The next item of business is a debate on motion S4M-01170, in the name of Christine Grahame, on the Justice Committee’s report on the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill at stage 2.
I call Christine Grahame to speak to and move the motion on behalf of the Justice Committee. Ms Grahame, you have a tight 14 minutes.
14:41
I open the debate as convener, and accordingly my contribution will be apolitical. I offer my gratitude to my deputy convener, who for perfectly valid reasons wishes to be freed from those apolitical shackles, thus consigning me to summing up. That is worse for members, as they will have to listen to me for a tight 14 minutes and possibly another 10. I got my revenge and my sympathies in first.
On behalf of the Justice Committee, I thank the Minister for Community Safety and Legal Affairs and the Lord Advocate for their responses to our report, and the Lord Advocate for providing the committee with his draft guidelines, which I think the committee and the wider public found—and will find—helpful.
It is unusual to find ourselves debating a committee report on a bill when stage 1 is long over. However, it is appropriate that we have been given chamber time, because the bill has aroused a lot of interest in the wider world, and the issues that the committee uncovered deserve a wider airing. Further to that, the debate underlines the significant role of committees in holding the Government to account.
The bill was introduced in June. It is a response to the events of the previous football season both on and off the pitch. There were a number of incidents, ranging from the small to the sinister. The latter included the sending of suspect packages to particular individuals, apparently for no reason other than their faith background or footballing allegiance. We might disagree on the best approach in legal and policy terms to deal with the problem, but we all agree that that type of behaviour is utterly unacceptable and needs to be tackled.
The events of the previous season have tended to be labelled as part of Scotland’s sectarian problem. It may be news to some, but the word “sectarian” is not to be found in the bill. Each of us probably thinks that we know what it means, but it emerged in the evidence that there is no one clear definition. As the evidence from Nil By Mouth put it, sectarian is a word that “transcends its dictionary meaning” in Scotland.
Nevertheless, it is clear that the bill’s intention is to tackle sectarianism along with other types of unacceptable behaviour. The committee unanimously accepts that there is a continuing sectarian problem in Scotland, and that it is not found only at football matches. We agree with the Scottish Government that no one piece of legislation will solve the problem.
I turn now to procedure and evidence. Members will recall that the Government’s original plan was to deal with the bill by the summer recess through the emergency procedure, to have it ready in time for the new football season. As members know, as convener I expressed my disagreement with that, as did others. However, in the very limited time that the Justice Committee had in June, we undertook to hear evidence from the police, legal experts, representatives from football and civic society, and the Government. There was a mixture of views about the merits of the bill and about the appropriateness of the use of the accelerated procedure.
Shortly afterwards, the First Minister announced that he was minded to propose a lengthier timetable for consideration if Parliament agreed to the bill’s general principles at stage 1, which duly came to pass. It may be that the committee’s evidence sessions contributed to that change of heart—I certainly hope so.
In any event, I think that of all the new committees, we hit the ground running—and we were the better committee for it. As convener, I am glad that the committee had the opportunity for more extended consideration of the bill. There can be circumstances in which it is necessary, on balance, to expedite procedures on grounds of urgency, but in general, legislation benefits from robust, measured and careful scrutiny.
It is no secret that there are differences of opinion—to put it mildly—between committee members on the bill. However, if Parliament agrees to it we will end up with a better and stronger act because of the longer time that we have taken over it. I thank committee members for dealing with one another in committee in a civilised and collective manner, despite their differences. I am sure that that will continue and will be reflected in the tenor of the debate.
The committee heard from 33 individuals or organisations that gave evidence in person. We also received 83 formal written submissions on the bill as well as letters and e-mails from the public. I thank all those who provided evidence, particularly those who gave evidence at extremely short notice in June. Four committee members—myself included—attended an old firm match at Ibrox in September. That was extremely instructive, especially for those of us—I am one—who had not hitherto rated ourselves as aficionados of the beautiful game. We did not simply attend the match, which we hardly watched; we spent time with the police, stewards and supporters before and after the game to get a rounded picture of the reality of an old firm encounter and the preparations involved in it. I express my thanks to all who facilitated our visit.
I turn to the content of the bill, which is a bill of two halves—there end the footballing allusions—that creates two new and distinct offences. That fact, too, is often overlooked. One offence relates to offensive behaviour at football; the other relates to threatening communications. The more complex aspects of the bill are found in some of the details of those two new offences.
The chamber is well aware that the committee divided on the key question whether the new offences were necessary. A majority of members accept that we need a new law to address offensive behaviour at football that is not based on the “fear and alarm” formulation found in the current law. The majority likewise accept that there may be shortcomings that prevent effective prosecutions for some threatening communications. The majority also note what the Lord Advocate referred to as the “transformative effect” that legislation can sometimes have in changing attitudes towards what is and is not socially acceptable—we have the example of the ban on smoking in public places. A minority in the committee disagree, doubtful that the case for new criminal laws has been made, and think instead that the existing laws should be more rigorously applied. We will hear both sides of the argument this afternoon.
As convener, I will focus on the many areas in which the committee speaks with one voice. Much of this relates to the detail of the two offences. Whatever committee members’ overall views, I hope that we can at least agree that there is continuing potential to test the robustness of the bill at the amending stages, which is a task for all of us, including the chamber at stage 3.
The first offence—I will call it the football offence for shorthand—requires three elements to be proven: first, that there is offensive behaviour; secondly, that that behaviour occurs
“in relation to a regulated football match”;
and, thirdly, that the behaviour is likely to provoke public disorder. I stress that all three elements must be present.
On the question of what constitutes offensive behaviour, is it offensive for some people very occasionally to chant in the region of Easter Road “If you hate the”—expletive deleted—“Jambos, clap your hands”?
I thank Margo MacDonald for that intervention and direct her to the Lord Advocate’s guidelines, which address such details in particular. I will deal with the issue later in my speech if I have time; if not, I will address it in my summing up.
The committee had some queries about the drafting. There is more on that in our report and I will use what time I have to focus on just two points. The first of those is the meaning of “offensive behaviour”. The definition that is used in the bill is wide. It is not restricted simply to behaviour with a sectarian element—something that, as I have said, has been missed in the hubris surrounding the bill so far—as it includes expressions of racist or homophobic hatred, for instance. Committee members generally accept that approach. One area in which we had concerns relates to the definition of offensive behaviour as including
“other behaviour that a reasonable person would be likely to consider offensive.”
The catch-all nature of that provision concerned some witnesses, including the Law Society of Scotland and the Scottish Human Rights Commission. The Scottish Government has made the point that the reference to a “reasonable person”, which has a definitional track record in existing case law, ought to prevent the provision from being misapplied. Nonetheless, I expect some further discussion of the issue at stage 2.
The second of the three elements—that the behaviour must be
“in relation to a regulated football match”—
relates, broadly speaking, to a match involving the national team, a match involving teams in the Scottish Premier League or the Scottish Football League, or to cup matches involving those teams.
I point out that the bill gives a wider meaning than we might expect. For example, offensive behaviour in and around a football match may also be caught, but so is offensive behaviour when people are travelling to a match, including breaks—even overnight breaks—on the way there. People do not have to make it to the match, or to have intended to get there, to be caught by the bill.
Will the member give way?
Can I make some progress? I think that what Mr Henry wants to ask me about is dealt with in the Lord Advocate’s guidelines, which give examples of how one might evidence the offence.
No, it is not.
Does Mr Henry still wish to intervene?
Christine Grahame talked about regulated football matches. Will she confirm that, under the bill, it would be an offence to sing certain songs in a pub on the day of a regulated football match, but it would not be an offence to sing those songs one week later when no football match was on?
I was wise to ask Mr Henry to look at the Lord Advocate’s guidelines because they deal with that point. I will discuss televised matches and matches shown in public houses. Behaviour in the vicinity of a televised match—unless the TV is in the person’s home—is also caught within the definition. If I have time and nobody else addresses it, I will give examples in my closing speech. If Mr Henry has read the Lord Advocate’s guidelines, he will know that they addresses his concern on that.
The committee fully accepts the evidence that some of the worst behaviour from a very small number of people occurs when they are on the way to a match, often little concerned about whether they get there. We also recognise that there can be a problem with fans’ behaviour while they watch a match in a pub. Nonetheless, we found the wording to be wide ranging and found ourselves discussing some hypothetical examples and whether the bill would cover them. I do not have time to cover those, so I ask members to have a good look at the Lord Advocate’s guidelines. I know that they are in draft and that there are concerns with them—the committee would like some of their content to be in the bill, where appropriate—but examining them would assist members.
I will address the second offence—threatening communications—which I do not want to miss out, as many have done. It has been mostly overlooked by the media in particular and, thus, the public. I am tempted to refer to it as the internet offence, as that is how it has largely been seen. However, it is important to stress that communication means practically all forms of communication, with the important exception of direct speech.
There are two circumstances in which the crime can be committed. One—condition A—is where a communication is made that
“contains or implies a threat … to carry out a seriously violent act”
of a sort that would cause a reasonable person fear or alarm. That is a high test. The other circumstance—condition B—is where the person makes a threatening communication with the intent of stirring up religious hatred.
Members should note that football has nothing to do with that offence. The Lord Advocate’s guidelines give examples that show how freedom of speech still exists. The Government is considering introducing a freedom of speech section into the bill.
Monitoring what happens online, identifying the culprit, assembling the evidence and enforcing the law would be a challenge. That is potentially a Herculean task, particularly when one takes into account the bill’s extraterritorial aspects. For that reason among others, I welcome the Government’s acceptance of the committee’s recommendation that the bill should contain a review provision to enable its effectiveness to be evaluated in the future.
Football is Scotland’s national game, with many thousands of passionate followers. Songs, chants and banners are part of the theatre of football. Fans are integral to that excitement and drama. I do not think that any members want the game to be conducted in what one witness described as “a Mary Poppins atmosphere”, so sanitised as to be sterile of emotion or passion. Heaven forfend. Indeed, the committee remarks in its report that the majority of fans keep firmly on the side of passionate support, not hateful provocation that is often detached from the match itself. A minority let the side down.
However, the fans have perhaps been let down by the football authorities, which have failed to provide a clear lead. Where necessary, such a lead should include taking sanctions—such as a points deduction—against clubs whose fans behave unacceptably. The committee has been concerned about a lack of urgency on the part of the Scottish Football Association and SPL in determining which takes the lead disciplinary role. I have no doubt that members will want to develop that point. We all agree that the forces of law enforcement have a key role to play in ridding our game of bigotry, but the clubs and the football authorities most certainly also have such a role. A greater sense of urgency needs to be instilled. The committee does not believe that the SFA and the SPL have made that commitment yet.
On that consensual point and within my allocated time—despite interventions—I will move the motion. I look forward to a stimulating, informed and civilised debate.
I move,
That the Parliament notes the Justice Committee’s 1st Report, 2011 (Session 4): Report on the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill at Stage 2 (SP Paper 21).
I thank Christine Grahame for completing her speech within her time.
14:55
I welcome the opportunity to speak in the debate. I point out that previous versions of the Business Bulletin had errors and that the amendment in my name is supported by David McLetchie for the Scottish Conservatives, Alison McInnes for the Liberal Democrats, Patrick Harvie for the Greens, and Margo MacDonald.
Scottish Labour condemns sectarianism without fear or favour, as I am sure every member of the Parliament does. I regret that some comments against those of us who have criticised the bill have characterised us as not supporting attempts to wipe sectarianism from Scottish society, which is not the case. We have reached a genuine position. We have difficulties with the bill, which we will present genuinely this afternoon. We should not be undermined for our motives. I am happy to take criticism for what I say, but not for my motives.
I will concentrate on three aspects: the process that the Government has followed; the problems that have arisen from the bill; and the way forward in tackling sectarianism.
We all know that the issue began as a result of the cup replay match back in March, which was followed by a furore in the media and the establishment of the joint action group. Other regrettable incidents that took place in March, which involved parcel bombs and internet postings, were roundly condemned by everyone in the Parliament.
In the election’s aftermath, the Government got itself into a place where it felt that something had to be done. When Governments adopt the approach that they need to do something, they sometimes rush in, get their action wrong or mixed up and do not take people with them. That has happened on this occasion.
Back in June, we were told in private briefings that we needed the bill quickly because the clubs wanted it in time for the start of the football season. However, when the clubs appeared before the Justice Committee, Rangers Football Club said that the first that it knew of the bill was from reading about it in the papers.
Mr Kelly has forgotten an important part of the process. It was the police who asked for the bill. Strathclyde Police’s chief constable demanded that something be done. I apologise if Mr Kelly was going to mention that, but that is an important part of why action was taken. The police asked for something to be done and for legislation to be introduced.
I draw Ms Robison’s attention to Mr House’s comment last week that the emphasis in his comments to the First Minister was on dealing with violence that happens around old firm games. As we all know, in many cases, violence occurs hours away from the match and many miles from the stadium. The fact remains that the Government misled Opposition party spokesmen by briefing us—
Members: No.
It did—that is the case. The Government told us that the clubs wanted the legislation, but it is on the record that the clubs told the Justice Committee that the first that they knew about the bill was when it was published.
When the Minister for Community Safety and Legal Affairs came to the Justice Committee in June, she was perhaps badly prepared. To be kind to her, that was in the rush to introduce legislation, but her comments at that meeting caused fear by appearing to suggest that making the sign of the cross or singing the national anthem might be caught under the bill.
Will the member take an intervention?
No. Let me develop my point.
The minister’s comments caused consternation in the country. I see that she is shaking her head, but that undermined the bill’s credibility and was one of the main reasons why the timetable had to be extended.
Will the member give way?
No, I will not.
I have a lot of respect for the Lord Advocate, but he allowed himself to be drawn too far into the political process. He fronted the bill in the Daily Record and The Times. The second time that he came to the Justice Committee to discuss the bill, in essence he did so to look after the minister and to ensure that she did not get into further difficulty. At that point, the process was undermined.
We were told that we needed the bill because of gaps in existing legislation. However, during the summer, there have been convictions for sectarian singing, including on trains, and for inappropriate Facebook postings. That begs the question why the bill is needed when the current legislation is being used effectively.
Will the member take an intervention?
No, I will not.
Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, which has only just come into force, deals with some of the gaps in breach of the peace law. Surely we should have taken time to reflect on the effect of that provision.
There are clear problems of clarity in the bill. Margo MacDonald gave an example of that. Christine Grahame put great faith in the Lord Advocate’s guidelines, but the bottom line is that they do not answer Margo MacDonald’s query. When I put questions about specific situations to the minister and the Lord Advocate in the committee, the answer was that it will be down to the police to decide. That is unfair. It is passing the buck and is not the correct way forward.
Roderick Campbell (North East Fife) (SNP) rose—
Will the member give way?
No, I will not give way.
There are clear issues with the bill. The Scottish Human Rights Commission pointed to the legal principle of certainty. We could create a situation in which people could be charged but might not have known at the time whether they were committing an offence. When the minister was at the committee, she could not be specific about what would be an offence under the bill, so how can we expect the public, police and prosecutors to understand that?
The Scottish National Party Government has concentrated too much on football. The committee heard evidence that only 14 per cent of offences with religious aggravation occur in and around football stadiums. Sectarianism is much more complex, so it is wrong to focus simply on football. We need a more comprehensive approach. Johann Lamont and I have held several meetings with churches, supporters groups and Nil by Mouth to explore a more constructive approach.
Will the member take an intervention?
I am sorry, but I am short of time.
I agree with Christine Grahame’s point about the football authorities. The SFA, the SPL and the clubs could do more. There is no doubt that, if points could be deducted from clubs, supporters would be less likely to sing “The Billy Boys” or “The Boys of the Old Brigade”. That would focus attention.
More needs to be done on education. I was interested to note in an answer to a parliamentary question that it is only within the past month that the minister had discussions with the education secretary about how to take the issue forward in the education field.
The bill is not fit for purpose, and I appeal to the Government and the minister to withdraw it, to think again and to build a consensus in Parliament and the country so that we can move forward as one to tackle the blight of sectarianism.
I move amendment S4M-01170.1, to insert at end:
“; further notes the number of verbal and written submissions that raised concerns about the bill; believes that the Scottish Government has failed to make the case for the requirement for new offences contained in the bill, that it lacks clarity, would lead to confusion, be difficult to enforce if implemented and cannot be supported, and believes that a more proportionate response to dealing with the problems in relation to Scottish football would be to give greater consideration to the use of existing laws, to work with football authorities and promote positive interventions in communities and the education system.”
15:05
I welcome the Justice Committee’s contribution in assisting with the scrutiny of the bill. It has prepared a constructive report that was informed by the evidence, particularly the 83 pieces of written evidence that provide a detailed and expert backdrop to the debate. We might not have understood it from Mr Kelly’s comments, but the majority of those submissions supported the bill.
On Tuesday, the Scottish Government published its formal response, as did the Lord Advocate, who also laid a copy of his revised draft guidelines in the Scottish Parliament information centre. I thank the committee convener for her opening remarks.
I read my stars today—they were quite interesting. They tell me that I should pop down to the basement where they are running a special offer on patience. Apparently it is easy to get, within my means, and just what I need. I cannot think of a more prophetic set of stars for the debate this afternoon, because patience is what I need.
It is worth reminding ourselves that the bill gained majority support at stage 1 in June. Parliament agreed the principles of the bill, which means that it accepted that a problem is infecting Scottish football and wider society, and must be tackled. The task for us now is not to question whether action is necessary but to set out what we need to do and how we need to do it to deliver on the commitment that was made to Scotland in June. As evidenced by the survey that was done during the summer, the Scottish people have set the challenge of delivering once and for all a solution to a problem that the overwhelming majority of people are sick to the back teeth of. In company with the First Minister, I am prepared to accept that challenge and I hope that the Parliament is too.
Will the minister give way?
I will let the member in if she will allow me to get a bit further into my speech.
I still hope that we can find common purpose. It is premature for members to come out against the bill before a single amendment is lodged. Despite the column inches that have been dedicated to the bill, it is easy to forget that the process is still closer to its beginning that it is to its end. With stages 2 and 3 still to come, there is much to play for, and there is scope for the Parliament to help to shape the bill so that it contributes to making a Scotland that we all want. I actively welcome any and all constructive suggestions.
I hope that the minister will accept this as being constructive. Scottish football does not have a problem. Two of the clubs that play in the premier league have a problem with some of their supporters. It is not Scottish football. Tell Auchinleck Talbot Football Club that it has a problem.
With respect, the problem goes beyond the two clubs. The difficulty is that those two clubs—along with a third and possibly a fourth and one or two others that sometimes get caught up in the issue—dominate the majority of the publicity around the debate and Scottish football. It is therefore, almost by definition, a problem for Scottish football. The involvement of the Union of European Football Associations also showed us that it will be a continuing problem if we do not address it.
Will the minister give way?
I will let the member in but not yet.
The first issue is necessity. I welcome the unanimous recognition by the Justice Committee that there is a serious issue affecting Scottish football that has gone unchallenged for too long, and that action is needed—and 91 per cent of Scots agree. That is reflected in the majority support for the bill at stage 1, and in the preponderance of the evidence that was submitted to the committee.
That agreement on the challenge that we face as a nation in relation to the sectarianism and hate infecting our national game remains the basis of a possible consensus. The imperative now is how to make it work.
The minister talked earlier about the importance of common purpose. It would help the debate if she would at least acknowledge that those who are expressing concerns about the bill in the chamber or elsewhere are not doing so because they do not want to address sectarianism. Impugning the motives of those who do not agree with her solution does not take us one step forward. I urge the minister, in the interest of consensus, to recognise that those who do not agree with her solution are not people who do not want to address the problem.
Sadly, a great deal of James Kelly’s speech undermined the very points that Johann Lamont is trying to make.
This is not easy work. If it were, successive Governments and Parliament would have tackled it successfully by now. However, just because it is not easy does not mean that it is not necessary. That work involves challenging the pessimism that pretends that this is just how football is, how it always has been and how it always will be. We must reject the politics of despair and the politics of aye been and offer Scotland the politics of hope.
I know that I will run out of time. I understand that I have only nine minutes.
You have 10.
Thank you. I want to run very quickly through some of the more key issues—I dare say that other things will come up in the debate.
The idea that there is no problem was mooted during the course of the committee’s evidence taking. I regret that there are people who think that this is not a problem, because it is a problem—that is important. We know that it is a problem. Sheriffs comment on it—even the clubs comment on it. Despite James Kelly’s characterisation of the situation, we have Rangers on the record in June saying that it supported and was encouraged by the Government bill that had been introduced. Only a couple of weeks ago, Peter Lawwell of Celtic made the very points that we are making about some of the chanting that goes on even on the club’s own side; he said that he was inundated by complaints from Celtic fans about what was happening. So, we are talking here over the heads of a very small minority of people who do not want their behaviour challenged to the vast majority of football fans, who are just as fed up with all the behaviour that takes place as are the vast majority of the people of Scotland.
Will the minister take an intervention?
No. I really need to get on.
Of course it is not just at football matches that we have to deal with this problem. There is a problem on the internet, which is being dealt with, too, because the poison is not just the words; there are real consequences for those who are threatened and intimidated.
I turn to the argument that the existing law is adequate. James Kelly talked about section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. I do not have time to go into detail, but I will give him five very good reasons why section 38 is not sufficient: it does not cover extraterritorial acts, which this legislation does; it does not include a public order test, which this legislation does; it does not include any reference to incitement to religious hatred, which this legislation does; it does not do the naming and shaming that this legislation does; and it does not provide the democratic leadership that this legislation does. I am afraid that the existing law is not adequate, which is a failure of us all in the past to get it right for the future. Some people may say that no law will ever be perfect. That may very well be true, but it does not mean that we stop trying.
There are a great many other issues to cover. James Kelly prayed in aid the Scottish Human Rights Commission to support the position that he was taking on the back of what it had to say. We are in constant dialogue with the commission and one would not have known from what James Kelly said that it actually endorses the aims of the bill. It has one specific concern about one specific subsection. James Kelly may put that look on his face, but I was talking to Allan Miller only this morning, so I can tell him that that is the SHRC’s position. It is important to put that on the record, because the SHRC is the body that this Parliament set up to comment on precisely such issues. We are in constructive dialogue with the SHRC about the single issue about which it has some concerns. It is important that that constructive dialogue take place. I am just sorry that there has not been more constructive dialogue in some other directions.
There are many things that I am probably missing out. We talk about clarity, which is improved by the bill. It will make a difference. The police have indicated that the situation is clearer now. They feel that the legislation is more reliable and gives them a better tool to use when they are confronting the behaviour of the fans who are causing the biggest difficulty.
On the basis of all the information that we have and given the support of the Crown Office, the Lord Advocate, the police and the SHRC and the on-the-record comments by the key football clubs, the Opposition parties are left in the interesting and curious position of being the parties that like to say no, whatever the question is.
We agree that there is an issue. We should agree with the Lord Advocate and the police that the current response is inadequate. As a Parliament, we should focus on creating the best and most effective measures that we can to give our hard-pressed police and prosecutors the tools that they have asked for so that they can help to remove the hate and threats that damage communities.
I welcome the chance to participate in this debate. I will seek to respond to whatever comments members make, but my hope is that the debate can take us closer to the Scotland that we want. I remind all members that the bill is in a process that is still open and that they still have an opportunity to be constructive about what they want.
I listened patiently to James Kelly for 10 minutes, but I did not hear one constructive comment about what he would do as opposed to what he does not want to do.
15:16
I am leading for the Conservatives in this debate in place of my colleague, John Lamont, who is on his way to New York to participate in Sunday’s marathon in aid of his local branch of the National Osteoporosis Society. Sponsorship of his run is still available.
In my substitute capacity, I welcome the debate, which is in some respects a continuation of the one that was held on 23 June and that which ended in such dramatic fashion with the First Minister bowing to the weight of public and parliamentary opinion and pulling the plug on what was a ham-fisted attempt to rush the bill through Parliament. It was hoped that the additional time for consideration that was thereby given to the Government, the Justice Committee and other interested bodies would result in an improved bill that would enjoy widespread support. However, as James Kelly’s amendment points out, that is far from being the case. The minister was somewhat unkind to Mr Kelly because, as I read the amendment, it seems to be absolutely full of constructive comments and suggestions. Perhaps the minister should study it a little more carefully.
In fairness to the Lord Advocate, I am pleased to note from the guidelines that he has published, which have already been referred to, that songs or lyrics that are sung
“in support of terrorist organisations”
or which glorify or celebrate
“events involving the loss of life or serious injury”
would be within the scope of the proposed new offences, as he would seek to apply them. That relates to a point that I made in the previous debate on this matter, which is that sectarianism, in the wider sense of the word and in the context of Scottish society,
“embraces attitudes and positions that are born out of the history of Ireland”—[Official Report, 23 June 2011; c 1001.]
and cannot simply be viewed in the context of religious hatred.
Will the member give way?
I will do so in a minute.
The very fact that, in his guidelines, the Lord Advocate has tried to present a more balanced approach to sectarianism should lead him and the Government to conclude that the aggravation provision that was enacted by Parliament in the Criminal Justice (Scotland) Act 2003, which concentrates exclusively on the religious aspect of sectarianism, is hopelessly lopsided and should be repealed.
The normal way of tackling an issue is to define the problem and then come up with an answer. However, the Scottish Government has actually run away from defining the problem, and it is not alone in having done so. The bill—at least the first part of it—is meant to focus on football-related behaviour and public disorder that is grounded in sectarian activities and hatred. However, we cannot even agree on what constitutes sectarianism. Some people maintain that it is exclusively founded on religious hatred and contempt, in particular for the Roman Catholic religion, and deny that there is such a thing as political sectarianism that is founded on the expression of support for republican and terrorist organisations. I do not agree with that in the context of Scottish society, but it is a pretty fundamental point.
However, instead of trying to address it, we dance around the issue and, in the bill, try to cover such behaviour in a wide-ranging, much-criticised and highly contentious catch-all provision to which the Scottish Human Rights Commission objects and which, if it were removed, would unbalance the whole bill in terms of the Lord Advocate’s guidelines.
Who would have thought, in the heady days of May, that we would see a banner displayed at a football match that read,
“SNP Weak on Criminals - Tough on Fans”.
How they must have winced at SNP mission control when they saw that one. I wonder whether its display would constitute grounds for arrest under the proposals in the bill.
In the context of the 2003 act, I note from the Lord Advocate’s guidelines that the statutory aggravation should not apply to an offence that is prosecuted under the provisions of this bill, should it be enacted. That is a sensible position, but it does not detract from the fact that the aggravation itself remains a lopsided and unbalanced measure.
Will the member take my intervention?
I am sorry. I beg Christine Grahame’s pardon.
I wanted to come in when David McLetchie quoted the Lord Advocate’s draft guidelines by referring to
“Songs/lyrics in support of terrorist organisations ... Songs/lyrics which glorifies or celebrates events involving the loss of life or serious injury”.
What he did not go on to say was that
“It should be noted that in order for a criminal offence to be committed under this offence, in addition to proof that the song/lyrics are threatening or offensive, it must be proved that the conduct was likely to incite public disorder.”
That is certainly an important caveat; it is like the “fear and alarm” caveat under breach of the peace law. Both must have an element that is likely to cause concern to the wider public.
The Law Society of Scotland has produced, for our benefit, a detailed critique of the bill. It says that the proposals will not add to existing law but will merely confuse the situation. The Church of Scotland makes the very good point that bad legislation is worse than no legislation at all. As we all know, the measure reeks, to be frank, of being yet another manifestation of the “something-must-be-done” syndrome. It is the desire to preach sermons from a political pulpit, which may all be very worthy and noble, but in a practical sense add nothing of value to the main body of our law and make its implementation and enforcement all the more problematic.
We should be wary of legislation that, in the broadest sense, impinges upon our liberty to associate, speak freely and voice opinions—even when they may be robustly or sometimes even coarsely expressed, and even if the thin-skinned may be offended or—as is more likely in the context of football—may claim to be offended.
The incorporation in the bill of a section that would protect free speech—as the First Minister has indicated will be done—will not make matters better. It will make matters worse because it will add to the confusing morass that the police, prosecutors and the courts will have to wade through before they can decide whether the conduct that has been complained of amounts to an offence.
I think that my time has expired, although I would like to say more.
It has expired.
Thank you for your patience and forbearance, Presiding Officer. We look forward to seeing what will happen at stage 2.
15:23
I thank Christine Grahame for her balanced resumé of the Justice Committee’s report. There has been some mention—but not a great deal—of the background to the bill. I will list a few reasons. There has been threatening mail, parcel bombs, hateful online messages, and a football manager was attacked at a game, which was screened around the world—someone was attacked at their place of work. That is on top of the usual mayhem for residents and embarrassment to the overwhelming majority of decent football supporters. Our postal workers, police and prosecutors have to deal with that.
The public expected the Government to act—as James Kelly said, there was a furore in the media—and it did act. Clearly, it acted too swiftly for some and the balanced approach that has been taken by the First Minister in extending the period of consideration of the bill was welcomed and played a great part in having the general principles of the bill adopted by 103 votes to five, which is something that seems to have been forgotten at later stages of the discussion.
This is a very specific bill, which deals with—
What has the Government done since it paused in June to try to win over the support of other parties?
I think that that is evident. James Kelly sat through the committee with me and he knows what has been going on, although he seems to have forgotten a lot of it.
The bill deals with offensive behaviour at football matches; it does not seek to cure social problems. Those matters will be dealt with in other ways, and education will be the key. The bill also deals with threatening communications. We have heard a number of members talk about public support for action—not least about the 91 per cent who, as recently as 4 September, strongly backed action to tackle sectarianism.
There has been detailed scrutiny of the bill. The minister appeared twice before the committee and answered comprehensive and detailed questions. Similarly, on the Lord Advocate’s guidance, I suppose that socially people often ask, “What if this happened?” and “What if that happened?” We should therefore be grateful for the draft guidance, which clarifies many of the issues.
John Finnie has mentioned the guidance. The Justice Committee convener and the minister referred to it, too. How will it be relayed to fans? Surely we will not stand at Parkhead and Ibrox handing out to football fans guidance from the Lord Advocate? How will we articulate to fans what is and what is not an offence?
That is for other people to decide in the communication strategy that will flow from the bill’s being passed—as I hope it will be. There will have to be a public education process. Guidance goes to the football clubs and, as Neil Findlay knows, the supporters are engaged with the football clubs.
The Lord Advocate, as the senior law officer, is someone to whom we should be turning for advice: we should also turn to the practitioners. We heard from the Scottish Police Federation representing the front-line officers who represent 98 per cent of all Scottish police officers; the Association of Scottish Police Superintendents, representing the people who largely make up the match commanders; and the Association of Chief Police Officers in Scotland, which provides the strategy. We also heard very compelling evidence from the British Transport Police, who relayed the effects of the travel chaos that is visited on the general travelling public by football supporters—of whom I am one. That compelling evidence removed any ambiguity about some of the effects of the legislation on travellers.
There has been some dispute about issues outwith the immediate curtilage of the football grounds, but the references are similar to those that are contained in the football banning orders, with which there have been no issues. I ask those who are unwilling to support the bill whether they are opposed to doing something about this problem. We hear that they are not, but are they opposed to helping the people who are tasked with the work—namely, the police officers? We hope that they are not. Police officers do a very demanding job, which includes defending decent football fans, our communities and the travelling public.
An awful lot could be said about the evolving nature of breach of the peace—the catch-all offence. The legislation is clear and the minister covered the additional aspects of it. We are not inventing anything through the reasonable person test. Police officers are called on day in and day out to exercise judgment about situations in which they find themselves.
I seek more information. Did any of the police evidence suggest that the police think that the measures would make it easier for them to police such events? If so, would they require more officers on the ground or could they do it with the same number or fewer?
You are in your final minute. Please finish your speech within the six minutes.
Police deal with additional legislation all the time and are confident that they can deal with this bill.
To sum up, I will refer to the three questions that I mentioned the last time we discussed the bill. Is it necessary? Clearly, it is. Is it legitimate? It most certainly is, and the human rights aspects were clearly laid out by the minister. Is it proportionate? I attend football matches and I have nothing to fear from the bill. There have already been welcome improvements in supporters’ behaviour. I hope that that will continue and that the provisions will not need to be used. The bill will bring added value. I hope that members will support it.
We are now very tight for time, so I would be grateful if members could stick to a tight six-minute limit.
15:29
It is not so long ago that Fergus Ewing, as Minister for Community Safety, told the Parliament that the SNP Government did not believe that
“a further strategy specifically on tackling sectarianism”—[Official Report, Written Answers, 5 February 2008; S3W-8846.]
was needed, yet here we are, two years later, debating the most illiberal bill that has ever been put before the Parliament—supposedly to address a problem that not so long ago the Government was complacently dismissing.
I am on record for criticising the then First Minister, Jack McConnell, and his Scottish Executive because their anti-sectarianism strategy was, although important and well intentioned, fundamentally flawed due to there being at its heart an implicit lack of appreciation of the impact of racism and sectarianism on the Irish community in this country in particular. The issue is not about there being two sides of the same coin. Each side has its own problems, which have their genesis in different sources, and they manifest themselves differently on each side. Unfortunately, that is clearly not apparent to the Scottish Government, whose anti-racism and anti-sectarian strategies still tend to ignore the distinct experience of the large multigenerational Irish minority in this country.
The bill fits into that guileless and simplistic continuum, and comments on the subject—from the First Minister down—clearly expose the fact that the Government has little understanding of the problem. Instead of seeing issues around football as being visible symptoms of religious intolerance, the bill seeks to identify football as the cause of religious division. Records show that in the 1790s only 39 Catholics lived in the city of Glasgow, but there were 43 anti-Catholic societies in existence, which had a total membership of more than 10,000, so although football undoubtedly provides the arena in which some overt sectarian conflict in Scotland is exhibited, in bringing forward the bill, the Scottish Government appears to be genuinely ignorant of the true nature of religious intolerance in this country, or else it is deliberately trying to use football to create a political smokescreen. Either way, the bill will not work, and it is much more likely to exacerbate the problem and heighten the antagonism that already exists between football fans than it is to offer any effective solution to it.
The member seems to be developing an argument that some parts of Scottish society are not protected. If he thinks that the law is not yet good enough, what changes to the bill does he propose that would make an impact on sectarianism in this country?
I would not make legislative change. I will come on to the changes that I would make.
I am proud to be a Celtic supporter, and I am proud of the fact that my team was founded to combine professional football with charity for the local Irish community in Glasgow at that time. At its inception, Celtic Football Club was supported by Michael Davitt, the great Irish nationalist—indeed, Fenian—leader of the Irish Land League. Many of the songs that are sung by Celtic supporters today refer to the tradition from which Davitt came. Equally, many people of Scottish, Ulster Scots and/or British Protestant backgrounds see their songs as being expressions of their religious, political and cultural inheritance, which is as much of a source of pride and distinction to them as the Irish nationalist disposition is to many from the Irish community in this country.
When the First Minister claims that he wants to stop people reliving 1690 and 1916 on our streets, I ask him to reflect on that glib sentiment and to ask himself how prepared he would be to consign William Wallace and 1297 or Robert the Bruce and 1314 to the dustbin of history, and to set aside the celebration of his culture and heritage just because it may give offence to someone.
This is one issue where a one-size saltire does not fit all. Many observers believe that the bill will be no more than a victims charter that invites fans to take offence. We know from our mailbags that football fans are already spying on rival fans and reporting offences, so although the Government claims that the bill is a means by which religious intolerance will be tackled, it is actually the Government that is showing intolerance. It is somewhat ironic that it is the vilified football fans who have best articulated the case against this draconian and illiberal proposed legislation.
Demonising and criminalising fans of any club for their beliefs shows astonishing intolerance by the Government of behaviour that does not conform to its narrow view of Scottish society. The bill is not the solution. Education, the promotion of understanding and the development of mutual respect between the diverse traditions in Scotland is the route that we should pursue. I do not want my religion and culture to be tolerated; I want it to be celebrated.
Sectarianism is a strand that runs through our national tartan; it will take a skilled and thoughtful hand to unpick that thread. The bill is not a scalpel to be utilised in that task but a blunt set of shears that will rip through the fabric of Scottish society and leave it tattered and torn.
Parliament is, rightly, unanimous in its opposition to sectarianism but it is not united on the desirability or potential efficacy of the bill in dealing with the historical societal scars that have been left by centuries of religious division and hatred.
I urge the Government to think again about the bill. In the words that are sung loudly and proudly at Celtic Park, “Let the people sing.”
15:36
It has been fascinating to be a part of the debate from within the Justice Committee. Listening and reading differing views has shown just how passionate people are about the subject.
Ninety-one per cent of the public agree that stronger action needs to be taken to tackle sectarianism and offensive behaviour associated with football in Scotland.
Will the member take an intervention?
Not at the moment.
I am heartened that so many people within the game of football support the Government’s drive to stamp out the offensive behaviour that has blighted our national game for so long.
During evidence sessions in the Justice Committee, I found it odd that some representatives of football supporters trusts believe that there is no problem. One said:
“Nothing that happened last season—or, indeed, in any recent times—justifies separate legislation that is aimed solely at football supporters.”
At the same meeting, another said that
“the debate on the bill has been conducted in an air of slight unreality”.—[Official Report, Justice Committee, 6 September 2011; c 157.]
Given the actions taken against some of the senior management of Celtic Football Club and a former member of the Scottish Parliament, as well as recent comments by club officials, I find those statements strange to say the least.
The member said that 91 per cent of the public support action on sectarianism. Does he agree that 100 per cent of people in the chamber want to address the problem of sectarianism, particularly those of us who are close friends of Trish Godman, who had to deal with the problem that he mentioned? Does he accept that, in order to progress, we should start with the basic principle that everybody here wants to tackle the problem but some are not convinced that the bill is the way to do it?
I would like some alternatives to be put forward before I can accept that.
Graham Spiers, a journalist from The Times, said in evidence to the committee:
“There has been some denial and supporters groups have had to be dragged to the table kicking and screaming to get certain songs banned.”—[Official Report, Justice Committee, 6 September 2011; c 181.]
The issue of self-regulation, and who is ultimately responsible for the behaviour of supporters, is brought up. All football clubs have been involved in various initiatives over the years, and they should be commended for that.
There are problems, however. UEFA has disciplined Rangers Football Club on more than one occasion because of the actions of its supporters. Why, then, has the SFA not used its powers as a national association to do more and to discipline Scottish clubs for similar offences? After all, offensive behaviour at football matches has been around for decades. In his evidence, Graeme Spiers condemned the football authorities:
“The Scottish football authorities have been cowardly about this issue. They have been scared to act. Nothing would make supporters stop being bigoted in the arena more than the thought that their clubs might be docked points.”—[Official Report, Justice Committee, 6 September 2011; c 196.]
The reason, of course, is that the SFA does not have the power to do that. It gave the power of discipline away to the Scottish Premier League, which is a private group of businesses that will never hand out severe discipline because it would only hurt them.
I am heartened by comments from officials of the SFA and SPL that they are fully signed up to the eradication of the offensive behaviour that is seen around football and that they support the new legislation. Perhaps a new dawn awaits. However, I hope that the issue of who really runs our national game is discussed at a future meeting of the football joint action group.
Some witnesses were concerned about free speech and the effects of the European convention on human rights. I agree that those issues are vital in any discussion, and they will be addressed as the bill progresses. However, passion for our national game has been replaced by the offensive actions of a minority of supporters that should not be tolerated.
There is no doubt in my mind that the views of the Lord Advocate and the police are correct. There is pressure on breach of the peace law, and obtaining convictions is becoming more difficult. As the minister said, the bill would give the police the power to prosecute fans who have shamed Scotland abroad, which they are currently unable to do.
At present, there is no incitement to religious hatred offence in Scotland. The bill will change that, and we will be able to name and shame the perpetrators who shame our national sport and country. It should be remembered that the actions that are taken must be in the context of the situations that police officers face. The police and law officers believe that that can be done, and I agree with them.
Every political party that is represented in the Parliament has said that it is committed to ending the scourge of offensive behaviour at football matches. Indeed, much of the discussion in the Justice Committee has shown that there is a huge amount of agreement on many issues. It is therefore disappointing that Labour lodged the amendment.
The bill is the first step in an on-going process that will bring an end to the shame that we should have addressed many years ago. I urge those who oppose it to ask themselves what their alternative is. It is clear that their view is a minority one, not only in the chamber but throughout the country.
15:41
I agree with the minister that action is necessary and that we need to decide the way forward.
I am the only MSP with five years of direct experience as a match commander with Strathclyde Police. As a young policeman, I was on duty at Ibrox on the day of the disaster, and I later learned the lessons from the Bradford, Heysel and Hillsborough disasters. With many others in the service, I put together the procedures that are now used to manage and police football events. As a result, football matches and their surrounds are not seen primarily as opportunities to exercise law enforcement; rather, they are firmly events at which public safety is focused on for tens of thousands of decent people who seek to enjoy the sporting event. That is not surprising.
The onerous responsibilities that are placed on match commanders, their staff and club stewards are faced on Tuesdays, Wednesdays, Saturdays, Sundays and even Mondays now throughout the season. We should be extremely careful to ensure that we do not unwittingly destroy the good work that has been done over the past 20 years.
Does the member accept that public safety can be compromised by behaviour that is likely to provoke public disorder?
Of course I accept that, and I hope to address that matter.
The head of security at Rangers Football Club, David Martin, reminded the Justice Committee that it is recognised throughout Europe that Scottish football demonstrates best practice in safety and crowd conduct, to the extent that UEFA uses Scottish officials to spread the good word elsewhere. We know that the way in which the police and stewards interact with vast crowds can have a direct impact on outcomes. Against that background, I demur from supporting the introduction of new legislation.
I abhor sectarianism and, indeed, any form of hatred, but there is an absence of clarity about what we are trying to do with the new law. Roseanna Cunningham’s evidence to the committee and her media responses, including in a transmitted interview that she gave when she was in opposition and in which she apparently questioned the wisdom of such laws, further confused me.
In the committee, the police and later the Lord Advocate, who often quoted police evidence, said that new law was needed, but where is the evidence on the current deficiencies? No statistics were provided regarding failed charges and cases or how many offenders had escaped justice.
What precisely is the point of the bill? The first announcements said that it was about sectarianism—bold and stark—and that the proposal was alleged to be supported by a chief constable, the old firm clubs and others. However, at committee we heard from club representatives that the first they knew of the proposals was from the newspapers. In addition, we now see Stephen House distancing himself somewhat, because he reported to his police authority last month that his original intentions in seeking a meeting with ministers were around the violence associated with old firm matches. In fairness, he added that his force was supportive of Government attempts to deal with bigotry and hate crimes, although any new legislation would still leave his officers dealing with violent attacks and domestic violence.
I wonder whether this point could help us understand the dilemmas experienced by Chief Constable House and, I think, my friend the convener of the Justice Committee. In introducing the proposed measure, she explained that the Government had felt that the proposed law had to be introduced because of the parcels that were sent to some people. She said that that happened because of their faith or which team they support. Can I suggest that those are not one and the same but quite different and that they require different approaches?
Of course I accept that. It is also clear that in the interim period, as we awaited the arrival of the new laws, offenders were successfully prosecuted throughout the summer for sectarian offences.
What is the way forward and what is the action plan? We should hold progress on the bill for 12 months to give the football authorities, under the auspices of the joint action group, the responsibility for bringing good conduct to their clubs; to gather statistics and analyse the scale and nature of the problem and the responses, particularly football banning orders, which have been underused up to now; and to ensure that the sports authorities deal with sectarian behaviour by withdrawing season tickets, closing turnstiles for matches or, as in Turkey last month, having only women and children spectators, or by imposing fines and, what is worst of all, the deduction of points.
Football pundits at committee described the SFA response as cowardly. That response has to change. Members will know that some clubs—led by Aberdeen Football Club—are already in the era of games being played with no police presence, which is the future.
We should ensure that the money raised from fines is given to third-sector groups such as Nil by Mouth, to support initiatives such as Glasgow City Council’s sense over sectarianism and to monitor on-going progress and cause a report to come back to Parliament that assesses progress and options at the end of the season.
Members should know that prisoners in our prisons from across the so-called divide live and watch old firm games together without sectarian problems. Why?
You must close, please.
It is not because of the threat of arrest—they are already in jail—but because of the knowledge that the authorities will withdraw the privilege of seeing the match and that that will impact on other prisoners. If it works in prison, why should it—
Thank you very much, you must close.
15:48
Let me make it clear from the start that I unite with everyone else in the chamber to condemn sectarianism and to strive to bring about an end to bigotry and intolerance. There should be no place for it in our country.
The committee heard evidence that tackling sectarianism is not something that we can do in isolation from the top down. Lasting change needs to come from within our communities. Paragraph 36 of the committee report states:
“Evidence from organisations working with children and young people has underlined that both the problem and the solution start early. Attitudes towards ‘difference’ and ‘otherness’—both negative and positive—are ingrained from an early age. Parents and other early-years role models have a crucial role to play in helping nurture positive attitudes and respect for difference. So does education.”
Law making should be a measured and considered process that takes our citizens with us through detailed scrutiny and evidence taking. It ought not to be driven by a desire to seize the headlines. The Scottish Parliament has built a reputation for being open and consultative. Our procedures have been widely recognised as a good way to do business—until now.
There has been widespread criticism of the something-must-be-done approach that the Scottish National Party has taken on the matter. It was wrong to try to legislate on such a complex matter with emergency legislation. That is the real root of the problem: hastily drafted legislation introduced in the first few weeks of a new Administration. I am glad that in June the First Minister was forced to back down and give ground, because it gave the Justice Committee time to have a limited consultation and evidence taking. That evidence has been reported to Parliament today, and our report exposes the extent of the dangers inherent in the bill.
I thank everyone who gave evidence to the committee and the clerks who assisted us so ably. We had many insightful contributions from organisations such as Nil by Mouth and Action for Children Scotland that have a great deal of knowledge about the impact of sectarianism. There were measured and thoughtful responses from scores of organisations and individuals representing a good cross-section of Scottish society. Is the Government really saying that their views count for nothing and that the only voices worth listening to are those of our police and prosecutors?
It is plain that the bill is ill thought out and will do little to address the underlying problems associated with sectarian behaviour. It strays blithely into restrictions on freedom of speech and verges on hate thought crime. Those are compelling reasons not to support the bill, which is why I am particularly annoyed that the minister chose to paint those opposed to it as obstructive and partisan. Scots rightly expect a much more constructive and reflective response from their Government when such fundamental issues are raised.
Only committee members who belonged to the Government party felt able to lend their qualified support to the bill. All the other committee members have concluded that it is unnecessary and unworkable and will have far-reaching and unintended consequences. They do not believe that the Scottish Government has made the case for the necessity of a new offence; instead, they believe that a more proportionate response to the problems in Scottish football would be to give more consideration to the use of existing laws, enforced effectively and combined with other non-legislative measures.
Members should note that in the past six months there has been a marked increase in prosecutions under the existing legislation for both sectarian chanting and internet abuse. The minister told the committee that the new offence will not tackle hugely different behaviour:
“we are turning breach of the peace into a more concrete offence so that people are clear about what is being tackled.”—[Official Report, Justice Committee, 21 June 2011; c 17.]
The evidence we heard contradicted that. Professor Devine said:
“the issue of offensive behaviour is by no means clear cut. Throughout the process, members have continually asked witnesses to define such terms and, in my personal view, the answers have been intellectually unconvincing.”—[Official Report, Justice Committee, 13 September 2011; c 242.]
The committee report is frank. Paragraph 148 says:
“uncertainty still surrounds some key issues”.
Paragraph 149 says:
“the Committee notes that it is also important to ensure that the legislation itself is robust”.
Paragraph 163 says:
“The Committee invites the Scottish Government to reflect on concerns that the ‘catch-all’ test for offensive behaviour set out in section 1(2)(e) may be too expansive and may raise concerns in respect of adherence to freedom of speech”.
Paragraph 195 says:
“the Government should consider whether the parameters of the offence ... need to be made clearer”.
Finally, paragraph 196 asks
“whether there is scope to make the relevant provisions any more clear”.
The Government considers that the lack of clarity in the bill can be addressed by the Lord Advocate issuing guidance on how it should be interpreted. The trouble with that approach is that guidelines can change. Relying on that kind of soft law to clarify legislation is a dangerous road to go down. Scots deserve better and they have the right to understand what would constitute an offence.
The catch-all nature of section 1(2)(e) that refers to
“behaviour that a reasonable person would be likely to consider offensive”
has caused many to raise concerns, as have the religious hatred provisions. Shelagh McCall of the Scottish Human Rights Commission told the committee:
“Offensive speech is protected by article 10 of the European convention on human rights. The European Court of Human Rights in Strasbourg and domestic courts have repeatedly said that not only popular speech but offensive, unpopular, shocking and disturbing speech is protected”.—[Official Report, Justice Committee, 20 September 2011; c 279.]
At times during the evidence taking it felt like we had strayed into the pages of “Alice in Wonderland”. The bill appears to enable a conviction for offensive behaviour even when no one is there to be offended. A person may be regarded as having been on a journey to or from a regulated match, and therefore subject to the new legislation, whether or not they attended or intended to attend the match and whether or not their journey included overnight breaks.
We were urged not to worry about ECHR compliance, because the Lord Advocate assured us that he cannot act in a way that is incompatible with ECHR. That is a circular argument if ever I heard one—we might keep the Supreme Court busy on that.
The Government has a majority, so it can pass this law, but there is a real risk that it will do more harm than good. It has already alienated people. Does the Government have the sense not to press on? I urge it to put its efforts instead into practical measures that would make a difference.
15:54
I appreciate the chance to speak in this incredibly important debate.
Before getting into the substance of the bill and addressing some of the issues that it raises, I will make an observation. I have watched various hustings between the three Labour leadership contenders, and it has been heartening to hear that they all recognise that their defeat in the previous Holyrood election was down not only to the SNP’s excellent record—I am paraphrasing slightly there—but to how poorly Labour performed in opposition.
Malcolm Chisholm noted in a recent article that many of Labour’s arguments
“can be brushed aside as Labour once again opposing for opposition’s sake”.
I could not agree more.
For the sake of accuracy, Humza Yousaf should point out that I accepted that there was a legitimate role for strategic opposition on a whole range of issues, of which this may well be one.
That is a position for Labour to take.
I could not agree more with Malcolm Chisholm’s statement, given that the amendment in the name of James Kelly before us today does little to show that anything has changed.
I have no doubt that, as Johann Lamont said, Scottish Labour and every other party in the chamber want to tackle the problem head on. We all view sectarianism as a cancer on our society. In addition, we all want to be able to attend football matches, go to pubs to watch football games and travel to and from stadiums without having to listen to a chorus of offensive chants that are sung to target other people’s nationality, race or religion.
Will the member take an intervention on that point?
Nothing would excite me more.
Humza Yousaf seems to suggest that he does not want to listen to offensive chants and songs. However, he has written to a number of members of the public to say that he does not have a problem with offensive songs being sung at football matches. Is that still his view? Will the legislation still allow offensive songs to be sung at football matches?
I suppose that, as I was reading selectively from Malcolm Chisholm’s article, I should forgive Hugh Henry for reading selectively from my words. I was talking about banter and unpleasant singing, not bigoted singing. I resent the accusation that I would somehow stand up for bigoted and sectarian singing, because I think that it is deplorable.
I am disappointed with the Scottish Labour amendment precisely because it is a do-nothing amendment. It says that the case has not been made but it does not say how, and it claims that there is confusion but does not say where. Throughout the whole process, including today’s debate, Labour has failed to bring forward a single amendment to the bill or any useful suggestions.
Every police and law enforcement official who has come before the Justice Committee has confirmed that new legislation is needed because of gaps in the law and the effect that legislation could have on shifting public attitudes. While I appreciate his experience on the matter, it is particularly astonishing to hear Graeme Pearson, a former deputy chief constable, contradict the opinion, advice and pleadings of his former colleagues who ultimately have to deal with the aftermath of such despicable behaviour week in and week out. There is no doubt in my mind that had Mr Pearson been in his previous employment—
Will the member give way?
I need to crack on.
If Mr Pearson had still been in his previous employment, he would have been the first one to demand the new legislative powers.
I have repeatedly said in the Justice Committee that there is not a police officer in the land who does not call for more powers or want to have more legislation.
I gave an outline of an action plan, so while we may not have come up with any amendments to the legislation we have certainly come up with suggestions. We hope that the Government will consider them in the positive spirit in which we have offered them.
We agreed on the principles of the legislation at stage 1. Now we need amendments and positive construction.
After last season’s madness, the members of all parties were united in the belief that something had to be done, none more so than lain Gray, who said that he
“accepts the need to legislate on sectarianism.”—[Official Report, 6 October 2011; c 2588.]
The honest truth is that those of us who attend football matches, particularly in Glasgow and Edinburgh, know that some of the singing that goes on around us is vile and toxic and often causes—or has the potential to cause—public disorder. We have become acclimatised to it, and as a result we refuse to challenge it. There is no doubt that, as a society, we need to shift public attitudes to make the acceptable unacceptable.
The Parliament has passed similar laws in the past, such as the Emergency Workers (Scotland) Act 2005. However, the amendment that the Opposition party has lodged rests on the belief that existing laws should be used to tackle the behaviour in question, which flies in the face not only of what lain Gray has said but, more importantly, of what the police and law enforcement agencies have pleaded for. To suggest that it is simply an issue of better enforcement of existing laws is an insult to our police and those who serve to uphold the law.
We have heard the ridiculous suggestion from some members that a list of songs should be added to the bill to provide clarity so that football fans would know what behaviour will be criminalised. Why are we happy to accept that context and police discretion are vital for breach of the piece but not for this piece of legislation? No one would bat an eyelid if I were to make monkey noises and gestures with my young nieces and nephews, but everybody would understand the intention and seriousness of the same noises and gestures if they were made at a football match in front of a black player.
We still have the committee amendment stage to come. Today’s debate would have provided the perfect opportunity for others to provide constructive and clear suggestions. However, as the Opposition amendment stands, it is difficult to come to any conclusion other than that Scottish Labour is opposing the bill for opposition’s sake. Yes the issue is difficult, yes it is sensitive and, yes just about any action that we take on it will no doubt be opposed in some way, shape or form by somebody. However, that alone should not scare us away from taking decisive action.
It was famously said that if one wishes to avoid criticism, one should say nothing, do nothing and be nothing. The Government has shown that it is open to amendments. I urge my colleagues across the chamber to treat the issue with the seriousness that it requires. Let them lodge specific amendments and let us reach consensus on an issue that deserves nothing less.
16:01
I welcome the committee’s report. It seems a long time since stage 1, when most members accepted that there is a problem that needs to be addressed through legislation. However, we are where we are.
Some critics say that the existing legislation means that there is no need for the bill. For example, in its evidence to the committee, the Law Society took the view that section 1 of the bill does not improve the common-law offence of breach of the peace, which, as we now understand it, requires a public element. The Law Society believes that breach of the peace, together with section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, which was passed to deal with situations in which there is no public element, should be sufficient. Although I do not doubt that there is an overlap—common-law breach of the peace and the offence in section 1 proceed on the basis that they are judged by the effect of the accused’s behaviour on others—there are differences. For example, section 38 of the 2010 act also requires intention, and a defence could be that the accused did not intend to use threatening and abusive behaviour. Also, section 38 does not make a link to the likelihood of inciting public disorder.
In addition to the issue of intention, as the Lord Advocate says, whether behaviour is likely to cause fear or alarm to a reasonable person is an objective test, and evidence of actual fear and alarm is necessary. That introduces hurdles that are not part of section 1 of the bill. Therefore, although it may be true that section 38 of the 2010 act and the common-law offence of breach of the peace together cover the majority of situations that section 1 may be seen to address, it is wrong to assume that they cover all situations. I am happy to accept the Lord Advocate’s comments in that respect.
When James Kelly recalled the Lord Advocate’s appearance before the Justice Committee, at which he commented on what songs might or might not be caught by the bill, Mr Kelly did not mention two words that were in the Lord Advocate’s speech: “circumstances” and “context”. Those two words are also in the Lord Advocate’s guidelines, if Mr Kelly cares to read them.
Even if I am wrong—even if the Lord Advocate is wrong—and the critics are right that section 1 adds nothing to the existing legislation, that takes no account of the transformational aspect of legislation.
Can the member tell us which of the convictions that were secured during the summer would have used the new legislation?
I am not sufficiently familiar with the specifics. The minister might provide that information later if the member requires it. I am not sure which convictions he is referring to.
As the Lord Advocate said:
“Legislation can be transformational. ... it can change society’s behaviour and its attitude towards behaviour, and that should never be overlooked.”—[Official Report, Justice Committee, 20 September 2011; c 309.]
As Dr Kay Goodall said in her written evidence:
“The decision to create new legislation, even where it overlaps with existing law, can be justified. Creating specific named offences can aid public discussion and encourage public support. Doing this also makes it easier in practice to monitor reporting, recording, prosecution and conviction of the offences.”
Will the member give way?
I would like to press on.
Given the Lord Advocate’s comments this week on data capture and, in particular, his answer that under the current law it is not possible to capture the specific type of conduct that is libelled in a breach of the peace case or under section 38 of the 2010 act unless it is specifically libelled, Dr Goodall’s comments have some resonance.
The Church of Scotland rightly said:
“Law works at its best when the majority of the population think that it represents a collective will”.—[Official Report, Justice Committee, 22 June 2011; c 82.]
Let us remember the opinion poll that was taken in September: 89 per cent of Scots believe that sectarianism is unacceptable in Scottish football and 91 per cent agree that further action is necessary.
Will Roderick Campbell give way?
No, I would like to press on.
If we were to abandon the bill now, as Opposition members seem to think that we should, that would send the wrong message to Scottish society.
I welcome the Government’s intention to consult on extending the protected categories to include age and gender, which are the missing protected categories from the Equality Act 2010. I also welcome the Government’s commitment to amend the provisions on travel to and from football matches and to clarify provisions on matches.
I share the committee’s concerns about the impact that the catch-all test in section 1(2)(e) might have on freedom of expression and speech under the European convention, but I am glad to note that the Scottish Human Rights Commission is continuing discussions with the Government on that section.
On songs and chants in support of terrorism and terrorist organisations, I note again the Government’s response that such songs and chants, which are offensive to any reasonable person, should be caught by the bill if they are likely to incite public disorder.
The Government has said that it recognises the need to assist the public in understanding the scope of the offence and will seek to clarify it in a variety of ways. That is an important part of the education process. We need to press on with that if we are to go forward. I am also pleased that the Government has some evidence of self-regulation by football crowds. Long may that continue.
In an ideal world, the committee could have taken evidence on the operation of section 38 of the 2010 act in relation to the proposed offence in section 5. In any event, however, we know that section 38 is not specifically directed at incitement to religious hatred and, unlike the situation south of the border, we currently do not have such legislation.
I am pleased by the Government’s acceptance of the need for a specific, declaratory section on freedom of expression. It is a sensible move. We need to make it clear that freedom of expression is not under threat.
Legislation is only part of the answer, but let us try to work together to make a better bill rather than abandon it altogether.
16:07
Religion, sectarianism and bigotry are a political minefield, and I have no doubt that all the speeches in the debate will be scrutinised carefully by observers. However, I have to take part because it would be a dereliction of my duty not to. I cannot sit back passively and watch as the bill proceeds, because of its potential to criminalise many impressionable, inexperienced, mostly young men in my region and my country.
The bill is my first experience of seeing legislation progress through the Parliament. I have to say that it has not been pretty to watch. It appears to be a knee-jerk reaction in response to events at one football match. That is not to say that sectarianism is not a blight on our society—of course it still is—or that we should not seek ways to tackle that blight. Of course we should, but is the bill, with its narrow focus on football, the correct way to go?
Before the summer recess, the minister told us that the bill simply had to be passed before the beginning of the football season or there would be serious problems ahead. We were told that those who did not support it were soft on bigotry and playing into the hands of those who spout prejudice. For many members from all parties who have a lifelong commitment to equality and have fought against class, gender and racial discrimination all their lives—whether Mr McLetchie in the law, Mr Harvie in the third sector or many of the trade unionists in the Labour Party—that is nothing short of an insult.
All through the debate in June, SNP member after member slavishly tucked in behind the minister only for the First Minister to leave them high and dry at the last minute when he saw the mess that he was in. I guarantee that, if the Labour Party was ever foolish enough to try to introduce such a proposal, Labour members would have the courage and the integrity to speak up.
Will the member take an intervention now?
Certainly.
Mr Findlay should at least give me credit—I think that I was the first person to say publicly that the bill should not be emergency legislation and that it should follow the normal track.
Will Mr Findlay please advise the Parliament whether he opposes the bill’s second part, which is on threatening communications? I hear his arguments about the first part, but what about the second part? Nobody is addressing that.
We will come on to that.
Christine Grahame nearly criticised the First Minister earlier in the process but did not quite do so. Did we see the behaviour that I described from anyone in the SNP? No. Its members gave the minister unquestioning support, despite the bill’s obvious flaws. I remind SNP back benchers that they are here to represent their constituents and to hold the Executive to account as much as we are. They are here to make good legislation and not to be sycophantic cheerleaders for the Government, no matter how badly conceived any proposal is.
Following his election victory, the First Minister said that the SNP did not have a monopoly on good ideas and that it would govern by consent, so why are elected members from all Opposition parties who raise legitimate concerns about the bill’s practicalities derided and dismissed, whereas leaders of the Catholic church—for the record, that is my church—who raised similar concerns were treated to caramel logs and Tunnock’s teacakes at Bute house? I congratulate religious and civic leaders on their role in helping us to force the Government to give the bill more time, but talk of governing by consensus rings hollow when all the issues that other parties have raised have been dismissed as opposition for opposition’s sake.
Will the member take an intervention?
No, I want to crack on, as I do not have much time.
We should address sectarianism in society. The McConnell Administration did very good work on that; Nil by Mouth, Young Scot and youth groups also do great work. Our schools up and down the country work collaboratively with neighbouring schools. We will tackle sectarianism substantively through education and cultural change and not by extending class prejudice and demonising working-class football supporters. That is what is happening—the bill is an attempt by middle-class commentators to impose their view of the world on a group of people whom they deem to be boisterous, crude, aggressive and distasteful. Classing all football supporters as bigots seems to be fair game. That is an insulting form of prejudice.
Why should legislation set offensive behaviour solely in the context of football? If people are offended and are in a state of alarm or fear through another’s actions, do we not have legislation to cover that already? The bill will increase problems and encourage football fans with ulterior motives to accuse rival fans of committing an as yet undefined offence.
The punishments are clearly disproportionate, and freedom of expression issues arise, too. Members who are old enough might remember the classic “Not the Nine O’Clock News” sketch from the 1980s in which a racist police officer is berated by his boss for his overzealous record of arresting a man who turns out to be black. The list of hundreds of heinous offences included the charges of walking on the cracks in the pavement and loitering with intent to use a pedestrian crossing.
Mr Findlay, you need to conclude.
In the same vein, we were treated to the comedy talents of the minister, who advised the committee of the new offences of singing the national anthem and making the sign of the cross in an aggressive manner. This is like some tinpot dictatorship where the national anthem could be outlawed and carrying out a symbolic Christian act could have someone in the pokey.
Mr Findlay, you really need to conclude now.
When the law is beyond satire, the law is an ass.
16:14
No matter what people’s views on the bill are, Mr Findlay’s speech has done more to polarise the debate and divide society than anyone else’s speech has. He should think about that.
I will tell members where I am with the bill: it is challenging. I will tell members where I expected to be: I had expected to prepare for a raft of amendments from Opposition parties that I would pore over and on which I would listen to reasoned arguments. What I genuinely do not like about the amendment is that it says, “Let’s kill the bill off now.” That is not responsible, which is why I cannot support the amendment.
If we are honest, the bill is challenging not because of how it is drafted—if there are ways to improve it, let us hear them, as I genuinely want to be constructive on that—but because of the subject matter. However, the sensitivity on the issue is not a reason not to act. I would rather take society in a direction that I believe in and towards a Scotland that I want, even if it means having to walk on eggshells, than not take a single step to make progress.
Will the member take an intervention?
I want to make progress, but I will take an intervention later if I can.
We have had a debate about what some people think are the negative aspects of the bill, but I want to talk about positive aspects. I begin by listing some of the existing legislation on the issue. I am not an expert on that, so I got the information from the Scottish Parliament information centre briefing on the bill. We have the common-law offence of breach of the peace; section 38 of the Criminal Justice and Licensing (Scotland) Act 2010; the Public Order Act 1986, which is used when there is a racist element; section 74 of the Criminal Justice (Scotland) Act 2003; and section 96 of the Crime and Disorder Act 1986. If somebody quizzes me on those provisions, I will fail, but I know that none of them is specific to the offensive behaviour at football matches that the bill tries to address. None of those other pieces of legislation shines a focused light on the specific problem that we have at football matches and in wider society.
I will not quiz the member on those provisions, but does he acknowledge that many successful prosecutions have been made under them and that today’s amendment states that we should give greater consideration to what is already on the statute book?
I thank the member for that intervention, as it illustrates my point perfectly. When a person is convicted under those pieces of legislation, that is not recorded as a football-focused public disorder crime. The new legislation will let us correlate data about offenders. That dossier will be important in considering measures such as football banning orders and how to tackle the problem more seriously.
Will the member give way?
Will the member give way?
I want to make progress, but I will take one more intervention. I will take one from Margo MacDonald, with apologies to Patrick Harvie.
How are we to define objectively the term “offensive behaviour” when standing at a football ground? One person is offended by swearing and one is not. In my little corner of my football ground, I tell people not to swear because I find it offensive—and they tell me other things.
I am sure that the member does that. She gets to the crux of the matter, but the other pieces of legislation that I highlighted have similar issues and challenges. We have to consider the guidelines, have a test of reasonableness and build in a bit of common sense, just as has to be done in relation to all the pieces of legislation that the Tories and others want us to use more effectively.
A second positive aspect of the bill is the important provision to enable the conviction of football supporters for misconduct abroad. I will talk about issues to do with Rangers supporters abroad although, if I have time, I will mention comments from Celtic supporters, to try to be as balanced as possible. In 2005-06, UEFA fined Rangers after a match with Villarreal abroad. That was for the breaking of a team bus window but, at the time, UEFA said that the discrimination in the songs that Rangers supporters sang was a Scottish problem and that it would not take action because Scottish society should do so. If we fast forward to 2006-07, we find that Rangers were fined €12,000 after a game with Osasuna in Pamplona after evidence was found on YouTube. UEFA changed its approach. It no longer said that Scotland should deal with the issue; it decided to step in and deal with it. On 10 March 2011, charges of discriminatory behaviour and a €40,000 fine were upheld in relation to a match against PSV Eindhoven.
I stress two points. The vast majority of football supporters, including travelling Rangers football supporters, behave impeccably. The reason why I make the point is that we currently have no powers to shine a light on the behaviour of Scottish football supporters abroad, no matter which club they support. I am not willing to have UEFA act when Scottish society and the Parliament can do so. We have a responsibility to do that. That is a positive aspect of the bill.
I have been lobbied quite a lot about a discussion between Christine Grahame and Professor Devine at the Justice Committee on the distinction between political views, support for terrorist organisations and religious sectarianism. There was a feeling that the bill would target Celtic supporters more than it would target other supporters. I have read that debate and sought clarification on it, and I can say that that is not the case. If I thought that the bill was designed to target one set of supporters over another, I would not support it. The bill is not about targeting supporters but about targeting the problems of discrimination, bigotry and sectarianism in Scotland. Even at this late stage, I hope that the Parliament can come together to do that.
16:20
There is no doubt that sectarianism is a pernicious evil. As someone who was at the receiving end of sectarian behaviour when I was growing up, I understand what it must be like to be at the receiving end of racist or homophobic behaviour or other behaviour that results from prejudice and discrimination. It is not pleasant and we should tackle it.
To put the debate into context, the Scotland that my children have grown up in is different from the Scotland that I grew up in, so we have to keep a sense of proportion when we seek to address such problems. When I look at the bill, I am not quite sure whether we are tackling sectarianism or offensive behaviour at football matches. Bob Doris ended his contribution by saying that we should be tackling discrimination and bigotry wherever it arises, but much of the discussion has been about tackling offensive behaviour.
I do not know whether it was Christine Grahame or one of the other SNP members who said that the issue is about two football clubs. No, I am sorry: sectarianism is not about two clubs—[Interruption.]
Members should check the record; it will be on the record.
It was Margo MacDonald.
I am sorry; it might have been Margo MacDonald. I apologise if that is the case.
Will the member give way?
No, I am sorry.
Sectarianism is not just about football and it is not just about two clubs. It is about the accountancy firm that asked me what religion I was when I went there for a job. Sectarianism is about the middle-class golf clubs and bowling clubs that will not allow people of certain religious persuasions to become members. That is the type of sectarianism that we need to root out across Scotland. It is not just about football fans.
Much of what we are addressing today has been predicated on the so-called game of shame. I was at football matches in the 1970s when there was real shame, fear and violence, when hundreds of people were throwing bottles, cans and other implements at the so-called opposition and they were landing on their own team’s fans. People were being led out with their heads split open and blood streaming down their faces. Hundreds of arrests were made at football matches in those days. That was a real problem and we dealt with it.
At this game of shame that we hear about, three people were sent off for bad behaviour on the field. When we look at their names, we see that two of them had no relationship to sectarian backgrounds in the west of Scotland; they would probably not know what we are talking about.
Will the member take an intervention?
No, thank you.
Two people on the touchline—a manager and an assistant manager—squared up to each other. Somehow that contributed to the game of shame but, just a few weeks earlier, when Craig Brown confronted another official, that was nothing to do with sectarianism; it was just bad behaviour. Half of the arrests made at the game of shame were for smoking in the toilet. Where is the sectarian game of shame that we talk about? It was bad behaviour by well-paid professionals.
Will the member give way?
I will quote Humza Yousaf and then I will let him in. He criticised me for being partial. I am sorry, because I should have quoted more of what Humza Yousaf said. He said:
“football fans can be as unsavoury and offensive as they like to each other - as unpleasant as that may be - without fear of arrest.”
That is exactly the point. I hate to drag Mr Henry back to the bill, as nice as it is to hear his views about matches that he has attended in the past. However, the point is that fans can be as unpleasant as they like—Margo MacDonald said that she finds swearing offensive—as long as it does not incite public disorder. I do not understand why the Labour Party members cannot get that through their heads. From all the contributions from Labour members, I am no clearer whether they want to see the bill withdrawn. If they do, why did they agree to vote for it at stage 1? Were they just following their chief whip’s orders? Hopefully, Mr Henry can clarify that.
I am afraid that you have only one minute left, Mr Henry.
Humza Yousaf talked about whether chants and slogans will cause disorder. Will those who sing a verse of a song that talks about “rebellious Scots to crush”, which is offensive to many people, incite disorder? Will people who sing “The Boys of the Old Brigade” be arrested for singing that song? If an imaginative songwriter comes up with a song to praise the British head of state laying a wreath to commemorate the boys of the old brigade, will that be offensive and will it render people liable to arrest for singing such a song?
The bill is full of inconsistencies. It is flawed. It is wrong. It will not help to solve the problem; it will add to the problem. It will not help to tackle sectarianism. The Government is going to create further problems. Ultimately, there will be issues of freedom of speech. The Government is being inconsistent and illogical and, unfortunately, it is not helping address the problem.
On a point of order, Presiding Officer. I want to put it on the record that I said that Rangers and Celtic had a problem. I do not believe that it is sectarianism either.
That is not a point of order, but you have now put it on the record.
I call Willie Coffey. Unfortunately, you have only five minutes, Mr Coffey.
16:26
I now know how it feels to come on as a late substitute in a football match with only a few minutes to go.
I was very keen to be part of this debate because it has to be one of the most important debates that the Scottish Parliament will have in its fourth session. Let us make it quite plain: the bill is an attempt by the Government to take forward a process that says loudly and clearly that offensive and threatening bigoted sectarian behaviour will not be tolerated in modern Scotland. That is certainly a tall order, but our Government must not waver or pander to those who will find any excuse to prevent change, rather than embrace a long-overdue attempt to rid Scotland of its shabby legacy of bigotry.
Will the member take an intervention?
I do not have any time. I am very sorry, but I have already cut my speech down to five minutes.
That will not be easy and there will be countless opponents of the bill forming a wall to prevent it going through.
The events that led us to where we are today must rank as some of the most disgraceful in our history—all the world looked on in disbelief. It is bad enough for ordinary citizens who have lived with these problems for generations but, as legislators, surely we now have a duty to act and to try to work towards a solution to help our great game of football.
The bill is not intended to be the complete package—there are other issues that will require our attention in the future—but the wider public support something being done here. The Lord Advocate tells us that the law as it stands is not sufficient to help us. Police and prosecutors also tell us that they need help to deal with the problem.
As the minister and other colleagues have said, two criminal offences will be created: offensive behaviour likely to incite public disorder; and making communications containing threats intended to incite religious hatred. We can argue, as we have done today, whether they are sufficient, clear or even enforceable, but there is public support for measures that will begin to face down the minority who confuse freedom of speech with the freedom to express threatening and hate-filled views of their fellow men and women and thereby risk serious public disorder.
Along with colleagues in the Parliament, I had the privilege of attending the recent British-Irish Parliamentary Assembly meeting, where I met some wonderful people: nationalists, unionists and republicans—elected members coming together in a spirit of co-operation to maintain the peace process and foster closer links among the Celtic and British nations. Even there, among the most respected politicians of our generation, tensions can rise between the traditions. The responsibility on all our shoulders is great indeed, but there is a clear willingness to work together to move forward.
In the context of a debate like this, surely it has to be possible to hang up our brightest colours and sing in honour of our own football club and history without resorting to attacking and vilifying our opponents for their religion and their history. Even as a fervent Kilmarnock supporter, I say to our two great Glasgow football clubs that, when they next come to Rugby park, by all means let us hear about James McGrory and Paul McStay and about Jim Baxter and John Greig, in a positive celebration of the greatness of those footballers.
The Irish writer Malachi O’Doherty summed things up perfectly when, reporting on the breathtaking visit of Queen Elizabeth to Dublin in May this year, he said:
“You cannot now stand for the Soldier Song without a sense that the Queen herself is in spirit standing beside you. The gesture of laying the wreath at the garden of remembrance in Dublin was so potent that the question must be asked why it was not possible before.
And just as a shrill note has been removed from the Soldier Song, surely God Save the Queen need never again sound embarrassing or repugnant in Irish nationalist ears. After an Irish President has stood for it beside the Queen in the middle of Dublin before a memorial to the icons of the Irish revolution, Patrick Pearse and James Connolly.”
If the heads of state can set that fine example, surely the rest of us can follow it.
I ask the Labour Party to drop the amendment. It does nothing to help to tackle the problem that, in 2011, when presented with an open goal and a chance to collectively show the bigots the red card, Labour was found wanting and did nothing.
Mr Coffey, I would be grateful if you could conclude.
We should get behind the Scottish Government and send a clear message that Scotland is moving forward to a brighter future, where tolerance, mutual respect and understanding are the real signs of progress in this nation.
I apologise to Margo MacDonald and Patrick Harvie for being unable to call them.
On a point of order, Presiding Officer. Could I move a motion without notice to extend the debate to allow those two members to speak? It is an important debate—equivalent to a stage 1 debate, really—and I believe that, as the Greens and Margo MacDonald signed the amendment, they ought to be given an opportunity to speak in the debate.
I asked to have that checked. I am afraid that I must suspend Parliament for a moment to allow us to double-check that point.
16:32 Meeting suspended.
I am inclined to take a motion without notice to extend the debate by 10 minutes and delay decision time until 10 past 5.
Motion moved,
That, under Rule 8.14.3, the debate be extended for 10 minutes.—[Alison McInnes.]
Motion agreed to.
I call Patrick Harvie. You have four minutes.
16:34
I am very grateful to the Presiding Officer and to Alison McInnes. It is important that all members who have expressed a view outside the chamber have the chance to put some of their opinions on the record.
At times during the debate, if those of us who are against the bill have not been accused of this, it has at least been implied that opposing the bill is the same as not caring about, not knowing about or not understanding the problem. There have been extreme portrayals of positions on the bill. The bill has been portrayed as a solution, once and for all, to the problem of sectarianism in society, with opposition to it showing a lack of concern or a lack of care.
It is not the first time that I have experienced such a dynamic on a piece of legislation. Neil Findlay mentioned that this is his first experience of legislation. My first experience of a bill going through the Scottish Parliament was the Antisocial Behaviour etc (Scotland) Bill. Some members portrayed that bill as the great single solution to all the problems in their communities and portrayed its opponents, including many SNP members who had criticisms of it, as not caring about, knowing about or understanding the problem. The same accusations were made at that time.
There are elements of the same motivation in relation to this bill as there were in relation to the Antisocial Behaviour etc (Scotland) Bill: the idea that we have to be seen to do something. Sending a signal is never a motivation for legislation that I have been very happy with. Many of the same concerns exist about this bill as existed about the Antisocial Behaviour etc (Scotland) Bill. This bill in no way engages with the root causes of the problem that it seeks to identify. It has been expressed, in evidence to the committee, that there is a risk that aspects of it could do more harm than good.
I will respond briefly to Bob Doris’s comments, because I tried to intervene on his speech. He talked about having a spotlight and a focus on football matches as the context for some of this behaviour. I am afraid that that is not an accurate description of at least half of the bill. One half of the bill—one that has had less scrutiny than much of the rest of it during the debate—is about threatening communications.
Will the member give way?
I am afraid that, given the time that I have available, I cannot let the member in.
That part of the bill is about threatening communications that do not specifically relate to football or to football matches. It is drawn so broadly that it could apply to a huge range of media, including music. Music that is circulating in popular culture calls for lesbian, gay, bisexual and transgender people to be murdered. I might be content with some scrutiny, control and regulation of that, but it has not been subject to any real thought; it will happen as a side effect or a consequence of the bill rather than as its core motivation. We should have taken evidence on those issues if we wanted to have legislation that could even conceivably impact on those other areas of life.
There are also ambiguities about the meaning of the offence in the first part of the bill; indeed, there are so many that it is very hard to pin down what the legislation will do, what its impact will be, what kind of people will be convicted and for what behaviour. Those points have been made repeatedly.
I will certainly engage with amendments at stage 2 if I can. I must admit that the amendments that I am most likely to bring are one amendment to delete the first part of the bill and one amendment to delete the second part, because I do not think that they are fixable. I urge the Government to withdraw the bill at this stage because, as we all thought after the stage 1 debate, there is scope to change the contents of the bill, not just its timescale. I will vote for James Kelly’s amendment.
16:39
I thank the chamber for doing what we should do more often, which is to adhere to the normal rules of debating. We should give and receive explanations and further examine the topic under discussion. I am sorry if that comment makes me sound like old granny grump.
I accept—I think that everybody who has criticised the bill does so—that, in introducing the bill, the Government meant well. All of us, if we are honest, know that there are still threads of sectarianism in Scotland, but as we have heard clearly this afternoon the definition of sectarianism has not been pinned down in the bill. We must do that first. That was why I tried to correct Hugh Henry, because I thought that it was important. I did not say that Rangers and Celtic were necessarily sectarian in their behaviour or that their fans were—I said that they had a problem. I refuse to take seriously the idea that sectarian abuse is hurled by the Rangers fans at the Celtic fans when most of the guys coming out of the tunnel for quite a while were good Sicilian boys who crossed themselves before the start of the match. I am not making light of it; I am just trying to say that that is how it seems from this football fan’s point of view.
I support neither Rangers nor Celtic—I hope that they always get beat. I know that such behaviour and attitudes can leech into other clubs, but other clubs do not have big problems. The big problems lie with those clubs and that is why I support the sensible suggestion that, if we move on with this legislation, the clubs should bear the burden of disciplining their supporters. We should take points from them: that costs them their place in the league, it costs them money and it means that they have to sell their best players. The people who know about football are nodding their heads. They know that that is the most effective method to use against displays of bad behaviour, hooliganism or whatever we want to call it—by which I mean the chants that are offensive to most people.
As I have suggested, we also have to pin down the question of how we will judge what behaviour is offensive and what is not. Some folk grow up in houses where people swear all the time, so they are not particularly offended when they go to a football match and the guy sitting next to them knows only one adjective.
I know that the convener of the Justice Committee was upset that not enough attention had been paid to the communications provisions in the second part of the bill. As Patrick Harvie said, once again, it had good intentions. We have had one debate, but we need more and we need it to be about the second part of the bill. That is where we can be effective. We can change behaviour by tackling such means of communication more effectively than by going to a football match and thinking that we might influence behaviour. At matches, people are hyped up and are not completely themselves. They cannot take drink into the grounds, but some of them have a good bucket beforehand and they do not behave how they would behave in other circumstances or other company.
In short, I hope that the Government accepts that it made a brave effort. Nobody wishes its intentions or aims any ill. Many people were cited as supporting the bill, but they did not support it—they supported its aims. Perhaps the bill has not come up to scratch in achieving those aims and the Government will not lose face if it admits that. We can then all get back to thinking about how we can tackle sectarianism properly and over a much longer period of time than that in which we might expect one bill to make a change.
16:43
Today’s debate has been vigorous, with flashes of passion and even temper, but it has also been welcome. Parliaments should not be afraid of difficult issues, nor should they shy away from tough questions. No Parliament serves its country by picking only the low-hanging fruit.
I, like others, recognise and welcome the First Minister’s decision to give Parliament more time to scrutinise the bill, to take evidence and to attempt to navigate the difficult waters that such legislation entails. I hope that the Government recognises that the chamber is united in the goal of tackling sectarianism. Not one member—not one—wants to see a Scotland where vile, offensive and criminal acts are perpetrated against other Scots simply because of the football team they support or the faith they profess. I have seen today neither Humza Yousaf’s opposition for opposition’s sake, nor Neil Findlay’s assertion of a Government attempt to demonise all football fans. If the time that the Parliament has taken had made huge material improvements to the bill, I believe that the debate would have taken a different course. That is not the case, however. The Government has failed to convince many that the changes that it proposes will improve the situation rather than simply muddy the waters.
Such worries have been raised in the chamber before. Both Annabel Goldie and Iain Gray have done so at First Minister’s questions and the response was disappointing. The messengers were attacked, as were the people who had raised legitimate concerns. There was no acknowledgement that more work might need to be done. Raising such worries is not about party politicking. We need to ensure that we get such things right, as they are too important to get wrong.
It is not a case of just the Conservative, Labour, Liberal Democrat and Green parties saying, “Let’s proceed with caution and consideration”; the same is being said by the Law Society of Scotland, the Scottish churches and the ordinary people of faith who have been writing to their MSPs because they are genuinely worried that their Christian teaching and debate might be in jeopardy because of the second part of the bill.
I welcome the fact that the Government has given an indication that it will look at freedom of speech concerns but, as with other elements of the bill, there is a need to provide clarity rather than confusion. That takes us to the nub of the issue, which is the need to have in place a legislative framework that is clear, proportionate and easily enforceable. On each of those three fronts, the Government has failed to make the case that the new offences that are contained in the bill are required.
On the issue of clarity, Aidan O’Neill QC, who is a leading human rights lawyer, has described the bill as
“the worst drafted Bill I’ve ever seen.”
The Law Society made several points about the fact that we do not have a clear definition of what constitutes an offence, which have been echoed by David McLetchie, Neil Findlay, Hugh Henry and Patrick Harvie. The minister even said, when she was asked by my colleague John Lamont whether singing the national anthem constituted an offence, that it depended on the circumstances.
We do not have a clear definition of what “in relation to” a match includes. Does it apply just to people who are at the ground, to those who are wearing football colours or to those who are in a pub that has football on? Does a person have to be watching the football while it is on? Does it have to be a live transmission feed? Is it possible to prove that someone is watching the football while it is on? We also have no clarity on what constitutes causing offence to a reasonable person.
The continued prevalence of sectarian incidents and the worrying events that took place in the most recent football season in my region of Glasgow rightly focused minds across the chamber. Everyone in the Parliament wants to get to grips with the issue, which should not be allowed to fester in a 21st century Scotland.
Patrick Harvie and Graeme Pearson—who is possibly the most qualified person in the Parliament to comment on operational issues—have raised real fears that the wish to get things done has taken the Scottish Government down the route of viewing the creation of new offences as the only option, rather than looking across the piece to see what is the best option. That is why I must echo the point that James Kelly’s amendment makes, which is that, as the bill moves forward, greater consideration should be given to the use of existing laws.
There is more work to be done within football, as Christine Grahame, James Kelly and Colin Keir said. It is not acceptable that, when the governing bodies of the game and the league are asked by the Parliament to step up to the plate on sectarianism, the rallying cry of “It wasnae me” is all that is heard.
Throughout the debate, the minister and others have asked for constructive comments. Despite Humza Yousaf’s assertion, I counted more than a dozen from Graeme Pearson alone about changes that could be made that would have positive outcomes.
We have seen hundreds of successful prosecutions for breach of the peace at football matches and beyond under the existing legislation. Provision is made for religious prejudice as an aggravating factor in prosecutions. We have seen successful prosecutions, such as that of Stephen Birrell, for threatening communications. That is what we already have. We need to consider greater use of those laws, plus others, such as those that relate to football banning orders, which are underutilised. In addition, we need further preventative measures such as education and early intervention. Most of all, we need the football authorities to step up and the culture to change.
I would be very grateful if you could conclude.
Sure, I will do so.
The Church of Scotland has issued a statement in which it says:
“bad legislation is worse than no legislation at all and we urge the parliament to ensure that if this legislation is to be passed it should be amended to be fit for purpose.”
We back the amendment and want to see changes being brought before the Parliament at stage 2.
16:49
I say genuinely that I come to the debate more in sorrow than in anger. We have had an allegation that somehow we are opposing the bill for opposition’s sake. First, the Government should note that the amendment is supported by the Opposition parties across the board. It should also note that Labour members have worked hard to be as co-operative as possible because we recognised the seriousness of the issue.
As I said in June, I learned a lesson from the previous election. Where we can work with the Government, we will. That does not mean that we will suspend our critical faculties; nor does it mean that everything that we say that calls the Government to account is opposition for opposition’s sake. If there is a lesson from the debate, it is not just a lesson for the Opposition. It is a lesson for the Government that when people say serious things about serious issues, the Government ought not to try to close down the debate on the basis that it is opposition for opposition’s sake. If we are having to open our minds to new ideas, I urge the Government to do the same.
I promised in June that if there was a pause I would not celebrate or describe it as a U-turn. I said that I would welcome it. If, even at this late stage, the Government says, “We hear you and we understand your concerns. We will step back and work with you to consider legislative and other measures that will address the problem”, I will not celebrate. I will welcome it and I will congratulate a mature Opposition, working with a mature Government. That option remains open to the Government. I urge the Government to take it.
Why would anyone in the chamber—someone who represents my city, whose constituents suffer from sectarianism—oppose something just for the sake of it?
Because they are scared.
Will the member say that again?
I suggest to the member that she is scared to take action.
I have never in my life been scared to take action, but I want to take action that will make a difference.
We raised concerns. The charities raised concerns. The churches raised concerns. I am particularly troubled by comments made to me by the Church of Scotland that if the legislation is derided, it will give succour to those who do not want to take any action on the issue.
There is an issue about giving a signal. I agree that that is sometimes what legislation is for, but if this legislation is not effective, the signal will be, “These people can continue as they did before.” We do not want to make a bad situation worse. We were offered a pause but what we got was a freeze, with no negotiation, discussion or clarity about how things could be changed.
Sectarianism is not just about football, and concerns about football are not just about sectarianism. At this week’s Health and Sport Committee, Harry Burns gave startling evidence that neurosurgeons were identifying to him an increased incidence of head injuries among children—and repeat admissions for head injuries—around the time of football matches. The fear and alarm of a child facing violence in their family home may not be audible on Sky Sports, but it is as much of a scandal as any other issue that we need to address.
A member at the back of the chamber said that the bill does not seek to solve all social ills. We recognise that football is a vehicle and that sectarianism and its manifestations turn up elsewhere. We know that an early analysis of section 74 statistics suggested that less than 20 per cent of offences are football related. We need to think about what happens in our communities. We need to tackle the offence. If we cannot define an offence, we cannot expect a police officer to decide what would cause offence to a reasonable person—never mind in Spain, where that challenge will also apply under the bill. For example, if a person is in the pub and is abusing someone with vile sectarian language, that is an offence if the football is on. If the television is broken and that person says the same thing, it is not an offence. What signal does that give? It does not make sense.
The Government has said that it does not want to identify other issues. If the minister will listen, I suggest a four-year programme of action with the three themes of education, intervention and rehabilitation. I suggest a programme of grass-roots intervention, education and anti-sectarian measures that can be firmly embedded in the curriculum. Lots of things can be done, but one critical thing is this: we need to make this generation the one that defeats sectarianism. That must start in our schools—if that is the programme of government, we will support it. Even at this stage, I urge the Government to believe us when we say that we want to tackle the problem with the Government. We want to work with our young people so that the next generation will not suffer in the way that this one does.
16:55
Once again, I welcome the contribution by the Justice Committee, and I thank most members for their contributions in the debate and throughout the parliamentary process.
I remind members that we agreed to the principles of the bill back in June. In doing so, we accepted that there is a problem infecting Scottish football and wider society that must be tackled. Subsequently, we understand that 91 per cent of Scots agree that there is such a problem and believe that stronger action is needed to tackle it.
I feel that I have to repeat myself ad nauseam. We have never for a single moment suggested that the bill is the single answer to all football disorder in general or to sectarianism in particular. I say in response to all the confessional speeches from Labour back benchers that they do not have a monopoly on unfortunate experiences growing up in Scotland, and I urge them not to talk and behave as though they do. They do not necessarily speak for everybody.
I want to say a great number of specific things. Virtually nothing constructive has been said by a member of the Opposition, with the exception of Graeme Pearson and possibly Johann Lamont at the very end of her speech. It is interesting that there has been very little discussion about the last part of the amendment. That may be because Labour members know that virtually everything that is mentioned in that part is already being done by the Government.
I have addressed the existing deficiencies in legislation. Johann Lamont seems to suggest that, by passing the bill, we will automatically repeal the existing legislation, but we will not. Offences will remain offences. We are ensuring that a choice of charges is available to the police, which will allow us to do the work that we need to do and to identify the offence. Actually, what is and is not football related cannot be identified in a lot of criminal proceedings.
A constant theme ran through many of the contributions from the Opposition. It has been suggested that somehow everything is either/or—that we either do what has been proposed or we do other things. That is not true. We can pass the bill and do other things. The Government wants to do as much as it can across the board.
Many members of the Opposition parties have asked what many aspects of the bill will mean in practice. Does the minister accept that there are still huge areas of doubt, uncertainty and ambiguity? For example, why is condition A in section 5(2) broad enough to cover all forms of hate crime, but condition B is specific to religion? There are so many areas of ambiguity that it is hard to know what we would be passing if we passed the bill.
I do not agree with Patrick Harvie on that. If he reads our response to the committee, he will see that we are opening the door for potential future amendments. It is important that we have a full debate on some of the issues that have been raised, but it is a fact that virtually all criminal activity depends on facts, circumstances and context. That applies whether we are talking about the offence in question or any other criminal offence that is charged in Scotland. The facts and circumstances can change everything. My colleague Kenny MacAskill had a wonderful description of Romeo’s speech at Juliet’s balcony. We all think that that is a great example of prose poetry in history, but what happened could equally be a breach of the peace; indeed, it could even be stalking in certain circumstances. The same thing could be a breach of the peace, stalking or welcome.
The other thing that everybody—[Interruption.]
Can we please hear the minister?
Everyone on the Opposition seats has also pretty much ignored the fact that the first offence is not just about offensive behaviour, but about linking that to the likelihood of public disorder.
Ruth Davidson attempted to make as constructive a speech as she could in the circumstances, but there was a bit of confusion in what she said because she talked about the need for amendments going forward. However, that is not what she signed up to vote for today. She signed up to vote to kill the bill completely. Either she does not understand the process or she is deliberately being just a little unclear.
I could go through speech after speech from Opposition members that did not contain a single constructive contribution. I exempt from that criticism Graeme Pearson, whose contribution provided a singularly different tone, which I welcome. He made many interesting practical suggestions, a number of which are being discussed or taken forward, some of which may be reserved and the rest of which I am perfectly happy to talk to him about. His suggestions were a constructive intervention, which was singularly unusual in the debate.
There were some very unfortunate contributions. I want to remind members, particularly Neil Findlay and Michael McMahon, of what Peter Lawwell, chief executive of Celtic Football Club, said:
“Chants glorifying the Provisional IRA are totally unacceptable. It is an embarrassment to the club. We don’t want it, we don’t need it ... it is wrong, and it is an embarrassment to the club and embarrassment to the majority of supporters. We were inundated by complaints from our own fans after the game at Tynecastle.”
That game was on 2 October.
Will the minister take an intervention?
The minister has 40 seconds in which to wind up.
The truth of the matter is that there is real concern about what is happening. Even at this late stage, I urge Opposition members to think a bit more constructively about the matter and to come on board for some of the discussions that can be had even now. We have stage 2 and stage 3 to do, so let us move forward on that basis.
I call Christine Grahame. Ms Grahame, you have until 10 minutes past 5.
17:02
The debate was relatively temperate and civilised, with flashes in-between. I thank all members who spoke. I point out that the committee agreed that sectarianism is a problem in Scotland; no one on the committee said otherwise.
I was interested in what Graeme Pearson and Johann Lamont said about the domestic violence that takes place after football matches. Interestingly, on the day that we went to the match at Ibrox, the police had made early visits to households with a history of domestic violence to warn the people there not to carry the result of the match home with them one way or another. Although that issue is not pertinent to the subject of the debate, I wanted to remind members of it.
Several points were not touched on in our report. I think that there is a role for the media, which can sometimes pour fuel on the fire with regard to what happens on football terraces and pitches. The committee took note of that.
If the bill proceeds to stage 3, the committee would want a review of the legislation’s operation. I say to Neil Findlay that we were cautious about the communications part of the bill with regard to young people’s online language, which will be very different from that of people of my generation. We are aware of difficulties in that area. Aside from that, though, the committee was pretty well fully supportive of efforts to prevent hateful and inflammatory communications online, although not everyone agreed that the bill would deliver that.
It is a pity that not enough attention has been paid to the second part of the bill, although I understand why that is the case. I say to Margo MacDonald that the police fully supported the bill. If it is enacted and its proposals are implemented, we hope that they will be preventative and will not require additional policing. As to the test of what is offensive, that takes place in courts in Scotland every day in the context of different cases. I am grateful to David McLetchie for drawing attention to the 2003 legislation, which got me in a bit of a pickle. He is right to say that it was, in fact, lopsided. That is where I felt that there might be a gap in the law.
John Finnie was challenged on where the guidelines might be found. The draft guidelines are in the public domain; they are on the committee’s website for anyone who wants to look at them.
Does the member seriously think that anyone going to a match will go online to check what constitutes an offence?
The guidelines do not exist in a vacuum; they are already being consulted on with all the parties involved. The thing about good law is that people should know where these things are and that work is taking place.
I realise that I am paraphrasing, but Mr McMahon was correct to say that football provides an arena for sectarianism and that it exacerbates the problem. Although I did not agree with the rest of his speech, I thought that that was a fair point. I do not want to lean on the Lord Advocate’s guidelines too much, but if Mr McMahon looks at them again he will find that they contain some common sense and should help people understand the direction of the legislation.
Will the member give way?
I want to proceed, but I might give way to the member in a while. In any case, the key point is that public disorder has to be incited, which means that context and intent have to be taken into account.
Colin Keir’s contribution was very useful to the committee. I am not a football person myself, and he—correctly—drew the committee’s attention to the role of the SFA and SPL and reminded us that Premier League clubs are commercial entities that rely on revenue from advertising and television coverage. Measures such as not allowing them to play in public or deducting points from them and therefore causing them to lose their position in the table might prove to be a very important sword of Damocles to be hung over them. We all agree that they have been slow to do anything about this.
I have huge regard for Graeme Pearson’s experience as a match commander and thought that he gave a useful speech outlining the ancillary things that could be done outwith the legislation. I am very glad that he mentioned the co-operation between the police, the staff and the club stewards, which we saw clearly on our visit to Ibrox. It was a well-oiled machine, a disciplined army of people ensuring that nobody came to any harm.
I said that I was a bit disappointed that not much was said about the second part of the bill. Alison McInnes is quite right: we must start with solutions and start early. I remind her, however, that we were standing outside Ibrox with a family and the mother said that she had brought her children to the ground for the first time because the behaviour had improved. Education does not take place just within the school; it takes place on the terraces, watching the way other people, players, managers and officials behave at the match.
There were problems for the committee about hate crime. I will not go into it, but at paragraph 170 of our report we indicate concerns about whether anyone has to be present for there to be an offence. The Government will look at that.
Humza Yousaf reminded us, as the minister has, that we are in a funny position: we are going into stage 2. This is the raw state of a bill. By no means, if it proceeds, is this what it will look like at the end of the day. That is very important. I think that people were taking the view that this is it, this is the tool. He also reminded us that some songs are toxic and meant to be toxic—they are meant to provoke—and have very little to do with enjoying the match. All is context and intent.
Roderick Campbell—as usual he was very lawyerly, as befits his advocate background—analysed the law as it stands. He reminded us of the requirement under the breach of the peace provisions for a public element and for intention and that, according to the Lord Advocate—I take this, to some extent, from Roderick Campbell’s contribution—there is a gap in the law, in that some matters cannot be dealt with under the criminal law. The bill is intended to fill that gap, on top of its intention to be—the word of the day—transformational. In other words, the bill is intended to make a change in the way the public behave, such as we have already dramatically achieved with the ban on smoking in public places.
Does the member think that the debate on the bill and the Government’s pushing ahead with it has so far helped to create culture change and to calm the mood at old firm matches, or has it made it worse?
Christine Grahame, you have 30 seconds.
I welcome vigorous debate, which is what we have had. That is exactly why the committee wanted to bring the report to the chamber and have a debate. I welcome all these matters.
Finally, I say to Neil Findlay that I have been called many things in my life, but a sycophant is a new one. Hugh Henry is witness to the fact that, on the news at 10, I was the first person to say that the bill should not be emergency legislation and that I wanted the Justice Committee to have an opportunity to take evidence and bring it to the chamber. That is exactly what we have done today. My goodness, I am looking forward to stage 2.
That concludes the debate on the Justice Committee’s report on the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill at stage 2.
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