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

Overview

This Bill was introduced by James Kelly MSP.

The Bill aims to repeal the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.

The purpose of the 2012 Act was to tackle offensive behaviour and threats by football supporters. This Bill repeals that Act.

Anyone committing an offence under the 2012 Act before the repeal date might still be convicted. Or the Procurator Fiscal could replace this charge with a similar charge. That might be a charge of “Breach of the peace”.

You can find out more in the document prepared on Behalf of James Kelly, MSP that explains the Bill.

Why the Bill was created

The 2012 Act relates to offensive behaviour and threats by supporters of football teams. This is associated with sectarian and other offensive behaviour, like chanting or singing. This can also be in communications such as social media posts and comments.

Sectarianism is a form of prejudice, discrimination or hatred towards others due to differences within a group.

The member in charge of the Bill considers that other laws may cover this type of behaviour. The member believes that the 2012 Act is not needed.

You can find out more in the document prepared on Behalf of James Kelly, MSP that explains the Bill.

The Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill became an Act on 19 April 2018

Bill is at Introduced stage.

Introduced (21 June 2017)

Bill is at Stage 1 stage.

Stage 1 (25 January 2018)

Bill is at Stage 2 stage.

Stage 2 (27 February 2018)

Bill is at Stage 3 stage.

Stage 3 (15 March 2018)

Bill is at Act stage.

Act

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

Related information on the Bill

Why the Bill is being proposed (Policy Memorandum)

Policy Memorandum Offensive Behaviour at Football and Threatening Communication (Repeal) (Scotland) Bill Policy Memorandum Offensive Behaviour at Football and Threatening Communication (Repeal) (Scotland) Bill

Explanation of the Bill (Explanatory Notes)

Explanatory Notes Offensive Behaviour at Football and Threatening Communication (Repeal) (Scotland) Bill Explanatory Notes Offensive Behaviour at Football and Threatening Communication (Repeal) (Scotland) Bill

How much the Bill is likely to cost (Financial Memorandum)

Financial Memorandum Offensive Behaviour at Football and Threatening Communication (Repeal) (Scotland) Bill Financial Memorandum Offensive Behaviour at Football and Threatening Communication (Repeal) (Scotland) Bill

Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)

Statements on LEgislative Competence Offensive Behaviour at Football and Threatening Communication (Repeal) (Scotland) Bill Statements on LEgislative Competence Offensive Behaviour at Football and Threatening Communication (Repeal) (Scotland) Bill

Scottish Parliament research on the Bill

Have your say

The deadline for sharing your views on this Bill has passed. Read the views that were given.

Committees involved in this Bill

Lead committee: Justice Committee

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.

It looks at everything to do with the Bill.

Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee about the Bill

First meeting transcript

The Convener

Agenda item 2 is our first evidence session 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 charge of the bill, to the meeting. George Adam is also in attendance. You are both very welcome.

We will take evidence from two panels, and time is extremely tight. The committee has 11 members, whose role is to scrutinise the bill. If time allows, at the end of members’ questioning I will ask George Adam whether he wants briefly to ask questions. Time will, of course, be allotted to James Kelly to ask questions at the end, after he has heard all the other questions and answers.

I welcome our first panel: Anthony McGeehan, who is the procurator fiscal responsible for policy and engagement at the Crown Office and Procurator Fiscal Service, and Assistant Chief Constable Bernard Higgins, who is responsible for operational support at Police Scotland. I thank the witnesses for their written submissions—as always, those are very helpful.

We will move straight to questions.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Good morning. In general, has behaviour at football changed since the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 came into force? If so, how?

Assistant Chief Constable Bernard Higgins (Police Scotland)

Good morning. I have been in the police for 29 years, and football—in both fan behaviour and stadiums—is almost unrecognisable from what it was like when I started, in 1988. In the past five or six years, there has been a massive improvement not just in fan behaviour but in stadium facilities and the professionalism of key elements of producing a football match, such as stewarding arrangements.

I will give an example of that. In the past four years, we have worked tirelessly with clubs and associations such as the Football Safety Officers Association to reduce the number of police officers at football events, which reduces the costs for clubs. We are in a position to do that only because infrastructure and fan behaviour have improved.

The 2012 act has certainly brought the question of what is acceptable behaviour in a football context to the forefront of people’s social consciousness. Since the introduction of the act, there have been many occasions when fans have reported what they have believed to be inappropriate and abusive behaviour. For example, at the Hibernian v Heart of Midlothian Scottish cup final some years ago, a Hearts supporter made racist and homophobic comments. He was reported to the stewards and then to the police by Hearts supporters and was duly arrested.

My question follows on from the line of questioning that Rona Mackay has opened up.

We have received a number of submissions from football supporters stating that the relationship between supporters and the police has deteriorated significantly since the 2012 act has been in force. Would you comment on that, ACC Higgins?

Assistant Chief Constable Higgins

I do not see that. I have officers who liaise regularly with fans groups—Supporters Direct Scotland, the tartan army and the Scottish Disabled Supporters Association—at a national level. At a local level, within the police’s territorial divisions, there are single points of contact who liaise with the clubs through the clubs’ fan liaison officers.

We work hard to develop relationships with any fan base. My door is always open, and I will happily speak with anybody about any aspect of football policing. If there is a perception that the relationship between the police and the fan base has deteriorated, we need to work on that and improve the situation.

It depends what you mean by “significant disorder”. In 2015, several thousand Rangers and Hibernian fans took to the field at Hampden and engaged in significant and sustained violence and disorder. As a result of that, over a period of months, we arrested 184 people. One of the most significant examples of disorder that we have had occurred a couple of years ago, when there was a mass brawl involving up to 30 or 40 Airdrie and Ayr United fans in Coatbridge town centre and a young detective sergeant sustained a broken jaw.

The statistic of 4 million attendees and 191 arrests does not reflect the massive joint operations that are undertaken by us, stewards and clubs to ensure that the 900-plus professional football matches that take place each year go off as peacefully and safely as possible.

Mary Fee

Is the change in the policing operation due to the 2012 act?

Assistant Chief Constable Higgins

No. I became the strategic lead for football about five or six years ago. Policing is an expensive asset. If you employ a number of police officers, that will be much more expensive than if you employ an accredited stewarding company. Therefore, I undertook work with the football authorities and clubs to reduce the number of police officers at every match, which would be financially beneficial. However, in order to do that, we had to do other things such as work with the Football Safety Officers Association to ensure that the safety and security of grounds met the requirements of the safety advisory groups, and that process has taken place over many years. The commitment of the police to that process is evidenced in the fact that every major club in Scotland outwith the old firm has held games at which there have been no police officers at the stadium. That is because we have done work to ensure that those environments are safe.

10:15

Maurice Corry (West Scotland) (Con)

Good morning, gentlemen. I ask Mr Higgins to elaborate on the challenges that officers could face when policing in the football environment should the 2012 act be repealed. How would Police Scotland deal with those challenges?

Assistant Chief Constable Higgins

It would not pose a significant operational challenge; we would continue to discharge our duties in the same manner. We would seek guidance from the fiscal’s office about which charges we should apply, as opposed to those in the provisions of section 1 of the 2012 act. I know that Mr McGeehan has views on that issue. If the act is repealed, I am sure that guidance on the subject will be forthcoming from the Crown Office and Procurator Fiscal Service. However, regarding boots on the ground and how football matches are policed, little—if anything—would change.

Anthony McGeehan

The Lord Advocate has published guidelines in relation to the operation of the 2012 act by the police. We would intend to publish similar guidelines in relation to the application of breach of the peace and section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 should the Parliament decide to repeal the 2012 act.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I ask both panel members whether there would be a gap in the law, in effect, if the act were to be repealed. If so, would games be more or less safe for fans?

Anthony McGeehan

In my assessment, there would be a gap in the law. Alternative charges to those under section 1 of the 2012 act are available to prosecutors—principally, under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and breach of the peace. There are similar alternatives to the charges under section 6 of the 2012 act in the provisions of section 127 of the Communications Act 2003.

It would be helpful if you could select one example. Are there examples in the narrative?

Anthony McGeehan

Yes. The first paragraph on page 5 states:

“While it is a matter for the judgement of a police officer whether a song or other behaviour, including the display of offensive flags or banners, is likely to be offensive to a reasonable person having regard to the nature of the material or song, including its lyrics and any ‘add ons’, the surrounding circumstances and the context in which it is being displayed or sung, the following are examples of the type of displays, songs and chants which are likely to be offensive to a reasonable person.

• Flags, banners, songs or chants in support of terrorist organisations.

• Flags, banners, songs or chants which glorify, celebrate or mock events involving the loss of life or serious injury.

It should be noted that in order for this offence to be committed, in addition to the display, song or chant being offensive or threatening, it must be likely to incite public disorder.”

The Convener

Can the police give us a specific example of how that guidance is being applied and their interpretation of it?

Assistant Chief Constable Higgins

Over the years, we have arrested a number of people for displaying pro-IRA banners. We have arrested a number of people for singing, for example, “The Billy Boys”, with the add-on words in that song about being “up to our knees in Fenian blood”, which are offensive and would likely incite public disorder. It is pretty commonplace in terms of what we can apply the 2012 act to. As I said, should the 2012 act be repealed, we would still challenge that behaviour under existing legislation and we would still arrest people for it. Whether the behaviour became a breach of the peace or a section 38 offence under the 2003 act would be a matter for the Crown Office to give us guidance on.

The Convener

If the 2012 act was repealed, that offensive behaviour—as it has been defined and examples of which have been given—would still be covered by legislation.

Assistant Chief Constable Higgins

It would, by and large, with the exceptions that Anthony McGeehan alluded to in terms of the gaps. The general offences that we arrest people for would still be covered.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

I ask for clarity on the same point, Mr McGeehan. You state in your written evidence:

“The legislation does not particularise the ‘behaviour that a reasonable person would be likely to consider offensive’. It is not unusual for legislation to contain a test in relatively broad terms”.

Can you comment on that point? Your written evidence also states that the Crown Office

“does not agree that the legislation is applied arbitrarily or unfairly.”

Those are important points in your evidence to highlight in relation to the question that the convener asked.

Anthony McGeehan

The lack of a definition of “offensive behaviour” in the 2012 act is not unusual in legislation. A type of behaviour and offending that the majority of us are familiar with is dangerous driving. Section 2 of the Road Traffic Act 1998 prohibits dangerous driving but provides no definition of what may constitute dangerous driving—that is defined by the particular circumstances of each individual case.

The use of “offensive” as a test is also not unique to the 2012 act. For example, one of the alternatives that has been identified as a possible remedy should the 2012 act be repealed is the Communications Act 2003, which prohibits the sending of a message that is

“grossly offensive or of an indecent, obscene or menacing character”.

Again, the offensiveness of an act is a reference point for criminal behaviour, but there is no specification as to what may or may not constitute offensive behaviour.

The second part of your question was about the rejection by the COPFS of the suggestion that the 2012 act is applied illiberally. My position is that, in order for an offence to be committed under the 2012 act, it is not sufficient that the behaviour is offensive; rather, it must be one of five types of behaviour that are specified in the 2012 act, and it must be behaviour that incites or

“is likely to incite public disorder”.

Only if those two tests are met can a charge against an accused person properly be brought.

Ben Macpherson

Thank you for that clarification.

Liam McArthur (Orkney Islands) (LD)

Mr McGeehan, I am interested in your reference to the use of the terms “grossly offensive” and “obscene” in the Communications Act 2003. From a lay perspective, that appears to set the bar slightly higher than the use of the term “offensive” in the 2012 act. Do you see that as potentially problematic? If something is “grossly offensive”, there is much less scope for dispute about it, whereas something that is deemed “offensive” might be offensive to some but not necessarily offensive to others. It might be seen as more of a judgment call made by officers and, ultimately, the Crown Office.

Anthony McGeehan

My analysis is that it sets not a higher bar but a different bar. In the 2012 act, the bar that is set is that the behaviour is offensive and incites or

“is likely to incite public disorder”.

Thank you.

The Convener

Maurice Corry has a supplementary question.

Maurice Corry

I have a short question, convener.

Mr Higgins, has the relationship between supporters and the police changed since the legislation was introduced? If so, why has it changed?

Assistant Chief Constable Higgins

There are pockets of supporters in which the relationship has certainly changed. However, I would say that the relationship with 99 per cent of those who make up the 4 million regular attendances at Scottish football matches remains exactly the same.

Maurice Corry

Okay. Thank you.

The Convener

Can we establish why, in some cases, you do not proceed?

Anthony McGeehan

Again, detail in relation to the reasons for proceedings not being taken is set out in the hate crime publication. I can take the committee through that if it would be of benefit.

The Convener

If you could succinctly explain your understanding of the reasons, that would be helpful.

Anthony McGeehan

That frequently happens. We use the stadium closed-circuit television and we deploy police officers with cameras to film people. We then try to identify the main protagonists and arrest them.

Liam Kerr

There have been a number of appeals against convictions under the section 1 offence. How many of those appeals have been successful and on what grounds?

Anthony McGeehan

The COPFS does not hold specific data on the number of appeals in relation to the 2012 act or their outcomes. An accused person may appeal a variety of judicial decisions at a number of different stages in the criminal justice process. Our database is an operational one, which is designed to support the effective prosecution and investigation of crime. We do not hold a database or data on the number of appeals connected with the 2012 act, their nature or their outcome. If that data would be of use, a request for that data might be made to the justiciary office.

10:45

Liam Kerr

ACC Higgins talked earlier about the fans’ clubs and the football clubs themselves stepping up in the past few years, and there are obviously UEFA and FIFA restrictions. What would be the practical impact of repealing the legislation?

Assistant Chief Constable Higgins

That is a subjective question, Mr Kerr. Nothing might happen. Equally, people might interpret a repeal as a lifting of perceived restrictions and revert to the behaviour that we saw in the 1980s and 1990s. I have gone on record as saying that some of the challenges in football, such as hate crime, are not football issues but issues for the whole country, although hate crime often manifests itself in a football environment. I cannot arrest my way out of changing hate crime and sectarianism in this country; a far wider approach is needed to challenging behaviour that is inappropriate. It just so happens that a lot of the inappropriate behaviour manifests itself in a football stadium, but that does not mean that the problem lies with football. The problem lies within wider Scottish society, because we still see offensive behaviour on the streets of Scotland on a Saturday night.

Operationally, I do not know what repeal of the 2012 act would do, but Police Scotland is absolutely committed to continuing to work with all multi-agency partners to address the scourge that is hate crime, no matter what form it takes, whether it is in a football stadium or on Sauchiehall Street on a Saturday night.

The Convener

Before we move to supplementary questions from Fulton MacGregor and Mary Fee, I want to ask about the non-recording of appeals. It would seem logical that, if the Crown Office and Procurator Fiscal Service was looking at its prosecution policy and found that 95 per cent of appeals—I know that that is unlikely—were on particular charges, it would want to determine why there were so many appeals. Is there a gap there that might help you to prosecute more effectively?

Anthony McGeehan

Our appeals unit monitors significant appeals and we consider the outcome of those appeals as they impact upon any prosecutorial policy. However, we do not record in a simple numerical database the number of appeals that relate to the 2012 act or the nature of those appeals.

The Convener

Would it be helpful to record that?

Anthony McGeehan

I would suggest that what is particularly helpful is identifying those appeals that have a particular impact on a particular area of the law, and our appeals unit does that. I am not convinced that a simple numerical volume of appeals would be particularly useful in indicating an area of the law or policy that requires consideration by the Crown Office. As I have indicated, an accused person can appeal at a variety of stages of the criminal justice process. That appeal might be in connection with an offence under the 2012 act, but the appeal might be limited to a decision by the sheriff to remand him or her in custody pending trial or pending sentence.

An appeal can be an appeal against conviction, against conviction and sentence, or against sentence, so a simple numerical tally of the number of appeals would not tell us very much about any particular area of the law. What would be significant are the appeals that offer particular direction to prosecutors, police officers and defence agents on significant areas of law. We monitor those and we amend, adapt and reflect upon our policies in light of those significant appeals.

The Convener

I understand that you analyse each appeal, but this is a wee bit like not being able to see the wood for the trees. Although the figure would be fairly meaningless in isolation, if you added it to your analytical data it might well be very helpful in starting to tease out that, for example, 95 per cent of charges were appealed at a certain stage. Further down, there might well be a core percentage of appeals that actually hit the policy’s effectiveness, and I think that the figure, used in conjunction with the other information that you have, would be helpful in that respect. Does ACC Higgins have a view about this issue?

Assistant Chief Constable Higgins

I do not think that we have had a particular focus on enforcing the act. We have policed games and applied the appropriate charge when we have arrested some people.

In response to Mr MacGregor’s question about criminalising young men, I have a simple view. In the absence of the act, those same young men would have been arrested but they would have been charged with a different offence, with the exceptions that Anthony McGeehan outlined in relation to the gaps. In the absence of the act, someone who was arrested for singing an offensive song would almost certainly have been charged with a breach of the peace or a section 38 offence. I do not accept the argument that the act has criminalised young men. It has brought the issue to the forefront of people’s minds, but those arrests would still have taken place in the absence of the act.

Ben Macpherson

Mr McGeehan, you referred earlier to section 6 of the 2012 act. One thing that is clear is that, if the act is repealed, that repeal will include section 6, which focuses on threatening communications. In your written evidence, you stated that the behaviour that is covered by section 6 does not have to be committed at a football match but that

“Section 6 has been used successfully to prosecute individuals who have made serious threats of violence against members of the public, including threats of murder, and individuals who have made threats towards Jewish, Muslim and Catholic communities designed to stir up hatred on the basis of religious grounds. It has also been used successfully to prosecute accused who have used social media to post threatening material designed to stir up religious hatred and which referenced the proscribed terrorist organisation ISIS.”

Will you expand on your earlier comments about how important section 6 is to the criminal law and dealing with threatening communications? How might the repeal of section 6 leave prosecutors less able to secure convictions for such threatening communications?

No, that would not be my position. My position would be that both section 1 and section 6 have utilitarian value to prosecutors. There are alternatives to both section 1 and section 6. Some of the deficiencies in the alternatives apply equally to section 1 and section 6. As I indicated, both section 1 and section 6 have an extraterritorial power that is not available with any of the alternatives. In relation to section 1, alternatives such as breach of the peace and section 38 of the 2010 act are available. In relation to section 6, there is an alternative in the Communications Act 2003.

Mr McGeehan, you mentioned earlier that if the act were to be repealed, you would have to look at other options to work out how to deal with that. We have received various bits of evidence on that. Victim Support Scotland said that it is opposed to the repeal of the 2012 act

“unless there is a viable alternative to support victims of threatening communication and religious prejudice”.

The Scottish Council of Jewish Communities has said:

“we are concerned that repeal of the Offensive Behaviour at Football and Threatening Communications Act would send exactly the wrong message.”

Is it not the case that, if we repeal the act, not only would it be difficult for the Crown Office, there would be a need for an act that, as we can see from those groups in our communities—

The Convener

We have covered that, Mr Adam. That question has already been asked. Let us move on.

I will hand over to the member in charge of the bill to ask any questions.

James Kelly (Glasgow) (Lab)

Thank you, convener. I have one point for ACC Higgins and three for Mr McGeehan.

ACC Higgins, Mary Fee raised a concern about overzealous policing of the act, and you gave a response to that. One of my concerns is that people who are prosecuted under the act are pursued—to put it charitably—overzealously. I will give an example: first-time offenders are often brought to the police station and detained overnight. That is not normal for first-time offenders—first-time offenders who are charged with much more serious crimes are usually freed until they appear at court.

What about the Law Society’s specific point that if the 2012 act continues to be in force there will continue to be appeals because of confusion over the definitions in the act?

Anthony McGeehan

There will continue to be appeals in relation to many pieces of legislation, which is entirely proper as part of a well-functioning and balanced criminal justice system in which laws are tested, clarified and applied by the courts. I can give examples. We experienced a similar series of cases in relation to drink-driving until the courts clarified the law in relation to that. Offensive weapons legislation is another example. The 2012 act is not unique or unusual in respect of its scrutiny by the courts or its consideration by the appeal courts.

James Kelly

I will move on to section 6, on which you have outlined your position. How many prosecutions and convictions have there been under section 6 since the 2012 act was commenced?

Anthony McGeehan

That information is published by the Scottish Government. If the committee will bear with me, I will find the relevant publication that confirms the data.

The Convener

If it helps, it can be sent to us, if it is not immediately to hand.

Anthony McGeehan

Yes—I will forward the information. The Scottish Government has published data on proceedings and convictions in relation to section 1 and section 6 for the duration of the 2012 act’s having been in force.

James Kelly

If it is helpful to the committee, the information is actually on page 11 of the financial memorandum to the bill: only 17 prosecutions have been secured under section 6 during the period in which the 2012 act has been in force.

Is the threshold in the act so high that it is difficult to secure convictions under section 6, as the police and other respondents have noted in their submissions, and is that evidenced by the fact that there have been only 17 convictions?

I have also mentioned possible reasons for the low number of diversions, which include the fact that the diversion scheme was previously focused on sectarian behaviour and did not reflect the wide spectrum of offending behaviour that is addressed by the 2012 act.

The casework instructions encourage prosecutors to use diversion in appropriate cases; a diversion may not be appropriate because of, for example, the accused’s record of offending behaviour, or the risk that the accused will commit further offences unless action such as a football banning order is taken.

The Convener

I welcome our second panel. Jeanette Findlay and Paul Quigley are from Fans Against Criminalisation; Simon Barrow and Paul Goodwin are the chair and chief executive of the Scottish Football Supporters Association; and Andrew Jenkin is head of Supporters Direct Scotland. I thank all the witnesses for their written submissions; it is tremendously helpful to the committee to be able to see submissions in advance of our evidence sessions.

The question illustrates the importance of considering the issue in the context of Lord Bracadale’s review of hate crime legislation. One of our concerns relates to the consideration of that wider context.

The Scottish Football Supporters Association has not done a specific survey on that issue, but we receive feedback that shows that there is concern about what appears to be the targeting of football fans in particular. The issue needs to be addressed in relation to the wider review. Obviously, it is important that one considers how such behaviour is dealt with. Football fans do not want to see that behaviour. In Scottish criminal law, there are currently statutory provisions based on race, religion, disability and so on. We do not claim legal expertise with regard to the question of how that fits together, but we want it to be addressed.

Andrew Jenkin (Supporters Direct Scotland)

Although we do not have any research on section 6, as it does not concern only football supporters, we have research on supporters’ views on section 1. That shows that 84 per cent of supporters do not believe that any conduct that is currently subject—

Rona Mackay

We will go on to that later—my question was specifically about section 6.

Mr Goodwin, do you have any comments?

It would certainly concern many football fans if sexist and racist abuse, sectarianism, hate speech of any kind, homophobia and so on were tolerated in football, and fans are actively working to combat those tendencies in some sections of our game and some sections of wider society. The question of the efficacy of the 2012 act is, obviously, a disputed one, from that point of view.

We also recognise that, on the other hand, lawyers, Liberty and other organisations are concerned about the act’s effect on free speech. There are conflicting views about it.

11:45

The key point that we want to make is that, whatever happens moving forward, it is vital that we in football take greater responsibility for the atmosphere that exists, for the sense of community, for the way in which we address disorder and so on. The Scottish Football Supporters Association has pointed out the need for policing by community consent, drawing together community groups, women’s groups, fans’ groups along with stewarding organisations and the police, with regard to what happens in particular situations. As I have said, the picture varies widely across Scottish football. However, we want to find solutions that are based on what happens on the ground and relate that to the provisions in hate crime legislation and how that legislation is dealt with by the police, the courts and so on.

Jeanette Findlay

If the situation that the organisations mentioned by Rona Mackay describe existed, that would be very concerning. I have read the submissions from those organisations in some detail and I have kept track of statistics over the years, and if there was any basis to those concerns, I would be concerned as well. However, I think that you will find that for the entire period since the legislation’s introduction, there have been two charges related to homophobia and none related to misogyny or sexism—I do not know what such an offence would be called.

Can I come back to what Liam Kerr said in asking his question? There seemed to be an assumption that there was very poor behaviour prior to the 2012 act, and that behaviour has since improved. That was certainly the evidence that the committee heard from ACC Higgins.

Liam Kerr

I did not mean to imply that.

Jeanette Findlay

In fact, there is very little evidence to suggest that there is a behaviour problem at Scottish football grounds. There has not been a problem for a very long time. For instance, if we look at religious aggravation charges—the charges that should have been used in cases of sectarianism prior to the 2012 act—we can see that, in the two years leading up to the legislation’s introduction, the proportions of such offences that took place at football grounds were 12.9 per cent and 7.6 per cent respectively. The overwhelming majority of problems with sectarian-type offences—which are just one type of offence—took place somewhere other than at football grounds.

Therefore, when we are asked whether behaviour has improved, our response is that, clearly, the long-term trend since the 1980s shows that it has. However, there was not really a problem with behaviour at Scottish football grounds in 2011—as the evidence suggests. There was very little disorder, violence or any other such behaviour. Scottish football grounds are extremely safe places to be.

The Convener

Fulton MacGregor has a supplementary question. Please be brief.

Fulton MacGregor

Convener, perhaps I could have this question in place of my later one, which I think will be covered by others. This might be a good place to come in.

As the panel members might have heard if they were in the room when our earlier panel gave evidence, legislation is also able to send out a message. If the repeal of the 2012 act were to go ahead, what message does the panel think would be sent out to fans, and to society generally? I will give an example. Last week, the whole Parliament—every party—agreed to the general principles of the Domestic Abuse (Scotland) Bill at stage 1. Part of that is about sending out a message that domestic abuse is not acceptable in our society.

Simon Barrow

Paul Quigley

Simon Barrow

I am sorry—I am not quite sure what you mean by divisions.

Maurice Corry

Your submission talks about divisions.

Simon Barrow

What part of the submission are you referring to?

The Convener

Perhaps I can help. The submission says:

“There are already too many divisions in the game we love and something requires to put in place to show the ‘majority’ that we understand the problem and work together to resolve it.”

Simon Barrow

That was not our submission, so it is a little difficult to—

The Convener

I think that it was from Mr Goodwin, and both of you are here representing the SFSA. Perhaps the question is better directed to Mr Goodwin.

Paul Goodwin

I am sorry—I do not have the submission in front of me. Obviously, there are divisions. It is in the nature of football that we are divided by our loyalties—the committee has heard about divisions between rival fans.

From the top of the game, we are in a period of angst. Fans’ representations have generally been ignored for many years—for many seasons. We do not have a route to have a say in the game. That is not just about us; it applies to the holy trinity, as Bill Shankly once called it, of the players, the manager and the supporters. According to him, nothing else in football matters.

Sadly for our game, this is one of the rare occasions when we get a chance to express our opinions. Our opinions tend to be treated in a vacuum, but they vary. As the game changes and becomes more global and corporate—it is a different environment now—the big division in the game is that the communities and societies that many clubs represented beautifully over the years have changed. That may be what the reference to divisions means.

Maurice Corry

Would repealing the act contribute to overcoming those divisions?

Paul Goodwin

I do not think that it is connected.

Simon Barrow

I apologise for the distinction between a group submission and an individual submission.

One thing that we have done recently—we will publish the results next month—is the first benchmarking survey on governance in Scottish football, which looks at the views on how the game is run among fans, players, officials and others with a stakeholder interest in the game. That will enable us to begin to look at the differences of opinion on a variety of issues. That is how we see things moving forward.

As for divisions in relation to the review of the act, we are conscious in presenting our evidence to the committee that fans have different opinions. According to our research, the great majority of fans have severe questions about or are opposed to the act; others are concerned about the issues that the act is intended to address. We acknowledge that the act’s intention is good. The behaviours need to be challenged, and fans have to be central to doing that.

Ben Macpherson

12:15

Two things are important about that. First, the reasonable person was redefined. The law lords found that

“Thus, the Act distinguishes between, on the one hand, ‘a reasonable person’ and, on the other, a person ‘likely to be incited to public disorder’. It may be that a person likely to be incited to public disorder is of a more volatile temperament than a reasonable person or, to use the language of the sheriff, an uninitiated member of the public. The person likely to be incited to public disorder may have particular interests and particular knowledge. He may have particular views about the two songs in question or those who sing them.”

Yes.

Paul Quigley

The fan experience has been dramatically changed as a result of the 2012 act. I understand what Mr Barrow said about how those experiences may differ depending on the club, including the size of the club, that a fan supports. In my experience, as a Celtic fan, from the second that fans get off a bus in any city across the country, they are filmed. Fans often feel intimidated from the second that they get off the bus to the second that they get back on it. They are subject to a type of surveillance that did not exist and that they did not have to experience before 2012.

It is correct that there is now suspicion between fans and the police; the relationship has broken down, and I do not think that that is in anybody’s interest.

Mary Fee

Are the police justified in the way in which they police matches now?

Paul Quigley

It is a difficult thing to police, because offensiveness is subjective. Other witnesses have said that the 2012 act is not applied arbitrarily, but I cannot see how it cannot be. Even Mr Higgins said that if a full stand is singing offensive songs, the police cannot arrest everyone, so fans would say that the act is applied arbitrarily and they feel that, in some cases, it has been applied overzealously by the police.

Mary Fee

Do other panel members have anything to add?

Simon Barrow

I have a quick comment. I do not have the data in front of me from the 2015 evaluation by the University of Stirling, the University of Glasgow and the Scottish Centre for Social Research, but one of the things that they said was that there was some evidence of detracting attention from relationships between police and fans in some situations.

As Mr Quigley said, the experience is very different across Scottish football. I mostly spend my time in lower-league football and the issues do not seem to have an impact there on the great majority of people for the great majority of the time. However, when I have been at matches between larger clubs, the fan experience is very different. Fans can certainly feel under a lot more pressure and scrutiny than they would in other parts of the game.

Paul Goodwin

I do not know whether it is the act itself that has brought that about. In the role I have, I go to a lot of football grounds around the country and there is far less trust in the police. The policing of football matches has deteriorated over the past 10 years, so before the act.

I was at a promotion match between Partick Thistle and Falkirk. The fans were doing a conga. The police went out with video cameras, videoing every one of the fans. When fans approached and asked why and how the data would be used and stored, they were threatened with being arrested, and on a day that they won the championship. That is a perfect example.

I do not know whether it is the act that is the problem—it is not my area of expertise. However, I think that policing should be by consent, and that is where the work needs to be put in, by all the different stakeholders. We are not in a good place.

Andrew Jenkin

I have some statistics about the policing of football matches in Scotland. In the past two seasons, supporters have been more aware of the police presence, and a majority felt that fans’ behaviour had not improved as a result. There seems to be a correlation between the two.

Mary Fee

Liam Kerr asked about fan awareness of the act and how organisations would cope if the act were repealed. What will the football associations do to communicate to their members and supporters of clubs that the act has been repealed? How will you make supporters aware that certain behaviour is not acceptable?

Simon Barrow

Most fans’ awareness is conditioned by the messages that they get from the clubs and from the fan groups that collaborate with the clubs. For example, there will be notices in programmes about what is unacceptable behaviour.

Whichever way this goes, we will ensure that sectarianism, homophobia, sexism, racism and other forms of hate in football are addressed. For example, serious attention needs to be given to the issue of strict liability. I have referred to the experiments that we are keen to help to bring to fruition, which bring together fans, stewards, police and so on to look at how disorder and bad behaviour are dealt with, and there are community initiatives that enable clubs to be more community friendly and family friendly.

Context is all. One part of the context is the hate crime legislation review, and we think that it makes sense to consider these questions in that context. The other thing is the responsibility that fans themselves take, and the responsibility of those who govern football to engage with fans to address these behaviours at all levels.

Andrew Jenkin

When we have had consultations we have always tried to leave a space for supporters to offer their opinion on how best we tackle these issues, if not through legislation. The consensus is that we cannot punish a problem away.

The Scottish Professional Football League has had its own unacceptable conduct guidelines in place as of January this year and the Scottish Government will be getting feedback on how that is going. We feel that clubs could be doing more to work with their supporters. If you ask supporters what their views are, you find that there seem to be three key themes. The themes that we have picked out are educational workshops on these issues for supporters, improved and sensible policing that is clear and consistent, and more fan engagement and dialogue between all stakeholders, including police and stewards.

Liam McArthur

It has been conveyed to us that the repeal of the bill, particularly section 1, would send the wrong message about tolerance of hate crime in all its forms and would inhibit the police and prosecuting services in dealing with instances of that. From what you all have set out, it seems that work could be done in a raft of different areas to ensure an appropriate, targeted approach that builds on the messages that have been coming through at a societal level. Is that a fair characterisation of the panel’s views?

Andrew Jenkin indicated agreement.

Liam McArthur

Nodding of heads does not come across well in the Official Report.

The Convener

Who would like to answer that?

Simon Barrow

Yes, is the answer to your question. However, a key aspect of how messages are sent out—which is an issue that this committee has come back to on a number of occasions—is how politicians handle them. When we give the committee evidence on this issue, we want to avoid being involved in a political stushie about it, because it ought to be something on which politicians can come together. The obvious problem is that there are strongly divergent views on the effectiveness and appropriateness of the 2012 act. There ought to be a way of addressing the wider issues of hate crime; very serious attention ought to be paid to any possible gaps that might open up and, in particular, to further engagement with football fans; and there should be further pressure on football authorities to respond to these kinds of issues. The solutions to the problems that football faces—because all sections of society face both general problems and specific problems—must come from football owning and taking responsibility for the issues. That is the primary context in which we can have a positive response.

Liam McArthur

I am interested in that, although it is slightly tangential to the bill. It would help the committee to address one of the concerns that has been raised about the bill if you could give us specific ideas of how that engagement could be made to work better. I get the feeling that it works reasonably well in certain areas, with certain clubs, but that perhaps it is not working as well as it might be across the piece.

Simon Barrow

We would certainly want to pursue some of the issues to which I have drawn attention here and in our submission to the hate crime legislation review.

The Convener

Ms Findlay, you mentioned that there have been a number of cases—perhaps you could give us a rough indication of how many—of people being charged and the case subsequently being dropped, and you talked about the disproportionate effect that that had on the people who were charged. Will you give us some examples of those cases and quantify how prevalent they have been?

12:30

Jeanette Findlay

It is less a matter of people being charged and then the charges being dropped—in fact, the charges are rarely dropped—but I understand that it is normal practice throughout Scotland for fiscals in sheriff courts to strike out charges and make certain arrangements. That never happens in football cases. Almost every case is prosecuted right up to trial and cases are not dropped, even though they have a lower chance of success once they come to trial.

On the numbers, we can speak about our analysis of the Government and Crown Office data, which we have followed and analysed regularly throughout the past six years and we can speak about the people who come to us. We have a website with a forum through which people who have been charged can ask for support. As the person who takes most of the initial phone calls from such people, I can think of only two cases in the whole six years in which somebody had previous convictions. The people who contact us to tell us what has happened, ask what they should do and seek advice are rarely people with previous convictions.

The Crown Office does not collect that data. The Crown Office official who was here this morning referred to one case, but the Crown Office does not collect data on whether people have previous convictions; I suppose that we have the only evidence of that. Over the past six years, around 200 people have contacted us and I would say that only two had any previous convictions—and even those were 10 or 15 years old. It has also rarely been people who are older; most of them have been a lot younger.

You asked about what happens to them and what the impact is on them. I do not know whether you are aware of this, but there are usually three appearances at court: the pleading diet, the intermediate diet and the trial. The evidence, from our experience and the Stirling research, is that the process is often extended in football cases and people have to appear in court four or five times for various reasons. Because of the nature of where alleged offences are supposed to have taken place, those appearances often involve people travelling quite long distances and having to take time off work and tell their employers that they have been charged.

The worst case that we had involved seven young men who sang a song at an away game and appeared in court 17 times over 23 months. They were all acquitted in the end. During that time, one of them lost a promotion and two of them were completing studies that would have involved professional registration, so they were in jeopardy of losing not just their job but their entire career. Thank goodness, that did not happen. That is an extreme case, but it reflects the kind of cases that we see quite often.

Football cases take longer and are never dropped. Numerous fiscals have said privately to the defence solicitors that we work with, “This would go, but I’m not allowed to drop it.” They are simply not allowed to drop cases; they are made to proceed with them to the furthest extent.

The Convener

Is that done on advice from a higher level?

Jeanette Findlay

I mentioned earlier that it is a PR mess that needs to be fixed, with politicians from all parties getting round the table. It does not send out good signals about Scottish football at a time when we are trying to attract young people, kids and families to the game. All the evidence is that we are doing that well at a lot of clubs, but the act has bad credibility. I cannot comment on the ins and outs because I am not a lawyer, but the legislation needs to be broadened out or recut in some shape or form; it is not good news.

Simon Barrow

Football-specific and sport-specific legislation is unacceptable to fans—that is clear. Whether reform and retitling are possible can be explored. However, as Mr Goodwin said, the difficulty is that the PR so far has pushed people into a position of alienation, so there is a lot of ground to make up. The hate crime review is the context in which such decisions should be taken.

Paul Quigley

We support the outright repeal of the legislation. It is not right to have legislation that applies to only one sector of society, but criminalising offensiveness to the rest of society would not work either, as it would present too great a danger to freedom of expression.

We support the repeal of the 2012 act as quickly as possible. Jeanette Findlay has touched on the human cost of that legislation and what happens when people are dragged through the courts and how that drags on. People have lost jobs and promotions, suffered varying degrees of mental health breakdown and have even suffered fractured relationships. When, as is so often the case, people are then found not guilty, it does not undo any of the damage that has been done. Those cases—

Fulton MacGregor

I am sorry to interrupt—

Paul Quigley

If you would just let me finish, Mr MacGregor.

Fulton MacGregor

I was quite sympathetic to that argument in the previous panel, but are those not implementation issues, as opposed to being repeal issues?

Paul Quigley

I am going to move straight on to James Kelly, because I am afraid that the clock has beaten us. My apologies to George Adam—whether I could bring him in for a supplementary was always dependent on the timing of the committee.

James Kelly

I appreciate that, convener. I have a question for each member of the panel, or each organisation that is represented. In the submissions to the Justice Committee, we have heard from the Law Society that there would be no gap in the law and from civil rights groups about the imposition on civil liberties, but it is very important to hear from supporters’ groups, because they are at the sharp end of things, being at the football and witnessing the effect of the legislation.

Can I start with Andrew Jenkin? We have spoken about the international context. What message do you think it sends out, internationally, that Scotland has legislation that specifically targets football fans?

Andrew Jenkin

One of our member groups—I think it was Dons supporters together—did a comparison of all the different football supporters across Europe and found that football supporters were the most legislated against in terms of their rights, safe standing, alcohol at football and the offensive behaviour act. That needs to be addressed, and I certainly think that it is unfair that supporters in Scotland should be criminalised because they are going to football.

That concludes our questioning. I thank all the panel members very much for giving evidence today. Given that we are working against the clock, we will continue straight to our next agenda item.

3 October 2017

Second meeting transcript

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.”

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.

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.

10:30

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.

10:45

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.

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.

11:00

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

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.

11:15

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

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.

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

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.

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.

12:00

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.

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.

12:06 Meeting continued in private until 12:27.

24 October 2017

Third meeting transcript

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.

10:30

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 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”.

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:

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

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.

11:00

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

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?

11:15

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.

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.

11:28 Meeting suspended.

11:35 On resuming—

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.

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?

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

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.

12:00

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.

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

“due to its narrow scope”,

“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

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.

12:15

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

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?

12:30

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

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.

12:45

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.

12:48 Meeting continued in private until 12:55.

7 November 2017

Fourth meeting transcript

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.”

12:00

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.

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.

12:15

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 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.

12:45

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.

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.

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.

14 November 2017

Fifth meeting transcript

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.

10:30

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?

10:45

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.

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.

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?

11:00

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 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.

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?

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

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

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.

11:45

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

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.

11:56 Meeting continued in private until 12:53.

5 December 2017

Sixth meeting transcript

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.

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

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.

11:30

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

“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

Ben Macpherson

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?

12:00

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

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.

12:15

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.

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.

12 December 2017

3 October 2017

24 October 2017

7 November 2017

14 November 2017

5 December 2017

12 December 2017

Justice Committee Committee's Stage 1 report

What is secondary legislation?

Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:

bring a section or sections of a law that’s already been passed, into force

give details of how a law will be applied

make changes to the law without a new Act having to be passed

An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).

Debate on the Bill

A debate for MSPs to discuss what the Bill aims to do and how it'll do it.

Stage 1 debate on the Bill transcript

The Presiding Officer (Ken Macintosh)

The next item of business is a debate on motion S5M-10072, in the name of James Kelly, on the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill at stage 1. I call James Kelly, the member in charge of the bill.

James Kelly (Glasgow) (Lab)

The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 has completely failed to tackle sectarianism. It is illiberal and unfairly targets football fans. It has been condemned by legal experts, human rights organisations and equality groups. The Scottish National Party Government must now produce a unified approach, working through Parliament, charities and education. It is time to scrap this discredited act.

I acknowledge that this is a serious matter. I am proposing a member’s bill that seeks to repeal in full an act of the Scottish Parliament. It is therefore reassuring that we have a robust process that I am required to run through, with an initial consultation that received more than 3,000 responses—over 74 per cent of which supported my proposal—a final proposal that required signatures from MSPs from across the chamber, and of course the three-stage parliamentary process that started with the Justice Committee’s hearings.

I place on record my thanks to the clerks to the Justice Committee, other officials, those who gave evidence and members of the committee. The Justice Committee has produced a comprehensive body of work that adds to the parliamentary consideration of my bill.

It is worth reflecting on the introduction of the 2012 act. Much has been made of the background of the 2011 Celtic v Rangers game and the events that followed it. In that parliamentary session, some MSPs felt that the SNP Government had a somewhat ambivalent approach to sectarianism—I can remember an angry clash between Jack McConnell and Fergus Ewing—so talk of an approach to tackling sectarianism was welcomed in some quarters. However, earlier this week, I looked back at Official Reports from 2011—obviously, I was closely involved in the process as I led the Labour opposition to the legislation—and it became clear to me that where the SNP attempts to gain support for the legislation from all parties across Parliament fell down was in the lack of consultation, the lack of willingness to work with other parties, and the fundamental issue that the 2012 act was not about tackling sectarianism but was about targeting football fans. I think that that is what led to all Opposition MSPs opposing the passing of the legislation in the stage 3 vote in 2011.

The implementation of the 2012 act was characterised by aggressive policing, which caused a lot of friction with fans. There was confusion over definitions in the act and over what was or was not legal. Police officers had to be sent on a training course to learn about what was potentially offensive chanting under the act. We ended up with a lot of division—division between the police and fans, and division between political parties—and confusion among the judiciary as to what was or was not legal under the act. A lot of those themes have run all the way through to today, six years down the line, so it is no surprise that we have arrived at this position.

In the evidence that the Justice Committee heard, there was a very clear view from football supporters that they do not feel that section 1 of the 2012 act is fair, in terms of its targeting of football supporters, and that it is not effective. They feel that the act has led to a deterioration in relationships between the police and fans. The committee heard the legal point of view from the Law Society of Scotland, which advised that all convictions under the act in the previous year could have been captured under pre-existing laws—for example, under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, in relation to breach of the peace, or under section 74 of the Criminal Justice (Scotland) Act 2003, in relation to religious aggravation.

The Law Society of Scotland also said that it had a concern that the reach of the 2012 act was far too wide and that, as a result, further legal challenges were likely, undermining the already diminished credibility of the 2012 act.

I emphasise the evidence from the Scottish Human Rights Commission, a well-respected body that works closely with the Scottish Government. The SHRC drew the Justice Committee’s attention to the fact that two areas in the 2012 act could be in breach of the European convention on human rights, leading to a lack of legal certainty. The committee also received evidence from several academics who questioned the potential implications of the act in relation to freedom of speech.

Joan McAlpine (South Scotland) (SNP)

The member has talked about evidence that the Justice Committee received, but the Equality Network, Stonewall and the Scottish Council of Jewish Communities all said in their evidence that repealing the 2012 act without having a viable alternative, as he suggests, would send out exactly the wrong message about sectarianism and our attitude to it in society.

James Kelly

I will cover the points about messages and alternatives towards the end of my speech.

It is important that we look at some examples of the impact of the legislation on people’s lives. One tranche of data from recent years showed that 49 per cent of those convicted under section 1 of the act were young people aged under 20. It is unfortunate that those who have been captured by the act’s provisions tend to be young working-class males who have no previous offences and who are in employment. I cannot believe that the Scottish Government intended that consequence when it introduced its bill in 2011.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Will the member take an intervention?

James Kelly

No, I want to make some progress.

If we look at some of the cases, we can see how unfair the 2012 act is and the impact that it has had on people’s lives. In one incident, a Rangers fan with an “Axe the Act” banner, which obviously referred to the 2012 act, was arrested.

Another feature is police use of overnight curfews. A Motherwell fan who was singing a song about an opposition team was detained for four days in Greenock prison; and a Hibs supporter who had no previous convictions and who voluntarily attended a police station with his lawyer and his family was charged and then detained overnight.

There is also the effect on people’s lives and careers. One young man was charged and, after lengthy proceedings, was found not guilty. However, due to disclosure rules, he had to inform his employer. That caused him a lot of stress because he felt that his career was under threat; there was also a lot of family pressure. A number of people who have been captured by the 2012 act are student teachers and national health service professionals who have been caught up in prolonged legal battles, causing real strain. The way in which people have been targeted and captured under the act has had a real human impact.

Section 6 of the 2012 act deals with threatening communication. It was unusual for such a provision to be bolted on to a bill that dealt with offensive behaviour at football. Legislation in relation to online abuse, which has grown in recent years, is clearly essential.

Mairi Gougeon (Angus North and Mearns) (SNP)

How does the member intend to deal with the point raised by the Crown Office and Procurator Fiscal Service about the three specific areas that section 6 addresses? How will the repeal of the 2012 act solve those problems?

James Kelly

I am about to cover that.

As the police told the Justice Committee, although section 6 is well intentioned, because of the way in which it has been drafted, the legal threshold is too high, which makes it difficult to prosecute. As a result, the police and prosecutors are not using section 6. There have been only 17 cases in the six years that the act has been in force, and only one conviction—

The Minister for Community Safety and Legal Affairs (Annabelle Ewing)

Will the member take an intervention?

James Kelly

No, I have taken an intervention and I am dealing with this point.

There has been only one conviction—in 2016—so the legislation is clearly not effective in addressing threatening communications. The police told us that they are securing prosecutions under the Communications Act 2003, rather than under section 6 of the 2012 act. Although section 6 is well intentioned, it is not fit for purpose.

That brings me to the point raised by Joan McAlpine. As a result of all those issues, the 2012 act sends a very weak message. Members should not forget that, throughout the past six years, only one party—the governing party—has continued to support it. That severely undermines the credibility of the message. If legal experts are saying that the basis of the act is weak and that its continued operation will result in legal challenges, including under the ECHR, we cannot say that it is operating well as a piece of legislation. It also causes a lot of confusion in communities about what is legal and what is not. The act sends a very weak message and it has failed to tackle sectarianism.

Looking back to the debates in 2011, I notice that I drew attention to the 696 charges involving religious aggravation that were recorded for the previous year. However, in the past year, there have been 719 such charges. Since the act has been in force, the number of charges involving religious aggravation has increased—it is now at its highest for four years—but only 7 per cent of those charges related to football. The act has completely failed to tackle sectarianism.

We need a completely new approach. We need a unified approach—one that brings together political parties, fans and legal experts and that emphasises a strong message around pre-existing legislation that works. We need to invest in education, and to support, rather than cut, anti-sectarian education programmes. Allied to that, we need the police, football clubs and football fans to work together to promote good behaviour at football. Those three strands are a good way forward and will be far more effective than the discredited legislation that is currently in place.

I move,

That the Parliament agrees to the general principles of the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill.

14:44

Margaret Mitchell (Central Scotland) (Con)

I am pleased to speak on behalf of the Justice Committee and summarise the findings of our stage 1 report on the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill.

A majority of members of the committee support the general principles of a bill that has divided opinion, and the committee report reflects both sides of the debate. However, although members were divided on whether to support the bill’s general principles, the rest of our report contains unanimous recommendations and conclusions, and I thank all my committee colleagues for their efforts and willingness to achieve that outcome.

The bill is contentious, and reflecting all the views that were expressed presented a difficult challenge for the Justice Committee clerks. As a result, the entire committee would like to record its thanks to the clerks for their excellent work on producing the stage 1 report. Furthermore, although committee opinion was divided on the solution, all members agree that sectarianism and offensive behaviour should be challenged wherever they are found.

With regard to the committee’s consideration of the bill, an open call for evidence was issued in June, and the 30 submissions that were received from organisations and the more than 250 from individuals helped us to identify the key issues to explore with witnesses in oral evidence. Over six committee meetings, members took evidence from eight panels of witnesses comprising academics, fans groups, legal experts, religious groups and equality groups as well as the minister and James Kelly, and the committee thanks everyone who provided oral and/or written submissions. The issues explored included whether repeal would create a gap in the law; the effectiveness of the offences in sections 1 and 6 of the 2012 act; and the message that repeal would send.

The 2012 act created two new offences. The offence in section 1 covers offensive behaviour at regulated football matches, while the section 6 offence covers threatening communications. In evidence, the committee heard concerns from witnesses about both offences as well as warnings of the potential consequences of their repeal. Those who support retention of the 2012 act considered that repeal would send the wrong message about what is and is not acceptable behaviour, while those who apply the act stated their belief that the section 1 offence was fit for purpose and clearly understood by police officers. On the other hand, those in favour of repeal considered that the section 1 offence discriminated against football fans and that its poor drafting resulted in inconsistent application by police officers.

The committee also heard some evidence on how the 2012 act could, if retained, be amended. We quote in our report a swathe of changes that the legislative academic Andrew Tickell suggested could be made to improve section 1. Moreover, the minister committed to considering any improvements to section 1 that might be offered, and the minority of committee members who did not support the general principles of the bill were of the view that the Scottish Government should revisit the 2012 act and lodge constructive amendments in that respect.

The section 6 offence also split opinion, but for different reasons. Those in favour of retaining the 2012 act argued that repeal would create a gap in the law. I shall return to that topic later, but I will say that the issue was of particular concern to some religious groups, such as the Scottish Council of Jewish Communities. However, those who support repeal of the 2012 act argued that section 6 is rarely used, due to the high threshold that is created by its wording. The committee agreed that, should the bill be passed, it would be appropriate to consider how the provisions in section 6 could be updated and included in any further revision of hate crime legislation.

James Dornan (Glasgow Cathcart) (SNP)

Did the committee come to any conclusion about how to fill the gap that would be created by the repeal of section 6 of the act? The member might say that section 6 has not been used often, but it seems to me that it is still very important to have those provisions on the statute book.

Margaret Mitchell

The member is being a bit impatient—I am just about to come to that exact point.

On the question whether passing the bill would create a gap, those in favour of retention of the act highlighted the offence of incitement to religious hatred contained in section 6 as well as the extraterritorial provisions in the act and the sentencing powers in section 6.

Those who supported repeal of the 2012 act pointed out that breach of the peace, the Communications Act 2003 and section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 would be applicable to types of behaviour that are covered by the 2012 act. The committee concluded, on balance, that both sides of the debate were accurate in their description of what repeal would mean, and that, other than the offence of incitement to religious hatred that is contained in section 6, repeal would not result in behaviour or actions that are currently prosecuted under the 2012 act becoming legal. The development of the issue of what can be done in that situation addresses the point that Mr Dornan raised.

As well as the policy debates surrounding the bill, there was also much debate in the committee about the timing of the proposed repeal. Lord Bracadale is currently in the midst of an independent review of hate crime legislation, which is due to report in spring 2018 and the auspices of which cover the 2012 act. Some witnesses argued that the committee and Parliament as a whole should delay the consideration of Mr Kelly’s bill until Lord Bracadale’s review had concluded. However, the committee is aware that Lord Bracadale’s consultation paper states:

“The Review will therefore consider how the law should best deal with the type of hate crime behaviour covered by section 1 in parallel with the Parliament's consideration of James Kelly's repeal bill. The final recommendations made by the Review will take into account the law as it exists or is anticipated at that point.”

Given that information, and given the wide scope of Lord Bracadale’s review, together with the time that it might take to properly examine his report once it is published, the committee unanimously agreed in its report that it would not be appropriate to delay the parliamentary consideration of the bill while Lord Bracadale concludes his work.

The committee as a whole was interested to hear of measures that could be taken to tackle sectarianism and hate crime. This bill has reinvigorated discussion of what is and is not acceptable behaviour. Members agreed that, regardless of whether the 2012 act is repealed or retained, the time is ripe for further publicity and education on what is and is not acceptable behaviour. The committee also recommended that defining sectarianism in Scots law could be a useful step and stressed that education is vital in tackling such attitudes.

Members were very interested to hear about Sacro’s tackling offending prejudice—STOP—service, which provides diversion from prosecution and works with people to help them to identify their own attitudes and behaviours in an effort to effect long-lasting change. Unfortunately, that service and others like it have hardly been used in relation to the 2012 act. The committee therefore recommends that those schemes, where appropriate, should be used more widely.

In conclusion, a majority of the members of the committee support the general principles of the bill at stage 1, and the entire committee looks forward to continuing to explore the issues that will be raised by witnesses should the bill return to us for stage 2.

14:53

The Minister for Community Safety and Legal Affairs (Annabelle Ewing)

The Scottish Government stands on the side of the vast majority of football fans who want to enjoy the game with friends and family in an atmosphere that is untainted by offensive, abusive or threatening behaviour. Sadly, we continue to see problematic behaviour at football matches. A persistent minority seem to think that it is their right to behave as they please with no regard for those around them or wider society. We do not see similar behaviours at other sporting events or, indeed, in other places where large numbers of the public gather for entertainment. This season alone has witnessed the abuse of Dunfermline Athletic’s Dean Shiels by opposition players and fans; vile online abuse towards the young Celtic FC Foundation ambassador Jay Beatty; banners replicating images that are associated with paramilitary groups; and people posting offensive comments on social media about the Ibrox disaster.

Above all, we want to ensure that people remain protected from those crimes, and we recognise that those behaviours will not just disappear and that actions and interventions are required.

Johann Lamont (Glasgow) (Lab)

Does the minister agree that many good football fans who want the bill to be repealed also abhor that behaviour in a football ground?

Annabelle Ewing

I agree that the vast majority of football fans do not condone that behaviour. However, the fact of the matter is that many fans do not take their friends and families to football games now because of prejudicial and hateful behaviour. That is a terrible shame.

Neil Findlay (Lothian) (Lab)

Will the minister give way?

Annabelle Ewing

I would like to make a bit of progress.

Other interventions are, of course, recognised as being important, and I stress that the Government has invested £13 million since 2012 to support organisations to tackle sectarianism—an unprecedented amount that is far in excess of anything that was provided by previous Administrations. Our work has focused on education and schools, communities, prisons and workplaces, and has delivered the first ever national education resource and supported teacher training to roll it out.

James Kelly

Will the minister take an intervention?

Annabelle Ewing

I will take an intervention, even though Mr Kelly was not very keen on taking my interventions.

James Kelly

I am sure that there will be an opportunity in the summing up. Will the minister confirm that the budget for the work of the sense over sectarianism partnership was cut from £2.3 million in 2015-16 to £800,000 in 2016-17?

Annabelle Ewing

Mr Kelly has been misinformed. Funding of £2.3 million has not been awarded to any individual organisation. Sense over sectarianism has received a total of £340,000 from the Scottish Government in the past three years.

The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 is part of our work to tackle hate crime. The act was not about replacing existing law but about giving better and sharper tools to police and prosecutors. Section 1 covers hateful behaviour that stirs up hatred against others based on their religious affiliation, race, colour, nationality, ethnic origins, sexual orientation, transgender identity or disability. Why would we want to hear vile language used against any of those communities in our football grounds? In its most recent briefing notes, Stonewall Scotland confirmed that 60 per cent of sports fans have witnessed anti-lesbian, gay, bisexual and transgender language or behaviour in a sports setting, and 82 per cent said that it took place in relation to football.

Section 1 also prevents people from expressing support for terrorism and glorifying or mocking incidents that involve the loss of life or serious injury. What justification is there for allowing that behaviour at football? Freedom of speech has to be protected, but surely that has to be balanced against the damage that offensive speech causes. The Justice Committee heard from representatives of minority communities who emphasised the damaging impact that hateful language and behaviour have in undermining and destabilising our diverse communities.

Liam Kerr (North East Scotland) (Con)

Will the minister take an intervention?

Annabelle Ewing

I am sorry, but I must make progress.

The act provides extraterritorial powers to ensure that freedom of movement does not mean escaping the law. Section 6 brings Scotland into line with the rest of the United Kingdom in relation to incitement to religious hatred, ensuring that religious communities have as much protection in Scotland as they do in the rest of the UK. Those powers would be lost if the act were repealed.

We have heard that the 2012 act breaches human rights. When it was introduced, the bill that became the 2012 act was certified as being within the legislative competence of Parliament, which includes compliance with the European convention on human rights. There has been no successful legal challenge in the courts on the ground that it breaches human rights in all the time that it has been in force.

Some fans blame the act for a breakdown in relations between them and the police, yet the act makes no provision for policing. Police Scotland’s evidence to the Justice Committee was that there has been no deterioration of the relationship from a police perspective. Even if the act is repealed, the evidence to the Justice Committee suggests that there would be no change to operational police tactics. I thank the Justice Committee for producing a very thorough piece of work and I am considering action in response. I confirm that my officials have already been instructed to look at the scope for creating a legal definition of sectarianism and I will report on that in due course.

The Justice Committee report notes that those who are against repeal think that the act should be amended. We have been consistently clear in our commitment to work with those people who have concerns. If any party still wishes to pursue the amendment route, the door remains open. The Scottish Government is conscious of the will of Parliament, and if that will is to support the principles of the bill, it is entirely responsible for us—indeed, it is our duty—to make sure that the implications of such a move are fully understood and that action is taken to mitigate the impact of any gap in the law that would appear as a result of the repeal.

Equality groups have been very clear that they place great importance on the protection that the act offers them, and it is absolutely right that we look at constructive ways to ensure that support for repeal does not leave them feeling exposed and unprotected. If the bill is agreed to at stage 1, the Scottish Government will seek to ensure that there is a continuity of protection for minority communities.

We would certainly hope that even the most strident supporter of repeal would want to work constructively with us to build a consensus to put in place protections for all vulnerable communities ahead of repeal, including considering a delay in the implementation of the bill, if necessary, to allow us the time to do so. In particular, the loss of section 6 powers would be worrying for those communities as they are concerned about the possibility of their children, families and friends being exposed to online abuse, and it is right that that issue is addressed through legislation.

Simply going back to where we were before the act was introduced is retrograde and counter-productive and will do nothing to tackle abusive behaviour at football or protect vulnerable communities. Repealing the act—with no viable alternative—will do nothing to help us to build the country that we aspire to be. Regrettably, there would be negative consequences of repealing the act for our vulnerable communities, and I ask members to reflect very carefully on what they are doing.

15:00

Liam Kerr (North East Scotland) (Con)

I open for the Scottish Conservatives to speak in favour of the principles of the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill. The 2012 act is bad law. On its progress through Parliament, the initial bill was met with criticism and disapproval from all Opposition parties, who considered the legislation to be unfair, unworkable and inconsistent. Almost five years later, it is clear that that consensus remains—so much so that, in November 2016, a clear majority of MSPs voted to repeal the 2012 act as “a matter of priority”.

During the stage 3 proceedings on the 2012 act, Roseanna Cunningham, the then Minister for Community Safety and Legal Affairs, said:

“the critical role for Government ... is to ensure that the law is fit for purpose”.—[Official Report, 14 December 2011; c 4644.]

This legislation is not fit for purpose. A senior judge said that it was “horribly drafted”. Andrew Tickell told the committee:

“the act specifically instructs judges to completely ignore the actual context in which the behaviour takes place. That is perverse.”—[Official Report, Justice Committee, 14 November 2017; c 53.]

Professor Sir Tom Devine said that the 2012 act would go down in history

“as the most illiberal and counterproductive act passed by our young Parliament to date.”

The Scottish Human Rights Commission said that restrictions of freedom of expression made the act contrary to human rights treaties, and in 2014 reported its concerns to the United Nations so that it could monitor whether the restrictions placed on freedom of speech

“are truly necessary in a democratic society.”

John Mason (Glasgow Shettleston) (SNP)

Is the member arguing that there should be total freedom of speech and that there should be no limits on any hatred or anything else at football or elsewhere?

Liam Kerr

I refer John Mason to the interesting evidence that we heard at committee on that specific point. My response to his question is no. We are dealing with a specific act and, as we will see in a second, that act should be repealed for the reasons that I will come on to.

I can very easily get to a starting point that this law should not remain on the statute book, but I listened carefully in committee and reflected on a number of the concerns that were raised. I heard much concern about the message that would be sent if the act were repealed and note the important citations in the committee’s report in that regard. However, I have asked myself whether that message will be sent.

Assistant Chief Constable Higgins stated clearly:

“Repealing the act might be interpreted by some as a lifting of the restrictions on how they can behave in football stadia, or it might not.”—[Official Report, Justice Committee, 3 October 2017; c 3.]

Dr Joseph Webster said that repeal does not mean affirming the validity of the currently proscribed behaviour. He considered that how repeal is perceived is all our collective responsibility to deal with. He is right: it is all our duty to send a message that hate crime is illegal—and still will be after repeal.

James Kelly made an important and persuasive point that the current message is weak in any event. To say that legislation should not be repealed because that might send a problematic message to potential offenders is not a good enough reason not to repeal it.

Paul Quigley of Fans Against Criminalisation suggested that repeal would send a positive message. He said:

“Repealing the bill would send the message that football fans will no longer unfairly and unduly be criminalised as they have been under the 2012 act, in a specific way that people in wider society are not.”—[Official Report, Justice Committee, 3 October 2017; c 37.]

The second concern that I reflected on was that there might be a legislative lacuna. Seven months ago, Annabelle Ewing told us that repealing the act

“in the absence of a viable alternative demonstrates contempt for those targeted.”

That is correct. However, the committee heard from the Law Society of Scotland that all 287 charges that were brought under section 1 of the 2012 act in 2015-16

“could have been prosecuted under pre-existing legislation”.

Annabelle Ewing

I point the member to the evidence that was given by the Crown Office and Procurator Fiscal Service, which detailed exactly where the issues of concern would arise.

Liam Kerr

I am grateful for the intervention. I, in turn, point back to the evidence of ACC Higgins, who said:

“In the absence of the act, someone who was arrested for singing an offensive song would almost certainly have been charged with a breach of the peace or a section 38 offence.”—[Official Report, Justice Committee, 3 October 2017; c 19.]

Professor Fiona Leverick agreed, stating:

“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 … offensive behaviour at football matches could be dealt with under pre-2012 legislation.”—[Official Report, Justice Committee, 7 November 2017; c 32.]

My final concern was whether the act has worked. Dr John Kelly told the committee:

“since the 2012 act came in there have actually been more of what the Scottish Government might define as problematic songs.”—[Official Report, Justice Committee, 14 November 2017; c 50.]

Dr Joseph Webster said:

“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. … they have replaced certain songs and chants with other words in order to try to skirt the law.”—[Official Report, Justice Committee, 14 November 2017; c 49.]

Annabelle Ewing said that, sadly, we continue to see such behaviour at football. It is clear that she agrees that the 2012 act is not working. Even if we feel that such chanting has diminished, Professor Leverick told the Justice Committee that it is impossible to tell whether that is because of the act because there are so many other factors. Correlation is not causation.

The 2012 act has not brought about a behavioural change of itself. It has not changed the underlying drivers of prejudice or discouraged the expression of offensive behaviour. It has redirected those behaviours and prejudices and camouflaged them, but it has not stopped them.

The 2015 Morrow report states:

“there is no single, simple answer to deep-seated issues of social division such as sectarianism”

and that the key to achieving real change is a balanced mix of community-led, civil and Government action. We need an enduring change in culture and attitude, but that happens in homes, classrooms and communities. It is facilitated by the work of charities and third sector organisations such as Nil by Mouth. We need to see and support more of that community-led activity.

I have heard the objections and reflected on them. I have dealt with them and the only plausible conclusion is that the 2012 act must be repealed. Therefore, the general principles of the bill are sound and I shall vote accordingly.

15:07

Daniel Johnson (Edinburgh Southern) (Lab)

The Parliament has a mixed reputation when it comes to legislation. Some people believe that a structural problem—something to do with our constitution as a unicameral Parliament, perhaps—has led to poor-quality legislation, drafting errors or ill-thought-through laws being passed. Therefore, I welcome the reforms that the Presiding Officer has introduced to improve our processes. Perhaps more post-legislative scrutiny will help to improve the quality of legislation coming out of the Parliament.

That might be an unpopular opinion to voice in the chamber. However, it is one that many people outside Parliament hold, so I welcome the opportunity to speak in a debate on a particular form of post-legislative scrutiny because, when it comes to the 2012 act, those critics have a point. It is a bad law because, as the Law Society of Scotland has pointed out, it does not add to the existing law; because it has sown division between the people who feel targeted by it and the police; and because it is too open to interpretation by individual police officers.

Therefore, I very much welcome the opportunity to reconsider the 2012 act and take forward my colleague James Kelly’s proposal to scrap it. Mr Kelly has made the arguments well. I commend him for his stewardship of his member’s bill. As someone who has opened a consultation on a bill proposal, I know how much work it has taken him and his staff to get to this stage. I add my support, and the full support of Labour members, to the arguments that he made in his speech. However, I will take my speech in a slightly different direction and refute some of the arguments against scrapping the act.

First, there is an argument that we should wait until Lord Bracadale’s review into hate crime legislation is complete—Margaret Mitchell made a good comment on that. However, Lord Bracadale’s review is being run in parallel with the bill’s passage through the Parliament.

Lord Bracadale stated explicitly in his consultation paper that the recommendations

“will take into account the law as it exists or is anticipated at that point.”

We await his recommendations with interest and look forward to seeing how the Parliament can look to improve our hate crime legislation. However, using Lord Bracadale’s review to hold up the scrapping of the act would be spurious at best. Indeed, the Justice Committee’s report states that

“it would not be appropriate to delay consideration of this Bill”

on those grounds.

Secondly, there is an argument that scrapping the act will create a gap in the law, but that is simply not the case. Academics including Professor Leverick have argued that common-law breach of the peace, section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and a number of statutory aggravations can and should be used if the act is scrapped.

Annabelle Ewing

Will the member take an intervention on that specific point?

Daniel Johnson

I alluded earlier to the fact that the Law Society of Scotland argues that the 2012 act did not improve on the existing common law and statutory law and said:

“We ... are not of the view that its repeal will leave a gap in the criminal law.”

If Ms Ewing would like to say why it is wrong, I would be grateful to hear that.

Annabelle Ewing

I point the member to the evidence of the Crown Office and Procurator Fiscal Service, which he can read in the Justice Committee evidence sessions. Of course, repeal would also remove section 6 and, therefore, remove from Scots law the specific offence of incitement to religious hatred. Does the member feel that that sends a good signal to society?

Daniel Johnson

Again, all that the minister can point to is the signal. The point is that that section is ineffective, as has been pointed out a number of times. The fact that it has been used in only a handful of cases and the fact that so many people have pointed to the threshold being too high should allow the minister to realise that it is simply ineffective.

The Law Society’s evidence states clearly that all 377 of the charges under the act in 2016 could have been captured by pre-existing legislation.

It is not just academics and lawyers who are saying this. The police said in their evidence that repeal

“would not pose a significant operational challenge”

and that they would

“address the behaviour using other legislation.”

The assistant chief constable went on to say:

“regarding boots on the ground and how football matches are policed, little—if anything—would change.”—[Official Report, Justice Committee, 3 October 2017; c 6.]

Let us not delay the decision when no gap is created in the law and there is no impact on Lord Bracadale’s review.

Thirdly, there are arguments about the message that repealing the law would send out. Legislation, as we know, is not just about what is passed, but also about the message to society. Laws are both led by and lead societal change. The 2012 act had a clear message: it was clearly designed to show that action would be taken on sectarianism. What message will repealing the 2012 act send? I argue that it will show that this is a responsible Parliament that is fixing the problems created by poor legislation and scrapping a law that focuses overly on a particular group in society when the problems are part of a much wider societal issue.

James Dornan

Will the member take an intervention?

Daniel Johnson

I do not feel that I have time. I apologise to Mr Dornan.

Repeal will send out a message about the acceptance of sectarianism only if we let it. Throughout the passage of Mr Kelly’s bill, Labour has continued to argue that sectarianism is a blight on our country that shames us all. It is unacceptable and it should not happen. We must tackle the issue, but through education, particularly with young people. We should work with football clubs and fans to change their views. We will not allow anyone, therefore, to portray the scrapping of the 2012 act as sending a message that sectarianism is acceptable or that we are not keen to tackle it. Most important, my party and this Parliament, I believe, are united in our belief that action must be taken, but that does not justify an unworkable, illiberal, poorly drafted law remaining on the books.

The arguments that are put forward by the bill’s opponents simply do not hold up. There is no need to wait for Lord Bracadale’s review, no gap is created in legislation and there is no suggestion that, by repealing this law, we will send out any message other than that this is a bad law and we should scrap it. Its drafting, its controversy and its failure to do more than the existing laws have helped to discredit it. This Parliament has already voted in 2016 on a motion that called on the Government to scrap the act, and the Justice Committee has now delivered a report that agrees with that. Mr Kelly’s proposal is simple: we should scrap the act. I urge all members to vote for the bill at stage 1.

The Deputy Presiding Officer (Christine Grahame)

We move to the open debate. Speeches should be five minutes, although there is a little time in hand for interventions, which members can make up.

15:14

George Adam (Paisley) (SNP)

I have listened to the debate so far, and much has been made of the 3,000 fans who engaged with the process. However, the recent figures show that the average weekly attendance for the Scottish Premiership is 193,220. Therefore, only 1.5 per cent of that number of football fans have engaged in the whole scenario. We have to balance things and look at the matter from that perspective, as well.

I am the convener of the St Mirren Independent Supporters Association, which has a 28 per cent share in St Mirren Football Club. I am a great believer in fan empowerment. The whole idea of that programme is that, after a 10-year period, the fans and the community in Paisley will own their professional football club. For me, one of the most important parts of football is that the fans should be involved in it at all levels.

It was the great Pelé—who was, in my opinion, the greatest player the world has ever seen—who coined the phrase “the beautiful game”. There is no better explanation or description of football. The world over, football fans will argue about and discuss every aspect of the game. When football is played at its best, there is no other sport that can compete with it. However, that passion and spirit for the game can at times descend into a nasty place.

I came to the debate and dealt with it first and foremost as a football fan. Football is in my DNA—more accurately, St Mirren Football Club is in my DNA. The phrase “one town, one team” is used in Paisley. That is how many non-football-supporting Buddies and supporters of other towns’ teams look at their team.

As a football fan, I have seen how a minority of fans can ruin the beautiful game for others and become abusive and threatening. During the Justice Committee’s evidence sessions, I continually brought up why the 2012 act came into being and what had happened within and outwith our national game. An air of menace was connected with some games, which spilled out into normal day-to-day life. I have explained that repealing the act would send entirely the wrong message to those who seek to be offensive at football games. All the old song sheets will be dusted off in anticipation of the repeal. Is that really where we want to be in 21st century Scotland?

Liam Kerr

Does George Adam agree that the old song sheets have merely been updated and that people cover their mouths with their hands to sing the same songs?

George Adam

That is wrong. Even Mr Kelly, in his evidence, said that it is wrong for a football fan to sing a song that is not about football. Anything that is not connected to the game should not be at a football match. The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 criminalised hateful, threatening and offensive behaviour that is likely to initiate public disorder in relation to football, and I do not see why that is a problem.

As a fan, I will give a personal example. At a St Mirren v Celtic game in 2010, I witnessed an example of offensive behaviour that I found disgusting. Many members will be aware that my wife Stacey is a fanatical St Mirren fan, that she has multiple sclerosis and that she is a wheelchair user. At that game, some away fans had tickets for the St Mirren end and, at the end of the game, things turned nasty. Stacey had what she believed was a reasoned discussion with an away fan only to hear a Celtic fan shout, “Will someone shut that”—I will clean it up at this stage—“cripple up?” The situation descended into chaos. Fans on both sides found that behaviour totally unacceptable. Do we believe that it is right for football fans to express themselves in that manner? The 2012 act still allows fans to express themselves but not in an offensive manner. However, there are people who support the repeal who believe that a football fan should be able to sing and do what they like at a game.

Stuart Waiton, who is one of the academics who strongly supports Mr Kelly’s bid for repeal of the 2012 act, provided shocking evidence to the committee. In his oral evidence, he continued to state that fans can say what they like as often as they like at football matches and that they have the right to do so. In a book entitled “Football Hooliganism, Fan Behaviour and Crime: Contemporary Issues”, to which he contributed, he said:

“Perhaps most problematically, we now had a law in Scotland that could be used to target anything that a ‘reasonable person’ would find offensive at a football match, and yet football, in many respects, is all about being offensive.”

For me, there is a big difference between passion for the game—the competitiveness involved in supporting your team—and being offensive to someone at football. The Scottish Council of Jewish Communities agrees with me. In its written evidence, it said that it is

“concerned that repeal of the Offensive Behaviour at Football and Threatening Communications Act would send exactly the wrong message”,

adding that

“we urge the extension rather than the repeal of this legislation”.

I am not blind to the fact that the 2012 act needs to be reviewed. That is why, in the stage 1 report, I and my colleagues asked the Scottish Government to take another look at the act.

The Deputy Presiding Officer

Thank you. I am afraid that you must conclude. I gave you a little extra time.

George Adam

I am just concluding, Presiding Officer. I am just saying, let us not let those who want to be offensive at football win—

The Deputy Presiding Officer

That means conclude. I call Maurice Corry, to be followed by Mairi Gougeon.

15:20

Maurice Corry (West Scotland) (Con)

Sectarian behaviour and hate crime have no place at football games or in general Scottish society. Sectarianism has, for too long, been a blight on Scottish life and has been allowed to fester and create deep wounds within our communities. The way we shall fight and end sectarianism in Scotland is by changing our culture and our attitudes towards it. That will take place in homes, classrooms and communities the length and breadth of our country. In each situation, the action required will be different, as sectarianism has taken on different guises in each community that it affects. No single solution will fix every problem.

That work is already under way. It is being undertaken by a huge swathe of charities and third sector organisations. We need more support for that kind of work, not unnecessary legislation that adds nothing to the fight against sectarianism, and that is what the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 is—unnecessary. It is a politician’s way of looking as though they are trying to tackle the issue without really tackling the causes head on. It has not helped and will not help to tackle sectarianism in Scotland.

The Law Society of Scotland concluded that the new offence did not improve upon existing offences and that all 287 charges brought under section 1 of the legislation in 2015-16

“could have been prosecuted under pre-existing legislation”,

as my colleague Liam Kerr has stated. The Law Society concluded that the act

“has not been fundamental to tackling sectarianism”,

and I agree with that interpretation. The pre-existing offences such as breach of the peace and threatening or abusive behaviour already covered the types of offences that the 2012 act was designed to tackle.

The real tragedy about the 2012 act is that it was a wasted opportunity. It came at a time when the issues that often surround football in Scotland were flaring up badly both on the terraces and on the pitch. It had become accepted that something needed to be done, but the answer was not, and will never be, to railroad knee-jerk legislation through Parliament and try to arrest our way out of sectarianism. That was pointed out by Assistant Chief Constable Higgins when he spoke to the Justice Committee. He said:

“I cannot arrest my way out of changing hate crime and sectarianism in this country; a far wider approach is needed to challenging behaviour that is inappropriate.”—[Official Report, Justice Committee, 3 October 2017; c 16.]

What should have happened was engagement with the vast majority of civilised and law-abiding football fans in this country, rather than illiberal legislation that has left them feeling persecuted and blamed for the actions of a minority. They feel persecuted because they are being singled out as the only problem area in Scotland. Andrew Jenkin of Supporters Direct Scotland said:

“You cannot have legislation that applies to one specific sector of society; that is grossly unfair.”—[Official Report, Justice Committee, 3 October 2017; c 51.]

The consultation on the legalisation showed those feelings. As we have heard, a huge number of stakeholders took part, including more than 3,200 football clubs and members of the public, and the result was that 71 per cent of respondents backed the repeal of sections 1 to 5 and 62 per cent supported the repeal of sections 6 to 9 of the 2012 act. That is not because those people are not committed to fighting sectarianism, but because they see the act as doing nothing to fight it.

It is for the aforementioned reasons that I will vote for repeal of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.

The Deputy Presiding Officer

That was a bit of a mouthful for you at the end, Mr Corry—the name of the act.

15:24

Mairi Gougeon (Angus North and Mearns) (SNP)

I am always grateful for the time that I spend on the Justice Committee, because of the sheer scale of its remit and all the different items that the committee considers. I have not felt differently about our consideration of the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill. I would not say that I regularly attend football games, but I am a Brechin City FC supporter. My team took on Celtic at the weekend and, unfortunately, did not come out of the game too favourably.

If there is one positive to be taken from the process of scrutinising the bill, it is that it has given the Justice Committee and the Parliament the chance to scrutinise the operation and impact of the 2012 act. I genuinely welcome that opportunity, although I disagree with the Justice Committee’s conclusions. I do not support the general principles of the repeal bill because of the message that repeal would send out. That is not to say that the 2012 act is perfect, but the best way to deal with the issue is to amend the 2012 act, not to repeal it.

The committee received a great deal of written and oral evidence during the course of its scrutiny. I thank everyone who submitted evidence. It was apparent, right from the outset, that there were many contrasting and contradictory opinions. The Glasgow Bar Association pointed out that Police Scotland said that the power in section 6, on threatening communications, is not being used because of the narrow scope of the section and its wording. The witness went on to say that

“the police do not feel comfortable using it.”—[Official Report, Justice Committee, 7 November 2017; c 24.]

In that regard, I agree with some of the points that James Kelly made when he said that the intention is there but that section 6 has proven hard to implement. That might be the case, but, if the member agrees that section 6 is well intended and that there is work to be done there, the best approach would be to amend the section so that it works, not to remove it and leave nothing in its place—unless I missed him talking about alternative approaches in his speech.

I want to talk about the evidence from the Crown Office and Procurator Fiscal Service. Our witness from the COPFS made three points about section 6. First, he said that

“one of the pieces of logic behind section 6 was that it would address a debate in connection with the Communications Act 2003”,

in the context of whether someone could be prosecuted in relation to sent communications and threatening behaviour on forums and blogs. Secondly, he said:

“The principal benefits of section 6 are in relation to its extraterritorial provisions”.

Thirdly, he said:

“Section 6 also provides for greater sentencing powers than those in the 2003 act ... we have had a case in which an accused person posted comments that were supportive of a proscribed terrorist organisation—ISIS—and the view of the sentencer was that the severity of those actions should be reflected in a starting point of 24 months’ imprisonment. That starting point for the sentencer would not have been available in the alternative charge under the 2003 act.”—[Official Report, Justice Committee, 3 October 2017; c 20.]

We heard no alternatives from James Kelly, and I am seriously concerned about the impact that repealing section 6 without putting anything in its place could have in Scotland.

The committee also heard from third sector organisations and charities about the message that repeal would send. The witness from Stonewall Scotland told us:

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

In its submission, Stonewall said:

“We would oppose a repeal of Section 6, which provides important protection for LGBT people who are currently experiencing an increase in abusive and threatening communications online. We also strongly believe that condition B of section 6 of the 2012 Act should be extended to include disability, sexual orientation, transgender identity and race. Of these characteristics, only race is currently covered by other legislation.”

Stonewall was by no means alone in its view. It is important that we do not throw the baby out with the bath water, not just leaving a gap in the legislation but failing the large number of groups who feel protected by the 2012 act.

In summary, I quote the words of Andrew Tickell of Glasgow Caledonian University, who said:

“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.”—[Official Report, Justice Committee, 14 November 2017; c 38.]

As I said, I do not think that we would find one person in the Parliament who would say, after considering all the evidence, that the 2012 act is a perfect piece of legislation. However, the way to deal with that is to amend the act, not to repeal it.

15:29

Mary Fee (West Scotland) (Lab)

I am pleased to speak in favour of James Kelly’s bill to repeal the flawed and illiberal Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, which is a piece of legislation that was forced through by the SNP Government and was the first act of the Scottish Parliament to gather absolutely no support from Opposition parties.

It is clear that a wholly joined-up approach that includes schools, colleges, football clubs, leisure clubs and law enforcement, starting in early years education, is key to being proactive in tackling sectarianism.

Let me be clear at the outset. I take a zero-tolerance approach to all forms of sectarian or offensive behaviour. I have been a victim of sectarian abuse on more than one occasion, none of which was in the context of a football match. The most vitriolic of those episodes ended in court because of the laws that were already in place prior to the 2012 act. My son and I were subjected to vile and sectarian language and racial abuse outside my own home. The individual concerned was charged with both racially aggravated breach of the peace and aggravated sectarian breach of the peace. On both charges, the individual was found guilty and given a substantial fine.

Those same laws will be used to tackle offensive and sectarian behaviour occurring at football matches, just as they would have been without the 2012 act. That was confirmed by Police Scotland during the Justice Committee’s evidence sessions, when Assistant Chief Constable Higgins said that someone singing an offensive song would be

“charged with breach of the peace or a section 38 offence”.—[Official Report, Justice Committee, 3 October 2017; c 19.]

The Law Society of Scotland said:

“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.”—[Official Report, Justice Committee, 7 November 2017; c 32.]

Professor Fiona Leverick echoed that point.

It is therefore clear that there will be no gap in the law, as is being claimed by the Scottish Government and SNP MSPs. The targeting of football fans is unjust and illiberal. The fact that the 2012 act has damaged relations between fans and police was a predominant theme that emerged from the evidence sessions with fans’ groups and from written evidence.

Paul Goodwin highlighted the “horrific public relations” around the act. As we can all recall, the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill was rushed, and the Scottish Government, using its majority, forced it through Parliament.

As Stewart Regan of the Scottish Football Association points out, there is no similar summit called for each year after T in the Park, despite the high level of disorder and offensive and criminal behaviour of festival goers. No other sport or cultural event has gained the watchful eye of the Scottish Government in this manner.

Professor Leverick informed the committee that

“nowhere else has specifically football-related criminal offences”.—[Official Report, Justice Committee, 7 November 2017; c 25.]

Mairi Gougeon

I want to address the point about legislation specifically targeting football. How would the member respond to the fact that there are 87 pieces of legislation across the UK, both primary and secondary, that relate to football?

Mary Fee

No other legislature anywhere else has passed a specific piece of legislation that is similar to this act. That was made clear to us throughout our evidence sessions.

Repealing the act will allow the police to monitor football matches in the same manner as any other sporting event, using the exact same laws.

I have great sympathy with Stonewall Scotland and other equality and religious groups who express concern that repeal could send the wrong message. To tackle that, we must be more supportive of programmes and campaigns that encourage diversity and respect in football and at all cultural events. As a member of the Equalities and Human Rights Committee, I would like to see a more inclusive approach taken by clubs, supporters groups and fans towards generating a more welcoming and family-orientated atmosphere in our sporting grounds.

Tackling offensive and sectarian behaviour must continue through education. Educating people is a proactive measure, not a reactive measure, as this act is.

The Deputy Presiding Officer

I remind members that if they intervene, their request-to-speak light will go off. They should check that they still have a red light in front of them. Mr Dornan, I think that it is you at the moment, but it happens to everyone.

15:35

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Today is the culmination of many hours of evidence taking, report reading and outreach visits that took place for stage 1 of the bill. I, too, thank the clerks for all their hard work and organisation—as always, it was first class. I also thank the many witnesses who took the time to give evidence to the Justice Committee.

Clearly, this is a very contentious issue, which has roused passionate opposition among some football fans, and I respect that. Having been born in Glasgow and having grown up in the west of Scotland, I have always been aware of the poisonous sectarian divides that have historically been the scourge of Scotland. In 2005, the then Labour First Minister Jack McConnell said:

“For far too long bigoted sectarian behaviour has been a scar on Scottish life ... Bigoted sectarian attitudes have no place in 21st-century Scotland.”

He was not saying that sectarian attitudes are on display only at football matches, but no one—not even our many passionate witnesses—could deny that sectarian behaviour did and does take place at football matches. I was at an old firm match last year as part of a Justice Committee evidence-taking visit and heard it for myself.

Liam Kerr

George Adam was clear on that point: the act has failed. BEMIS, which was formerly known as the black and ethnic minority infrastructure in Scotland group, has said that the act fails to tackle hate crime. Does the member support both those views?

Rona Mackay

The act acknowledges that we have a huge problem and to repeal it would send out entirely the wrong message.

One of the recommendations in the stage 1 report is that the Scottish Government should consider a discussion about how we define sectarianism, should the bill progress to stage 2.

Like my colleagues, I believe that the act is by no means perfect. However, for several reasons, I do not believe that outright repeal, with nothing to replace it, is the answer. The bill could be amended to address the issues in section 1, which most repeal supporters object to. Of course, it would be for the Government to construct amendments, but perhaps the act could be extended to cover religious marches or gatherings where sectarian behaviour sometimes occurs, or sectarian behaviour happening at other events, as described by Mary Fee. With careful consideration of the objections received, I am confident that a compromise could be achieved to avoid total repeal.

Daniel Johnson

Will the member take an intervention?

Rona Mackay

I want to make a bit of progress.

I listened to James Kelly on television last night saying that he would work with the Government and others on alternative proposals—I would hope that he could do that on amendments to the existing act.

My main reason for not supporting the total repeal of the act is that I believe that, as others have said, it will send out the wrong message to society. We have taken bold steps to show that Scotland is not living in the past and to repeal the act in its entirety would be a retrograde step.

Furthermore, and crucially, the Justice Committee heard heartfelt evidence from Stonewall Scotland, Victim Support Scotland, the Equality Network, the Scottish Council of Jewish Communities, churches and the Scottish Women’s Convention that they did not support repeal, because the act comforted them and gave them a feeling of safety. We cannot ignore evidence from such respected bodies.

We all know that the majority of football fans go to a match to watch the game and cheer on their team, so the act does not really concern them. I have asked friends who I know attend football matches regularly and all, bar one, were indifferent to the existence of the act. It is a vocal minority that opposes the act, and it is their right to do so.

We have heard a lot about section 6 of the 2012 act, which is extremely important. There would be a gap in the law if that section was thrown out as a result of the bill. My colleague Mairi Gougeon outlined examples of that. Of course, there were divided opinions on that during evidence taking, but, again, the perception of throwing out an act that condemns threatening communications would send out a problematic message from this Parliament.

In the committee’s questionnaire to secondary schools, almost 66 per cent of pupils said that they had experienced online offensive behaviour. That is a critical problem today.

If the principles of the bill are agreed to, I hope that, as has been said by the minister and others, there will be enough time to plug the holes in legislation that would occur following repeal of the act.

I urge Parliament not to kill the 2012 act but to amend it to send out the strong message that Scotland has moved on and intolerant attitudes have been consigned to history.

15:40

John Finnie (Highlands and Islands) (Green)

I refer to my entry in the register of members’ interests and to my various associations with Heart of Midlothian Football Club.

The purpose of the committee’s deliberations was to scrutinise Mr Kelly’s bill but, by default, we in effect ended up doing post-legislative scrutiny on the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. It was good scrutiny, and I thank everyone who participated in it. I thank our clerks and those who submitted briefings. My view is that that scrutiny found the legislation wanting and that, clearly, Mr Kelly has made his case. In part, that has been acknowledged by all the speakers thus far—no one has yet stood up and said that the act is fine as it is. I certainly support Mr Kelly’s keenness to see the act repealed at the earliest opportunity. The Scottish Green Party, which has consistently opposed the act, shares that view, and we will vote accordingly at decision time.

In the short time that I have available, I will comment on one or two aspects of the debate. One is the perception that is often put about by people who are unconnected to football that football fans are at war with the police. That is not the case; indeed, it is not what we heard from the police. Our report says:

“The Committee also recognises that the number of football fans engaging in criminal behaviour is minimal, and welcomes the context provided by the SFA, Police Scotland and fans’ groups to demonstrate this”.

It is important to put things in perspective. It is also important to note that the most significant aspect of policing that has affected football is self-policing—the tartan army is often talked about in relation to that.

There is an interesting debate about the right to offend. I certainly hold views that others would find offensive, and there are a lot of people who hold mainstream views that I find deeply offensive. However, that is a debate for another time. We are dealing with a specific piece of legislation.

On the peculiarity of the section 6 offence in the 2012 act, people have talked about it being bolted on to a specific piece of football legislation, despite the fact that it has a wider application. I will quote some valued witnesses that I often find myself quoting in relation to legislation—I thank them for their briefings and their evidence. The first is the Law Society of Scotland. In relation to section 1 of the 2012 act, the society’s evidence about the gap in the law refers to the specific case of Mark Harris v Her Majesty’s Advocate, from 2009, and goes into detail about section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, which has been alluded to by other members. The Law Society states:

“These examples demonstrate the ability of the criminal law to address the types of behaviour that the 2012 Act has sought to address.”

It goes on to say:

“We do not believe that the Section 1 offence has improved the common law breach of the peace or Section 38 ... and are not of the view that its repeal will leave a gap”.

The more significant issue relates to section 6 of the 2012 act, which is on making threatening communications and on which we received a lot of information. I will not quote verbatim from the Law Society’s evidence but, tallying it up, I find that it mentions six provisions, starting with common law breach of the peace, section 38 of the 2010 act, the Public Order Act 1986, the Criminal Justice (Scotland) Act 2003, the Crime and Disorder Act 1998 and section 127 of the Communications Act 2003. The Law Society says:

“We do not believe that the Section 6 offence has improved upon the common law and laws based in statute to address this type of behaviour and are not of the view that its repeal will leave a gap in the criminal law.”

Mairi Gougeon

How does the member address the specific points that I raised earlier and that the Crown Office and Procurator Fiscal Service brought up in its evidence about the fact that section 6 tidied up grey areas of the law in the Communications Act 2003? What will we do if section 6 is repealed and where do we go from there?

John Finnie

I commend Professor Leverick’s evidence on alterations that could be made, with which the member will be familiar.

Stonewall is another organisation by whose views I set great store. Its members face unacceptable situations at football, but we know that that happens notwithstanding the 2012 act being in place. I think that the consensus in the committee was that sectarianism and abuse of that nature will be addressed by education. That is the approach that I would commend. I also commend the rainbow laces initiative.

Probably the most compelling piece of evidence for me was from the Scottish Human Rights Commission. When an esteemed organisation such as that states:

“the Commission considers there is a strong likelihood that key provisions of the Act fall short of the principle of legal certainty and the requirement of lawfulness”,

that, for me, is damning for the 2012 act.

Finally, looking ahead, I commend Sacro’s tackling offending prejudices service—STOP—which can be an alternative to prosecution. Early intervention to address the issue, connected with education, is the way ahead, so we will be supporting Mr Kelly’s bill.

15:45

Liam McArthur (Orkney Islands) (LD)

When we had a debate on the issue in November 2016, I called for the Government’s discredited Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 to be sent for an early bath. On that occasion, Parliament agreed. Since then, for me, the evidence that has been received by the Justice Committee has, by and large, reinforced that view. I am grateful to all those who took the time to share their insights—on whatever side of the argument they fell—as well as to the committee clerks, the Scottish Parliament information centre and committee colleagues.

Of course, repeal of the 2012 act is not an end in itself. Efforts to combat the stain of sectarianism must be redoubled, as should our wider efforts to crack down on hate crime more generally. As the advisory group on tackling sectarianism made clear however, the foundations for change rest on initiatives that focus on prevention and on building trust and understanding, and on recognising that councils, churches, football clubs, schools, the media, and community organisations are all key to delivery of effective grass-roots solutions.

The committee’s stage 1 report puts up front our collective condemnation of sectarianism and hate crime—a consistent message that has been sent out by this Parliament over its lifetime. To those who are concerned that repeal will dilute or undermine that message, I offer reassurance that the Scottish Liberal Democrats will always support effective evidence-based measures to tackle hate crime. What we will not do, however, is stand by while counterproductive quick fixes are put in place in order to garner headlines, but which undermine genuine efforts to tackle complex problems.

I also struggle to accept that the wrong message will be sent by repealing an act that—as we have heard repeatedly—does not in fact provide the protections that its supporters claim it provides. We do no one any favours by leaving unchallenged that sort of false comfort and confidence. That view is apparently shared by BEMIS and the Coalition for Racial Equality and Rights.

James Dornan

Surely nobody is asking Liam McArthur to leave that unchallenged; surely what people are asking him to do is suggest something to put in its place. To say that the only method of dealing with the matter is to repeal the act and leave gaps—no matter what is being said by members of other parties—is surely wrong.

Liam McArthur

With all due respect, I think that Mr Dornan has not listened to what I have said. To provide false comfort and certainty through legislation that is ill-judged, that is mistargeted and that is actually damaging those relationships seems to me to be something that Parliament should resist at all costs.

I accept that a distinction must be made between the nature and effect of section 1 and section 6 of the 2012 act. I have some sympathy for those who are concerned about repeal of the latter, and I will come back to that in due course. No such qualms exist over repeal of section 1—it being the reason, no doubt, that one judge described the act as “mince”.

Time and again, we heard criticism of the 2012 act’s ill-conceived knee-jerk reaction to albeit reprehensible scenes at an old firm game and to other serious incidents at the time. The act was railroaded through Parliament by a First Minister who was deaf to concerns about the lack of compelling evidence that the tools that were at the disposal of the police, courts and our judicial system were inadequate, and who was deaf also to concerns about the impact that the legislation would have, and has had, on relationships between football fans and the police.

Mairi Gougeon

Will Liam McArthur give way?

Liam McArthur

No, I will not.

Criminalising one section of society in one set of circumstances while leaving wide open what constitutes “offensive behaviour” was unjustified, illiberal and dubious in terms of human rights.

Should the act be repealed, there will be no gap in the law. Breach of the peace and other powers exist and will be used, as various expert witnesses told us, including Police Scotland.

Annabelle Ewing

Will Liam McArthur give way?

Liam McArthur

The minister can address that point when she winds up.

Plugging a gap that does not exist is, at best, gesture politics. Now, faced with the prospect of defeat over repeal, SNP ministers offer talks on how best to clear up the mess that they created. That is a desperate injury-time bid to save face.

Of course, Lord Bracadale’s on-going review is welcome and will help us in respect of how we will tackle wider hate crime issues in the future. The idea, however, that we should hold off taking action on the 2012 act until Lord Bracadale has completed his report is misplaced; indeed, I suspect that it is not a view that is shared by Lord Bracadale himself. Even if he reports later this year, his recommendations will not find their way into a draft bill, let alone on to the statute books, for years. As I pointed out in committee, only now is the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill implementing proposals from Sheriff Principal Taylor’s 2013 report. In the meantime, the damage that is being done by the illiberal legislation that is the 2012 act—notably, by section 1—demands attention.

As I said earlier, however, section 6 presents a more nuanced argument. The provisions on threatening communications have at least the benefit of applying across the board rather than to just one section of society on one particular day. Although the section 6 powers have not been greatly used, there is more of a case for saying that on repeal a gap might come into being in that respect. The concerns of various religious groups appear to relate more to section 6, so I am persuaded that at stage 2 we will need to consider how repeal might be timed in order to avoid a hiatus.

Parliament must send out a strong message today that hate crime in all its forms is unacceptable, but that cannot be achieved by pretending that complex issues can be addressed through oversimplified solutions. It seems that the SNP’s approach to legislation can often be summed up by the view that if the only tool that we have is a hammer, we should treat everything as if it were a nail.

The Deputy Presiding Officer

Please conclude.

Liam McArthur

Those who argue that supporters of repeal are apologists for sectarianism are wrong.

15:51

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

As a member of the Justice Committee, I thank committee colleagues, our clerks and all the witnesses who gave evidence.

Like many people in Scotland and around the world, I love football. I loved playing it growing up in primary school, in secondary school, in university and at club level. Some of my friends have been professionals and I still enjoy a kick-about and going to watch matches, when I can. Football is absolutely “the beautiful game” and everyone should be able to enjoy watching and playing it without experiencing offensive behaviour or intimidation. Although the majority of football fans are respectful and well behaved, football can have a negative and polarising effect on people and their communities. Unfortunately, that is still the case at times here in Scotland.

I am clear that the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012—not the “football act”, as it might have been erroneously described—is not perfect or a panacea. One thing that became clear during the Justice Committee’s recent deliberations on the 2012 act is that it could certainly benefit from review and reform. However, what is equally clear is that repealing the 2012 act without having a viable alternative to it would be irresponsible and reckless, because it provides a useful set of powers for police and prosecutors. As law lecturer Andrew Tickell astutely said, repealing the 2012 act would be

“like using a sledgehammer for a task for which a scalpel is better devised”.—[Official Report, Justice Committee, 14 November 2017; c 38.]

Johann Lamont

Given that the Parliament voted a year ago to express its view that the 2012 act should be repealed, is not it irresponsible of the minister not to have brought a review of the legislation before now to address the member’s concerns?

Ben Macpherson

The meaningful and constructive thing to do is exactly what the Government has done, which is to conduct a review of hate crime legislation as a whole, and thereafter to reflect on that evidence and think about how we can do something comprehensive. The irresponsible thing to do would be recklessly to repeal the 2012 act in full, which would leave a gap in the law in respect of section 6.

The position as I see it is that repealing the 2012 act will not be in the interests of the common good, but neither will leaving it unamended in the medium to long term, in its current form. In my view, we should be debating how to reform the 2012 act and make it more effective. Mr Kelly’s repeal bill is a destructive measure, so I will not vote in favour of its general principles. If the bill passes stage 1 today, he and many others might see that as scoring a crafty goal against the SNP, like a poacher on the six-yard line, but such populism is irresponsible and unhelpful. It would certainly be irresponsible to rush his bill through. In good faith, I ask him not to rush it through without adequate time for the authorities to prepare for the landscape post the 2012 act.

There are many reasons to retain the 2012 act. It is supported by most people in Scotland: 83 per cent support legislation to tackle offensive behaviour at football and 80 per cent support the act directly. Removal of section 6 would create a gap in the law—in particular because it criminalises threats that are made with the intention to incite religious hatred, which was not previously covered by Scots law. Section 6 also has extraterritorial application, which will be unavailable to prosecutors if the 2012 act is repealed.

We should listen to stakeholder groups, who have expressed concerns about repeal of the 2012 act. I could quote many concerns from the evidence to the committee, but I will be brief because my time is running out. The Church of Scotland gave evidence that:

“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.”

The Scottish Council of Jewish Communities said:

“repeal of the Offensive Behaviour at Football and Threatening Communications Act would send exactly the wrong message.”

Reforming and amending the 2012 act would make a meaningful and constructive difference, but repealing it without a viable alternative would be reckless and irresponsible.

15:55

Brian Whittle (South Scotland) (Con)

I am grateful for the opportunity to speak in today’s debate. It is important to recognise that, although progress has been made in recent years, Scotland still has an issue with sectarianism and other offensive behaviour, as other members have highlighted. Those of us who, over the years, have witnessed old firm and other football matches at first hand cannot fail to be aware of the kind of behaviour that we are discussing today.

Such behaviour is not confined to the terraces. Let us be clear at the outset that not only is such behaviour unwelcome and unacceptable in modern Scotland, but that the law states that any behaviour that causes personal offence—be it sectarian, homophobic, or racially motivated—is a breach for which the perpetrators can and should be charged appropriately. However, the knee-jerk reaction after a particularly fiery old firm game by the then First Minister Alex Salmond, when he said that something must be done, led to legislation that is poorly written and therefore difficult to enforce.

Annabelle Ewing

It is important to remember that the game to which the member refers was not the catalyst, but was just the tip of the iceberg. Explosive devices had been sent through the post to various figures and death threats were made against Neil Lennon. It is important to remember the context.

Brian Whittle

We are talking about the context of offensive behaviour: such sectarianism at old firm matches has been going on for a very long time. I suggest that although we have some way to go, progress has been made. As I have said before, such behaviour at football—as in any other situation—is reprehensible and should be dealt with as such.

However, no matter how good or otherwise were the intentions of the then First Minister, bad law is bad law. Where implementation of the law is problematic, it has to be questioned, as must its relevance—especially on issues for which the law already caters.

The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 focuses on behaviours at specific events. In reality such behaviour is a societal issue. It is not specific to football. Singling out such behaviour around 90 minutes of sport detracts from the overarching issue. We all agree that the issue has to be tackled, but where law is already applicable, the focus should be on how we better address, educate about and change such behaviour in our school playgrounds and in our communities. The fact that such behaviour manifests itself in a more public way when crowds of people turn up at a football ground and shout at each other for 90 minutes while the football match is going on in the background should not disguise the fact that it also goes on in our communities, just the same.

Should we be asking the football clubs to do more? Absolutely. They have a significant part to play, and that should be an ongoing process. Should we attempt to single out and disproportionately penalise a certain section of society because we can and perhaps because that highlights that at least we are attempting to do something? No.

We agree that policing by consent is desirable, but the 2012 act is contrary to that ethos. Police find it difficult to apply the act consistently. That being the case, it is time to have a rethink. As the original bill progressed through Parliament, opposition parties were critical of it for being unfair, unworkable and inconsistent. While the 2012 act has been in place, that consensus has been reflected on the ground by people who have to attempt to implement the law.

The then Minister for Community Safety and Legal Affairs, Roseanna Cunningham, said quite rightly that the critical role of Government was to ensure that the law was fit for purpose, but when a senior judge says that the legislation is “horribly drafted” and that it specifically instructs judges to completely ignore the actual context in which the behaviour takes place, that is perverse and it is obvious that the bill has missed the mark that was indicated by Ms Cunningham.

There is a worry that scrapping the act will send the message that the behaviour in question is somehow acceptable, but I argue that targeting football supporters actually helps to perpetuate sectarianism. We recently lost Cyrille Regis, who was a pioneer in tackling racism in sport in the late 1970s. He and two of his cohorts, Laurie Cunningham and Brendon Batson, played for West Bromwich Albion at a time when racism was rife and obvious on the terraces. However, as a result of enduring education and positive reinforcement, that kind of blatant racism is unthinkable today. Change can be made without the need for legislation such as the 2012 act. I argue that an educational approach is far more effective.

It is entirely right for Parliament vigorously to pursue methods of eradicating hate crimes for good, wherever they occur; in fact, we should do that before they occur. However, if the act in question is ineffective in meeting its objective and when it brings into question issues of human rights, it is time for a rethink. Bad law is bad law. The SNP Government needs to take heed of the mounting evidence and to repeal the 2012 act.

16:01

John Mason (Glasgow Shettleston) (SNP)

Clearly we are debating a very hot topic—offensive behaviour at football—but we are also touching on issues that emerged 500 years ago with the reformation, subsequent wars and the persecution of a whole range of people throughout Europe in the name of Christianity. First of all, then, I want to say how disappointing it is that sectarianism and related issues have developed, despite the fact that Jesus himself prayed that his followers would be one, united in their love and commitment to him.

We should acknowledge the history of sectarianism, anti-Catholicism and anti-Irish racism in the west of Scotland. The Catholic or Irish minority has been badly treated, and we cannot ignore the fact that that has left scars. As has been said in the past, Scotland has been nervous about talking about the issue, and I pay tribute to Donald Gorrie of the Liberal Democrats and Jack McConnell of Labour for making it clear, since the Parliament’s re-establishment in 1999, that we need to face up to it.

After a period of less activity on the matter, we in the SNP felt—absolutely correctly—that we had to do something. The previous common and statutory law was clearly not working, and I fully support the decision that legislation was needed. However, I accept that the bill was too rushed—after all, a problem of 500 years’ standing could not be sorted in one year—and that I, as a back bencher, should perhaps have questioned the timescale. However, I was new to the Parliament in 2011, and I failed to do that.

That said, we are where we are, and as the Justice Committee itself heard, there is a danger that repeal of the 2012 act will send out the message that any songs, chants or expressions of hatred are acceptable at football.

Neil Findlay

Is that not the exact point? Is it not the case that having a group of back benchers who never question anything leads to bad law being brought in?

John Mason

If the member knew me, he would know that I have questioned a few things and that the present and previous First Ministers have had me in their offices to shout at me.

One point that I certainly agree with in the committee’s report is the need for a definition of sectarianism. I should point out that, by “sectarianism”, I also mean anti-Irish racism and anti-Catholicism, but it is a bit of a mouthful to say that every time. In that respect, I felt that the definition set out by Duncan Morrow’s advisory group, particularly in its interim report, was very good.

I want to deal with one or two points that have been raised with me during this process. First, people have asked me why football has been targeted. I think that one of the answers to that is that when the public was asked about sectarianism, 88 per cent of them linked it with football. Moreover, I think that some people behave worse at football than they do in other parts of their lives. When I attend football matches, I see folk who appear to behave very well elsewhere behaving a lot worse.

James Kelly

Will the member give way?

John Mason

I am sorry, but no. I have already taken an intervention.

I see fans being ejected from games and sometimes being suspended by a club—including by my own club, Clyde—who could easily have been charged. I think, therefore, that the legislation is being enforced extremely leniently, not least because the police cannot be expected to wade in and arrest 10,000 fans. In that regard, I think that Rangers and Celtic fans have been dealt with more leniently than fans at smaller clubs, who are easier to deal with. The recent incident of plastic eyeballs being thrown on to the pitch to mock a disabled player suggests that behaviour at football is worse and needs to be targeted.

Secondly, people say that something cannot be allowed in one place but not another. That is wrong: we allow drinking inside but not on the street; and alcohol is allowed after 9 pm in many places, but not on trains. If we have a problem in a particular place—such as at a football ground—it is perfectly reasonable to tackle it at that place.

Thirdly, people say that education is enough. I agree that education is part—a very important part—of the answer. Books such as Theresa Breslin’s “Divided City” are great. “Divided City” is used in schools, and I have seen a dramatisation of it performed by youngsters at the Citizens Theatre. However, education has not worked and, I fear, will not work without legislation as well. The tackling of smoking and alcohol abuse has needed legislation as well as education, and I am convinced that sectarianism and hatred need legislation, too.

Fourthly, people ask, “What about marches?” I agree that marches, in particular Orange marches, encourage hatred. The whole atmosphere in Glasgow is poisonous on the days when there are big Orange marches. Therefore, I hope that Lord Bracadale’s wider review of hate crime legislation will cover the issue of marches as well.

Fifthly, people ask, “Is freedom of speech not important?” Yes, freedom of speech is important. It is a great right, but it is not unfettered.

Sixthly, people say that the 2012 act is vague. I accept that it is vague, but it is lot less vague than breach of the peace.

The 2012 act is not perfect, but it has had some success in people being charged, and in sending out a message that expressions of hatred, sectarianism, anti-Catholicism and anti-Irish racism are not acceptable in modern society. We take a grave risk of moving backwards if we repeal it, and I strongly oppose James Kelly’s bill.

16:06

Johann Lamont (Glasgow) (Lab)

I am happy to speak in this important debate. I should declare an interest, in that I am a Celtic season-ticket holder, my brother and his family are Rangers supporters and, for good measure, there is no greater fan of Kingsley the Partick Thistle mascot than I. I love football, and many people across this country love football and are paying attention to this debate today.

I was Labour’s justice spokesperson when the debate on the bill that became the 2012 act emerged as a consequence of events at a Rangers-Celtic game—it was that specific. The then First Minister said that he would legislate by the start of the new season. A good soundbite, I guess, but it soon hardened into an impossible timetable, with poor legislation developed with little thought and even less clarity. As a result of all the reservations that were expressed by members from across the chamber, including some on the SNP back benches, the First Minister paused the process, but he then chose to dig in rather than reach out to others who were concerned about football.

I do not believe that there is anyone in the chamber who wants to celebrate sectarianism, who wants to hear racist, sexist or homophobic abuse at football or anywhere else, or who would want to deny anyone protection from that abuse. This is not a debate about who cares most about that abuse; it is a matter of judgment, seriously addressed. That judgment concerns whether the 2012 act makes things better or worse. As someone who has fought all her life for equality, I take the view that it makes things worse.

Further, this is not a bubble debate in which we can practise our outrage and demonise one another. The truth is that the bill that we are debating is here not because of party interest but because, out there in the real world, many serious people oppose the 2012 act, have been victims of its lack of clarity or see it as illiberal and ineffective. Members can demonise me, but they ought not to dismiss the astonishingly broad coalition of people who want the 2012 act to be repealed.

I notice that some have sought to personalise the debate and to say that James Kelly is being irresponsible in taking his bill forward. I agree that he should not need to be doing what he is doing, because any responsible Scottish Government that was worthy of its name, which saw the injustices that were being perpetrated in its name through the 2012 act and which was aware of the widespread opposition to it inside and outside the Parliament would already have acted to repeal it and would have ensured that there was a safety net if it perceived there to be a gap. I say to the Government that there is no shame in admitting that it got it wrong, but there is shame in obdurately refusing to listen.

The strongest argument that I have heard against repeal is that the 2012 act sends a message. However, it is not clear what that message is. For some people, it sends a very mixed message. In truth, it is difficult to know how to avoid prosecution under it. I can say something here in the chamber without harm, but if I said it at a football match, I could be prosecuted. I could say something in the pub with the television showing the football and I could be prosecuted, but if somebody switched the television to the tennis, I would not be prosecuted. For too many football fans, it sends out an all-too-clear message: football fans are uniquely offensive and given to racist, sexist, sectarian and homophobic abuse. Football fans reflect our society, and we should tackle abuse wherever it occurs. The abuse is the issue, not the venue.

How do we get change? We do so by understanding how football has already changed. I hate to tell younger people here that when I was young, Scottish football fans were horrible, but the tartan army transformed into a group that was willing to celebrate football without being abusive. When I was young, I watched the first black player for Rangers, Mark Walters, at Celtic Park and I was ashamed to see Celtic fans throw bananas on to the pitch; my husband wrote to Celtic View to insist that the fans desist. That would not happen now, partly because of education and partly because of the enforcement of the law, but also partly because football fans themselves chose to act to take on those who shamed their clubs and shamed their country.

As a woman at the football, I have seen that football has changed immeasurably. We can work with fans and the police to put in place measures that will support decent fans who simply want to enjoy the game. The 2012 act does the opposite: when people go to a match, they do not know whether what they are doing is prosecutable or not. The Scottish Government sends another mixed message: it clings to an act that does not work and, at the same time, it has systematically stripped funding out from the very organisations that will tackle sectarianism, bigotry and abuse and do the work that needs to be done in our communities to root out those attitudes.

The Deputy Presiding Officer

You must come to a close, please.

Johann Lamont

Those programmes have gone, and all we are left with is an act whose title and provisions create difficulties in our communities. I support its repeal because I believe that that will do football in this country, the people who go to football matches and our broader communities the best service.

16:12

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I am a member of the Justice Committee, which has scrutinised the bill at stage 1. We heard a wide range of evidence and I put on record my thanks to all those who gave evidence and, of course, the clerks. As others, including James Kelly, have said, the report was very well written and captured all the main points.

As an Albion Rovers supporter who attends games with attendances of around 400, where the police officer on duty that day takes time to speak to fans in a normally family-friendly environment, I have found the process of scrutiny to be of great interest. As an MSP who was not elected when the 2012 act was passed, I think that it is important to note what we have been asked to scrutinise. John Finnie touched on that point. We are being asked not whether we should implement this law but rather whether we should repeal it. I approached the evidence gathering in that manner and thought about the repercussions of repeal without anything else being in place, as proposed by James Kelly.

The constituency that I represent has, unfortunately, like much of central and west Scotland, been blighted by the curse of sectarianism. We cannot deny that and we should never shirk from trying to tackle it. I applaud all members of the chamber who have addressed that issue in their speeches today. Football has a role in this; I have many friends and family who will not take their children to Celtic Park or Ibrox because of perceived behaviours that they may be exposed to by a minority of fans.

I am part of the second generation of a family without religious ties. That came about as a result of the wedding of my grandparents in 1952: my gran a Roman Catholic from Ireland who, with her family, had settled in Coatbridge and my granddad a Protestant, also from Coatbridge. Apparently, the wedding caused a few shock waves at the time, but I just like to think of them as Coatbridge’s Romeo and Juliet of their generation. However, whether we are part of it or not, sectarianism affects everyone in every part of civic Scotland, from offensive remarks on Facebook to running battles on Whifflet main street on match day to those saddening scenes of flag waving on 19 September 2014 in George Square against a backdrop of flares and mounted police.

I thought that it was great when the 2012 act was passed because although it might not solve all the problems, it would start to tackle them. When I heard the evidence for repeal, I was surprised at the strength of it. Heritage, culture and freedom of speech are important—I believe in all those things, too—and I pay tribute to all those who gave evidence and made that case, including Fans Against Criminalisation, BEMIS and Stewart Regan from the SFA.

Equally, we heard compelling evidence to retain the 2012 act—because laws must be made to protect us—from organisations such as Stonewall Scotland, the Scottish Disabled Supporters Association and the Scottish Women’s Convention. Many of those organisations represent minority groups and are extremely concerned about the impact that repealing the legislation would have and what message it would send, and some of my colleagues have talked about the content of their evidence.

On balance, I am minded to vote for retaining the 2012 act and therefore to vote against the repeal bill tonight. There was evidence from different witnesses—albeit conflicting, as has been teased out—that there would be a gap in the law, particularly in relation to section 6, and that we would be failing to protect the majority of football fans and the wider public more generally.

The majority of those who gave evidence on both sides of the debate indicated that they would prefer to delay any repeal until after Lord Bracadale’s review. However, as the Justice Committee convener has said, the committee, after some debate, agreed unanimously that, in order to be fair to the review and because the review has no time limit, consideration of the bill should not be delayed.

It has not been an easy position to reach for me because, as I have outlined, there were persuasive arguments on both sides. I draw members’ attention to this statement in the stage 1 report, which has already been mentioned:

“The minority who voted against the general principles of the Bill are of the view that, should the 2012 Act be retained, the Scottish Government should revisit the 2012 Act and bring forward constructive amendments.”

Ben Macpherson and Mairi Gougeon have made that point very clear. My colleagues and I are not simply in favour of retention of the 2012 act for retention’s sake. Our stance is that, rather than repealing the 2012 act, the Government should amend it to take on board the many concerns, particularly around section 1 and, ultimately, make it a better law that works, because that is what we all want.

I will quickly discuss the issue that James Kelly mentioned and on which I tried to intervene—it came up in evidence, too—of young people, perhaps with no history of offending, picking up convictions for offences established under the 2012 act. As someone who has a background in criminal justice social work and youth justice, I was worried by that, particularly as the Scottish Government has made funding available for a diversion scheme through Sacro and, under the current justice secretary, placed more emphasis on restorative justice and diversion from prosecution. However, I am also clear that that is not an issue to do with the act itself and should not be argued as a reason to repeal; rather, it is an issue of implementation and of courts, local services and prosecutors knowing what diversion schemes are available.

If the repeal bill is agreed to, which seems probable, we must get on with respecting that democratic will and implementing the outcome. I know that the Scottish Government will take steps to ensure that we continue to tackle sectarianism in the post-repeal period. If, however, the 2012 act is retained, I think that those with concerns can be assured that the Government will be strongly encouraged to revisit and improve the legislation, as set out by SNP members in the committee.

16:18

John Scott (Ayr) (Con)

I welcome today’s stage 1 debate and congratulate James Kelly MSP on introducing the repeal bill. I thank the Justice Committee for its hard work on the bill, and note that it has backed the general principles of the bill. I welcome the committee’s stage 1 report on what is essentially post-legislative scrutiny of the 2012 act. The report is not kind to the Scottish Government, and the 2012 act is perhaps the classic case in legislative terms of the SNP Government acting in haste and repenting at leisure.

I have a deal of sympathy for Roseanna Cunningham MSP, who was charged by her colleagues with getting a bill dealt with quickly. The SNP majority Government of the day rammed it through Parliament in order to get it on to the statute book. I share Johann Lamont’s recollections of the shortened timescales that were demanded of the minister.

The bill’s flaws were manifest at the time—they were well documented in Parliament then and they have been well documented since. The sound of wings flapping over Holyrood recently is merely the sound of chickens coming home to roost on this poorly thought-out piece of legislation.

To quote the Justice Committee’s stage 1 report, its SNP members

“are of the view that, should the 2012 Act be retained, the Scottish Government should revisit the 2012 Act and bring forward constructive amendments.”

That tells us that even SNP members accept that the 2012 act is not fit for purpose. They are not alone in their condemnation. On that, we as parliamentarians also have to thank the people who provided the 286 submissions to the Justice Committee in response to its call for evidence because 227 of those submissions were in favour of repeal of the 2012 act. That is, almost 80 per cent of the respondents wanted the act to be repealed.

Annabelle Ewing

Will John Scott give way?

John Scott

I am sorry, but I do not have time. The minister will be able to make her remarks in her closing speech.

Condemnation of the act was not limited to submissions in response to the call for evidence by the committee. More than 3,200 football clubs and members of the public took part in the consultation on James Kelly’s member’s bill proposal and 71 per cent of those respondents backed repeal of sections 1 to 5, while 62 per cent supported the repeal of sections 6 to 9.

Therefore, this is post-legislative scrutiny in action and the Conservatives will support the repeal of the 2012 act. Of course, if no other law were available to deal with bad behaviour at football matches, perhaps a case could be made for amending it, but that is manifestly not the case. Sufficient pre-existing law is in place to cover the type of behaviour that the 2012 act targets. That is the view not only of the Scottish Conservatives but of the Law Society of Scotland.

Of course, if there was no other legislation to deal with incitement to religious hatred, perhaps again a case could be made for amending the act, but Professor Fiona Leverick told the Justice Committee:

“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”.—[Official Report, Justice Committee, 7 November 2017; c 34.]

Two key elements of the act were not required in the first place. To be frank, the 2012 act was introduced as a knee-jerk response to satisfy the Government’s view that something needed to be done at the time, although legislation was in place to deal with complaints before it was introduced.

If the act is repealed, we need to look to the future and develop a view on how we deal with such offensive behaviour, which the minister acknowledges continues notwithstanding the act. She defends the act, but it is self-evidently not working.

As it is with many other problems, educating children and young people early in life is one of the most obvious ways of eliminating sectarianism and abusive behaviour. That is not only about telling children and young people that sectarianism and abusive behaviour are bad things. It is about teaching them tolerance and that others are entitled to their views, even if those views are at odds with theirs. That comes from an understanding of history, evolution and social justice and from an understanding of others’ needs as well as of our own.

The Scottish legal landscape would be a better place without this poorly thought-out act. I hope that the Parliament supports that view at decision time.

16:23

James Dornan (Glasgow Cathcart) (SNP)

Repealing the 2012 act is an error of massive proportion. Whatever members’ views on the act, the message sent out by repeal plays into every ancient stereotype of the sectarian, drunken Scot who wants only to drink and fight. It damages the reputation of Scottish football, Scotland and the Scottish Parliament.

I know that that is not what the Greens intend and expect. Although they are massively wrong, they are voting for what they think is the right reason, such as that the legislation is flawed. I also accept that there are some Labour members who would be concerned about that, although it appears that, for others, self-interest and/or the chance to kick the Government is far more important.

That plays right into the Tories’ hands. Many of them would be happy to see the Scottish Parliament treated with contempt and derision, and I fear that that will be the consequence of a decision to repeal the act. My office was contacted by someone who said:

“legislation is often used to indicate the kind of society that we want to try to be”.

I agree and I cringe when I think about what kind of society people will think that we want Scotland to be if we vote to repeal the act.

We have heard a lot today about the act targeting only football fans. That is nonsense. It targets people who break the law. In most civilised societies, what happens is that we try to change the behaviours of those who break the law. Here, it seems to be the case that, if there is a well-organised, influential, apparently well-funded group of people who can wield some political clout, they can get a compliant politician to fight to change the law on their behalf.

We also have Daniel Johnson, a Labour MSP, introducing a member’s bill to protect retail workers from attack—a very sensible move that I hope I will be able to support. However, why is he bringing it forward when there are already laws in place to deal with assault? It is because he sees special circumstances around the safety of shopkeepers, in pretty much the same way as we see special circumstances around behaviour at football.

We hear a lot about spending money on education. The SNP Government has spent more than any previous Administration on exactly that. What good, though, is spending money through education and other methods from Monday to Friday if the same young kid then goes to the football on a Saturday and hears people call his dad a Fenian or an Orange B? All that good work is heading out of the window because we think that that behaviour is no longer worthy of our attention.

I saw online someone accusing Nil by Mouth of being untrustworthy because it receives funding from the Scottish Government. That eejit should hang his head in shame, particularly given the circumstances in which Nil by Mouth came about in the first place.

Last Saturday, FAC had a meeting to discuss the act. At first it was reported that the meeting was cancelled because two “Rangers casuals” came to the meeting and would not promise to behave. The person who chaired the meeting denied that, and I believe him. However, he went on to say that the police were called because the two Rangers supporters were there and would not behave. A meeting that was called about a law that does not “Let the People Sing” calls the police because of a fear of the wrong kind of singing taking place. We could not make it up, and unfortunately we do not have to.

I am not sure when or how one group of fans got to dictate to the rest the criteria for being a Celtic fan. I have been one for nearly 60 years. I saw them in both their long barren spells, as a young child before Stein came and through the Macari and Brady years, yet apparently I no longer qualify for this unique club because I oppose the right to bring sectarian songs and songs about terrorism and the loss of innocent lives, including many Irish people, into the stadium.

I have sung those songs. I sang them when I was a teenager during the 1960s and early 1970s, but times change. The situation in Ireland changed and I got older. Back then, people could smoke on a bus, be in a car without wearing a seatbelt and ride a motorbike without wearing a helmet, but they could not, for example, be openly gay. That was still against the law in Scotland. What I am saying is that times change, but it appears that some football fans do not. When or if members make their decision to take us back to the 1970s tonight at 5 pm, they should just remember what it was like back then.

Last week, a member of my staff was delivering my annual reports when one particularly irate constituent came charging out of his door, scrunched up the annual report and shouted to him, “I’d never vote for that F-ing Celtic-supporting, IRA-loving Fenian C.” That is how far we still have to go, and repealing the act will send out the message that we are not really bothered about getting there.

I will tell members something else. If they are serious about this and the motion is agreed to tonight, I hope that they will then support my member’s bill proposal on strict liability, because if not, they are not serious at all.

The 11-year-old daughter of a member of my staff heard her mother and I discussing this debate last night. She later said to her mum, “Mum, the bottom line is this—in years to come, will the Labour man be able to put his head on the pillow knowing that he’s changed the lives of wee kids like me or will he be really sad that he could have changed history and he didn’t?” Out of the mouths of children, eh?

The Deputy Presiding Officer

We move to the closing speeches and I call Neil Findlay. You have six minutes, Mr Findlay.

16:29

Neil Findlay (Lothian) (Lab)

I used to be a football fan. The game used to give me great pleasure. There is nothing like the excitement of a big match with a full house, and the high—and ultimately very low—point for me was following Scotland to the 1990 world cup. I still come out in a sweat every time I hear Costa Rica mentioned. However, the football that I enjoyed has changed.

The growing chasm between those who play the game and own the teams and the fans who spend their hard-earned wages attending matches is a real danger to the future sustainability of clubs and the game. The vast amounts of money that have flooded into football have not made the game more competitive in Scotland; they have just made it ever more predictable. The experience of fans, who are the lifeblood of the game, comes a long way behind advertising, soaring ticket prices, merchandising and television revenues. For those reasons, I have fallen out of love with football.

I accept that being part of a crowd of people at any cultural event can be an exciting, good-humoured and exhilarating experience but, on other occasions, it can be ugly, especially when peer pressure and an aggressive crowd mentality take hold.

Let me be clear: I loathe bigotry, sectarianism and racism. That was drummed into me by my parents from an early age. Detesting everything about sectarianism is one of the things that my late father instilled in me, and I thank him for having done that.

As we debate the repeal of the 2012 act, my main reasons for supporting James Kelly’s proposals are not rooted in football; they are rooted in defending the rights of my constituents and the rights of my class. Ever since the 2012 act was introduced, the responses from fans, the legal profession and rights groups have been negative and persistent. I do not support the repeal of the act for opposition’s sake; it is about defending the rights of people who choose to go to watch a sport, but have their rights removed for doing so.

As it stands, the 2012 act in the main criminalises young working-class men because of something that they do inside, or on the way to, a football match, but that very same behaviour in other circumstances would either go unpunished or be dealt with under a different law.

James Dornan

Does Mr Findlay accept that the vast majority of the crowd should be allowed to enjoy the game without listening to the sectarian singing that we hear at many grounds across Scotland?

Neil Findlay

Absolutely.

The 2012 act seeks to impose a set of values on individuals who are deemed by that act to be engaging in distasteful activities. In my view, that is straightforward class prejudice.

In a ludicrous contribution, George Adam said that any song that is not about football should not be sung at a football ground.

George Adam

Will the member give way?

Neil Findlay

No, thank you. Sit down, Mr Adam.

“Sunshine on Leith” would be banned from Easter Road, “Penny Arcade” would be banned from Ibrox, and “Just Can’t Get Enough” would be banned from Celtic Park. I am not the biggest Depeche Mode fan, but one of their early singles should not be classified as offensive, and the singer should not be arrested for singing it.

We should seek to address sectarianism across society as a whole so that young people grow up learning to be tolerant, empathetic and respectful. The overwhelming majority of them are. We are more likely to tackle sectarianism through education, cultural change, our schools and colleges and youth work, and by continuing to fund anti-sectarianism projects rather than by demonising young working-class football supporters.

A certain political and media class has never liked football fans or the influence of fan culture. I accept that that culture has at times crossed the line, but incidents are relatively few, and most football fans are law-abiding and conscientious citizens. When that culture does cross the line, the law already exists to deal with it.

As I said earlier, for me, this is not about football; it is about the fundamental right to be equal before the law. For a person to lose that equality and their rights because they walk through the door of a football stadium but not the door of a rugby stadium, a theatre or pop festival shows the absurdity of the 2012 act.

The act was passed without the support of other parties, which was the first time that that had happened. It is not fit for purpose. The police have been unable to implement the law, the courts are unclear about how to deal with offenders, and the trust and the relationship between football fans and the police have been undermined.

The 2012 act was introduced too quickly, without due consideration of the outcomes that it would have on the lives of those whom it would affect. We must address bigotry, sectarianism and intolerance in our society, but that was never the way to go about it. The act is an experiment that has failed, and it is time for the Government to admit that it was wrong. If it does that, I will applaud it for its honesty, and I am sure that thousands of football fans and many other citizens would do the same.

I commend James Kelly for introducing the bill, which has my support and the support of my party. I make an appeal to SNP back benchers, who know that the 2012 act is bad law and that it should never have been introduced, not to vote by what their whips tell them but to vote with their conscience, to reject the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 and to support Mr Kelly’s bill.

The Deputy Presiding Officer (Linda Fabiani)

I remind members that this is not a football match.

16:35

Gordon Lindhurst (Lothian) (Con)

Yet again, we have debated the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. The Conservatives have been opposed to it since it was rushed through the Parliament, and we remain opposed to it today. It was an ill-thought-out and reactionary piece of legislation that, when viewed in the best light, was intended to deal with a problem that we all recognise. However, it is an unnecessary law, because the law already in existence fully provided for the crimes in the new law and could therefore be used for charging offenders.

The appropriate approach to dealing with a recognised problem is not always the creation of a new criminal law. Anthony Horan, of the Catholic parliamentary office, was correct when he said:

“We need to do more than simply throw legislation at the problem.”—[Official Report, Justice Committee, 7 November 2017; c 16.]

Education can play a large part in addressing unacceptable sectarian behaviour. My colleague Maurice Corry talked about taking that fight to our homes, classrooms and communities, where we can change culture and attitudes. In evidence given to the Justice Committee, we are told that there is significant scope to improve the use of interventions such as the Sacro tackling offending prejudices programme. STOP is a cognitive behavioural programme that helps people to think about their attitudes and how to change them.

Liam Kerr reiterated the Law Society of Scotland’s evidence that all 287 charges brought under section 1 of the 2012 act in 2015-16 could have been brought under pre-existing legislation. The 2012 act is unnecessary, and it unfairly targets a section of society. It is an example of law being produced for the sake of it, rather than law that already exists being enforced.

The Minister for Community Safety and Legal Affairs herself pointed out to the committee that

“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.”—[Official Report, Justice Committee, 5 December 2017; c 10.]

It is ironic that the SNP Government has created that island and placed football supporters on it, ignoring the fact that such behaviours can and do occur in other areas of life, irrespective of footballing interests or allegiances.

Annabelle Ewing

Will the member take an intervention?

Gordon Lindhurst

Certainly.

Annabelle Ewing

I have heard it suggested in the debate that there are no real problems now—that the huge problems happened before and although there are still some problems, they are not big. I remind members that a man pled guilty to charges under the 2012 act for shouting and making racial gestures—a monkey gesture—to Scott Sinclair, a Celtic player, during a Celtic-Rangers match on 29 April 2017. It is still a very current problem.

Gordon Lindhurst

No one is suggesting that there is no problem. What we are saying is that the 2012 act will not solve the problem and is not addressing it.

How is it fair to treat football supporters travelling to Tynecastle differently from rugby supporters travelling to Murrayfield?

James Dornan

Will the member take an intervention?

Gordon Lindhurst

No, I will not, I am afraid.

I echo Neil Findlay’s comments, because the approach is surely socially divisive. What is clear is that negativity and demonisation have been brought about by the 2012 act, which has resulted in the distrust between fans and the police that we have heard about already today.

Police officers are placed in an unenviable position by all of this. One of the key criticisms of the 2012 act relates to the need for police officers to apply the section 1 offence, which means that they require to place themselves in the position of that notional reasonable person who would be offended by certain behaviour, or, as section 1(2)(e) of the 2012 act fails to define, “other behaviour”. That is not a definition; it is a nonsense—an absurdum.

We are none of us mind readers and, for anyone, second-guessing what might happen in another’s person’s head, in the hypothetical event that they were present somewhere where they were not present, is a total mind maze.

Danny Boyle, of BEMIS, put it well when he said that police officers

“are not anthropologists, sociologists or political commentators, so the act is a difficult piece of legislation for them to implement”.—[Official Report, Justice Committee, 24 October 2017; c 13.]

The same would apply to most of us, I think. Jeanette Findlay, of Fans Against Criminalisation, said:

“It should raise alarm bells that police officers have to be trained to discover what might be offensive.”—[Official Report, Justice Committee, 3 October 2017; c 41.]

Those complexities result in instances such as we have heard about in the debate. Another example is the arrest of a Rangers fan for holding a banner that read “Axe the Act”. Such interpretations place us in dangerous waters; we are already in the realms of restricting free speech.

How are fans to know what the 2012 act does and does not criminalise? Supporters Direct Scotland said:

“there is generally a lot of ambiguity about what constitutes a criminal offence under the act.”—[Official Report, Justice Committee, 3 October 2017; c 44]

We can say that again.

Inventing a reasonable person and thereby an arbitrary threshold as to what is offensive is itself, in this context, an unacceptable limit on freedom of expression. Indeed, Dr Stuart Waiton said that the 2012 act criminalises “words and thoughts”.

Section 1 is a hideous construction. Repeal of the 2012 act would not be a “crafty goal” for James Kelly, as Ben Macpherson suggested. Rather, the refusal to repeal is an own goal for the SNP. It is time to scrap the act.

16:41

Annabelle Ewing

Today we have heard a lot about the supposed problems with the 2012 act and a great deal of enthusiasm for repealing it, with scant regard for the impact that that would have.

Repealing the act will have consequences—and not just in relation to the ability to charge people for their behaviour at and around football matches. The real consequences will be felt by the people who fear attending football matches because they feel exposed to people who will interpret repeal as freedom to be abusive in a football environment. Stonewall Scotland told us that 46 per cent of LGBT people feel unwelcome at sporting events. The real consequences will be felt by the whole of society, because unchallenged offensive language wears away the sense of identity and belonging that our communities should rightly feel, with fear of abuse undermining cohesion and isolating one community from another. Hateful and prejudicial behaviour has a corrosive impact on the people and communities who are targeted. Offensive behaviour is not harmless and it is not victimless.

On 18 January, an editorial in The Scotsman said:

“Changing any society’s values for the better is a hard thing to do, but it is important for democratically elected politicians to recognise they have a leadership role and to make the direction of travel clear. If the Scottish Parliament does decide to repeal the Act, MSPs will need to think very carefully about the presentation of this decision. No one should be left in any doubt that offensive, sectarian behaviour at football will not be tolerated.”

Much of the discussion on the 2012 act focuses on its impact on a minority of football supporters and their right to sing and do as they please during a match, but what about the vast majority of football supporters and the rest of society? I add that it is rather insulting to suggest that it is working-class people who want to sing sectarian songs, as Mr Findlay did.

As I have said before, football is not separate from everything else in society: it is not an island on its own, where no one has to worry about what happens. It is absolutely built into the fabric of Scottish society; it is Scotland’s national game, which means that it has responsibilities beyond the stadium. The influence of football cuts across the whole of society, and what happens there influences how people behave towards each other in other areas of society. When abusive language and behaviour go unchallenged, they simply become the norm, and that is harmful to all of society.

The Justice Committee’s report on the bill highlighted the widespread support for the legislation from key groups. It is worth reminding ourselves of some of the comments. Chris Oswald of the Equality and Human Rights Commission said:

“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.”—[Official Report, Justice Committee, 7 November 2017; c 4.]

Colin McFarlane from Stonewall Scotland told the Committee that the act sends a clear message that abusive behaviour at football is not acceptable and that

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

Liam McArthur

The minister is right about the evidence that she relates from Stonewall and others. She is ignoring, however, the evidence we heard from ACC Higgins that, in the absence of the act, other laws would be used to enforce the law and to crack down on such behaviour. Has she no confidence in ACC Higgins?

Annabelle Ewing

It is clear from the evidence that Liam McArthur is well aware of that was submitted to the committee that there are concerns that there will be constraints on what can be done in terms of the ability of the prosecuting authorities to tackle some behaviour. That evidence is very clearly set forth in the Official Reports of Justice Committee meetings. The Reverend Ian Galloway of the Church of Scotland said:

“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”.—[Official Report, Justice Committee, 7 November 2017; c 3.]

Much of the criticism of the act centres on criminalisation of behaviour that is

“otherwise offensive to a reasonable person”.

Since April 2012, there have been a total of 196 charges under this category. The majority of the charges under the act—823—have been for threatening behaviour; that is, people fighting and engaging in violent behaviour. There have also been 405 charges for hateful behaviour, which includes racist, homophobic or sexist abuse.

As I said in my opening statement, if the will of Parliament is to support the principles of the repeal bill, it is incumbent on the Scottish Government to look at how the impact of this foolhardy action can be minimised to ensure that communities that are currently protected by the act do not suddenly find themselves with no protection.

If any party wishes to move forward by amending the act, my door remains open and I am happy to consider how the act can be improved. If Parliament wishes to repeal the act, the Government’s primary focus needs to be on ensuring that people remain protected from those crimes, and that vulnerable minority communities do not feel that they have been sidelined and marginalised.

Ensuring protection to minority communities would be something that everyone in the chamber can agree with. It is therefore something that we hope we can work to build consensus around, so that we arrive at a practical and workable way forward.

Delaying commencement is one option that would allow us to ensure that we have the time to put necessary protections in place, and in particular to look at how the protection that is offered by section 6—an important provision, as we have heard in the debate this afternoon—can be maintained in relation to threatening communications.

We are prepared to explore all the available options to find a secure way forward that will address the concerns that have been raised by religious organisations, equality groups and organisations including Victim Support Scotland, the Scottish Women’s Convention and others, about the negative message that repeal will send—a message that can only realistically be addressed by ensuring continuity of protection to such communities.

I say to those who support repeal that they should reflect very carefully about the impact of their decision to repeal the act. What is the message that is being sent to minority communities and victims of hatred and discrimination? There is a danger that the message is that the rights of an abusive and bigoted minority are more important than the rights of the majority who are fed up with hateful and prejudicial behaviour.

Saying that we need to stand up to abusive behaviour at football is no good without action, and repealing the act with no alternative to offer, no plan to ensure continuity of protection to vulnerable communities, is worse than taking no action. It is dragging us back to where we started and will completely fail to make the match-day experience one that really is open to all.

16:49

James Kelly

I echo what Johann Lamont and Fulton MacGregor said. I am sure that every member of this Parliament agrees that hateful or sectarian behaviour, whether it takes place in the street, in local communities, outside a religious venue or at a football ground, is completely unacceptable and should be tackled. As the debate has worn on, there have been sharp disagreements. We all agree that hateful or sectarian behaviour is unacceptable; the disagreement lies in how that behaviour should be tackled.

One of the contributions from the SNP benches was from Mairi Gougeon. I did not agree with her, but I thought that she argued her case very well.

Various strands came through in the debate, one of which was the argument that football fans are a problem and that we need to deal with them. It is that attitude that resulted in the act in the first place.

James Dornan

Will the member take an intervention?

James Kelly

Not yet.

I have been a football fan since 1969 and I have watched the way that things have progressed through the years. I do not seek to gloss over any recent events or public disorder, but since 1969 there have been dramatic improvements in fan behaviour and the issue of sectarianism. I was at the 1980 Scottish cup final, where fans fought on the pitch and ran down the terraces. I could not get back up the terracing for people running down to get on to the pitch. We are not living in those times, when people threw bottles in the ground or fought in the streets. Some members on the SNP benches, who clearly do not have any experience of football, should remember that things have moved on.

No. I am sorry, but I need to make progress.

Others have suggested that we should wait for the outcome of the Bracadale review of hate crime legislation. That review has an important role to play, but, as Liam McArthur has pointed out, the Justice Committee is currently considering the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill, and that is a result of the Taylor report, which was produced in 2013. I do not think that we can wait for four years to deal with the 2012 act, particularly given that it is so discredited and weak. It needs to be taken off the statute book.

The minister and others repeatedly made a point about the need for amendments to the 2012 act. I was quite amused by that because, throughout the previous session of Parliament, SNP members were not interested in any amendment and repeatedly told us that we needed the legislation. However, the minute that they get into trouble, the door is suddenly open to amendment. Despite all the speeches from SNP members in which they accepted that the act needs amendment, none of them was prepared to articulate the problems with the act or to put forward any concrete ideas based on evidence.

Annabelle Ewing

I gently suggest to the member that surely, then, there is reason to consider how we, working collectively and with consensus, can improve the act to provide the protections that people need, rather than simply take away all those protections with Mr Kelly’s bill.

James Kelly

I have made it absolutely clear that I think that the act is discredited because it does not work as law—that is the central point that members have made. There are confusions around interpretation, which, as the Law Society pointed out, could result in further legal challenge. The act does not work as law and needs to be taken off the statute book.

I have been asked what the alternative is, although I have outlined an alternative previously, and I did so in my opening speech today. However, for those who were not listening, I will go through it again, while picking out some of the strands in what we have heard. The law sends out a weak message. In this debate, no Opposition politician has supported the act, although SNP members have done so. What sort of message does that send out? It is clear that the act has no credibility and is not working so, if we take it off the statute book, that will be more effective. If people commit hateful action in the street, outside a religious venue or at a football ground, that should be tackled, but we need one law to do that; we do not need two laws.

As John Finnie said and as Sacro pointed out at the Justice Committee, we should look at alternatives to prosecution. We need investment in education to tackle sectarianism. We need a different approach, because the current approach is clearly not working. Only 7 per cent of charges involving religious aggravations involved behaviour around football grounds. We need to bring fans, police and football clubs together, as the Scottish Football Supporters Association has suggested.

Mr Dornan described me as a “compliant politician”, and I found that remark to be deeply insulting. I have consistently opposed the 2012 act. If the Parliament passes bad law, it is the responsibility of members of that Parliament to call out that bad law, so what I am being compliant in is calling out an ineffective and unfair law. There is an onus on the Government to try to bring people together, which is what we need now. The case for the 2012 act is completely discredited. We need a more unified approach that brings together politicians, fans and groups outside Parliament to tackle sectarianism and that does not hide behind a law that does not work.

With that final point, I submit my view in support of the general principles of the repeal bill.

25 January 2018

Vote at Stage 1

Vote at Stage 1 transcript

The Presiding Officer (Ken Macintosh)

There is one question to be put as a result of today’s business. The question is, that motion S5M-10072, in the name of James Kelly, on the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill at stage 1, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
McNeill, Pauline (Glasgow) (Lab)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lochhead, Richard (Moray) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 65, Against 61, Abstentions 0.

Motion agreed to,

That the Parliament agrees to the general principles of the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill.

The Presiding Officer

That concludes decision time.

Meeting closed at 17:02.

25 January 2018

MSPs agreed that this Bill could continue

Changes to the Bill

MSPs can propose changes to a Bill – these are called 'amendments'. The changes are considered then voted on by the lead committee.

The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.

The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.

How is it decided whether the changes go into the Bill?

When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.

The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.

Depending on the number of amendments, this can be done during one or more meetings.

First meeting on amendments

Documents with the amendments considered at this meeting held on 27 February 2018:

First Marshalled List of Amendments for Stage 2

First Groupings of Amendments for Stage 2

First meeting on amendments transcript

The Convener

Agenda item 5 is consideration of the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill at stage 2. Members should refer to their copy of the bill, the marshalled list of amendments and the groupings.

I welcome back to the meeting Annabelle Ewing, Minister for Community Safety and Legal Affairs, and her officials. I also welcome James Kelly, the member in charge of the bill, and his supporters.

Section 1—Repeal of the 2012 act

Section 1 agreed to.

Section 2—Offences

The Convener

The first group of amendments is on effect of repeal on offences occurring before repeal. Amendment 1, in the name of the minister, is grouped with amendments 2, 3 and 5 to 8.

Annabelle Ewing

Amendments 1 to 3 and 5 to 8 adjust sections 2 and 3 to deal with human rights issues in the current drafting of the bill. The amendments in group 1 are intended to ensure that persons cannot be convicted of or punished for an offence under the 2012 act after it has been repealed. This is to ensure that the bill respects the principle of lex mitior, which is guaranteed by article 7 of the European convention on human rights. Lex mitior is the principle that a person should benefit from the application of the more lenient law where the law has changed before a final judgment has been reached in criminal proceedings. Ministers are of the view that the principle applies in the context of repeal of the offences in the 2012 act.

Section 2(3) of the bill as it stands provides that, after repeal of the 2012 act, a person can still be convicted of an offence under the act where there is an appeal against acquittal. Section 3(2) of the bill as it stands provides that the 2012 act continues to have effect after repeal for the purposes of imposing a penalty on a person and for the purposes of an appeal or a petition to the nobile officium. The fact that a person can still be convicted and punished under the 2012 act after its repeal goes against the principle of lex mitior and therefore raises human rights issues. Amendments 1 to 3 and 5 to 8 deal with those issues by removing sections 2(3), 2(4), 3(2) and 3(3) of the bill.

Amendment 1 amends the bill to remove the reference to section 2(3) in section 2(1).

Amendments 2 and 3 make amendments to section 2 so that it states that:

“Despite section 17 of the Interpretation and Legislative Reform (Scotland) Act 2010”,

on or after the repeal date

“no person can be convicted of or found to have committed a relevant offence”

and

“no penalty may be imposed on a person in respect of a relevant offence of which that person was convicted prior to the relevant date”.

Section 17 of the Interpretation and Legislative Reform (Scotland) Act 2010 would otherwise allow a conviction and a penalty to be imposed after the repeal; these amendments oust that possibility.

Amendment 5 amends the bill so as to remove sections 2(3) and 2(4), which means that a person cannot

“be convicted of or found to have committed a relevant offence”

on appeal against acquittal.

Amendment 6 amends section 3(1) so as to clarify that a person who has had a penalty imposed on them prior to the date of repeal for a relevant offence is still liable for that penalty.

Amendment 7 amends section 3(1) so as to remove reference to section 2(3).

Amendment 8 removes sections 3(2) and 3(3) of the bill, with the result that the 2012 act would not have effect after its repeal for the purposes of imposing a penalty on a person in respect of a relevant offence of which that person was convicted prior to repeal, or for the purposes of an appeal or a petition to the nobile officium.

In light of the amendments, there is no longer any need for section 3(3).

I move amendment 1.

The Convener

I call Liam Kerr—[Interruption.] Sorry, I call Liam McArthur. I am looking at Liam McArthur but saying Liam Kerr.

Liam McArthur (Orkney Islands) (LD)

The Convener

I am afraid that your officials cannot comment at this stage.

Annabelle Ewing

That is why they are looking at me askance, then.

I imagine that the member is correct to say that the number of cases will be limited, but amendment 4 seeks to ensure that an option is available in circumstances in which, for whatever reason—and there could be a number of such reasons—it has not been possible to amend the libel. It also seeks to ensure that, ultimately, people who have committed a serious offence do not escape punishment. I am sure that we would all wish to support that objective.

The Convener

I should say, minister, that you can confer with your officials, if that would be helpful, but we cannot ask them to comment directly.

Annabelle Ewing

I see that my official agrees with what I said, so that is fine.

Liam McArthur

It is helpful to know that you can confer with officials, minister.

As I have said, there will be a number of months between now, royal assent and the bill’s implementation. Given that the Parliament’s direction of travel has at least been signalled, to what extent is amendment 4 addressing a problem that does not exist? I know that the precautionary principle should generally be adopted in such circumstances, but I wonder whether we are dealing with a problem that has already been addressed by people who have anticipated such an issue and have, as a result, taken steps to avoid it.

Annabelle Ewing

The fact that the court already has the power of substitution with regard to common-law offences suggests that there will always be circumstances in which the exercise of the power for such offences will be required as an option. In the same vein and using the same logic, therefore, there could well be circumstances in which it is necessary to substitute a statutory offence. I take the member’s points into account, but surely we would want to ensure that people who have committed serious offences are brought to justice and do not escape punishment. Amendment 4 will allow the court to take a belt-and-braces approach; indeed, if we did not have such a provision, the court might in specific circumstances—albeit in a time-limited period—be unable to do the necessary. The amendment provides a belt-and-braces approach to ensure that the court has the options that it needs. Moreover, after a certain period, it will not be an issue with regard to offences under the 2012 act—assuming, of course, that the Parliament votes to repeal it.

James Kelly

I am not convinced by the arguments in favour of amendment 4. The minister is seeking to enshrine in law a power that, as has transpired in this discussion, she does not actually require.

We also need to be careful that we have a consistent approach in the bill. The previous group of amendments tidied up the appeal provisions, because of a potential inconsistency between what could be dealt with after repeal and what can be dealt with currently. Amendment 4 seems to be going back on that. The minister is seeking a power to amend charges after the bill has been passed.

I also point out that prosecutors should continue to adopt a pragmatic approach in relation to potential prosecutions under the 2012 act. As far back as November 2016, Parliament signalled that it was supportive of full repeal, so prosecutors should have been aware of that and should have taken that pragmatic approach.

I oppose the adoption of amendment 4.

10:30

Annabelle Ewing

I have listened to the comments that have been made and will deal first with Mr Kelly’s points.

The 2012 act still remains on the statute book. Parliament is still to vote on whether to repeal it, and we have to deal with the laws that we have.

The Government has no jurisdiction over the Crown in terms of charges brought—that is a matter for the independent Crown Office and Procurator Fiscal Service, as I am sure that Mr Kelly is aware.

As I have said, it is essential to ensure that those who have committed a crime do not escape punishment just because the 2012 act is repealed. We need to ensure that the courts have adequate powers to achieve that and that, in proceedings for an offence under the 2012 act that have not been determined by the date of repeal, the court has the power to convict the accused of a different statutory offence where appropriate, in the way that it currently has in terms of substituting a common-law offence.

I believe that this is simply about ensuring that justice can continue to be served if the 2012 act is indeed repealed.

The Convener

The question is, that amendment 4 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Adam, George (Paisley) (SNP)
Corry, Maurice (West Scotland) (Con)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Kerr, Liam (North East Scotland) (Con)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mitchell, Margaret (Central Scotland) (Con)

Against

Finnie, John (Highlands and Islands) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
McArthur, Liam (Orkney Islands) (LD)

The Convener

The result of the division is: For 8, Against 3, Abstentions 0.

Amendment 4 agreed to.

Amendment 5 moved—[Annabelle Ewing]—and agreed to.

Section 2, as amended, agreed to.

Section 3—Transitional and saving provisions

Amendments 6 to 8 moved—[Annabelle Ewing]—and agreed to.

Section 3, as amended, agreed to.

Section 4 agreed to.

Section 5—Interpretation

The Convener

Group 3 is entitled “Commencement: repeal of section 6 offence postponed for 12 months from Royal Assent”. Amendment 9, in the name of the minister, is grouped with amendments 10 and 12.

Annabelle Ewing

Amendments 9, 10 and 12 adjust sections 5 and 6, which deal with the date of commencement for the bill.

The bill currently provides that repeal of the 2012 act will come into force on the day after royal assent. The effect of amendments 9, 10 and 12 is to delay the commencement of the repeal of the section 6 offence by 12 months from royal assent. When combined with amendment 11 in group 4, which we will come to shortly, the amendments also delay the commencement of the repeal of the section 1 offence by two months. That 12-month delay for the section 6 offence would allow the Scottish Government to respond to the concerns of organisations representing minority communities by preparing a new bill to reinstate the provisions of the section 6 offence of sending threatening communications, in order to maintain the protection that those provisions offer, and also to consider what improvements could be made to the offence, such as expanding the range of groups that are covered by incitement to hatred and considering whether the threshold for convictions is too high.

Amendment 9 amends the definition of the relevant date in section 5 so that it takes account of the different commencement dates for the section 1 and the section 6 offences that would result from the amendments, if agreed to.

Amendment 10 amends section 6 of the bill to confine the existing default commencement provision so that it applies only to the repeal of the section 1 offence. Currently, the default commencement provision in the bill is for it to come into force on the day after royal assent. If agreed, our amendment 12, which we will come to shortly, will change that so that the default commencement is two months after royal assent.

Amendment 12 provides that the bill, so far as repealing the rest of the 2012 act—that is, the section 6 offence of sending threatening communications—comes into force at the end of the period of 12 months beginning with the date of royal assent.

Since the Offensive Behaviour at Football and Threatening Communications Act 2012 came into force, there have been 4,655 prosecutions for hate crimes relating to sexual orientation, only eight of which have resulted from the act. As I said, there has been only one conviction in the past year under the act, so section 6 is an unused provision.

On the Procurator Fiscal Service’s point that there would be a gap in the law, I have gone through, in substantial detail, why I believe that there is legislation in place and case law to prove that there is not a gap in law. I do not believe that proper protection can be given to minorities by a provision in an act that has not been used because the legal threshold is too high. On that basis, I oppose amendment 9.

10:45

The Convener

I invite the minister to wind up.

Annabelle Ewing

Thank you, convener. There is no question about the fact that there would be a gap. We need to remind ourselves of the evidence from the Crown Office and Procurator Fiscal Service, which clearly indicated what the factual position is—of course the Crown Office and Procurator Fiscal Service deals with such matters day in and day out. Repealing section 6 without allowing the Government any time to mitigate the negative impact of that would take away from Scots law the specific statutory offence of the incitement of religious hatred. That repeal would take us backwards rather than forwards and would put us out of kilter with the rest of the UK. That threat was responded to very strongly by a number of organisations of which the committee will be well aware—the Equality Network, Stonewall Scotland, Victim Support Scotland, the Scottish Women’s Convention, the Church of Scotland, the Scottish Council of Jewish Communities and the Equality and Human Rights Commission, to name but some—and they all had serious concerns about the issue. Further, the Crown Office pointed out that the section 6 provision allows extraterritorial effect.

Liam McArthur

The minister is right about the evidence that we heard from a range of groups. That is why all of us were seized of the need to approach section 6 and its repeal in a way that was different from how we approached the potential repeal of sections 1 to 5. However, it is also incumbent on us to test the evidence that we hear against what appears to be the case in practice. As James Kelly has highlighted from his discussions with the Law Society, statutory provisions and case precedent exist, so there appear to be protections in this regard. The concern that was expressed vividly by the range of organisations to which the minister referred was about the message being sent out that repeal of section 6 would remove protection. Is the minister not then complicit in reinforcing the message that somehow there is a gap and that there will be an absence of protection, given that James Kelly has pointed out that that will not be the case because of the other provisions that are in place and case precedent?

Annabelle Ewing

No, I do not accept that. Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 does not provide a statutory offence of stirring up religious hatred, and it is simply wrong to say that it does. It is important to remember a specific example that the evidence session with the Crown Office and Procurator Fiscal Service threw up. It said:

“Section 6 also provides for greater sentencing powers than those in the”

Communications Act 2003.

“we have had a case in which an accused person posted comments that were supportive of a proscribed terrorist organisation—ISIS—and the view of the sentencer was that the severity of those actions should be reflected in a starting point of 24 months’ imprisonment. That starting point for the sentencer would not have been available in the alternative charge under the 2003 act.”—[Official Report, Justice Committee, 3 October 2017; c 7.]

I think that that states the position very strongly indeed.

James Kelly

Yes, but provision for that sentencing exists in section 38 of the 2010 act, as does provision for bringing forward a relevant charge in relation to threatening communications. Although the minister’s comparison with the 2003 act is valid, it is not valid in relation to section 38 of the 2010 act.

Annabelle Ewing

Section 38 does not contain the specific statutory offence of the incitement of religious hatred. That is the key issue with section 6 and that is why all those equalities bodies—

James Kelly

Will the minister take an intervention?

Annabelle Ewing

I would like to finish my point.

As I said, that is why all those equalities bodies and certain faith bodies put forward their very strongly held concerns. I say to Mr McArthur that I am not complicit in stirring up concerns; I am saying how it is. As a responsible Scottish Government minister, I am doing my best to mitigate the negative impact of the move to repeal section 6 and to ensure some continuity of protection.

James Kelly

Again, just for the record, the Law Society has pointed out that a charge of religious aggravation can be added to the section 38 offence, so that gives cover in relation to religious hatred and deals with the arguments that the minister is trying to submit.

Annabelle Ewing

At the moment, we have a specific statutory offence of incitement of religious hatred. Mr Kelly is proposing to take that specific offence out of Scots law, putting us out of kilter with the rest of the UK. That would be a step backwards, not a step forwards.

We have had a good debate and a thorough one. The 12 months’ continuity of protection that we seek is entirely reasonable. We have not plucked the period of 12 months out of the air. Someone suggested that alternative legislation could be drummed up overnight, but that is not the case. We have had advice that, at the very least, a period of 12 months would be required to come up with an alternative legislative provision to deal with the circumstances covered by section 6 of the 2012 act. Therefore if the amendment were to be agreed to, we would be narrowing the gap in continuity of protection by at least 12 months.

In response to Liam McArthur’s point, I say that my door has been open from the outset, but no one has sought to come through it.

Liam McArthur

It now transpires that amendments 9, 10 and 12 are not about avoiding the creation of a gap—the existence of which we disagree on—but about narrowing the period during which there will be a gap in the law. Your argument is that 12 months at the very least will be needed and you are suggesting that the amendments will not achieve what you say they intend, which leaves us scratching our heads. It may be that you want to bring the amendments back at stage 3, but you do not appear to be in a position to argue for them convincingly at stage 2.

Annabelle Ewing

We are trying very hard to respect the will of Parliament at the same time as acting as a responsible Government. We accept that, if we had proposed an amendment today to deal with the specific issue by introducing a provision that would remain in place for two years, it would have been anathema to at least some members of the committee. We were trying to have a reasonable position and consider what was the shortest period of time that might be required to come up with alternative legislation. We decided on 12 months and working very hard to ensure that we met that timescale.

The Convener

The result of division is: For 5, Against 6, Abstentions 0.

Amendment 10 disagreed to.

The Convener

The next group is on commencement generally postponed for two months from royal assent. Amendment 11, in the name of the minister, is the only amendment in the group.

Annabelle Ewing

Amendment 11 adjusts section 6 of the bill, which deals with the commencement date of the act. The current default commencement provision in the bill is that the act should come into force on the day after royal assent. Amendment 11 would change that such that the act would commence at the end of two months beginning from the date of royal assent. An implementation gap of two months between royal assent and commencement is standard practice.

The reason why an implementation gap of two months is standard practice is that the date on which royal assent is received is not easily predictable. Linking commencement to a specific period after royal assent therefore provides for greater predictability as to the date of commencement, which, in turn, provides certainty and time for all those affected by the bill to take account of its provisions and make all reasonable adjustments that are required of them before the date on which the new legislation comes into force.

I move amendment 11.

James Kelly

I oppose amendment 11. If we look at the timetable, it is important to understand that—obviously, the scheduling of a stage 3 debate is a matter for the Parliamentary Bureau—the normal time period between a bill being passed at stage 3 and receiving royal assent is around two months, although we cannot be exact. If stage 3 was before the end of March, that would take us to the end of May. Crucially, that is the end of the football season. After that, there would still be a two-month period for prosecutors and the police to carry out any preparatory work that the minister argues is necessary. Amendment 11 is therefore not necessary.

I have argued throughout the bill process that the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 has been discredited. It has been argued against not only by supporters but by legal experts. I have therefore sought to repeal it as quickly as possible. I do not support amendment 11.

Annabelle Ewing

Seeking a two-month period from royal assent is not odd or unusual; in fact, it will ensure that the bill is brought into line with accepted, tried and tested practices. Until the stage 3 debate has been concluded, it is perhaps slightly presumptuous to assume the outcome, so those who are affected by the changes in the law need time to take account of those changes. The date of royal assent is not certain, so a two-month period will give everyone a clear date to work to and ensure the orderly management and administration of our justice system.

Our aim is to ensure that any transition from the current legal framework to a new set of circumstances is achieved as smoothly as possible, and it is right that organisations on which the change will impact have time for a period of adjustment to ensure that their houses are in order and they are ready for the implementation of the change on a fixed and clearly identified date. That the repeal bill will take away rather than add legislation does not make any difference to the fact that those who need to take account of the changes need time to ensure that policies, procedures and operations are amended in good time in order to fully enact the new legislation from the day that it comes into force. As the date on which royal assent is given is never certain, it is entirely reasonable that those who need to prepare for the repeal can work to a known date and have due notice of it.

The question is, that amendment 12 be agreed to. Are we agreed?

Members: No.

The Convener

There will be a division.

For

Against

The Convener

The result of the division is: For 5, Against 6, Abstentions 0.

Amendment 12 disagreed to.

Section 6 agreed to.

Section 7 agreed to.

Long title agreed to.

The Convener

I suspend the meeting briefly to allow for a change of participants.

10:59 Meeting suspended.

11:04 On resuming—

27 February 2018

Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill as amended at Stage 2

Additional related information on the Bill

Revised explanation of the Bill (Revised Explanatory Notes)

Explanatory Notes Offensive Behaviour at Football and Threatening Communications (Scotland) Bill Explanatory Notes Offensive Behaviour at Football and Threatening Communications (Scotland) Bill

Debate on the proposed changes

MSPs get the chance to present their proposed changes to the Chamber. They vote on whether each change should be added to the Bill.

Documents with the changes considered at this meeting held on 15 March 2018:

First Marshalled List of Amendments for Stage 3

First Groupings of Amendments for Stage 3

Debate on proposed changes transcript

The Presiding Officer (Ken Macintosh)

The next item of business is stage 3 proceedings on the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill.

In dealing with the amendments today, members should have the bill as amended at stage 2, which is SP Bill 19A, the marshalled list and the groupings. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate.

Amendment 1, in the name of the Minister for Community Safety and Legal Affairs, Annabelle Ewing, is grouped with amendments 2 and 4.

The Minister for Community Safety and Legal Affairs (Annabelle Ewing)

I have said throughout the passage of the bill that there would be a gap in legislation if the offence in section 6 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 is repealed. That is a simple statement of fact, despite assertions to the contrary.

Repealing the section 6 offence puts Scotland behind the rest of the United Kingdom on protection against incitement to religious hatred. Therefore, we need to take steps to seek to ensure continuity of protection. Section 6 contains extra-territorial powers, ensuring that freedom of movement does not mean escaping the law. That power will be lost if the 2012 act is repealed.

At stage 2, I highlighted the oral evidence from the Crown Office and Procurator Fiscal Service, referencing a case in which an accused person posted comments that were supportive of a prescribed terrorist organisation—ISIS. The sentencer’s view was that the severity of those actions should be reflected in a starting point of 24 months’ imprisonment. That starting point would not have been available in the alternative charge under the Communications Act 2003.

James Kelly (Glasgow) (Lab)

Has the minister had an opportunity to reflect on the oral submission that Liam McArthur and I made to the Justice Committee, pointing out that, in the case that she quotes, section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 allows a charge to be made in relation to threatening online behaviour, with sentences of up to five years? There is no gap in the law.

Annabelle Ewing

I beg to differ. I am about to get on to section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. The legal position is that there is a need to satisfy a two-part test as far as breach of the peace is concerned. The tests are that the conduct has caused fear and alarm and threatened serious disturbance to the community. The higher threshold for a conviction for an offence under section 38 of the 2010 act is that the fear and alarm test must be met. No similar hurdle pertains with respect to section 6 of the 2012 act. That means that section 38 of the 2010 act cannot be relied on to deal with section 6 offences. It will mean that some section 6 offences will go unpunished. In that respect, repeal of section 6 will indeed result in a gap in the law.

Section 6 provides a specific offence of making threatening communications with intent to stir up religious hatred. It makes clear what type of communications constitute the offence of making threatening communications and what type of communication would not lead to criminal proceedings. In addition, it provides protection for freedom of speech.

Breach of the peace and section 38 of the 2010 act do not provide the same level of certainty and do not send a strong enough message that we intend to deal robustly with crimes of religious hatred. At the moment, we have a specific offence of making communications that are intended to stir up racial hatred, under part 3 of the Public Order Act 1986. If section 6 of the 2012 act is repealed, we will have no similar offence of sending communications that are intended to stir up religious hatred. Do we really want to send the message that we do not take religious hatred as seriously as racial hatred?

Equality groups have been clear that they place great importance on the protection that the 2012 act offers them, particularly section 6. It is absolutely right that we look at constructive ways to ensure that support for repeal does not leave them feeling exposed and unprotected. As a responsible Government, we have a duty to make every effort to minimise the negative impact that would be caused by repeal.

Johann Lamont (Glasgow) (Lab)

Will the minister take an intervention?

Annabelle Ewing

I have already taken one, and I am afraid that I need to make progress.

We need time, however, to prepare a new bill to reinstate the section 6 offence going forward; hence, we seek continuity of protection in the interim. That is why I have brought forward again at stage 3 amendments 1, 2 and 4 to adjust sections 5 and 6, which deal with the bill’s date of commencement. The effect of amendments 1, 2 and 4 would be to delay the commencement of the repeal of the offence in section 6 of the 2012 act by 12 months from royal assent. When combined with amendment 3 in group 2, which we will come to shortly, the amendments would also delay by two months the commencement of the repeal of the section 1 offence in the 2012 act. Amendment 1 seeks to amend the definition of “the relevant date” in section 5 of the bill so that it takes account of the different commencement dates in relation to the section 1 and section 6 offences in the 2012 act that would result from the amendments.

Amendment 2 seeks to amend section 6 of the bill to confine the existing default commencement provision so that it applies only to the repeal of the section 1 offence. Currently, the bill provides that the default commencement provision for the bill is for it to come into force on the day after royal assent, but our amendment 3, which we will come to in the next group, would, if agreed, change that so that the default commencement would be two months after royal assent, which is the normal position with regard to legislation dealing with Scots criminal law.

Amendment 4 would provide that the bill, so far as repealing the rest of the 2012 act—that is, the section 6 offence of sending threatening communications—would come into force at the end of the period of 12 months beginning with the date of royal assent.

As I have consistently explained throughout the passage of the bill, repealing section 6 of the 2012 act would create a gap in legislation that would need to be addressed and those claiming that there would be no gap if the 2012 act were repealed are simply wrong.

I move amendment 1.

Liam Kerr (North East Scotland) (Con)

I rise to speak against amendment 1 and the other amendments in group 1 because they seek to delay the repeal of the section 6 offence in the 2012 act coming into force until 12 months after royal assent. That precise issue was considered at stage 2, and the effect of the amendments, whether or not amendment 3 is passed today, would be to implement a staggered repeal. That is to say, the section 6 offence, notwithstanding the lack of prosecutions due to the threshold for that having been set too high, could in theory continue to be prosecuted for some considerable time after the repeal of the rest of the 2012 act.

I recall from stage 2 that the thinking behind that was to allow the Government to come up with alternative legislative provision to deal with the circumstances covered by section 6 of the 2012 act. Notwithstanding that I am not persuaded that there is a requirement to do that—as we will hear later, I do not concede that there would be a gap in the law—I cannot help but feel that it would add complexity to what would otherwise be a straightforward repeal.

I suspect that we will debate at length later the message that will be sent out if the 2012 act is repealed. I intend to answer that point in my speech later, but here I use the argument to my advantage. If we assume that stage 3 today concludes with the repeal bill being passed, it will be all over the press, sending a very clear message that the 2012 act has been repealed. What confusion, complexity and inconsistency would be sown if a little-used, little-understood single section of the 2012 act was retained and prosecutions could be continued for the following 12 months?

Annabelle Ewing

There will be a gap for the reasons that I have just stated again for the record. What is the member saying, then, to all the equality groups and faith groups who raised the concern that repealing section 6 without any viable alternative being put in its place would send the wrong signal and take away protection that they rely on? What is the problem with retaining section 6 for a further period of 12 months? Why is the member determined to take that protection away from those vulnerable communities?

Liam Kerr

There is no gap. Professor Leverick was clear in committee that there will be no gap and that the section 6 offence could be prosecuted under other legislation. The protection of those groups would not be detracted from; they can be reassured by that message.

All that the minister is seeking to do over the next 12 months is introduce complexity, confusion and inconsistency. That would not be welcome. Given that transitional arrangements will take care of existing matters, the amendment is neither required nor productive and it is not helpful.

The Scottish Conservatives will vote against amendment 1 and all the amendments in the group.

Ben Macpherson (Edinburgh Northern and Leith) (SNP)

I rise to speak in favour of amendment 1 and all the other amendments in the group because the amendments are about being responsible. I refer members to the Justice Committee’s stage 1 report, which mentions some of the very powerful evidence that we heard about section 6. The Scottish Council of Jewish Communities said:

“section 6 is an important transnational power that catches conduct that would not otherwise be caught by Scots law ... 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.”—[Official Report, Justice Committee, 7 November 2017; c 19.]

It is clear that there is a distinction in the 2012 act between the offence covered in sections 1 to 5 and the offence in section 6—that distinction was made in the evidence that we took. The minister is absolutely right to have lodged the amendments on the basis of responsibility and to make sure that our legal system serves the needs of those who require it.

The point about the extraterritorial provision of section 6 has not been questioned in any of the evidence that I have heard or seen. Therefore, asking for an extension before the repeal of section 6 to give the Government and others adequate time to ensure that there is no gap in law, particularly around the transnational element, is the responsible and the right thing to do. Responsible MSPs will vote in favour of the amendments.

Daniel Johnson (Edinburgh Southern) (Lab)

I rise to speak against the Government amendments and against the extension of section 6. It has become clear during the bill’s passage through stage 1 and stage 2 that there is no legal need for the section 1 offences under the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 because, as the Law Society and others who gave evidence, such as Professor Leverick, have made clear, section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and common-law breach of the peace allow disruptive behaviour to be prosecuted.

I hear and understand the concern about section 6 of the 2012 act but, in reality, only one conviction has been made under that section in the past year. Furthermore, it is clear from the evidence that the act is too narrowly drafted to be used. Assistant Chief Constable Higgins gave evidence that it is rarely used and that the police prefer to charge someone under section 127 of the Communications Act 2003. In addition, the Law Society made it clear that common law can be used, citing the case of Her Majesty’s Advocate v Shaun Divin and Jordan McGinley in 2012. Even the Scottish Government-commissioned independent review on hate crime legislation noted that section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and section 127 of the Communications Act 2003 would

“remain relevant in the vast majority of cases.”

It is clear that repealing sections 1 and 6 would leave no gap in the law.

Liam McArthur (Orkney Islands) (LD)

I rise to speak against the amendments. The debate seems to hang on the issue of whether there would be a gap in the law. The Law Society’s briefing states:

“The Bill, if passed, will not leave any gap in the criminal law as existing measures, both statutory and at common law, will allow for the prosecution of any relevant offending behaviour provided that sufficient admissible evidence exists.”

That could not be clearer.

Ben Macpherson rightly drew attention to the evidence that the committee received at stage 1 from a number of representatives of those with protected characteristics, but I fail to see how keeping in place an act that does not provide the protections that its supporters maintain that it does, or that even acts in the interest of those whom it professes to protect, would not send out the wrong message.

On the suggested delay of 12 months, as the minister considered during cross-examination at stage 2, the point by which the Government would be able to introduce replacement legislation would extend beyond 12 months. Therefore, if there were a gap, it would still exist.

15:15

Annabelle Ewing

Does the member not agree that, in the interest of ensuring continuity of protection, it would be better to seek to do what we can to ensure that that protection continues for a further 12 months, rather than taking it away from as early as mid-April?

Liam McArthur

As I explained, the act is not providing the protection that the minister asserts it is providing. It seems to me ridiculous and somewhat irresponsible to allow to go unchallenged the misconception that the law is providing that protection when that is not, in fact, the case. At some stage, the Scottish Government will have to recognise that this illiberal, ineffective, misdirected act is going to be repealed. Continuing to promote the notion that there will be a gap or a dilution of protection is wholly irresponsible.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

I support the amendments in the group. Today, at general questions, I raised the issue of vandalism in my constituency in the context of sectarianism at both St Patrick’s church and the cenotaph last year. I also raised the issue, which was reported recently in the news, of a local business owner who was subjected to threatening communications online following Sunday’s old firm game.

Unfortunately, sectarianism is still a major problem in constituencies such as mine; I am glad that Elaine Smith also touched on that in her question.

Johann Lamont

I wonder what message it sends on tackling sectarianism to cut the budget for anti-sectarianism projects—[Interruption.] Members should let me finish my point, because they might agree with it. How does cutting the budget from £3 million to £0.5 million send out a message about tackling sectarianism?

Fulton MacGregor

Johann Lamont knows fine well that this Government has invested heavily in tackling sectarianism. [Interruption.] She knows that.

Throughout our evidence taking, it was clear that there was a difference between section 1 and section 6, and nobody from any party can deny that. Members across the board recognised it. We all agreed—I acknowledged it as well—that section 1 could be better if reformed. There was a feeling that young men in particular were being penalised and that we could maybe address that better through the diversion schemes.

However, whatever the merits of the repeal of section 1, section 6 is totally different. It is irresponsible—and it does indeed send out a wrong message—to repeal the act today.

James Kelly

I oppose all the amendments in the group. I believe that they are unnecessary. First, the thing to understand about section 6 is that it has hardly been used in the six years for which the act has been in place. There have been only 17 prosecutions and, as Daniel Johnson pointed out, only one conviction in the past year. The reason is that, as the police told us at the Justice Committee, the legislation was drafted in such a way that the threshold was set too high, so the police and prosecutors are going down the route of using the Communications Act 2003 and not section 6, on threatening communications.

Annabelle Ewing

On that point, the member and other members in the chamber will be aware, or may be interested to know, that there was a very recent successful conviction under section 6. The issue concerned a 54-year-old man who was charged with making a death threat against Neil Lennon. That was a recent successful conviction under section 6, which the member wishes to take away.

James Kelly

That brings me to my next point. Repealing section 6 of the 2012 act will not leave a gap in the law. In the stage 1 debate, the point was made that the Communications Act 2003 allows sentences of only up to one year, whereas section 6 allows a sentence of up to five years. However, in relation to the section 38 offence under the 2010 act, which the minister referred to, there can be a trial on indictment and somebody can be sentenced to five years. There is case law that backs that up, such as HM Advocate v McGinley, on a breach of the peace charge.

On cover in relation to religious minorities, as Professor Leverick pointed out to the Justice Committee, a section 74 religious aggravation under the Criminal Justice (Scotland) Act 2003 can be added, as happened in the Love v PF Stirling case.

There is no gap in the law. Legislation and case law that demonstrate that there is not a gap in the law are in place.

I agree with Liam McArthur’s point. If the Government’s position were serious in any way, it would have proposed at least an 18-month gap in which to bring forward legislation. A 12-month gap is a minimal amount of time, which would not allow legislation to be brought forward. The amendment is simply a face-saving measure from the Government.

It is important to recognise the point that the Law Society of Scotland made in its submission ahead of the debate on matters relating to repeal. It said:

“There is always merit in clarity, simplicity and consistency of the law. This would be provided if the 2012 Act is repealed in its entirety at one time.”

The minister is seeking to have different timings for repeal. From her point of view, the preferred route is a delay of 12 months for section 6 of the 2012 act and two months for sections 1 to 5. That would go against the wise counsel of the Law Society of Scotland.

On the protection of minorities, we cannot offer proper protection if the law has been unused and we have seen only one conviction in the past year.

To sum up, the aspect of the law in question is little used and there is no gap. There is no point in leaving in place a law that is not being used properly and credibly. It is time to move quickly to repeal and to use the credible and robust existing legislation that is already in place.

Annabelle Ewing

There would be a gap in the legislation if section 6 of the 2012 act were repealed—there is no question about that. Indeed, Daniel Johnson recognised that point when he referred to the fact that only the majority of cases—not 100 per cent of them—could fall within other provisions. In response to Mr Kelly and Mr McArthur, who will be expert on these legal matters now, given their perusal, I say again for the record what I said in my opening remarks: breach of the peace involves not only a fear and alarm test, but a threatening of serious disturbance to the community element. That is a problem with regard to some section 6 issues. With regard to section 38, there is a fear and alarm hurdle, which is not the case in section 6. I hope that, as a lawyer, I have clarified that helpfully for members once and for all.

To be fair, I do not think that the author of the Law Society of Scotland paper for stage 3, which has been referred to, got things quite right. As I have said, it is a simple matter of fact that the repeal of section 6 will leave a gap in the law that the Scottish Government, acting responsibly and in the best interests of minority and vulnerable communities, needs to address. My intention with amendment 4 is to seek the time to address that problem. A 12-month period is challenging, but it is nonetheless realistic to introduce alternative legislation on section 6 issues. I find the argument that, because things might take a wee bit longer than that, we should just take away the protection potentially from mid-April very confused.

We do not want Scotland to be behind the rest of the UK on protection against incitement to religious hatred. If section 6 is taken away, there will be no specific offence of incitement to religious hatred in Scots law.

I gave the example of ISIS in my opening remarks and, in an intervention on Mr Kelly, I highlighted the recent successful conviction under section 6 of a 50-year-old man who was charged with making death threats against Neil Lennon.

That gap in the law needs serious consideration by the Scottish Government so that we can work with partner organisations and those who are interested in ensuring that our minority communities have adequate recourse to law when they are attacked or harassed. A bit of extra time is required to put in place longer-term protection against incitement to religious hatred in Scotland. That is not a complicated proposition, as the Law Society appeared to suggest it is; it is quite the opposite, as it would afford continuity of protection. It is not at all clear why the author of the Law Society’s paper thinks that anyone would be concerned about section 6 prosecutions continuing.

Amendment 2 moved—[Annabelle Ewing].

The Presiding Officer

The question is, that amendment 2 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)

The Presiding Officer

The result of the division is: For 60, Against 62, Abstentions 0.

Amendment 2 disagreed to.

The Presiding Officer

We now move to group 2. Amendment 3, in the name of the minister, is in a group on its own.

Annabelle Ewing

Amendment 3, which seeks to delay the repeal of the 2012 act, has been proposed for purely practical reasons. Ensuring that the bill is brought into line with accepted, tried and tested practices supports the effective introduction of the changes to the law by ensuring that those who need to take account of those changes are able to work to a clear and specific date.

Amendment 3 provides certainty and time for all those affected by the bill to take account of its provisions and to make all the reasonable adjustments that are required of them before the date that the new legislation comes into force, if it is passed by this Parliament. The amendment therefore promotes clarity. A two-month period from royal assent is not odd or unusual; it is simply good practice, particularly as far as the criminal law is concerned.

The argument that the closed season would offer police and prosecutors a period in which to carry out preparatory work simply does not hold water. That is for the simple reason that royal assent usually occurs about five to six weeks after stage 3. If the Parliament passes the bill, the 2012 act could be repealed as early as mid-April, but the current football season does not end until 19 May, with the Scottish cup final. Potentially, that means that a month of football could be played after the 2012 act has been repealed, without Police Scotland or prosecutors having had the necessary time to make the reasonable adjustments that are needed to ensure that the changes in the law are implemented effectively.

Building in a two-month window would allow the police, football clubs and supporter liaison officers to clearly communicate to fans that, although the 2012 act has been repealed, offensive, threatening and hateful behaviour at football will not be tolerated. Surely that can be viewed as a good thing.

Amendment 3 adjusts section 6 of the bill, which deals with the commencement date. The default commencement provision is for the bill to come into force on the day after royal assent. Amendment 3 changes that so that the bill would commence at the end of two months, beginning with the date of royal assent. In other words, it brings the bill into line with standard practice for legislation that deals with the criminal law of Scotland.

I move amendment 3.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

I speak in favour of the amendment. The repeal of the 2012 act lacks one thing: a viable alternative. The most recent statistics show a 69 per cent conviction rate, and most recent polls show that 85 per cent of people are offended by sectarian chants and songs. The repeal of the act sends out an entirely wrong message.

As the minister said, equality groups such as Stonewall Scotland, the Equality Network and the churches, along with many others, say that people do not feel safe going to a football match. We have to respond to that.

The 2012 act is not perfect—nobody is saying that it is—but I cannot understand the rush to abolish it. At the very least, we should wait two months after royal assent so that we can consider further legislation and make the necessary adjustments, as the minister outlined. There is far too much at stake to repeal the act now and replace it with nothing.

Liam Kerr

I will speak against amendment 3, which seeks to delay commencement of the repeal by two months. I listened to the reasons that the minister gave for that delay both today and at stage 2. They boil down to a suggestion that the people who are affected by the bill—that is, by the repeal—require certainty and time to prepare. I am not persuaded.

It is instructive to note that, earlier this month, the Lord Advocate published new guidelines for football-related prosecutions, instructing prosecutors to stop using the 2012 act and instead use pre-existing statutory offences or common-law ones, such as breach of the peace. Even the Lord Advocate is persuaded that the amendment is unnecessary.

Annabelle Ewing

If the Lord Advocate were here, Liam Kerr might find that he was a bit surprised to hear him say that. Liam Kerr referred to the guidelines that were issued towards the end of last week. The Crown Office must continue its daily work and needs to ensure that guidelines are available. That, of course, is a matter for the independent Crown Office. That is one important strand but there are many others—including, as I said, building in time for the police to work with supporter liaison officers, for example. Does Liam Kerr not want that time to be available to smooth the passage of the bill, if it is passed?

Liam Kerr

I absolutely care about that. The minister appears to have misunderstood my comments. When I say “even the Lord Advocate” I mean that, as the minister rightly pointed out, normal practice might be to wait two months but, in this case, even the Lord Advocate has considered that it is better to publish the new guidelines for football-related prosecutions already.

Given the attention that the media has given the matter for a considerable time, it is clear that the repeal will not come as a surprise to anyone. Getting the 2012 act in place prior to the start of the football season was one reason that was given for its initially being rushed. Following the unamended timetable that is given in the bill will bring about repeal towards or around the end of the football season. That will give the off-season to allow the return to the new old regime to embed and the police and others to carry out preparatory work and deal with any message that may or may not be sent.

The time for delay is over. The Scottish Conservatives shall vote against the amendment. Should it be Parliament’s will to pass the bill—and we hope that it is—we hope that the repeal will take place with all due haste and no further delays.

James Kelly

I oppose the amendment in the name of the minister. The minister’s central point is that prosecutors need time to prepare for the passing of the repeal bill.

In reality, as Liam Kerr said, it is no surprise that we are on the verge of voting to repeal the 2012 act. Parliament made its views known on the issue as far back as November last year. Prosecutors should have been well aware at that point that Parliament had signalled its intentions. In addition, as has been pointed out, the Lord Advocate issued guidance after stage 1 that says that prosecutors should stop using the provisions in the act. He also emphasised that pre-existing legislation can be used, thereby backing up the argument that there will be no gap in the law.

The 2012 act is poor legislation that has caused a lot of difficulty. The Law Society of Scotland has pointed out that there is a lack of legal certainty in the act and that it is open to legal challenge. The Scottish Human Rights Commission has made the same point. When there is poor legislation on the statute book, it makes sense to get it off as quickly as possible and instead use credible pre-existing legislation to deal with cases that are going through the system.

Annabelle Ewing

It is not odd or unusual to seek a two-month period after royal assent; in fact, such a period would bring the bill into line with normal accepted practices, particularly as far as the criminal law of Scotland is concerned. The amendment therefore promotes legal certainty, and not the reverse.

It is fair to say that although amended guidelines were indeed issued last week, there are other actors in this process. Discussions will need to take place between the police, football clubs and supporter liaison officers to clearly communicate the new position, and I would not have thought it unreasonable to allow all those players two months to do that, and to do so properly—I am sure that they would welcome that.

Liam Kerr and James Kelly said that repeal will take place during the closed season. It probably will not, because if Parliament votes to pass the bill tonight, the 2012 act could be repealed as soon as mid-April, with one month of the football season still to go.

As a responsible Government, we lodged amendment 3 to promote clarity and to respect the normal practices that we would expect to see in most other legislation, and certainly in legislation that affects our criminal law.

As the date when royal assent is given is never certain, surely it is fairer that those who need to prepare for the repeal can work to a known date and have reasonable notice of it. That is not an unreasonable request and I would have thought that it was in the interests of everyone in the chamber to ensure that our law enforcement agencies can implement changes to the law as effectively as possible.

The Presiding Officer

The question is, that amendment 3 be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow Pollok) (SNP)

Against

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)

The Presiding Officer

The result of the division is: For 60, Against 62, Abstentions 0.

Amendment 3 disagreed to.

Final debate on the Bill

Once they've debated the amendments, the MSPs discuss the final version of the Bill.

Final debate transcript

The Deputy Presiding Officer (Christine Grahame)

The next item of business is a debate on motion S5M-10790, in the name of James Kelly, on the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill, at stage 3.

15:47

James Kelly (Glasgow) (Lab)

The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 has been a failure: it has not tackled bigotry and has been widely criticised by law groups and human rights groups. Football fans have been treated as second-class citizens. The football act is the worst legislation in the history of the Scottish Parliament, and it is time for it to go.

The reality is that the legislation that was introduced by the Government, and passed by Parliament in December 2011 against the will of every Opposition party, has not worked. Every reasonable member of Parliament condemns bigotry and sectarianism, including the incidents last weekend. However, the legislation has failed to tackle sectarianism and religious intolerance.

Let us consider the religious aggravation statistics. There were 719 charges with religious aggravations in 2016-17. That is more charges than there were in the year that preceded the introduction of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. Only 46 of those charges were for offences in or around football grounds. I am not glossing over religious aggravations that happen at football grounds. Religious aggravations must be taken seriously whether they happen at football grounds, in the street, outside a religious venue or in a club. The statistics show that the problem of religious intolerance goes much wider than football.

The failure of the Government’s approach lies in the fact that it adopted a simplistic approach: it thought that introducing legislation would deal with the problem of sectarianism. Sectarianism is a complex problem that has, unfortunately, been with us for a long time.

John Mason (Glasgow Shettleston) (SNP)

We all agree that the problem of sectarianism affects a wider range of issues than just football, but does James Kelly accept that opinion polls regularly show that the public think that football is the main context in which sectarianism is seen?

James Kelly

We should examine the evidence, which shows that of the 719 charges with religious aggravation—that number is a concern to all of us, because it shows that there are issues of religious intolerance in society at large—only 46 took place around football. That shows that there is a gap between perception and reality. There should be a much wider and more serious conversation. The Government has a job to do to bring about consensus and to bring people together. Instead of cutting anti-sectarianism budgets, it needs to come up with a different approach. I am quite prepared to work with the Government on that.

With regard to issues with the act, we need look only at the evidence that was submitted to the Justice Committee during stage 1. We heard from fans, human rights groups and legal experts. The Law Society of Scotland told us that there is no gap in the law.

We can also look at some of the human examples. Lawyers told us that the common profile of people who are captured under the act is a young person under the age of 20 who is in employment and has not previously come into contact with the police or the criminal justice system. That is backed up by recent statistics that show that nearly a third of cases did not result in prosecutions.

We can see that from practical examples that have been provided. One involves a Rangers supporter, who was arrested at Rugby Park on a Thursday night, detained overnight in a police cell and released on to the streets of Kilmarnock at 5.30 in the morning. He then had to spend £60 on a taxi to Glasgow to go to work. He incurred costs of hundreds of pounds in legal fees, lost wages as a result of missing work and suffered stress over the impact that a conviction would have on his employment, but was ultimately found not guilty.

Another example involves a 46-year-old Hibernian supporter who attended the 2016 Scottish cup final. At the end of the game, he went on the pitch with his grown-up son and daughter. Okay—he should not have gone on the pitch. He had a wander around on the pitch, sang a few songs and then left. [Interruption.] I will finish. He then left to join the celebrations with his family. Three months later, at 7.30 in the morning, 12 police officers in three police vans turned up at his house and he was arrested and charged under the 2012 act. The man was a member of the local community council and was on the parents board. He resigned from those posts because he was worried about the case and because of stress. Subsequently, with the help of defence lawyers, he was able to piece together what he had done on the pitch. As I said, he wandered around and had a bit of a celebration, but did not commit any public order offences. Subsequently, the charges were dropped. If people were being treated like this—

The Minister for Community Safety and Legal Affairs (Annabelle Ewing)

I am not clear where Mr Kelly is going with this. Is he advocating more pitch invasions?

James Kelly

I am advocating that the Government stop treating football fans like second-class citizens.

It is quite clear from the evidence to the Justice Committee on sections 1 and 6 that the legislation has been widely criticised and discredited. As an approach to sectarianism, it has not worked. It has created confusion and division, so it is time to consign this discredited legislation to the dustbin of history.

I move,

That the Parliament agrees that the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill be passed.

15:55

The Minister for Community Safety and Legal Affairs (Annabelle Ewing)

The bottom line is that there is a problem with abusive and offensive behaviour at Scottish football. It is a continuing problem and it cannot be excused as mere banter or as passion.

During the old firm match last Sunday, some Rangers supporters indulged themselves by singing songs including “Flute for 50 Pence”, “The Billy Boys” and “Super Rangers”, with offensive lyrics added to them. Which MSP in this chamber would describe that songbook as mere “banter”?

At the same match, some of the Celtic support joined in by singing songs, including “The Boys of the Old Brigade” and “Celtic Symphony”, with offensive lyrics added to them. Which MSP in this chamber would describe that songbook as being simply “passionate”?

Liam Kerr (North East Scotland) (Con)

Will the minister give way?

Annabelle Ewing

Throughout the match, missiles were thrown between the segregated fans and flares were set off with no regard for the fact that children and young people were attending the match—not to mention the vast majority of people who just wanted to enjoy some good football. Who in this chamber thinks that that was all just harmless fun?

Liam McArthur (Orkney Islands) (LD)

Will the minister give way?

Annabelle Ewing

Before the match, up to 500 supporters, many wearing balaclavas, marched to Ibrox displaying a banner that said, “Good night, green and white” and showed an image of a silhouetted figure wearing a green-and-white hooped jersey being kicked in the head. The group sang celebratory Rangers songs and offensive songs, including “Follow Follow”, which contains expletives referring to the Pope, and “The Billy Boys” chant, including offensive add-ons.

The flyer that was distributed calling on supporters to participate in those disturbances described the derby match as—I reluctantly quote this—

“the match against the Fenians”.

Pictures of the march show some members of the group making Nazi salutes.

Daniel Johnson (Edinburgh Southern) (Lab)

Will the minister give way?

Annabelle Ewing

No, I will not.

After the match, there were reports of violence between the two sets of fans on Govan Road, including a minibus being pelted with glass.

Of course, it is not only a Glasgow problem. On the same weekend, about an hour prior to kick-off in the derby match in Edinburgh, approximately 150 Hearts supporters congregated in an area near Easter Road. Offensive singing was heard from them, including renditions of their version of “Gorgie Boys” with offensive add-ons. A significant number of pyrotechnic devices were discharged from among the Hearts supporters, with three being thrown onto the pitch, which resulted in the kick-off being delayed.

Brian Whittle (South Scotland) (Con)

Will the minister give way?

Annabelle Ewing

Coins were thrown at Hibs players on the pitch during the match, and the second half was disturbed by pitch incursions.

Mike Rumbles (North East Scotland) (LD)

On a point of order, Presiding Officer.

Is this speech a ministerial statement, which is not intervened on, or is it part of the debate?

The Deputy Presiding Officer

Sit down, Mr Rumbles. That is not a point of order, as you are well aware. It is up to the member, whoever that member is, whether they take interventions.

Annabelle Ewing

What that snapshot of just one weekend of football fixtures tells us is not that the 2012 act should be repealed, but that it should be strengthened and improved in order to tackle the behaviour to which we cannot simply turn a blind eye. Repealing the 2012 act without there being a viable alternative sends the signal that this Parliament is happy to let such behaviour go unchecked and unchallenged.

In the rush to repeal the 2012 act, there has been a lot of denial about the fact that it will impact negatively on communities across Scotland. Those communities know the negative impact that football can have.

Yesterday, YouthLink Scotland and ScotCen Social Research published independent research that asked respondents about use of sectarian language and their perceptions of sectarianism in social media. Of the respondents, 76 per cent view football as the main contributor to sectarianism. That verifies the reports of the independent advisory group on tackling sectarianism in Scotland, which noted that football provides a “permissive environment” that allows sectarianism and other offensive and abusive behaviour to thrive. There are also the findings of the Scottish social attitudes survey 2014, in which 88 per cent of people surveyed cited football as the most common contributor to sectarianism in Scotland.

Patrick Harvie (Glasgow) (Green)

Will the minister give way?

Annabelle Ewing

I would like to make progress.

There is a specific problem with behaviour at football, as is widely recognised by Scottish communities. Repealing the act will do nothing to reassure them.

It may be only a minority of fans who behave in those ways, but it has an impact that is significant enough to tarnish the reputation of Scottish football and spoil the game for people who simply want to enjoy supporting their team.

Patrick Harvie

I am grateful that the minister has eventually decided to take an intervention.

I make the case that our shared revulsion at the level of sectarianism and ill behaviour in Scotland, including that which is associated with football, is an argument for having good law, not a defence of bad law.

Annabelle Ewing

Patrick Harvie should work with us to amend and improve the law, rather than taking away—without putting in place a viable alternative—the protections and the signal that such behaviour is not acceptable in Scottish society.

When we look back further than last weekend, we see that, in this season alone, there have been reports of racist behaviour by supporters and abusive behaviour towards people because of their disability or mental health conditions. In October 2017, a man pleaded guilty to an offence, under section 6, of threatening to shoot and kill Neil Lennon.

Legislation has an important role to play in tackling offensive behaviour at football. As I said to Patrick Harvie, we do not provide protection to vulnerable communities by repealing legislation—we provide protection by improving and updating legislation.

As a responsible Government that is faced with the manifest irresponsibility of repealing the act without putting in place a viable alternative, we remain committed to providing the best possible legislative framework to protect people from malicious harm. That is why I commissioned Lord Bracadale to review hate crime legislation in Scotland.

There is a problem with the toxic behaviour that we see at, and which is associated with, football. The persistent, abusive and offensive behaviour that is linked to football will not go away on its own. It is an expression of the unhealthy culture that surrounds football. The Scottish Government will do all that it can to tackle that behaviour, even in the face of today’s irresponsible move to repeal the 2012 act without putting in place a viable alternative.

The Deputy Presiding Officer

Liam Kerr will open for the Conservatives. You have five minutes, Mr Kerr.

16:02

Liam Kerr (North East Scotland) (Con)

I thought that I had six minutes, Presiding Officer.

The Deputy Presiding Officer

I have five minutes on my list. However, I will be generous. That is my position as the referee.

Liam Kerr

I will be as brief as possible. I open for the Scottish Conservatives and speak in favour of passing the bill. It is clear and unambiguous in its ambit: if passed, it will repeal the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. The act should be repealed because it is bad law, and, more than that, it is unnecessary law. The objectives of the act—to tackle sectarianism by preventing offensive and threatening behaviour at football—were laudable, but as the committee and the Parliament heard repeatedly, the offending behaviour that the 2012 act was designed to address was, and remains, fully covered by the substantive existing criminal law.

According to the Law Society of Scotland, all 287 charges brought under section 1 of the act in 2015-16,

“could have been prosecuted under pre-existing legislation”.

The Justice Committee heard from senior police officer, Assistant Chief Constable Higgins, who said that,

Professor Leverick was unequivocal when she said:

“breach of the peace, section 38 and a number of statutory aggravations are in place … offensive behaviour at football matches could be dealt with under pre-2012 legislation.”—[Official Report, Justice Committee, 7 November 2017; c 32.]

If the act had worked and achieved its objective of tackling sectarianism by preventing offensive and threatening behaviour at football, it could be argued that that would not be a consideration. Has the act worked? I refer members to Ms Ewing’s comments about how ineffective it has been and how little it has achieved.

Dr Joseph Webster told the committee:

“The 2012 act has made the policing of sectarianism more difficult, because fans have got wise to how to circumvent the law”.

Worse, he went on to say:

“it has led to a deterioration in relationships between the fan bases and between them and the police.”

What about the song sheets that, during the stage 1 debate, George Adam assured us had been put away since 2012? Dr John Kelly told the committee that

“since the 2012 act came in there have actually been more of what the Scottish Government might define as problematic songs.”

Dr Joseph Webster elaborated by talking of the reality of what is going on:

“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 … they have replaced certain songs and chants with other words in order to try to skirt the law.”—[Official Report, Justice Committee, 14 November 2017; c 59, 50, 49.]

We have an act that has added nothing to the legislative landscape, has not achieved what it intended and has actually been counterproductive in redirecting and camouflaging—but not stopping—offensive behaviours and prejudices.

However, like many, including some Scottish National Party back benchers, although I agree with the principle of repealing the act, I remain concerned about the possibility of a particular message being sent out. I understand that concern and have reflected on it at length, but I am persuaded that it is not an issue. I just do not accept—and no evidence has been presented—that there is a whole cadre of people sitting at home saying, “If only the act was not there, I’d be out singing right now. If those MSPs get rid of the act, they clearly think these songs are okay.”

Rona Mackay (Strathkelvin and Bearsden) (SNP)

Does the member agree that the equality groups are actually frightened to go to football matches? Does he disregard what they said at the Justice Committee evidence session?

Liam Kerr

I certainly do not disregard the evidence that was given, which was extremely important. I direct the member towards a point that was made by Liam McArthur at stage 1 and earlier today, which is that it is deeply irresponsible to give such groups false reassurance that the act will protect them. We have to take it away and give them a proper message that we will protect them.

I also think that a rather unpleasant assumption is inherent in the argument about a message to the football fans, who are being treated as a homogenous, malevolent, ignorant entity. The evidence from the Scottish Football Association, Police Scotland and fan groups showed unequivocally that the number of football fans who engage in criminal behaviour is minimal. I go back to my statistics from earlier: there were 287 charges—not even convictions—under the act last year. Just think how many people go to football in Scotland each weekend. To say that ineffective, ill-drafted, counterproductive legislation should not be repealed because, hypothetically, that might be received by a tiny minority of people in a particular way is not a good enough reason not to repeal it.

ACC Higgins said:

He is right. There is a problem with sectarianism, but it is not exclusive to football, and the 2012 act was disproportionate in targeting fans of the sport.

Dr Joseph Webster was clear in saying to the Justice Committee:

“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.”—[Official Report, Justice Committee, 14 November 2017; c 49.]

I agree and, furthermore, the police and courts need to use the powers that they already have to stop such behaviour. Speakers throughout today will no doubt address those solutions, but on the substantive point we should ask: is this bill—to repeal an ill-drafted, ineffective, counterproductive act, in a manner that will not send the message that people are concerned about—the right thing to do? I say yes, absolutely—and I look forward to voting for it at decision time tonight.

The Deputy Presiding Officer

I call Daniel Johnson to open the debate for Labour. You have five minutes, Mr Johnson—I hope that I have got that right this time.

16:07

Daniel Johnson (Edinburgh Southern) (Lab)

I understood that, Presiding Officer, but if you want to give me an extra minute that would be fine.

I begin by acknowledging the strength of feeling and concern that the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012—and, in turn, its repeal—elicits on all sides of the debate. I understand the worry that has been expressed from members on the SNP benches and the concern about the scourge of sectarianism that lies behind it. While I disagree with those members about this bill to repeal the act, I share their concern about this pernicious aspect of our culture and their conviction that we must act to counter it. However, let me say this seriously and gently to them: the 2012 act does not serve the purpose that is claimed or that they purport. It provides no additional power to the police or prosecutors and has had unintended and unjustifiable human consequences. Above all else, it has been profoundly illiberal in its effect.

James Dornan (Glasgow Cathcart) (SNP)

Will the member clarify for me just what the repeal of the act will do to counter sectarianism?

Daniel Johnson

Repeal of the act will enable us to use the existing law, which will be able to protect those people and to focus on the causes of sectarianism rather than its context.

From the evidence that we have heard through stages 1 and 2 of the bill—and, indeed, through the debate on the amendments that we have just had—it is clear that there is no legal need for the 2012 act. Indeed, as other speakers have said, the Lord Advocate’s instruction to prosecutors to stop bringing cases under OBFA and to use alternative statute and common law is an acknowledgment that that law is legally redundant and that its time on the statute book is coming to an end.

There is a danger that the repeal of the 2012 act is viewed from a narrow and technical legal perspective. The real issue with the act is not its legal effect, but its very real human impact and the damage that it has done. It is when we hear the stories of the people caught up in the unintended consequences and the misguided exercise of the act that the real need for its repeal becomes clear.

There is the dad who has been charged three times only to have his case thrown out of court each time. Those experiences cost him not only £4,000 in legal fees but his job. Perhaps worst of all, they cost him the opportunity to be present at the birth of his first child, because he was in court.

There is the man who was arrested simply for asking why the friend with whom he was at the football was being detained by the police. Apparently, asking that question was deemed to be threatening and offensive, in and of itself. Again, he was found not guilty at court.

Football fans are losing work, losing money and having their family lives disrupted. The 2012 act is putting people with no prior contact with the criminal justice system into a cell and into court only to be found not guilty.

Fulton MacGregor (Coatbridge and Chryston) (SNP)

Will the member take an intervention?

Daniel Johnson

In a moment. Perhaps most troubling are the stories that do not just tell of the dysfunction in the law, but demonstrate the fundamentally illiberal consequences of the legislation. Football fans have been arrested for wearing Che Guevara T-shirts and—irony of ironies—for flying a banner with the words “Axe the act” on it. Whether or not one agrees with the statements that they are making, people have a right to political expression. In any other context, those acts would be viewed as innocuous, or even celebrated as the acts of people exercising their civic rights. On that point, I am happy to give way to Fulton MacGregor.

Fulton MacGregor

Daniel Johnson will know that many members on these benches have sympathy with some of the things that he has mentioned, but would he not agree that they are a problem with the implementation of the 2012 act, rather than the act itself? What we should have been doing was working together to get those aspects right.

Daniel Johnson

I would have some sympathy with the member if the police were saying that they would not be able to use the existing law to prosecute many of the actions, but they can. The evidence from the police to the committee was very clear. They would be able to use other laws such as the Criminal Justice and Licensing (Scotland) Act 2010, the Communications Act 2003 or, indeed, common law breach of the peace.

Ultimately, what we need to do is tackle the underlying causes. When we hear those examples and stories it is hard not to conclude that the 2012 act is illiberal and wrong. At previous stages of this bill and in the chamber today, the founders of the act have fallen back on asking what message it will send if we vote to repeal it. I acknowledge that a legitimate function of legislation is to communicate what is acceptable and what is not. Likewise, the things that we vote for and against in this Parliament also send messages. However, I pose this question: what message does it send if we let the act stand—an act that provides no additional power to the authorities, has damaged trust in the police, has had huge personal consequences for individuals and is so profoundly illiberal?

Scottish Labour is proud to support James Kelly’s bill to repeal the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, and we hope that members from across the chamber will join us at decision time this evening.

16:13

John Finnie (Highlands and Islands) (Green)

I am really disappointed with a lot of what I have heard so far. The Scottish Green Party has always been opposed to the 2012 act. I was not personally opposed, but I am now. As I said in the debate on the amendments, I think that James Kelly has made his case, based on the legal evidence that we have heard, including the evidence of fans, and I was particularly persuaded on the human rights aspect.

I would like to make the case that shinty is our national sport, but I suppose that most folk would say that football is. A Government minister should not have trashed football in the way that she did—that was the purpose of my intervention. All the evidence shows that, across Europe, Scotland has the highest percentage of residents who attend football matches.

We heard from the police that they are perfectly capable of policing without the 2012 act. We also heard from them that, with the exception of two clubs, every senior football club in Scotland has held football matches without a police presence. Nothing could be further from the truth than the idea that fans across Scotland are at war with police—an idea that has been put forward by people in various quarters.

I should have declared at the outset my various associations with Heart of Midlothian Football Club that are mentioned in my entry in the register of interests. Obviously, I would abhor behaviour such as the minister outlined.

I attended my first football match in this city more than 50 years ago and policed my first football match in this city more than 40 years ago. There have been significant changes since then. Today’s situation is a world apart, and that is not just down to the removal of alcohol from stadiums or the introduction of all-seater stadiums; there has been a huge move in respect of fan behaviour.

No one would support the situation that you outlined. The language that we all use is very important.

Annabelle Ewing

I reiterate that I was simply repeating what happened last weekend—it was a snapshot of that. If the member does not feel that that suggests that with some fans—I have always said that it is the minority of fans—there is a problem in and around football, I do not know what would need to happen to convince him.

John Finnie

I assure you that on the rare occasions when I go to neutral venues—I often go to see Nairn County—there is no problem there. There is no problem at the vast majority of grounds. The behaviour that you outlined is behaviour that would be taking place anyway on many occasions; it is taking place notwithstanding the act being on the statute book.

On the language that we use, every one of us, regardless of which side of the debate we are on, has to respect the parliamentary process. The legislation that we are seeking to repeal was no more forced through than the bill, which I hope will pass tonight, is being forced through. There has been scrutiny in both instances and James Kelly very clearly made his case.

We heard compelling evidence, which has been alluded to a number of times. We heard from Professor Fiona Leverick about the alleged gap. We heard from ACC Higgins, who, I think, articulated the dilemma that the police find themselves in in many instances. I suspect that they will be roundly criticised regardless, but they deal with the legislation that is front of them. We heard clearly that there is a sufficiency of legislation already for them to deal with the issues that you outlined.

I want to mention one more aspect of the tone of the debate and the language that is being used. When Mr Kelly said in response to a question that he will work with anyone to address the issue of sectarianism, I heard groans around me. Let no one be groaning about that; let us all get together. Let us recognise that sectarianism is a problem for all of us. I am happy to work with anyone and everyone to address the scourge that is there. We will be voting for Mr Kelly’s bill tonight.

The Deputy Presiding Officer

I gently remind members to speak through the chair and not to use the term “you” in the chamber. For the umpteenth time, I remind members to please just say “the member” or name the member. That is directed to all members present.

16:17

Liam McArthur (Orkney Islands) (LD)

No one in the chamber condones sectarian or offensive behaviour. Every single one of us is genuinely committed to confronting and combating hate crime, whatever form it takes, wherever it takes place. No MSP or political party can credibly claim a monopoly on caring about these issues. Given the tone and content of some of what has been said during the scrutiny of the bill, and again this afternoon, it is important not to lose sight of those basic truths.

It is also imperative that we recognise our collective responsibility for reinforcing the unambiguous message that the law will continue to provide protections against offensive behaviour wherever it takes place and will continue to provide protections against threatening communications.

Of course the legislative landscape for tackling hate crime can be improved. I remain confident that Lord Bracadale’s review will help us go some way to achieving that, but it is wrong and increasingly irresponsible for the Government to continue fanning anxieties about alleged gaps in the law, which is simply not supported by the evidence. The Law Society of Scotland could not have been clearer when it said:

“the offending behaviour which the 2012 Act was designed to address was and remains fully covered by the substantive and existing criminal law. The Bill, if passed, will not leave any gap in the criminal law as existing measures, both statutory and at common law, will allow for the prosecution of any relevant offending behaviour”.

Similarly, as others have said, ACC Higgins assured the Justice Committee that, in the event of repeal,

“the police would continue to ... address the behaviour using other legislation.”—[Official Report, Justice Committee, 3 October 2017; c 3.]

Already we see the Lord Advocate instructing prosecutors to stop using the discredited, ineffective and illiberal 2012 act and instead to use pre-existing statutory offences or common law. Neither Police Scotland nor the Lord Advocate is talking in terms of gaps in the law or weakened protections. They recognise that that is neither true nor helpful in providing assurances to those who have been voicing concerns. I hope that the minister will now follow suit.

After all, although legislation can and does play a role in conveying a message about what we, as a society, find acceptable or unacceptable, it is surely irresponsible to allow the misconception to go unchallenged that the law is providing protection to people, when that is not the case. I struggle to accept that the wrong message is sent by repealing an act that does not provide the protection that its supporters claim that it does.

However, repeal of the 2012 act is not a do-nothing strategy, as the minister and some of her back benchers have argued again today, in the face of the sectarianism that we all accept continues to blight too many of our communities. Yes, repeal will help remove from the statute book a piece of legislation that has not only proved ineffective but done more harm than good to our efforts to combat sectarianism and encourage a change of attitudes and behaviours. However, repeal must go hand in hand with a renewed commitment to take steps that we know from the evidence are effective. Danny Boyle from BEMIS told the committee 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.”—[Official Report, Justice Committee, 24 October 2017; c 12.]

John Mason

Will the member give way?

Liam McArthur

No, thank you.

Danny Boyle’s view is supported by the Government’s advisory group on tackling sectarianism, which argued that the foundations for change rest on initiatives that focus on prevention and building trust and understanding, recognising that councils, churches, football clubs, schools, the media and community organisations are all key in delivering effective grass-roots solutions.

I commend James Kelly for, and congratulate him on, his hard work and perseverance on the issue of the 2012 act and bringing forward the bill. I also thank all those who helped the Justice Committee in our deliberations. However, I look forward to Parliament taking the step shortly, which it should never have had to take, of removing an ineffective, counterproductive and illiberal piece of legislation from the statute book.

The Deputy Presiding Officer

We move to the open debate, with tight four-minute speeches.

16:21

James Dornan (Glasgow Cathcart) (SNP)

If ever the need for the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 was highlighted, it was last weekend. After bringing the union bears march to the attention of others on Twitter, I was threatened—the police have been contacted and I have a meeting arranged with them—I was told that my 83-year-old mum was dead and I was subjected to infantile abuse from grown men as well as the usual utter bigoted nonsense that we get from the extreme wings of both sides of the Glasgow footballing divide.

There is no doubt that, in the past few weeks, there has been an upsurge in blatant sectarian singing at football games. All members will have seen on Sunday images showing the vile sight of balaclava-wearing, Nazi-saluting thugs parading our streets like some kind of paramilitary outfit. It seems clear to me that the perceived imminent repeal of the 2012 act has emboldened some of the worst to go more public with their intention to show who is boss.

The 2012 act was brought in because legislation was clearly required to deal with the scourge of sectarianism that blights our game of football. Despite what our opponents continue to proclaim, that did not happen because of the “game of shame”—that was just the final straw. In 2009, things were so bad that UNICEF had to ask for reassurance that Rangers fans would stop singing the famine song; in 2011, the Catholic Church wrote about its concerns about anti-Catholic songs and chants at the league cup final; and, just this morning, Neil Lennon said that sectarianism was equal to racism and should be dealt with accordingly. I wonder whether Mr Kelly thinks that UNICEF, Mr Lennon and the Catholic Church were wrong to raise those concerns and that they should just have let the people sing.

Please do not tell me that football can deal with this, given that it was highlighted again by yesterday’s report that Scottish Professional Football League delegates have constantly had their reports of sectarian singing at football grounds ignored. The football authorities are clearly too lily-livered to take on the vested interests of the big two football clubs and have no intention of battling with the issue head on. It has therefore been left to the Government and—I had hoped—the Parliament to deal with it.

Do not insult us by saying that there is no support for legislation on the issue. The YouthLink report that was mentioned earlier shows that 80 per cent of young people think that there is a problem with sectarian language on social media, much of it relating to football; 72 per cent think that posting comments or images on social media that are offensive towards someone because they are a Protestant or a Catholic causes some degree of harm to Scotland’s image and reputation; and, more important, 68 per cent think that there should be sentencing of some kind for posting sectarian content online. If those young people who responded to that YouthLink survey think that there is a problem with the Scottish Government’s 2012 act, which has been opposed by every member of the Scottish Parliament outside the SNP, it is probably that they think that it is not harsh enough.

I urge every politician in the Scottish Parliament to ask themselves whether that is the type of country they want to be portrayed to the rest of the world. I accept, as others have said, that there are other ways of dealing with this. Those other ways are being attempted as we speak. Everyone has issues with the act, but the way to deal with them is not to repeal the act but to work with the Government to make it better.

I hear James Kelly and others say that they will work with the Government. Why have they not been doing that for the past number of years? They wait till they get victory and then say that they will work with the Government from a position of success. It is a pyrrhic success at the very least. Think of the message that repealing the act sends. Scenes like Sunday’s will become more regular as those groups of fans become more emboldened. The truth is that, deliberately or not, those who vote for repeal tonight will be enabling that type of behaviour.

The only consideration that members should have in mind when we vote today is whether the decision will make Scotland a better place to live in. Given what members have seen in the past weekend alone, can any in the chamber honestly say that, by repealing the act today, they will have done that?

16:25

Maurice Corry (West Scotland) (Con)

I am glad to have the opportunity to speak today as we get set to repeal this piece of unnecessary, illiberal and unworkable legislation. The position was accurately described by Dr Stuart Waiton, a senior lecturer at Abertay University, when he spoke to the Justice Committee recently. He said that the act criminalises “words and thoughts”. He said:

“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.”—[Official Report, Justice Committee, 14 November 2017; c 38.]

Dr Joseph Webster of Queen’s University, Belfast—and he should know—also told the committee that

“the act is not justified on free speech grounds.”—[Official Report, Justice Committee, 14 November 2017; c 36.]

Those are not concerns held only by academics. The Scottish Human Rights Commission said that restrictions of freedom of expression made the act contrary to human rights treaties, and in 2014 the commission reported its concerns to the United Nations so that it could monitor whether the restrictions that the act places on freedom of speech

“are truly necessary in a democratic society.”

John Mason

Will the member give way?

Maurice Corry

Let me continue. Professor Sir Tom Devine labelled the act “counterproductive”. The Celtic Trust has described how the act is “unjust” and has “soured relationships” between the police and fans. Fans groups have highlighted instances of injustice caused by the act that have only left football fans feeling more isolated.

In his submission to the committee, Paul Quigley of Fans Against Criminalisation told of a Rangers fan who was arrested for holding a banner that simply said “Axe the act”.

Joan McAlpine (South Scotland) (SNP)

Will the member give way?

Maurice Corry

I will give way to John Mason.

The Deputy Presiding Officer

Please sit down, Ms McAlpine.

John Mason

Is it the member’s argument that there should be complete freedom of speech for anyone to say anything? Would he restrict freedom of speech in some way?

Maurice Corry

I thank the member for that comment. The answer is that the existing law covers that and is there already. This is an unnecessary law to add on top. People can easily be charged and the member knows that as well as I do.

Paul Quigley also spoke of a Motherwell fan who was arrested, held in a Greenock prison for four days and then convicted of singing a song that simply included profanity about a rival team. I do not appreciate swearing or profanity at any sporting event, but I certainly do not believe that it is worthy of a criminal conviction. Andrew Jenkin of Supporters Direct Scotland, who submitted that the act is counterproductive, said:

“You cannot have legislation that applies to one specific sector of society; that is grossly unfair.”—[Official Report, Justice Committee, 3 October 2017; c 51.]

Those comments come because of the SNP Government’s failure to reach out to the football community. Paul Goodwin of the Scottish Football Supporters Association spoke to the Justice Committee of the public relations failures that accompanied the act and how it had left fans feeling targeted.

It is not only football fan groups who have pointed out the unfairness of the act in targeting football fans and matches alone. Stewart Regan, the former chief executive of the Scottish Football Association, said:

“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 ... 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”—

by this Government—

“after T in the Park events and no emergency legislation was put in place.”—[Official Report, Justice Committee, 7 November 2017; c 26.]

It is clear that the football world at large and the general public want the act to be repealed. A lot of people and organisations took part in the consultation on this bill, and a hefty 71 per cent of the respondents backed repeal of sections 1 to 5, while 62 per cent supported repeal of sections 6 to 9.

The Deputy Presiding Officer

You must wind up, please.

Maurice Corry

The act has failed to tackle hate crime. BEMIS said that it was

“not convinced that it appropriately or effectively tackles hate crime”—[Official Report, Justice Committee, 24 October 2017; c 5.]

and Assistant Chief Constable Higgins told the committee that we cannot arrest our way out—

The Deputy Presiding Officer

I am sorry, but you must conclude—which means now. Please sit down.

16:30

Johann Lamont (Glasgow) (Lab)

I made a number of efforts to write a speech for the debate, but I found it difficult to judge how the debate was going to be conducted. Would it be like the stage 1 debate, or would things have moved on? I have to say to the minister that I regret in the strongest terms the tone that she chose to use in introducing the Scottish Government’s position. I do not think that she has served her party well by impugning the motives of everyone in the chamber who disagrees with her and, in her description of what happened at the weekend, suggesting that people in here celebrated it, thought that it was a good idea or approved of it in any way.

The fact is that, as has been said, there is no monopoly in this chamber on concern about sectarianism. Right from the very beginning of this legislation coming into being, we, on the Labour benches, tested it and worried about it. I did that as our justice spokesperson and as the then leader of the party, and my decision to support James Kelly’s bill was not a decision that I took lightly. It is offensive—if I might use the term—to suggest otherwise.

The question is not whether we support sectarianism but how best to tackle it. There is a problem at the heart of the act in that it conflates being offensive with being sectarian. As a consequence, people are getting caught up in the legislation because they have no means of avoiding it. We have heard all sorts of examples of that this afternoon.

I also find deeply offensive the suggestion that everyone else in the chamber is somehow irresponsible and that they have not thought through these issues in great detail. I know that there were people, including those in the churches, who wanted us to tackle the question of sectarianism, but I doubt very much that those same churches and organisations also thought that young people should be caught up in the legal system for wearing a Che Guevara T-shirt or for having the audacity to express a political view. Such organisations should not be called in defence of such a position—they were arguing about sectarianism, not the merits of the legislation.

Again, today, we have heard the argument that passing the bill will send out a message. As has been said, however, this characterisation of football and football fans is simply wrong. This sort of thing does not happen routinely even in the old firm games, and it does not happen routinely at Pollok football ground or at grounds across the country. We need to name the problem in order to deal with it.

We have also been told that passing the bill will send out a message about our views on sectarianism. I am not sure how much of a comfort it would be to me if my son or daughter got caught up in the legal system for doing something that they were not even aware was an offence. None of us would want that for a member of our family, but that is the reality for all too many people who have been caught up in the legislation.

Moreover—I say this in all seriousness—what message does it send out about our commitment to tackling sectarianism when the budgets for programmes that educate our young people on such issues have been cut from £3 million to £500,000? The reality is that there is hard and heavy lifting to be done on the issue. It is not simply a case of passing the bill and hoping for the best; we need to do the heavy job of winning hearts and minds on these issues. There is no easy fix.

Of course, the other tactic that has been deployed is, as I have said, to impugn the motives of the political parties who oppose the SNP’s legislation.

That might work in here—it might be of some comfort to SNP backbenchers who have been whipped to support the Government on the ground that we are passing the bill only because we oppose them politically. However, we are not talking about what works in here; we are talking about what works in the real world.

The Deputy Presiding Officer

Can you please conclude?

Johann Lamont

I urge members to support James Kelly’s bill because out there, in the real world, the 2012 act is not working and is having dire consequences. We have been told that by experts and by individuals from throughout Scotland, and we have a duty to listen to them.

16:35

George Adam (Paisley) (SNP)

Everyone knows that I am a football fan and that football is an important part of my life. It is as a football fan that I will approach the debate, as I have done during the whole process.

Our national game is an important part of our country’s life and can, on occasions, affect the national mood. The 2012 act is about offensive behaviour at football, which is behaviour that football fans have experienced at various times in their lives and at various matches.

Football means so much to me that, along with Gordon Scott and my colleagues on the board of St Mirren Independent Supporters Association, I led a fan buy-out of St Mirren Football Club. I was involved from the start because I believe that fans play an important role in football and at every club.

Like most teams, we have a fierce and competitive rivalry with another team—in our case, it is Greenock Morton. Do people sometimes go overboard at derby matches? Probably, but, on the whole, they are good-tempered affairs with enjoyable banter between the fans.

St Mirren are top of the championship and Morton are fourth. Both teams could be promoted to the premier league this year and I hope that both are, because an Airdrie-Renfrewshire derby in Scotland’s premier division for the first time since the 1980s would do me—and probably Mr McMillan—quite nicely.

I do not have a hatred of Greenock Morton. That is where I have difficulty with the whole Rangers and Celtic thing—I do not get it. People’s hatred and bile towards one another seems alien to me. In the political world, I have disagreements with many members in here, but I do not hate them and I do not sing songs of hate towards them. We just have a debate, I say my piece and we move on.

The majority of football fans behave themselves—it is a very vocal minority who bring our beautiful game into disrepute. I was reminded of that on Monday when I attended my local gym—I know, Presiding Officer; you are wondering whether I should ask for my money back. While I was in the cafe, having my post-training bacon roll, I listened to a couple of Rangers and Celtic fans discussing the football match. It was good, clean fun and was filled with humour. It was a nice reminder that, in this week of all weeks, not all old firm fans are as we are led to believe. There was not one sectarian comment or mention of the various cultural aspects of either team.

Nevertheless, look what happened on Sunday: the union bears marched under their banners of hate, a young Rangers fan’s hearing was damaged, a footballer was abused at an airport departure lounge and the old song books from both sides came back to the fore. All the usual chaos following an old firm game took place in the west after that game. We know that such things continue to happen, and I support the 2012 act because it protects the majority of fans from such behaviour.

I will not go over the original reasons for supporting the act or the debates that we have had, but I will highlight some of the things that were said by some of those who came in front of the Justice Committee. Stonewall Scotland expressed concerns about repealing the act:

“We would be concerned that an outright repeal of the Act may send a worrying message that prejudiced based and threatening behaviour at football is acceptable”.

Do we truly want to tell the world that people consider such behaviour acceptable at football? The Scottish Council of Jewish Communities said:

“we urge the extension rather than the repeal of this legislation”.

This week, BBC Scotland reported that former Scottish Professional Football League match officials have stated that their reports on sectarianism and unacceptable behaviour are being ignored by the football authorities. If the act goes, not only will there be a gap in the law, as the Crown Office and Procurator Fiscal Service has said, but an onus will be put back on the football authorities to do something about the issue—and I, for one, do not hold out any hope of that happening.

The debate should be about our conducting post-legislative scrutiny. Let us not say that this place is not good at post-legislative scrutiny; instead, why do we not look at the act, decide that we will make changes and make it better? I urge all members not to repeal the 2012 act but to let us look at it and make it better.

16:39

Neil Findlay (Lothian) (Lab)

Like all members, I loathe sectarianism and bigotry and I detest prejudice. Like most members, I am committed to working towards a tolerant, cohesive society in which people learn about and understand each other and live in peace with one another. As Johann Lamont said, we must put time, effort and money into addressing the issues under discussion, which seek to divide our society, promote hatred and undermine social solidarity.

I opposed the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 from the start because it was a misguided and simplistic attempt to address a complex societal problem. I strongly believe that we should repeal it by passing the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill.

I support the repeal of the 2012 act because, as Liam McArthur said, it is illiberal. It is wrong of the Parliament to take a backward step in relation to human rights. The act singles out one group of sports fans whose rights are removed simply for stepping across the threshold of a football stadium on match day. I support repeal of the act because it is based on class prejudice. In the main—although not exclusively—the act has criminalised young working-class men whose actions are seen as distasteful by those who believe that they have a God-given right to be the arbiters of good taste and to impose their taste, belief systems and values on others.

James Dornan

In a previous speech—which I think was probably on this subject—Mr Findlay talked about the fact that football is pricing itself out of the reach of the ordinary working-class guy. Now, he is saying to us that the bill is targeted at the very people he says have been priced out of the game. How does that work?

Neil Findlay

Exactly, Mr Dornan. I think that football is pricing itself away from its roots, but so committed are people to their teams that they will spend that money to go to matches come what may, and they will make sacrifices in other areas of their lives. That is the reality of the situation.

I support the repeal of the 2012 act because, as many members have said, it is unworkable. That view has been expressed by the police, lawyers, prosecutors and judges. I support the repeal of the act because, rather than having united fans, communities and the police to act as one against sectarianism, it has increased tensions, resentment and division between the police and fans.

We should seek to address sectarianism across society as a whole. We all want young people to learn to be tolerant, empathetic and respectful to all—as we want older people to be—and, in my experience, the overwhelming majority are. We are more likely to tackle sectarianism through education and youth work, in our schools, colleges, universities, pubs, bookies’ shops and workplaces, and by continuing to fund anti-sectarianism projects, youth projects and personal and social education in schools, but those are all areas in which funding has been slashed. That would be a better investment than demonising young football supporters.

I am pleased that members rejected all the amendments for the reasons that James Kelly set out, and I hope that the issues around section 6 will be addressed in the review of hate crime.

I commend my colleague James Kelly for his diligent and committed work in taking the bill through to this stage of the parliamentary process. Taking a member’s bill to this stage involves a huge commitment on the part not just of the member concerned but of their staff team. Mr Kelly and his team have worked with skill, reason and principle and have united all the Opposition parties. I hope that, even at this late stage, the Government back benchers, who know in their hearts and minds that the 2012 act should be repealed, will do the right thing and support the bill. The act was ill conceived, badly drafted and difficult to implement. The passing of the bill is the right move for the Parliament to make.

The Deputy Presiding Officer

I call Margaret Mitchell to close the debate for the Conservatives.

16:43

Margaret Mitchell (Central Scotland) (Con)

It is clear from members’ speeches that, although the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill is contentious, all the Opposition parties are united in their support for repeal of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.

When the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill was debated at stage 3 in 2012, concerns were raised that it was badly drafted, that it failed to define the behaviour that it was trying to criminalise and that it did not include a definition of sectarianism. In addition, there were warnings that the bill would restrict freedom of speech and discriminate against football fans. Those have now come to fruition.

During the passage of the repeal bill, the Justice Committee heard that that bad drafting has resulted in the 2012 act being applied inconsistently by police officers, and that, as Liam Kerr pointed out, conviction rates under the act are at a three-year low.

The 2012 act created two new offences. The section 1 offence covers offensive behaviour at regulated football matches. The section 6 offence covers threatening communications and applies more generally, rather than being directed solely at football fans. During the scrutiny of the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, stakeholders argued that existing measures were already in place to deal with those two offences, and that view was expressed again in the evidence that the Justice Committee heard at stage 1 of the repeal bill that is before us today. Stakeholders argued that the section 1 offence can be prosecuted under other provisions, including as a breach of the peace offence and as an offence under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010.

The section 6 offence refers to threatening communication with the intention of stirring up “hatred on religious grounds”. The heated arguments about the scrapping of section 6 leaving a gap in the law have not been helpful today, and I ask the minister to reflect on that. The fact is that the offending behaviour that the 2012 act was designed to address was and remains fully covered by substantive and existing criminal law. Section 38 of the 2010 act covers the provisions in section 6 of the 2012 act. Moreover, as James Kelly pointed out, in the case of Love v PF Stirling in 2014, a religious aggravation was added to a section 38 offence.

On the Government’s amendments to preserve section 6 for 12 months, the Law Society of Scotland makes the pertinent point that

“The timescale of twelve months could also be seen merely to complicate what might otherwise comprise a straightforward repeal of the 2012 Act”,

which

“will attract much publicity.”

It has indeed done so. It would confuse the public, who would believe that the 2012 act had been repealed but then find that prosecutions under section 6 of that act could continue for a further period. The intent behind James Kelly’s bill was that, once royal assent was achieved, the 2012 act would be repealed immediately. According to the Law Society, continuing any of the provisions

“is not required as the transitional arrangements will take account and provide safeguards for any existing prosecutions.”

Everyone is agreed that sectarian behaviour and intent to stir up religious hatred are totally unacceptable. If they are to be stamped out wherever they exist, all stakeholders—and, as John Finnie said, parliamentarians too—will need to work together. As a start, the Scottish Football Supporters Association has made some helpful general points about the need for a national education campaign on abusive language and behaviour. There will be an opportunity to discuss all the issues and the best way to resolve them in a measured fashion in the context of Lord Bracadale’s review. I hope that, this evening, the Parliament will determine that we will move forward in that way. The Scottish Conservatives will vote for the repeal of the 2012 act.

16:48

Annabelle Ewing

Today, we have heard a lot about the problems that people associate with the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, but no tangible solutions to the problem of abusive and offensive behaviour at Scottish football that I described in my opening speech.

All offensive behaviour at football has to be met head on to be defeated. Why do we continue to excuse aggression at football, which manifests itself as racist, religious and homophobic slurs and bigotry, as simply banter or passion? That is not acceptable.

Legislation sets the standard for what is and is not acceptable in modern society. Therefore, legislation has an important role to play in tackling all societal problems, including offensive behaviour at football. We recognise that legislation on its own will never resolve any social issues, and the 2012 act has always been just one element of our work to tackle the problems.

When the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill was introduced, offensive behaviour at and relating to football was at a high, with a bewildered public witnessing pitch-side violence between club managers and bullets and explosive devices being sent to prominent Catholics through the post. I am baffled as to why so many people in the chamber think that the pre-existing legislation is preferable to amending the 2012 act. Repeal will solve nothing.

Repealing the 2012 act will have consequences. It will leave a gap in legislation. I point to the Crown Office evidence—evidence that no Opposition member has seen fit to mention in the debate because it does not suit their narrative. Repeal will put constraints on the ability of prosecutors and our courts to tackle offensive behaviour at football and will lead to a lack of continuity of protection for vulnerable and minority communities.

I can see no positive argument for repealing the 2012 act without putting a viable alternative in its place. If the argument is that the 2012 act should be repealed because it is not working, how can the answer be to go backwards? It is naive to believe that returning to the pre-act days will do anything other than return us to the circumstances that led to the need for the act in the first place.

We have invested £13 million since 2012 in tackling sectarianism—more than any other Administration—with £9.8 million of that being directly invested to support community-based organisations to deliver grass-roots work. That unprecedented investment has allowed the delivery of nearly 200 projects across Scotland to date, including work with schools, football organisations, churches, youth groups, adult education organisations, employers, prisons and local authorities. That work has made, and is continuing to make, a huge difference in communities across Scotland. Despite attempts to reduce the agenda to being about legislation and football, it has never been simply about those issues.

If the 2012 act is repealed, we will of course continue to support work to tackle sectarianism in order to fulfil the recommendations of the independent advisory group on tackling sectarianism in Scotland. In the next financial year, I will ensure that the current £0.5 million of funding is protected by a real-terms increase to support this agenda.

As a responsible Government, we are committed to taking whatever action is needed to offer protection—[Laughter.] I am not sure why people are laughing—to our most vulnerable communities, including reinstating an improved version of the provisions in section 6. I have also given a clear commitment to consider all the recommendations that will shortly be made by Lord Bracadale as the outcome of his review of hate crime legislation in Scotland.

I ask all members in the chamber to think very carefully about what they are doing today and to consider whether they want to repeal a piece of legislation that was introduced to tackle a problem that we all know exists; whether they want to take away protection that minority communities and organisations such as Stonewall Scotland, the Equality Network, Victim Support Scotland and the Scottish Women’s Convention have told us that they value; and whether they want to send a signal that offensive and abusive behaviour is acceptable at football.

The repercussions of repeal will be felt by the very people we wish to protect. We have heard arguments that the 2012 act is an infringement of the human rights of a minority of football fans, but when did we last ask ourselves which has the greater priority—a person’s freedom to sing an offensive song or chant, or the victim’s right not to be humiliated, vilified and marginalised by offensive songs and chants?

The vast majority of fans do not sing offensive or sectarian songs, do not march to matches wearing balaclavas and carrying banners glorifying violence, and do not need to worry about the police intervening in their behaviour because they have no reason to do so. The majority of football fans are tired of those who continue to behave in that hateful and prejudicial way.

The Scottish Government stands on the side of the tens of thousands of football supporters the length and breadth of Scotland who are fed up with offensive and threatening behaviour being part of the Scottish game, and we shall shortly find out whether the Opposition members of this Parliament stand with them or stand against them.

16:54

James Kelly

Liam McArthur was right when he said that it is important to get the tone of the debate right; there is a responsibility on us all, as MSPs, as we debate these challenging issues. I very much regret that some SNP members tried in their speeches to associate the events of last weekend with actions to repeal the 2012 act. I thought that that was really poor.

It goes without saying that every MSP and this Parliament, across all the parties, rejects and condemns hateful and bigoted behaviour, whether it takes place in a stadium, in the street or in a club.

There has been a lot of discussion about what messages would be sent out by retaining the legislation and by repealing it. The problem with the 2012 act is that it sends a weak message. The reality is that only one political party has supported it from its introduction in 2011 all the way through to today’s debate on the repeal bill. What message is sent by the fact that only the governing party signed up to such discredited legislation?

Even as a piece of law, the 2012 act has been criticised by the Scottish Human Rights Commission, which said that it could be open to challenge under the ECHR. The Law Society of Scotland thinks that the definitions in the act and its wide reach have meant that it could be challenged in the courts in this country.

All that results in weak legislation, and with weak legislation we send a weak message. I therefore completely reject the idea that keeping the legislation in place would in some way send out a powerful message. That is completely not the case.

There has been a lot of discussion about how we move forward and what the alternative is. That is extremely important. The first thing we need is proper discussion to enable us to understand all the issues. As I said in my opening speech, the fact that we have 719 charges with religious aggravation—the highest number for four years—shows us that there is a major issue. Away from the debate, we need to have a proper grown-up discussion.

Patrick Harvie

When the 2012 act was first debated, I made the case that what was needed was a comprehensive hate-crime review. Now that that is taking place, does James Kelly agree that, once the polarised debate on the question of repeal is over—as he knows, the Greens will support his bill tonight—we all have a responsibility, across the political parties, to embrace whatever positive changes come through from a well considered and well thought out hate crime review, and to take action as a result of its recommendations?

James Kelly

Patrick Harvie makes a powerful point, and I remember him making those arguments in 2011. The Bracadale review gives us an opportunity to make hate-crime legislation more effective and efficient, allied to robust existing laws. That will send out a powerful message.

James Dornan

Will James Kelly take an intervention?

James Kelly

No. I am sorry, but I am short of time.

The other thing that is needed, as the Justice Committee highlighted, is proper investment in education in communities to tackle sectarianism. It was regrettable that Annabelle Ewing said that nobody offered any solutions. She clearly was not listening to the speech that Neil Findlay gave, in which he argued not only for that type of project but also for the Government to provide proper funding, rather than cutting funding, as the SNP Government has done. The SNP preaches about sectarianism—we all support action in that regard—but then it cuts the budgets.

James Dornan

Will the member take an intervention?

James Kelly

No, I will not.

One of the most powerful speeches in the debate was by John Finnie. He spoke as a former police officer, as a football supporter and as somebody who supported the original legislation in 2011. He was right to express concerns about the minister’s contribution at the start of the debate, which underlined the point that I made, which is that there is an attitude on the part of some people in the SNP that football fans are second-class citizens.

John Finnie made a lot of powerful points about how we should move the debate forward if repeal is successful tonight.

I will sum up. Johann Lamont talked about the real world. The fact is that, in the real world, the 2012 act has been a failure. It has completely failed to tackle bigotry and religious intolerance. It has been unfair in targeting football fans. It is a legislative disaster and is completely illiberal. Not only that, on the SNP’s watch, we have seen worthwhile community projects that tackle anti-sectarianism being cut. Therefore, at tonight’s vote, MSPs should show the football act the red card.

15 March 2018

Final vote on the Bill

After the final discussion of the Bill, MSPs vote on whether they think it should become law.

Final vote transcript

The Presiding Officer (Ken Macintosh)

There is one question to be put as a result of today’s business. The question is, that motion S5M-10790, in the name of James Kelly, on the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill at stage 3, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Balfour, Jeremy (Lothian) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Bowman, Bill (North East Scotland) (Con)
Briggs, Miles (Lothian) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Carlaw, Jackson (Eastwood) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Chapman, Peter (North East Scotland) (Con)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Corry, Maurice (West Scotland) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (Green)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Golden, Maurice (West Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (East Lothian) (Lab)
Greene, Jamie (West Scotland) (Con)
Greer, Ross (West Scotland) (Green)
Griffin, Mark (Central Scotland) (Lab)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Harris, Alison (Central Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Glasgow) (Lab)
Kerr, Liam (North East Scotland) (Con)
Lamont, Johann (Glasgow) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Leonard, Richard (Central Scotland) (Lab)
Lindhurst, Gordon (Lothian) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Marra, Jenny (North East Scotland) (Lab)
Mason, Tom (North East Scotland) (Con)
McArthur, Liam (Orkney Islands) (LD)
Mitchell, Margaret (Central Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Rennie, Willie (North East Fife) (LD)
Rowley, Alex (Mid Scotland and Fife) (Lab)
Rumbles, Mike (North East Scotland) (LD)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Sarwar, Anas (Glasgow) (Lab)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland Islands) (LD)
Simpson, Graham (Central Scotland) (Con)
Smith, Elaine (Central Scotland) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Smyth, Colin (South Scotland) (Lab)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Tomkins, Adam (Glasgow) (Con)
Wells, Annie (Glasgow) (Con)
Whittle, Brian (South Scotland) (Con)
Wightman, Andy (Lothian) (Green)

Against

Adam, George (Paisley) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Arthur, Tom (Renfrewshire South) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Dey, Graeme (Angus South) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Harper, Emma (South Scotland) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robison, Shona (Dundee City East) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Yousaf, Humza (Glasgow Pollok) (SNP)

The Presiding Officer

The result of the division is: For 62, Against 60, Abstentions 0.

Motion agreed to,

That the Parliament agrees that the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill be passed.

The Presiding Officer

The Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill is passed. [Applause.]

Meeting closed at 17:02.

15 March 2018