Justice Committee

Meeting date: Tuesday, November 14, 2017

Official Report 663KB pdf

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Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill: Stage 1

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

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

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

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

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

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

Yes.

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 There are three compelling reasons why that act should be repealed.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

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

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

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

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

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

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

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

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

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

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

Professor Tickell.

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

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

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

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

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

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

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

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

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

12:00  

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

Is your question very brief, Fulton?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sorry—lesbian, gay, bisexual and transgender groups.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

12:15  

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

I will try to be as brief as possible.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dr Waiton, your written evidence says:

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

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

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

Dr Waiton, can I just—

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

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

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

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

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

Yes.

I find that quite offensive.

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

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

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

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

12:30  

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

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

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

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

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

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

I agree completely with Stuart Waiton’s last point.

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

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

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

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

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

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

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

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

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

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

There are three problems with it.

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

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

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

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

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

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

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

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

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

12:45  

We do not have much time left, Ben.

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

We have got the point.

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

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

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

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

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

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

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

Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That is helpful. Does anyone else want to comment?

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

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

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

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

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

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

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

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

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

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

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

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

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

13:00  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

You may have the last word, Dr Webster.

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

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