Good afternoon. I welcome everyone present to the Justice Committee’s third meeting in this session. I remind everyone to switch off mobile phones and other electronic devices, as they interfere with the sound system even when they are switched to silent. No apologies have been received.
The Church of Scotland recognises the seriousness of the problem of sectarianism and is absolutely committed to challenging it locally and nationally. To do that, we work closely with our churches on the ground in parishes, many of which work with local Catholic churches. It is very much an ecumenical effort. It is not about us and them—it is about all of us together, working to solve the problem. We are pleased that legislation is being put in the context of that wider plan and that longer-term work will be done in the next couple of years.
Thank you. I have one correction: I exonerate the committee from having anything to do with the process. That was a matter for the Parliamentary Bureau, and we are with belt and braces trying to compensate for it.
Ms Clemmons, you talk about getting the population’s commitment. What timeframe would you say should be applied to ensure that that happens?
The normal parliamentary process works very well, and it is understood well by a lot of organisations in our communities. The normal method of introducing the legislation and putting out a call for evidence with a three-month timeframe enables people to engage with it in their own groups and then to present their views in a clear and coherent fashion, and to see one another’s views. Debate happens when you see more than one view and then take part in the evidence sessions.
Mr Hopkins, please indicate if you want to come in. You mentioned that in your submission too, so you may wish to respond.
Yes, that is right. I am grateful to be invited here today, but I have to say that I am unable to give the same level of consideration and evidence as I normally would when giving evidence to a parliamentary committee. We have not been able to consult lesbian, gay, bisexual and transgender people and groups throughout Scotland in the way that we usually would.
Are there instances when you think that a time imperative would apply? What factors would override that consideration?
As I understand it, emergency bills have usually dealt with a sudden problem that has arisen with the law, often because of a court case such as the Cadder case. It is usually because the court has struck down a piece of legislation or has found a real problem that needs to be dealt with as an emergency.
I seek clarification from the Church of Scotland. Was there no contact whatever from the ministerial team or the bill team at any stage with regard to the bill? I accept that we have not gone through the usual process, but was there no contact whatever? Were there any communications?
We have had briefings on the bill. I think that the first one was on 8 June. However, that was very much about the content of the bill. The briefings were helpful and I appreciate the minister taking the time to meet me individually; because I represent other churches, too, that meant that I was able to pass the information on. That was welcome. There was a further meeting last week with the Moderator of the General Assembly of the Church of Scotland, which was also welcome.
We had heard nothing about the content of the bill until it was published last Friday morning, despite the fact that it covers sexual orientation and transgender identity specifically.
Yes. I see that from your paper. Thank you very much.
Would it be possible to establish who were the recipients of advance briefings?
We will ask—again, at breakneck speed. I think we are testing our clerks and they have proved themselves worthy so far.
Very much so.
Is yours a separate question, Colin?
It is actually very similar to the previous one.
Right. You can come in now; you were on my list first.
Thank you, convener.
The work that the Church of Scotland has done has been at local community level. A big piece of research and policy setting was done in 2002, at which point a number of recommendations were made. That was primarily for local churches. Particularly in the Glasgow area, there has been a lot of community-based work, primarily ecumenical. We have tried hard not to do such work just as the Church of Scotland.
We and our colleagues at Stonewall have done work on homophobia in football. Stonewall has worked with the Football Association down south and the Scottish Football Association to start addressing that problem. The SFA and the clubs have started to address homophobia in football. We have worked with the police and procurators fiscal in some areas of Scotland to start addressing it, using the existing legislation. Some research work has been done by way of surveys of football fans and football professionals about the extent of homophobia in football. For example, such work has found that seven out of 10 fans and professionals said that they had experienced homophobic chants at football matches.
I am really interested to know what is happening through the churches in particular on this issue. As I said, this is a very old problem. Given the work that has been mentioned, which I think is sterling and certainly have no problem with, has anyone from your community of churches come up with any definitive legislative way forward that we are not getting in this bill?
I have not been party to any discussion on content but, then again, that would not necessarily be the first thought of a local church doing work in its community. That is why it is important to consult on the legislation. If we say to people, “This option is on the table”, they might say, “That’s a great idea” or, “It might be a great idea if you made this or that change”. That is exactly the question that I cannot answer.
Do you know of any national view?
It has not been discussed recently, and certainly not in the time that I have been in post.
I thank the Equality Network for its submission and I am sure that as we go on we will touch on some of the points that it raises. With regard to consultation, I know that you do not accept the premise that this is necessarily an emergency but what processes do both organisations have in place to consult stakeholders about emergency legislation or any proposals for emergency legislation that might be brought forward? I assume, of course, that you have such processes.
We have a network that we talk to by e-mail and obviously we have Facebook pages and so on. In the past three days, we have been using those mechanisms with regard to this legislation. By the time we had seen and digested the bill, it was about 5 pm on Friday night. We then e-mailed our network to ask for examples of homophobia in football and instances when homophobic hatred had been stirred up, which are two key points in the bill. However, only a small number of people were able to respond in the timescale. Such electronic mechanisms are really the only things that are available to us, but I have also had helpful e-mail conversations with my policy colleagues in the other national LGBT organisations—Stonewall Scotland and LGBT Youth Scotland—and, indeed, some of what I have to say is based on information that they have given me. Usually, however, we have meetings to discuss with people exactly what is being proposed and what the effect might be, which is a much more effective way of getting feedback than simply sending out a mass e-mail and hoping that people will reply.
We do not have any emergency process for consulting churches on policy matters. Churches are inherently relatively slow and bureaucratic organisations and, by and large, do not think of policy as an emergency matter. This is my first experience of needing an emergency consultation. Usually, we would identify people who we know work on particular matters. Most churches have reporting processes that show which churches are working in which fields, and we would approach them and often ask individual questions. It always takes weeks. I am not sure that we could do it faster because very often the people we talk to are volunteers and do a different job from policy work. My role is to be available and make consultation easy, but that does not necessarily mean that I can make it fast.
Might there be a need to make it faster? You have said that it is difficult, but there must have been cases in the past in which, because of the will of the people or whatever, there has been a need to address an issue and push legislation forward in a particularly tight timeframe. Would that ever be a priority?
That is a very difficult question—I am trying to picture an example. We do what we can. In this situation, an urgent matter with a tight timescale emerged for consultation and the reality was that I was unable to carry out that consultation in four days. Even with an extra couple of weeks, I would have had a better outcome than I had in four days.
I think that we have exhausted the issue of consultation but to give the Government some balance—which is new for me—I wonder whether you accept that the bill was trailed substantially before last week. In fairness to the Government, we knew that it was coming, even though we might not have thought that it would come this way.
We knew that it was coming but I have to say that when we saw it on Friday morning it came as quite a surprise to us—it was quite different from what we were expecting. The inclusion of the offence of stirring up religious hatred, in particular, was not trailed at all—we had certainly heard nothing about it. The offence is actually quite substantive and, indeed, created a huge amount of debate down south when it was proposed. That is where we think the biggest problem lies.
That is a fair response. We will now move on to a different topic.
I turn to section 1 of the bill, which deals with offensive behaviour at regulated football matches. At yesterday’s committee meeting, there was quite a bit of discussion about the practical implementation of that section and how it will be used by the police and prosecutors. I do not want to rerun yesterday’s discussion, but one of the difficulties would appear to be interpreting what acts and songs fall under section 1. What are your comments on that section? As drafted, is it fit for purpose?
I would struggle to respond to that level of detail. I understand the reason for not defining the offence, because behaviour evolves and you have to allow the professionals who are enforcing the legislation a level of discretion.
The offence is similar to breach of the peace, so arguably it does not extend the law very much. Homophobic and sectarian behaviour at football matches can already be prosecuted as a breach of the peace aggravated by one of the statutory hate crime aggravations. It has been said that breach of the peace is too broad and the boundaries of the law are not clear. Because the offence is very much based on breach of the peace, and is about behaviour that is likely to incite public disorder, the same problems arise.
That is now on the record. The debate is tomorrow afternoon, and I am sure that someone will raise that point.
You endorsed sections 1(2)(a), 1(2)(b) and 1(2)(c). Section 1(2)(e) refers to
Obviously, it is very broad, but it is, of course, limited by section 1(1). The behaviour must be
Let us accept, for the sake of argument, that section 1 really rehearses breach of the peace. Yesterday, the police, I think—although it might not have been the police—put the argument to us that the bill is called the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, and that somebody who was convicted of such an offence would have the specific offence of offensive behaviour on their conviction. If, for the sake of debate, we are looking at the bill as a deterrent in some respects, a stigma would attach to a person who was convicted under it, because they would not be able to say, for example, that they were convicted of breach of the peace when they fell down, kicked over some buckets and woke folk up. Let us set aside consultation and problems with the detail of the bill. Is there any merit in that argument?
Yes, I think that there is. That is one of the points that we made about the previous hate crime legislation. A stigma is attached to having such a conviction, and there is evidence that people who were accused of crimes under the oldest hate crime legislation—the racially aggravated offences legislation—sought to have the aggravation element dropped from the charge because of the stigma that was attached to it. There is evidence that stigma is associated with a hate crime conviction and that there is therefore a deterrent effect, so I agree with that point.
Thank you for coming. I am grateful for the paper from the Equality Network that was supplied ahead of this meeting.
We have not worked on that matter directly, but in September 2009 our colleagues at Stonewall conducted a survey of 2,000 fans and professional footballers throughout Britain. Seven out of 10 of those who were surveyed said that they had experienced homophobic chants at football matches, and more than half of them thought that the football associations and clubs were not doing enough to address the problem. Staffordshire University conducted an online study of 2,000 fans from throughout Britain, and 93 per cent of them said that they disapproved of homophobic abuse, although how representative they were of football fans in general is slightly unclear, as the study was an online study.
You mentioned the view that was expressed that football clubs and associations were not responding sufficiently. From the data, was there any indication of what was expected of the clubs and authorities?
Not that I have a record of. There are a couple of indications of what clubs and the SFA are already doing. When the work was being done, the SFA representative certainly said that tannoy announcers were saying at the beginning of matches that certain kinds of behaviour were unacceptable and that homophobic behaviour was mentioned, but I do not know how widespread that practice was. If the bill is passed and implemented, it will be important to make such announcements at the beginning of matches.
This is a general question for both witnesses. You have talked about the consultation process and the difficulties that you perceive in responding. You will know the interests of both of your communities and how much discussion and response an issue such as the bill would create—if you do not, I am happy to accept that you cannot estimate it. Would the bill generate a great deal of discussion in your communities and a desire to feed back, or would there be a low-level response? Can you give any indication of that?
I think that people would like to be involved in the discussion. Sectarianism is often perceived as a religious issue more than it actually is a religious issue, and I think that Church of Scotland members would be interested in getting involved in further discussion.
I agree. I do not know what proportion of LGBT people follow football, but I know that many LGBT people see football—and sport more widely—as one of the few areas in which homophobia is still acceptable and expressed. We have already had wide discussion with LGBT people on the offence of stirring up hatred, which is covered in section 5. That discussion has been going on for years, because for some time England has had an offence covering religious, racial and sexual orientation hatred, as have both parts of Ireland. We have been discussing the issue with people for many years, and there is a lot of interest in it.
Thanks very much.
Have you got a new line of questioning, John? If you have not got one, I have got one. We will have a supplementary question from John Finnie, and then John L—I must find another way of describing you—will start a fresh line of questioning.
Ms Clemmons, I noted all that you said about the timeframe. What efforts have you made to gauge your members’ views?
I have spoken to a number of the projects that the church is involved with, and everybody has told me that they need time to think about how the provisions would apply to their work. I have made as many phone calls as I could reasonably make in a day.
Forgive me, but my understanding is that the church has various committees. Is there not an opportunity to get representative views via those?
Let me stop this, if I may. We have dealt with consultation and I really want to move on to some specific issues that have been raised about the timescale. We have got only a short time and we have not touched on them, although we really need to get them on the record. Forgive me, John. John Lamont is next.
My question is directed to Ms Clemmons. At the start of your evidence, you spoke about not having enough time to consider your views on the bill. We all share similar concerns. You also referred to the need for community buy-in and the fact that the bill will perhaps not achieve the objectives that it is designed to achieve. Do you share my concern that there is a wider problem beyond sectarianism at football matches—sectarianism works in different shapes and forms in different communities—yet the bill addresses only one aspect of it? Is that what you were alluding to? Can you flesh out your concerns a bit more clearly?
My concern relates to the fact that the process of buy-in is a process. You cannot say, “The Government has announced that the community now thinks this.” The bill may be absolutely fine, but it is not about whether the bill is the right or the wrong answer; it is about a process of ownership—its becoming our own—and that takes time. It may be that, at the end of the process, no changes will have been made, but people will be able to say, “I’ve been included, I’ve participated and I’ll follow this now.”
That takes us back to the issue of consultation. If you do not mind, John, I will move on to Alison McInnes, who wants to ask about something completely different.
Mr Hopkins, in the written submission from the Equality Network, you say that you have concerns about the broad nature of condition B in section 5 of the bill. You state:
We have two concerns about the condition B offence. First, it is not broad enough, as it covers only religion and not sexual orientation as the equivalent offence in other parts of the UK does. Secondly, issues such as freedom of speech are not addressed explicitly in the bill, and we think that they need at least more discussion.
Is it your view that by singling out religious hatred in condition B in section 5(5), the Government is—perhaps inadvertently—creating a sort of hierarchy of equality, and saying that something sits above all the other equalities?
That is exactly what we think. I noticed that the Scottish Council of Jewish Communities used exactly that phrase—“a hierarchy of discrimination”—in its submission. It was important for us to go through the process of the hate crime legislation in the previous session of Parliament to ensure that all of the different kinds of hate crime—all of which are common, unfortunately—were covered by hate crime law.
Chloe Clemmons said that the bill does not cover unrecorded speech, and Tim Hopkins also touched on that. Could you develop your points? Mr Hopkins asked:
My understanding is that the offences in section 5 cover any form of communication except unrecorded speech. The English offences of stirring up racial, religious and homophobic hatred cover unrecorded speech, except where it happens on domestic premises. They do not catch hate speech happening in a house, but they catch hate speech happening in, for example, a public hall.
Before we hear from Ms Clemmons, I am interested in the Equality Network’s defence of free speech. This is a very difficult area. Suppressing views that—entirely rightly—you do not agree with might undermine democracy. I am not sure about the answer. It is difficult to judge someone’s right to say something that you disapprove of totally.
I completely agree that freedom of speech is an extremely important issue in the context of the offence in the bill, but I do not think that limiting the offence so that it does not cover unrecorded speech is the right approach to freedom of speech. That would leave us in the situation in which it would not be an offence to say a thing publicly, but it would be an offence if it were written down and reported on the blog of the person who said it, or if the organisation that the person was a member of reported it on its website, or if someone recorded it on a mobile phone and made a YouTube video out of it. That would not make sense.
Given that we are talking about a bill to tackle sectarian behaviour, one of the things that we need to ask is how that behaviour manifests itself. I do not know the answer to that question, but it is one for people who have experienced such behaviour or who have been convicted of it. We need to know whether it was a matter of someone saying something to someone. Until we know the answer to that question, we will not know whether the bill will work without such a provision.
As members have no other questions, I have a final question about an aspect of the Equality Network’s submission. Am I correct in thinking that you are looking for section 5, on threatening communications, to be taken out of the bill altogether?
For the reasons that we have discussed, we think that the big problem with the bill is the condition B offence in section 5, which relates to the stirring up of religious hatred. We think that there are a number of possible solutions. We are not suggesting that the whole of section 5 should be deleted, because the condition A offence is fine—it covers all sorts of crimes.
Perhaps this is for the ears of committee members only, but I draw your attention to the fact that if an amendment sought to delete section 5, it would not be a competent amendment, as it would take away half the bill and would be seen as a wrecking amendment, given that the bill is described as
If I understood your evidence correctly, it seems that you would be more comfortable with the retention of the condition B offence in section 5 if reference were made to section 1(4).
That is absolutely right. Just to clarify, we support the condition A offence in section 5, so we are not suggesting that the whole of section 5 should go; we are suggesting that just section 5(5) should go. Another solution would be to amend it by extending it to cover sexual orientation, transgender identity and disability so that it matches section 1(4).
If the list of things that are referred to in section 1(4) were included under condition B, would you be more comfortable?
That would remove our main objection.
I am not saying that it would satisfy you completely, but it would make you more comfortable.
Yes, it would.
If neither of the witnesses has anything to add, I bring the session to a conclusion. Thank you very much for dealing with the issues at break neck speed. We have found your evidence extremely useful. It will, we hope, be available in print form tomorrow, certainly in time for the debate on the bill.
I welcome our second panel. We are delighted to have representatives from Celtic, who have managed to come at very late notice—that is very useful. We also welcome the Lord Advocate and Michelle Macleod.
Good afternoon, gentlemen.
And lady.
Thank you, convener—apologies, Michelle.
The first that Rangers heard was when the First Minister announced that he planned to rush some legislation through before the start of the next football season—notwithstanding that we are all members of the joint action group that was set up after the summit. I have to say that Rangers was somewhat surprised about it.
Although, like Rangers, we had been involved with the joint action group working parties, the actual introduction of the legislation came fairly late on in the process, with details of the bill coming towards the very end. As regards the detail that was announced last week, we did not see anything any earlier than anyone else.
To be clear, you did not approach the Government asking for legislation; it was the Government that brought forward the legislation.
There are elements of the bill, particularly on threatening communications, on which we had been keen for some form of different approach to be taken, given the particular situation with our manager, but the way in which the bill has been rolled out was not something that we called for at the time.
The police, the Government, the football authorities and the clubs have been part of what is termed the joint action group since early March. All parties were asked to go away and consider steps that they might take to improve the situation and to consider the issues that came out of the joint action group. The Government was part of that process, and clearly it has come back with its ideas. The legislation is something that the Government has brought to the table as part of the joint action group.
No other witness wants to comment on that point.
My question is related to James Kelly’s question. Even though the clubs, the SPL and others might not have called for the legislation, is it important to have the legislation in place by the start of the football season rather than introduce it halfway through the season? The police suggested at yesterday’s meeting that, logistically, they would welcome the legislation being in place before the start of the football season. Would it be more difficult to implement the legislation halfway or three quarters of the way through the season? Is it therefore probably imperative to have it in place for the start of the season? Do you have a different view?
It was helpful to have a briefing this morning on some of the gaps in existing legislation that create a need for better clarity going forward. I think that we would all welcome clarity as soon as is reasonably practicable. Alongside that, we would welcome guidelines as to how the legislation will work in practice, and there are assurances that such guidelines will be forthcoming. We hope that that will mean more clarity as soon as possible, and before the beginning of the season.
The start of the season is a natural time to put in place a series of measures to try to address some of the issues that we faced last season. All parties have considered measures that could be put in place, and all have a series of initiatives. To introduce something new part of the way through the season would be challenging—it would lose its impact. I therefore welcome the new legislation. If we can put elements of it in place, with a practical understanding of how they will be managed—the Lord Advocate’s comments this morning at the pre-meeting were helpful in that regard—we should be able to take positive steps.
You have just heralded the Lord Advocate, who might be prepared to share with us some thoughts and guidance that might assist.
Yes, convener. I will start with the need for the legislation. I have read that some people have said that legislation is already in place that covers the conduct that caused lots of problems last season. I will deal first with offensive behaviour.
They were of a great deal of assistance. In particular it will assist us to have the draft guidance before we proceed. By the way, I must correct myself. I think that the stage 1 debate will take place tomorrow morning—it is just as well that I realised that, or I would not have been there.
Lord Advocate, you said that a citizen needs to know what is criminal and what is not. That is absolutely right; good law must make that clear. However, the bill contains at least three areas that seem to me to be unclear. First, it suggests that behaviour is sometimes criminal in public places and sometimes not. Surely it is not good law to say that someone may chant or sing songs in a public place but may not do so in a football ground. Secondly, there is disquiet about the wording on travel to and from a match even if the person does not intend to go to the match, which seems vague. Will you deal with those points?
On your first point, if you read the bill you will see that it criminalises behaviour at a regulated football match that is likely to incite public disorder. Behaviour is then defined as
It was about travelling without intending to go to the match.
The definition in the bill about travelling to or from a match or watching a match being televised is taken from the football banning order legislation that is in place. I will give examples of that—
Sorry to interrupt, but when you talk about someone intending to watch a match being televised, I presume that you are talking about people travelling to a pub to watch it or going to watch it in a public area on a big screen. Is that correct? Is that what football banning orders cover?
Yes, with football banning orders, the definition of a regulated football match covers that. Section 2 of the bill includes behaviour that occurs
My point was about the phrase
Somebody might intend to go to a match, but not get there for a particular reason. That might be because they engage in the type of offensive behaviour that is covered by the bill. The bill is wide enough to cover that.
If I might, convener, can I ask a follow-up question?
I just want to ask the Lord Advocate for clarification. Are you telling us that we must read section 2(4)(a) alongside section 2(3), because the term “regulated football match” includes a place at which a match is televised? So when the bill talks about
Section 2 is entitled:
I am talking about the next bit, which states:
The bill states:
Yes, and therefore, where the bill states in section 2(4)(a) that
Yes.
So the bill is narrower than I read it originally.
That is the way that I read it.
Okay—I think I understand.
Of course, ultimately, it is a matter for the courts.
The Lord Advocate has made great play of the fact that the Government has lifted wording from the football banning order legislation. We heard yesterday from Dr McArdle about a concern that the orders have not been as effective as it was hoped they would be and that he has carried out research for the Government on that. It would be useful to have that research published as soon as possible. I understand that it is finished and is with the Government. Can you comment on that?
No. I know of the research, but I cannot comment on the date of publication.
Do any of the representatives of football organisations wish to comment on any points that have been raised on football banning orders, or on whether a person is intending to go to a match when they are intending to watch it on a screen that is not on domestic premises? I think that we have resolved the latter issue.
I have one question on the same lines, and one on—
You are not allowed to ask the second one, because there is a queue.
My question is not on football banning orders, but on unintended travel issues. I wonder whether the Lord Advocate could offer a little more clarification. I want to consider the case of a group of fans from X football club who are travelling to a match by train. I know that we should not use hypothetical examples, and that it is very bad of me to do so—and that this is the second day in a row. The fans are singing songs that would be an offence under the bill. Someone hops on the train halfway through the journey, who did not intend to go to a public screening, to a public house, or to the match, but intended to go to the town for their shopping. If that person joined in the chanting, would there be grounds for prosecution?
Everything depends on facts, circumstances and context. We would need to consider the person’s intention, what they were doing, and what evidence there was.
What if the person had no intention of going to the football match, or of watching the match at a public screening, but was going somewhere completely separate?
Again, it would all depend on facts and circumstances. For example, if there was disorder among persons who had no intention of attending a football match but who were travelling to the surrounding area with the intention of causing disorder, that would certainly be covered.
I think I have got more muddled. I thought I had sorted it out in my head, but now I realise that I have not. We will just have to read it all and think very hard.
I have a supplementary question to the one that was asked by Alison McInnes on the need for clarity. The Lord Advocate spoke earlier about guidance and about the singing of national anthems, and you said that everything would depend on circumstances. I want to suggest some scenarios. Can you imagine a situation in which an individual is at a football stadium or somewhere else among a crowd of Celtic fans—a similar situation could apply the other way round—and he or she decides to sing the national anthem, “God Save the Queen”, or a situation in which an individual among a group of English supporters decides to sing “Flower of Scotland”? Are those the kinds of circumstances in which the person could be prosecuted under section 1?
I do not think that it would be right for me to answer that question, because it is about a hypothetical situation. It is necessary to consider the facts, the circumstances and the context. Let me answer your question by giving an extreme example. If someone at an old firm match were to leave, say, the Rangers end, run across the pitch and, in front of the Celtic fans, sing the national anthem, the context could, arguably, make that act criminal because the intention was to cause public disorder. On the other hand, if a rugby player, for example, were to sing the national anthem before a match, that would not be a problem. That is what the guidance makes clear. I do not want to be drawn into considering this or that situation; as I have said, guidance will be given to chief constables.
Humza Yousaf has a supplementary on the same issue. Please make it short, as I have a long list of members with questions.
It is a minor point. Most of us would agree that some of the headlines this morning have been incredibly unhelpful, but I want to touch on the process. My question is probably directed to Michelle Macleod. In the circumstances that have been described, it is not just a split-second decision by the police officer, because the Crown would be involved, as would the procurator fiscal, and essentially it would be up to the courts. Will you talk us through what the process might be and how it would work?
The process for any offences under the new legislation will be exactly the same as the process under any other legislation. If the police think that the conduct is sufficient to justify reporting a case under one of the provisions, it would go to the relevant procurator fiscal in the jurisdiction where the offence occurred. The fiscal would then apply the guidance that the Lord Advocate mentioned. Guidance will be given to the chief constables but, in addition, prosecutors will have their own guidance. They will apply the facts and circumstances to see whether there is sufficient evidence for the offences. If there is, proceedings will be initiated and thereafter, as the Lord Advocate suggested, it will be entirely a matter for the court to determine whether there is sufficient evidence, beyond reasonable doubt, for a conviction. A different procedure will not apply to this offence compared with any other offence.
I will just add to that point. In addition to guidance for chief constables on reporting of the offences, there will be prosecutorial guidance for our procurators fiscal. We do not make such guidance public, but I assure you that the approach is routine for any new offence. For existing offences, we have a detailed set of guidance for prosecutors as to when it is appropriate to prosecute and when it is not.
I am sorry, but I am still struggling with section 2(4)(a). It states:
That provision is to cover the situation in which among a group of supporters—the vast majority of whom have tickets for a football match and intend to go to it—there are a couple of persons who do not have tickets and who have no intention of going to it, obviously because they do not have tickets. They are part of a group—it is an example; we are dealing with a hypothetical situation—that might be involved in such disorderly behaviour. The argument, or the policy, is about whether that behaviour should be criminalised. As the bill makes clear, if people engage in the type of offensive behaviour that is set out in section 1, the behaviour should be criminalised.
Right. I am going to leave it there and chew that over. We will move on. Maybe it has just been a long day.
Thank you all for coming along today. My question is for the Lord Advocate. It is about section 1(5). If I understood correctly a number of representations that we have heard—I accept that I might have misinterpreted them—we have been told that that section is already covered by the law on breach of the peace. My understanding is that it is to cover a situation where there is a single group or faction and the conduct is deemed unreasonable. Will you comment on that? Would that constitute a breach of the peace? Is this a refinement or is it something new?
Is that section 1(4)?
It is section 1(5).
The definition of breach of the peace is conduct that is
Thank you, Lord Advocate. We heard yesterday from the Association of Chief Police Officers in Scotland and from the Scottish Police Federation that they welcome the legislation. In layman’s terms, would you understand that welcome to be because paragraph (b) of section 1(5) will fill a gap in the existing provision?
I was gratified to hear from the assistant chief constable of Strathclyde Police, Campbell Corrigan, who attended the joint action group this morning. He assented when I set out the position in relation to the existing legislation as opposed to what the bill covers. On the point about filling the gap, that is, as I understand it, welcomed by the police.
I will take the Lord Advocate back to his earlier explanation of the reason for section 1 and why it has been drafted in that way.
No.
Can you explain the need for section 1 to be in statute for the start of the new football season?
There are two elements to your question. There is a need to make clear what the offence covers and to define it. While breach of the peace is developing in ECHR terms and seems to be contracting, we need to have an offence which specifically covers the type of behaviour that we have seen all too often last season and in previous seasons. That is certainly welcome, and I welcome it as a prosecutor. It will make the job of the police and prosecutors easier and—more important—it will let citizens of this country know what is criminal and what is not. Section 1 defines the limits of the offence itself.
I have one brief point, convener. I accept that it is the job of Parliament to give a strong signal, as we did with the Domestic Abuse (Scotland) Act 2011, but it is important to get the legislation right. We took some time to consider the Domestic Abuse (Scotland) Bill. You said recently that it is the job of Parliament to pass laws and that we should just get on and do it. Do you not think that we would have been able to produce better definitions and more competent legislation if we had taken a bit more time, rather than rushing the bill through in time for the start of the football season?
It is a short bill that will create two criminal offences. As you know, it is for Parliament to consider whether there is a need for it. In my view, there is a need for it and there is a need for it to be in place before the beginning of the football season. That is my judgment, but ultimately the decision rests with you, as parliamentarians. I would certainly like to see the legislation in force before the beginning of the football season—I say that on the public record—but I fully respect that that is a matter for you.
First, I apologise to Mr Regan. I am sure that he has a lot to do. We do have questions for the football authorities and the clubs, but we are following a particular line of questioning at this time.
On that basis, and especially considering that Mr Regan has to leave, if members have questions to put to the clubs, please put them now—you have 13 minutes.
I want to follow the logic of what we are dealing with just now.
Okay, as long as we have time. I want Mr Regan to have the opportunity to answer questions.
Of course.
Of course.
It is one that needs some clarity. We received evidence only today about the importance of taking the public with us and giving them the opportunity to understand fully the issues that are involved and to be included in the outcomes that we in the Parliament seek to achieve. The fact that we have had such a long discussion with you indicates the difficulties that accrue in such circumstances; the timescales have made things very difficult.
May I press you to get to a question? I am sorry. I am sure the Lord Advocate is aware of all that. I am aware of the need to get questions for Mr Regan.
I want the Lord Advocate to know the context of my question.
Yes, but still—
You mentioned football banning orders. There was an indication, in particular from Dr McArdle, that perhaps there is not the energy and commitment to the current legislation that might have brought about many changes that we have sought in the past few years, both in enforcement and the involvement of the courts and prosecutors. How do you feel about that view, which was expressed to the committee yesterday?
I disagree with it. There is a huge commitment to tackling hate crime. We have a robust prosecution policy in relation to all aspects of hate crime—crime that is religiously or racially aggravated. If there is sufficient credible and reliable evidence, there is the strongest of presumptions that we will take proceedings. While I remain Lord Advocate, that will continue. We have a real focus on hate crime, so I do not agree that we are lacklustre in dealing with it.
I mean in particular in connection with football matches and football events.
We have a football-dedicated depute in Glasgow. That sends the message that we are determined to use expertise and to take a consistent approach. That is what we aim to do and are doing. So no, I do not agree with any suggestion that the Crown is lacklustre in relation to criminal behaviour at or in relation to football matches; that is certainly not the case.
Can I maybe—
No. I want to be fair. You can come back—
I was saying that I want to stop there. I might come back in later.
I will think about it, but your questions should be short.
Thank you.
We have Mr Regan and other football representatives here, so can we focus on that so that everyone can have the opportunity to deal with them, and they do not feel that we have missed anything? Mr Regan, perhaps you would like to tell us something that we have not asked about.
We were called here to give evidence and we are here to listen to any questions and points of clarification. We had a productive meeting this morning with the joint action group. It answered a lot of questions and gave clarity on how the legislation will be implemented and how the practical concerns that we have expressed before today will be addressed.
It would be useful if you told us your practical concerns that have been addressed. That is a good place to start.
There was a perception that the bill was about sectarian chanting, which was the one thing that was hitting the headlines. This morning we covered the fact that we are talking about unacceptable behaviour—in particular, threatening and offensive behaviour. The Lord Advocate has given some very helpful examples of where the new legislation will fill existing gaps. We are starting to see how, in working with the police and our colleagues in the leagues, we will be able to address some of the unacceptable behaviour that we want to stamp out.
I am going to ask members to come in now, but if anyone on the panel wants to expand a point, it would be helpful to the committee. Along with the police, you are at the coalface on this matter, and difficulties must be presented by having to enforce legislation among 20,000 people—I am afraid that I am never at a football match; perhaps I should have said that sotto voce—and ensuring that that enforcement does not become provocative, which it might do. I am interested to hear about those practicalities. I know that the clubs do a lot themselves. Let us move on along that line.
My question is to Mr Hawthorn and Mr Martin, as representatives of their clubs. Gentlemen, both your clubs are commercial organisations and terminology such as “customer” is used. Have you surveyed your customers for their views on the proposed legislation?
I can answer for Celtic. No, we have not had the opportunity to do that. In fact, we have had quite a short time to consider the bill in detail. We all welcome the principle of the bill. There is no question but that Celtic Football Club in particular has always been open to all and we stand strongly against religious sectarianism, whether it be at football or elsewhere in society.
In a similar vein, last week there was a meeting of Rangers supporters clubs at the stadium, but unfortunately it was prior to publication of the bill. As you can imagine, there was plenty of speculation.
There is on occasion a quick turnaround for ticket sales for matches, and clubs all have their databases. Will you take the opportunity to consult widely on this? However the bill comes out in the end, customer buy-in—to use that cliché—is important. Will you comment on further consultation and on the level of buy-in that you expect from your customers?
As part of the joint action group work in the lead-up to the bill, we were asked by the Scottish Government to arrange some meetings with our supporters groups this week. We had intended to hold a meeting yesterday and, to that extent, we were in touch with the main representatives of the three key supporter organisations. Unfortunately, partly because of the time of year, partly because of the speed of all this and partly because these evidence sessions were taking place, we were unable to have that meeting, whose aim would have been to discuss with our supporters issues such as this, and other issues related to joint action group activities.
I pause there. Mr Regan, thank you for your attendance, which has been extremely useful. Thank you for coming along at such short notice—you are an extremely busy gentleman.
It is a shame it was not a few seconds ago, because Mr Regan might have been able to answer my question. However, Mr Doncaster might give his perspective.
That is a good question. Our rules on unacceptable conduct are unlimited in terms of their application to how clubs can be punished, but that is in terms of clubs’ behaviour and issues under their control, which might include the actions of their officials.
I am not up to speed on the differences between UEFA’s articles of association and your own. Could you clarify them?
Under the UEFA regime, clubs are held responsible for their supporters’ conduct, even if the clubs have little or no ability to influence that behaviour. I find that an unattractive approach for a league body. It is important that we work with clubs; indeed, the clubs and the league carry out an awful lot of positive and proactive work to deal with behaviours in society that we might not want but which are attached to football. However, holding clubs responsible for things that they have not done is a worrying prospect.
John, is your question strictly a supplementary one?
Absolutely.
The test will be in the question.
Indeed.
I am not of that view. Football as a whole can do more. Indeed, one of the very beneficial aspects of the joint action group process is that all involved have turned their minds to that question and a number of positive outcomes from that process will ensure that more is done. I am certainly not of the view that, to date, football has done everything that could have been done, but I am hopeful that we are moving in the right direction.
I do not want any fisticuffs at the table, but do you wish to answer the question, David?
I tend to agree with Neil Doncaster. As with any walk of life, business or interest, you can always do more. However, I still remember the bad old days of the 1970s when alcohol was such a huge factor and football-related violence was the main problem for police in the wider community when any big games were played.
Could I—
Before we move on, I should let Celtic say something on the same basis.
Having listened to David Martin and others—
I notice that you and Mr Martin are both heads of security and operations. What exactly does that post entail?
Our main task involves safety; security is a close second. If we have 50,000 or 60,000 people coming to a stadium, we want to ensure that they watch the game and go home safely. That is a fairly complicated issue on a match day.
Lord Advocate, I believe that you wanted to respond as well.
There is a point about the linkage with alcohol. A study was conducted between 1 January 2004 and 13 June 2005 that examined aggravation by religious prejudice in criminal conduct convictions. It concluded that 45 per cent of the people who were convicted of that crime in that period were significantly under the influence of alcohol, which I think is quite an important statistic.
That is helpful.
Mr Martin, you said that resources must be available. I take it from that that there is no specific problem with the timescale for the passage of the bill, before the start of the season.
Sorry, I did not mean club resources. I meant that the club will, obviously, sign up to whatever legislation is passed and will endeavour to promulgate that among the fans groups. I was specifically referring to police resources. This is all taking place against a backdrop of the police having been trying to reduce their numbers at football matches over the past two and a half years. That approach has been taken for all the right reasons, but it will make it more difficult to enforce the legislation if they are there in fewer numbers.
Mr Martin, you said that the “game of shame” was in 1980. Did the Government introduce emergency legislation after that match?
My memory is good, but it is not as good as that—
You were just a wee lad then.
I know that the Government brought in the Criminal Justice (Scotland) Act 1980.
But that act was not brought in under emergency procedure, in a week.
I do not think so.
I suspect not.
The bill is not about offensive behaviour at public processions either, is it? It is specifically about football. You will find as many instances of sectarian chanting and singing in the streets of Glasgow, Lanarkshire and Ayrshire over the coming months as you will ever find at a football match.
That is a fair point. Do you mean that people will ask why there is confusion?
I do not know that people will be confused by the bill. Football fans are football fans—they are the same across the country. The vast majority of fans will recognise that there is a need for something and support the bill. However, the Parliament needs to take the fans with it. There must be buy-in from the fans; they need to understand the bill. I have no doubt that the vast majority of Rangers fans and football fans across the country will have no difficulty with the bill.
The committee accepts that. We should move on, because time is pressing.
I will make my question brief. First, I acknowledge the great work that has been done over the past two decades in football, particularly by security in various clubs. Given the Government’s intent in introducing the bill and moving at a swift pace to change the landscape in which you operate from the start of the new season, what changes, if any, can we expect from the authorities and the clubs from today forward? Do you plan to make changes that will action a positive response?
A range of different measures will be taken, which will come out of the JAG process. Rather than try to summarise many pages of fairly dense text of recommendations that have come out of the process, I refer you to the process. There is certainly no suggestion that anyone who is involved in the game is sitting on their hands. I think that everyone has engaged in the process fully and we will end up with a series of recommendations that have been drawn from the clubs, the authorities and the police, which will address the issues that the Government is keen for us to address.
By “the process”, do you mean the joint action group?
Yes.
Will something be published at the end of the process?
I believe so.
I am not involved in the joint action group, other than when I addressed it this morning, but I understand that a report will be published in July. I might be wrong about that.
I understand that the last meeting will be on 11 July and that the group will publish after that.
That is the answer to the question, then.
Will the clubs take steps?
The clubs are part of that.
You have intimated that there will be detailed recommendations, so we will find out more when the joint action group’s plan comes out.
Before hearing from this panel of witnesses, we heard from a representative of the Equality Network. The network said in its written submission and reiterated in oral evidence that this is not, in its view, an emergency. Will Mr Doncaster and the clubs tell us whether the events of last year were destabilising and, if so, what effect they had on individual clubs? Mr Regan is no longer here, but perhaps Mr Doncaster can say what effect the events had on Scotland’s reputation as a footballing nation, be it internally, nationally or internationally.
That is another good question. When I came to Scotland two years ago, I was struck—and I remain struck—by how much negativity there seems to be in this country about its game. The reputation of Scottish football outside these shores is very high and I think that the rest of Europe looks to Scotland on numerous occasions. Scotland has a good reputation in the European Professional Football Leagues association, so I do not recognise the view of Scottish football that is described to me by many people on these shores. I think that we beat ourselves up a lot about things that, in most instances, we should be very proud of. The reputation of Scottish football abroad is extremely high. It is not necessary to search too far and wide on the internet to find instances of real disorder around Europe that make what happened here last season look totally immaterial—that is not to diminish how seriously we should take last season’s events. The response by the football authorities, along with the police, demonstrates that we are taking them seriously, but many things are going on elsewhere in international football that are staggering.
I have a very short question for the Lord Advocate. Can I take it that the draft guidance for chief constables will include guidance on section 5, on threatening communications?
Yes.
I have a final, brief question for the Lord Advocate about the “but for the fact” provision in section 1(5)(b), which relates to circumstances in which
I would hate to rush into giving you an answer.
Would that possibility exist?
If it is all right with you, I will take time to reflect on that point and will write to the committee as soon as I can.
It would be useful to find out about the situation involving supporters clubs or pubs where there were supporters of one team who were not offending anyone on the premises.
In evidence that we took earlier, the comment was made that condition B in section 5(5) would be improved if, instead of referring only to religious hatred, it also referred to the various hate crimes that are listed in section 1(4). Do you have a view on whether the inclusion of that list in section 5(5) would improve condition B?
I would like to take time to consider the issue. I am aware that there is UK legislation that covers offensive comments such as racist comments that are made on the internet, and I would need to look at it to find out whether that is already covered, or whether the bill would be improved by inserting in section 5(5) the list that is provided in section 1(4).
Would you respond to the convener, if you have a chance?
Yes.
As I am about to bring the session to an end, I say to all the witnesses that, if you feel that there is anything that we have not touched on or which, on reflection, you wish that you had brought to our attention, please feel free to put it in writing to me, as convener, and it will be disseminated to the rest of the committee. It would be extremely useful to receive any such additional comments before the final stages of the bill, which are to be held next week.
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