Meeting of the Parliament

Meeting date: Wednesday, November 2, 2016

Official Report 1146KB pdf

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Sectarian Behaviour and Hate Crime

The next item of business is a debate on motion S4M-02231, in the name of Douglas Ross, on justice. I will give people time to get quickly into position. We are already short of time for this debate so I impress upon members that brevity will be much appreciated.

15:14  

I refer members to my entry in the register of members’ interests as a football referee officiating at matches for the Scottish Football Association, the Union of European Football Associations and FIFA.

Presiding Officer,

“The critical role for Government ... is to ensure that the law is fit for purpose.”—[Official Report, 14 December 2011; c 4644.]

Those are not my words; they are the words of Roseanna Cunningham, then the Minister for Community Safety and Legal Affairs, during the stage 3 proceedings on the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill. I could not agree more with Ms Cunningham, which is why I am pleased to lead today’s debate on behalf of the Scottish Conservatives.

When the bill was passed, there was cross-party consensus among the Opposition parties that it was deeply flawed anti-sectarian legislation. The Scottish Government had failed in its duty to ensure that the law was fit for purpose. Almost five years later, that consensus remains. Let me clear from the outset that, whether in our schools, on our streets or in our football stands, sectarian behaviour should not, must not and will not be tolerated under any circumstances. Sectarian violence, slogans and songs in and around Scotland’s stadiums provoke distress and division, and they offend and frighten fans who just want to enjoy our national game.

I appreciate the member’s sentiment. Does he feel that legislation has no part to play in the issue, or does he just want better legislation?

I absolutely feel that legislation has a point—we will go on to talk about breach of the peace. As others—not just politicians—said at the time of the passing of the bill and since it has been enacted, we should be using the legislation that was already in place, and we do not need to target one section of our society.

Let me also be clear that we do not believe that the hard-core minority of people who exhibit football-related threatening and violent behaviour should get away with it. My party’s long-standing opposition to section 1 of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 is not a signal that the Scottish Conservatives do not support the eradication of the scourge of sectarianism—any attempts to suggest otherwise are a gross distortion of our position on that issue. We voted against the legislation because, quite simply, it is a bad piece of legislation. As my colleague John Lamont reminded members in December 2011, when the bill was railroaded through,

“bad law is worse than no law.”—[Official Report, 14 December 2011; c 4672.]

That is not just our view; it is the view of much of the legal profession. It is well documented that, in 2013, one senior judge complained that the complex, catch-all and badly defined provisions of the act were “horribly drafted”, infamously adding that

“somehow the word mince comes to mind”.

Many sheriffs have been “emphatically critical” of the act and have raised concerns about the clarity and human rights implications of section 1, as well as the quality of evidence in cases and the meaning of “offensive behaviours”.

During the bill’s rushed passage through Parliament, the Scottish Conservatives consistently argued that sufficient laws were already in place to deal with the behaviour that it sought to address. Again, that was not just our view; it was the assessment at the time of the Law Society of Scotland’s criminal law committee—and it continues to be its assessment. The committee concluded:

“The Committee is of the view that the offence, under section 1, does not improve on common law breach of the peace or section 38 of the Criminal Justice and Licensing (Scotland) Act 2010.”

The First Minister and members on the Scottish National Party benches continually tell us that the SNP Government is a listening Government, so what is it that they are not hearing from Opposition politicians, football fans and the legal profession? The response has been clear and the way ahead for the Government is straightforward. To push legislation through when it has a majority is bad enough; to ignore the outcry following the legislation’s implementation and cover its eyes and ears, pretending that nothing is wrong, is lamentable and a failure of the Government’s duty to Scotland.

The SNP amendment today mentions that public opinion is supportive of the legislation, citing a Scottish Government-commissioned poll that found that 80 per cent of those surveyed supported the act. However, it should be noted that just over 1,000 people were surveyed, of whom 52 per cent said that they were “not very interested” or “not at all interested” in football.

The Government fails to recognise the significant efforts that James Kelly has gone to with his member’s bill. Knowing that there was cross-party support on Opposition benches to repeal the law, he launched a consultation on his proposed member’s bill. There were more than 3,000 respondents to the consultation, of whom more than 70 per cent were in favour of repealing the offensive behaviour at football provisions and more than 60 per cent supportive of repealing the threatening communications provisions. That is clear evidence of what the public—when they are asked for their views—want this Government and this Parliament to do. They have been clear.

Should we be surprised at the opposition to the act, given its track record so far? In the inaugural year of the act’s operation, the Scottish Government’s first set of statistics reported that 259 people were charged under the new legislation. At the same time, the number of people charged with comparable breach of the peace offences fell by 231, which suggested that prosecutors had simply replaced one offence with another, which vindicates the Law Society’s assessment.

The number of successful prosecutions has also been variable, ranging from 68 per cent in 2012-13 to 52 per cent in 2014-15. Even the Scottish Government has conceded that the 79 convictions in 2015-16 under section 1 of the act is “very small” compared to the 15,000 or so breach of the peace convictions that were secured in the same period.

Further, the Scottish Government does not seem to know how to measure the impact of the act. The former Minister for Community Safety and Legal Affairs, Paul Wheelhouse, praised the decrease in charges one year as evidence that the legislation was working effectively. However, the very next year, the Cabinet Secretary for Justice highlighted a 49 per cent increase in charges as evidence that it

“continues to be an important tool.”

Such double standards serve only to shed further light on the SNP’s confusion over the operation and application of the act. It is an act that the SNP will defend to the hilt, blinkered to its failings and acting in an ignorant fashion in response to its critics’ calls. The SNP is behaving like a football club that has used all its substitutes and would prefer to leave the injured player on the pitch rather than remove him for the benefit of the team.

There are occasions when remedying behaviour through changes in the criminal law is appropriate. However, on this occasion, the view of legal practitioners is that there were already adequate laws in place. Those can and should be used to prosecute offensive behaviour rather than vilifying football and its hundreds and thousands of fans.

The 2015 Morrow report emphasises that the impact of sectarianism varies from community to community and that it is not a one-size-fits-all issue. We need an enduring change in culture and attitudes. That happens in homes, classrooms and communities. It is facilitated by the work of charities and third sector organisations such as Nil by Mouth, and we need to see and support more of that community-led activity.

It is time that this flawed act was repealed. Not only does it unfairly target those civilised, law-abiding fans who simply want to enjoy Scotland’s beautiful game, but it has served simply to create confusion rather than clarity.

The SNP always bring out the mantra, “What would you do if you repealed the act?”

Yes.

To use a footballing analogy to answer Mr Dornan, the 2012 act does not need a substitution—it needs a full-time whistle blown on it, and that is exactly what we intend to do here today.

It is not just the Government’s responsibility to ensure that the law is fit for purpose; it is also this Parliament’s responsibility. On too many occasions, the SNP has steamrollered over the legitimate concerns of members of Opposition parties who speak in this chamber for their constituents and Scotland’s stakeholders. Today, I sincerely hope that we can begin to reverse that trend.

I move,

That the Parliament believes that sectarian behaviour and hate crime are a blight on society in Scotland and should not be tolerated under any circumstances; notes that there are laws in place to prosecute acts of hatred in addition to the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012; further notes with concern that the legal profession has repeatedly criticised the 2012 Act for being unworkable and badly drafted; regrets that the Scottish Government hastily pushed the legislation through the Parliament, despite widespread criticism from stakeholders and opposition parties, and urges the Scottish Government to repeal the Act as a matter of priority. 

15:22  

Football is indeed Scotland’s beautiful game. It is part of our culture. Supporters are passionate in their backing of their team, but there is a darker side to Scottish football—a part of the game that has been prevalent for decades and which many seem to have accepted as the status quo. Abuse, threats and violence are often excused as just banter or as letting off steam and appear to have been accepted as part and parcel of attending football matches in Scotland. However, there is absolutely no place in football for those who let their passion become violent or their pride become hateful. That is how we used to excuse racism and sexism, but it causes offence and harm and it undermines people’s dignity and respect.

As members will be aware, the immediate backdrop to the legislation concerned events in 2011, including when Celtic and Rangers played in a Scottish cup semi-final replay. Also around that time, prominent public figures, including the former Celtic manager, Neil Lennon, received bullets and viable explosive devices through the post because of their football allegiance.

Of course the Scottish Government recognises that the majority of football fans are well behaved and simply want to support their team. However, there is a stubborn minority who still believe that it is acceptable to be abusive, offensive and violent at football matches.

The 2012 act was introduced to rid Scottish football of that abusive behaviour and to differentiate between supporting a team and descending into threatening and abusive targeting of the opposition. Nobody is suggesting that there cannot be banter between rival fans, but when that spills over into racist, homophobic, sexist or sectarian behaviour, it is unacceptable. Indeed, evidence tells us that the majority of fans and people in Scotland’s communities find such behaviour unacceptable. I refer the chamber to the independent and comprehensive YouGov poll that found that 80 per cent of respondents, and 76 per cent of football fans, supported the act.

Too often, we have read about or witnessed behaviour at football matches that would not be acceptable anywhere else in society. Some have argued that the act unfairly targets football supporters and have asked why it does not apply to, for example, rugby or other sports. The simple answer is that there is not the same problem at those events. Ten days ago, an 11-year-old boy had to be taken to hospital after being struck on the head by a glass bottle; he required seven stitches. That happened in and around a football match, not another sport. It is important that members reflect on that.

Neil Findlay (Lothian) (Lab) rose—

Murdo Fraser (Mid Scotland and Fife) (Con) rose—

Presiding Officer, I wish to make some progress.

The minister does not wish to take either intervention. Please sit down.

These are not new problems. Scottish football needs to recognise that society does not agree that historical tribalism is a justification for abusive behaviour. Football cannot simply wash its hands here. Football is an integral part of our society, and it needs to be part of the solution.

We should be promoting the game in Scotland and trying to encourage more people to go to football games, especially the next generation of fans—the ones who will be the lifeblood of the game in the future. Instead, we hear of families who are put off from going because they do not wish to expose their children to the inappropriate behaviour of the hard-core minority who sour the atmosphere and make it unwelcoming for the majority.

I turn to a few of the misconceptions about the act that we keep hearing. People have suggested that it was not needed because existing legislation was sufficient. However, we saw in the independent academic evaluation of the act that it brought a new clarity to the law. I refer members to the submission that the Crown Office made just a few weeks ago to Mr Kelly’s consultation, in which it made the point directly that the act was dealing with offending behaviour for which the prosecution may not have been able to secure a conviction using existing legislation.

Neil Findlay rose—

Douglas Ross rose—

I am afraid that I want to make progress.

Another misconception is that the act is ineffective, demonstrated apparently by a lack of prosecutions. Although that is perhaps not the normal approach to how we measure the success of criminal law and policy, I point out that, in any event, statistics clearly demonstrate that the rate of prosecutions under the act is comparable to the rate of prosecutions for other offences. The latest information, which covers 2014-15, shows how proceedings have been concluded thus far. In 98 cases brought under section 1 of the act, 76 people were convicted—that is an 84 per cent conviction rate. Comparable conviction rates for other offences in the same year are similar, with breach of the peace at 84 per cent and common assault at 75 per cent.

Neil Findlay rose—

I wish to make progress.

It has also been claimed that the legislation breaches human rights legislation, but Lord Carloway, then Lord Justice Clerk and now Lord President, rejected an appeal in February 2015 that the 2012 act was not sufficiently clear—the appeal court took the opposite view. The appeal court also took the view that the act did not infringe rights under article 7 of the European convention of human rights. That is the view of the appeal court in Scotland.

The principles and reasons behind the legislation are robust and it is important to point out that it is part of a broader approach to tackling issues such as sectarianism. As a Government, we have invested—and been proud to invest—some £12.5 million over the past four years, taking us to March next year, in many important community-based education projects. This morning, I had the pleasure of visiting one of those projects—the I see Scotland project—at Polmont prison.

We have worked to ensure that the recommendations—

James Kelly (Glasgow) (Lab) rose—

The minister is closing.

I will take an intervention from James Kelly.

If the Government is fully committed to anti-sectarian initiatives, will the minister explain why the budget has been cut in the past year by £2 million?

We have put in an unprecedented amount of money—£12 million over the past four years, taking us to next year. That is more than any other Government in Scotland has invested. This week, Mr Kelly was quoted in, I believe, the Daily Record, saying that it was not sensible when tackling sectarianism to simply look at tackling what happened in 90 minutes in Scotland on a Saturday. I would say to him that it is not sensible—

Ms Ewing, you may close.

It is not sensible to look at sectarianism without also considering what happens in 90 minutes on a Saturday in Scotland.

In conclusion, Presiding Officer—

No—I think that you have concluded, Ms Ewing. Thank you very much.

Amendment S5M-02231.1 moved, to leave out from “there are laws” to end and insert:

“the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 sends a clear message that abusive behaviour has no place in Scottish football and gives additional tools to police and prosecutors to deal with acts of hatred; further notes that an independent poll carried out by YouGov showed overwhelming public support for the Act, including support from a majority of the football supporters surveyed; recognises the support from equality organisations in assisting to tackle unacceptable behaviour at football matches; notes the importance of Section 6 in tackling issues of threatening communications and stirring up religious hatred, which have been criminalised in the rest of the UK since 2006; further notes the Scottish Government’s record level of investment of £12.5 million in tackling sectarianism through education and grassroots community work, and urges the Scottish Government to continue with this work through the delivery of the recommendations of the independent Advisory Group on Tackling Sectarianism in Scotland, as well as tackling all other forms of prejudice and hate crime and implementing the recommendations of the Independent Advisory Group on Hate Crime, Prejudice and Community Cohesion.”—[Annabelle Ewing]

15:30  

I welcome the opportunity to have this debate.

Labour has an established position on the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. We are against this unworkable, poorly drafted act. It has soured relationships, focused on a very specific group of people and failed to address and tackle the issues of sectarianism, bigotry and offensive behaviour. That is why repeal of the act was in our manifesto, why my colleague James Kelly is bringing forward a member’s bill to do just that and why today we will support the motion.

Let me be clear that Scottish Labour does not condone any threatening, abusive, sectarian, bigoted or violent behaviour at football, in our schools, communities or homes, or online. I know that all of us in the chamber can unite on that position. We need a strategy that works, but unfortunately the act does not.

So far, the Government has failed to fully and satisfactorily answer the concerns with the drafting of the legislation. The issues range from subjectivity in deciding what offensive behaviour is to the way in which the act criminalises certain behaviours only in a football setting. There are also concerns about the consequences of the legislation for freedom of speech and human rights. According to Lady Paton, Lord Brodie and Lord Philip of the appeal court, the act

“created a criminal offence with an extremely long reach.”

It allows someone to be charged if they are on a journey to a football match, even if they have no intention of actually attending the match.

The law allows Police Scotland officers to use discretion when it comes to deeming what is offensive. Officers now have to become judge and jury in considering when “bad sentiment” becomes “hatred”, as one sheriff put it. That has led to claims of misapplication and misuse. Many people have been arrested without there being an identifiable victim and many charges have failed to lead to conviction.

It is clear that, since the introduction of the legislation, the relationship between fans and fan groups and the police has deteriorated. That relationship needs to be strong if we are to tackle sectarianism and offensive behaviour. Instead of co-operation and self-policing, we have fans being filmed, followed and searched. According to Fans Against Criminalisation,

“the whole atmosphere of football has become one of antagonism—not between opposing fan groups but between fans and the police.”

Young fans are growing up in a culture of distrust of our police force and a feeling of injustice. That is not a healthy relationship to foster in modern Scotland and it could have a knock-on effect on other justice issues.

Football is Scotland’s game, yet when we discuss it in the chamber, we often paint a dark and negative picture of the game. Fan behaviour has changed dramatically since the 1980s. The tartan army is renowned and loved the world over, and the tens of thousands of Celtic fans in Seville for the UEFA cup final won UEFA’s fair play award. Scotland’s clubs are the best supported in Europe if we consider attendances on a per capita basis. Every weekend, thousands of fans travel to games to support their team, doing their club and country proud. Yes, a minority of fans let the side down, but having an act that treats all football fans differently from fans of other sports such as rugby, golf or ice hockey is not the answer.

Ahead of the debate, the Government has repeatedly called for alternatives but, as has been repeatedly pointed out, the alternatives are already in place. Among others, we have the Criminal Justice (Scotland) Act 2003, the Police, Public Order and Criminal Justice (Scotland) Act 2006 and the Criminal Justice and Licensing (Scotland) Act 2010. Sectarianism, bigotry, hatred and violence are not new offences. We have common-law offences such as breach of the peace; public order offences relating to the incitement of racial hatred, harassment and religious prejudice; football banning orders; and a raft of other charges that can be brought against anyone who is clearly breaking the law. That was discussed at length during the passage of the legislation. Concerns were raised but went unheeded by the Government, which used its majority at the time to force through the legislation. However, nothing since the passing of the 2012 act has eased those concerns.

The best laws and legislation are simple, clear and understood, not just by the courts and the police but by the public. However, the act is at best confusing or, in the words of Sheriff Richard Davidson, “horribly drafted”. That critique is simple, clear and understood.

Repeal of the act would include repeal of section 6, which the Law Society of Scotland suggests adds to the complexity of prosecuting the offence and is an area that could benefit from clarity. I am confident that repeal would not restrict the ability to prosecute in that area.

Today, Parliament is uniting against this unworkable act. We have an opportunity to listen to the courts, lawyers, academics and fans and the chance to repair relationships between fans and the police. This is not the time for arrogance or stubbornness; it is time for the Scottish Government to accept the need to repeal the act.

We move to the open debate. I cannot impress on members enough just how tight time is in this very short debate. Speeches will be generally four minutes, including interventions.

15:34  

It would be easy to think that today’s debate is about tackling the blight of sectarianism, which—despite significant progress—still plagues modern Scotland. However, such arguments in this context are nothing more than a straw man because, as we have seen, the legislation does nothing in practice to tackle the underlying issues or to change behaviour. In fact, the only positive thing to come out of the legislation—I give the Scottish Government credit where it is due—is that it has succeeded in uniting football fans across the divide in a common cause. It has shown that—albeit in a narrow context—people can put aside their traditional rivalries in the interest of the game, and it has brought together Opposition parties in the chamber. I hope that the Scottish Government will reflect on that.

Will the member take an intervention?

No, thank you.

The legislation is tokenism at its worst and—perhaps more worryingly—it is very poor legislation that muddies the waters rather than delivering on any tangible policy aims. The warning signs are clear for all to see as judges, civil rights groups, and football fans and clubs have all highlighted continuing concerns. The Law Society of Scotland put it diplomatically when it said:

“We believe that the policy intention and objectives of the 2012 act to address the serious issues of offensive behaviour at football matches and threatening communications is entirely laudable. However, we remain concerned about a number of aspects of the act, which we expressed at the bill stage in 2011.”

That is just the point. The Scottish Government rushed through the bill, railroading it through Parliament without addressing any of the legitimate concerns and criticisms that were levelled. We now find ourselves back where we started, with legislation that is not fit for purpose and which is riddled with exactly the same problems that were predicted back in 2011.

Drafting and legal considerations aside, the most worrying and undesirable consequence of the 2012 act is that it brings so many young males into the criminal justice system for the first time. Of the 287 charges that were brought under the act in 2015-16, approximately 98 per cent of those charged were male. Sadly, almost half were 20 years of age or under and a further 29 per cent were aged between 21 and 30. That tells a very sad story and seems to point to a more worrying trend that continues to exist outside football. That is the point: these problems exist inside and outside football, which is why it is wrong to focus our political effort in this way.

What is more, the act provides no solutions whatsoever. By implication, rather than focusing our financial and political efforts on addressing offending behaviour, we are simply seeking to label the problem and make an example of a small number of individuals.

As YouthLink Scotland rightly highlighted in its most recent consultation response on the subject, we must be mindful of the fact that having a criminal record will impact on a young person’s attainment and employment prospects. That issue seems to fly in the face of the Scottish Government’s own priorities for justice.

After almost a decade in government, is not it time for the SNP to recognise that sometimes gesture politics is not without consequences? It is time for the Government to think again, to listen to legitimate criticisms and to call time on the dog’s dinner that is the 2012 act.

15:38  

I want to highlight the meaning of the word “justice”. The dictionary definition states that it is

“a concern for justice, peace, and genuine respect for people; fairness, equity and egalitarianism”.

Those values are precisely what the 2012 act promotes. It sends out a clear message that we will not permit discrimination, violence, sectarianism, prejudice or hate crime in Scotland.

I want to clear up a few myths about the act. It is working and is reducing sectarianism at football. In 2016, the number of people charged with offensive behaviour from the previous year has increased by 49 per cent, which means that the amount of abusive behaviour and language on our football terraces and streets has reduced by 49 per cent.

The fact is that the 2012 act is supported by the majority of the public—around 80 per cent. Those people just want to enjoy a game of football without having to experience the bile and hatred of a tiny minority of fans.

Will the member take an intervention?

I am sorry, I have too little time.

The 2012 act is also, in the main, supported by football clubs across Scotland.

The 2012 act is not confined to football. An offence is also committed if material is intended to stir up religiously motivated hatred. Sectarianism is not a matter for football in isolation, because the problem goes way beyond the football ground. The 2012 act is also designed to address online communications and hate crime.

Of course we will consider ways of improving the 2012 act’s application. We are happy to do so. However, to repeal the act and get rid of an additional and useful tool, which strengthens existing legislation for police and prosecutors, is not a priority for this Government. The Crown Office said that repeal would leave a gap in legislation, and we would be the only part of the United Kingdom that does not have such legislation. Repeal would be an entirely retrograde step. What message would it send to the next generation?

When my son was a football-mad six-year-old and wanted a football top, we bought him a Partick Thistle Football Club top so that he would not be identified with either side of the old firm. How do we explain sectarianism to a young child? We simply cannot do so, and we should not have to do so. Sectarianism has been the curse of the west of Scotland, and any steps that our Government takes to put a stop to it should be welcomed.

Douglas Ross’s motion, which asks for the repeal of the act, is regressive and negative. The motion is right to say that

“sectarian behaviour and hate crime are a blight on society in Scotland”,

but Douglas Ross’s party, like Labour, has not come up with a single solution to the problem. What is the Opposition’s alternative? Breach of the peace is simply not strong enough.

Will the member take an intervention?

She is in her final minute.

Labour and the Tories supported the approach whole-heartedly in 2011.

To members who oppose the 2012 act, I say that we are proud that, rather than pay lip service to the problem, the SNP Government is prepared to tackle it head on and rid Scotland of a poison that has been a blight on our nation for far too long.

15:41  

Let us be clear. The football act has been a failure. It was imposed on the Parliament against the will of all the Opposition parties, it unfairly targets football fans, it causes friction between police and supporters, and it has been ineffective in tackling sectarianism. That is why 70 per cent of the more than 3,000 people who responded to the consultation on my member’s bill proposal support the repeal of sections 1 to 5 and 62 per cent support the repeal of sections 6 to 9.

The Opposition parties are unanimously opposed to the 2012 act continuing, just as they were unanimous in opposing the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill at stage 3 in 2011. It is time that SNP members started to listen to us, instead of hectoring and lecturing us.

The repeal of the 2012 act would be important, first, because the act causes a lot of confusion and what is needed in the justice system is legal certainty. We need only consider some of the cases. In one example, a whole morning was taken up in a sheriff court by legal debate about whether the jaw movements of a young man whose mouth had been covered with a scarf could be construed as representing an offensive song that might cause public disorder. It really is ridiculous.

As Oliver Mundell rightly pointed out, in the recent tranche of cases, nearly half involved young men under 20, many of whom were being brought into the criminal justice system for the first time. I have listened to many debates on justice and sincere speeches from Michael Matheson and I cannot for a minute believe that that is a policy outcome that the Government wanted or wants to continue.

We must also consider the cost. Some £2 million has been spent on a unit that films football supporters in and outside football grounds. That is not to mention the cost of overzealous pursuit of cases. In recent times, we have seen the return of numerous dawn raids, in which police officers sit outside offenders’ houses in shifts, in order to carry out an arrest. Surely the amount of money that we invest in such measures would be better invested in better ideas in the public services.

The Scottish Government has got the approach to tackling sectarianism wrong in making the 2012 act its flagship policy. A lot of hate crimes are carried out away from the football, and the ministerial team does not appear to have grasped that.

I believe that we can do better as a Parliament. Surely, in 21st century Scotland, we should not have a law that targets one section of sports fans. Surely, in a modern progressive country, we should not be filming football fans going in and out of grounds.

Would you come to a close, please, Mr Kelly?

Surely we can do better than a policy that criminalises young people under the age of 20. I think that there is an opportunity—

Mr Kelly, would you close please?

—for the SNP to reach out and build consensus with other parties and groups in Scotland, and it should start with the repeal of the 2012 act.

15:46  

The Scottish Green Party manifesto position was to support the repeal of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, and that is entirely consistent with objections that Patrick Harvie raised at the outset of the passage of the bill. Indeed, throughout its passage the Scottish Green Party MSPs repeatedly made it clear that although there may be a case for incitement to hatred legislation in Scots law, it should be developed with careful consideration. People have talked about the haste with which the bill was passed. Incitement to hatred legislation must have a significant level of consensus, but there was not consensus on the 2012 act, and it must treat everyone equally before the law—it is felt that the 2012 act targets football supporters.

Various references to judicial comment have been made. In one case at the High Court, the judge said:

“In enacting s1(1) the Parliament created a criminal offence with an extremely long reach”.

Many sheriffs are of the view that the Parliament overstretched itself.

I am sure that many members have had representations on the 2012 act. Someone said to me:

“I am no expert on intersectionality but an approach to religious or sexual discrimination which targets a section of the population doesn’t seem to fit ... The offence in s38 of the Criminal Justice and Licensing (Scotland) Act 2010 has faced none of this criticism because, I’d suggest, it applies across the board.”

I hear a consensus that we need to tackle sectarianism.

Constituents have also written to me. One said that although they accept that the 2012 act probably does not deal with the numerous nuances of behaviour at matches, to repeal it would send a dangerous message to offending groups. I know that that constituent also wrote to John Finnie.

Yes, indeed; this morning they got a courteous reply that outlined the Scottish Green Party’s position and the rationale for it.

Another representation that I had said:

“Unpicking the complex social histories and fabric which has resulted in the sectarian problems we have today is essential. The final report from the Advisory Group on Tackling Sectarianism in Scotland is the best basis we have for a strategy that will deliver on that complex task.”

The Morrow report talked about the need to challenge our acceptance of low-level sectarianism and the need to work across political parties, which I hope will happen. It also called for leadership from churches, community organisations, local authorities and football clubs, and it spoke about the need for funding for grass-roots activity.

The Morrow report was keen to portray the reality that sectarianism is not rife across football. Rather, it is strong in pockets. Sectarianism extends much wider into society and it is wrong to conflate football and sectarianism. There is no way of addressing the issue in football without addressing the wider issue.

How we go about that can be successful only if the approach is consistent and long term, and that can happen only if there is a shared political vision for the work. There never was a shared vision for the 2012 act. The Scottish Parliament is at its best when it is united. We have seen that in relation to some important issues and I hope that we will see unity in condemnation of sectarianism.

As I said, Parliament was never united on the legislation although there is no place for sectarianism in Scotland. The Scottish Green Party believes that the 2012 act unnecessarily restricts freedom of expression and has not been the most effective way of addressing the concerns, and Green MSPs voted against the legislation in 2011. However, I stress that there may be a case for incitement to hatred legislation in Scots law if we can get consensus on that.

I conclude by quoting Patrick Harvie’s final words in the stage 3 debate. He talked about the mistakes in the bill that MSPs would

“need to come back to correct in good time.”—[Official Report, 14 December 2011; c 4658.]

This is a good time to correct them—correction by repeal.

15:50  

I thank Douglas Ross for securing the debate and pay tribute to James Kelly for his diligence in keeping a spotlight on the deficiencies of the 2012 act and for his bill to repeal that ill-thought-through legislation. Like other members, I make it absolutely clear that I utterly condemn sectarian language, acts and behaviour, which are still too prevalent and pervasive in our society. I will happily work my socks off with any party, any group and any individual in a bid to rid our country of that stain. However, I am not interested in quick fixes, headline-grabbing stunts or shows of legislative muscle that are counterproductive and which damage the very relations that we will depend on for a long-term solution.

I say that partly in response to what I thought were insultingly patronising comments attributed to a Scottish Government spokeswoman earlier this week. She said:

“Critics of the act seem to think our only option is just to accept this contempt for fans and players.”

If that is the minister’s view, it does her no credit. For me, it has unpleasant echoes of the former justice secretary’s view that those who opposed the SNP Government’s plans to abolish corroboration were somehow sympathisers with or apologists for domestic violence and sexual assault.

Will the member take an intervention?

No, thank you.

I do not believe that over 70 per cent of the respondents to the consultation on James Kelly’s bill are apologists for sectarianism any more than I believe that any member of this chamber is. They are groups and individuals who reflect the widely held view that the act was flawed from the start—a view that has been borne out by what has happened since the act was introduced. It was introduced by a justice secretary and a majority SNP Government that showed scant respect or regard for the Parliament, for civil liberties or for the complexities of the problem that they sought to address. It was a knee-jerk reaction in response to reprehensible scenes at an old firm game and accusations that the then First Minister and his Government had taken their eye off the ball and failed to carry forward the work on sectarianism that had previously been led by Jack McConnell.

I dare say that we will now be offered an inquiry into how the act is performing, but the time for an inquiry would have been prior to legislating in the first place. Emergency legislation is sometimes necessary, but its use in that instance was not justified and was based on no compelling evidence that the tools at the disposal of the police, the courts and our judicial system were inadequate at the time. No wonder the bill was described as “mince”. It singled out one sport and left what constitutes offensive behaviour open to the widest possible interpretation. Considering how quickly SNP colleagues can be offended when it suits them, such an elastic definition of offensiveness is surely not tenable.

What is the solution? Nil by Mouth and others call for the problem to be dealt with holistically, with action not stopping at criminalising the behaviour of one section of society in one particular circumstance. As John Finnie said, the advisory group on tackling sectarianism has established the foundations for change through initiatives that focus on prevention and building trust and understanding, recognising that councils, churches, football clubs, schools, the media, community organisations and others are all key in delivering grass-roots solutions. The advisory group has set out a series of recommendations. I accept that none of them is as easily packaged and sold as a single piece of newly minted statute, but if we are truly to tackle this scar on our society we must recognise that it will require patient, time-consuming, intensive work by many people and organisations over a sustained period.

We need to show sectarianism the red card, but that can be done more effectively by sending this ill-conceived act for an early bath.

15:54  

The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 is an unfortunate relic of the previous parliamentary term and an act on which proper scrutiny was never allowed. Good law that works must take into account a range of views, particularly those from people who are affected by and involved in carrying out its provisions. The fundamental problem with the bill—pointed out well in advance of it becoming law—was its lack of clarity.

The concept of offence to a notional person, rather than to an actual individual who is affected by the crime, was always bound to be problematic. It has effectively placed the police and the courts in the difficult position of not just identifying but defining the alleged culprit.

The pre-existing law on breach of the peace is, by comparison, relatively clear—and that is saying something. What about the law in practice? Predictably, as has been mentioned, there have been conflicting decisions by respected judges in very similar cases. Different judgments have been handed down for the singing of the same song in the same year. In March last year, on a case a month after the one referred to, Donnelly and Walsh v Procurator Fiscal, Edinburgh, the then Lord Justice Clerk and now Lord President—the highest judge in Scotland—Lord Carloway, said:

“There is no blanket ban on singing sectarian songs and the appellants are at liberty to indulge their desire to do so at many alternative venues.”

Will the member take an intervention?

No, I will not—thank you.

The law has, unsurprisingly, been branded as “capricious” and “unfair, unnecessary and unworkable” by Brian McConnachie QC, former chair of the Scottish criminal bar association.

It is astonishing not just to me but to my Edinburgh and Lothian constituents that football supporters visiting Tynecastle, Easter Road or Meadowbank stadium may be treated differently from those watching rugby matches at Murrayfield stadium. That seems nothing short of ridiculous.

The act provides a platform for the promotion and creation of social division. That is surely the opposite of its supposed purpose. Critically, as has been said, the act does not have the support or the respect of the fans. Police Scotland needs to have fans’ support and respect to maintain law and order, which the vast majority of football supporters want to see. Police Scotland’s job is difficult enough without being added to by unclear law such as this act.

There is, of course, a real issue that requires to be dealt with: sectarianism and its ugly consequences. The way to deal with that is through education and removing the circumstances that lie at the root of the problem. A law that fails in so many ways is not the answer.

Professor Ewen Cameron of the University of Edinburgh has rightly said that the legislation

“doesn’t really address the underlying issues, the deeply held cultural attitude and feelings. It addresses a symptom of sectarianism, the particular problem of ... sectarian language. Underlying attitudes can’t really be dealt with by criminalising songs.”

There is no point in having laws for their own sake. We need to deal with the underlying root causes and not just the consequences of sectarianism. I sincerely hope that the Scottish Government will, for once, listen.

15:58  

I am sad to say that I will not be able to take any interventions, because I have only four minutes. If I had had more time, I would have been happy to do that.

Presiding Officer,

“there are still instances of online campaigns which are sectarian in nature and are unacceptable ... The job for a ... parliament is to look at the laws around the internet”

to see if

“they’re tough enough ... we want the authorities to act”

and get

“the appropriate tools in legislation at their disposal to clamp down on this.”

That was a comment by James Kelly on 22 April 2011, which was coincidentally about two weeks before an election, which shows to me that this debate is nothing to do with trying to improve the legislation and everything to do with trying to defeat the Government. This is a political stunt by two parties that have been working very closely together for quite some time now.

Will the member take an intervention?

The member obviously was not listening to the beginning of my speech.

I have heard a number of people say that they cannot understand why football was singled out. The people who are saying that do not know anything about the situation in the west of Scotland.

The one defining picture of sectarianism in Scotland has always been football. That is not where it all comes from or where, deep down, it lies. All those things have been dealt with, but if we are trying to pretend that sectarianism and football have not been ugly brothers for some time, we have not been paying attention. We had to take on the sectarianism and antisocial behaviour at football, and the death threats that managers were getting. I cannot believe that the Conservatives are keen to get rid of section 6 of the 2012 act. There is absolutely nothing to replace it.

James Kelly rose—

We have been told that we should do nothing. It is ridiculous. Douglas Ross said that we should do nothing, as did James Kelly. [Interruption.] No, Mr Ross, you said that we should do nothing. Yesterday, James Kelly told me that we should let the clubs deal with the issue, and that is what Douglas Ross is saying today. The clubs refused to do anything. The Scottish Football Association wanted to bring in strict liability, but the clubs said no. The supporters of two clubs fought at the Scottish cup final at Hampden—the whole world saw it—but neither club was found guilty of anything. [Interruption.] That is the whole point. We are saying that there is still work to be done. The Conservatives’ argument is that we should go back to having less legislation, with the result that we will be less able to hold people to account. We must hold the clubs to account. We must hold people to account. [Interruption.]

Could members all talk through the chair, please, instead of holding private conversations?

I apologise, Presiding Officer. That is what happens at football matches all the time.

The clubs will not do anything unless we make sure that there is legislation in place for them. We must keep the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. We must send out a message that we take the issue seriously.

I know that there is no member who is complacent about sectarianism. Douglas Ross says that we are wrong, but I say that I honestly believe that the message that the Conservatives would send out by repealing the 2012 act would be that they do not think that there is a problem that still has to be dealt with. I know that that is not Douglas Ross’s intention, but that is the message that would go out loud and clear to people all across the country.

I know lots of football fans; I have been a football fan for longer than most Conservative members have been alive. [Interruption.] Not you, Jackson. Many of the people I know support the 2012 act because they want to go to a game and enjoy their football. They want to take their children and their grandchildren with them, and they do not want to have to listen to the rubbish that I had to listen to when I was a kid, which my sons had to listen to when they were kids.

I ask members to support the Government and not to support the motion, because it is flawed.

The last of the open debate speakers is Kate Forbes. I can allow you around two minutes, Ms Forbes.

16:02  

I support the Government’s amendment because the Conservatives have lodged a motion that rightly condemns sectarian behaviour and hate crime, which it says are “a blight on society”—I agree—but it does not offer a single solution. It is a weak Opposition that will carp and criticise as it sits in the stands and a strong Opposition that gets on the pitch with an actual plan.

The appalling scenes at the recent Scottish cup final humiliated this nation. Quiet indulgence or passive acceptance of sectarian banter runs as a fault line through Scottish society. I know that none of us is resigned to the status quo. One thing that can be said for the Government is that it is not resigned or indifferent.

Immediately prior to the introduction of the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, Opposition parties lined up to ask the Government what specific action it would take to address sectarianism. We did something. I repeat that question to the Opposition parties: what is their viable alternative that would solve football-related sectarianism? With the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012, we criminalised hateful behaviour that incites public disorder and sent a message that Scotland would not tolerate any form of hate crime. We will continue to consider ways to improve the application of the act, but we are yet to hear of anything better to replace it with.

Education is, of course, important, but it is not the only answer. Funding is vital, but it will not fully solve the problem. We need legislation. Therefore, I repeat the question that was asked by Opposition parties more than four years ago: what are they going to do, when bullets and explosive devices are sent through the post, when banners with threatening remarks are displayed or when inflatable dolls are strung up at football matches? What is their alternative to the 2012 act when hundreds of police hours are spent investigating crimes after football matches and tens of people are arrested after a cup final?

That is the reality in Scotland. There is public support for tackling hate crime, for a strong criminal justice system and for clarity in enforcing legislation. We are committed to that, which is why this act exists. We can debate and oppose it if we want, but it is just empty rhetoric and—to use Mr Mundell’s words—gesture politics if there is no viable alternative.

We move to the closing speeches, and I call Mary Fee. You may have four minutes, Ms Fee.

16:05  

Sectarianism is an intolerable form of human behaviour that should never be treated with acceptance or ignorance. I thank the Conservatives for bringing this debate to the chamber this afternoon, because I think that their motion reflects the mood of the Opposition parties, football fans, academics and law bodies. We want to tackle sectarianism through education and prevention and to work with anti-sectarianism charities, churches, football authorities and fans to develop positive measures to stamp it out in Scotland.

I do not doubt the Scottish Government’s intentions in tackling sectarianism, and I believe that they are sincere. Like many others, however, I also believe that the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 was rushed and is reactionary.

There have always been wider problems surrounding football, particularly in Glasgow and the west of Scotland, but to tackle sectarianism adequately, we must look at the deeper roots and attitudes of those holding biased and sectarian views, whether or not they are football fans. James Kelly has outlined his reasons for holding a consultation to repeal the 2012 act. Over 70 per cent of respondents believe that the Scottish Government should listen to their views and join the rest of the chamber to scrap the act and take other measures to tackle bigotry.

Prior to the act becoming law in 2012, there were already eight pieces of legislation that tackled hate crime, sectarianism and behaviour of football fans. The 2012 act is illiberal and treats football fans differently from any other sports fan or, indeed, anyone in any other walk of life. Sectarianism occurs in the workplace, in the school and on the streets; it does not start when a fan walks through the turnstile and does not end when the full-time whistle blows.

Assumptions based on bias or bigotry can be made about something as simple as a person’s name. I have been in that position, having been abused because of the connotations of my surname for some people. That did not happen at a football game or while watching sport, and the same thing happens throughout society across the whole of Scotland. I believe that the 2012 act discriminates against fans; it has damaged trust between fans and police; and it has failed to tackle sectarianism in a proportionate or effective way.

Football across the world has a problem with inclusivity in a range of areas, especially homophobia and racism. Working with national Governments, the governing bodies of football—FIFA and UEFA—and the national football associations must do more at local and grass-roots levels to tackle all forms of discrimination.

The views across the Opposition benches are clear: the Scottish Government will have the chamber’s full support if it listens to the fans and goes back to the drawing board to work with a range of stakeholders, including fans, churches, anti-sectarianism groups, clubs, schools and many more, on a more effective way of educating people and understanding and tackling the root causes of sectarianism.

16:09  

I have listened with interest to the contributions that have been made. It is fair to say that there is a level of consensus in the chamber, particularly on the need to do everything that we can to tackle unacceptable behaviour that takes place in or outwith football grounds. We all have a collective desire to drive out unacceptable behaviour in our society, whether it takes place during the 90 minutes of a football match or in communities.

It is important to recognise that no one says that legislation is a panacea to tackle unacceptable behaviour in our football grounds or communities. A variety of measures need to be taken to tackle unacceptable behaviour effectively. Through our schools, community-based programmes and partnership work in communities, we need to educate young people about unacceptable behaviour, whether that is sexism, homophobia, racism or sectarianism, all of which have no place in our society.

There is no doubt that our football clubs have an important part to play in tackling unacceptable behaviour that takes place in the environs of their grounds, and I have no doubt that clubs could do more to support that objective.

Will the cabinet secretary give way?

Let me make progress, please.

Equally, alongside that, legislation has a part to play in supporting our law enforcement bodies and our prosecutors to deal effectively with unacceptable behaviour in any shape or form, wherever it takes place.

Throughout the debate over the four years since the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 was passed, there have been people who have said that the act does not work and should be repealed. We have repeatedly asked Opposition parties what they would do differently and how the existing legislation could be improved or how the deficiencies in it could be addressed. However, we have been struck by the silence from the Opposition parties.

I will pick up a couple of points.

Will the cabinet secretary take an intervention?

Let me make progress on issues that have been raised in the debate.

I was struck by the lack of an alternative approach being set out by any of the other parties. I was particularly struck by James Kelly’s contribution. He referred to the Police Scotland focus group that deals with tackling unacceptable behaviour in football grounds. That group was not set up because of the legislation; it was set up on the basis of a recommendation from the joint action group on tackling unacceptable behaviour in football and it helps to address the issue in football grounds.

I was also struck by the contributions that were made across the chamber that tried to make the focus of the debate purely about football. The act deals with unacceptable behaviour in football grounds, but it also deals with issues to do with threatening communications. Section 6 is an important part of the act. Many contributions, such as those from Douglas Ross and other members, completely ignored that issue.

I am glad that the cabinet secretary mentioned the threatening communications section. Does he accept that, with only three cases having been brought in the past year, it is clear that prosecutors do not see that section as a viable way of tackling online abuse?

Looking at whether legislation is viable on the basis of how often it is used is a simplistic approach to dealing with such an issue.

Let us remember that section 6 was put into the legislation because a football manager received bullets through the post and because two members of the public, including a Deputy Presiding Officer of the Parliament, received viable explosive devices through the post. All of that could have been dealt with only on a summary basis in our courts, which would have limited their powers to sentencing people to no more than a year. However, we put such offences on indictment through the legislation, which allows our courts to deal with matters much more effectively.

Those who say that the legislation is just about football have to recognise that, if they want to repeal the act, they also want to repeal an aspect of it that is essential to dealing with threatening communications. If that was repealed, we would be the only part of the United Kingdom that did not criminalise threatening communication that has the purpose of stirring up religious hatred. That is what the Opposition parties seek to do with the motion, which is why it should be opposed.

16:14  

At the start of the debate, Douglas Ross set out the case against the legislation. It is unnecessary, unworkable and illiberal, and I will deal with each of those aspects in turn and take the opportunity to respond to some of the points that have been made.

We believe that the legislation is unnecessary. The Scottish Government introduced it as part of the something-must-be-done mentality to address a legitimate concern about sectarianism in Scottish society. It ignored the fact that, as we have heard throughout the debate, laws already existed to address the problem, including common-law breach of the peace. The Law Society of Scotland’s briefing for the debate says:

“A substantial proportion of the offensive behaviour related to football which leads to a public disorder was likely to be caught by the substantive criminal law which existed prior to the 2012 act coming into force and continues to exist.”

The Law Society is quite clear that the laws were already in place.

I have experience of those laws. I remember standing in football grounds in the 1980s and seeing the police lift people from around me who were singing threatening and offensive songs. One of the individuals in question is now a prominent Scottish lawyer, whom I will not name in the chamber. For the avoidance of doubt, I say that it was not Professor Tomkins.

We heard the cabinet secretary, Kate Forbes and Rona Mackay ask what would replace the legislation, but that completely misses the point of what we and others have been saying. If the existing laws were properly enforced with proper resources, they could deal with the problem.

At the start, the minister said—it is covered in her amendment—that we need to send a message. We have the act because it sends a message about the unacceptability of sectarian behaviour. There are better ways of sending messages than criminalising hundreds of young men. Oliver Mundell talked about young men, and there will also be young women who have had their life chances adversely affected because they have been criminalised under the act. The act has soured relationships between fans and the police.

Mr Dornan accused us of political opportunism for taking the issue as a chance to defeat the Government, but our view has been entirely consistent. We opposed the bill from the start, as did all the Opposition parties. Is it any surprise that we now see an opportunity to repeal what we believe is bad law?

My next point is that the law is unworkable. Claire Baker said that laws need to be clear and easy to understand. In her opening speech, the minister said that the act had brought clarity to the law.

Will the member take an intervention?

I tried to intervene on the minister to ask her to explain that remark. I will be delighted if she can now explain why all the people in the legal profession and the judiciary who have criticised the law are wrong. Why does the Government think that it is right and they are all wrong?

In his characteristic manner, the member is perhaps overegging his case in saying that the whole legal profession takes the view that he just described. I quoted the 2015 judgment in the appeal court, when the Lord Justice Clerk of the time, Lord Carloway, was sitting on the bench.

The minister has not responded to the broad criticism that is contained even in today’s briefing from the Law Society of Scotland, which talks about the lack of clarity in the law. That is backed by a range of experts sitting on the bench, whose concerns have been quoted throughout the debate.

We heard an interesting and well-informed contribution from John Finnie for the Greens. He said that there might well be a case for a law against inciting hatred, but it needs to be a general law and not one that applies just to football, because such an approach is inappropriate. We all agree that there is a genuine concern about sectarianism but, if we are to address it, we need to do so across society and not just at football. One of the concerns about the act that the cabinet secretary just mentioned is that it criminalises people in relation to football but not in relation to wider Scottish society.

My final point is that the act is illiberal. It criminalises those who cause offence to others. I believe that people should not offend each other—they should be better behaved—but that does not mean that we should make criminals of those who cause us offence. The act launches a new class of victimless crime, as Gordon Lindhurst reminded us.

In the Joseph Cairns case, a Celtic fan attended a match against Ross County in Dingwall and was filmed by police officers singing two Celtic songs—“The Roll of Honour” and “The Boys of the Old Brigade”—which led to him being prosecuted under the act. This was a victimless crime. Nobody complained to the police that they were offended by his singing and nobody was incited to public disorder. He was one of several thousand fans in the ground who were singing at the same time, yet he was the only one who was singled out for attention. As James Kelly said, the act unfairly targets people who are in football grounds or are associated with football. It does not address sectarian behaviour in other contexts.

The act is bad law. It has united commentators, football fans, lawyers and the judiciary in opposition and it is unworkable. It creates tensions between football fans and the police, it is unnecessary because what it does is covered by existing laws, and it is illiberal. For those three reasons, it should be repealed, and for that reason we should all support the motion in Douglas Ross’s name.