We are back to the grindstone. Agenda item 3 is an evidence session on the operation of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. The minister is staying with us for this evidence session, but members will note that her officials have swapped over. I welcome to the meeting Tom McMahon, head of the community safety unit, and Gery McLaughlin, head of community safety law, both from the Scottish Government.
Minister, I understand that you wish to make opening comments before I open up the discussion to questions from members.
Yes. Thank you, convener.
I think that it would be helpful for us to reflect on the background to the introduction of the 2012 act. Almost exactly three years ago, the Celtic versus Rangers Scottish cup replay on 2 March 2011 featured a number of incidents on the pitch and 35 arrests for a variety of sectarian and racial breach of the peace offences within the ground. Following the match, Strathclyde Police reported a sustained increase in the level of violence and disorder. That, coupled with a pattern of increased violence and disorder at the time of old firm games, resulted in Chief Constable Stephen House requesting a meeting with Celtic, Rangers and the Scottish Government to address those issues.
The First Minister convened a football summit on 8 March 2011, which brought together representatives from the police, football’s governing bodies and Celtic and Rangers Football Clubs, and resulted in the formation of the joint action group. Also in March 2011, Neil Lennon was the target of two parcel bombs. He had also received live bullets through the post, as did some Celtic FC players. Viable explosive devices were also sent by post to others associated with Celtic FC: Trish Godman MSP, then one of the Scottish Parliament’s Deputy Presiding Officers; and the late Paul McBride, Queen’s Counsel, who had represented Celtic FC. In May 2011, Mr Lennon was attacked by a Hearts fan during a match at Tynecastle. That, then, is the background to the introduction of the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill on 16 June 2011.
I thought that it was important for us to remind ourselves of what that period was like, because it is too easy for us to forget how fevered and difficult things were.
When we introduced the bill, we made it clear that that would not be the only thing that the Scottish Government would do to tackle sectarianism. Since then, as members will know, I have appointed an independent advisory group on tackling sectarianism in Scotland, which published its findings in December, and I have announced over the period a total investment of £9 million to tackle sectarianism. Coincidentally, on Friday of last week, we published the Scottish Government’s response to the report of the advisory group on tackling sectarianism. I will now say one or two words about that.
The Government response acknowledges the advisory group’s findings on the complexity of sectarianism in modern Scotland, which highlighted that sectarianism in Scotland remains an issue that needs to be dealt with. The advisory group also felt that there was a real appetite for change and that communities in Scotland are tired of the “worn-out rhetoric” of sectarianism and the impact that it is having on people’s lives. I concur with that view.
The advisory group made a series of recommendations that went beyond the Scottish Government and included local authorities, football clubs, governing bodies, march organisers, churches, the media and educationists. I have written to key stakeholders highlighting and asking them to consider recommendations that are relevant to their interests. I have extended the advisory group’s lifespan to the end of March 2015, which will ensure that it is able to give us independent advice on collating and interpreting the information and evidence that we are collecting.
In its report, the advisory group made it clear that it wishes to see sectarianism addressed in the same way as we address racism and homophobia. Although it predated the group’s report, the 2012 act reflects that approach, as it deals with not only sectarianism but the full range of offensive behaviour at football that can give rise to a risk of public disorder, which includes racism, homophobia and other hate crimes. That is the broader context that we need to be conscious of. Any form of attack or discrimination based on someone’s actual or perceived disability, religion, race and so on is completely unacceptable. That is why we launched the speak up against hate crime campaign last month.
Just this weekend, we heard about the alleged racial abuse of a young East Stirlingshire FC player at a match against Peterhead FC. I am pleased to learn that Police Scotland is following up positive lines of inquiry and that Peterhead FC is assisting the police with the identification of the people responsible.
Reporting hate crime will help to tackle the abuse, send a clear message to perpetrators about the unacceptability of their actions and work towards preventing acts of hate towards others. The campaign’s message echoes the advisory group’s conclusions and is the same message that the 2012 act sends out in a football context—that is, that Scotland is a country that does not tolerate any form of prejudice, discrimination or hate crime.
11:15
Before I bring in members to ask questions, I remind everyone that the case of the procurator fiscal against Jordan Robertson is sub judice. Members can take up general points but not go into specific cases, unless of course they are completed—and that one is not. The clerks will keep us right. I bring in Sandra White.
I think that this is the first time that I have been first to ask a question.
It is not my fault—
I am not blaming anyone; I am just surprised. However, I suppose that it is apt that I am first.
The minister mentioned the Government’s response to the independent advisory group, and I want to ask about the funding of more than £860,000 that has been released for projects to tackle sectarianism, in response to the group’s report. Can the minister say which groups will receive the money? Do they have a remit from the advisory group?
Are you talking about the most recent announcement? I can give you an overview in relation to the 44 projects that there are in total, or I can talk about the ones that we announced last week.
I am asking about the announcement last week.
I do not have details to hand. I know that a significant amount of money was given to the Citizens Theatre to put on plays and workshops that relate to sectarianism, and that Deaf Connections has been given money to assist with its work in that regard. I think that there are seven groups and eight projects—one group got money for two separate projects. I can let you know who they are. The total funding is about £860,000 and was announced last week. Of course, many other projects are going on at the moment.
May I ask another question, convener?
Of course. You were out of the traps first.
You mentioned the Citizens Theatre, minister, and the advisory group talked about the importance of education and work with local authorities. Will the groups that receive the money go into schools? Will schools get money to do such work?
Not all the funding relates directly to particular schools and education-related activity, because there is an issue in wider society, but for obvious reasons a significant number of projects that are requesting funding relate to schools and education. Education Scotland has materials that it uses. Education is a theme in a variety of projects, although it is not the only thing that is funded; the £9 million covered a huge variety of things.
Apart from the work that Education Scotland is doing, the key organisations that have been funded in connection with projects to do with education are the Aberlour Child Care Trust, the Iona Community, Royston Youth Action, the sense over sectarianism partnership and Nil by Mouth.
The advisory group made important proposals in paragraph 6.73 of its report. The Scottish Government rightly responded that the recommendations
“are for football governing bodies to take forward.”
How far can you assist the advisory group in drawing the recommendations to the Scottish Football Association’s attention?
I have, in effect, already done so. When we responded to the advisory group’s report last Friday, we wrote not only to those involved in football but to all the institutions for which the group had recommendations. We responded directly to the recommendations for the Scottish Government but we also sent a copy of our response to everyone else involved, invited them to respond to the recommendations that were directly for them and suggested that June would be a good time by which to have submitted a response. As I have said, we have sent a copy of our response and a covering letter not only to Celtic and Rangers but to the football authorities so that they can ensure that all the clubs covered by those organisations have been advised of our approach.
That relates to our published response, but I have tried to keep a reasonable distance between me and the advisory group. Given that we set it up to be independent, it would not do for me to sit in on its meetings every other week, telling it what it should and should not do. However, we are trying to encourage as wide a range of institutions as possible, including the football clubs and the football authorities, to respond to the recommendations that the advisory group flagged up for them.
Do we have any idea when the University of Stirling’s report on its research into marches is expected to be concluded?
The research is due before the summer.
Interestingly, paragraph 5.3 of the Scottish Government’s response refers to the
“need to develop a working definition of sectarianism which embraces all forms of sectarianism”.
I note that the report “Religiously Aggravated Offending in Scotland 2012-13” mentions an increase in not only anti-Islam charges—I see a figure of 57—but anti-Judaism charges. I did not know about that interesting development, which, instead of polarising the debate, encourages us to take a much broader look at the issue. Can you comment on that?
My response to that question takes me back to my opening remarks. People tend to focus on one very narrow aspect of the legislation, but the reality is that it covers a great deal more than that and is actually allowing us to start mapping other things, such as anti-Islamic hate crime in and around football as well as expressions of anti-Judaism. People might be surprised to hear about such things but they are being picked up now. Although that is depressing, it is important that we know about them. After all, if we do not know about them, we cannot start to think about whether we can do something about them.
That said, I think that we need to be a little careful here—
I know. The figure of 57 that I mentioned related to one incident.
Indeed. I think that we will all remember the incident, which, I believe, came out of a march by the English Defence League—or the Scottish Defence League or whatever it is it calls itself when it marches in Scotland. As with all statistics, one always has to be a little bit careful about what we are looking at.
Yes. We should read these things carefully.
One of the advisory group’s important conclusions is that there is a need for leadership in Scottish society. It mentions a tendency for people to avoid the issue because it is difficult, instead of providing the sort of leadership that makes it clear that such behaviour is unacceptable, and then lists a whole load of organisations, including the football clubs, that need to provide that leadership. What contact have you had with football clubs about concerns that some clubs or supporters might have expressed about how the legislation is operating? It could be counterproductive if it is the legislation that appears to be doing the job so that, rather than provide leadership from those in society who need to provide it, we just say, “Don’t do that, because you’ll get arrested if you do.”
Football is part of society. Basically, the advisory group’s conclusions are that civic society has to get into the driving seat on the issue—and that has to apply across the board. The group said that no Government can deal with the issue on its own. Previous Governments in Scotland have also had runs at the issue. There is no doubt that it is difficult and challenging, but that does not mean that we should not make a serious attempt to deal with it.
There was a period of engagement with football clubs, particularly when the joint action group was still in action through 2011 and probably into 2012. There were regular meetings between us, the football authorities and some of the key clubs. That went on for quite a while—it was not a one-off in 2011; it was a continuing process. Subsequently, I have met representatives of Celtic Football Club twice. I am not conscious that Rangers has at any point asked for a meeting with me, although it recently met with the advisory group. A conversation is going on. However, the attention of some football clubs and football authorities has been taken on to bigger issues. One can see that Rangers’ attention has been diverted on to a rather different debate. We are often in the hands of our potential partners.
At official level, there is a football-related disorder and safety group, which is meeting next week and which Tom McMahon chairs. That involves the Scottish Football Association and the Scottish Professional Football League. I do not know whether the committee wants Tom to say something about how it operates.
Yes, please.
It is an on-going group that involves Police Scotland, the SFA, the SPFL and Scottish Government officials. The aim is to progress the various actions that emerged from the JAG—
That is the joint action group.
Yes—you have to remember that we are not officials, so jargon goes past us.
Sorry.
We will specifically discuss the advisory group report and the implications for football. I met Neil Doncaster and SFA representatives late last year, and we have on-going dialogue with them.
On the justice side, we have good and effective links across Government with our sports colleagues, and obviously the Minister for Commonwealth Games and Sport deals with the issue as part of her engagement with those bodies. The action that they need to take on sectarianism is now a formal part of our discussion with them.
I wonder about the contact with supporters rather than just with clubs. Obviously, some of the concerns about the operation of the legislation have come from supporters. What contact has there been to discuss their perceptions of the way in which the legislation works and how they can feed into the tackling of sectarianism more generally?
The research that has been done involved an online fan survey, which was conducted last September. There will be another survey after the current football season. That will be part of the evidence base on which we will base our review of the legislation, which is what we are discussing today.
I am aware that FoCUS—the football co-ordination unit for Scotland—which is the police group that deals with the issue, engages regularly not just with elected members but with supporters groups, fan liaison staff and individual members of the public to answer queries and provide education. Obviously, an awful lot of the issues that arise tend to be around operational policing, so it is appropriate that FoCUS should continue that regular engagement. I do not have direct control over operational policing—FoCUS is key to that. I think that Assistant Chief Constable Bernie Higgins is in charge of it.
11:30
Yes—he is the ACC in charge.
I know that ACC Higgins and FoCUS are in regular contact with many people. Quite a lot is still going on, and it does not all happen just at ministerial level. There is a network of interactions and engagements that take place consistently. There are occasions when Shona Robison and I are involved at a ministerial level, but a lot of the time we are not directly involved in specific meetings that go on between officials and others. Obviously, we are not directly involved in the FoCUS work either, because that would be inappropriate.
The minister will recall that I was not supportive of the legislation in itself, but I congratulate her on the setting up of the advisory group. I think that we have moved the issue on very significantly, and the work that the group has done is to be highly commended. I hope that we can all show some leadership in helping that to go forward.
However, to return to the 2012 act, the committee has received quite a bit of correspondence from some fans, and rightly or wrongly the act has, to an extent, fostered a sense of grievance. The minister will remember that the committee had lots of discussions about whether one could be prescriptive about what should and should not be sung. I do not think that we need to go back over all that. However, the analysis of the charges under the act shows that 41 per cent have been about singing. In the light of that and in the absence of a prescriptive list of songs, has the minister considered giving football clubs and supporters further guidance or information that would enable them to understand the legislation a bit more?
On the figure of 41 per cent, singing is obviously a method by which offensive behaviour can be manifested. The Lord Advocate has published guidelines that give quite clear guidance. There are very good reasons why we have not provided a list of songs, because the words of songs can be changed and new songs can be developed. We would be in a constant cycle of trying to catch up if we had a list.
The Lord Advocate’s published guidelines are there for anyone to have a look at. They refer clearly to the
“singing of songs and chants, or the display of banners, that are clearly motivated by hatred on”
any of the grounds in the act. So, examples of that behaviour
“will be caught by this offence if they are likely to cause public disorder.”
We must remember that there are two halves: there is not just the offence but the public disorder as well. The guidelines also state:
“It is a matter for the judgement of a police officer, at the time of the commission of the offence”,
who must think about
“the nature and words of the song, including”
anything that is non-standard vis-à-vis the song or anything that has been added to the song. So, that is why it would be difficult to have a prescriptive list of songs. The police officer must also think of the “surrounding circumstances”.
It goes back to what we always say for criminal law, which is that we must consider the facts and circumstances to determine whether an offence has taken place.
The Lord Advocate’s guidelines also state:
“The following are examples of the types of songs and lyrics which are likely to be threatening or express hatred:
• Songs/lyrics which promote or celebrate violence against another person’s religion, culture or heritage
• Songs/lyrics which are hateful towards another person’s religion or religious leaders, race, ethnicity, colour, sexuality, heritage or culture”.
Singing is a mechanism by which offensive stuff can be expressed at such mass gatherings. The breakdown by the method of abuse just tells us that singing was the mechanism used; it does not really tell us anything more in detail about the what, why and where.
Have you satisfied yourself that policing in relation to the act is proportionate and even-handed? Do you believe that that is the case?
I am not directly involved in policing matters. I have to consider that we passed the legislation and the legislation itself does not carry anything within it that is about policing or relates directly to policing.
I have not seen anything that suggests to me that what is happening is disproportionate. There were not thousands of arrests. When the legislation was first being discussed, there were conversations and debates about the possibility of ending up with thousands of people arrested, and that simply has not happened for practical policing reasons.
I think that, when you asked the Lord Advocate, myself and the chief constable all to respond by letter, you got a letter from the chief constable that made clear his views. I do not want to start paraphrasing his letter, because his words are his words and I am not conscious of anything that I feel personally as the minister that would contradict what he has said.
Could I ask a supplementary question?
Yes, unless John Finnie’s question is on the same point.
No, it is not.
Minister, we recognise that policing is an operational matter, but have you had any meetings with the chief constable about the operation of the legislation so far?
No, I have not met the chief constable for a while, but although I have not had formal meetings with him I have met Bernie Higgins, the assistant chief constable in charge of FoCUS, the part of the police service that is directly involved in the issue.
Is that by choice? Have you requested a meeting with the chief constable?
I do not understand what you mean by “by choice”. I think that we requested that meeting. From time to time, meetings will take place, but if what you are asking is whether I have requested some kind of emergency meeting, the answer is no.
I, too, welcome the report. I am a member of the Equal Opportunities Committee, and we had Dr Morrow and a colleague along recently to give evidence, which was enlightening.
The phrase “balance of rights” is used in the report in relation to the marches and parades. Alison McInnes is quite right to say that we have had a lot of correspondence in the past on the issue, and I am of the view that there should be more dialogue between the authors and the people with whom they are concerned, because that can not only prevent conflict but resolve conflict.
You have mentioned FoCUS, the joint action group and the football-related disorder group.
Yes, my official mentioned that.
There are Scottish Government officials on that group, clearly.
Tom McMahon chairs the group.
Yes, indeed, but you also said that there are other officials on it. Is that right?
Yes.
Mention has been made of the unpleasant events at the weekend involving the young man who was subjected to a torrent of abuse, and I appreciate that there is a live inquiry going on. That was distressing not only for the individual involved but also for others who listened to it.
How will the football-related disorder group pick up on that kind of incident? It seems to me that there might be an opportunity for early intervention, if it could be identified, hypothetically, that a group from a school, college or workplace was involved. Could the group move quickly enough to make swift interventions in such cases? For example, are there education officials on it?
At the moment, it is a justice-led group, because we are the main point of contact with the police. On the specific point, I would expect us to be picking up actions with education colleagues, for example. The inquiry is live and we are in touch with the police about how it is progressing, but I expect us to discuss next week the circumstances around those incidents, and we will be looking for some view from football on its responsibility for improving the behaviour of fans in certain grounds. It was a lower-league game and I do not think that there was a big police presence there, but we expect fans not to behave in such a hateful manner.
Establishing how the incident came about will depend on information from the clubs about who exactly was there.
It was remiss of me not to mention it before, but there is also a joint ministerial group on sectarianism, which involves the ministers with responsibility for education, local government and sports, as well as Humza Yousaf from the arts and culture side.
We recognise that, because sectarianism penetrates so many areas, it is necessary to have a mechanism that allows everyone to sit round the table from time to time to discuss the implications for their portfolio.
Would the ministerial group get information from Mr McMahon’s group? I am thinking back to political leadership—an early and decisive response could be very helpful.
Officials from all the portfolio teams will support that group. That will include the provision of information that comes out of the justice-led group. I mentioned Education Scotland producing quite specific material on sectarianism. Education officials will bring that to the table, too. There is an opportunity for such matters to be discussed.
For obvious reasons, the joint ministerial group does not meet anything like as often as every fortnight, but it is another way in which we are ensuring that the issues that arise in different aspects of society are discussed by us as a Government. It is clear that the advisory group was looking at it from that perspective, too. We got Duncan Morrow to address one of our meetings.
Yes, he addressed one of the meetings of the ministerial group.
It is happening at a ministerial level in addition to what the officials are doing. The officials’ group is very much justice led, but education officials will be involved in initiatives that they are progressing. For obvious reasons, the Minister for Commonwealth Games and Sport and her officials have an input on the sport side of things.
I want to ask the minister about the timetable for review of the act. She will be aware that many groups are asking us whether the timing of the act could be brought forward.
Do you mean the timing of the review?
Yes. Would it be desirable for the review of the act to be completed sooner?
I know that, under the act, two full seasons were to be completed before it was reviewed. That two-year period will end on 1 August 2014, so you will have a full year—
No, the research—
The research will be completed on 1 August 2014. That will give you a full year before the final report is laid before Parliament. Would it be possible for that to happen sooner?
The second full year of the act’s implementation will be completed on 1 August 2014. Evidence is being in-gathered by the University of Stirling research department. We have given it a timetable to work to. If we were to change that, I am not entirely certain what the response of the Stirling researchers might be. They will not have all the information until August 2014. At that point, they will start to do the analysis of two full years’ work.
We are a good two years down the line from implementation of the act and we are coming close to the end of the two-year review period for which it provided. I do not think that there is any great need for that to be changed. I could not step in now and ask the Stirling researchers to do something different from what they have been instructed to do. Because that process is being conducted independently, through the University of Stirling, it will provide a proper, comprehensive, quality-assured and evidence-based evaluation. I hesitate to say that it will be incontrovertible, because nothing is ever incontrovertible, but it will be as solid and robust a piece of work as could possibly be expected. The research will have been done over two full years, so there will be no short circuiting; it will be a proper piece of work.
Moreover, we should not forget that the Stirling university researchers need the opportunity and time to interact with the football authorities, the clubs and all the rest of it and to get a full response from them about their feelings about the first two years of the act’s operation. Different clubs might have very different attitudes towards that—I do not know.
11:45
Is there any opportunity for the power to modify section 1 to be used before the end of the process?
Obviously I cannot answer that question at the moment, because we will have to wait for the full review. If the review makes suggestions, we will have to take them seriously. Members should also remember that because the report itself will be presented to Parliament, the whole Parliament will see the same recommendations. At that point, we can have a discussion or conversation about whether such a move might be considered but, as I have said, I cannot really answer your question at this stage.
So you do not foresee anything happening before 1 August 2015.
No. It would be nonsensical to do something while the review was on-going and when we know that it is going to be published. The independent researchers will be able to tell us whether something needs to be tweaked, and I cannot say what they will come up with. I really have no idea about that.
I appreciate that the review covers the period up to 1 August 2014 and that the act says that the report of the review “must ... be laid” by 1 August 2015. Do you foresee any opportunity for the report to be published earlier or for an interim report to be published?
That August 2014 date relates to the evidence gathering.
That is correct, but—
And then the researchers have to work on the evidence that they have taken.
I appreciate that—
At this stage, I cannot tell you whether there would be such an opportunity. The August 2015 date is the last date by which—
It is the deadline.
Indeed. It is the deadline, but at this stage I have no idea what might happen. The Stirling university researchers might come back and tell us, “Actually, we can do this in less time if you want us to.” I do not know.
But there might be an opportunity. Is that as far as one might go?
I do not want to be drawn on that because I genuinely do not know the answer.
I welcome the fact that we seem to have moved on since the committee last considered the issue. As you know, however, I have had deep reservations about the effectiveness of this legislation and certainly its drafting. Can you confirm that the number of racially aggravated breach of the peace charges has dropped while, at the same time, there has been a corresponding increase in offensive behaviour charges under section 1 of the 2012 act? Of course that increase might be understandable, given that such charges carry a more robust sentence.
As always with the enacting of new criminal legislation, there will be a shift away from previous charges. Because the 2012 act was specifically designed to catch activity at football matches and in related areas, I would have expected some of the stuff that would have come under section 74 of the Criminal Justice (Scotland) Act 2003 to be reflected through it. I therefore do not find that change to be particularly unusual.
The section 74 statistics have certainly come down, and we now have the offensive behaviour at football stats. However, when you add the two figures together, you will find that there has still been a decrease and that we are making progress on this matter.
With the section 74 stats, there was always the question of establishing the extent to which football and football-related disorder were part and parcel of the situation, and what was not always an easy and straightforward issue has been made easier and more straightforward now that we have specific legislation on activity around football games.
The conviction rate in hate crime-type offences is quite high, at more than 80 per cent, but the section 1 offensive behaviour-type charges have had a conviction rate of only about 60 per cent. Is there concern about that? The issue takes us to the heart of the effectiveness of the 2012 act.
It is not really my place to respond to questions about conviction rates; you probably need to address your question to the Lord Advocate. However, I can make an observation: often, when legislation has been passed and early cases are brought, a period of shaking out is required as the legislation is tested. That might be happening. However, it is probably best if you ask the Lord Advocate directly about efficacy of prosecution.
As we know well, conviction rates can be low in other criminal cases, particularly when quite subjective evidence is involved. Conviction rates vary widely across the board. My feeling is that we are in a shaking-out period as courts, prosecutors and defence counsels test new charges. We would expect that.
Furthermore, I think that the rate that you gave came from a one-year snapshot, and in a single year there is always a danger that a specific factor makes the position look different from how it might look over a longer period, as I showed in relation to the anti-Islam charges. A one-year snapshot, particularly in the first year of operation, does not necessarily show how the position will be in the longer term. Members should remember that there will be a review after two years, so we will begin to see any changes then.
Thank you, minister.
The Lord Advocate said in his letter to me in November:
“I consider that the legislation is continuing to be used effectively by Prosecutors in their role in deciding how to proceed in cases reported by the police. The correspondence attached to your letter refers to ‘failed prosecutions’, but what is being referred to are charges under the Act which do not result in a conviction, and this can happen for a number of reasons.”
He went on to develop the argument about facts and circumstances. I wanted to make that point, and I agree that Margaret Mitchell’s question is a matter for the Lord Advocate.
It is difficult for me to address questions about prosecutions—
Sufficiency of evidence and so on—
And conduct of cases.
The analysis that was done last June will be repeated this June and in each June thereafter. When you get the second year’s analysis in June this year, you will begin to be able to look at changes—of course, things might look the same; obviously I do not know what the outcome will be.
Thank you, minister. I think that we have exhausted our questions. It might be useful if the committee had a discussion about what to do on the issue under item 5, which is our work programme. Are we content to do that?
Members indicated agreement.
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