Justice Committee

Meeting date: Tuesday, November 26, 2013

Official Report 632KB pdf

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Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012

Members will recall that we invited responses from the Minister for Community Safety and Legal Affairs, the chief constable and the Lord Advocate to issues that have been raised in correspondence to members about the operation of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. The responses are included in paper 6, along with a further response from the fans against criminalisation group.

I give a wee warning about sub judice matters. Members should not refer to specific cases, in case they are live, but general issues that arise from the act can be referred to.

As members know, the correspondence that has been received calls for an early review of the legislation. The act is due to be reviewed for the period 1 August 2012 to 1 August 2014, and a report of that review is to be laid before the Parliament by 1 August 2015.

The committee is therefore invited to consider whether, in light of all the correspondence and responses received, we consider that action needs to be taken at this stage. In doing so, we need to bear in mind that any issues of police misconduct should be referred to the police complaints procedure. In addition, the point about domestic violence is not directly related to the operation of the 2012 act. Do members have any comments on the correspondence received?

13:00

It seems to me that the responses from the minister, Police Scotland and the Crown do not address whether the 2012 act is working better in practice than the previous legislation. That is the nub of the problem, so I do not think that we are any further forward.

I dissent strongly from what Margaret Mitchell has just said. I said all along that I supported the legislation but was keen that we addressed the concerns that were raised with us. I think that, given this healthy bundle of papers that is about 2 inches deep, we have a lot of information, which the clerks confirm is in the public domain.

The principal issue for me is the perception of a disproportionate impact. However, that there is a disproportionate impact is not borne out by the statistics that we have. The historical position, which I hope is still a live offer, was to raise awareness of the legislation, which I think is key. We have been told about engagement with fans groups and guidance on emerging trends and songs.

I want and would encourage people to engage, but we have information on engagement in the letter from Police Scotland to the convener, which states that FoCUS, the football co-ordination unit for Scotland,

“hosted a number of events around the country for supporters in the period immediately prior to the Act’s implementation in March 2012. These provided an opportunity to discuss the Bill and address supporters’ concerns. A key theme was to reassure supporters that police tactics would not be significantly changed once the legislation came into force. FoCUS continues to engage on a daily basis with elected members, supporter groups, fan liaison staff and individual members of the public to answer queries and provide education on the operation of the legislation.”

The bit that I find the most disappointing is the final sentence of that paragraph, which states:

“In many cases, however, those who most vociferously oppose the Act have repeatedly declined to meet with FoCUS officers.”

I think that we need engagement and people speaking to one another to understand.

I previously raised the question of camera surveillance. The documents tell us about hand-held and body-worn cameras. The Police Scotland letter states:

“The officers deployed as evidence gathering teams equipped with bodyworn video and hand held cameras undertake a training course which includes information on police powers—”

that is very reassuring for a start—

“Human Rights and Data Protection, and they are expected to provide members of the public with this information if asked to do so.”

Clearly, we want the police to use technology to acquire evidence in ways that are compatible with both data protection and human rights legislation.

On avenues of redress, I am conscious of the convener’s comment about live cases. On representations that the committee has had previously on the legislation, I have encouraged co-operation and have encouraged fans to come forward and, if there is any suggestion of wrongdoing from whatever quarter, to raise that. I would continue to encourage that approach. However, sadly, that does not seem to have happened. It is perhaps unfortunate that we are fettered in what we can say in relation to events in a specific location.

We have also received specific information from the Lord Advocate. I do not know whether protocol permits me to read out some of that.

Yes, of course it does. The Lord Advocate’s letter is in the public domain.

Right. The letter uses terms such as “f***”. If the letter is in the public domain, people will clearly find a range of things in it offensive, and I hope that all reasonable fans would condemn them. The Lord Advocate’s letter says:

“Successful prosecutions have followed arrests for brandishing a flagpole to make it look like a firearm during a football match, making a Nazi salute at a football match, engaging in organised and pre arranged disorder and violence at a busy station”.

If people have seen the footage of women and children fleeing at a major railway station in Scotland, that would surely upset them. The letter continues by saying that successful prosecutions have followed arrests for

“abusing passengers including children en route to a football match, wearing a T shirt in sight of opposition fans with the words”—

an organisation, the word “f***”, and other information are then mentioned.

It is also important to say that the Lord Advocate says:

“I appreciate of course that this type of behaviour is carried out by a small minority of people.”

One does not want to tarnish—I was just concluding the quote.

Absolutely. It is clear that I have highlighted many passages in many reports, and I could go on at length, but I will not. I am reassured that both the minister and the Lord Advocate have said that it is wrong to downplay the fact that police officers are victims. If someone has something deeply offensive to say, it should not make any difference whether or not the individual who receives the abuse is a police officer. The fact that 13.1 per cent of the charges relate to police officers as victims makes no difference at all.

I was keen on our conducting an early review. I am aware of the on-going academic review at the University of Stirling. It is clear that I am no academic, but there may be academics in the room. The information that I have received from all the various sources, which is in the public domain, has reassured me that some of the supporters groups’ concerns have been addressed, as has their understanding of positions, and some of the emotive language that has been used has been dispelled.

I encourage engagement with FoCUS. Part of our role is to review. I am content to leave things at this time, unless there are significant changes of direction in policing, in the knowledge that the legislation is under tight scrutiny from various quarters, including the committee.

I am still struck by the divergence of understanding between Police Scotland and prosecutors, for example, on one side, and supporters organisations on the other, so I tend to favour a one-off evidence session if we could fit it in. We could try to get supporters organisations in to voice their concerns and go through those with other organisations to try to ensure that there is engagement, as John Finnie would say.

I do not have a lot to add. I concur with everything that John Finnie said. Having asked for a further update from the Lord Advocate and the minister et al, and having read the reports, particularly with regard to police officers who have been on the receiving end—we have evidence on that—we have fulfilled what we were asked to do. No further action needs to be taken to move things forward. The committee asked to look at two full football seasons in the first place. We got what we asked for in an amendment, and we should carry that forward. I do not see the point of bringing forward an ad hoc committee or having evidence sessions with football fans.

John Finnie quite rightly said that a group goes round the country that is open to meet the fans, but it has found that certain people do not meet it to get any answers back.

Basically, we should not take any further action at this stage.

Some of this appears to me to be complaints about the way that police are doing stuff. It would be interesting to know how many complaints have been lodged with the police about how they are operating the legislation. That would be useful to know because we have recommended that, when action has been heavy handed, out of context or whatever we like to call it, the first port of call should be to lodge a complaint. How do members feel about that?

Convener, there is huge frustration associated with the matter. To be frank, people need to put up or shut up. A number of serious accusations were made and then people would not co-operate with the police to investigate them. We need to have a rigorous system for investigating any suggestions of wrongdoing in the police, but that requires people to co-operate.

I am not soliciting complaints about the police.

I am, actually. If there is stuff going on to do with operational policing, I am saying—

Convener—

Bear with me.

I would like to know how many complaints have been lodged with the police regarding the operation of the act. That would be useful to know.

It was not that I was butting in. I had not finished and then you butted in on me.

I do that occasionally. I get to butt.

Yes, I know. You are the convener and we allow it. That is the role of the convener.

Well, other people do it, too.

To pick up on John Finnie’s point, among the emails we had evidence of people who complained but, when the police tried to contact them, never got back to the police. There were people from Cyprus and various other parts of the world—not necessarily local people—and a number of the complaints had nothing to do with the act but were to do with policing arrangements. We have already had notification of people who have complained but did not follow it up. How do we get people to follow complaints up? It is not the committee’s job.

No, no. As I have said on the record, if there are complaints about how the legislation is being operated, as distinct from other matters, it would be useful if people put them to the police with a narrative about what happened. Then we would have some meat.

I think that they know that.

Convener, you know that I think that the legislation was ill judged and rushed through in an unconsidered way, so it will not surprise you that I think that we need an early review of it. There is a danger of a breakdown of trust between one group of people and the police. That, in itself, should concern us. I support Elaine Murray’s suggestion that we ought at least to consider an evidence-taking session to take the matter further.

Who do we ask?

Just bear with me a minute. John Pentland wants to say something.

Since we last discussed the matter two weeks ago, the goalposts have certainly changed for a couple of the committee members. I agree with Alison McInnes that there is a breakdown of trust and that the best way to recover from that is to push for an early review of the act or, as a last resort, to support Elaine Murray’s proposal that we have an early evidence-taking session. Although we said that we would like there to be consensus, we will have to take a vote somewhere down the line or we will discuss it from now until the two years for the review are up.

I understand the call for an evidence-taking session but I am just trying to work out what the purpose of it would be in relation to the legislation. It could not be for people to make complaints about the way the police were handling things and to say in front of us that the police did X, Y and Z, because that would be a matter for the police to deal with, not the Justice Committee, whatever the legislation. What would the purpose be and how would it relate to the legislation, not operational policing?

It would relate to the last round of emails that we received, which started the negotiations.

Some of those emails concerned operational matters, though, and involved domestic abuse, which has nothing to do with the legislation.

However, that is what was taken up with us and that is why committee members called for an early move on it.

I do not want to repeat what everybody else has said, but engagement between both sides would be a good idea, irrespective of what we decide about taking evidence. Also, although in our correspondence there are references to issues that should give rise to the possibility of complaints to the police about how the individuals were handled, there seems to be no indication that anyone has used the complaints procedure. If people have issues, they should use the police complaints procedure.

13:15

Of all the items that the committee has dealt with, this is one on which we are damned regardless of what we do. I certainly feel that, anyway.

I have acted in good faith in everything that I have done. I do not know whether John Pentland thinks that I have changed my position since our previous discussion. He will recall that some people wanted to make a decision that day. My position was that I was keen that there should be an early examination of the issues and that we should be informed by the people who are best placed to tell us about them. We have submissions from the supporter side—we do not know how representative they are of all supporters—and we wanted information from the prosecutors and the police, as well as the Scottish Government’s position.

When we talked about, for example, the disproportionate impact, the use of cameras and how a specific incident was responded to, I said that, from the information that had come to us, I thought that the issues had been addressed. However, in any case there is on-going monitoring. I have not diluted my position, but I am not going to ask for information, get it and then ignore the content.

I am just trying to think about how to find the middle way, as someone said. Would it be appropriate to hear from the Minister for Community Safety and Legal Affairs before we get other people in—

No—

I hear you, but I am trying to find a way for the committee to come to an agreement. My concern is to keep the operational issue separate from the act—and it is difficult to separate the two. Parliamentarians must not start dealing with operational policing.

I was not at previous meetings, but I read all the evidence and I agree with John Finnie that the committee must be very careful to send the right message to the supporters who are out there. They need to engage with FoCUS. If we decide to take evidence or do anything of the sort, all those people who have not engaged with FoCUS will not do so. I would prefer to send a strong message to them that they need to engage with the process.

I do not think that committee members are ever going to agree. We should just go to a vote.

I have not suggested any solutions yet. Let me give members options: we could have a one-off evidence session with the Minister for Community Safety and Legal Affairs; we could appoint a reporter or group of reporters to investigate the issues further on our behalf; or we could explore the options for seeking the establishment of a committee to consider the issue. There is the pick and mix; if members want to add suggestions, tell me.

I suggest that we take no further action.

Right, so the options are: no further action—I do not know whether this is multiple choice—

On a point of order, convener.

There are no points of order in committees, but I will let you make one. I love to say that.

I just want to say that we will be taking further action, because, as with everything that we do, we are monitoring the issue and we are aware that a report will come back to us. I know that Sandra White means that we should do nothing at the moment, but in any case we are not ignoring the issue. The review is coming and we are very interested in it. It is about how we phrase it. I propose that we wait for the completion of the academic report.

No further action pro tem, until the review is complete. Is that what you are saying?

Yes.

Okay.

Right. The options are: no further action pro tem; one-off evidence session; appointment of a reporter or reporters; establishment of an ad hoc committee. Have I missed anything out of the list? I am not sure how we should do this—

May I comment? I proposed that we have an ad hoc committee precisely because of the situation that we are in. There is clearly an issue. An early review is desirable, and the Justice Committee does not have the capacity to do it, because we are already overloaded. I thought that establishment of an ad hoc committee would be a sensible way forward, to tease out the issues.

Who wants to take further action at this stage and who does not?

For

Murray, Elaine (Dumfriesshire) (Lab)

McInnes, Alison (North East Scotland) (LD)

Mitchell, Margaret (Central Scotland) (Con)

Pentland, John (Motherwell and Wishaw) (Lab)

Against

Allard, Christian (North East Scotland) (SNP)

Campbell, Roderick (North East Fife) (SNP)

Finnie, John (Highlands and Islands) (Ind)

White, Sandra (Glasgow Kelvin) (SNP)

I am in the most difficult position. I would like to see something in between what you all want to do. We have had a vote with four for and four against, but my concern is that we have not been able to find out whether those who are aggrieved—and may be rightly aggrieved—have had any working connection with the folk at FoCUS. I would like to know that before we decide what to do. We are saying that not everyone has engaged, but if they have and they have been unsuccessful, it is important to know that. Could we find that out first and then come back to this? If people have engaged and it has been a waste of time, that is fine—we will have found something out. However, if they have not engaged, we will also have found something out.

The people who were aggrieved emailed all of us in great numbers about what they were aggrieved about. They knew that FoCUS was there, and they could have contacted it. We have the figures of people who made complaints, yet when those people were contacted they did not follow those complaints up. I think that that is evidence enough.

I want to know whether they have engaged with FoCUS or whatever—what is it called again?

Surely the proper way to do that is to put out a call for evidence and hear from people.

We usually find out. Perhaps we should ask whether FoCUS plans to give written evidence. We usually have written evidence before we—

I think that we are just stringing this out.

Absolutely. We could string it out for ever.

No, we are not. I am loth to call people for evidence if, when we ask them whether they engaged with FoCUS, the first answer to the first question would be no.

Surely there are so many questions other than that.

I would like a one-off evidence session for the Minister for Community Safety and Legal Affairs. I will be honest: I do not want to go straight to a review of evidence or something before we have tested it further.

I understand that the committee is divided—I do not like it divided. I hope that, if we get the minister along we can test the issue first, then we can go back to it. That is where I am. If members agree to us doing that, we can pack in the meeting today and get the minister along for a one-off evidence session.

No.

You will have to put it to a vote. It is a difficult one.

That is my proposal. Who is prepared to have the minister along first? Am I on my own?

For

Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)

Murray, Elaine (Dumfriesshire) (Lab)

McInnes, Alison (North East Scotland) (LD)

Mitchell, Margaret (Central Scotland) (Con)

Pentland, John (Motherwell and Wishaw) (Lab)

It is an improvement on nothing.

Right. So we will do that.

Can we get to vote?

Against

Allard, Christian (North East Scotland) (SNP)

Campbell, Roderick (North East Fife) (SNP)

Finnie, John (Highlands and Islands) (Ind)

White, Sandra (Glasgow Kelvin) (SNP)

The result is five votes to four. We will have the minister in on either 18 or 25 February.

I want to make an objection. You asked whether we agreed to see the minister first. I object to the use of the word “first”, because we need to send a strong message to the people who are not engaging that they need to engage. We cannot have them out there saying, “That’s fine; we don’t need to engage.”

Our discussion about whether people have engaged is on the record. We expect them to engage and we wish them to do that, but our next step is to do what the majority has decided, which is to have the minister along for a one-off session on it shortly. A short one-off meeting will be fine.

Thank you very much. The next meeting will be on Tuesday 3 December.

Meeting closed at 13:23.