Chamber and committees

Your point was about scrutiny of secondary legislation. Do you mean secondary legislation that is passed here or that is passed at Westminster with relevance to devolved competences?

That sounds very wise. Assuming that this committee would be the lead committee on any such scrutiny, that would be entirely appropriate.

Yes. The online and technology industry is growing in Scotland, so there will be a number of people in senior management positions who ordinarily reside—or, to quote the bill, are “habitually resident”—in Scotland, and the question is whether they would be prosecuted under Scots law or English and Welsh law if the primary factor is where the person is resident, as opposed to where the company is registered or where the offence takes place. I just seek a bit of clarification on that. I know that the scenarios are hypothetical and we hope that offences will be few and far between, but it was not entirely clear from the LCM what the situation would look like.

What analysis has the Scottish Government done of the scale of companies that might fall into that category? Do we know how many large social media companies or tech companies to which the provisions are relevant have corporate headquarters in Scotland? Are most of them based elsewhere?

That is very helpful.

Okay. I say respectfully that the question was about one of the three pillars that you laid out regarding your rationale for opposition to granting consent. One of those pillars was to do with the concept of whether immunity should be granted in certain scenarios, which is a philosophical question. Does the cabinet secretary not agree that that might be a useful tool for the new commission to have in the box to maintain on-going peace? It is quite a well-established protocol; the Good Friday agreement itself was, in effect, one great amnesty for people on many sides of the troubles. Therefore, it would be a continuation of that. I am still struggling to understand what the political opposition to it is.

I have a couple of points. First, following on from Russell Findlay’s valid question of the Government, does the Fireworks and Pyrotechnic Articles (Scotland) Act 2022 give any new powers? The understanding was that it was mostly in relation to the ability to stop and search, not necessarily around possession, which in certain environments, as Russell Findlay said, is already illegal.

It is a bit unclear what will happen with the act versus existing legislation, and what training and communication Police Scotland is involved with for officers on the ground at big events—I talking about not only football events, but also other sporting or music events. In fact, I was watching some footage of a music festival, which will remain unnamed, where lots of people in the audience were flying flares with smoke coming out of them, making a complete mockery of the fact that this committee spent a year working on a bill to stop that happening. Needless to say, they were not rioting—they were all having a good time. That is by the by, however.

I am grateful for the Minister for Victims and Community Safety’s response. In part, she was responding to some specific questions that I posed in the session on 3 May, and I want to query two things in the letter. The first is in relation to someone who is stopped under suspicion of committing an offence under the new act. The letter states that if a prohibited item is found,

“it will be seized and retained”,

which makes complete sense. The letter goes on to state:

“The individual will most likely be taken into police custody”,

which is intriguing, as that is not the evidence that we took from Police Scotland. If that is the case, I would find it interesting.

The letter also says that it is the case that,

“if released without charge under ‘investigative liberation’, an individual may be given certain rules to follow (such as telling the person not to go to a certain place or speak to certain people) for a set period of time.”

I am quite intrigued by that. After somebody has been liberated, who has not been charged—the letter clearly states, “without charge”—can they be given specific instruction not to attend certain places or meet certain groups of people? In a scenario where someone has been stopped outside a football game, an item has been removed, and the person has then been released without charge—perhaps even on the spot but pending further investigation—do the police have a power to remove that person or to say to that person that they must remove themselves from the vicinity of the stadium? It is a bit unclear how that would work in practice. The letter seems to fall back on the admissibility of that individual being the responsibility of the event organiser or the venue.

The second query is about the lifetime ban orders, which is a point that I raised. It seems that a loophole still exists here. My original question was whether lifetime ban orders could be an effective additional tool when somebody is stopped and found to be in possession of illegal articles under the Fireworks and Pyrotechnic Articles (Scotland) Act 2022. It seems to be that the person can be given a football banning order, which can be quite lengthy, only if they are also in breach of the Police, Public Order and Criminal Justice (Scotland) Act 2006, which specifically says that they must be

“engaging in violence or disorder”.

However, being caught with fireworks and flares at a football match does not necessarily mean “violence and disorder” if the person has not used them, for example.

The threshold for the introduction of FBOs is extremely high at the moment, so it seems to me that the 2022 act will have to be altered to reduce it. Will the Government consider doing so? For example, someone could be a repeat offender—turning up with flares, maybe even having been barred from the venue or stadium—but they would not be given a lifetime banning order in the current scenario, so there is certainly room for improvement. Could the Government respond on that point?

But this is not about Northern Ireland.

Does the cabinet secretary believe that it would create any problems or any opportunities if the legislation were to go ahead without Scotland participating in it, as Scotland has a separate legal system? What risk analysis has been done of the bill passing in Westminster without Scotland participating in it?

Could that undermine any policy objectives of the legislation? Would it undermine the work of the independent commission? Indeed, could it render much of the legislation useless, for example if someone who was an accused person was residing in Scotland and would therefore be prosecuted in Scotland, rather than anywhere else in the United Kingdom? Has the Government done any analysis of what that potential outcome or scenario might look like?

Obviously, that is at a fairly high level. I imagine that those prosecutions would be quite well publicised and would attract huge media interest, particularly when they relate to well-known online platforms.

The bill creates a specific new offence of encouraging or assisting the serious self-harm of another person. Although the offence itself is narrow, that could be interpreted quite widely. The idea of encouraging someone to self-harm strays from one territory. We commonly associate online encouragement of self-harm almost with online hate crime, in which the encouragement of self-harm is used perhaps more as an attack or an insult, rather than with something that might be perceived to be of assistance. That means that it could be quite widespread. We are all on social media and we all read those kinds of comments.

What are the implications for policing? We have heard concerns in the past that legislation is sometimes passed without a wide-ranging conversation with, for example, Police Scotland, which ultimately picks up the calls when people phone in to complain or to make allegations. What conversations have you had with cabinet secretary colleagues in other directorates about the resource implications, the scale and volume, or the public awareness raising that might go with this so that we do not suddenly and overnight create the perception of a new offence that the public will respond to?

Can you clarify what you mean by that? Do you mean secondary legislation in the Scottish Parliament or at Westminster?