Offensive Behaviour at Football and Threatening Communications (Scotland) Bill: Stage 3
The next item of business is stage 3 proceedings on the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, that is SP bill 1A; the marshalled list, that is SP bill 1A-ML; and the groupings, which I have agreed to. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members should now refer to the marshalled list of amendments.
Section 1—Offensive behaviour at regulated football matches
Amendment 1, in the name of David McLetchie, is in a group on its own.
I am delighted to kick off the debate.
Amendment 1 is an amendment that I first lodged at stage 2 but withdrew on the strength of an undertaking from the minister to consider its adoption. It was fairly considered by her and discussed by Parliament, but the minister concluded that she could not accept it. Accordingly, I have brought it back to Parliament for wider debate and discussion.
One of the bill’s weaknesses is its failure to define sectarian behaviour, although its primary motivation is to address sectarian behaviour in the context of football matches. As I have said repeatedly, sectarian behaviour in Scotland cannot be viewed solely in the context of religious hatred directed against Roman Catholics. It also manifests itself in loyalties and affiliations arising from the history of Ireland, where religious divisions between Catholics and Protestants certainly play a major part but where there are also strong and secular republican and loyalist traditions. Regrettably, their conflicting desires to gain independence or defend an existing constitutional relationship with Britain have been conducted not just on a political level, but through the violence and activities of paramilitary and terrorist groups on both sides.
I welcome the fact that that broader perspective on what constitutes sectarian behaviour is shared by the Scottish Government and reflected in the guidelines to prosecutors that have been published by the Lord Advocate. In the context of the section 1(2)(e) offence of
“behaviour that a reasonable person would be likely to consider offensive”,
the Lord Advocate’s guidelines indicate that that would encompass
“Songs/lyrics in support of terrorist organisations”
and
“Songs/lyrics which glorifies or celebrates events involving the loss of life or serious injury.”
The intention behind amendment 1 is to incorporate a specific provision in the bill to refer to such conduct, which would sit alongside the religious hatred provisions in sections 1(2)(a), 1(2)(b) and 1(2)(c). At the same time, my amendment would remove from the bill the catch-all section 1(2)(e) offence that was the subject of much adverse comment in the evidence received by the Justice Committee, which is recorded in the committee’s report to the Parliament. My amendment defines terrorism by reference to the organisations that are on the proscribed list compiled by Her Majesty’s Government under the Terrorism Act 2006, which covers the Irish Republican Army and its various derivatives and splinter organisations, as well as loyalist paramilitary groups.
The problem with the statutory aggravation enacted by this Parliament in section 74 of the Criminal Justice (Scotland) Act 2003 was that it was one sided. It focused solely upon religious hatred rather than wider forms of sectarian behaviour and as such was rightly resented as an unbalanced piece of legislation. We risk making exactly the same mistake in this bill. It is not good enough to throw a catch-all provision into the bill and to leave to guidelines the definition of behaviour that will or will not be prosecuted. If one was going to take that approach, logically all unacceptable behaviour could be covered by generalised catch-all offences, leaving the specification of what is offensive to a reasonable person, including religious and other hatreds, to the Lord Advocate’s guidelines to prosecutors. We do not have that. Instead, we have a half-and-half approach to the problem that is likely to satisfy no one and which, I am sorry to say, is born out of an unwillingness to grasp firmly the sectarian nettle. The Parliament can and should do better than that.
I move amendment 1.
I rise to oppose amendment 1, although I think that David McLetchie lodged it to try to address one of the central flaws of the bill, which is its lack of definition. I genuinely believe that the Scottish National Party Government has got itself into great difficulty over that.
In the aftermath of the election, there was agreement across the Parliament on the need to tackle sectarianism, but the SNP focused on it as a football matter and rushed in the bill, which was poorly defined. That dogged the debate throughout the summer months and into the autumn. When issues about what would be an offence under the bill have been raised with SNP ministers and the Lord Advocate, the answer that has consistently been given has been that that will be down to the police and the prosecutors. That is simply not good enough. We should not expect the police and the prosecutors to fill in for the gaps in the bill.
The lack of definition and clarity is a central flaw in the bill. Amendment 1 in part seeks to address that, but Labour will not support it. We believe that the bill is flawed.
As we have heard, amendment 1 would narrow the scope of the offensive behaviour offence by removing the reference to
“other behaviour that a reasonable person would be likely to consider offensive”
and replacing it with a more limited reference to support for terrorism and glorification of loss of life. The Government does not support the amendment, but I nevertheless thank Mr McLetchie for his careful consideration of the bill and the constructive approach that he has adopted in lodging the amendment.
Two distinct but related issues are involved, the first of which is the removal of the general so-called catch-all provision in section 1(2)(e). I do not believe that the offence will be effective if it cannot accommodate itself to a range of existing and, crucially, future behaviours. Whenever a list of specific behaviours is captured in law, we risk freezing the law at that point and limiting its applicability. I understand that there are concerns about the catch-all nature of section 1(2)(e), but it is necessary to achieve our stated aims. I am also fully assured that the offence will be enforced proportionately and fairly. I would be extremely concerned that, were section 1(2)(e) to be deleted, the offence would not be flexible enough to capture the continually evolving variety of offensive behaviour that we are aiming to eliminate from Scottish football.
Secondly, the explicit reference to support for proscribed organisations is problematic. I have discussed that issue with Mr McLetchie and understand, and to a large extent sympathise with, his intentions in lodging an amendment to highlight such an important issue. We are in full agreement that the bill should criminalise support for terrorist organisations in the context of football. I am therefore happy to give members an assurance that the bill already criminalises support for terrorism in connection with regulated football matches where there is a risk of public disorder. That is made very clear in the Lord Advocate’s guidelines on the bill.
As a result of Mr McLetchie’s engagement with us on the issue, we have looked into the issue of placing a reference to terrorism in the bill. I have discussed the matter with the Lord Advocate and carefully considered it. As I have said, I understand the concerns behind the amendment and am sympathetic to the reasoning for lodging it, but all offensive behaviour that is likely to incite public disorder is already covered by the bill, including support for terrorist organisations and the glorifying of tragedies. That behaviour is already covered by section 1(2)(e), which the amendment would remove. The Lord Advocate’s guidelines make it very clear that that is exactly the sort of offensive behaviour that would be covered. The Government’s view is that the Lord Advocate’s guidelines are the most appropriate way to deal with the matter, and therefore we do not support amendment 1.
I thank James Kelly and the minister for their contributions in this short debate.
I was pleased that James Kelly identified that the purpose of amendment 1 was to correct one of the central flaws of the bill, which is a lack of definition and precision in the way that the offences are framed. I am therefore slightly surprised that, when I lodge an amendment that incorporates such definition and precision into the offence, the Labour Party elects to vote against it. I suspect that there are other reasons at play, but so be it. I welcome even the qualified welcome that was given.
The minister said that amendment 1 would narrow the scope of the offence. Yes, it would, and I make no apologies for that because, as James Kelly fairly pointed out, one of the principal criticisms of the bill is that the new offences that it creates are too general in scope, particularly in relation to section 1(2)(e). On that issue, the minister and I, and the members of her party and those of mine, fundamentally disagree. I respect her views and I appreciate the fact that she respects ours. Nonetheless, I wish to press the amendment to a vote.
The question is, that amendment 1 be agreed to. Are we agreed?
Members: No.
We are not agreed, so I suspend the meeting for five minutes.
14:31
Meeting suspended.
14:36
On resuming—
Order. I ask members please to resume their seats and check that they have their cards in their consoles; otherwise, they will not be allowed to vote.
We move to the division on amendment 1.
For
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Davidson, Ruth (Glasgow) (Con)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Johnstone, Alex (North East Scotland) (Con)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
McGrigor, Jamie (Highlands and Islands) (Con)
McLetchie, David (Lothian) (Con)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Against
Adam, Brian (Aberdeen Donside) (SNP)
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kelly, James (Rutherglen) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow Pollok) (Lab)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackenzie, Mike (Highlands and Islands) (SNP)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McCulloch, Margaret (Central Scotland) (Lab)
McDougall, Margaret (West Scotland) (Lab)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McMillan, Stuart (West Scotland) (SNP)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Park, John (Mid Scotland and Fife) (Lab)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (SNP)
Walker, Bill (Dunfermline) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (SNP)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 15, Against 103, Abstentions 0.
Amendment 1 disagreed to.
We now move to group 2. Amendment 2, in the name of David McLetchie, is the only amendment in the group.
Amendment 2 is the same as an amendment that I withdrew at stage 2 on the basis of the minister’s undertaking to give the matter fuller consideration. Again, she has done that in good faith, and I commend her for that. Again, however, my proposal has not been adopted or endorsed by the Government, so I am bringing it to the chamber for further debate today.
Amendment 2 is derived from the Lord Advocate’s guidelines to prosecutors, to which I referred in the debate on the previous group. The guidelines stipulate that it is not appropriate to add an aggravation on the grounds of religious and other hatreds and prejudices in the prosecution of the new offences that are created under sections 1 and 5. I believe that that guideline should be in the bill.
The Government’s position is that new laws are required in order that free-standing offences relating to offensive behaviour at football matches may be defined and prosecuted separately and distinctly from other common law and statutory offences that are of general application. If that is the Government’s position, there is no need to charge a person with a statutory aggravation, which would be directed towards exactly the same behaviour. It would be particularly absurd to add a statutory aggravation under section 74 of the Criminal Justice (Scotland) Act 2003, which, as I have said before, is an unbalanced and unsatisfactory piece of legislation, and a product of this Parliament’s last, inadequate effort to tackle sectarianism.
I move amendment 2.
I rise to oppose the amendment in the name of David McLetchie. I fundamentally disagree with the premise of the amendment that racial and religious aggravations should not be included.
It is important that we have appropriate statistics when we try to assess the problem of sectarianism and religious aggravation in Scotland. In the context of the bill—if it is to go forward—it is important that we are able to assess what the breaches of the peace cover. That should not be vague or unspecific.
On the analysis of statistics, it is a matter of regret that the Government has lost a substantial body of data dating back a number of years. That needs to be examined closely. I have taken the matter up with the Cabinet Secretary for Justice, who says that it is a matter of the information technology policy that the data is deleted after two years. It has been pointed out to me that the IT systems might indeed hold the data, so I will take that up further with the cabinet secretary.
I oppose amendment 2. I believe that it is appropriate to have full data available if we are to be able to assess the impact of the problem and monitor the effect of any legislation going forward.
I really have to deal with the point that James Kelly made first, to knock that nonsense on its head. The fact is that summary cases are dealt with in exactly the way that they have been dealt with since 2001, when the destruction policy was put in place by the member’s own Government. If he is now going to say that that was wrong, I am astonished—
Why was it in your manifesto?
Order, Mr Kelly.
Mr Kelly must know that somewhere in the region of 270,000 cases are reported every year, which makes absolutely clear why the physical destruction policy was put in place in 2001. It is a bit rich for him to come to the chamber now and moan about something that he put in place.
Amendment 2, in the name of David McLetchie, is intended to ensure that individuals charged with offensive behaviour motivated by hatred cannot also have a statutory aggravation relating to behaviour motivated by prejudice added to their charge. I sympathise with the intention of the amendment, but it goes beyond what is needed to ensure that an additional aggravation cannot be added to those behaviours that express hatred, because it applies to all the types of behaviour listed in section 1.
As paragraphs (a) to (c) of section 1(2) on the offensive behaviour offence cover expression of hatred directed towards individuals based on their membership or perceived membership of groups including those that are defined by religion, colour, race, nationality, ethnic or national origins, sexual orientation, transgender identity and disability, the Government agrees that it would not be appropriate to add an additional aggravation to charges under those paragraphs.
However, amendment 2 would also preclude aggravations being added to charges under paragraphs (d) and (e) of section 1(2), which cover behaviour that is threatening or otherwise likely to be offensive to a reasonable person, including support for terrorism. It may be appropriate to add a statutory aggravation to charges under those paragraphs, and that is one of the reasons why the Government will not support the amendment. That was the basis of the conversations that we had with Mr McLetchie. I thank him once again for engaging in that discussion with us.
The other reason why the Government will not support the amendment is that the issue is, as Mr McLetchie recognises, already covered in the Lord Advocate’s guidelines on the bill. The guidelines state:
“It is not appropriate to add aggravations in terms of prejudice relating to race, religion, sexual orientation, transgender identity or disability to this offence.”
I think that that is very clear and leaves no doubt that additional aggravations should not be added to charges relating to hatred under the offensive behaviour at football offence. The Government will not support the amendment.
14:45
I again thank the minister and Mr Kelly for their contributions to our debate this afternoon.
I find Mr Kelly’s logic a little difficult to follow. The principal offence in the bill is behaviour that expresses or stirs up hatred against people who are members of a religious group or a social or cultural group with a perceived religious affiliation—and so on. The statutory aggravations are that an offence is aggravated by hatred, dislike or a stirring up of hatred of people in the same categories. How can we have an aggravation of something that is already an offence, in almost identical terms? That makes absolutely no sense at all.
That is exactly why the instructions are as they are in the Lord Advocate’s guidelines. I seek only to bring that approach into the bill so that it is not just a matter for the guidelines. The minister—fairly, from her perspective—says that the Government wants the aggravations to apply to the more generalised offences in paragraphs (d) and (e) of section 1(2). That is where we fundamentally differ, because I do not think that the bill should have generalised offences in those paragraphs. It should be specifically focused on the behaviour that it was introduced to address: behaviour largely perceived to be of a sectarian nature.
As before, there is a fundamental division of opinion between us. I will press my amendment to a vote.
The question is, that amendment 2 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Davidson, Ruth (Glasgow) (Con)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
McGrigor, Jamie (Highlands and Islands) (Con)
McLetchie, David (Lothian) (Con)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Against
Adam, Brian (Aberdeen Donside) (SNP)
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Findlay, Neil (Lothian) (Lab)
Finnie, John (Highlands and Islands) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hume, Jim (South Scotland) (LD)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Johnstone, Alison (Lothian) (Green)
Keir, Colin (Edinburgh Western) (SNP)
Kelly, James (Rutherglen) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lamont, Johann (Glasgow Pollok) (Lab)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackenzie, Mike (Highlands and Islands) (SNP)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McCulloch, Margaret (Central Scotland) (Lab)
McDougall, Margaret (West Scotland) (Lab)
McInnes, Alison (North East Scotland) (LD)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McMillan, Stuart (West Scotland) (SNP)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Neil, Alex (Airdrie and Shotts) (SNP)
Park, John (Mid Scotland and Fife) (Lab)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (SNP)
Walker, Bill (Dunfermline) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (SNP)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 14, Against 101, Abstentions 0.
Amendment 2 disagreed to.
Section 4A—Power to modify sections 1 and 4
We move to group 3. Amendment 3, in the name of the minister, is the only amendment in the group.
Amendment 3 is a technical amendment intended to clarify the application of the order-making powers in section 4A. Those powers were added at stage 2.
Section 4A allows the Scottish ministers to make an order, subject to affirmative procedure, to modify the behaviours that trigger, and the groups protected by, the offensive behaviour offence. The Government has given a clear commitment that we will consult on any substantive changes to be made using the powers.
The amendment is intended to make it clear that where necessary—for example, to ensure compliance with the ECHR, which is required of us in this Parliament—section 1(5)(b) can be disapplied as regards a type of behaviour listed in section 1(2). The effect of such a disapplication would be that persons must be present in sufficient numbers for public disorder to be likely to be incited as a result of a kind of behaviour.
I move amendment 3.
I rise to oppose the amendment in the minister’s name. In an extraordinary way, it demonstrates exactly what is wrong with the bill. In essence, with this amendment and the powers in section 4A, which was added to the bill at stage 2, the Government wants an opportunity by way of statutory instrument to amend on the hoof the new criminal offences that it is creating in the bill.
We have an absurd situation in that the bill says that behaviour is an offence even if
“persons likely to be incited to public disorder are not present or are not present in sufficient numbers”.
In other words, it does not matter—someone can be guilty of an offence even if people are not present. However, the Government is so concerned that that provision might be struck down on the ground of its failure to comply with the ECHR that it now wants the power to remove the provision by statutory instrument. Would it not be a better idea to get it right in the first place? We would not then have a problem.
In conclusion, we had an interesting brief on the bill from the organisation known as Liberty. It comments:
“Allowing for the modification of criminal conduct by way of Ministerial order is a breathtaking expansion of power. Use of the statutory instruction power to introduce significant policy decisions without full parliamentary scrutiny on par with that provided for proposed legislation is an extraordinary move which only goes to show that this Bill is poorly planned and poorly drafted.”
I could not say it better myself; in fact, I have not. I oppose amendment 3.
When David McLetchie comments about getting it right the first time, I wonder what he thinks stage 2 and stage 3 of our bill procedures are about. This is hardly the first Government to lodge the odd amendment during the progress of a bill. I seem to remember it happening frequently between 1999 and 2007.
Taking an order-making power is hardly an unusual procedure either. It is fairly standard and we have made it clear that the order-making powers that we seek to take under the bill will be invoked only with the fullest consultation, which means coming back to the chamber for a vote. I do not understand why Mr McLetchie finds that to be so objectionable.
The question is, that amendment 3 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Adam, Brian (Aberdeen Donside) (SNP)
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (SNP)
Walker, Bill (Dunfermline) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (SNP)
Yousaf, Humza (Glasgow) (SNP)
Against
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Davidson, Ruth (Glasgow) (Con)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Harvie, Patrick (Glasgow) (Green)
Johnstone, Alex (North East Scotland) (Con)
Johnstone, Alison (Lothian) (Green)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
McGrigor, Jamie (Highlands and Islands) (Con)
McLetchie, David (Lothian) (Con)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Abstentions
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Findlay, Neil (Lothian) (Lab)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Henry, Hugh (Renfrewshire South) (Lab)
Hume, Jim (South Scotland) (LD)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Macdonald, Lewis (North East Scotland) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McCulloch, Margaret (Central Scotland) (Lab)
McDougall, Margaret (West Scotland) (Lab)
McInnes, Alison (North East Scotland) (LD)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Murray, Elaine (Dumfriesshire) (Lab)
Park, John (Mid Scotland and Fife) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Stewart, David (Highlands and Islands) (Lab)
The result of the division is: For 64, Against 17, Abstentions 36.
Amendment 3 agreed to.
We move to group 4. Amendment 8, in the name of Patrick Harvie, is grouped with amendment 9.
I have made it fairly clear all along that I am no great fan of the bill. Although I thought that the flaws in the bill were probably too deep to be rectified by amendments, I lodged a number of amendments at stage 2 because I took the view that, if the Government was determined to push the bill all the way, the least that we could do was try to shave off a few of the rough edges and resolve a few of the more significant problems. Unfortunately, I was not successful at persuading the Government that some of my worthy stage 2 amendments should be agreed to, so I have come back with a few smaller ones at stage 3. I again make it clear that I believe that the flaws in the bill run very deep and that, even if the Government accepts all my amendments, I am not sure that that will make me vote to pass the bill.
The bill has been portrayed as being a football bill or a sectarianism bill but, in reality, it is nothing of the kind. Although part of it applies only to football and part of it applies only to religion, it is a much wider hate crime bill, which will sit alongside the other pieces of hate crime legislation that have been passed.
Members will be aware that, in the last session of Parliament, I worked with the Government on such legislation in the form of the Offences (Aggravation by Prejudice) (Scotland) Bill, which, in the end, received the support of all the Opposition parties. We considered whether to include in that bill the offence of incitement to hatred. Along with some of the organisations that lobbied for the bill, I and other politicians considered whether incitement to hatred was an issue that we wanted to get into.
The UK Government and the Westminster Parliament have implemented incitement to hatred legislation, but the Scottish Parliament has never done so. Until about a week before the introduction of the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, I thought that there was still a pretty clear consensus that we did not feel that it was right to pursue incitement to hatred in legislation without a great deal more careful consideration, but that is what the bill does.
The bill creates the offence of incitement to hatred, albeit only in highly specific circumstances. It was unclear why, if the Government supported the introduction of incitement to hatred legislation, it had defined those circumstances in the way in which it had. Therefore, at stage 2, I lodged amendments that would have extended the grounds of incitement to hatred to cover all the other grounds that are mentioned in relation to other aspects of the bill. I put those amendments forward for debate, but I did not press them to a vote, because I had concerns that we were creating rushed legislation and that we were stepping over a line that we had previously agreed, on a cross-party basis, not to step over.
Following those stage 2 considerations, it was clearer to me than ever that we would be making a serious mistake. Therefore, the amendments in group 4—amendments 8 and 9—say to ministers that, if they intend to use the power that they wish to have to extend the scope of the incitement to hatred offence or the other offence, in addition to asking the Parliament’s permission, they will need to begin a public debate on the proposal. The consequences of getting wrong hate speech legislation are far graver than the consequences of getting wrong legislation on other hate crimes. With statutory aggravation, we are talking only about treating existing offences differently because of motivation but, with hate speech legislation, we would be in much more danger of stepping over the line on free speech. The free speech defence that the Government has included does not apply to the whole bill or to both the offences that are proposed.
With amendments 8 and 9, I argue that the Government should have to consult publicly and begin a public debate with a view to ensuring that if, in future, it decides that it wishes to come back with an order to extend the scope of the offences, we do not make more mistakes than we have to.
I move amendment 8.
I support Patrick Harvie’s amendments, for which he has made a cogent case. It is clear that, if the bill goes through, the proposed order-making power will give the Government a substantial remit to extend the provisions beyond those that are in the bill. Patrick Harvie is absolutely correct to say that, if that step is to be taken, there should be appropriate consultation, not only within the Parliament, but with interested parties outside it, in order to ensure that a consensus can be built for the changes that are proposed. I am afraid that the Government has failed to build such a consensus on the bill.
As Patrick Harvie said, he lodged a significant number of amendments at stage 2, some of which raised fundamental issues to do with the relationship between, on the one hand, civil liberties and freedom of speech and, on the other, hate crimes. It would have been well worth having a wider debate on those issues at stage 3 in the context of what the bill aspires to do. It is a deficiency in our processes that we cannot accommodate such debate in the final stage of parliamentary consideration of legislation. That might be an issue for the future.
I support amendments 8 and 9 and I urge the minister to accept them, because it is important that there is wider public consultation on any proposed changes to the legislation, as Patrick Harvie and James Kelly said.
15:00
I welcome Patrick Harvie’s on-going efforts to improve this mess of a bill, although I fear that it is a hopeless cause.
Given the unprecedented powers that sections 4A and 6A will introduce, amendments 8 and 9 are vital if we are to ensure that at least some sense of democratic process remains in our law making. The Government’s amendments to the bill at stage 2, which will enable the Government to alter the definition of a criminal offence by ministerial order, were hard to believe. As we heard, Liberty described the approach as a “breathtaking expansion of power”.
Despite the minister’s assurances to the contrary, the affirmative procedure is simply not meant to be used for such a purpose. Criminal offences should only ever be redefined through the formal bill process, which demands full pre-legislative scrutiny—the bill was sadly lacking in that, due to the Government’s gung-ho mentality.
Bill scrutiny involves three distinct stages, two parliamentary debates, a committee report and the opportunity to lodge amendments, whereas the affirmative order procedure involves no formal consultation and allows for no more than 90 minutes of debate in committee and only the briefest discussion in the chamber. That is no way to make criminal law.
Amendments 8 and 9 would, at the very least, require the Government to carry out some form of consultation before using its new powers. That is no substitute for genuine democracy, but it seems to be the best that we can hope for under the Scottish National Party Government.
The problem with amendments 8 and 9 is that they would apply no matter how minor or technical the change. The Subordinate Legislation Committee considered in great detail the order-making powers as set out in the delegated powers memorandum for the bill, and it concluded in its report that the Government’s reasoning for the use of order-making powers was “justifiable” and “appropriate”. The committee said:
“The Committee recognises that the order making powers ... are significant and that in some cases orders under this power should be subject to consultation.”
We have said that all along. The committee went on to say that it recognised that
“some orders ... will be of a technical nature and consultation ... in these instances would be unnecessary.”
It concluded:
“Imposing a universal requirement for consultation on all orders under this section on the face of the Bill would in the view of the Committee be unnecessary”,
and noted that I have assured the Justice Committee that
“consultation will be undertaken where it is appropriate”
on the substantive issues that were discussed.
I am happy to repeat that assurance. I confirm that the Government does not support amendments 8 and 9, for the reasons that I laid out.
Here is a thought. The Parliament could pass a single piece of legislation, which would give ministers the power to come back with an order to change more or less any aspect of criminal law. It would save us all an awful lot of time and bother. I am sure that most ministers would be happy to have the power to say, “Actually, these changes are very minor and technical; let us not bother with full legislation but instead pass it all through the affirmative procedure.”
I hope that all members understand that that is not a serious proposal. I hope that we all understand that that is not how we do things in a democratic Parliament. If the Government wants to change the law it should do so on a formal basis, rather than take upon itself the power to do so through the affirmative procedure.
Like David McLetchie, I am sorry that we are not having a wider debate about more fundamental aspects of the bill. We will perhaps have to confine our comments in that regard to the debate on the motion that the bill be passed, which will happen before decision time.
I will press amendment 8 to a vote on the basis that the Parliament should take responsibility for the operation of the legislation and any changes to it, and ensure that ministers do not come to regard the order-making power as a default position. There is a great danger that ministers will come to regard it as something that they can insert in every piece of legislation. I believe that we should hold them to a higher standard.
The question is, that amendment 8 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Davidson, Ruth (Glasgow) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McCulloch, Margaret (Central Scotland) (Lab)
McDougall, Margaret (West Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McLetchie, David (Lothian) (Con)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Park, John (Mid Scotland and Fife) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Against
Adam, Brian (Aberdeen Donside) (SNP)
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (SNP)
Walker, Bill (Dunfermline) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (SNP)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 53, Against 63, Abstentions 0.
Amendment 8 disagreed to.
Section 6A—Power to modify sections 5(5)(b) and 6
Amendment 9 moved—[Patrick Harvie].
The question is, that amendment 9 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baker, Richard (North East Scotland) (Lab)
Beamish, Claudia (South Scotland) (Lab)
Bibby, Neil (West Scotland) (Lab)
Boyack, Sarah (Lothian) (Lab)
Brown, Gavin (Lothian) (Con)
Carlaw, Jackson (West Scotland) (Con)
Chisholm, Malcolm (Edinburgh Northern and Leith) (Lab)
Davidson, Ruth (Glasgow) (Con)
Dugdale, Kezia (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Ferguson, Patricia (Glasgow Maryhill and Springburn) (Lab)
Fergusson, Alex (Galloway and West Dumfries) (Con)
Findlay, Neil (Lothian) (Lab)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Goldie, Annabel (West Scotland) (Con)
Gray, Iain (East Lothian) (Lab)
Griffin, Mark (Central Scotland) (Lab)
Harvie, Patrick (Glasgow) (Green)
Henry, Hugh (Renfrewshire South) (Lab)
Hume, Jim (South Scotland) (LD)
Johnstone, Alex (North East Scotland) (Con)
Johnstone, Alison (Lothian) (Green)
Kelly, James (Rutherglen) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Lamont, John (Ettrick, Roxburgh and Berwickshire) (Con)
Macdonald, Lewis (North East Scotland) (Lab)
Malik, Hanzala (Glasgow) (Lab)
Martin, Paul (Glasgow Provan) (Lab)
McArthur, Liam (Orkney Islands) (LD)
McCulloch, Margaret (Central Scotland) (Lab)
McDougall, Margaret (West Scotland) (Lab)
McGrigor, Jamie (Highlands and Islands) (Con)
McInnes, Alison (North East Scotland) (LD)
McLetchie, David (Lothian) (Con)
McMahon, Michael (Uddingston and Bellshill) (Lab)
McMahon, Siobhan (Central Scotland) (Lab)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
McTaggart, Anne (Glasgow) (Lab)
Milne, Nanette (North East Scotland) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Murray, Elaine (Dumfriesshire) (Lab)
Park, John (Mid Scotland and Fife) (Lab)
Pearson, Graeme (South Scotland) (Lab)
Pentland, John (Motherwell and Wishaw) (Lab)
Rennie, Willie (Mid Scotland and Fife) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Smith, Liz (Mid Scotland and Fife) (Con)
Stewart, David (Highlands and Islands) (Lab)
Against
Adam, Brian (Aberdeen Donside) (SNP)
Adam, George (Paisley) (SNP)
Adamson, Clare (Central Scotland) (SNP)
Allan, Dr Alasdair (Na h-Eileanan an Iar) (SNP)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Biagi, Marco (Edinburgh Central) (SNP)
Brodie, Chic (South Scotland) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Burgess, Margaret (Cunninghame South) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Campbell, Roderick (North East Fife) (SNP)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Constance, Angela (Almond Valley) (SNP)
Crawford, Bruce (Stirling) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Dey, Graeme (Angus South) (SNP)
Don, Nigel (Angus North and Mearns) (SNP)
Doris, Bob (Glasgow) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Eadie, Jim (Edinburgh Southern) (SNP)
Ewing, Annabelle (Mid Scotland and Fife) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Fabiani, Linda (East Kilbride) (SNP)
Finnie, John (Highlands and Islands) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Gibson, Rob (Caithness, Sutherland and Ross) (SNP)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Hyslop, Fiona (Linlithgow) (SNP)
Ingram, Adam (Carrick, Cumnock and Doon Valley) (SNP)
Keir, Colin (Edinburgh Western) (SNP)
Kidd, Bill (Glasgow Anniesland) (SNP)
Lyle, Richard (Central Scotland) (SNP)
MacAskill, Kenny (Edinburgh Eastern) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
Mackenzie, Mike (Highlands and Islands) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Matheson, Michael (Falkirk West) (SNP)
McAlpine, Joan (South Scotland) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McLeod, Fiona (Strathkelvin and Bearsden) (SNP)
McMillan, Stuart (West Scotland) (SNP)
Neil, Alex (Airdrie and Shotts) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Robertson, Dennis (Aberdeenshire West) (SNP)
Robison, Shona (Dundee City East) (SNP)
Russell, Michael (Argyll and Bute) (SNP)
Salmond, Alex (Aberdeenshire East) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Swinney, John (Perthshire North) (SNP)
Thompson, Dave (Skye, Lochaber and Badenoch) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Urquhart, Jean (Highlands and Islands) (SNP)
Walker, Bill (Dunfermline) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
White, Sandra (Glasgow Kelvin) (SNP)
Wilson, John (Central Scotland) (SNP)
Yousaf, Humza (Glasgow) (SNP)
The result of the division is: For 53, Against 64, Abstentions 0.
Amendment 9 disagreed to.
Section 7—Sections 1(1) and 5(1): offences outside Scotland
We move to group 5. Amendment 4, in the name of the minister, is grouped with amendments 5 to 7.
Amendments 4 to 6 relate to the extraterritorial extent of the offences in the bill, and amendment 7 is a minor drafting amendment.
The extraterritorial scope of the offensive behaviour at football offence extends to matches that are played outside Scotland that involve a Scottish club or the national team. The bill currently covers all British citizens. That was intended to ensure that the offence in relation to matches that are played outside Scotland covered supporters of Scottish teams who are based in England, Wales and Northern Ireland as well as those who are based in Scotland. It would have ensured that any British citizen who participated in sectarian or otherwise offensive behaviour during a match that involved a Scottish football club or the national team that was played outside Scotland was covered by the offence.
We have discussed the issue with the United Kingdom Government, which has argued that the extra territorial application of the offensive behaviour offence should be restricted to individuals who are normally resident in Scotland, as other British citizens who take part in behaviours that will be criminalised under the bill would be punished under laws elsewhere in the UK.
Amendment 4’s proposals will still mean that individuals normally resident in Scotland travelling to matches involving Scottish teams elsewhere in the world will be covered by the offence. That means that those travelling from their homes in Glasgow, Edinburgh or Dundee to watch their teams play in London, Munich or Napoli can be punished under the offensive behaviour offence.
The UK Government has given us assurances that laws elsewhere in the UK can deal with similar behaviour by other British citizens. I have sought its assurance that it will take all reasonable steps to ensure that conduct that our bill will criminalise if carried out in Scotland or abroad by those habitually resident in Scotland will be routinely prosecuted if the conduct is by persons not habitually resident in Scotland and relates to a match involving a Scottish team that is played elsewhere in the UK.
Therefore, in the light of the UK Government’s objections to the extent of the offence and, crucially, its assurances that such behaviour will be dealt with elsewhere in the UK for relevant supporters, we have agreed to introduce the amendments in question to restrict the extra territorial extent of the offence to individuals habitually resident in Scotland. The Crown Office and Procurator Fiscal Service will also take forward discussions with the Crown Prosecution Service on a protocol between the two organisations in relation to the prosecution of offensive behaviour that takes place elsewhere in the UK at a regulated football match involving a Scottish team.
Football clubs also have a part to play in addressing fan behaviour, including that at matches abroad. The joint action group has led to the implementation of a new information-sharing protocol between the police and clubs that will allow the police to pass details of offending fans to clubs for appropriate action to be taken, regardless of whether it relates to matches at home or abroad. I am therefore confident that clubs will take action against any fans behaving in an unacceptable manner when following their team, which includes fans travelling from outside Scotland to any match involving their club.
The bill’s provisions, action by clubs and liaison with the UK authorities will therefore ensure that anyone following their club or the national team who behaves in a sectarian or offensive manner that risks inciting public disorder will be subject to the full force of the law and possibly other sanctions, no matter whether the game takes place in Glasgow, Manchester or Milan.
Amendments 4, 5, 6 and 7 also provide that the threatening communications offence applies to any threatening communication made outside Scotland by any person where that communication is intended to be seen or heard in Scotland.
I move amendment 4.
I find it interesting but perhaps not surprising that at this late stage the Government has suddenly discovered that part of its bill lies outwith the powers of the Scottish Parliament. Had the Government listened to the many concerns that the Opposition parties raised here in the chamber and the dozens of individuals, groups and organisations that replied to the committee’s call for evidence, it might have realised that there are fundamental problems with its bill. The Law Society of Scotland spoke in its submission of its concerns about the legislative competence of this part of the bill. Amendments 4, 5, 6 and 7 will remove an error in the drafting of the bill that it has taken the Government six months to recognise. I dread to think how many more we might discover in the next months.
Alison McInnes must accept that for a considerable amount of time we have been in discussion with the UK Government on that drafting point; it is not something that anybody has suddenly discovered. I stand by amendment 4.
Amendment 4 agreed to.
Amendments 5 to 7 moved—[Roseanna Cunningham]—and agreed to.
Section 7A—Report on operation of offences
We move to group 6. Amendment 10, in the name of Patrick Harvie, is the only amendment in the group.
15:15
As I said before, I am sorry that I have not been successful in persuading the Government to accept any of my more substantial amendments, either at stage 2 or today. I am left with one very minor amendment, and I hope that there will be some willingness to consider it.
Section 7A of the bill as amended at stage 2 requires the Government to produce a report on the operation of the new offences and to lay that before the Parliament. I had hoped, in the debate on the motion that the bill be passed, to be able to try to persuade the Parliament that we should do more than simply review the operation of those new offences and that we should set a timescale for the Government to consolidate hate crime legislation, given the frankly slightly messy situation that already exists and which we are making worse today.
However, if there is not to be such an opportunity—I will still argue for it, even though my amendment has not been selected for the debate—I will make the case that the report that the Government is to lay before the Parliament can be properly informed only if the Government consults publicly on the drawing-up of that report. Many people have direct, first-hand experience of these offences and we should listen to them when we are reviewing the operation of the legislation. I hope that, when the report is laid before the Parliament, we have the opportunity to debate in the chamber substantive amendments to a motion and vote on how the Government should respond to the experiences that are expressed during the review.
I move amendment 10.
I rise to support Patrick Harvie’s amendment. I underline our sympathy with and support for the case that he outlined in relation to the consolidation of hate crime law. He makes some fair points in that regard.
Although he describes amendment 10 as more minor than others that he wished to debate, it deals with the important matter of the report coming back to the Parliament and the data in the report. As I said earlier, it is important to be able to monitor the effectiveness of legislation through reports and data.
It was disappointing that the minister failed to take my intervention earlier. I wanted to point out the fact that the Scottish National Party made a manifesto pledge regarding the full publication of data relating to religious offences. It is regrettable that the minister sought to criticise me but was not prepared to take that intervention.
Patrick Harvie’s amendment is logical. It makes a great deal of sense and would help the Parliament to form a view not only on the effectiveness of the legislation but on the wider issues affecting Scottish society.
As Patrick Harvie will be aware, the Government lodged an amendment at stage 2 to respond to the Justice Committee’s recommendation that we should report to the Parliament on the operation of this legislation after an appropriate period.
The Government has already made it clear that we will give full consideration to the issues that are involved in preparing our report on the bill and that it will not simply be a statistical report. I regard it as essential that we consult a wide range of partners to assist in the preparation of our report. Consultation with appropriate persons is therefore already our intention.
Nevertheless, I thank Mr Harvie for the constructive way in which he has engaged in the process. I confirm that the Government appreciates the intention behind his amendment and that it will, therefore, support it.
I could pretend that I am picking my chin up off the floor, but I am grateful to the minister for not only accepting the amendment but intimating to me earlier that I could expect this decision. I welcome the fact that one amendment from Opposition parties will be accepted.
In closing, I ask the minister and the Cabinet Secretary for Parliament and Government Strategy to look at how the Parliament will have an opportunity to consider the report when it is laid. We need a full debate on the report so that Opposition members can lodge amendments to a substantive motion and to ensure that the Parliament is able to decide how we should respond to the contents of the report.
Amendment 10 agreed to.
That ends the consideration of amendments.