawyer would look at the current law and not think that the solution would be legislation that comprehensively deals with incitement to hatred of various kinds. As the law stands south of the border, incitement to racial hatred, LGBT hatred and religious hatred are recognised and covered by English legislation. Those last two categories do not apply in Scotland, and I think that the Scottish Parliament will come under considerable pressure on that from Lord Bracadale.

This is prejudging his report, but I would be very surprised if he did not propose extensive hate crime legislation, and I would be surprised if most of the MSPs who will vote to abolish the 2012 act do not broadly back what he suggests. As things stand, I find that logically difficult to reconcile. We will see; maybe the judge will surprise us and offer a different perspective on that.

The Convener

I invite Mairi Gougeon to ask a brief supplementary question—it will probably be the last one, given that we are way behind with our questioning.

Mairi Gougeon

I will try to be as brief as possible.

We have to sort out some of the terminology that has been used in the meeting so far. I take great exception to some of the assertions that Dr Waiton made. I do not think that anybody sitting round this table would say that all football fans are bigots, homophobic or racist, but pockets and elements of that sort of behaviour exist. For example, a couple of weeks ago there was an incident on a train in which fans were singing homophobic songs, so it does happen.

However, we cannot dismiss the other evidence that we have heard—I think that Dr Kelly dismissed one of the groups that we heard from as “this women’s group”. We have heard talk about how grossly patronising those groups are. I think it is grossly patronising to refer in that way to the evidence that such groups have given us. It seems to me that the evidence that those groups have given has been analysed in a way that evidence on other legislation has not—it has been completely picked apart. We are being made to think that, because those groups do not represent 100 per cent of people, their opinion does not matter.

When we considered the Domestic Abuse (Scotland) Bill, we heard from organisations such as Women’s Aid and Children 1st, which represent the views of the people with whom they come into contact. Of course they do not represent 100 per cent of people, but that does not mean that their views do not matter, and that is the basis on which evidence on legislation is considered. It is grossly unfair to say that the concerns of the organisations from which we have heard do not matter at all.

All those groups are concerned about the message that repealing the act will send out about what is acceptable and what kind of behaviour we could be condoning. What is your response to that concern? I take great exception to some of the assertions that have been made this morning.

Dr Waiton

As a criminologist, I always try to consider whether fears are real. In the 1970s, there was a panic about black muggers. Sociologists considered whether that fear was real or whether it was prejudice. We should do the same thing when some groups say that they have fears about other groups in society, but we do not, because there is a certain etiquette and a political framework whereby some groups are seen as being on the side of good and others are seen as being on the side of bad. There is a genuine prejudice there.

For example, “old firm domestic violence” became an established term. I worked out the number of cases to which that referred and found that there were more newspaper articles than cases. I then tried to make a conservative estimate of how many football fans in Strathclyde were involved in a domestic violence incident that led to an arrest and I found that it was 0.0003 per cent of fans, which meant that 99.9997 per cent of fans had nothing to do with domestic violence that led to an arrest on those days. If, on the basis of similar statistics, terms were bandied around about any other group in society in the way that they are bandied around in associating fans with such things as domestic violence, it would be seen as moral panic.

Dr Webster

I will respond directly to the question about what message is sent if the act is repealed, which is an excellent and important question for the committee to consider. My understanding is that the message that it would send is that the act is not fit for purpose. The wider point is that, just because the faulty legislation—I think that the witnesses generally agree that it has significant problems—is repealed, that does not mean that we are affirming the validity of the types of behaviour that the act tries to restrict and criminalise.

The way in which repeal is perceived is all of our collective responsibility to deal with. To say that the legislation should not be repealed because it might send a problematic message to potential offenders is not a good enough reason not to repeal it. I am not saying that that message might not be taken into account—I think that it should be taken into account. We need to think about what will happen if and when the legislation is repealed but, to say that it should not be repealed largely because it might send a negative message to some potential offenders is a dangerous line to go down. We need to grasp the nettle and either repeal or dramatically alter the legislation, and simultaneously have a plan to deal with the type of message that public society should receive as a result of those actions.

George Adam (Paisley) (SNP)

I want to ask for the witnesses’ perspective on why we ended up with the legislation. In 2011, we had the so-called game of shame, which has been cited by a lot of the supporters groups as the reason for the legislation, but we all know that there was an on-going issue that was building up in the three or four games before that when things were getting out of control. There were 34 arrests at that game alone, of which 16 were on sectarian grounds, and there were 229 arrests in the Strathclyde area. During the old firm cup tie, domestic abuse rates were driven up by 43 per cent, according to the police, and there were 210 reported incidents, as opposed to 146 incidents on a normal day. Given all of that, and given that we have the Jewish community, Stonewall and the Scottish Disabled Supporters Association saying that they feel protected by the act, is it not the case that the Government was probably right to legislate?

Andrew Tickell

I am happy to address that. Some people would say that they support the principles behind the act. It is undeniable that the bill was extremely badly handled by the Scottish Government, which raced it through Parliament with limited scrutiny and added provisions late on that are frequently the most problematic provisions of the legislation. Indeed, the act specifically highlights, in section 5, the areas that are particularly problematic, as it gives the Government the power to knock out those sections.

The question is whether it is important that we have the criminalisation of offence, as opposed to the kind of criminalisation that occurred under classic breach of the peace provisions. Along with a number of other people, I am not sure that I am persuaded that we need to criminalise offence, but people will disagree about that. For the reasons that a number of fellow panelists have given, I am not sure that the legislation has succeeded comprehensively in addressing the issues. Perhaps that suggests that criminal law may not be the best tool to change society in that way.

I am not sure that that act of Parliament is an unvarnished success from the Scottish Government’s perspective. It has turned a difficult area—talking about sectarianism in Scotland—into an even more hot-house environment and, heaven knows, it was a particularly hot issue for starters. I am not sure that the act has been a great triumph but, despite all my reservations, I believe that we can fix it. It is easy for the Scottish Government to do that if it chooses to do so, but thus far there is no evidence that the Scottish Government wants to amend the act, which I find somewhat disappointing.

Dr Kelly

George Adam referred to the so-called shame game. There were other issues around that time, of course, with Neil Lennon and other sectarian-related issues, so it was not simply that game, as colleagues probably know.

The answer to the question of what can be done about sectarianism is to make an act that deals with sectarianism, not one that deals with offensiveness and which is open to question and does not actually specify for any of us round this table, or for the police or the courts, what this country thinks is sectarian and what is sectarianism.

I keep coming back to the point—because it is crucial—that it should not be illegal for people to have a sectarian identity, and there is confusion and misunderstanding about that in this country. The issue is when one’s identity, whether that is sectarian or not, is about exhibiting intolerance or hatred towards someone else’s identity, based on religion or any of the other protected characteristics. As I said, I support the protection of those other characteristics in a properly worded bill.

I say to Rona Mackay and Mairi Gougeon that I am very conscious that we are sitting here pontificating on the issue as a bunch of white males. I certainly do not mean to cause any offence to the women’s groups and I am actually on record as supporting the protection of women’s rights, gay rights and all sorts of disability and minority rights at football. I just do not think that the 2012 act does that.

George Adam

Dr Waiton, your written evidence says:

“people should be able to express their hatred of whoever they like”,

and you have also contributed to a book, “Football hooliganism, fan behaviour and crime: contemporary issues”, in which you said that, in many respects, being offensive is football. Are you saying that anybody can say whatever they like, whenever they like, no matter how offensive someone finds that?

Dr Waiton

I am a bit of an extremist on this, but I do not think that we should arrest people for speaking words. That is crazy in a liberal free society, but there we have it. If someone sings a song, I do not think that we should call the police and put them in prison for it.

George Adam

Dr Waiton, can I just—

The Convener

Let Dr Waiton finish and then you can come back in.

Dr Waiton

Unlike most of you, I was actively involved in anti-racist politics. The first newspaper that I sold was in defence of gay rights. I think it is strange to talk about protecting people. I think that it was Iain Macwhirter—that extremist—who said that the Scottish Government should realise that the right to offend is the most basic right in a free society. That is true. In a liberal free society, different ideas and views should be expressed. If someone disagrees with those views, they should challenge them with politics, campaigns and articles. When was the last time that you were out in the street handing out a leaflet? Perhaps you should do that and talk to ordinary people. I do not think that we should put people in prison for—shock, horror!—the words that they speak.

George Adam

As a football fan—a St Mirren fan, for my sins—I remember a time back in the 1980s when St Mirren were playing in European football and Ruud Gullit came to Love Street with Feyenoord. He still mentions the fact that that day in Love Street was the worst racism he experienced in his whole career. I knew then, as a young man in primary school, that it was wrong to do that. Is it not the case that there has to be some way of making sure that people have to control themselves and that they cannot just say whatever they like at any point, particularly when there are in groups at football games?

Dr Waiton

Why do we assume that it is a problem in football now? In 2001, I think, the statistics from England showed that there were 17 cases out of 13 million people, which amounted to something like 0.003 per cent. You seem to be suggesting that, if we did not have the police hanging around people’s necks they would all be racist animals. I do not think that that is true.

George Adam

What I am concerned about is what you have said, Dr Waiton—that people should be able to express their hatred of whoever they like.

Dr Waiton

Yes.

George Adam

I find that quite offensive.

Dr Waiton

That is the nature of free societies—people express things. The way to deal with that is not to put people in prison for the views that they hold or the words that they say. It is how a free society is meant to operate. If the clubs want to do something about it, that is different. They are private institutions and they could do something, but the state and the police should not be involved in the policing of language and thought. That is the most basic aspect of a free society; unfortunately, it seems that we have completely lost it.

The Convener

We must move on now. I am sorry, but there is no time for supplementaries.

Liam Kerr

I will be brief. I was fascinated by the analysis in the panel’s submissions of the underlying legislation and the assumptions that are inherent in what we have done. I want to draw that to the practical level.

The committee has heard a deal of evidence that suggests that there has been a reduction in the singing of songs in the stands. Does any of the panel have a view on whether the underlying values or societal beliefs have changed? If they have, is that a result of the 2012 act? In any event, does that imply that if we take the legislation away, the underlying belief and mischief will still be there, waiting to spring back?

Dr Webster

Having done extensive ethnographic work on exactly that question, I would dispute that there has been a dramatic decline in the singing of certain songs. What fans have done is change their behaviour by holding their hands in front of their mouths while singing certain songs in order to prevent CCTV from capturing them singing them. In addition, as we are all aware, they have replaced certain songs and chants with other words in order to try to skirt the law.

My sense is therefore that one of the major problems with the 2012 act is exactly the type of phenomenon that you are putting your finger on. The question therefore is what behavioural change the 2012 act has brought about. Has the 2012 act brought about behavioural change? Yes, it has, but it has not changed or discouraged the expression of the types of behaviours that the 2012 act sought to do away with and it has not made people less offensive; it has made them engage in a different way in behaviour that the 2012 act regards as offensive. The 2012 act redirects those types of behaviours rather than prevents them from happening. That is a feature of the legislation because of the way that it was drafted.

More fundamental, though, is that we are coming up against something that all of us have already discussed, which is that maybe legislation is not the best way to deal with the types of behaviour that the 2012 act tries to prohibit. Laws might be less effective than, for instance, early years education, which I would imagine is a fairly uncontroversial suggestion. Has the singing decreased? No, it has been redirected. Is the law working? No, we need to replace it with other methods of behavioural change, with the most sensible probably being early years education.

Dr Waiton

I believe that the 2012 act has had an impact, but that is difficult to quantify because of the climate in which it exists. For example, my student association passed a no-platform motion a few years ago, the opening sentence of which said “This union notes that racism is illegal.” The people who drafted that thought that racism was illegal. In case anyone is confused: racism is not illegal. We are allowed to be racists, but we are not allowed to speak in relation to that.

My concern about the 2012 act is that it creates a climate in which people are frightened or are a little bit nervous about talking about certain things. There is also a problem with the 2012 act in terms of protected characteristics. It reminds me of a kind of zoo where different groups are walled off from one another. The 2012 act seems to be helping to create a more fragmented and slightly more distant society. I remember that Scotland used to have the one Scotland, many cultures campaign, but the “many cultures” part was got rid of at a time when there were concerns about whether multiculturalism was creating separate communities, especially among the Muslim community. The “many cultures” part disappeared because there was a nervousness about the concept.

The 2012 act and similar legislation are having an impact on society, but it is a kind of etiquette or censorious impact on what can be discussed. Unfortunately, that turns things like anti-racism into a mantra, as a result of which people just say no to racism but never discuss racism or have arguments about it and we are never in a position where people feel free to have a proper debate and develop proper anti-racist ideas and understandings.

Dr Kelly

I agree completely with Stuart Waiton’s last point.

I would take issue a bit with the assertion that there have been fewer problematic songs at football games. As someone who has been to quite a number of Celtic games over the past few years, in a personal capacity and as an ethnographic observer, I would argue—I think that most Celtic fans would agree—that since the 2012 act came in there have actually been more of what the Scottish Government might define as problematic songs. At Celtic park and indeed away from it where Celtic has been playing, there have been more songs of an Irish nationalist and Irish republican nature than was the case before the introduction of the 2012 act.

In fact, for a number of years at Celtic park, you would struggle to hear some of the old Irish nationalist songs such as “The Boys of the Old Brigade” that were sung throughout the 1960s, 1970s and 1980s and that mention the Irish Republican Army or are about various versions of the IRA or Irish nationalists or republicans. Those songs were disappearing from the mainstream Celtic support, but then the 2012 act came in and, in many ways, the songs have become more popular, almost as an act of defiance in some respects.

I agree with Stuart Waiton that some of the fans who sing those songs think that the state should not tell them what to sing and should not control people’s songs. The situation is possibly the same with Rangers, although I am not sure that the point applies as much to Rangers or to other clubs that might be affected, such as Hearts or Hibernian. I suspect that part of people’s motivation for singing those songs after the act was introduced was to show that they thought that it was unfair and was prohibiting them from expressing elements of their national identity.

People in this room might not understand or sympathise with that national identity, but the people singing the songs identify with it. That is one of the key points that we completely fail to understand and grasp across the official structures in this country. That requires more dialogue with the fans and the people who go to the games. I cannot speak for colleagues at the table, but I am not only a researcher—I know about football and I am a football fan. Too many people who try to implement rules and laws do not actually understand football culture.

The Convener

We are less than halfway through our questions, so I ask the questioners and those who respond to be as succinct as possible, please.

Liam Kerr

Mr Tickell, the committee heard evidence from the Crown Office and Procurator Fiscal Service that repeal would leave a gap in the law. Do you agree?

Andrew Tickell

Talk of a gap in the law frequently rather begs the question. For example, in this country, it is illegal for a judge to sentence somebody to death if they are found guilty of murder. To someone who is in favour of the death penalty, that is a gap in the law but, for a squishy liberal person like me, it is a feature and not a bug. Often, when we talk about gaps in the law, we are begging the question and presupposing that the underlying behaviour should be criminalised.

Setting aside that suspicion of the question, I suppose that, whatever you think of the merits of section 6 of the 2012 act, it is very difficult to argue that there is a specific criminalisation in Scotland of incitement to religious hatred. Such a provision applies in England but not in Scotland, in part because it was resisted by Scottish MPs when Tony Blair’s Government brought in the measure several years ago. So the repeal would create a gap in the law, although it might well be that individuals could be prosecuted under other existing offences.

That is one element of the scrutiny of the proposal to repeal the act that I find a wee bit baffling on some level. Many critics of the act, several of whom are on this panel, argue that it is illiberal and interferes with free expression, but the policing around football and of singing songs around football is not new—it was not invented by the Parliament in 2012. Before the act came into force, there were several breach of the peace cases that criminalised people singing. Sometimes, words read in context are different from those words in other contexts. If I go back to Glasgow this afternoon, enter a Celtic pub and start singing the famine song, on one level, that is my free expression, but it could of course lead to public disorder and could be analysed under the rubric of breach of the peace. Therefore, the idea that we can rather glibly and comprehensively say that we should not criminalise speech does not relate to the law as we had it before the 2012 act and presents a rather exaggerated image of the act’s illiberalism. There are plenty of examples from the annals of our courts where what might be seen as just words have ended up with someone in court.

Ben Macpherson

Mr Tickell, could you elaborate on your specific concerns in relation to the drafting of section 1 of the 2012 act and your proposals for its amendment?

Andrew Tickell

There are three problems with it.

First, we have the list of prohibited behaviours, which are in five broad categories, including “expressing hatred of” groups or individuals on the basis of protected characteristics; “behaviour that is threatening”; “behaviour that is motivated” by hatred, which covers behaviour that in itself is not an expression of hatefulness or threatening; and offensiveness. I do not think that offensiveness is an appropriate threshold for criminalisation. That is what distinguishes the act from earlier breach of the peace provisions, which criminalised only behaviour that would cause a reasonable person to suffer fear and alarm in the context in which it takes place. I think that you should knock out that bit of section 1.

Secondly, the definition of “public disorder” in the act is absolutely baffling, in the sense that when the junior justice minister came to your predecessor committee to introduce the public disorder restriction, she represented it as a safeguard for individuals who might find themselves accused of committing a criminal offence. However, two things are excluded from the sheriff’s deliberations about whether, in the context in which a criminal act took place, public disorder would have arisen. They can discount the fact that public disorder did not happen because of the police being there—that is, if the police were there and public disorder did not occur, the accused cannot claim any benefit from that. The second thing is that if no one is there to be incited—if someone is in the kind of scenario that Dr Webster has been talking about, where they are not marching into a Celtic pub to sing the famine song but are in a certain kind of fraternal Protestant brotherhood that sees singing that song as a way of articulating a shared identity—the sheriff is invited to invent fictional, absent incitees.

Proponents of the 2012 act would say that often the behaviour is offensive in the context of football matches and therefore it should be criminalised. Whether or not you agree with that argument, the act specifically instructs judges to completely ignore the actual context in which the behaviour takes place. That is perverse. We can fix that, too, by knocking out the subsection that invites the court to invent fictional incitees. Even when it brought in that provision, the Scottish Government recognised that it was fairly indefensible—or not defensible in the long term—as it gave ministers the power to knock it out using an order as opposed to primary legislation.

Those are just a few examples of areas of problem and areas where there can be very straightforward fixes that would leave us criminalising only hateful behaviour—which I know that some panel members will not agree with—and threatening behaviour that is likely to give rise to public disorder in the context in which it is actually taking place. That would make it a mainstream public order piece of legislation that would be very much compatible with most UK approaches to dealing with the issue.

Ben Macpherson

Before Dr Webster comes in, I have another question for Mr Tickell. On the point about context, some witnesses have argued that football fans are unfairly targeted because of the context that section 1 targets. In your view, is that justified? Would an expansion of the context help to alleviate that sense of being singled out?

Andrew Tickell

I think that your colleague Fulton MacGregor put that point to the fans who are against criminalisation. Their argument is that the 2012 act is discriminatory because it targets only football fans. One way to make it not discriminatory is to make it apply to everyone, but the fans were still against the act because of the offensiveness provision.

When Lord Bracadale gives his proposals on hate crime, I think that we will see not sector-specific offences but a comprehensive piece of legislation on this issue that is like the common law breach of the peace. I think that the argument about discrimination against football fans is essentially a red herring, because if someone would be unhappy even if the provision was extended to cricket matches and rugby matches, their argument is not principally about discrimination but about the act setting too low a hurdle for criminalisation. That is my analysis.

Dr Webster

If we remove the aspects of the legislation that are being suggested here, my sense is that we would lose everything that is distinctive about the act and therefore we would have no need of the act itself. The existing legislation—particularly on breach of the peace, which we have already discussed—would seem to suffice.

In particular, if we remove the element of offensiveness, which is the one thing that is genuinely unique about the act, we will have taken out the one thing that makes the act what it is, and therefore presumably we would no longer need the act.

The Convener

We do not have much time left, Ben.

Ben Macpherson

Andrew Tickell, you said that in your view Bracadale would propose an extensive set of hate crime legislation. This question leads on from that and from what Dr Joseph Webster just said. Would revision take place as part of that new legislation? As part of the consolidation—

The Convener

We have got the point.

Ben Macpherson

Would that be a better way of using what is good in the act?

Andrew Tickell

No. That is partly because of the critical voices on the panel and outside the Parliament in relation to the 2012 act. The act needs to be fixed now. Section 5 gives to the Scottish ministers the power to make an order to fix all the things that I have described, and they could lay that before the Parliament tomorrow, if they wanted. That would be very sensible and would deal with the substantive criticism of the legislation. An amended bill could be considered in the context of the Bracadale report, which will cover a complicated area of law. I daresay that the Parliament will want to scrutinise it and hear from a range of different folk who will want to argue about what is in it. That is some way down the line.

There is strong argument to act now, not least because it would be good if the Scottish Government were to show some recognition that it got it wrong. Many people, who are otherwise sympathetic to the Government, recognise that several elements of the act were rushed through too hastily and mistakes were made—we all make mistakes when we rush things.

The Convener

What about Dr Webster’s comment that if you remove all those things, the essence of the bill will be gone?

Andrew Tickell

There are two ways of looking at that. First, the message-related concerns raised by many people would be alleviated to some extent, because there would still be recognition of offending around football. Secondly, statisticians might like the data, in the sense that it would be useful to be able to identify specific categories of offending around football, because we do not have 20,000 people singing songs about being up to their knees in Fenian blood at cricket matches. There is a particular set of problems around football in Scotland and whatever one thinks about the act, one cannot be blind to that fundamental fact.

Maurice Corry

Dr Webster, your written submission refers to your key concerns about section 6 offences. Can you elaborate on that?

Dr Webster

Do you mean how section 6 does not provide suitable provision?

Maurice Corry

Yes.

Dr Webster

My point is very simple. Section 6(5) claims that it does not restrict the behaviours outlined in section 7(1)(b):

“expressions of antipathy, dislike, ridicule, insult or abuse”.

The legislation is not sufficiently finely drawn to allow police officers on the ground to distinguish hatred from antipathy, dislike, ridicule, insult or abuse. The inability to figure out which behaviour belongs in which category means that police officers need to interpret grey areas. My research conversations with police officers suggest that they do not like being put in that interpretative position and that it fuels resentment and anger among grass-roots fans who feel that expressions of antipathy, dislike, ridicule, insult or abuse are being criminalised, even though the act says that they are not.

Maurice Corry

Is it unfair on the police that they have to interpret those grey areas?

Dr Webster

The police interpret things all the time and generally do a very good job in doing so. The problem with the act is quite acute in so far as several different categories mentioned in section 7(1)(b) require far more interpretation than the police would normally be expected to apply under other pieces of legislation.

I am not against the police interpreting things—they are professionals and do a good job of interpretation in general. However, the level of interpretation that we expect in the context of the 2012 act goes far beyond that. As a result, it causes problematic situations within the police’s job and how that job is perceived by those who feel that they are being targeted by the act.

Maurice Corry

What are the views of the three other panel members on repealing section 6 and any problems that might result?

Andrew Tickell

There is no direct provision in Scots law for incitement to religious hatred to be a distinct offence. That is a statement of fact; whether one thinks that it should be a distinct offence is an open question.

I should stress that this is not principally about football. Section 6 is not about fans. If fans are particularly preoccupied by that section, they are not reading the act closely. Section 6 covers the threatening communications element of the legislation, so it extends more widely. If you abolish that section in the bill process, I would be stunned if you did not reintroduce something similar a few months or years down the line. That raises fundamental questions of principle. Why repeal it if you are likely to want to back it in future?

Dr Waiton

The communication side of things is problematic. That law does not, in and of itself, restrict freedom of speech. Many laws do that and it has become an accepted cultural framework.

I have a real problem with the fact that you can get arrested for being threatening even though there is no evidence of any reality to the threat. We are arresting people for saying stupid things, often when they are drunk, and those things are often then called hateful even though, when we talk to the people, they are usually embarrassed and feel that they have been stupid.

There is a real problem with the criminalisation of words and putting people in prison for saying stupid things when there is absolutely no evidence of any intent to act upon those stupid words. We are, in essence, talking about thought and word crimes.

Dr Kelly

I agree with Dr Webster and Andrew Tickell pretty much in totality. If one were to revise the bill, that might alleviate some of the fears that some of the minority groups have. From the beginning, I have highlighted the following point as being positive about the act: it seeks to protect ethnic and national identities. However, because of the way that it has been policed, that is not what has been happening, unfortunately. The opposite has been the case.

Would there be a gap in the law if it were repealed? Potentially not. Lawyers and legal experts are in a better position to judge that than I am, but my gut feeling is that there might be a gap in protecting people’s rights to express their national and ethnic identities. The implementation of that is key because the act claims to do that, but some of its workings and implementation do the opposite.

Mary Fee

Sectarianism is not defined in Scots law. If it is possible to define it, would it be helpful to do so? Would defining it help people to understand what it means and, if it needs to be eradicated, to eradicate it?

Dr Webster

That is an excellent question. The Scottish Government’s advisory group on sectarianism has already produced numerous reports, two of which include pretty finely grained definitions of sectarianism. It would be helpful to define it. It has already been done by academics whom the Scottish Parliament has asked to produce such a definition. I am thinking of the work of Dr Michael Rosie and others on the advisory group on sectarianism.

The definition exists. It is a good definition and it should be taken seriously in the legislative process and more widely in social and political debate.

Mary Fee

That is helpful. Does anyone else want to comment?

Dr Waiton

The question that researchers such as Professor John Flint and, recently, Tom Devine raise is not about the rise or problem of sectarianism but the obsession with it. They observe that, as far as most people can see or would argue, the problem of sectarianism in religion or its relation to the troubles in Northern Ireland is a fraction of what it was.

In fact, Graham Spiers wrote an article in 1996—that is twenty years ago, or almost a generation—making a point about people in wine bars being obsessed with sectarianism. I think that he may have been in too many wine bars in the past two decades, but never mind. Tom Devine said:

“For most of last century when the disease was rampant and noxious it was little discussed or debated in public. Like an unpleasant smell at a middle-class dinner party, everyone knew it existed there but nobody wanted to talk about it.

Today, with the old monster in its death throes, sectarianism has spawned a new growth sector: a well-financed anti-sectarian industry. A delicious irony indeed.”

Time and money would be better spent trying to work out why politicians talk about sectarianism so much at a time when Tom Devine, who sees sectarianism as a historical problem, says that it is in its death throes.

Dr Kelly

From the early days of the act, and indeed before it, as an academic and speaker in any kind of forum, I always said when discussing such things, “Let’s define it,” because I do not think that we have a clear definition in this country, although I take my colleague’s point that the working group provided a fairly reasonable definition. That needs to be a starting point if you are going to legislate for something that we generally call sectarian behaviour or sectarian identities.

We need to define sectarianism and agree on what it is, if that is at all possible. The police are good at interpreting but the act has not given them a framework to work from, and that has led to all sorts of issues. I have complete sympathy for the police and the courts, as well as for the football fans who have been arrested.

Mary Fee

It could be a generational thing, but how important is education to changing behaviour?

Dr Webster

It is absolutely essential. My understanding is that we have a debate within the panel about whether or not we want to go down the route of education and whether we want to aim for a behaviour change. That is a separate debate but, if we want to aim for behaviour change, the crucial way to bring about that change is to engage in early years education. Whether we value the aim of behaviour change is a different debate, but if we want to encourage people to do certain things and not to do other things, we probably need to start telling them that when they are three or four, not when they are 18, 19 or 20. By then, from a behavioural science perspective, it is simply too late.

James Kelly (Glasgow) (Lab)

I have a question for each witness, starting with Dr Waiton. You have criticised the authoritarian nature of the act in your submission and in your evidence this morning. What is your view of the way in which the act has been policed?

Dr Waiton

It is an interesting question. I was invited to Ibrox to look at the policing, because the police are aware of my interest, and then I was invited to Hampden to watch the old firm semi-final, which was a bit more interesting, because 20,000 people started singing “Billy Boys”. They had clearly been trying to hold their tongues for as long as possible, and then it just exploded, but it did not seem to create a public order issue, which is perhaps worth noting.

As far as I can tell from fans’ responses that I have received over the years and from contact with fans, there is a sense of the escalation of surveillance. It does not necessarily lead to arrest, but there has been an escalation of surveillance and a sense that people are being permanently policed and have to watch their words, which some people would say is a good thing. That is a sentiment among fans.

There is also, especially among Rangers fans, a growing resentment—at least, based on the findings of a small piece of research that I did—about what they see as Celtic being grasses, not in relation to the act specifically but in general. There is a sense that Celtic fans tell the police, and I think that there is a new tension, which could develop among other fans, because there is a feeling that different fan groups tell tales on one another. It is not just about policing directly but about a sense that fans are policing one another, and resentment has emerged because of that.

James Kelly

Dr Webster, what does your research tell you about the impact that the 2012 act has had on the relationship between fans and the police?

Dr Webster

That is an important question. The 2012 act has done two things. First, it has changed the way in which certain behaviours that it deems offensive are enacted by fans, sometimes in quite ingenious ways. We might not like the behaviours, but people now hold their hands in front of their mouths when chanting something, aware that they are being recorded by CCTV during that speech act. That shows that there has been behaviour change but not a decrease in offensive behaviour; such behaviour is being enacted in a different way.

My second observation is about both sides of the sectarian divide. We can use Celtic and Rangers fans as the typical case, but it is not typical at all, although I will put that aside for the moment. The opposing fan bases feel themselves to be uniquely victimised by the police. Rangers fans think that they are the ones being picked on and Celtic fans think that they are the ones being picked on. As a result, fan bases find themselves at odds with each other and with the police. The 2012 act has made the policing of sectarianism more difficult, because fans have got wise to how to circumvent the law, and it has led to a deterioration in relationships between the fan bases and between them and the police.

James Kelly

Mr Tickell, I am interested in your view of how the cases are handled in the judicial system. We have had submissions from a couple of lawyers who said that, as low-level cases progress through the system, there can be plea bargaining between lawyers and the prosecution, and cases might be withdrawn by the prosecution if there is not enough evidence. However, those lawyers also said that almost all cases under the 2012 act are brought to trial and that procurators do not have the capacity to negotiate or plea bargain. Do you have a view on that?

Andrew Tickell

That is certainly likely to be the case, given the high priority that was given to the 2012 act by the Crown Office, which got very involved in bringing the legislation to fruition, and which stated to the Justice Committee that the legislation was an important tool. The Crown Office clearly felt that it had to back the legislation all the way.

As we have seen with the domestic abuse interventions by the police and the Crown Office, if a policy comes out of Chambers Street that is then enforced by procurators fiscal across the country, their liberty to deal with cases in different ways will be restricted—that seems to be clear. A point that many critics of the 2012 act would make is that, despite the number of cases that go to court under the legislation, the conviction rates are not great. The most recent figures show that the conviction rate for charges under the 2012 act is slightly lower than the general average of about 87 per cent. That might be because cases are ending up in court that might not otherwise have done so if procurators had more discretion over the cases before them.

James Kelly

My final question is for Dr Kelly. When the original legislation was introduced in 2011, you made the reasonable point that the law needs to be explicit and unequivocal. You were anxious about the legislation back then because you felt that it was not clear about what would be allowed and what would be prohibited. Having seen the passing of the 2012 act and its implementation over five years, how do you feel those issues have played out?

Dr Kelly

All I would say is: I told you so. What was predicted, not just by me but by a number of people who understand Scottish football, who are football fans and who research football—and possibly all of the above—has come about. Many of us suggested that this was likely to happen and that the police—I must come back to the police again—were being asked to do an impossible task.

I agree with my colleagues. Instead of there being more tolerance and decency and less offence—even though I do not think that giving offence should be illegal—things have gone the other way. There is mistrust between fans and between the police and fans, a feeling of hypersurveillance and a wrong feeling that certain behaviours are being targeted when they are not. There is confusion around pretty much all of this, and as far as I am concerned, a lot of it comes down to the fact that what is being policed is neither well worded nor clearly defined. As has been pointed out, if we are seeking to criminalise sectarianism and intolerance of someone else’s sectarian activity, we need to be absolutely clear about how we define that for the police and for schools, and in the discussions that we have. Indeed, if we are talking about education, we should be seeking not only to train children to behave in a particular way but to question why people are offended by these identities in the first place. I know that I am going back to a previous point, but that sort of thing will be crucial to any such education programme.

In summary, I am absolutely not surprised at what has happened, and most commentators will agree that it is largely—although not exclusively—due to the act’s poor wording and a lack of agreement over what is offensive and what is a human right to express an identity.

Andrew Tickell

As a very brief point, I am not sure that opponents of the legislation who want to roll things back to breach of the peace are being entirely logically coherent. According to Smith v Donnelly, the Scots law definition of breach of the peace is behaviour

“severe enough to ... alarm ... ordinary people and threaten serious disturbance to the community.”

That does not exactly constitute a comprehensive set of detailed legal rules that the ordinary punter, wherever they are in Scotland, can understand.

What I therefore find slightly confusing about those who use that position to promote the repeal bill is that they criticise the 2012 act for being vague while saying that breach of the peace is fine, despite the fact that it is notoriously vague and has been used to prosecute everything from playing marbles on a Sunday on the island of Lewis to walking the streets of Aberdeen wearing women’s clothing. The critics of the legislation have to give some account of the ways in which the common law is substantially better, because, even though I think that there are tremendous things wrong with the act, the common law is notoriously vague and unclear and does not specify to football fans what is and what is not criminal. It is also what will obtain if the bill is passed and the act is repealed.

The Convener

You may have the last word, Dr Webster.

Dr Webster

The 2012 act is a unique combination of problematic specificity and problematic vagueness. In other words, it is the worst of both worlds, and I think that breach of the peace offers a sufficiently general, though not perfect, form of legislation to deal with these behaviours without getting caught up in the reality or perception of this being targeted at football fans or in having to include or weave through the 2012 act a rather problematic attention to the nature of offensive behaviour. I am not saying that breach of the peace is perfect, but, as I have said, the 2012 act is a damaging combination of problematic specificity and problematic vagueness.

The Convener

That concludes our questions. I thank all the witnesses for their attendance, their participation and their help with the committee’s scrutiny of the bill.

The Convener

The next item is our fifth evidence session on the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill. I refer members to paper 4, which is a note by the clerk, and paper 5, which is a private paper. I again welcome James Kelly, the member in charge of the bill.

I welcome back Annabelle Ewing, the Minister for Community Safety and Legal Affairs, and I welcome her officials from the Scottish Government, who are David Bell, senior policy officer; Katherine Myant, principal research officer; and Craig French, solicitor with the legal services directorate.

Do you wish to make a short opening statement, minister?

Annabelle Ewing

Yes, convener. Thank you for inviting me to give evidence to the committee.

The Scottish Government believes that the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 should not be repealed without putting in place a viable alternative. The act did not appear in a vacuum. As far back as 2008, complaints were raised by the Irish consulate and the Catholic Church about the singing of the famine song at matches, which has been deemed to be racist by our courts. In 2011, we witnessed multiple arrests at a Scottish cup match, pitch-side aggression between the former Rangers and Celtic managers Ally McCoist and Neil Lennon, death threats being made to Mr Lennon and live bullets being sent through the post to a range of public figures. Those incidents could not be ignored and swift action was required to make it clear that such behaviour would not be tolerated. A strong signal was needed, and that took the form of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.

That was not without precedent. The Emergency Workers (Scotland) Act 2005 is an example of legislation being used to send a strong signal that particular behaviours are not acceptable. The 2012 act responded to the circumstances that existed at the time and, as we have seen with the latest death threat to Neil Lennon, which resulted in a 54-year-old man being convicted under section 6 of the act, we are not rid of those problems.

However, there is more to the act than making a statement. It provides extraterritorial powers to ensure that those behaving in an abusive manner outside Scotland can be held to account, and section 6 brings Scotland into line with the rest of the United Kingdom in relation to incitement to religious hatred.

I am grateful to the committee for drawing the recent submission by the Scottish Human Rights Commission to my attention and I remain happy that the act is compatible with human rights. The commission’s submission appears to be a statement of its 2011 position, which does not take account of developments such as the Donnelly and Walsh case of 2015, which did not identify any human rights issues. We remain happy to improve the act, based on evidence. Indeed, the reason for inviting Lord Bracadale to conduct a review of hate crime legislation, although entirely separate from the repeal bill, was to identify how all existing legislation in the area could be improved.

There are three principles that underpin our position in relation to the act. The first is acceptance that there is a problem with behaviour at and associated with Scottish football. Offensive singing and chanting are not a feature of any other sporting events. The vast majority of football fans are well behaved, but the fact that we continue to regularly hear offensive singing and chanting clearly tells us that there is a problem that needs to be dealt with. Football is not an island on its own where people are free to do as they choose without any need to consider the wider impact of their behaviours. Aggressive behaviour that is deemed acceptable at football will simply be carried into other areas of life.

The second principle is that action and interventions are required to tackle all social problems. Offensive behaviour at football will not simply disappear on its own. Football clubs and authorities have had decades to tackle the issue and have failed to take effective action to bring it under control.

The third principle is that although it is not in itself a panacea, legislation is needed. Legislation sets the standards for what is and is not acceptable in society, and it has an important role in tackling offensive behaviour at football. Outright repeal is not favoured by those who represent vulnerable minority communities and it is not favoured by the Scottish Government.

The Convener

Thank you. What are your thoughts on why so many people feel that the 2012 act should be repealed?

Annabelle Ewing

I cannot easily get inside the heads of those who seek repeal. It is important to state that many people do not support repeal or do not support it absent a viable alternative being put in place. Some feel that, without such a viable alternative, repeal would risk sending entirely the wrong message. The possible consequence is that people could think that such offensive behaviour is in fact acceptable. It is difficult for me to put myself inside the heads and minds of those who seek repeal but, as the committee will be well aware, you have received a range of evidence with differing views on the issue.

The Convener

The Scottish Professional Football League and the Scottish Football Association have put in place a detailed set of guidance and regulations that go into minute detail on the behaviour, sanctions and checks and balances. You mentioned that the authorities do not seem to have tackled the problem. Is that still the case?

Annabelle Ewing

It is correct to say that it has taken quite a long time to put an arrangement in place, but there is now one that looks at unacceptable conduct. I believe that data is being gathered on the first season of the arrangement’s full application, and we wait with interest to see what that will tell us. We are very keen to continue to work with the football authorities, and with clubs, to ensure that we eradicate such bile and bigotry from football in Scotland.

The Convener

In your opening statement, you said that the authorities did not have seem to have tackled that, but would you acknowledge that we have moved a considerable way to addressing the issue?

Annabelle Ewing

The arrangement is quite new and is in its first season of full application. It is fair to say that it has been quite some time in coming, but it is nonetheless welcome. We wait to see the data that is being collected over its first season of full application and whether it will tell us that more needs to be done. As I said, we are very happy to continue to work together with football authorities and clubs to eradicate unacceptable behaviour from Scottish football.

George Adam (Paisley) (SNP)

Good morning, minister. In your opening remarks, you mentioned that unacceptable behaviour at football matches did not happen in a vacuum. There is an urban myth that it started when two managers went toe to toe at the so-called game of shame. As you said, bullets were sent though the post, a Celtic manager had sectarian slogans scrawled outside his home and the famine song was sung regularly—so much so that the Irish consulate complained about it. On both sides, there were also songs that were supportive of acts of terrorism. With all that in mind, do you believe that the introduction of the legislation was a proportionate response to what was happening?

Annabelle Ewing

Yes, I do. The match to which Mr Adam refers, and which I believe is called the shame game—

George Adam

It is the game of shame.

Annabelle Ewing

The game of shame—or “shame game” for short—was the tip of the iceberg. I do not think that it was the catalyst. There had been a catalogue of very serious incidents around football and, of course, decades of problems, such as religious and homophobic slurs, bile, bigotry, sexist comments, sectarianism and hateful and prejudiced behaviour, so there were a number of factors. When the original legislation was introduced, there was a backdrop of very serious events, and it was felt appropriate that the national Parliament of Scotland should seek to respond to them in a reasonable and proportionate manner, which culminated in the 2012 act.

George Adam

It is interesting that you brought up the fact that there was homophobia. That was covered in the evidence that we received from Colin Macfarlane from Stonewall Scotland, who said:

“Repealing the act without putting other measures in ... could undermine work that has been undertaken by organisations such as Stonewall Scotland, the Equality Network, football clubs”

and

“Police Scotland”.—[Official Report, Justice Committee, 24 October 2017; c 9.]

What kind of message would it send to clubs if we were to go for repeal? Would fans who got involved in all that nonsense not think that that was a victory on their part and that they could behave as they wished from that point on?

Annabelle Ewing

I have read the comments from Stonewall Scotland and the Equality Network that were submitted to the committee. I very much understand their serious concerns that there is a significant risk that repeal of the act, without any viable alternative being in place, would send entirely the wrong message—that, somehow, such prejudiced and hateful behaviour might be condoned—and all that might come from that. They referred to surveys that showed that, for example, among the lesbian, gay, bisexual, transgender and intersex community there are very serious concerns about what happens at football. In response to questionnaires, the community consistently said that it has fears about football and the level of homophobic diatribe that is directed at people who are citizens of Scotland like everybody else.

I understand the serious concern that repeal, absent a viable alternative, risks sending significant signals that that behaviour is to be condoned and society is happy to see it continue.

George Adam

I have a final short question. We received evidence from an academic—I cannot remember the individual’s name—that was interesting in a way. He told us that, in effect, he believed that it is a person’s right to be offensive at football and that if they were not it would take all the passion out of the game. Surely, in the 21st century, that cannot be the way to conduct ourselves in a public place.

Annabelle Ewing

I sincerely hope not; that is not the kind of Scotland that most people want to live in. Freedom of speech is, of course, a fundamental right, but it is not an absolute right. There is also the freedom not to be subjected to hateful and prejudicial behaviour.

I think that Dr Duncan Morrow’s advisory committee on tackling sectarianism made the point that football seems to provide a permissive environment in which some people—they are very much a minority, it has to be said—feel that they can behave in a way that they would not contemplate in any other part of their life. It is that permissive nature of the environment of football that we have to reflect on.

For my part, and that of the Scottish Government, hate crime—hateful and prejudicial behaviour in whatever form—is absolutely not acceptable. In exercising their freedom of expression, people have to recognise the rights of others with whom they live side by side in society.

The Convener

If the 2012 act is repealed, what steps will the Scottish Government take to ensure that there is clarity for supporters and the general public as to what will be criminal in the football context?

Annabelle Ewing

If it were the will of the Parliament that the act be repealed, absent any viable alternative, as a responsible Government we would continue to work with the football authorities and clubs and seek to continue to send strong messages. We would work with stakeholders with whom we already work at a grass-roots level, in an effort to meet the significant concerns that have been raised by various organisations—not just the equality organisations—that a very negative message might be sent.

In terms of criminal law, I think that the representative from the Crown Office indicated in his oral evidence that it would look at coming up with guidelines about breach of the peace and section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. I imagine that we will come on to how that sits with the 2012 act, so I will leave it just now, but that could be done. Whether it would address people’s real and significant concerns that repealing the act would send a very bad message is another matter. However, as a responsible Government, we would continue to do what we can.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I want to ask about something that we have not really touched on. Has the Government had any thoughts about how much it might cost if the act is repealed and there is a broad public messaging campaign? Given the difficulties facing the public sector across the board, which have been widely discussed, what might be the financial implications of such a campaign?

Annabelle Ewing

That is not knowable at this time. A number of strands would have to be reflected upon and fleshed out in detail; only at that stage could we start to attach a budgetary implication for each of those strands. It is a fair point and something to bear in mind, but it is not possible to give any figure today. We do not have enough knowledge about each of the elements that would require to be reflected upon to arrive at a comprehensive and accurate figure.

Fulton MacGregor

Given the amount of evidence that we have heard voicing concerns about how repeal of the act would lead to a message being sent out, I just wanted to put the thought out there that there might be financial implications to addressing that message.

Claire Baker

I want to pick up on a couple of things in the minister’s opening statement.

The minister said that she cannot put herself into the heads of those who want to repeal the act. I find it disappointing that the Government is not able to articulate or recognise the concerns about the act. I accept that the Government might not agree with those concerns, but it is important that it recognises the arguments made by people asking for repeal of the act.

The minister said that we hear offensive chanting, which I assume meant that we continue to hear offensive chanting. That suggests that the act has not been as effective as the Government would have wanted, if chanting was an area that it wanted to tackle.

Although there is nothing that I disagreed with in the minister’s comments about what behaviour is acceptable at football, I recognise Stonewall’s comments and its concerns. My understanding is that the convictions made under the act have concentrated on sectarianism and not so much on homophobic abuse. I am happy to be corrected, but I do not know whether there have been any cases where homophobic abuse has been a key element of a charge. That situation would strengthen the argument that other legislation in place is sufficient to deal with that type of hate crime.

Annabelle Ewing

I note all the points that have been made, but I do not necessarily agree with them.

On your first point, I have not suggested that other people are not entitled to their views or to have concerns—that is their entitlement. I just do not share those views. I imagine that we will get on to a lot of the detail of what is in the act versus what was in the existing law, for example.

I have read claims in the written submissions that the act has somehow criminalised a whole swathe of the fan body, but the number of charges does not reflect that statement. There is a suggestion that the act goes after specific football clubs and fans, but the evidence that has been given has shown that that is not the case. Police Scotland indicated that fans of 24 of the 42 professional clubs in Scotland have been involved in instances, which suggests that no one particular football club has been the subject of vindictive victimisation. I note all the points that have been made, although I do not necessarily agree with them. I guess that we will get on to some of the more detailed issues in due course.

On the effectiveness of the act, I said in my opening remarks that the act is one element of the Scottish Government’s strands of work on hate crime in general. Legislation to set normative standards is an accepted way to proceed. The Crown Office stated in its evidence that the act provides a tool that it can use. In 2016-17, there have been some 377 charges, which is an increase of 32 per cent on the previous year. An absolutely tiny minority of fans engage in the behaviour, but, nonetheless, the behaviour can be seriously offensive, threatening and abusive. Surely as a society we will say that that is not acceptable.

The last point was about cases where charges were levelled with regard to homophobic abuse. I am afraid that I do not have that stat.

The Convener

We are on a supplementary, and we have a lot of questions to go through.

Annabelle Ewing

The Crown Office will have that statistic. Perhaps the clerk would be able to get it. I do not have that stat off the top of my head.

The Convener

Thank you. The next question is from Mairi Gougeon.

Mairi Gougeon (Angus North and Mearns) (SNP)

Criticism has been levied at the legislation because of the speed with which it was perceived to have been passed, with people saying that it was rushed and, as a result, perhaps not drafted as tightly as it might have been. What is your response to those comments?

Annabelle Ewing

I raised the circumstances of the introduction of the legislation in my opening statement. The act was passed in a period of six months and went through all the normal stages; indeed, I was there at stage 1, when I believe there were 103 votes in favour of the bill proceeding, five against and 15 abstentions—so the bill passed at stage 1 and went through the normal procedure for legislative scrutiny thereafter. The original timescale for Mr Kelly’s bill was perhaps eight months, which is not so different from the timescale for the original act.

My experience in life is that there are almost always improvements that can be made, and I have always said that my door remains open if people wish to come forward with constructive, evidence-based suggestions on how we collectively can work to improve the legislation.

Mairi Gougeon

That leads on nicely to my next question. I know that you said that your door is open, but has anyone contacted you with evidence-based proposals to improve the legislation?

Annabelle Ewing

I have not received any specific proposals for improvements or amendments to the act.

Mairi Gougeon

We had a panel of academics before us during our previous evidence session, and Andrew Tickell said that rather than repealing the act, we need to amend it, and he made some proposals. I imagine that you have seen the evidence that the committee took that day. How would you respond to the suggestions and ideas that he put forward during that session?

Annabelle Ewing

I read Andrew Tickell’s written submission with interest. His suggestions are based on the act not being repealed, so if it were to be repealed, they could not be brought forward as improvements to the act. However, we are perfectly happy to reflect upon those suggestions.

Mairi Gougeon

Some of the questions raised were about what would happen if the act was repealed, what would be left in its place and what kind of behaviour we are, therefore, saying to the public is acceptable. Last week, there was a headline in the news about the number of football-related hate crimes on railways having increased by a third. How would we tackle that if the act was repealed? It would send completely the wrong message, especially if we are seeing such an increase in hate crime.

Annabelle Ewing

I seriously fear that repealing the act without a viable alternative would send entirely the wrong signal and, as I have said, a number of organisations have made that point because they are concerned about the risk of that happening—it might be more likely than not. I accept the concern of many organisations, such as Stonewall, the Equality Network, the Scottish Council of Jewish Communities, the Church of Scotland, and Victim Support Scotland, that when the incidence of hate crime has increased in different areas, particularly online, it would send entirely the wrong signal.

As I said in response to the member’s initial questions, the Scottish Government remains happy to work to improve the act and to listen to those who have specific views on how that could be done on a constructive, evidence-based basis. We are happy to reflect on those.

The member said that the number of hate-crime incidents on our railways has increased by one third. When I read the submission from the Scottish Women’s Convention, I was struck by what it said about women being afraid to go into the city of Glasgow if there is a big match on. That sums it up in one sentence.

Maurice Corry (West Scotland) (Con)

Has the Government considered whether the act could be improved by amendment? If so, what changes to the section 1 offence could you foresee?

Annabelle Ewing

As I said, our door is open to constructive suggestions. Thus far, nobody has been exactly queuing outside my door, but it remains open. We have just discussed Andrew Tickell’s interesting suggestions and I said that we would be happy to look at them in more detail, if that is helpful to the member.

Maurice Corry

Therefore, your Government has not actually come up with any amendments. Forgetting what other people might have suggested, you have not seen any need to amend the act.

Annabelle Ewing

We feel that, on balance, having section 1 versus having only the previously existing law puts additional tools at the disposal of those seeking to enforce the law of the land. A lot of the submissions have focused on that issue. I do not share the view that, if the bill were to be repealed without any viable alternative, the existing legislation would not involve limitations on what could be done. I think that it would involve such limitations, so I am not convinced completely that an amendment in that regard would be the way to go. However, I noted with interest Mr Tickell’s suggestions and, as I said, we would be happy to reflect on those further.

The Convener

Before we move off that point, could I just absolutely nail whether you think section 1, as currently drafted, is fit for purpose?

Annabelle Ewing

Yes, I think it is fit for purpose, and that has been demonstrated in the courts. As for whether things could be improved upon, as I have said, convener, most things in life can benefit from improvement, so we are happy to consider what substantive improvements—constructively suggested and evidence based—could be made. I have been happy to reaffirm that commitment today.

Maurice Corry

Can I further ask, minister, whether the term

“other behaviour that a reasonable person would be likely to consider offensive”

should have been defined on the face of the legislation, to provide clarity? Do you accept that that provision, as currently drafted, is too broad? If the act were to be amended rather than repealed, would such a definition be required?

Annabelle Ewing

The reasonable person test is a common feature of the law. Much has been made of breach of the peace and of section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. That law involves a reasonable person approach as well—it is quite common.

The danger of defining something to the nth degree is that something gets left out—there is always a balance to be found when drafting legislation. For example, there is not an exhaustive list of circumstances that need to be met for dangerous driving; there are facts and circumstances to be adduced for consideration.

Also, of course, the reasonable person test sits alongside the other part of the test, which looks at whether behaviour is

“likely to incite public disorder”,

so there are two strands to the test, not just one.

The Lord Advocate’s updated guidelines from August 2015 are also helpful in fleshing out exactly what behaviour is likely to be included. I think that the committee has had a look at those in previous evidence sessions. I am happy to refer to the Lord Advocate’s guidelines; they are quite lengthy but they cover many of those issues.

Maurice Corry

Does that mean that you do not believe that it puts out too big a net, so that we catch all sorts of fish, shall we say? Is that approach not too broad brush? Should we not use a scalpel to identify the critical problem?

Annabelle Ewing

The member’s concern is about the reasonable person test. That test is quite a common test in law, and indeed it is in the Criminal Justice and Licensing (Scotland) Act 2010. It is a common concept and one that the law has dealt with quite comfortably over many years, fleshed out by the Lord Advocate’s guidelines of 2015. One must also bear in mind the fact that there is another element to the test, which is that the behaviour must be “likely” to cause “public disorder”.

Maurice Corry

Thank you.

The Convener

We have the guidelines—

Annabelle Ewing

So you do not want me to read them out?

The Convener

No, thank you.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

There has been some discussion this morning about potential amendment of the act, minister, and you said in your opening statement that you would be happy to improve the act, based on evidence. Many witnesses from whom we have heard in recent weeks, including Andrew Tickell, representatives of the Church of Scotland church and society council and others, have said that it would be advisable to wait until the review that Lord Bracadale is undertaking is complete, so that we can consider the positions that he comes to before we consider amendment of the current legislation. Of course, that is predicated on repeal not taking place. Is that position similar to the Scottish Government’s position?

Annabelle Ewing

Obviously, the Lord Bracadale review is independent of Government. Like everyone else, I do not know what his recommendations will be and I await their publication, which is expected in spring 2018. I would not want to pre-empt that process. I know that the remit of the review involved a consideration of hate crime in the round in Scotland and of whether what we have is sufficient for the 21st century. A look at the 2012 act was included in that context.

I know that Lord Bracadale has engaged in a wide-ranging consultation and that, when he invited views as part of the consultation, he also invited views, inter alia, on the potential consequences of a repeal of the 2012 act. I think that the consultation has now closed, so he will be looking at the responses that he has received across the piece on a host of issues, including that one.

Obviously, in the first instance, the progress of Mr Kelly’s bill is a matter for this committee and the Parliament as a whole. If the committee felt that it wished to pause its deliberations pending the publication of Lord Bracadale’s recommendations, that would be a matter for the committee.

Ben Macpherson

I think that we will expand on that issue later in the meeting, but I thought that it was important to raise it now as it dovetails with the subject of the previous question.

The Convener

Before you move on to your substantive question, Mr Macpherson, Liam McArthur would like to ask a supplementary question.

Liam McArthur (Orkney Islands) (LD)

We will shortly go into private session to consider a report on the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill. That piece of legislation is based on a report by Sheriff Principal Taylor that was published in 2013. It suggests that if we wait for the report from Lord Bracadale, we could be waiting for some four or five years before any legislation is brought forward to address the shortcomings that are accepted, by wide consensus, to be present in the bill, particularly in relation to section 1. Does the minister accept that, although it is interesting that Lord Bracadale is undertaking his review and we all await the outcomes of that review with interest, it would perhaps be naive to assume that any legislation is likely to flow from that any time soon?

Annabelle Ewing

I cannot pre-empt the work of Lord Bracadale, who is engaged in an independent piece of work. I would not dare to pre-empt that in any regard, whether in relation to recommendations, potential new legislation or anything else. We just have to let Lord Bracadale proceed in the way that he was tasked to do. Obviously, as Ben Macpherson has said, the work that he is doing dovetails with the work that is currently before the committee, and it would be a matter for the committee to decide whether it wishes to be informed by the work of Lord Bracadale.

Ben Macpherson

Minister, in your opening statement, you talked about the evidence that has been received from the Scottish Human Rights Commission about key provisions in the 2012 act perhaps falling short of the principles of legal certainty and the lawfulness requirement under the European convention on human rights. However, when Chris Oswald of the Equality and Human Rights Commission appeared before the committee, he said:

“Although the EHRC recognises that freedom of speech and freedom of expression are enormously important and are protected by article 10 of the European convention on human rights, they need to be balanced against the International Covenant on Civil and Political Rights, which says that states need to have in place laws that counter

‘incitement to discrimination, hostility or violence’.”—[Official Report, Justice Committee, 7 November 2017; c 4.]

Are you confident that the 2012 act has not fallen short of the principles that the Scottish Human Rights Commission referred to?

Annabelle Ewing

You received the Scottish Human Rights Commission’s submission at the weekend. When the bill was introduced, like any bill, the Presiding Officer had to certify it as being competent—under the Scotland Act 1998, we have a duty to comply with the Human Rights Act 1998. The bill was passed by Parliament and, following its passage, the law officers did not seek to raise any action to challenge its compatibility. Since then, in March 2015, we saw the appeal case of Donnelly and Walsh v Procurator Fiscal before three appeal judges, who took the view that article 7 was not infringed. The appeal was dismissed.

The Scottish Human Rights Commission was engaged in the discussions on the original legislation and its submission seems to echo what it said then and does not take into account particular developments since then, including the appeal case I just mentioned and the fact that the Lord Advocate has issued guidelines. No account has been taken of that and issues of certainty of law, and so on.

On the member’s other point about evidence from the Equality and Human Rights Commission and the reference to the international covenant taking precedence over the ECHR, I thought that that was an interesting submission and I imagine that the committee will wish to reflect on that when it is deliberating on the terms of its report.

Ben Macpherson

Thank you for clarifying that, minister. It was very helpful.

I will move on to other evidence that we have received and refer back to section 1 of the 2012 act. Some have argued that the act should be extended to include situations outside the football context, such as marches and parades. Bearing in mind the fact that no amendments have been proposed and that, if the act is to be amended, it cannot be repealed, is it feasible to seek to include marches and parades?

Annabelle Ewing

Having read the evidence, I know that certain marches have caused concern. Dr Michael Rosie’s recent “Independent Report on Marches, Parades and Static Demonstrations in Scotland” put forward a number of issues, and I recall that he concluded that, in the investigation that he carried out, the majority of marches and parades of whatever persuasion were carried out in good order and peacefully.

The police have powers under the Public Order Act 1986 to deal with disorder at marches and parades but, given the open-door approach, if there were significant evidence of problems with disorder at marches and parades, the Government would be required to look at that, and if a possible response were to consider the 2012 act, assuming that it is still in place, we would be prepared to do that. It is obviously too early to pre-empt the result of such deliberations, but we would need to see evidence of a significant problem that needed to be tackled in some way, and we would then need to reflect on what we thought about it. Working with stakeholders and others would be the best way to tackle it. We keep the issue under advisement and will continue to do so.

Of course, that brings us back to one of the key arguments of those who seek to repeal the 2012 act—freedom of expression. Freedom of expression is always tricky: it is fine when you are expressing what you want to hear; but you do not necessarily want to hear the other view. However, we live in a society in which marches and parades are part of our understanding of freedom of expression. The people who participate therein are subject to the same rules and norms as everybody else and, if there is significant disorder, we will wish to look into that.

Liam Kerr (North East Scotland) (Con)

Dr Rosie’s research concluded that the vast majority of such marches are carried out peacefully and he went on to say that that was reason not to legislate against them. If we accept that the vast majority of football matches are carried out peacefully and people do not exhibit the behaviours that are complained of, is that not a reason not to legislate on them, too?

Annabelle Ewing

I do not know whether that is an exact analogy. What we have seen and continue to see at football matches are instances of abusive and threatening behaviour, offensive chanting and all the rest of it. We see that regularly at football.

The point made in the Rosie research was that in many cases no issues about disorder have been raised. Sadly, that is not the case in football, in which regard issues around unacceptable behaviour continue to be raised. As I mentioned a while ago, in 2016-17 there were 377 charges under the act, which is an increase of 32 per cent on the previous year. That suggests that there is still an issue with the conduct at football and that we are not yet ready to rest on our laurels. I agree with the member that the conduct relates to a tiny minority, but that minority can have quite an impact on the messages that are sent out, particularly to young people in Scotland.

Fulton MacGregor

Are not marches and parades subject to scrutiny by local authority committees prior to them taking place, whereas football games are not?

Annabelle Ewing

The process for approving marches, parades and static demonstrations is driven by local authorities, in discussion with the police, and is therefore a matter for them. As regards the Parliament, if people come forward with significant evidence of disorder of such a nature that it might require action, we will consider that. However, the member is right to say that, in the first instance, an application is made to the relevant local authority and that there is a procedure in place for how local authorities reach decisions on whether a march, parade or static demonstration should go ahead.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

In its evidence to the committee, the Scottish Council of Jewish Communities said:

“Anybody who is old enough to remember the original race relations act, the Race Relations Act 1965, will realise how much society has changed, in that, for example, people do not say things now that they would have said in the 1960s—at least not in public. That is partly down to legislation, so I do not think that we can underestimate the effect that legislation has on attitudes.”—[Official Report, Justice Committee, 7 November 2017; c 5.]

The Government has stated:

“There are contexts where strongly held religious, political or cultural views are acceptable and quite appropriate.”

Can you outline those contexts and say whether there is still a place for that in football in 2017?

Annabelle Ewing

I read the evidence from the Scottish Council of Jewish Communities and it was an interesting point to say that a strong signal had been sent by the Race Relations Act 1965 to society about what was acceptable and what was unacceptable in relation to such matters.

The fundamental principle that I return to when having this discussion is the right to freedom of expression. However, freedom of expression is not an absolute right, because it is tempered by the need to respect the rights of others. That is the key element in the discussion about the act and the member’s bill. Clear guidance is given by the Lord Advocate’s updated guidelines of August 2015 on where the judgment on the dividing lines should be made. Police officers make judgments every day about a whole host of things. They use their judgment in accordance with guidelines and their training. It is the same for the act as it is for many other parts of the law.

Rona Mackay

Given that 69 per cent of offences under the 2012 act occur at football stadiums, is it fair to say that the legislation does not target football culture?

Annabelle Ewing

It is fair to say that the legislation is to do with behaviour in and around football—that is how it was drafted.

The 2012 act is not alone in looking at football. There is evidence of significant problems with football over the years. We have seen legislation in England and Wales. The Football (Offences) Act 1991 was introduced to deal with specific problems, including, I think, pitch invasion and chanting. We have also seen, both north and south of the border, legislation introduced to deal with alcohol sales and consumption in relation to football.

First of all, we have recognised that there are problems, and we have sought to address those. That is in keeping with other jurisdictions and with other legislation that recognises problems in this regard. It is fair to say, as I have said before, that a tiny minority of fans cause problems. The vast majority of football fans want to go to the match and enjoy the game. They want to be able to take their families.

I have read some quite depressing submissions from individuals, including from grandfathers who have said that they would not take their grandson to a game any more, because they considered it inappropriate that their young family member should be subjected to such behaviour. That is very telling. Indeed, it is very depressing that that is the situation in 21st century Scotland.

It is clear that there is a problem at football, which is caused by a tiny minority of fans. I think that the figure from Police Scotland is that there are about 4 million turnstile visits to football matches in a season. In 2016-17, 377 charges were brought under the 2012 act. That gives the context. However, just because there were 377 charges and 4 million turnstile visits, that is not to say that this is not a problem that is corrosive and damaging to society. This problem is corrosive and damaging to society and it impacts negatively on so many other people, including vulnerable groups. Therefore, it is appropriate that we recognised that there was an issue to tackle, and we sought to do that through this legislation, among other actions.

The Convener

It would be very helpful if members, and the minister, could be as concise as possible. We are about halfway through our questions but we have less than half our time left.

Liam Kerr

I will stick to previous evidence. BEMIS has stated that the 2012 act has had a “negligible” effect in tackling hate crime. It suggests that, if anything, there is confusion about what is criminalised under the act. Do you accept that criticism?

Annabelle Ewing

I have read both of the submissions from BEMIS. I did not follow the second one as clearly as I followed the first one. No, I do not really accept that criticism. As we have seen, in 2016-17 for example, 377 charges were brought. In 2015-16, we saw a conviction rate for charges brought under the act of about 76 per cent. In that same year, there were comparable conviction rates of 74 per cent for breach of the peace and 84 per cent for common assault. That places the 2012 act in a reasonable spot. It has been effective.

The 2012 act is one element of the Government’s work in this area. I think that Police Scotland has indicated that the act has been influential in making improvements in behaviour at football, but it should not be seen in isolation. Many other issues come to the fore, including improvements in—

Liam Kerr

Forgive me for interrupting, minister—time is an issue—but I want to ask you about that. You have said that we need to eradicate the bile. Has the act done anything to eradicate the underlying attitudes and beliefs that manifest themselves as offensive behaviour?

Annabelle Ewing

Yes. It was recorded in the evidence from Police Scotland that there is a greater awareness of the issues—they are much more to the fore. The police officer who gave evidence referenced an example of self-reporting at a match. The 2012 act has had an impact, but I am not suggesting that it is the only important piece of work in that regard, because it is not. As I said in my opening statement, the 2012 act is not a panacea, but it is nonetheless important in giving the police and the Crown Office the tools that they need to tackle the problems that we face in football.

Liam Kerr

Mairi Gougeon said that football-related hate crime has increased by a third on the railways. I think that you said that you accepted that point and noted that women were afraid to go into Glasgow on the railway, presumably on a match day—I imagine that you intended to add that qualification. Does that statistic not tend to suggest that the 2012 act is not working?

Annabelle Ewing

I was quoting from the Scottish Women’s Convention’s evidence on that point. The SWC made the point that, if a big match is on, women are afraid to go into Glasgow on a Saturday. As a Glaswegian female who lived in Glasgow for many years, I get that. I got it then and I still get it to this day.

I think that the issue that the member is getting at is the strong underlying feelings whose public display the rest of society finds unacceptable. We need to work in a number of ways to tackle underlying feelings that mean that to promote or celebrate their identity, people have to hate somebody else’s identity. That point was made by one of the academics who gave evidence to the committee. There are therefore a number of strands, but the 2012 act has a role to play in that regard.

Liam Kerr

Yes. However, I had not heard Mairi Gougeon’s statistic about a rise of a third in football-related hate crime on the railways. Presumably you would attribute any decline in such behaviour to the implementation of the 2012 act, but if such behaviour is on the rise again, does that not tend to suggest either that the 2012 act has worked but is no longer working or that any previous decline in that behaviour was a function of the other things that you said were going on, such as behaviours by football clubs?

Annabelle Ewing

As I said, the 2012 act is not a panacea in and of itself. Sadly, the fact that, in many regards, hate crime is increasing in our society is not a reason for taking our foot off the pedal; rather, it is a reason for reflecting carefully on what tools the police and the Crown Office and Procurator Fiscal Service have available to tackle problems of offensive behaviour, such as hateful and prejudicial behaviour that is criminal because it is against the law and norms of our society. I believe that the 2012 act plays a role in that regard.

As has been said, repealing the 2012 act without having a viable alternative in place could have serious consequences through sending out the wrong signal or message. That is an important point to bear in mind with regard to what the member rightly said about there being an increase in the incidence generally of certain types of hate crime. That is a good reason for reflecting carefully on the actions that have been taken and for not acting hastily but regretting at leisure.

Liam Kerr

You stated in your opening remarks that the offensive behaviours that are displayed by football fans are not replicated in any other sport. If someone at a rugby match, for example, made a homophobic or racist comment that was audible to others, caused offence and perhaps led to public disorder, I presume that they would be charged with an offence. If so, which offence?

Annabelle Ewing

That would be a matter for the Crown Office at the end of the day. However, I would imagine that, in such circumstances, a potential route would be a charge of breach of the peace through section 38 of the Criminal Justice and Licensing (Scotland) Act 2010.

Liam Kerr

So they would not be charged under the 2012 act.

Annabelle Ewing

No, because the behaviour would not be taking place in and around football, which is a part of the 2012 act. A number of written submissions to the committee have indicated that the problem of such behaviour does not exist to any degree in any other sport. I have seen submissions referring to a possible offensive behaviour at bowls act, but I am not aware that there is a huge incidence of disorder at bowling clubs the length and breadth of Scotland whereby there are racist, religious and homophobic slurs and bigotry and bile. We therefore have to accept where the evidence leads us. The evidence leads us to a place where we see that there is a problem in and around football. It involves a minority of fans. The vast majority of fans do not want to engage in that behaviour, but I do not think that not recognising that there is a problem takes us very far in the debate on how best to tackle the issue.

Liam McArthur

Does the issue that Liam Kerr has highlighted not point to a fundamental problem, in that, if behaviour is offensive and something that we would wish to see eradicated, it does not really matter where it happens? Talking about this legislation as being of a piece with the Race Relations Act is to misrepresent that act, which targets racist behaviour across the piece, irrespective of where it took place, whereas the act that we are considering is focused solely on behaviour in and around football. Irrespective of whether such behaviour is more prevalent around football, it sends out the message that that behaviour in other contexts either is not deemed important enough to tackle or can be tackled by other means. That is certainly the case that has been made by many—that such behaviour is already covered by legislation that was passed prior to the 2012 act.

Annabelle Ewing

The member referred to a particular piece of legislation and said that it applied erga omnes and that the 2012 act does not. As I mentioned in my opening statement, the Emergency Workers (Scotland) Act 2005 is an example of an act that recognised a specific problem. There is an overlap in the offences for which people can be charged under that act, and they could be charged under other libels, but nonetheless it was felt important to recognise that there was a specific problem and to deal with it by way of a particular piece of legislation for emergency workers.

On the general issue that the member raises, the 2012 act provides an extra tool for the police and for the Crown Office and Procurator Fiscal Service. The committee has heard detailed evidence from the Crown Office explaining that the position of the existing legislation could be reverted to but that there would be limitations in regard to the behaviours that could be dealt with. That was explained clearly by Crown Office representatives in their oral evidence to the committee, so I will not repeat it all again. A clear explanation was given as to where, if the act is repealed without a viable alternative, we would fall short in relation to the cover that we currently have.

Liam McArthur

I will come on to that in a second, but if we deprecate the behaviour and want to see it eradicated, and if we want to send out a strong message to that effect, why on earth are we distinguishing between offensive behaviour in one context and offensive behaviour in another context?

Annabelle Ewing

We go back to first principles and to the debate that we have been having all morning, which is about the recognition that there is a particular problem in and around football that is not replicated at rugby, tennis or bowling clubs the length and breadth of Scotland.

Liam McArthur

It is replicated in society at large. I think that we would all agree that, in a sense, what we are seeing in football is a reflection of something that is still all too prevalent in society in general. There may be flashpoints at football, but if you are going to deprecate the behaviour, surely it should make no difference where that behaviour happens.

Annabelle Ewing

I go back to my earlier comment about Dr Duncan Morrow’s approach to the advisory group on tackling sectarianism, which recognised that football provides a permissive environment where people may act in a way in which they would not act in other environments. That permissive environment seems to engender among a minority of people the idea that they can act with impunity and engage in behaviour that would not be acceptable in society at large. Recognising that is the fundamental crux of the issue here, and the legislation is designed to deal with issues in and around football. That was recognised in England by legislation passed in 1991, and in approaches on both sides of the border to dealing with alcohol at football. It is recognised that there are particular issues to be addressed. We also recognise, as I have said from the outset, that legislation by itself is not a panacea, but it is a tool and it has a role to play.

Liam McArthur

That suggests that you expect more charges and convictions to be brought in relation to incidents in and around football. However, that should not deter us from cracking down on and tackling such behaviour, wherever it occurs.

With regard to section 1, which you have touched on, and the Crown Office and Procurator Fiscal Service’s evidence that repealing the 2012 act would leave gaps in the law for tackling these offences, I note that we also received evidence that removing section 1 would leave no real gap. Can you elaborate on the specific gap that would be left were the 2012 act—particularly section 1—to be repealed?

Annabelle Ewing

I would point to the evidence given by the Crown Office representative, which I thought was a very clear statement of the position.

Liam McArthur

It has been contradicted by other legal representatives from whom we heard, who disputed whether there was a gap.

Annabelle Ewing

We are talking about a person at the Crown Office who applies this law day and daily. Given that they work with the 2012 act to determine what charges can or cannot be libelled in particular circumstances, I thought that they were a reasonable source from which to get a clear picture of where exactly the Crown Office is on the matter as we speak.

First, it was said that the provisions in section 1 of the 2012 act concerning extraterritorial application were not present in existing legislation prior to the act coming into force. Secondly, there are limitations with regard to the different evidential test; indeed, we have already dealt with the issue of incitement to public disorder associated with breach of the peace under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, which is, if you like, a fear-and-alarm test. There is an issue in section 6 with extraterritorial application that is not present in other legislation, and there is also an issue with having different sentencing powers under existing legislation—in other words, legislation prior to the 2012 act coming into force—in that penalties can be pursued on a summary basis under that legislation while they can be pursued on a solemn basis under the 2012 act. That is a very important extra tool that the Crown Office should have.

I would also point out that, in its letter to Mr Kelly, as part of the consultation on his bill, the Crown Office made it quite clear that behaviour could be prosecuted under section 1 of the 2012 act that

“would not be capable, or ... securely capable, of being prosecuted under”

existing legislation. I think that it happened in a previous session, but I believe that the former Lord Advocate, Frank Mulholland, explained to the Justice Committee that a benefit of the act was that existing cases would not need to be shoehorned into existing legislation.

That is a reflection of where matters stand for the Crown Office, which is independent of Government. It has explained very well the deficiencies in existing legislation and has shown quite clearly how the 2012 act gives an additional power and tool to those seeking to apply the laws of the country.

Liam McArthur

On the issue of deficiencies in legislation, we have heard a considerable amount of evidence about the deficiencies of the 2012 act, particularly in relation to section 1. Does the Government regret not having brought forward its own proposals to address and amend those deficiencies prior to the repeal bill’s publication?

Annabelle Ewing

First, we do not believe that the 2012 act should be repealed—

Liam McArthur

That is a different point. You can argue whether it is easy to address the issues that we all agree exist and that Lord Bracadale will be looking, in part, to address in his own recommendations. It is debatable, though, whether it is easier to do that through using deficient legislation that needs to be amended or through clearing the decks and putting in place a firmer and more well-balanced structure. My question is: given the evidence that the committee has heard, does the Government regret not having brought forward its own proposals for reforming the 2012 act prior to the publication of James Kelly’s repeal bill?

Annabelle Ewing

As I said in response to Claire Baker, I do not necessarily accept the complaints about the 2012 act that have been made in some submissions. I have also said to the convener on a number of occasions this morning that, in my experience, everything in life can be improved, including legislation. I do not accept that the act is deficient, but legislation can always be improved. I have also said that my door is always open to people with constructive, evidence-based suggestions. Not one person has sought to come to speak to me, so we are where we are. I note the evidence of a host of people, but, by the same token, it is important to note that there is evidence whereby people take different views. The committee will have to reflect on that in its deliberations.

Liam McArthur

If your door is open but you cannot get inside the heads of those who have been raising concerns, is it a surprise that they have not taken up that offer?

Annabelle Ewing

That is not a constructive comment. My door is always open. I have said that from the outset, and nobody has come to make any constructive suggestions at all.

As I have mentioned, some of the instances that have been set forth, particularly in the individual submissions, refer to the fact that all fans are being criminalised unduly. I do not accept as a matter of fact that the evidence shows that that is the case. I do not believe that. I find it difficult to get into the mind of somebody who says that the act is criminalising all football fans when the evidence patently shows that that is not the case. I struggle to understand why they hold that view when the evidence is to the contrary. By the same token, I note that people have strong views on both sides, which fact the committee will want to reflect on in its deliberations.

Ben Macpherson

I want to touch on the threatening communications aspect of the current act and section 6, in particular, about which the Scottish Council of Jewish Communities remarked:

“We would deplore the message that repeal of section 6 would inevitably send both to perpetrators and victims of threatening communications, as well as the fact that it would be more difficult for such offences to be prosecuted.”

In your opening remarks, you referred to the extraterritorial element in section 6. Indeed, evidence from the Crown Office and Procurator Fiscal Service referred to its benefits as well. Will you elaborate on why repeal of section 6 would be, according to the Government’s evidence, “deeply problematic”?

Annabelle Ewing

Section 6 has provided some clarity. For the first time in Scots law it has introduced a specific offence of using threatening communications to stir up religious hatred. That offence existed down south but it was not a specific offence in Scotland, so the Crown Office now has a tool available to it when the circumstances of an incident are relevant. As I have mentioned, the act provides for extraterritorial application, which proved to be useful in a recent case. I do not have the details of that case to hand and I do not know whether Craig French does.

Craig French (Scottish Government)

I do not think that the recent case involved extraterritoriality as such, but there is an extraterritorial aspect to section 6, which is that people beyond Scotland sending messages that are intended to be read by a Scottish audience about a person in Scotland are encompassed by the reach of the act. That aspect would obviously be lost on repeal.

For the sake of completeness, I should go back to Mr Kerr’s point about gaps, as the committee may find that useful. It is accepted by everyone who has given evidence—and it would be my view—that there is no specific crime of incitement to religious hatred in Scotland outside section 6 of the act, and I suspect that that might be a relevant gap for the committee to consider.

Ben Macpherson

Thank you. That is helpful. We have heard different comments on section 6. For example, Dr Webster asserted that it fails to distinguish hatred from abuse, thereby conflating the two and criminalising both. Police Scotland, in written evidence, said that section 6 “is narrow in scope”, which has made its broad use challenging for the police. Could you comment on those concerns?

Annabelle Ewing

I do not agree with Dr Webster’s conclusion in that regard.

As for Police Scotland’s view that the scope of section 6 might be narrow, my door is open and I am happy to discuss the point with Police Scotland. We hold regular discussions about many issues, including the 2012 act. If there are issues that it wishes to bring to my attention, I will be happy to look at those.

Ben Macpherson

Thank you.

Maurice Corry

Could you comment on the suggestion that the 2012 act has made tackling sectarianism in the context of football matches much more difficult?

Annabelle Ewing

I do not believe that that is the case. I am not quite sure what triggered the member’s question.

Maurice Corry

Does the 2012 act make it more difficult for the police officer who has to deal with the issue to understand when he or she can bring a charge?

Annabelle Ewing

As I have said, the Lord Advocate’s guidelines make it clear in which circumstances that can happen. Under the guidelines, it is a requirement to exercise common sense, to reflect football fan rivalry and to act proportionately. Police officers have been trained in the approach that they should take to various pieces of legislation, including the 2012 act.

It is important to remember that the act makes no provision for policing, which is an operational matter for Police Scotland. I think that it was Police Scotland that suggested, in its evidence, that around 85 per cent of the cases that were brought to the Crown Office were proceeded with. Given that so many cases were proceeded with, the Crown Office felt that the police had a good understanding of the legislation.

It is also fair to say, on the basis of what it said in its evidence, that Police Scotland does not think that much would change for policing if the 2012 act were to be repealed—it would be business as usual.

Maurice Corry

There are groups of fans who feel that their side has been unfairly targeted. Do you think that that is a reasonable representation of the facts?

Annabelle Ewing

No, I do not think that the evidence bears that out. The example was given by Police Scotland that charges had been brought against fans from about 24 of the 42 professional clubs in Scotland, which indicates that the legislation, rather than being applied to a particular kind of football fan, is applied erga omnes. It is applied with respect to the behaviour that is exhibited, not the team that the fan supports. It is the behaviour of the individual concerned that brings them to the attention of the police in the context of the 2012 act.

Maurice Corry

As a lawyer, you will realise that sectarianism is not defined in Scots law. Will it ever be possible to define sectarianism in a Scottish context? That is quite an important issue.

Annabelle Ewing

That is an interesting question. The original intention of the 2012 act was that it should go wider than sectarianism. However, it is interesting that, in the interim period, Dr Morrow’s advisory group on tackling sectarianism in Scotland has come up with a definition of sectarianism. I think that some work has been done with grass-roots organisations to get feedback on what people feel about that definition. We will be happy to reflect on where we are with that and whether it would be advisable, in all circumstances, to seek to proceed with a definition of sectarianism. The member will know that, as I said earlier, in coming up with a particular definition in law, it is necessary to be careful not to be unduly restrictive in how that definition is phrased.

It is interesting that the advisory group has done that work, and it would be timely to have a look at it.

Maurice Corry

Thank you, minister.

The Convener

That concludes the committee’s questions, so I invite James Kelly to ask any questions that he would like to ask on the bill.

James Kelly (Glasgow) (Lab)

Good morning, minister. You have made a number of comments about the behaviour of football fans and the atmosphere around football stadiums. What informs your view on that? How many football matches have you attended over the years?

Annabelle Ewing

My last football match was the first Rangers versus Celtic game after recent developments affecting Rangers Football Club, which I think was in September 2016, at Celtic park.

James Kelly

Have you ever actually paid to enter a football match?

Annabelle Ewing

I was there as minister, but I would have been happy to pay. I was at least tolerated by Celtic Football Club, and I visited the command centre and all the rest of it. If I am asked to pay, I am happy to do that.

James Kelly

Yes—but from what you say, I do not think that you have actually paid to enter a football match.

Annabelle Ewing

I have done in the past, but it is the national game that I perhaps find more interesting. I have been to football and I have paid, but the most recent match I attended was that one in September 2016.

James Kelly

Your experience of club football is somewhat limited, however.

Annabelle Ewing

I am not a hugely experienced club football person and have never pretended to be one.

James Kelly

Can you understand the criticisms that are made of you and your Government by people who feel that you have formed your view from your ministerial office and not from being at football stadiums and sharing the experiences of football supporters?

Annabelle Ewing

My job as minister is to work with all the relevant stakeholders and others, to read the evidence, to listen, to work hard and to reflect on the evidence that is before me and reach conclusions. For example, I have evidence on the claim that the 2012 act has criminalised football fans. The act has dealt with cases in which the behaviour itself has attracted attention, irrespective of club, football strip, affiliation or any other issue. That is the evidence that is before me and that has been given to the committee by, for example, Police Scotland.

James Kelly

On another issue, if a person goes to a religious venue such as a Church of Scotland venue, a Catholic church or a mosque and behaves in a hateful manner towards people who are entering that venue, how are they dealt with in the courts?

Annabelle Ewing

That would depend on the individual facts and circumstances of each case. How the person was dealt with would depend on what the behaviour was and all the rest of it. It is difficult to make a general sweeping statement, because there is not a template. Individual behaviour attracts attention. The answer depends on what the behaviour is and on the facts and circumstances.

I do not know whether my officials want to add anything.

Craig French

I can try to assist. The minister has given the correct answer, which is that the facts and circumstances—the context—are everything in determining whether a crime has been committed. To take Mr Kelly’s example, at the highest level, if a person were to run into a church brandishing and firing a machinegun, that would result in one set of charges. If they were to run into a church and physically assault somebody by punching them, that would be a different set of charges, and if they were to try to incite religious hatred, that too would attract a different set of charges. The specific facts and circumstances are important in determining the charges, so it is not possible to give a set answer without knowing the specifics.

James Kelly

I will be a bit more specific, then. If a person were to stand outside a religious venue and incite religious hatred and abuse people who were entering the venue, how would they be prosecuted through the courts?

Craig French

If the action involved threatening communications and if the person was looking to stir up religious hatred by issuing unrecorded speech such as a banner or leaflets that were threatening in that sense, that might be dealt with under section 6 of the 2012 act. Alternatively, it could be dealt with under breach of the peace or the Criminal Justice and Licensing (Scotland) Act 2010. There is a range of options. The specifics—what the person says or does and who else is there at the time—really matter.

James Kelly

So, if a person were to exhibit the same behaviour at a football stadium, that would clearly be unacceptable and would have to be prosecuted through the courts and the 2012 act would be used. Why do we need two sets of laws? Why do we need a particular set of laws for someone who exhibits religious hatred in the street or outside a religious venue, and a different set of laws for football grounds?

Annabelle Ewing

The idea of laws overlapping is not unique to football. I gave the example of the Emergency Workers (Scotland) Act 2005—other laws exist, but it was felt that there was a very specific problem that needed to be addressed. The 2005 act was duly passed by this Parliament. An overlap of laws is not a new thing.

On your question, “Why the act?” we have had a good go at that this morning. It exists because there was deemed to be a particular problem in and around football that needed to be addressed. I have already said that legislation, in and of itself, is not a panacea—it is not the only strand that is available in seeking to improve matters. Nonetheless, it was felt that legislation was a necessary response to behaviour that was unacceptable to the vast majority of football fans and people in society.

The Convener

Before Mr Kelly goes on, minister, you have made a couple of references to the Emergency Workers (Scotland) Act 2005. I was on the committee when we passed that act, which was very short and very problematic. For example, if someone disappeared through a door and was no longer in an emergency environment and the same sort of attack were to happen, it would not necessarily be covered by the act. In the absence of post-legislative scrutiny, it may be helpful to make that point to balance our understanding of how effective that act has been.

Annabelle Ewing

Okay—but the 2005 act is on the statute book. Nobody has come forward with a bill to repeal it: it is still there and can be used.

James Kelly

You have spoken a lot about the message and the signals that are sent. Surely, one effective piece of legislation that makes it clear that religious hatred and such behaviours are unacceptable in the football ground, in the street and outside religious venues would send a much stronger message than having multiple pieces of legislation does.

Annabelle Ewing

Lord Bracadale is looking, inter alia, at consolidation. That was part of his remit, so Mr Kelly’s point is fair, in that regard. However, in terms of whether the behaviour will be tackled, both section 1 and section 6 of the 2012 act provide tools for looking at the limitations in the existing legislation. I have dealt with that at quite some length, particularly in response to Mr McArthur. The provisions allow such behaviour to be prosecuted. We have heard that it will be business as usual in terms of policing football matches, certainly as far as Police Scotland is concerned, even in the event that the 2012 act is repealed.

James Kelly

Okay.

On another issue, you will be aware that in August 2016, at a champions league qualifier match, the Celtic support took part in a display in support of Palestine. That was then supported by motions in Parliament that were lodged by your colleague James Dornan and by Ross Greer. The police took the view at the time that the demonstration was not in breach of the 2012 act. Do you have a view on that?

Annabelle Ewing

Individual examples are, in the first instance, for the police to act on, in accordance with the law and their training, having taken cognisance of the Lord Advocate’s guidelines. It is then for the Crown Office to consider whatever the police pass on to it. Absent any other facts and circumstances, it is difficult to come to a particular conclusion. As has been mentioned, the importance of the law is that it deals with the facts and circumstances of each case, all of which are relevant in reaching conclusions. Otherwise, we would have a very dangerous situation in which we did not look at each individual fact and circumstance but, rather, took some sort of blanket approach.

James Kelly

Do you accept the view that the police took on the occasion that I mentioned?

Annabelle Ewing

I do not have all the facts before me, Mr Kelly. I would need to know all the circumstances of the case.

James Kelly

The case is a matter of public record, minister.

Annabelle Ewing

Yes—but I do not have information on all the circumstances of the case and on behaviour that took place around the banner and so forth. If James Kelly wishes to give me chapter and verse on that, he may do so.

James Kelly

It is a matter of public record that the police concluded that there were no relevant charges under the 2012 act. You can understand people’s confusion, because that was a clear political display. People see other political displays that take place at football matches being captured under the act. For example, at a recent game between Rangers and Partick Thistle, at the height of the Catalan crisis, a person who was brandishing a Catalan flag was ejected from the game. Surely you can see the inconsistencies here, minister?

Annabelle Ewing

As I said, each case depends on its facts and circumstances. If James Kelly were to look in detail at the Lord Advocate’s guidelines, which were updated in August 2015, he would find some helpful information on the benchmarks that are to be used to help the police and the Crown Office in their approach. As I said, the facts and the circumstances are very important—you have to look at the attendant circumstances of any particular behaviour. There are particular provisions in the Lord Advocate’s guidelines in relation to banners, flags, chants and songs. I am happy to read those out, but I suspect that the convener would prefer it if I did not.

The Convener

We really have to move on.

Annabelle Ewing

I am sure that James Kelly is aware of the guidelines.

James Kelly

Can you understand why people think that that reinforces the point that was made by the Scottish Human Rights Commission on legal certainty? You are not being clear, minister. If people are not clear what is or is not a criminal act under the law, how can there be legal certainty?

Annabelle Ewing

I have already responded to the points that were raised in the Scottish Human Rights Commission submission. Again, I cite the case of Donnelly and Walsh v Procurator Fiscal, which went to the appeal court in March 2015, and in which three judges ruled that article 7 of the European convention on human rights was not engaged on the issue of the certainty of the law. That was the ruling of Scotland’s court of appeal. I am sure that the member will consider that that judgment has some validity in the context of the debate.

James Kelly

Are you a member of the Law Society of Scotland, minister?

Annabelle Ewing

Yes, I am.

James Kelly

In that case, would you give weight to the views of the Law Society?

Annabelle Ewing

As the minister, I would listen to the views of the Law Society. I am a member and I have declared that interest on many occasions. I will do it again quickly: I am a member of the Law Society of Scotland and hold a current practising certificate, although I am not currently practising.

James Kelly

The Law Society submission on the bill says:

“In 2015-2016, 287 charges were brought under Section 1 of the 2012 Act and we are of the view that all of them could have been prosecuted under pre-existing legislation or at common law.”

Surely that opinion is credible, given that it comes from the Law Society, which has looked at the issue in detail. Will you give that opinion some weight?

Annabelle Ewing

I listen to the Law Society, just as I listen to every other organisation or person—anonymous or otherwise—that makes a submission. As I have said already, the issue about the extra tool that is provided by the 2012 act was clearly set out by the Crown Office in its oral evidence before the committee. In relation to section 1, the Crown Office explained that, under the pre-existing laws, there was no extraterritorial application and a different evidential test, which would mean that you would impose limitations if you were to repeal the act without a viable alternative. On section 6, we have heard that the extraterritorial effect is not applicable under pre-existing legislation.

There are also differences in sentencing opportunities: the pre-existing legislation’s approach is under summary procedure, while the 2012 act’s is under solemn procedure. The act introduced to Scots law, for the first time, a statutory provision that criminalises threats that are made with the intention to stir up religious hatred. If we were to repeal the act without a viable alternative being put in place, we would take all that away, and the provision would not be available to the police and the Crown Office to deal with behaviour that fell within such circumstances. That is the position, as has been clearly enunciated by the Crown Office before the committee.

James Kelly

On section 6, do you accept the police’s view that the legal threshold is too high and that it is not effective, as is evidenced by there being a small number of prosecutions and the Communications Act 2003 having to be used instead?

Annabelle Ewing

With any statute, we do not decide whether it is useful by looking at how often recourse is made to it. There are many laws out there that have been passed, for different reasons, by this Parliament and the UK Parliament. There is not a yearly swoop to see how many charges have been made, and we do not say that we have to disregard certain statutes and repeal them just because, in that year, charges were not brought thereunder. It is clear that each case falls within its own facts and circumstances. There will be circumstances in which section 6 will be the appropriate route and there will be others in which it will not. Each case is determined by its own facts and circumstances, which is entirely the right approach in any civilised legal system.

The Convener

That concludes our questioning. I thank the minister and her officials for attending.

We will move into private session. Our next meeting will be on Tuesday 12 December, when we will continue our consideration of the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill. We will also complete our consideration of the Domestic Abuse (Scotland) Bill at stage 2.

I suspend the meeting to allow the gallery to be cleared.

The Convener

Agenda item 7 is our sixth evidence session on the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill. I refer members to paper 4, which is a note by the clerk, and paper 5, which is a private paper.

I welcome James Kelly MSP, the member in charge of the bill; Mary Dinsdale, from the non-Government bills unit of the Scottish Parliament; and Catriona McCallum, from the Scottish Parliament solicitor’s office. I invite Mr Kelly to make a short opening statement.

James Kelly (Glasgow) (Lab)

I thank the convener, members of the committee and the clerks for the efficient and professional way in which evidence has been taken from members of the public and various experts. The evidence sessions have been very helpful indeed.

I have come to this morning’s committee meeting to submit evidence and to speak in support of my bill to repeal the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. The evidence that has been received by the committee has overwhelmingly supported repeal. More than three quarters of the written submissions from individuals supported full repeal, as did more than half of those from organisations. The evidence sessions have been very instructive. We have heard that football supporters feel that they have been unfairly targeted and do not support the existing legislation, which they have shown to be ineffective. One witness gave the example of a league one play-off match between Partick Thistle and St Johnstone at which supporters who were doing the conga were subject to the attention of and warned by the police.

The legal representations from the Law Society of Scotland and the Glasgow Bar Association have demonstrated that the law is not fit for purpose. The Law Society has established that all prosecutions brought forward in 2016-17 could have been captured by pre-existing legislation. It is concerned that the scope is too wide and that the legislation is potentially open to further legal challenge; that concern has been reinforced by the Scottish Human Rights Commission, which said that the act is potentially in breach of the European convention on human rights—that is a serious concern for the committee.

We have heard from academics about how freedom of speech has been impinged and how the 2012 act has not been effective in achieving its original objective.

In summary, the act has been discredited. It unfairly targets football fans, it is not an effective piece of legislation and it is not achieving the outcomes that it set out to achieve. I submit to the committee my full support for repeal of the act.

The Convener

Thank you for that statement. We move to questions from members, starting with George Adam.

George Adam (Paisley) (SNP)

Good morning, Mr Kelly. As you will no doubt be aware, I have been following a particular line of questioning during consideration of the bill. There is an urban myth that this matter was brought to a head by the shame game and two managers going toe to toe. It might have brought it to a head, but there had been a steady and systematic worsening of behaviour at games both on and off the field. Indeed, things took on a more sinister tone around the same time, with Trish Godman, who at the time was the Parliament’s Deputy Presiding Officer, and the late Paul McBride getting parcel bombs in the post. Neil Lennon was targeted in the same way, with bullets as well as a bomb. When you think back over that timeline, surely you agree that the Scottish Government was right to introduce this legislation.

James Kelly

I do not agree with your proposition. To put this in context, I have been a football supporter for more than 40 years now—I attended my first football match in 1969—and I can well remember a time, particularly around the late 1970s and early 1980s, when there was a lot of public disorder at football matches. There were a lot of offensive songs being sung by both sets of supporters at games, clashes inside and outside grounds and a tense atmosphere at matches. I am not seeking to sugarcoat any incidents that have happened over the past five or six years or to downplay the incidents that you have described of people being threatened with bullets in the post, but the fact is that, although at the game in March 2011 that you are referring to there were 34 arrests, they were mainly for public order offences, not for what people would term sectarian singing. There was a clash between two coaches at the end of the game, and that became the image that dominated media coverage in the coming days and which caused such a reaction.

It is also fair to point out that the incident happened in the run-up to the 2011 election—

George Adam

Mr Kelly, do you—

James Kelly

Please let me answer the question.

The Convener

Let Mr Kelly answer, Mr Adam, and then you can come in.

James Kelly

It happened in the run-up to the 2011 election; the Scottish National Party captured the issue and, in the aftermath of the election, it rushed through the legislation against the will of all the Opposition parties in the Scottish Parliament.

George Adam

So are you discounting the fact that Neil Lennon was sent bullets in the post and that the Deputy Presiding Officer and Paul McBride QC, who had specific Celtic connections, were sent parcel bombs? Are you saying that things were not so bad then and that I am exaggerating how things were back in that period?

James Kelly

No. If you had listened to me, you would have heard that I said that I was not discounting those very serious incidents, which were quite correctly dealt with by the police and prosecutors at the time. What I was trying to do was put behaviour at football in a 40-year context, and I believe that the situation with behaviour was much more serious in the 1970s and 1980s. Things have dramatically improved since the Hillsborough disaster in 1989, the advent of the Taylor report and the introduction of all-seater stadiums. I am not downplaying any misbehaviour at football matches in recent times—I think that it must be treated seriously—but we need to put things in context, and what we saw was a complete overreaction by the SNP Government in pushing through the legislation against the will of all the Opposition parties.

George Adam

Do you believe that it is correct for anyone at football to sing a song that supports active terrorism?

James Kelly

I go to football as a supporter and I sing football songs. I believe that that is what everyone should do. If anyone sings in a hateful manner at a religious grouping or in terms of race or sex, that is totally unacceptable, and those people should be brought to justice. However, I also believe that people have the right to freedom of political expression, within limits.

Mr Adam, I must say that you advance that point of view with some lack of credibility. In 2015, you signed a motion lodged in this Parliament by Kenny MacAskill celebrating the Easter rising. If you went along to a football match and you took part in songs commemorating the Easter rising, you might find yourself spending time in a police cell.

George Adam

I was talking about specific acts of terrorism.

James Kelly

I have made my position clear: people at football should sing football songs. If people sing or demonstrate in a hateful manner, whether out in the street, in a club, in a local community or at a football ground, that is unacceptable, and those people should be prosecuted under section 74 of the Criminal Justice (Scotland) Act 2003 in relation to religious aggravation. However, people have the right to freedom of expression, as long as they are not participating in a hateful manner.

Last week, I used the example of the Palestinian display at Celtic park, which the minister was not able to deal with. That display is a legitimate right to political expression; it should be allowed.

George Adam

With that in mind, is it acceptable to sing the famine song or “The Roll of Honour” at a football match?

James Kelly

I am not going to run through a—

George Adam

I am just asking about those two songs.

James Kelly

No, I am not going to run through a song book, particularly as—

The Convener

I will stop you there. We now have an hour and a half, more or less, to cover a lot of areas. George Adam indicated that he has areas of interest—as do other members—that he wants to question James Kelly about. In fairness to Mr Kelly, and to the other members, I would be grateful if all members got on with the line of questioning that they indicated that they had an interest in.

George Adam

Okay. I will finish with one more question. James Kelly mentioned the academics who came along to the committee. Dr Stuart Waiton says that it is a football fan’s right to be offensive at football. Do you agree with that?

James Kelly

No. As I have made clear, people should sing football songs at the football ground. I recognise that people have the right to political expression, but they do not have the right to be hateful towards religious groups, or to be hateful because of a person’s sex or race—

George Adam

Do you disagree with Dr Waiton?

James Kelly

I am laying out my position. I have made it clear throughout that people should sing football songs. I support the right to legitimate political expression, but I do not support hateful songs or hateful actions, whether that be in a football ground, in the street, in a local community or outside a religious venue.

The Convener

I bring in Fulton MacGregor briefly. If it is not a brief matter, we will have to move on.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Welcome, Mr Kelly. You said that people should sing football songs at football matches. What do you say to people who do not go to matches who find those songs offensive?

James Kelly

Are you asking about people finding football songs offensive?

Fulton MacGregor

Yes.

James Kelly

I would hope that, if people were singing football songs, they were getting behind their club on the pitch. I do not see what point you are making.

Fulton MacGregor

You are declaring that some songs are football songs. If other people find those songs offensive, is that just tough luck for them?

James Kelly

With all due respect, I do not think that you understand the position that I am outlining. I am saying that, as a football supporter, I go to the football to support my club. I do that by singing football songs that get behind the team on the park. I do not understand how that is offensive.

Liam Kerr

The committee has heard a lot about the message that repealing the 2012 act would send not only to the general public but to football fans. It has been suggested to the committee that repeal could lead some supporters to believe that certain behaviours are being decriminalised. How do you respond to that?

James Kelly

There has been a lot of discussion about the message—and a lot of simplification and generalisation about it. The message around the legislation is quite a weak one. The legislation had the support of only one political party at the time that the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill was passed. That continues to be the case—the 2012 act has the support of only one political party in this Parliament. The legislation has also been called into question by legal groups such as the Law Society. It is bad law. There are serious issues about the overreach of the law.

What we have with the legislation is a disjointed approach. We do not have full support from political parties. We do not have full support from legal organisations. We do not have full support from football supporters and football clubs. The legislation has been called into question by human rights groups. One commentator described it as the worst piece of legislation that has ever been passed by the Scottish Parliament. The fact that opinions on the legislation are so divided reinforces that view. We are not, therefore, sending a strong message.

On the issue of moving forward with the decriminalisation of certain actions, what is needed is a more unified approach. For example, the singing of hateful songs against religious groupings can be prosecuted under section 74 of the Criminal Justice (Scotland) Act 2003. I think that that is something that everyone would agree on. Getting all the different groups behind the one message that those hateful songs are not appropriate and that there is legislation to deal with that, and tying that into education and better collaboration between fans, police and clubs, would be a much more effective way of going forward.

Liam Kerr

I want to press you on the message. Are you aware of what message is actually being heard by football fans? Has anyone adduced any evidence or data on that? If we accept that we can isolate who is singing the songs, to within a reasonable population, has anyone gathered any data on what those people understood when the legislation was brought in—what message was heard by those groups—and what message those groups would hear if that legislation were taken away?

James Kelly

I do not have data directly about that. I would say that the message that those who support this legislation have sought to send is that it is about tackling sectarian behaviour. That is despite the fact that that is not stated in the act and that that behaviour is not defined in the act. I think that the act has failed in that regard. The latest statistics on religious hate crime, which have been provided to the committee, show that there were 719 charges relating to religious hate crime in 2016-17. That is the highest that the figure has been in the past four years, which shows that there is a serious problem. However, only 46 of those charges were under the 2012 act, so less than 7 per cent of the charges related to football. That demonstrates that we have a serious problem with religious hate crime in Scotland, which is something that should concern all of us, but the idea that it all carries on around football has been blown out of the water by the fact that only 7 per cent of those charges relate to football.

I think that confusing messages are being sent to those who are at the football. As some people have said to you in evidence, the issue of what counts as criminal activity and what will and will not be captured under the act is confusing.

My opening position is that people should sing football songs. However, I recognise that people sing a range of songs, and people are not clear about what is and what is not criminal under the act. That point is reinforced by what the Law Society said about the confusing definitions about what constitutes offensive behaviour.

Mairi Gougeon (Angus North and Mearns) (SNP)

You mentioned football songs in your reply to George Adam, and you mentioned football songs again just there. You say that you have been clear in what you have been trying to say, but George Adam asked specifically about the famine song and “Roll of Honour”. I have to admit that I do not regularly frequent football matches—when I do, it tends to be Brechin City matches—so I would like you to clarify what, to you, is a football song. Do those two songs count as football songs?

The Convener

I will stop you there. The clerks advise me that we need to stick to the provisions of the bill. We have already covered this ground and I do not think that we are going to move much further on it.

Mairi Gougeon, is there anything else that you want to ask?

Mairi Gougeon

There are some things that I would like to ask, but I think it would be an important clarification if we were to understand what the member means by a football song. It is important to get that in the Official Report.

James Kelly

I am quite happy to answer, although I have already been clear. A football song is a song relating to football that gets behind the football team on the pitch. I have also said that hateful songs that are abusive towards religious groups or are based on race or gender are totally unacceptable, but I understand and accept that, leaving aside hateful demonstrations or songs, there should be freedom of expression.

For example, at the 1988 Scottish cup final, I took part in a political demonstration against the Conservative Prime Minister Margaret Thatcher, who was presenting the trophy that day. There was a red card display. That is a legitimate act of political expression within a football ground. Some might argue that that kind of act might be criminalised under the 2012 act.

I believe in the right to freedom of political expression. I do not believe that that should include hateful songs or demonstrations, and I support the idea that people should concentrate on getting behind their football teams.

Mairi Gougeon

I want to follow on from Liam Kerr’s questions about the overall message that we send out. We received evidence from a number of different groups. In its submission, the Church of Scotland said:

“repealing the Act without replacement would be a symbol that our elected representatives do not think that behaving offensively or sending threatening communications is problematic. At a time of rising levels of Anti-Semitism and Islamophobia and where Sectarianism remains a reality of life in Scotland, the wider implications for repeal should be taken into account.”

The Church of Scotland was by no means alone in that point. Stonewall Scotland and the Scottish Council of Jewish Communities expressed similar concerns. How do you respond to those concerns?

James Kelly

I do not favour keeping in place legislation that targets football fans and, as I said to Mr Kerr, has quite a weak message.

In terms of protections for particular groups, as the Law Society of Scotland and the Scottish Human Rights Commission have reiterated, sections 1 to 5 of the 2012 act mean that the legislation could be open to legal challenge. It is weak in that regard. The police also told us that section 6 is too tightly drafted and is not used much at all, except in the context of threatening communications.

I do not believe that keeping weak legislation in place is effective in offering either a message or protection. The way forward is to reinforce the credible existing laws, to do more with education to get across the message of tolerance in society, and for clubs, the police and fans to work together, as was suggested by the Scottish Football Supporters Association. That is the way forward.

Mairi Gougeon

I do not think that it is fair to pick out some of the evidence that we have heard and some of the people who gave evidence. By doing that, you are suggesting that other groups who gave evidence are somehow less legitimate. This committee has reviewed a lot of legislation and everybody is entitled to express their opinion, and all those views are legitimate. You do not just pick and choose the ones that agree with your own point of view.

I have another question about the questions that you put to the minister last week. We have heard a lot about the rights of football fans and their views of the legislation. Your line of questioning to the minister suggested that if someone does not attend football regularly, they cannot really have an opinion on the legislation. However, the behaviour of fans at football has a wider impact, for example on people who are commuting on trains. We heard about incidents that have happened on trains, for example. What about the rights of those people? Are they factored into your thinking at all? Do you not agree that pushing the repeal of the act ignores the rights of people more widely in the community, such as those who are just commuting on a train?

The Convener

Could members please stick to the line of questioning, more or less? There is some latitude, but you are being most selfish and unfair to other members when you go off at a tangent when we have so much to cover. I will allow as much latitude as possible, but please bear that in mind.

James Kelly

I take seriously all the evidence that has been submitted. I do not know where Mairi Gougeon is coming from in saying that I am picking particular bits of evidence, because I obviously look at the evidence very seriously. Last week, Ms Gougeon referred to a statistic that there has been a 50 per cent rise in the number of football-related incidents on public transport. I was not able to source that evidence, but the statistics that have been provided to the committee show that incidents on public transport have gone down by half. It is important to be accurate.

On the general point, people will be offered better protection and will feel safer if effective legislation is in place, but the act is not effective or credible legislation. Only when we have legislation that takes a more unified approach and looks at the wider issue of religious hate crime will we start to move forward credibly.

Liam McArthur

I want to follow on from Mairi Gougeon’s questions. She fairly articulated the concerns that have been raised with us about the message that would be sent if we repeal the act. We all accept that legislation can send a strong message, but is there not a risk that we raise false confidence and false expectations about the protections that are provided if we indulge the view that the 2012 act provides protection when, from all the statistics that we have seen, it patently does not? Is that not an equal risk when it comes to the message that we send out?

James Kelly

It is important to understand that the issue is not just about the legislation on its own. As I said in answer to previous questions, when I looked at the statistics, I was shocked to see that the religious hate crime figure is higher now than in each of the three previous years. That is a real issue. Some people who supported the bill in 2012 did so on the well-founded basis that they wanted to try to tackle religious intolerance. However, the situation shows that we need a much wider discussion. In the information that has been provided to the committee, there is no analysis as to why there has been that increase to 719 charges. We need an assessment of that and proper action through Scottish Government justice policy, not just legislation.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I want to ask about the feedback that you have had from fans who support the repeal. I am a bit confused as to what they actually want to do when they go to a football match. How is the act impeding their enjoyment of a football match?

James Kelly

First and foremost, the main objection is that we have a piece of legislation that targets football fans. One of the witnesses said in evidence that there is no legislation in place in countries across Europe such as Poland and Turkey, where there are serious crowd disorder problems. People fundamentally object to the idea of having a piece of legislation that specifically targets football fans.

A linked issue is the way in which the legislation has been policed. Interestingly, we see this morning that the former justice secretary Kenny MacAskill has said that the police are “run ragged” and do not have time to investigate low-level crime. People will therefore find it staggering that we spend £2 million supporting the police unit that films supporters going into grounds and closed-circuit television recording, as they have been told that we might not have the resources to deal with antisocial behaviour or acts of vandalism in their streets. In summary, football supporters do not like the fact that they are being specifically targeted with legislation that is pretty unique in Europe and that they are filmed going into football grounds. That has resulted in their relationship with the police deteriorating.

Rona Mackay

You referred to what some people would term sectarian singing. I have been to football matches and heard what I would term sectarian singing. Do you deny that sectarian singing happens at football matches?

James Kelly

No. I never said that.

Rona Mackay

You referred to what some people would term sectarian singing. I just want to know what you think sectarian singing is.

James Kelly

With all due respect, I have made it clear throughout the evidence session that I regard the singing of hateful songs against religious groups, whether that takes place in a football ground, outside a religious venue, in a club or in a pub as totally unacceptable and that it should be prosecuted. Section 74 of the Criminal Justice (Scotland) Act 2003 exists in order to do that. I cannot be any clearer that I do not find that behaviour acceptable.

Rona Mackay

If the repeal bill is passed, what should happen to the cases that are currently going through the system?

James Kelly

As I have outlined in the transitional arrangements, any cases that are currently going through the system should fall at the date of royal assent.

Rona Mackay

Have you had any contact with the Lord Advocate about that?

James Kelly

No, I have not. Obviously, I have run a consultation on the bill, but there has not been any feedback on that from the Lord Advocate.

Rona Mackay

You have said quite a few times that the 2012 act is not needed because crimes that are committed under it are covered by other legislation.

James Kelly

Yes.

Rona Mackay

Is it your intention that cases that are currently going through the courts should be tried under the existing legislation? Is there any precedent for that happening?

James Kelly

That is really a matter for the legal authorities to consider as the bill makes its way through Parliament. My point of view, which the Law Society of Scotland has backed up, is that pre-existing legislation could capture all the cases that came through in 2016-17 and certainly any on-going cases.

Rona Mackay

I still struggle with the fact that you say that songs of hate and discrimination should be legislated against, but you want to repeal an act that specifically does that. I do not get that. If that is what you believe, why do you object to the 2012 act?

James Kelly

It is about good law. I believe that, if someone commits a hateful act outside a religious venue or in a club, a pub, a local community or a football ground, that is unacceptable and it can be prosecuted under section 74 of the Criminal Justice (Scotland) Act 2003. I believe that one piece of legislation is more effective than two pieces of legislation, and I do not understand why we need different pieces of legislation to prosecute unacceptable behaviour in different venues.

Rona Mackay

I do not understand why you should care about that.

James Kelly

I care because I care about good law and good practice. Having one law that covers the offences in all those places would be more effective than having two laws, particularly when one of the laws—the 2012 act—is so discredited.

Ben Macpherson

Good morning. You have highlighted issues with section 1 of the act. Have you received any representations from fans regarding the Lord Advocate’s guidelines?

James Kelly

Obviously the Lord Advocate’s guidelines are only guidelines; they are not legislation. It is the legislation that courts give primary priority to, and fans are concerned about interpretation of that legislation and the power that it gives individual police officers. As we heard in a previous evidence session, police officers have had to be trained in what might or might not be offensive behaviour, and under the 2012 act, if people begin to sing a song, the police officer is required to get into a particular mindset, ask himself, “Is this offensive? Would a reasonable person be offended by it? Is it likely to incite public disorder?” and to consider what his training manual says. I do not think that such law is effective, and supporters are concerned about the lack of clarity about what, under the act, is and is not criminal activity.

Ben Macpherson

I have the Lord Advocate’s guidelines in front of me but, because of the time, I will not read them out. However, your policy memorandum suggests that the bill will

“reduce fear for some people of attending football matches”,

but the Lord Advocate’s guidelines make it very clear that hateful behaviour, threatening behaviour and other offensive behaviour in relation to race, colour, nationality, ethnic origin, sexual orientation, transgender identity or disability are criminalised under the act. What I am interested in finding out is how, in removing those protections, your bill can

“reduce fear for some people of attending football matches”,

other than the fear of people who want to indulge in such behaviour of being caught.

James Kelly

The bill will reduce fear because it will remove legislation that is not working effectively and is targeting football fans. I do not think that a law that is as much contested as the 2012 act is, is effective in giving people proper protection. A more credible way of moving forward would be to reinforce the existing and more credible legislation.

There continues to be confusion about what is and is not legitimate under the 2012 act: indeed, we have heard from BEMIS (Scotland) on that very issue. I have reiterated throughout the process that hateful behaviour is unacceptable and should be captured under legislation; however, there are times when people are participating in acts of political expression or are celebrating their culture or particular dates, and there is a lot of confusion as to whether such activities are criminal under the 2012 act.

Ben Macpherson

That is an interesting and important point. What behaviours do you believe the 2012 act prevents fans from displaying? I know that the question has been asked several times, but I still find the behaviours that you say cannot be displayed to be very vague and ambiguous.

James Kelly

I have made it very clear that any hateful action towards groups or individuals is unacceptable and can be captured under legislation that existed prior to this act.

Ben Macpherson

Cannot that behaviour be captured under the 2012 act? That is the question that we are all interested in.

The Convener

Perhaps I can help a little bit here. Does not it depend on context? Something that could be hateful in one situation might not be hateful in another.

James Kelly

That is a point that the Law Society and a number of legal representatives have made. However, let me go back to the example that I highlighted last week to the minister, about a political demonstration in support of—

Ben Macpherson

Are you aware of any arrests that were made last week under the act?

James Kelly

I am sorry: are you talking about the Palestine demonstration?

Ben Macpherson

Yes.

James Kelly

As I said to the minister—

Ben Macpherson

I do not think that there were any arrests.

James Kelly

That is the point that I was going to make. As I said at the time, the police concluded that there was no action to be taken under the 2012 act. People see that, and then they see what happens with displays of support for Irish nationalism, Scottish nationalism and so on. I gave the example of someone with a Catalan flag being removed from Ibrox. There is confusion as to what is a legitimate expression of political support and what might be criminal under the act.

The Convener

We have several technical questions to get to on the provisions of the bill.

Ben Macpherson

I will move on to the next point that you have asked me to probe, convener.

The Convener

Now would be helpful, Mr Macpherson.

Ben Macpherson

The point about confusion is interesting. As Mr Kelly knows, the Scottish Government remains open to changing the legislation based on evidence. The Minister for Community Safety and Legal Affairs has made that point, but has also said that no suggestions for amendment have been forthcoming.

You have stated that you disagree with hateful behaviour at football matches, which view is shared by the minister and the Government. Why was a constructive process not undertaken to try to amend the 2012 act? Why did you take the fundamental approach of repeal? Surely we can work together as legislators in Parliament, with the Government, to try responsibly to improve the current legislation?

James Kelly

The fundamental difference between me and you, Mr Macpherson, and between me and the Government is that I disagree with the principle of having legislation that targets football fans. I have never been convinced of that case. In addition, as I have outlined, the legislation does not work well in practice.

Ben Macpherson

Am I right to say that you are against offensive behaviour and threatening communications, but it is the football part that you have a real issue with? Why, then, do you not suggest constructive amendments to engage in a wider process?

James Kelly

As I have said, I fundamentally disagree with the idea that football fans should be targeted by legislation. I accept that hateful behaviour in the street around a football ground should be tackled. However, that can be tackled more effectively through legislation that pre-dates the 2012 act. That would send a more unified message than the one that comes out of the controversies that surround the 2012 act.

Ben Macpherson

I say with respect, Mr Kelly, that the gaps in your argument are significant.

The Convener

We really must move on. Mr Kelly has made it clear that he does not agree with specific legislation tackling football fans.

Ben Macpherson

I am about to come on to my final point, convener.

The Convener

Thank you.

Ben Macpherson

One of the significant criticisms that we have heard from witnesses is that “no alternative”—their words, not mine—is proposed in respect of tackling offensive behaviour at football matches if you are successful in repealing the current legislation. Is it a fair criticism to say that there is “no alternative”?

James Kelly

That is not a fair criticism. As I have consistently outlined this morning, it is not the intention that we repeal the act and that is the end of the matter. As I have said, we then need a more unified approach. I am quite prepared to work with other political parties. We need to bring the football clubs, fans and police together.

Three strands are needed in the subsequent approach. First, we need to reinforce the more credible pre-existing legislation. Secondly, we need a more unified message—one that comes not just from Parliament but from others who are interested in tackling religious hate crime. We need a message of tolerance in our education system. I would take the cameras off the police vans and use the money to invest in anti-sectarian education in schools. Thirdly, as the Scottish Football Supporters Association outlined, we need a more collaborative approach between supporters, police and the clubs. That relationship has deteriorated in recent years and we need to bring them back together. Those three strands are the alternative.

Ben Macpherson

In support of the entire 2012 act or parts of it, Police Scotland, the Procurator Fiscal Service, Stonewall Scotland, the Equality Network, the Scottish Women’s Convention, Victim Support Scotland, the Church of Scotland, the Scottish Council of Jewish Communities and the Equality and Human Rights Commission all think that we should be looking for and collaborating on alternatives, and waiting until after the Bracadale review, rather than taking such a fundamental approach of repealing the act. Is it your assessment that they are all wrong?

The Convener

That question is on the Bracadale review; we will move on to that later. I think that James Kelly is aware of the evidence against his bill. That question is not moving us forward.

Maurice Corry

How would your proposed repeal of section 1 of the 2012 act provide legal certainty for football fans as to what is and what is not an offence in the context of a football match? How can greater clarity for fans be achieved?

James Kelly

I point you to the Law Society’s submission, which states quite clearly that all 377 charges under the 2012 act in 2016 could have been captured by pre-existing legislation. As I have said in answer to Mr Macpherson and others, I do not believe that it is good or effective law to have one set of legislation for inappropriate behaviour in a football ground and another for out in the street. I believe that the existing laws are more credible and will provide legal certainty.

As the Scottish Human Rights Commission pointed out, there would be potential ECHR breaches were the 2012 legislation to continue. Legal certainty is one of the issues that it highlighted as potentially making the law open to challenge. I believe that by taking the 2012 legislation off the stocks and using the more credible pre-existing legislation, we will be able to establish greater legal certainty.

Mary Fee

Good afternoon, Mr Kelly. The Government has referred to the distinctiveness of football culture and the problems that arise as a result of that culture. Has that characterisation had any impact on how the bill has been perceived by fans? Has isolating fans in that way added to the belief that they are being unfairly targeted?

James Kelly

With regard to football culture, I reiterate the point that I made at the start of this meeting that there has been a dramatic improvement in crowd behaviour and the atmosphere around football in the 40 years during which I have been attending games. We do not see the same degree of public disorder, drunken behaviour and fights inside and outside stadiums that we saw perhaps 30 years ago.

I am not trying in any way to sugarcoat this and say that there is no bad behaviour or public disorder, but it has to be seen in context, and in that context, football supporters cannot really understand why they have been targeted for legislation. For example, over the period that T in the Park was taking place, there were 3,600 incidents, including some serious instances of sexual assault and attempted murder, but no specific legislation has targeted concertgoers. When football fans see that, they question the validity of the legislation.

Mary Fee

The Government is also of the view that the offensive and threatening behaviour that is displayed by football fans occurs only in football and that no other sport attracts that element of sectarian and abusive behaviour. Do you agree with that position?

James Kelly

I would say that offensive or threatening behaviour—whether it takes place outside in the street, in a pub or a club, or at a football ground—is totally unacceptable, and we need effective and consistent legislation to target it. I fail to understand why we need a particular piece of legislation that focuses on what goes on in and around the football stadium. I do not think that that is effective and I do not think that it is fair to target football fans.

Mary Fee

The evidence that we have had from BEMIS suggests that the 2012 act has had a negligible effect on tackling hate crime. I note the comments in your earlier response about the figures that relate to religious hate crime. Do you think that the 2012 act has been successful in tackling that type of behaviour? If it has not, what do you think should be put in place?

James Kelly

I think that the 2012 act has not been successful. As I said earlier, there have been 719 religious hate crime incidents, less than 7 per cent of which took place in and around football stadiums. The scale of that shows that religious intolerance is still a big issue.

To look at it another way, if the purpose of the 2012 act was to reduce the number of non-football songs being sung, the reality is, as we have heard from a number of witnesses, that the legislation has not been effective in that regard and has not achieved its objective, given that, in some instances, fans are singing more and more non-football songs.

Mary Fee

Who should be responsible for tackling that behaviour?

James Kelly

As I said in a previous answer, we need more emphasis in the education system on promoting tolerance and respect. If we had a properly collaborative approach between fans, the police and football clubs, that could get the message across to fans much more directly where inappropriate songs are being sung. In discussions between fans and clubs, the clubs can be very frank in a way that is maybe not possible for police representatives in any discussions.

The Convener

Some people have suggested that it might make sense to wait for the outcome of the Bracadale review of hate crime before considering whether to repeal the 2012 act. It has been suggested that the review might increase clarity around the act. Can you address that point and say why you think that it is necessary to repeal the 2012 act now?

James Kelly

The Bracadale review has a very important job to do to make hate crime legislation more streamlined and efficient, and to offer people the protections that committee members have spoken about. I regard the review as a very important piece of work. However, Liam McArthur made the excellent point, when the issue was being discussed at last week’s meeting, that the committee is currently looking at the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill, which was driven by the Taylor report that was produced in 2013. There has been a big time gap between the production of that report and the introduction of a bill. I simply do not think that it is acceptable to leave in place, until the outcome of the Bracadale review and the work that it will drive, what I believe to be a fundamentally unfair piece of legislation that is not working properly.

Fulton MacGregor

You have consistently said that the legislation targets football fans, but others might say that it uniquely protects football fans and others from what is a serious issue in the Scottish context and that it recognises the important role that the game of football has in our country. I offer that point for comment.

Way back at the beginning of our evidence sessions, the committee heard a quite powerful statement from the Crown Office and Procurator Fiscal Service to the effect that repeal of the 2012 act would leave

“a gap in the law.”—[Official Report, Justice Committee, 6 October 2017; c 6.]

Have you had time to reflect on that point?

James Kelly

Can you elaborate on what you mean by “a gap in the law”?

Fulton MacGregor

The Crown Office and Procurator Fiscal Service said that there are powers in the 2012 act that allow it to prosecute certain offences that it would otherwise not be able to prosecute. The Crown Office stated quite strongly that repeal of the 2012 act would lead to a gap in the law. I want to know what your view of that point is.

James Kelly

My position has been consistent throughout in that I do not believe that there would be a gap in the law following repeal of the 2012 act. In terms of the offence in sections 1 to 5, the Law Society of Scotland has made it clear that all offences in relation to that could be captured under pre-existing legislation such as section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and section 74 of the Criminal Justice (Scotland) Act 2003.

There was a reasonable objective behind the provisions in section 6 of the 2012 act but, because of the way in which they were drafted and the fact that the threshold is too high, the reality is that, as the police have told us, cases of threatening communications have been prosecuted using section 127 of the Communications Act 2003 rather than section 6 of the 2012 act.

Fulton MacGregor

I want to move on to policing. The policy memorandum to your bill suggests—you have mentioned this already—that the relationship between fans and the police has deteriorated because of the 2012 act. However, you will be aware that the act makes no provision in relation to policing and that Police Scotland has told the committee in evidence that policing will not change if the act is repealed. Therefore, how would repealing the act improve the relationship between the police and fans?

James Kelly

As I have said a number of times, some serious work needs to be done to rebuild the relationship between fans, the police and clubs, and I believe that forums should be set up so that they can work together, as the Scottish Football Supporters Association has suggested.

In addition, serious consideration needs to be given to how matches are policed. Given that a former Cabinet Secretary for Justice has said that police officers are “run ragged” and will not be able to investigate low-level crime—which is a serious issue in itself—the public will wonder why resources are being wasted on filming football supporters inside and outside stadiums.

The key point is that serious work needs to be done by all concerned—the supporters, the clubs and the police—to rebuild the relationship between them.

Fulton MacGregor

You have mentioned the need to rebuild the relationship between fans and the police several times. Are you referring to all fans or just certain groups of fans? If you are referring to certain groups of fans, will you expand on which groups you mean?

James Kelly

Supporters have representatives who will liaise with the clubs and the police, but it is important that all fans are involved in the process. They need to have an avenue of communication through their representatives or directly to the police. For the policing of football to work, everybody needs to be involved in and committed to the process.

Fulton MacGregor

Do you think that all fans who go to football games have difficulties in their relationship with the police?

James Kelly

No, I am not saying that all fans have such difficulties. As the committee has heard in evidence, there are always on-going discussions with the police. I am not saying that there is no communication whatever, but it is quite clear that, as a result of the 2012 act and the way in which matches have been policed, there is more friction between the police and fans than there was previously. If we are to improve the atmosphere, we need to rebuild those relationships.

The Convener

Before you move on, Fulton, Mary Fee has a brief supplementary question.

Mary Fee

It is on the gap in the law, but Mr MacGregor might want to finish his current line of questioning.

Fulton MacGregor

Yes—I have not finished asking about policing.

Mr Kelly, you have talked about how the police have managed games—I think that you have referred to it as “disproportionate policing”. Can you give any examples of that and explain why you think that it was disproportionate? Why do you think that the police officers concerned did not respond appropriately, in the best way that they could, to the circumstances?

James Kelly

I will give two examples. I have seen cases in which the police have spent a good bit of the game filming supporters. I do not understand what that is for. I have also seen photographs of a police officer at a football game in Perth, who had photographs in front of him of fans who the police might regard as needing more of their attention. That sort of policing is at odds with the policing that we usually see in Scotland.

Fulton MacGregor

If the policing of football is such an important issue for you and such a fundamental driver of the approach that you have taken, why did you decide to seek repeal of the act instead of calling for a review of the policing of football? As I have said, repealing the act will not change the policing of football.

James Kelly

I have said consistently that I seek repeal of the act because it is unfair that football fans are being targeted. The legislation is not working.

Separately, work is needed with supporters, police and clubs to build a better relationship in order to get more effective policing. In addition, when a former justice secretary has told us that low-level crime cannot be investigated because police officers are “run ragged”, we need to have a serious look at the resources that we put in to police football games.

Fulton MacGregor

If you had taken your concerns about policing to the justice secretary, could you not have worked with him and the Scottish Government to find a better solution that may not have been as politically emotive as going for repeal of the act?

The Convener

That issue has already been covered. We will move on to the rest of the policing questions.

Maurice Corry

Do you concede that police officers must carry out their duties regardless of how unpopular a piece of legislation is?

James Kelly

I accept that the police need to take forward the law of the land that has been agreed to by Parliament, and, although I opposed the 2012 act and believe that it is deeply flawed, it is the current law. It puts the police in a difficult position. As I said earlier, offensive behaviour has such a wide definition within the bill that police officers have had to be trained to interpret what behaviour might be offensive.

Maurice Corry

I agree. Do you believe that repeal of the 2012 act would automatically repair the perceived loss of trust between police and fans?

James Kelly

Repeal of the act would not be the end of the matter, as I said in answer to Fulton MacGregor’s question. All of us would have the job of putting out the message that religious intolerance is unacceptable and pointing to effective legislation to deal with it. There is a big job to be done with both police and supporters—it is a two-way street—working together to build trust. A programme of work would be required following repeal of the act.

Maurice Corry

Do you agree that behavioural problems for policing occur only when certain teams play each other?

James Kelly

The police understandably target resources at games with bigger attendances or games at which there has been trouble previously. I understand how resources are allocated and games are prioritised.

Liam McArthur

From the evidence that we have heard, most of the criticism of the act relates to section 1, and we have covered the issue of whether you believe there would be a gap in the existing law in relation to section 1 if the 2012 act was repealed. In relation to section 6, the arguments from those who have given evidence seem to be more nuanced. What is your view on whether repeal would leave a gap in the law in relation to the offences that are covered by section 6?

James Kelly

In 2011, although I had disagreed fundamentally with sections 1 to 5, I could see the point in section 6, which deals with threatening communications. In the intervening five-year period, there has been an increase in internet usage and, sadly, online abuse, so we can see the case for that section.

However, the reality is that section 6 has not been widely used: there have been only 17 cases in those five years. As we heard from the police, the threshold is too high and prosecutors and the police tend to use section 127 of the Communications Act 2003.

I accept that, in relation to evidence that we have heard about cases that have been brought forward for indictment, the potential penalties under the 2012 act are greater than they would be under the Communications Act 2003. The Glasgow Bar Association indicated that one way forward might be to strengthen the powers under section 127 of the 2003 act. I recognise that as an issue and I am prepared to enter discussions with interested parties about it. I will actively consider it prior to the stage 1 vote.

Liam McArthur

That is helpful. A point was made earlier about the message that would be sent out by repeal. From what you are saying about the motivations that gave rise to the 2012 act, there might be more legitimate concerns about the message that would be sent out if section 6 were to be repealed. Is that fair?

James Kelly

I do not regard section 6 as fit for purpose. If the police and prosecutors are not using it, it is not effective. I accept that threatening communications and online abuse are major issues, and, as the person who is proposing repeal of the 2012 act, I need to be confident that appropriate measures and protections are in place to deal with those.

Mary Fee

I have a brief supplementary question on the potential gap in the law and the point that Fulton MacGregor raised with you. The 2012 act is used if someone is on the way to, at or watching a football match and they sing an offensive song or use offensive or abusive language. If an individual was to stand in the middle of a busy shopping centre or in the street on a random afternoon and sing such a song or use abusive or offensive language that caused offence, would the police be able to prosecute them for that?

James Kelly

Yes. If somebody stood in the middle of a shopping centre on a Tuesday afternoon when no football was being played and they were hateful and abusive towards somebody’s religion, they could be prosecuted under section 74 of the Criminal Justice (Scotland) Act 2003.

Mary Fee

Could they be prosecuted if they used sectarian language?

James Kelly

Yes, under that same provision.

The Convener

That concludes our questioning. Can I—

Rona Mackay

Convener, can I correct something that Mr Kelly said earlier?

The Convener

By all means, but Mr Kelly will have a right of reply.

Rona Mackay

It is on his comments about the 2012 act being incompatible with the ECHR. The appeal court considered a challenge under the ECHR and it was rejected. The Government, the Presiding Officer and the Parliament passed the 2012 act as being compatible with the ECHR. I just wanted to correct that. I believe that Mr Kelly said that it was incompatible.

James Kelly

No. That is not what I said, and I apologise if I misled you in any way. I said that the Scottish Human Rights Commission’s submission to the committee, which was based on hearing the evidence that the committee had taken in relation to the bill, expressed concern that there could be a breach of the ECHR, particularly in relation to legal certainty. The SHRC said that that is a serious issue and that there could be a future challenge.

Rona Mackay

That concern was not upheld—it was not accepted.

James Kelly

No. I understand that, when the legislation was originally laid before the Parliament, it required a compatibility certificate from the Presiding Officer, which it got. However, once legislation has been enacted and is in place, somebody can make a challenge, saying that the ECHR has been compromised or undermined, which is the Scottish Human Rights Commission’s point.

Rona Mackay

There was a challenge, but it was rejected in the appeal court.

James Kelly

That was one case, but it does not prevent other people from making challenges, as both the Scottish Human Rights Commission and the Law Society of Scotland have pointed out. The point that I am making is that there continues to be uncertainty about the legislation, which could be open to further challenge. I accept what you say about previous challenges, but that does not prevent someone from making a further challenge.

The Convener

That clarification was helpful. If there are definitely no other questions, that concludes our questioning. I thank James Kelly and the officials for attending.