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
Becomes an Act
The Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill passed by a vote of 62 for, 60 against and 0 abstentions. The Bill became an Act on 19 April 2018.
Introduced
The Member in charge of the Bill, James Kelly MSP sends the Bill and related documents to the Parliament.
Related information on the Bill
Why the Bill is being proposed (Policy Memorandum)
Explanation of the Bill (Explanatory Notes)
How much the Bill is likely to cost (Financial Memorandum)
Opinions on whether the Parliament has the power to make the law (Statements on Legislative Competence)
Stage 1 - General principles
Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.
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.
The act has done two things: it has brought to the forefront for the wider Scottish community—not just the football community—what is and is not acceptable behaviour, and it has made it clearer when the police can take action to address behaviour at football matches and when they cannot.
Rona Mackay
Do you have any comments, Mr McGeehan?
Anthony McGeehan (Crown Office and Procurator Fiscal Service)
I have no comment to add in relation to behaviour at football matches.
Rona Mackay
Would repealing the act send out the wrong message that it is acceptable to revert to previous bad behaviour?
Assistant Chief Constable Higgins
There is the potential for that to happen; it would be a subjective view to say that it would definitely happen. 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.
Rona Mackay
Is your feeling that the act has helped to improve behaviour at matches over the past five years?
Assistant Chief Constable Higgins
Yes. It is important to stress that, generally, football is well attended and supporters are well behaved. For example, in the 2016-17 season, the police arrested 191 people at football matches out of the 4 million people who went through the turnstiles. Statistically, 0.00005 per cent of people who attend football matches engage in behaviour that warrants their arrest. The vast majority of fans who attend football matches do so in the spirit of wanting to enjoy the game.
The act has allowed the police to address and challenge specific types of behaviour, and it has raised social consciousness. If the act were repealed, the police would continue to try to address the behaviour using other legislation. Mr McGeehan is far more skilled and knowledgeable about the alternatives than I am.
There is no doubt that the behaviour of fans at football matches has improved greatly over the past five years. That is the result of a number of factors. It is not simply down to the act; it is down to fans associations taking responsibility, the clubs stepping up to the plate and taking responsibility, the better infrastructure, the closer liaison between the police and football safety officers and a combination of other elements. The act has had an influence but not in isolation.
Rona Mackay
Is it accurate to say that the act applies beyond the football stadium? It can apply outwith the stadium, when people are coming to and from the match. It can apply on street corners or anywhere.
Assistant Chief Constable Higgins
Yes. That is correct.
Anthony McGeehan
The act goes beyond the stadium not only in relation to section 1 but also through section 6, which is not connected with football.
Rona Mackay
We will come to that later.
Mary Fee (West Scotland) (Lab)
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.
I make no comment about the rights and wrongs of the introduction of the act, but the reality is that I am a police officer and I must apply the law of the land as it stands. Even if that law is unpopular with certain sections of the population, it is not within my gift to decide not to enforce it where it is appropriate.
Mary Fee
Another comment that has been made is that policing is seen as being overzealous.
Assistant Chief Constable Higgins
I have just given you the statistic that we have arrested 0.00005 per cent of people attending football matches, or 191 people out of an attendance of 4 million. That does not seem to me to be overzealous; I think that that is pretty proportionate.
Mary Fee
In answer to the first question that you were asked, you said that football has changed dramatically over the time that you have been in the police. I am struggling to understand the significance of the 2012 act. If football is almost unrecognisable from how it was when you went into the force, I do not understand how the 2012 act could have made a significant impact, because there has been a gradual shift in behaviour.
Assistant Chief Constable Higgins
I am swinging the lamp a bit here. When I joined the police, in 1988, it was acceptable to go to an old firm match and listen to sectarian singing from both sides. Now, people recognise that that is wrong in a modern society. Sectarian singing, racist abuse and homophobic abuse are simply not acceptable. I suggest that the 2012 act has put that at the forefront of the public’s mind and that there is now a greater understanding of the issues. There might not be an acceptance of the act, but there is a greater social consciousness about and awareness of some of the challenges that exist within not only Scottish football but Scottish society.
Mary Fee
If there were only 191 arrests last season, do you agree with the comment by supporters that there is little or no evidence of significant disorder in football?
Assistant Chief Constable Higgins
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.
10:15Maurice 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.
However, both of those alternatives to sections 1 and 6 of the 2012 act have limitations. The section 1 alternatives pose a different legal test against which an accused person’s offending must be assessed; in short, it is “fear and alarm” as opposed to the test that is set out in section 1. Section 1 also has an additional utilitarian value for prosecutors, as it has an extra-territorial element. It can currently be used by prosecutors to address offending that has been committed outwith Scotland by persons who are normally resident in Scotland, and it has been used successfully to prosecute hate crimes that were committed outwith Scotland by persons who were normally resident in Scotland. The ability to do that does not exist in relation to section 38 of the 2010 act or breach of the peace.
The alternative to section 6 of the 2012 act—section 127 of the Communications Act 2003—has similar limitations. It contains no extra-territorial element such as I have described in relation to section 1 of the 2012 act; therefore, we would be unable to prosecute offences that were committed outwith Scotland by persons who were normally resident in Scotland. We have successfully used section 6 to prosecute hate crime that was intended for a Scottish audience and that was committed by persons who were normally resident in Scotland.
The other advantage of section 6 relates to the sentencing powers that it makes available. Normally, only summary-level sentences are available to sentencers, whereas section 6 of the 2012 act makes solemn-level sentences available, and those have been used by a sentencer to address serious hate crime that was perpetrated by a Scottish accused. That person used the internet to post hate crime that was supportive of a proscribed terrorist organisation—ISIS. The severity of the accused’s actions were reflected in the sentencer’s starting point for the sentence, which was 24 months. The sentence was reduced to 16 months to reflect the fact that the accused pleaded guilty, but the reality is that the option for the sentencer to reflect the severity of the accused’s behaviour would not have been available if the alternative charge, under section 127 of the 2003 act, had been used.
The Convener
There is a lot of technical detail in your response, which we will try to tease out in our lines of questioning as we progress. It would be impossible to take in everything that you have just said, so we will break it down.
Fulton MacGregor
You got in before me, convener, and were in full flow, but I was aware that you will pursue another line of questioning later on. Suffice it to say that Anthony McGeehan feels that there would be a gap in the law if the 2012 act was repealed and that he has concerns about the use of other legislation. Does ACC Higgins have anything to add?
The Convener
Can we establish that what you have suggested is actually the case? Would there be a gap in the law or would the existing law cover the circumstances that have been described?
Anthony McGeehan
There would be a gap in the law. The 2012 act gives prosecutors powers that are not available under breach of the peace, section 38 of the 2010 act or the Communications Act 2003.
The Convener
We will address later the situation in which you think that that gap would exist. ACC Higgins may now respond to Fulton MacGregor’s question.
Assistant Chief Constable Higgins
I will not add to what Anthony McGeehan has said. The issue of whether repeal of the 2012 act would make the football environment more dangerous or less safe is subjective. As I said, many people might see repeal of the act as a lifting of restrictions, which would perhaps mean that behaviour would deteriorate, leading to additional police officers and stewards having to be deployed to stadiums. However, the reality is that we do not know what would happen; we would need to wait and see how fan groups reacted to repeal of the act.
Fulton MacGregor
My last question is probably for ACC Higgins. Do you feel that the police have a clear understanding of what “offensive behaviour” covers for the section 1 offence? We have received evidence that some people feel that they have been charged under the act for arguing with stewards. Would a police officer know what constitutes such an offence?
Assistant Chief Constable Higgins
The short answer is yes. I will not throw statistics at you, but the Crown Office takes action in 89 per cent of cases in which we arrest people under the 2012 act. To me, that demonstrates a high level of understanding by the arresting officers.
The Convener
It would be helpful if you could give a really good and concise example of what “offensive behaviour” consists of.
Anthony McGeehan
It is behaviour that is offensive to any reasonable person. The Lord Advocate has published guidelines in relation to behaviour that may be offensive under the 2012 act, and the definition is set out on page 4 of those guidelines, which are dated August 2015. It is one and a half pages of narrative. I could go through that guidance, if that would be beneficial to the committee.
The Convener
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”.
That second element is not in the Communications Act 2003, for which a different test is applied.
If you were to ask me whether, in isolation, “offensive behaviour” is less serious than “grossly offensive behaviour”, I would answer, “Yes”. However, in answer to a question about whether the 2003 act sets a higher bar than the 2012 act, I would suggest that it does not; it simply sets a different bar. One view might be that the 2012 act sets a higher bar.
10:30Liam McArthur
In his line of questioning, Fulton MacGregor highlighted the fact that supporters groups have raised concerns about the approach that is being taken by the police because of their interpretation of offensive behaviour. The 2012 act has been in force for a number of years. What level of concern has there been among officers about how they should interpret offensive behaviour, and what discussions have there been with fan groups—either individual groups associated with particular clubs or across the piece—about the way in which officers have been interpreting offensive behaviour over that period?
Assistant Chief Constable Higgins
When the 2012 act was introduced, a training package was delivered across the force, as happens with every new piece of legislation. Since then, a lot of our thinking has been developed through case law in stated cases. We understand what offensive behaviour is.
I am open to any engagement on the concerns that have been raised by fan groups. Some of my staff recently went to the annual conference of Supporters Direct Scotland, at which there were fan groups from across the country. They spent time in engaging with the fans and delivering a presentation about some of the challenges of policing football events. It is always an open dialogue.
When the 2012 act first came in, some officers in areas outwith the central belt were probably not exposed to the chanting and songs that predominate among old firm fans. We had to educate those officers to recognise potentially offensive singing and chanting. That was right back in the early days; we are now four or five years into the act, and I would say that pretty much every officer has a firm grip on and understanding of the 2012 act and what falls within the definition of offensive behaviour.
Liam McArthur
I am sorry to interrupt, but would you argue that, at this stage, there is unlikely to be any legitimate suggestion that football is being policed inconsistently or in different ways in different parts of the country?
Assistant Chief Constable Higgins
No—that is not happening. There are 42 professional clubs in Scotland and, as of today, 24 of those clubs have had people charged with offences under the 2012 act. Those clubs range from Elgin City and Inverness Caledonian Thistle right the way down to Queen of the South and everything in between. That suggests to me that the officers policing Elgin City have as good an understanding of the 2012 act as the officers who are policing Celtic, Rangers, Hibs, Hearts and whoever.
Liam McArthur
I have a follow-up question. You said that the percentage of reports from the police that are taken forward for prosecution is in the mid-’80s. Over the four or five years for which the 2012 act has been in force, what has been the pattern of the percentage of police reports going to prosecutions? Has that 80-odd per cent been consistent across the piece or has the percentage increased over the years?
Anthony McGeehan
That information is published by the COPFS. In the COPFS publication “Hate Crime in Scotland”, there is a table that sets out the number of charges that have been reported to the COPFS and the action that has been taken in connection with them. That information is in table 6A of the document, and I can go through the years if that would be helpful.
Liam McArthur
The top-line figures would be helpful.
The Convener
Are we going into the statistics in more detail? Carry on.
Anthony McGeehan
In 2012-13, 267 charges were reported under section 1 of the 2012 act and no action was taken in connection with 23 of those. In 2013-14, 206 charges were reported and no action was taken on 16 of them. In 2014-15, 193 charges were reported and no action was taken on four of them. In 2015-16, 286 charges were reported and no action was taken on 14 of them. In 2016-17, 377 charges were reported and no action was taken on seven of them. I can make the full table available to the committee. It provides further information on other actions that have been taken by prosecutors beyond and separate from court proceedings.
Liam McArthur
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
At page 16 of the Crown Office publication “Hate Crime in Scotland 2016-2017”, table 9 breaks down the reasons for no action having been taken on Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 offences, and separates the no-action decisions for both section 1 and section 6 offences.
On section 1 offences, which appear to be the focus at present, the total number of charges on which no action was taken was seven. We can break down the reasons for no action having been taken on those. First, I should explain that, when prosecutors mark a case for no action they assign a code to provide an indication of the reason for their decision-making process. The terminology that I will use refers to the codes that prosecutors would use and record for particular no-action decisions. One of those seven cases was marked no action for the prosecutorial code “Not a crime”; another was due to there being “Insufficient admissible evidence”; four were coded “Further action disproportionate”; and one was marked “Other”. Our codes allow some flexibility for prosecutors to account for cases in which prosecution is not in the public interest, but the reasons for that perhaps do not match the easily available codes. That is why we have the “Other” code.
The Convener
It would be helpful if you could write to the committee, summarising the information for the years since the 2012 act came into force, and including the information that you gave in response to Liam McArthur.
Anthony McGeehan
Certainly.
Liam Kerr (North East Scotland) (Con)
Earlier, you talked about the Lord Advocate’s guidelines, and ACC Higgins talked about specific songs. Some supporters have suggested that singing certain songs at football matches results in charges and prosecutions, but that the same songs can be sung at concert venues with impunity. Is that anomaly the reason that football fans have come to the view that they are being unfairly targeted and criminalised?
Assistant Chief Constable Higgins
I am not aware of such songs having been sung at any concerts. However, if that were reported to us, we would investigate and I am sure that we would report it to the procurator fiscal.
Liam Kerr
Of the 191 arrests that have been made from 4 million attendances, how many took place away from the ground, or the curtilage of the ground, such as in pubs or bars?
Assistant Chief Constable Higgins
The raw data that I have relate to arrests in the football stadia.
Liam Kerr
So all those arrests have taken place at the grounds. The 2012 act specifically extends the offence beyond the ground, does it not?
Assistant Chief Constable Higgins
It does. However, the 191 arrests are not 191 arrests under the 2012 act; that is the total number of arrests and includes offences such as common assault.
Liam Kerr
How many of the 191 are arrests under the 2012 act?
Assistant Chief Constable Higgins
I do not have that breakdown, although I can get it to you.
Anthony McGeehan
I might be able to assist on that point. I understand that perception, but I suggest that it is based on a false assumption, which is that the singing of a certain song would not constitute a criminal offence in any other context. However, in a different context, it may well be a breach of the peace or an offence in contravention of section 38 of the 2010 act.
Your second question was about statistical data on the locus of section 1 offences and the Scottish Government may well have that information. The Scottish Government produces annual research on the 2012 act and analyses the locus of particular offences, including the percentage of those offences that occur within and outwith football stadia. If that information would be of value to the committee, I suggest that you request it from our Scottish Government colleagues.
Liam Kerr
Thank you. I will come at it from the other side. Some stakeholders have argued that the provisions in section 1 of the 2012 act should be extended to cover events such as parades. At present, what charges would be brought if the songs in support of terrorist organisations that we are talking about were in evidence at such events? Should the act be extended to cover such activities?
Assistant Chief Constable Higgins
Policing parades is a very challenging environment, regardless of the type of parade—loyalist or republican, they bring their own challenges. We arrest individuals for breach of the peace or section 38 offences and report them to the Crown Office.
I would need to give some thought to the issue of extending the provisions of the act to cover parades. There is no question but that it might be helpful. However, the police service often takes a fairly neutral view of legislation until we see how it is drafted, at which point we can give an operational perspective on how it might be applied in the real world. I will hold my own counsel until I see more detail on that suggestion.
Liam Kerr
You talked about the real world and I have a bit of a daft laddie question about that. What would you do if the entire stand broke out in offensive behaviour, by breaking into song?
Assistant Chief Constable Higgins
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.
10:45Liam 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 understand exactly Mr McGeehan’s explanation about the variety of appeals and the reasons for them. I agree that a single figure would not actually tell us very much, but there would probably be merit in breaking it down further.
The Convener
It might be a useful tool. We talk consistently in the Parliament about the lack of recorded data and how we will never improve things if we do not have the full information. That is perhaps something to reflect on.
Fulton MacGregor
Mr McGeehan, may I ask you about the use of diversion schemes? Fans Against Criminalisation states in its written submission that a freedom of information request revealed that only two people had been offered diversion in relation to sectarian offences. Is that the case? Do you have any comments about why that is?
Anthony McGeehan
The evidence in relation to two persons being diverted resulted from a freedom of information request that an organisation made to the COPFS. That data reflects the information that was provided by the COPFS at that time. We can provide up-to-date diversion figures if that would be useful.
The overarching commentary that I would offer in that regard is that the COPFS always supports, in appropriate cases, interventions or diversion that address the causes of behaviour. I stress that that is our position in relation to appropriate cases, which are identified with reference to our published prosecution code. We look at the severity of the offence and then a variety of other factors to decide the appropriate outcome for the accused. Those factors might well include the accused person’s history—his or her criminal record—and personal circumstances.
Another overarching observation that I would make is that Sacro diversion was extended to cover all hate crime only relatively recently. Previously, the Sacro diversion scheme related only to education on sectarian issues. Only a minority of section 1 offences that are reported to the COPFS qualify or are relevant for a sectarian diversion scheme. That informs the low diversion rate that Fulton MacGregor referred to.
The other tension for prosecutors is addressing offending behaviour both in the future and immediately. That tension was reflected in the 2015 academic study that was conducted by the University of Stirling. One of that study’s recommendations—this is not specific to prosecutors—was that there should be an option for diversion and football banning orders to be combined, which would prevent offending both immediately and in the future. At present, that option is not available to prosecutors. If we think that a football banning order is appropriate to address an accused person’s behaviour in the future, I am afraid that our only option is to initiate criminal proceedings.
Fulton MacGregor
What do you say to the criticism in the evidence that we have received that young men, perhaps with no previous criminal record, have been criminalised in particular through the 2012 act? Do you have a comment about that?
Anthony McGeehan
I have read the critique that the 2012 act focuses on young men. I suggest that the conclusion that the act focuses on young football fans is incorrect. A conclusion that an act focuses on young male persons in particular, or even on male persons in particular, might similarly be arrived at if we were to look at those persons who commit other types of criminal offences, such as sexual offences. If we did that, we would see that a significant proportion of people accused of sexual offences are male. In relation to the criminalisation of football fans, I would suggest that the question of whether an accused person is a football fan is irrelevant for the purposes of proving a case under the 2012 act.
I have read the critique that the act criminalises young males with no record of criminal offending, but if I can make this real—to borrow a phrase—last month, there was national press coverage of a conviction under the 2012 act in relation to homophobic behaviour that occurred at a Dundee match. I cannot locate the details in my papers but, essentially, the accused person was accused of addressing homophobic comments at a Dundee football player, and that accused person had a significant criminal record involving a previous banning order and violent offences. I refute the suggestion that the act is used to target young males with no criminal record.
Fulton MacGregor
Just to finish off—
The Convener
This is some supplementary.
Fulton MacGregor
I am sorry, convener.
Do you support the use of diversion, where appropriate, and perhaps the expansion of the use of that disposal?
Anthony McGeehan
I would go further than that. Our case-marking instructions for prosecutors in relation to the 2012 act positively encourage prosecutors to consider diversion in appropriate cases. The issue is the identification of appropriate cases.
Mary Fee
A moment ago, ACC Higgins spoke about the behaviour that we are talking about being a wider issue in Scottish society—we do not see that behaviour only at football grounds. Has the increased police focus on the issue had any impact on the reduction of bigotry in wider society?
Assistant Chief Constable Higgins
I would like to think so. I think that we are one of a number of agencies that contribute to combating the scourge of sectarianism that affects this country, so the short answer is yes.
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?
11:00Anthony McGeehan
I would describe section 6 as affording prosecutors three advantages. First, one of the pieces of logic behind section 6 was that it would address a debate in connection with the Communications Act 2003 and its applicability to the variety of ways in which electronic communications can be used by persons. The 2003 act relates to the sending of communications, and there have been questions and challenges to do with whether the variety of actions that an accused person might take on the internet constitute the sending of a communication as opposed to simply the creation of a forum, for example, or the posting of a blog. That was one of the doubts or grey areas that section 6 was designed to address.
The principal benefits of section 6 are in relation to its extraterritorial provisions, which allow prosecutors to address offending by Scottish residents when they are outwith Scotland. The provisions are designed for a Scottish audience. The offence has been used to address hate crime posted in those circumstances.
Section 6 also provides for greater sentencing powers than those in the 2003 act. As I illustrated, 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.
Ben Macpherson
Thank you. It is important that those advantages of section 6 are highlighted. For clarity, how many convictions have been secured under section 6 that were prosecuted on indictment?
Anthony McGeehan
We have figures for the number of convictions under section 6, but I do not have the data to hand for your latter point about solemn convictions. I can secure that if it would be of benefit to the committee.
Ben Macpherson
I think that it would.
The Convener
Yes, thank you.
Ben Macpherson
I noted that Police Scotland’s evidence says that the wording of the section 6 offence restricts Police Scotland’s ability to bring charges in relation to such threatening communications. I know that you were reluctant earlier to comment on drafting and I appreciate that that might be the case here but, as the point has been raised, do you want to elaborate on that and the fact that section 6 does not give Police Scotland the scope that it could give to use the offence outside a football context?
Assistant Chief Constable Higgins
That is a debate for another time. The act in its current form serves a purpose. The reality is that we have few section 6 inquiries compared with the number of wider telecommunication inquiries that we undertake. I am happy to elaborate on that by way of written note.
Ben Macpherson
I would be grateful for that—thank you.
The Convener
I will take brief supplementary questions from Mairi Gougeon and Liam McArthur.
Mairi Gougeon (Angus North and Mearns) (SNP)
I have a more substantial question to ask. Would you prefer me to do that now or shall I wait?
The Convener
We will go to Liam McArthur on this point first.
Liam McArthur
Following up the response that Mr McGeehan gave to Ben Macpherson, it seems from the evidence this morning that, should the act be repealed, the gaps relating to section 6 would be more significant than those relating to section 1 offences. With hindsight, was it a mistake to bring together offensive behaviour at football and threatening communications in a single bill? Should there have been two separate pieces of legislation, one to deal with a gap in the law and one to deal with what does not now appear to have been a gap?
Anthony McGeehan
I cannot comment on the wisdom of the parliamentary approach that was taken in the past. Many of the criticisms that are directed at the act would appear to be directed principally at section 1 as opposed to section 6. Section 6 does not appear to have attracted the same degree of attention or criticism.
Liam McArthur
The criticism came from external stakeholders. From your experience of the way in which the act is working, would you argue that section 6 on threatening communications has had effect, while section 1 has not had great effect in terms of prosecutions or plugged a gap in the law?
Anthony McGeehan
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.
The distinction is that the alternatives to section 1 have the advantage that there is no disparity in sentencing powers. Such a disparity exists between the alternatives to section 6 and section 6 as it stands.
The Convener
Could existing legislation therefore be amended so that extraterritorial powers could be incorporated?
Anthony McGeehan
It could be amended, subject to parliamentary scrutiny and authority, but one of the principal alternatives offered for section 1 is breach of the peace, which is based on common law as opposed to statute.
The Convener
Are you saying that you do not see a way round that and that there is no other law that would cover it?
Anthony McGeehan
There is no immediate or obvious way round it.
Mairi Gougeon
Lord Bracadale is currently undertaking a review of hate crime legislation in Scotland. Do you think that it would be beneficial to await the outcome of that before proceeding with the potential repeal of the 2012 act?
Anthony McGeehan
I chose not to contribute in response to Mr Kerr’s question about extending the act to parades, because my assessment was that, in light of Lord Bracadale’s review, it would be premature to conclude that the act be extended to parades only. That review is going further than looking simply at the 2012 act. It is considering a wider range of issues, including the extension of hate crime to other protected characteristics. I would await the outcome of Lord Bracadale’s review before offering any opinion, for example in relation to the extension of the 2012 act to parades.
Mairi Gougeon
I want to consider the wider impact of repeal of the 2012 act. I want to focus on some of the issues that have been raised in other evidence to the committee, in particular from the Scottish Women’s Convention. The convention stated:
“Arguments for the use of breach of the peace do not send a strong enough message of condemnation in regards to the offensive behaviour that can occur at football events. ... This form of abuse tends to be highly sexualised and threatening when aimed at women. It is not only highly offensive but can lead directly to gendered abuse including intimidation and rape threats.”
Do you agree with that assertion on the limitations of breach of the peace and the comments on the message that it sends? Do you think that the 2012 act is able to tackle that kind of abuse and behaviour in a more targeted way?
Assistant Chief Constable Higgins
The 2012 act certainly allows us to target behaviour as you have described. I agree that using breach of the peace is almost taking a scatter-gun approach rather than limiting. When I joined the police, breach of the peace could be applied to pretty much any set of circumstances, and that left my colleagues in the Crown Office with head-scratching moments in which to consider how they would mark a breach of the peace case. With the 2012 act, a very specific course of conduct is involved. I therefore agree with your comments.
Anthony McGeehan
I absolutely agree that legislation can be used to send a message. An example of legislation that has been used for that purpose is the Emergency Workers (Scotland) Act 2005. It could be argued that the offences that that act describes were already addressed by the common law—by breach of the peace and assault, for example—but it sent a message about the way in which the law would treat offences against emergency workers. It is an entirely appropriate function of legislation to send such a societal message.
Mairi Gougeon
The Scottish Women’s Convention also said in its evidence:
“Women are often the victims of sectarianism and, as a result, often avoid public spaces on match day due to fear. This particular type of behaviour is often linked to violence against women and can deepen the inequality between the sexes.”
Do you see a specific link between the type of behaviour that is seen on match days and violence against women?
Assistant Chief Constable Higgins
I must confess that I have not looked specifically at that issue. We have monitored the level of domestic abuse incidents that occur after old firm matches, for example. I do not have any of the statistics with me, but the general pattern is that domestic abuse increases then. That can be because of a combination of factors, but the 2012 act allows us to target that specific behaviour, and I hope that that can have a consequential impact on what happens afterwards.
Maurice Corry
Mr McGeehan, on the subject of post-repeal convictions, I understand that you said that the Crown Office did not comment on that aspect of the bill in its written submission. Do you have any concerns about that aspect of the bill, as it is drafted?
Anthony McGeehan
The bill proposes a slightly unusual approach to repeal. There is almost a guillotine approach at the date of repeal for all live prosecutions. That is not the traditional approach, which is that new prosecutions would not be possible post-repeal but live prosecutions would not be affected.
I understand that the policy behind the approach in the bill is to prevent injustice, but only a minority of the charges and prosecutions relate to offensive behaviour under section 1(2)(e) of the 2012 act, which appears to be the subject of the most scrutiny. The remaining charges under section 1(2)(a) to section 1(2)(d) relate to behaviour such as hate crime. I ask whether a different type of injustice would be created if those prosecutions were brought to an end as a result of the approach that is adopted to repeal in the bill.
Maurice Corry
Thank you.
George Adam (Paisley) (SNP)
Good morning. I would like to go through some points.
I am a football fan, and I declare an interest as convener of St Mirren Independent Supporters Association. I regularly go to football matches, and I know what it is like when St Mirren play Morton. That is the big game in Renfrewshire and everybody gets really passionate about it.
The Convener
You should be succinct, Mr Adam.
George Adam
The question is, when is the line crossed? Does the act give you powers that you did not have before? Where is the line? When does the competitiveness of two towns and two teams become offensive behaviour? Has that line helped you?
Assistant Chief Constable Higgins
That is a good question. Police officers make judgment calls all the time, whether it is in a football environment or on Sauchiehall Street on a Saturday night. When we see two people arguing, we have to decide whether to split them up, give them a warning and send them home or to take more punitive action.
11:15One of the things that we train our officers to do from the moment that they join the police is to apply discretion where appropriate. It is when behaviour gets to the tipping point of becoming offensive that we need to take action, and that depends on the circumstances of each individual match.
I accept your point that football stadiums are excitable, high-octane places that are full of banter. However, there is a difference between banter between rival sets of football fans and chants and songs that are designed to enflame, incite and offend.
George Adam
Is it not the whole point of the act that there are certain key songs, phrases and chants that cross that line and become totally unacceptable?
Assistant Chief Constable Higgins
The act does not create that—it is the individuals undertaking the behaviour who do. We apply the provisions of the act to deal with it.
George Adam
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.
After the cup final, you published the CCTV images of fans in the park who were alleged to have been involved in criminal activity. I know of a case where a young Hibs fan voluntarily went with his lawyer to a police station after he was captured on CCTV. He had no previous convictions or involvement with the police, but he was detained overnight before appearing in court. Why is that the case for people who are brought to police stations and charged under the act?
Assistant Chief Constable Higgins
It depends on the nature of the offence that he was charged with, Mr Kelly. At that cup final, we saw violence and disorder the like of which we have not seen for more than 30 years. Anyone who engaged in that was engaged in the highest level of disorder seen in the country for more than 30 years.
One of the reasons why we would put people to court is to seek bail conditions, which the court will impose and which might, for example, limit their ability to attend future football matches. However, without the specifics of that individual case, I can comment only in very general terms.
James Kelly
I gave that as an example. I can tell you that, in the meetings that I have held around the country, there have been numerous such examples. It seems to be a regular practice for people who are charged under the act to be detained on an overnight curfew.
Assistant Chief Constable Higgins
It is not an overnight curfew, sir—they are just detained in custody to appear the next lawful day. It is a practice that we employ and I make no apologies for it because, when we are dealing with the worst type of hate crime, we want to put control measures around individuals until the courts can decide their guilt or innocence. We hope that that will prevent them from engaging in any more such activity until that time.
In the Criminal Justice (Scotland) Act 2016, which is due to go live in January of next year, there is a presumption of liberation. Just now, we do a custodial test on any person who comes into police custody to decide whether to release them, hold them in custody or release them on an undertaking to appear. That is going to change quite dramatically in January, because the presumption will become that, for all but the most exceptional, high-end cases, anyone coming into police custody will be released.
James Kelly
I want to move on and ask Mr McGeehan about whether the law is effective. I am sure that you will have read the Law Society of Scotland’s submission. It outlines existing provisions other than the 2012 act that could be used to prosecute. It also points out that the definitions that are used in the act have led to some confusion, and highlights that it feels that there will continue to be appeals because of that confusion. What is your response to that?
Anthony McGeehan
In relation to availability of other offences to address the behaviour in question, that reflects the COPFS position and it reflects the Lord Advocate’s guidelines: we recognise that it might be possible to address the behaviour in question as, for example, a breach of the peace or as a contravention of section 38 of the 2010 act.
Our position is that use of the 2012 act ensures that the behaviour can more securely be addressed and prosecution not be subject to the type of challenges that existed before the 2012 act. When the bill was first being debated by Parliament, the then Lord Advocate referred to cases in which there had been successful defence arguments that, for example, racist or homophobic abuse did not constitute a breach of the peace because of the peculiar circumstances of football and the potential that sections of a crowd might well be inured to that type of offending behaviour.
James Kelly
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?
Anthony McGeehan
I would not draw from the number of convictions the conclusion that there is a particular difficulty in connection with section 6. As I have said, section 6 provides to prosecutors a power and a tool that would not otherwise be available in relation to extra-territorial activity and to offending that might merit a solemn sentence.
James Kelly
Threatening communications have grown over the past five years, particularly in relation to online activity. Surely the statistics—only 17 prosecutions—indicate that both police and prosecutors do not have confidence in the legislation to secure convictions?
Anthony McGeehan
I would not draw the conclusion that prosecutors do not have any confidence in section 6.
James Kelly
Prosecutors are obviously not using the legislation.
Anthony McGeehan
They are using it in a limited number of cases, where it is the appropriate charge, such as when there is an extra-territorial element that cannot be addressed through any other legislative tool.
James Kelly
I will move on to diversion schemes, which were raised by Fulton MacGregor. The latest statistics show that 31 per cent of convictions relate to under-20s. Is that a desirable outcome of Scottish Government justice policy?
Anthony McGeehan
I am an independent public prosecutor. I cannot comment on Scottish Government policy.
The Convener
I think that Mr Kelly’s question would be for the minister.
James Kelly
In relation to diversion schemes, you said that the casework instructions for the act are very specific in setting out when diversion should be used. We see from the evidence that we discussed earlier that diversion has happened in only two cases. Why is that?
Anthony McGeehan
The evidence is not that diversion has happened in only two cases. The evidence that was referred to was a response to a freedom of information request in September 2016. I have offered to obtain up-to-date information on diversion.
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.
It might also be suggested that diversion not being used reflects a proportionate approach by the police: we would normally expect to use diversion in offences at the lower end of the offending spectrum. If those offences are being addressed by the police through their existing powers—for example, through application of fixed penalties—we might well see low levels of diversion by prosecutors.
James Kelly
Just to be clear, was the information that was published in response to the FOI request in September 2016 accurate at that time?
Anthony McGeehan
Yes—that information was accurate.
The Convener
We will conclude our questions soon. Mr McGeehan mentioned that it is not unusual for new offences to cause confusion and that the courts usually sort that out. However, we have heard from numerous sheriffs that the legislation is confusing and flawed, so it seems that the courts are not sorting the situation out.
Anthony McGeehan
On responses from sheriffs, I refer to the 2015 academic survey, which included interviews with sheriffs and indicated among them a more diverse range of opinions about the 2012 act and its value.
The Convener
Does not that show, at the very least, that there are diverse opinions among the judiciary, which cannot be welcome or help to ease the confusion?
Anthony McGeehan
I would not conclude from there being a diverse range of opinions among the judiciary that the legislation is wrong. I suggest that a diverse range of opinions is healthy.
The Convener
If opinions are diverse and some are diametrically opposed, that is not healthy, because we would have a polarisation of views.
Anthony McGeehan
A diverse range of opinions is not unique and specific to the 2012 act.
The Convener
What is your answer on polarisation of views?
Anthony McGeehan
I cannot speak for the judiciary and the range of their opinions and whether they are polarised in relation to the 2012 act, or to other statutes.
The Convener
In principle, if there is confusion, that cannot be a good place to be. That is what I am trying to get at.
Anthony McGeehan
I accept that consensus about a wrong that needs to be addressed would be a good thing.
The Convener
That concludes our questioning. I thank the witnesses, and I suspend the meeting to allow a change of panel.
11:31 Meeting suspended.11:36 On resuming—
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.
We move straight to questions.
Rona Mackay
We heard from the previous panel that pre-existing legislation would not be sufficient to deal with some of the behaviour that falls within the scope of the 2012 act—in particular, I refer to offences under section 6. What is your view on that? Does it concern you that a gap would be left?
Jeanette Findlay (Fans Against Criminalisation)
What you have heard this morning conflicts with the submission from the Law Society of Scotland, which takes the view that there would be no gap in the law. I refer members to the evidence that you have just heard, when ACC Higgins said that, in the absence of the 2012 act, young men would have been arrested and charged with breach of the peace. It does not appear to us that—
Rona Mackay
I am talking specifically about section 6, not about breach of the peace.
Jeanette Findlay
As you have already heard, section 6 is rarely used.
Rona Mackay
How would you bridge the gap that would allow people to send threatening communications? Would that gap be all right with you?
Jeanette Findlay
It is not the role of fans’ organisations to determine how a legislature deals with communications legislation.
Rona Mackay
I understand that.
Jeanette Findlay
If there needed to be such legislation, it should not have been attached to something that relates only to football fans. I accept that section 6 does not relate only to football fans, but it is because of the whole muddled original drafting of the legislation that section 1 draws up a list of offences that apply only in the context of a regulated football match, while section 6 concerns an entirely separate matter that applies to everybody and is rarely used. It seems to me that there was a problem with the original drafting, and that the issue could be looked at and corrected after the 2012 act is repealed, which is what we hope will happen.
Rona Mackay
Would anyone else like to comment?
Simon Barrow (Scottish Football Supporters Association)
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?
Paul Goodwin (Scottish Football Supporters Association)
No.
Rona Mackay
Do you think that behaviour at football matches has changed since the introduction of the 2012 act? If so, in what way? Has it made your experience of attending football matches more or less enjoyable?
Paul Quigley (Fans Against Criminalisation)
Assistant Chief Constable Higgins has remarked in the past that there has been an improvement over the past five years. However, my understanding is that he has no substantive basis for that view. We have experienced what has happened from the fans’ point of view. Obviously, I am not quite old enough to have experienced football in the 1960s, 1970s and 1980s, but I accept that some types of behaviour, such as racism and sectarianism, were common in football, just as they were also accepted by society at that time. Football does not operate in a bubble; it reflects society. As those attitudes became less acceptable in society, so they became less acceptable in football.
In the past five years, we have not seen an improvement in terms of the behaviour of fans or the lessening of the singing of certain songs and so on. What we have seen is a breakdown in the relationship between fans and the police. That has been caused by this legislation.
Rona Mackay
That is not quite what we heard from Assistant Chief Constable Higgins, but I accept that that is your view.
Simon Barrow
I have been following Scottish football for 47 years. I am a season-ticket holder at Dumbarton and, over the past five years, I have been to all but four of the 42 professional grounds in Scotland, as well as to junior football grounds.
The answer to the question that Rona Mackay asks depends on the context in which you operate. At Dumbarton, we occasionally see a police officer. There have been some incidents that have needed dealing with when, in recent seasons, we have had larger clubs there, but the experience will be quite different in different parts of football. You have heard one example that is based on the experience of some of the larger clubs. I spoke recently to a woman who is a long-term fan of Hearts, who felt that things had improved since the legislation had come into effect because it had created an atmosphere in which people were able to challenge abuse, and that women and families in particular felt more welcome. On the other hand, I had a conversation with someone who was a fan of another club who had diametrically opposed views and said that it had created an atmosphere in which there was greater suspicion between police and fans. I think that it is a mixed picture.
Rona Mackay
Before I bring someone else in, I put it to the panel in general that Stonewall Scotland, the Equality Network, Victim Support and women’s organisations fear the repeal of the 2012 act—they do not want it to be repealed. Does that concern you?
Simon Barrow
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.
11:45The 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.
All those organisations conceded in their submissions that the 2012 act was not being used in relation to those protected characteristics. Clearly, there is a problem more widely in Scottish society that affects those groups, but I do not know that any evidence has been presented that the problem is particularly related to football. If there is a problem in that sense, the 2012 act is not dealing with it.
Rona Mackay
I am not sure how worth while it is to look at things retrospectively or whether you are implying that there is no basis to those organisations’ concerns. They are clearly concerned and there must be reasons for that. The on-going situation might be that when the people concerned go to football games, they do not feel safe or enjoy the experience, and the organisations feel that the repeal of the 2012 act would be additionally detrimental.
Jeanette Findlay
I do not know whether that is the case.
Rona Mackay
That is their submission.
Jeanette Findlay
I do not know whether that reflects the situation more widely, because I was unable to establish that it did. 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. We examined the evidence, but we were unable to establish any basis for it.
Rona Mackay
Would not you accept it as a general principle that—
Jeanette Findlay
Would I accept as a general principle that women should not be frightened to go to football games? Yes.
Rona Mackay
No. Those organisations fear that, if the 2012 act is repealed, certain groups will feel less protected.
Jeanette Findlay
I know that some organisations said that in their written submissions, but I am not clear what lies behind that or how much evidence there is to support it.
Liam Kerr
ACC Higgins was very clear that behaviour had changed, and I think that Mr Barrow would agree with that. However, is there any evidence from the groups that the witnesses represent that behaviour changed in response to the 2012 act? Flowing from that, ACC Higgins said that the 2012 act puts the issue at the front of the public mind. Have you any idea how many fans know about the 2012 act and have moderated their behaviour because of it?
Paul Goodwin
We are just football fans and not lawyers or experts. We just want to go and watch a game of football. I am old enough to remember football in the bad times, not just in Scotland but in England, where I lived and worked. There has been a dramatic change, and society has done things towards that end. I stood with my father and grandfather at football games shouting things that would be unacceptable in this day and age. As we move on, the different generations have taken that on board. That has been supplemented by important campaigns such as show racism the red card.
Interestingly, in relation to homophobia, Scotland was one of the few countries that, until this football season, did not promote the rainbow laces campaign. It has been running in England for seven years, but it has taken until now for football itself to pick that up and run with it.
There are always going to be such issues around football. A lot of it comes down to football as an industry and a business looking at the issues. We are the loyal customers of that industry, but we are not the experts on the legal framework. The football clubs and the football authorities have to take responsibility and push the appropriate messages throughout the game to help and support the fans.
Liam Kerr
But did behaviour get better because of the 2012 act?
Paul Goodwin
No. It is immaterial.
Liam Kerr
It is immaterial?
Paul Goodwin
It is immaterial.
Liam Kerr
Do all the witnesses share that view?
Andrew Jenkin
As part of our research, in the national supporters survey this year, we asked whether the offensive behaviour provisions had been effective in preventing unacceptable conduct. Of the 12,000 people who filled in the survey, 71 per cent felt that the 2012 act was not effective in that way.
Liam Kerr
My second question was whether football fans know about the legislation.
Andrew Jenkin
As in any part of society, there are people who are more informed about certain issues than others. In general, a lot of supporters are informed and know the framework well. A lot have replied to surveys and consultations on the matter.
Jeanette Findlay
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
I will respond to that. I am not a lawyer, but I happen to be married to one. There are a variety of questions on the extent to which the law is there to send out messages or actually to provide an effective framework for dealing with disorder. Many fans feel that the legislation targets them or is directed towards them unfairly, so one of the signals that they might get from repeal is that that is not so much the case.
If I can relate your question to the previous question, what makes fans feel safe at football is the way in which clubs and fan groups deal with the whole situation. That is where the primary messages are. For example, at my club, I have heard chants or comments that are sexist or homophobic. In response, our supporters trust identifies who is doing such things, and tries to take them into the community suite, have a chat with them and introduce them to someone to whom that behaviour is threatening or offensive—in other words, it takes active responsibility for what goes on. Therefore the primary messages that fans pick up are ones about how things are dealt with on the ground, in the local situation. As to fans’ responses to the presence or absence of legislation, it is difficult to draw definite conclusions either way.
Paul Quigley
May I come in on that? It has been established this morning that there would be no gap in the law in terms of hate crimes such as racism, sectarianism and homophobia. Those types of behaviour would still be illegal. Our group, which campaigns against the 2012 act, and other prominent critics of the legislation criticise it because it is, by definition, discriminatory. It creates an offence that applies only to football fans. I do not think that anyone defends the types of behaviour that we have already covered, which would still be illegal. 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.
Fulton MacGregor
Is it therefore fair to say that you are opposed not so much to the 2012 act but to the fact that it relates to football? Theoretically speaking, if the act were extended, as the earlier panel mentioned, to cover offensive behaviour at other sports grounds and other venues—that is just an example off the top of my head—would you be comfortable with that?
Paul Quigley
No. Our organisation began around the summer of 2011, when an emergency bill was proposed following the so-called shame game earlier that year. Our opposition to the 2012 act has not changed all that much. We have two primary reasons for opposing it. The first is that it applies only to football fans, as I have said, and we believe that laws should apply universally. The second is that we think that creating an offence that criminalises something as subjective as offensiveness represents a broader danger to freedom of speech and freedom of expression. On that basis, we would oppose legislation that, for example, criminalised certain offensive behaviours outwith hate crime in other arenas.
Fulton MacGregor
So the panel—panel members are obviously particularly well informed—is saying that, if the 2012 act were repealed, there would not be a risk of fans in stadiums up and down the country getting the message from the publicity about that outcome that it is okay to sing sectarian songs.
The Convener
I think that you might be straying into another line of questioning, Mr MacGregor. If you do not mind, we will move on.
Fulton MacGregor
Apologies, convener. I am willing to sacrifice my later question, too, because it has been covered.
The Convener
Okay. Rona Mackay has a brief supplementary.
Rona Mackay
To clarify Fulton MacGregor’s question, would the panel be in favour of the 2012 act if the words “at Football” were taken out of its title and it was called the “Offensive Behaviour and Threatening Communications (Scotland) Act”?
Paul Quigley
No.
Paul Goodwin
That would definitely be a starting point in trying to restore football fans’ faith. A lot of the problems with the 2012 act are down to the horrific public relations right from the start, when we talked about emergency legislation coming in. Fans of many clubs do not understand why the legislation was introduced in the first place, they do not understand the benefit of it, and they feel—rightly or wrongly—targeted.
We state in our written submission that we are part of Football Supporters Europe, and our European colleagues were surprised by the act. In countries such as Poland, where there is horrific violence and there are issues with flares and all sorts of other things—Turkey is another example—there is no specific legislation. This is the only bit of legislation that we can find globally that is so targeted at football fans. Is that right for our society in Scotland?
In terms of the principles of some of the things that the act tries to do in other areas, however, we would of course be happy for it to be called whatever it needed to be called.
Stewart Stevenson (Banffshire and Buchan Coast) (SNP)
I am not speaking much because my voice is not working very well.
Mr Quigley, I think that I heard you suggest that behaviours are caught by the 2012 act that should not be caught by any legislation. Can you give me an example of a behaviour that is caught by the current legislation that you do not believe should be legislated on in any context?
Paul Quigley
Of course. We have not only campaigned against the 2012 act but offered help and support to people who have been charged under it.
Stewart Stevenson
Forgive me—I want to focus narrowly, because the convener has given me only a little time.
Paul Quigley
That is exactly what I am getting to. A Rangers fan was arrested for holding a banner that simply said, “Axe the act.” A Motherwell fan was arrested, held in Greenock prison for four days and then convicted of singing a song that simply included profanity about a rival team. I do not think that that is worthy of a criminal conviction—it is not proportionate.
12:00Stewart Stevenson
My precise point is that you are saying that that should not be criminalised in any context, whether it occurs at a football match or elsewhere. I just want to be clear about what you are saying.
Paul Quigley
We are talking about singing a song, which is the type of behaviour that goes on at a football match. People do not typically walk down the street and sing a song that includes profanity—that would be slightly different. In the context of a football match, I do not think that such behaviours should be criminalised.
Maurice Corry
Will Mr Barrow or Mr Goodwin elaborate on what the SFSA means by “divisions”? How do you see them being overcome?
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
Like all of you, I love football. When growing up, I played it a lot, to quite a high level, and I have been to games across Scotland—from Edinburgh derbies to old firm matches and lower league games.
What I find difficult about the comments that we have heard so far from Jeanette Findlay and Paul Quigley in particular is that I do not know what behaviour you want to carry out that the act is preventing you from doing. What are the obstructions to you being fans, supporting a club, participating in the beautiful game and being part of the experience in a football stadium? What does the act prohibit?
The Convener
We will come on to that later.
Ben Macpherson
The questions are connected to the current line of questioning.
Jeanette Findlay
I am happy to reply. The point that you misunderstand is that the behaviour that is prevented is any behaviour that any police officer regards as being potentially offensive to a person who might not be there or might not ever know about it. That is sufficient to bring a charge against someone. As we have heard this morning, such a case is almost always prosecuted by the Crown Office. That requires people to attend court on three or more occasions—sometimes considerably more—over long periods. The process lasts longer than normal, as the University of Stirling research commissioned by the Scottish Government found.
My concern is that someone could be doing anything that a police officer might consider to be offensive. We have already heard that police officers have to be trained and educated about what might be offensive. It should raise alarm bells that police officers have to be trained to discover what might be offensive. That is the problem.
I am not prevented from doing anything that I want to do when I go to a football match. However, I see young men, by and large, being charged—they are not necessarily being convicted, because the conviction rate is low—and being put through all that disruption for doing things that should not be a criminal offence in a civilised modern democracy.
Ben Macpherson
When the act catches racism, sexism, homophobia and sectarian abuse, are you supportive of that?
Jeanette Findlay
It rarely does.
Ben Macpherson
But are you supportive of that when—
Jeanette Findlay
I am sorry, but that is insulting. It rarely captures those things.
Ben Macpherson
But when it does, are you—
Jeanette Findlay
Look at the statistics.
The Convener
Please allow Ben Macpherson to complete his question. You will then get a full opportunity to answer it.
Ben Macpherson
When the act addresses the fact that there are flags, banners, songs and chants in support of terrorist organisations, are you supportive of that?
Jeanette Findlay
The question that you are asking me is whether I like sectarianism, hate crime and bigotry. That is what you have just asked me. No, I do not—I make that clear.
Ben Macpherson
I am not asking—
Jeanette Findlay
I am telling you that the legislation does not address those things. This morning you heard evidence that the diversion scheme does not work because it is aimed only at sectarianism; it captured only two people in the whole first year. You have heard that sectarianism is the issue in the minority of the charges under the act—the gentleman from the Crown Office said that it makes up the minority of the charges.
What the act captures is not hate crime—there is other legislation to cover that—but behaviour that a police officer might find offensive. I am not saying that there has never been any hate crime captured by the act—of course there has been. However, on the whole, what the act captures is behaviour that a police officer—trained or otherwise—thinks might be offensive to someone who is or is not there. On that basis, young people’s lives are disrupted.
There must be a way to have legislation that targets genuine problematic behaviour but does not leave citizens—just because they happen to be attending a football match—wide open to such consequences.
Ben Macpherson
Thank you for that explanation. However, I will go back to the conceptual point that I made, which is important in relation to the legislation. I appreciate that you have views that the act is being used in a way that you believe to be disproportionate—you have put those views forward today and in your submission. However, surely you support it when the law prosecutes on the basis of discriminatory behaviour, chants that would be unacceptable to most people and behaviour that is associated with that negative aspect of Scottish football, which is undoubtedly there. Those of us who have gone to football matches have all experienced it. Children are subjected to listening to such chants when they go to football matches, as are women and wider society as a whole. Surely you must support the act when it addresses that demeaning and unacceptable behaviour.
Jeanette Findlay
No. I support the bringing to justice of people who engage in hate crime; I do not support the act being used for that purpose. Apart from anything else, it has a poor conviction rate. If you genuinely want to address offending behaviour and hate crime, you should charge people under legislation that has some prospect of success. Almost every other possible alternative has a better prospect of success than the act.
Simon Barrow
The difficulty that we face is in distinguishing problematic and offensive behaviour that would not be acceptable in other parts of society and which many of us say is not acceptable in football. Clearly sexism, racism, sectarianism, homophobia and other behaviours of that kind need to be challenged and rooted out; there is no question about that. There is a question about when speech reaches a point when it should be criminalised. Although there is some clarity that it should be criminalised when it is threatening and violent and so on, it is difficult to draw that distinction.
For example, every week when I attend home matches, there is someone who sits not that far from me who seems to go to actively participate in criticising the officials; his enjoyment of that activity is occasionally interrupted by football. Some of the ways in which he criticises the officials are rude and offensive to many people. We deal with that partly by moving some people and partly by challenging that behaviour directly, and we have been able to temper that individual’s behaviour.
Should that person’s behaviour be criminalised? That would not be helpful or appropriate. However, some people’s behaviour is clearly directly threatening and creates a public order situation where the law has to step in. We are talking about the distinction between the two things, and the difficulty is that people feel that the distinction is not clear enough operatively and legally.
Ben Macpherson
I have a genuine question that I put in good faith to Paul Quigley and Jeanette Findlay. Since the enactment of the legislation, in your experience, have football fans been more reluctant to engage in the sort of chanting, singing of songs and displaying of certain symbols and slogans that would be seen as offensive, supportive of violence or celebrating or mocking historical examples of violence?
Paul Quigley
Personally, I have seen no improvement, and I do not think that there is much evidence to suggest that there has been any improvement.
Mary Fee
We asked the earlier witnesses whether they think that the guidelines that go with the 2012 act are suitable and capture offensive behaviour correctly. What is this panel’s view?
Jeanette Findlay
Are you asking about the Lord Advocate’s 2015 guidelines?
Mary Fee
Yes.
Jeanette Findlay
The difficulty is in how the courts deal with the matter. I mentioned the low conviction rates, which suggest that there is a problem.
We heard this morning from the Crown Office representative and the Police Scotland representative about the legal test of inciting public disorder and something being offensive to a reasonable person. The Crown Office representative clearly did not have information about appeals, but we do. The Crown Office appeals in the Joseph Cairns case and the Walsh and Donnelly case, which are the two main Crown Office appeals against persons being found not guilty, resulted in expansion, explanation and clarification of the terms.
12:15Two 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.”
In other words, the leading case makes it clear that we are talking about not a reasonable person but an unusually volatile person.
The other issue relates to whether public disorder would take place. The same judgment makes it clear not only that public disorder does not have to take place but that the person who might have been incited to public disorder does not have to be there and does not ever have to find out about the thing that might have incited them.
The Lord Advocate’s guidelines might on the face of it have seemed a reasonable set of guidelines about when people should be charged, but the outcome of case law has shown that they are not adequate. That is because the law as it was originally drafted is not adequate. It was never clear, so—with all due respect to the Lord Advocate—I am not sure what guidelines he could have produced that would have allowed proper and sensible interpretation of the law.
Mary Fee
Do other panel members have any comments on the guidelines before I move on to ask about something else?
Andrew Jenkin
This comment is not specifically on the guidelines, but there is generally a lot of ambiguity about what constitutes a criminal offence under the act. That is the only thing that I will add to what has been said.
Mary Fee
The submission from Fans Against Criminalisation refers to “genuine problems” within football stadiums. Can you explain what you mean by that?
Jeanette Findlay
Sorry. What page are you referring to?
Mary Fee
I am sorry, but I do not have a page number at the moment.
Jeanette Findlay
In any context where there are large crowds of people—whether that be a football match, any other sporting match, a concert, a demonstration, a parade or anything else—it is clear that there can be instances of criminal behaviour. Our view is that, before the 2012 act, some criminal acts took place in football stadia—it would be very surprising if that were not the case; there were very few of them, but they were dealt with under the law and by police officers. To the extent that there are any genuine issues of criminality—whatever those might be; for example, it could be assault—the police should deal with them under the existing law and they have the clear ability to do that.
Mary Fee
But do you think that, because of the 2012 act, there is less focus on other issues and more focus on—
Jeanette Findlay
The Government’s own research found that there was a danger that because of the focus on football stadia—“focus” being the word, because the police unit that deals with this is called the focus group—there had been, in some cases, a little bit of a rise in disorder away from football stadia, which the act was not capturing. Police resources were being improperly directed to where there was not a problem and away from potential problems that might be taking place elsewhere.
Mary Fee
Can you give any specific examples of that kind of behaviour?
Jeanette Findlay
Inside stadia?
Mary Fee
Outside. You said that police attention was taken away from other incidents. Can you give an example of what kind of incident or behaviour you mean?
Jeanette Findlay
I was referring to the University of Stirling research. It could be low-level minor disorder—a football casual type of thing—that is very limited in scope. The assistant chief constable referred in the previous evidence session to some arrests that took place when there was a mêlée or a rammy involving Airdrie and Hamilton supporters. That did not take place inside a football stadium; it took place somewhere else.
Mary Fee
Has the change in the police operation at football matches had any impact on fans and their experience of enjoying the game?
Jeanette Findlay
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?
12:30Jeanette 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
Yes. They are never allowed to make that decision. Your witness from the Crown Office is no longer here but would tell you that they are never allowed to make that decision in football cases, although they would normally do so for other types of offences. They are rarely allowed to drop football cases.
It seems tremendously punitive to prosecute football cases to a much greater extent than cases in other circumstances. By and large, cases do not involve any violence and there is usually no specified victim. I have been involved in many cases and I have yet to see somebody other than a police officer stand up in court and say that they were the victim of the offence. Our submission says that in the past year, 86 per cent of all cases of charges under the 2012 act had no identifiable victim. Either the police or the community, as defined by the police officer, have made the charge.
The Convener
I suppose that the point that you are making—
Jeanette Findlay
There are no victims, yet people are put through all that.
The Convener
In your opinion, is there a lack of prosecutorial discretion at a certain level? There is a presumption that the matter will go to the bitter end.
Jeanette Findlay
There appears to be a lack of prosecutorial independence, which I find even more concerning than some of the issues around the 2012 act.
Simon Barrow
There are prosecutorial issues, but more general issues have not entered the debate enough, for example about the distinct outcomes and effects from punitive and restorative approaches to challenging difficult and offensive behaviour and when the boundary is crossed into criminalised behaviour. The point about violence and threats to people is critical, because we are in danger of pushing young people into a system in which the outcome will be further criminalisation.
Ben Macpherson
It is incumbent on the committee to write to the Crown Office and Procurator Fiscal Service to ask for its comments on what has just been said. Those are serious statements.
The Convener
I will be happy to do that.
Fulton MacGregor
Regardless of where people stood on the 2012 act when it was initially in place, I am far from convinced that a repeal of the act would not send out entirely the wrong message. Where do panel members stand on the possible merit of amendments to the act, rather than repeal? You began to touch on it in answer to Liam McArthur’s question.
Andrew Jenkin
Our organisation does not believe in football-specific legislation, so we support the earlier proposal about widening this out not just to sport, which would criminalise sport fans, but to the whole of society. That would be a step forward. You cannot have legislation that applies to one specific sector of society; that is grossly unfair.
Fulton MacGregor
Before anyone else answers, I ask panellists to say whether Lord Bracadale’s current review should fit into the process.
Paul Goodwin
His review must be a key part of the process. We have had discussions with him, but I echo the point that the legislation should not be specific to sport. Our colleagues across Europe are concerned that Scotland is isolated; they ask why it happened and it is difficult for somebody who is not closely involved in the issue to explain how we got to this place.
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
No.
On the Bracadale review, obviously we think that hate crime is a serious issue in Scotland that should absolutely be given the time and energy that are required to deal with it. However, we feel that the legislation is a slightly separate issue. It is not a static issue; it is live, because cases are still going through the courts and people’s lives are still being turned upside down. Therefore, we support a full repeal as quickly as possible.
Stewart Stevenson
Legislation.gov.uk identifies for me that there are 87 pieces of legislation in the United Kingdom pertaining specifically to football, starting in 1989. It has been said—particularly by Mr Jenkin, I think—that no legislation should address football alone. Should all 87 pieces of primary and secondary UK and Scottish legislation therefore be abolished?
Andrew Jenkin
The question that I would ask for each of those pieces of legislation is, why should they be for football and not for wider society?
Stewart Stevenson
No, but, very specifically you said that if something refers only to football it should not be legislated for. I am pointing out that, starting in 1989, there are 87 pieces of legislation that have football in their title. I have had a quick look and they are specific to football. Are you saying that all of those 87 pieces of legislation should be abolished?
Andrew Jenkin
My wider point is that I would be interested to know why, in each of those, the legislation was applied just to football.
Stewart Stevenson
Well, the legislation from 1989 is about offensive behaviour at football matches—the issue is not new and the 2012 act is not the first legislation on it, although I accept that the 1989 legislation is UK not Scottish. I am just making the general point, convener, but I think that I have probably heard all that I am going to hear.
Paul Quigley
The point that I would make is that we have an offence book that applies only to football fans.
Stewart Stevenson
Yes.
Paul Quigley
Obviously, some of that specific legislation will deal with offences such as drinking alcohol in a football stadium, but is there any other legislation that creates a criminal offence, other than those loose types of behaviours, that applies only to football fans and no one else?
Stewart Stevenson
Yes, the Football Spectators Act 1989 is an example that creates offences specifically related to football, so we are not talking about a new approach to legislation.
Paul Quigley
So what type—
The Convener
Now that Mr Findlay and Mr Quigley have been made aware of that, perhaps they can have a look at it. If they want to submit something in response, once they have had a chance to consider the point, the committee would be happy to receive it.
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.
12:45James Kelly
The SFSA representative spoke interestingly about building a more collaborative approach between fans’ groups, football clubs and the police. Would the repeal of the legislation—taking it off the table—make that approach a bit easier to build?
Paul Goodwin
Yes, it probably would. I have mentioned PR three times, but in private discussions that we have with various members of the police—as opposed to in public, where they display unity—most of them say that there is a way round all the problems. That goes back to what the Law Society and the like have said in their submissions. Something has to give if people are to have faith that the concerns that they have, to varying degrees, are being addressed and so that we can move on to provide a place where everybody can work together.
James Kelly
My final question, on the conviction rate, is specifically for Jeanette Findlay. We heard from the Crown Office and Procurator Fiscal Service that the conviction rate is “very good” and that convictions are successful; yet, you have repeatedly said that that is not the case. Can you give us a bit more detail on that?
Jeanette Findlay
Conviction rates are presented in two ways in the two separate publications that are referred to. One is a Crown Office publication and the other is a Scottish Government publication. The first is called “Charges under the ‘Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012’” and the second is “Hate Crime in Scotland”. The figures are based on however many charges there are in a year, but what is reported is a conviction rate based on however many cases are completed in a year.
Let us say that there are 300 charges but only 150 cases are concluded in one reporting period. The conviction rate is the number of people convicted as a proportion of the much smaller number, so it looks as though there is a much higher conviction rate. The figure of 70 to 75 per cent that is reported annually—which is a lower rate than for most convictions—does not represent the true conviction rate, which is never properly reported.
We have counted all the charges from 2011 up to the most recent Scottish Government data and all the convictions in that time. The conviction rate is just below 36 per cent, so there is a tale of unconcluded cases. Even if every one of those cases resulted in a conviction, that would not take the rate to 50 per cent. The figure of 75 per cent or so that is stated each year is vastly overinflated. Most people would think of the conviction rate as being a proportion of the number of people who are charged in a year, but that is not what is given.
James Kelly
It is up to the committee, but it might be useful if you could provide us with your analysis of that if that has not already been done.
The Convener
Thank you. Mr Jenkin, if you would not mind supplying the full details of the survey to which you referred, which Supporters Direct Scotland carried out, that would be very helpful.
Andrew Jenkin
Of course.
The Convener
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

3 October 2017

24 October 2017

7 November 2017

14 November 2017

5 December 2017

12 December 2017
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.
14:44Margaret 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.
14:53The 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.
15:00Liam 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.
15:07Daniel 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.
15:14George 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.
15:20Maurice 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.
15:24Mairi 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.
15:29Mary 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.
15:35Rona 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.
15:40John 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.
15:45Liam 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.
15:51Ben 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.
15:55Brian 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.
16:01John 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.
16:06Johann 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.
16:12Fulton 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.
16:18John 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.
16:23James 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.
16:29Neil 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 bencher