Agenda item 7 is our sixth evidence session on the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill. I refer members to paper 4, which is a note by the clerk, and paper 5, which is a private paper.
I welcome James Kelly MSP, the member in charge of the bill; Mary Dinsdale, from the non-Government bills unit of the Scottish Parliament; and Catriona McCallum, from the Scottish Parliament solicitor’s office. I invite Mr Kelly to make a short opening statement.
I thank the convener, members of the committee and the clerks for the efficient and professional way in which evidence has been taken from members of the public and various experts. The evidence sessions have been very helpful indeed.
I have come to this morning’s committee meeting to submit evidence and to speak in support of my bill to repeal the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. The evidence that has been received by the committee has overwhelmingly supported repeal. More than three quarters of the written submissions from individuals supported full repeal, as did more than half of those from organisations. The evidence sessions have been very instructive. We have heard that football supporters feel that they have been unfairly targeted and do not support the existing legislation, which they have shown to be ineffective. One witness gave the example of a league one play-off match between Partick Thistle and St Johnstone at which supporters who were doing the conga were subject to the attention of and warned by the police.
The legal representations from the Law Society of Scotland and the Glasgow Bar Association have demonstrated that the law is not fit for purpose. The Law Society has established that all prosecutions brought forward in 2016-17 could have been captured by pre-existing legislation. It is concerned that the scope is too wide and that the legislation is potentially open to further legal challenge; that concern has been reinforced by the Scottish Human Rights Commission, which said that the act is potentially in breach of the European convention on human rights—that is a serious concern for the committee.
We have heard from academics about how freedom of speech has been impinged and how the 2012 act has not been effective in achieving its original objective.
In summary, the act has been discredited. It unfairly targets football fans, it is not an effective piece of legislation and it is not achieving the outcomes that it set out to achieve. I submit to the committee my full support for repeal of the act.
Thank you for that statement. We move to questions from members, starting with George Adam.
Good morning, Mr Kelly. As you will no doubt be aware, I have been following a particular line of questioning during consideration of the bill. There is an urban myth that this matter was brought to a head by the shame game and two managers going toe to toe. It might have brought it to a head, but there had been a steady and systematic worsening of behaviour at games both on and off the field. Indeed, things took on a more sinister tone around the same time, with Trish Godman, who at the time was the Parliament’s Deputy Presiding Officer, and the late Paul McBride getting parcel bombs in the post. Neil Lennon was targeted in the same way, with bullets as well as a bomb. When you think back over that timeline, surely you agree that the Scottish Government was right to introduce this legislation.
I do not agree with your proposition. To put this in context, I have been a football supporter for more than 40 years now—I attended my first football match in 1969—and I can well remember a time, particularly around the late 1970s and early 1980s, when there was a lot of public disorder at football matches. There were a lot of offensive songs being sung by both sets of supporters at games, clashes inside and outside grounds and a tense atmosphere at matches. I am not seeking to sugarcoat any incidents that have happened over the past five or six years or to downplay the incidents that you have described of people being threatened with bullets in the post, but the fact is that, although at the game in March 2011 that you are referring to there were 34 arrests, they were mainly for public order offences, not for what people would term sectarian singing. There was a clash between two coaches at the end of the game, and that became the image that dominated media coverage in the coming days and which caused such a reaction.
It is also fair to point out that the incident happened in the run-up to the 2011 election—
Mr Kelly, do you—
Please let me answer the question.
Let Mr Kelly answer, Mr Adam, and then you can come in.
It happened in the run-up to the 2011 election; the Scottish National Party captured the issue and, in the aftermath of the election, it rushed through the legislation against the will of all the Opposition parties in the Scottish Parliament.
So are you discounting the fact that Neil Lennon was sent bullets in the post and that the Deputy Presiding Officer and Paul McBride QC, who had specific Celtic connections, were sent parcel bombs? Are you saying that things were not so bad then and that I am exaggerating how things were back in that period?
No. If you had listened to me, you would have heard that I said that I was not discounting those very serious incidents, which were quite correctly dealt with by the police and prosecutors at the time. What I was trying to do was put behaviour at football in a 40-year context, and I believe that the situation with behaviour was much more serious in the 1970s and 1980s. Things have dramatically improved since the Hillsborough disaster in 1989, the advent of the Taylor report and the introduction of all-seater stadiums. I am not downplaying any misbehaviour at football matches in recent times—I think that it must be treated seriously—but we need to put things in context, and what we saw was a complete overreaction by the SNP Government in pushing through the legislation against the will of all the Opposition parties.
Do you believe that it is correct for anyone at football to sing a song that supports active terrorism?
I go to football as a supporter and I sing football songs. I believe that that is what everyone should do. If anyone sings in a hateful manner at a religious grouping or in terms of race or sex, that is totally unacceptable, and those people should be brought to justice. However, I also believe that people have the right to freedom of political expression, within limits.
Mr Adam, I must say that you advance that point of view with some lack of credibility. In 2015, you signed a motion lodged in this Parliament by Kenny MacAskill celebrating the Easter rising. If you went along to a football match and you took part in songs commemorating the Easter rising, you might find yourself spending time in a police cell.
I was talking about specific acts of terrorism.
I have made my position clear: people at football should sing football songs. If people sing or demonstrate in a hateful manner, whether out in the street, in a club, in a local community or at a football ground, that is unacceptable, and those people should be prosecuted under section 74 of the Criminal Justice (Scotland) Act 2003 in relation to religious aggravation. However, people have the right to freedom of expression, as long as they are not participating in a hateful manner.
Last week, I used the example of the Palestinian display at Celtic park, which the minister was not able to deal with. That display is a legitimate right to political expression; it should be allowed.
With that in mind, is it acceptable to sing the famine song or “The Roll of Honour” at a football match?
I am not going to run through a—
I am just asking about those two songs.
No, I am not going to run through a song book, particularly as—
I will stop you there. We now have an hour and a half, more or less, to cover a lot of areas. George Adam indicated that he has areas of interest—as do other members—that he wants to question James Kelly about. In fairness to Mr Kelly, and to the other members, I would be grateful if all members got on with the line of questioning that they indicated that they had an interest in.
Okay. I will finish with one more question. James Kelly mentioned the academics who came along to the committee. Dr Stuart Waiton says that it is a football fan’s right to be offensive at football. Do you agree with that?
No. As I have made clear, people should sing football songs at the football ground. I recognise that people have the right to political expression, but they do not have the right to be hateful towards religious groups, or to be hateful because of a person’s sex or race—
Do you disagree with Dr Waiton?
I am laying out my position. I have made it clear throughout that people should sing football songs. I support the right to legitimate political expression, but I do not support hateful songs or hateful actions, whether that be in a football ground, in the street, in a local community or outside a religious venue.
I bring in Fulton MacGregor briefly. If it is not a brief matter, we will have to move on.
Welcome, Mr Kelly. You said that people should sing football songs at football matches. What do you say to people who do not go to matches who find those songs offensive?
Are you asking about people finding football songs offensive?
Yes.
I would hope that, if people were singing football songs, they were getting behind their club on the pitch. I do not see what point you are making.
You are declaring that some songs are football songs. If other people find those songs offensive, is that just tough luck for them?
With all due respect, I do not think that you understand the position that I am outlining. I am saying that, as a football supporter, I go to the football to support my club. I do that by singing football songs that get behind the team on the park. I do not understand how that is offensive.
The committee has heard a lot about the message that repealing the 2012 act would send not only to the general public but to football fans. It has been suggested to the committee that repeal could lead some supporters to believe that certain behaviours are being decriminalised. How do you respond to that?
There has been a lot of discussion about the message—and a lot of simplification and generalisation about it. The message around the legislation is quite a weak one. The legislation had the support of only one political party at the time that the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill was passed. That continues to be the case—the 2012 act has the support of only one political party in this Parliament. The legislation has also been called into question by legal groups such as the Law Society. It is bad law. There are serious issues about the overreach of the law.
11:30What we have with the legislation is a disjointed approach. We do not have full support from political parties. We do not have full support from legal organisations. We do not have full support from football supporters and football clubs. The legislation has been called into question by human rights groups. One commentator described it as the worst piece of legislation that has ever been passed by the Scottish Parliament. The fact that opinions on the legislation are so divided reinforces that view. We are not, therefore, sending a strong message.
On the issue of moving forward with the decriminalisation of certain actions, what is needed is a more unified approach. For example, the singing of hateful songs against religious groupings can be prosecuted under section 74 of the Criminal Justice (Scotland) Act 2003. I think that that is something that everyone would agree on. Getting all the different groups behind the one message that those hateful songs are not appropriate and that there is legislation to deal with that, and tying that into education and better collaboration between fans, police and clubs, would be a much more effective way of going forward.
I want to press you on the message. Are you aware of what message is actually being heard by football fans? Has anyone adduced any evidence or data on that? If we accept that we can isolate who is singing the songs, to within a reasonable population, has anyone gathered any data on what those people understood when the legislation was brought in—what message was heard by those groups—and what message those groups would hear if that legislation were taken away?
I do not have data directly about that. I would say that the message that those who support this legislation have sought to send is that it is about tackling sectarian behaviour. That is despite the fact that that is not stated in the act and that that behaviour is not defined in the act. I think that the act has failed in that regard. The latest statistics on religious hate crime, which have been provided to the committee, show that there were 719 charges relating to religious hate crime in 2016-17. That is the highest that the figure has been in the past four years, which shows that there is a serious problem. However, only 46 of those charges were under the 2012 act, so less than 7 per cent of the charges related to football. That demonstrates that we have a serious problem with religious hate crime in Scotland, which is something that should concern all of us, but the idea that it all carries on around football has been blown out of the water by the fact that only 7 per cent of those charges relate to football.
I think that confusing messages are being sent to those who are at the football. As some people have said to you in evidence, the issue of what counts as criminal activity and what will and will not be captured under the act is confusing.
My opening position is that people should sing football songs. However, I recognise that people sing a range of songs, and people are not clear about what is and what is not criminal under the act. That point is reinforced by what the Law Society said about the confusing definitions about what constitutes offensive behaviour.
You mentioned football songs in your reply to George Adam, and you mentioned football songs again just there. You say that you have been clear in what you have been trying to say, but George Adam asked specifically about the famine song and “Roll of Honour”. I have to admit that I do not regularly frequent football matches—when I do, it tends to be Brechin City matches—so I would like you to clarify what, to you, is a football song. Do those two songs count as football songs?
I will stop you there. The clerks advise me that we need to stick to the provisions of the bill. We have already covered this ground and I do not think that we are going to move much further on it.
Mairi Gougeon, is there anything else that you want to ask?
There are some things that I would like to ask, but I think it would be an important clarification if we were to understand what the member means by a football song. It is important to get that in the Official Report.
I am quite happy to answer, although I have already been clear. A football song is a song relating to football that gets behind the football team on the pitch. I have also said that hateful songs that are abusive towards religious groups or are based on race or gender are totally unacceptable, but I understand and accept that, leaving aside hateful demonstrations or songs, there should be freedom of expression.
For example, at the 1988 Scottish cup final, I took part in a political demonstration against the Conservative Prime Minister Margaret Thatcher, who was presenting the trophy that day. There was a red card display. That is a legitimate act of political expression within a football ground. Some might argue that that kind of act might be criminalised under the 2012 act.
I believe in the right to freedom of political expression. I do not believe that that should include hateful songs or demonstrations, and I support the idea that people should concentrate on getting behind their football teams.
I want to follow on from Liam Kerr’s questions about the overall message that we send out. We received evidence from a number of different groups. In its submission, the Church of Scotland said:
“repealing the Act without replacement would be a symbol that our elected representatives do not think that behaving offensively or sending threatening communications is problematic. At a time of rising levels of Anti-Semitism and Islamophobia and where Sectarianism remains a reality of life in Scotland, the wider implications for repeal should be taken into account.”
The Church of Scotland was by no means alone in that point. Stonewall Scotland and the Scottish Council of Jewish Communities expressed similar concerns. How do you respond to those concerns?
I do not favour keeping in place legislation that targets football fans and, as I said to Mr Kerr, has quite a weak message.
In terms of protections for particular groups, as the Law Society of Scotland and the Scottish Human Rights Commission have reiterated, sections 1 to 5 of the 2012 act mean that the legislation could be open to legal challenge. It is weak in that regard. The police also told us that section 6 is too tightly drafted and is not used much at all, except in the context of threatening communications.
I do not believe that keeping weak legislation in place is effective in offering either a message or protection. The way forward is to reinforce the credible existing laws, to do more with education to get across the message of tolerance in society, and for clubs, the police and fans to work together, as was suggested by the Scottish Football Supporters Association. That is the way forward.
I do not think that it is fair to pick out some of the evidence that we have heard and some of the people who gave evidence. By doing that, you are suggesting that other groups who gave evidence are somehow less legitimate. This committee has reviewed a lot of legislation and everybody is entitled to express their opinion, and all those views are legitimate. You do not just pick and choose the ones that agree with your own point of view.
I have another question about the questions that you put to the minister last week. We have heard a lot about the rights of football fans and their views of the legislation. Your line of questioning to the minister suggested that if someone does not attend football regularly, they cannot really have an opinion on the legislation. However, the behaviour of fans at football has a wider impact, for example on people who are commuting on trains. We heard about incidents that have happened on trains, for example. What about the rights of those people? Are they factored into your thinking at all? Do you not agree that pushing the repeal of the act ignores the rights of people more widely in the community, such as those who are just commuting on a train?
Could members please stick to the line of questioning, more or less? There is some latitude, but you are being most selfish and unfair to other members when you go off at a tangent when we have so much to cover. I will allow as much latitude as possible, but please bear that in mind.
I take seriously all the evidence that has been submitted. I do not know where Mairi Gougeon is coming from in saying that I am picking particular bits of evidence, because I obviously look at the evidence very seriously. Last week, Ms Gougeon referred to a statistic that there has been a 50 per cent rise in the number of football-related incidents on public transport. I was not able to source that evidence, but the statistics that have been provided to the committee show that incidents on public transport have gone down by half. It is important to be accurate.
On the general point, people will be offered better protection and will feel safer if effective legislation is in place, but the act is not effective or credible legislation. Only when we have legislation that takes a more unified approach and looks at the wider issue of religious hate crime will we start to move forward credibly.
I want to follow on from Mairi Gougeon’s questions. She fairly articulated the concerns that have been raised with us about the message that would be sent if we repeal the act. We all accept that legislation can send a strong message, but is there not a risk that we raise false confidence and false expectations about the protections that are provided if we indulge the view that the 2012 act provides protection when, from all the statistics that we have seen, it patently does not? Is that not an equal risk when it comes to the message that we send out?
It is important to understand that the issue is not just about the legislation on its own. As I said in answer to previous questions, when I looked at the statistics, I was shocked to see that the religious hate crime figure is higher now than in each of the three previous years. That is a real issue. Some people who supported the bill in 2012 did so on the well-founded basis that they wanted to try to tackle religious intolerance. However, the situation shows that we need a much wider discussion. In the information that has been provided to the committee, there is no analysis as to why there has been that increase to 719 charges. We need an assessment of that and proper action through Scottish Government justice policy, not just legislation.
I want to ask about the feedback that you have had from fans who support the repeal. I am a bit confused as to what they actually want to do when they go to a football match. How is the act impeding their enjoyment of a football match?
First and foremost, the main objection is that we have a piece of legislation that targets football fans. One of the witnesses said in evidence that there is no legislation in place in countries across Europe such as Poland and Turkey, where there are serious crowd disorder problems. People fundamentally object to the idea of having a piece of legislation that specifically targets football fans.
A linked issue is the way in which the legislation has been policed. Interestingly, we see this morning that the former justice secretary Kenny MacAskill has said that the police are “run ragged” and do not have time to investigate low-level crime. People will therefore find it staggering that we spend £2 million supporting the police unit that films supporters going into grounds and closed-circuit television recording, as they have been told that we might not have the resources to deal with antisocial behaviour or acts of vandalism in their streets. In summary, football supporters do not like the fact that they are being specifically targeted with legislation that is pretty unique in Europe and that they are filmed going into football grounds. That has resulted in their relationship with the police deteriorating.
11:45
You referred to what some people would term sectarian singing. I have been to football matches and heard what I would term sectarian singing. Do you deny that sectarian singing happens at football matches?
No. I never said that.
You referred to what some people would term sectarian singing. I just want to know what you think sectarian singing is.
With all due respect, I have made it clear throughout the evidence session that I regard the singing of hateful songs against religious groups, whether that takes place in a football ground, outside a religious venue, in a club or in a pub as totally unacceptable and that it should be prosecuted. Section 74 of the Criminal Justice (Scotland) Act 2003 exists in order to do that. I cannot be any clearer that I do not find that behaviour acceptable.
If the repeal bill is passed, what should happen to the cases that are currently going through the system?
As I have outlined in the transitional arrangements, any cases that are currently going through the system should fall at the date of royal assent.
Have you had any contact with the Lord Advocate about that?
No, I have not. Obviously, I have run a consultation on the bill, but there has not been any feedback on that from the Lord Advocate.
You have said quite a few times that the 2012 act is not needed because crimes that are committed under it are covered by other legislation.
Yes.
Is it your intention that cases that are currently going through the courts should be tried under the existing legislation? Is there any precedent for that happening?
That is really a matter for the legal authorities to consider as the bill makes its way through Parliament. My point of view, which the Law Society of Scotland has backed up, is that pre-existing legislation could capture all the cases that came through in 2016-17 and certainly any on-going cases.
I still struggle with the fact that you say that songs of hate and discrimination should be legislated against, but you want to repeal an act that specifically does that. I do not get that. If that is what you believe, why do you object to the 2012 act?
It is about good law. I believe that, if someone commits a hateful act outside a religious venue or in a club, a pub, a local community or a football ground, that is unacceptable and it can be prosecuted under section 74 of the Criminal Justice (Scotland) Act 2003. I believe that one piece of legislation is more effective than two pieces of legislation, and I do not understand why we need different pieces of legislation to prosecute unacceptable behaviour in different venues.
I do not understand why you should care about that.
I care because I care about good law and good practice. Having one law that covers the offences in all those places would be more effective than having two laws, particularly when one of the laws—the 2012 act—is so discredited.
Good morning. You have highlighted issues with section 1 of the act. Have you received any representations from fans regarding the Lord Advocate’s guidelines?
Obviously the Lord Advocate’s guidelines are only guidelines; they are not legislation. It is the legislation that courts give primary priority to, and fans are concerned about interpretation of that legislation and the power that it gives individual police officers. As we heard in a previous evidence session, police officers have had to be trained in what might or might not be offensive behaviour, and under the 2012 act, if people begin to sing a song, the police officer is required to get into a particular mindset, ask himself, “Is this offensive? Would a reasonable person be offended by it? Is it likely to incite public disorder?” and to consider what his training manual says. I do not think that such law is effective, and supporters are concerned about the lack of clarity about what, under the act, is and is not criminal activity.
I have the Lord Advocate’s guidelines in front of me but, because of the time, I will not read them out. However, your policy memorandum suggests that the bill will
“reduce fear for some people of attending football matches”,
but the Lord Advocate’s guidelines make it very clear that hateful behaviour, threatening behaviour and other offensive behaviour in relation to race, colour, nationality, ethnic origin, sexual orientation, transgender identity or disability are criminalised under the act. What I am interested in finding out is how, in removing those protections, your bill can
“reduce fear for some people of attending football matches”,
other than the fear of people who want to indulge in such behaviour of being caught.
The bill will reduce fear because it will remove legislation that is not working effectively and is targeting football fans. I do not think that a law that is as much contested as the 2012 act is, is effective in giving people proper protection. A more credible way of moving forward would be to reinforce the existing and more credible legislation.
There continues to be confusion about what is and is not legitimate under the 2012 act: indeed, we have heard from BEMIS (Scotland) on that very issue. I have reiterated throughout the process that hateful behaviour is unacceptable and should be captured under legislation; however, there are times when people are participating in acts of political expression or are celebrating their culture or particular dates, and there is a lot of confusion as to whether such activities are criminal under the 2012 act.
That is an interesting and important point. What behaviours do you believe the 2012 act prevents fans from displaying? I know that the question has been asked several times, but I still find the behaviours that you say cannot be displayed to be very vague and ambiguous.
I have made it very clear that any hateful action towards groups or individuals is unacceptable and can be captured under legislation that existed prior to this act.
Cannot that behaviour be captured under the 2012 act? That is the question that we are all interested in.
Perhaps I can help a little bit here. Does not it depend on context? Something that could be hateful in one situation might not be hateful in another.
That is a point that the Law Society and a number of legal representatives have made. However, let me go back to the example that I highlighted last week to the minister, about a political demonstration in support of—
Are you aware of any arrests that were made last week under the act?
I am sorry: are you talking about the Palestine demonstration?
Yes.
As I said to the minister—
I do not think that there were any arrests.
That is the point that I was going to make. As I said at the time, the police concluded that there was no action to be taken under the 2012 act. People see that, and then they see what happens with displays of support for Irish nationalism, Scottish nationalism and so on. I gave the example of someone with a Catalan flag being removed from Ibrox. There is confusion as to what is a legitimate expression of political support and what might be criminal under the act.
We have several technical questions to get to on the provisions of the bill.
I will move on to the next point that you have asked me to probe, convener.
Now would be helpful, Mr Macpherson.
The point about confusion is interesting. As Mr Kelly knows, the Scottish Government remains open to changing the legislation based on evidence. The Minister for Community Safety and Legal Affairs has made that point, but has also said that no suggestions for amendment have been forthcoming.
You have stated that you disagree with hateful behaviour at football matches, which view is shared by the minister and the Government. Why was a constructive process not undertaken to try to amend the 2012 act? Why did you take the fundamental approach of repeal? Surely we can work together as legislators in Parliament, with the Government, to try responsibly to improve the current legislation?
The fundamental difference between me and you, Mr Macpherson, and between me and the Government is that I disagree with the principle of having legislation that targets football fans. I have never been convinced of that case. In addition, as I have outlined, the legislation does not work well in practice.
Am I right to say that you are against offensive behaviour and threatening communications, but it is the football part that you have a real issue with? Why, then, do you not suggest constructive amendments to engage in a wider process?
As I have said, I fundamentally disagree with the idea that football fans should be targeted by legislation. I accept that hateful behaviour in the street around a football ground should be tackled. However, that can be tackled more effectively through legislation that pre-dates the 2012 act. That would send a more unified message than the one that comes out of the controversies that surround the 2012 act.
I say with respect, Mr Kelly, that the gaps in your argument are significant.
We really must move on. Mr Kelly has made it clear that he does not agree with specific legislation tackling football fans.
I am about to come on to my final point, convener.
Thank you.
One of the significant criticisms that we have heard from witnesses is that “no alternative”—their words, not mine—is proposed in respect of tackling offensive behaviour at football matches if you are successful in repealing the current legislation. Is it a fair criticism to say that there is “no alternative”?
That is not a fair criticism. As I have consistently outlined this morning, it is not the intention that we repeal the act and that is the end of the matter. As I have said, we then need a more unified approach. I am quite prepared to work with other political parties. We need to bring the football clubs, fans and police together.
Three strands are needed in the subsequent approach. First, we need to reinforce the more credible pre-existing legislation. Secondly, we need a more unified message—one that comes not just from Parliament but from others who are interested in tackling religious hate crime. We need a message of tolerance in our education system. I would take the cameras off the police vans and use the money to invest in anti-sectarian education in schools. Thirdly, as the Scottish Football Supporters Association outlined, we need a more collaborative approach between supporters, police and the clubs. That relationship has deteriorated in recent years and we need to bring them back together. Those three strands are the alternative.
In support of the entire 2012 act or parts of it, Police Scotland, the Procurator Fiscal Service, Stonewall Scotland, the Equality Network, the Scottish Women’s Convention, Victim Support Scotland, the Church of Scotland, the Scottish Council of Jewish Communities and the Equality and Human Rights Commission all think that we should be looking for and collaborating on alternatives, and waiting until after the Bracadale review, rather than taking such a fundamental approach of repealing the act. Is it your assessment that they are all wrong?
12:00
That question is on the Bracadale review; we will move on to that later. I think that James Kelly is aware of the evidence against his bill. That question is not moving us forward.
How would your proposed repeal of section 1 of the 2012 act provide legal certainty for football fans as to what is and what is not an offence in the context of a football match? How can greater clarity for fans be achieved?
I point you to the Law Society’s submission, which states quite clearly that all 377 charges under the 2012 act in 2016 could have been captured by pre-existing legislation. As I have said in answer to Mr Macpherson and others, I do not believe that it is good or effective law to have one set of legislation for inappropriate behaviour in a football ground and another for out in the street. I believe that the existing laws are more credible and will provide legal certainty.
As the Scottish Human Rights Commission pointed out, there would be potential ECHR breaches were the 2012 legislation to continue. Legal certainty is one of the issues that it highlighted as potentially making the law open to challenge. I believe that by taking the 2012 legislation off the stocks and using the more credible pre-existing legislation, we will be able to establish greater legal certainty.
Good afternoon, Mr Kelly. The Government has referred to the distinctiveness of football culture and the problems that arise as a result of that culture. Has that characterisation had any impact on how the bill has been perceived by fans? Has isolating fans in that way added to the belief that they are being unfairly targeted?
With regard to football culture, I reiterate the point that I made at the start of this meeting that there has been a dramatic improvement in crowd behaviour and the atmosphere around football in the 40 years during which I have been attending games. We do not see the same degree of public disorder, drunken behaviour and fights inside and outside stadiums that we saw perhaps 30 years ago.
I am not trying in any way to sugarcoat this and say that there is no bad behaviour or public disorder, but it has to be seen in context, and in that context, football supporters cannot really understand why they have been targeted for legislation. For example, over the period that T in the Park was taking place, there were 3,600 incidents, including some serious instances of sexual assault and attempted murder, but no specific legislation has targeted concertgoers. When football fans see that, they question the validity of the legislation.
The Government is also of the view that the offensive and threatening behaviour that is displayed by football fans occurs only in football and that no other sport attracts that element of sectarian and abusive behaviour. Do you agree with that position?
I would say that offensive or threatening behaviour—whether it takes place outside in the street, in a pub or a club, or at a football ground—is totally unacceptable, and we need effective and consistent legislation to target it. I fail to understand why we need a particular piece of legislation that focuses on what goes on in and around the football stadium. I do not think that that is effective and I do not think that it is fair to target football fans.
The evidence that we have had from BEMIS suggests that the 2012 act has had a negligible effect on tackling hate crime. I note the comments in your earlier response about the figures that relate to religious hate crime. Do you think that the 2012 act has been successful in tackling that type of behaviour? If it has not, what do you think should be put in place?
I think that the 2012 act has not been successful. As I said earlier, there have been 719 religious hate crime incidents, less than 7 per cent of which took place in and around football stadiums. The scale of that shows that religious intolerance is still a big issue.
To look at it another way, if the purpose of the 2012 act was to reduce the number of non-football songs being sung, the reality is, as we have heard from a number of witnesses, that the legislation has not been effective in that regard and has not achieved its objective, given that, in some instances, fans are singing more and more non-football songs.
Who should be responsible for tackling that behaviour?
As I said in a previous answer, we need more emphasis in the education system on promoting tolerance and respect. If we had a properly collaborative approach between fans, the police and football clubs, that could get the message across to fans much more directly where inappropriate songs are being sung. In discussions between fans and clubs, the clubs can be very frank in a way that is maybe not possible for police representatives in any discussions.
Some people have suggested that it might make sense to wait for the outcome of the Bracadale review of hate crime before considering whether to repeal the 2012 act. It has been suggested that the review might increase clarity around the act. Can you address that point and say why you think that it is necessary to repeal the 2012 act now?
The Bracadale review has a very important job to do to make hate crime legislation more streamlined and efficient, and to offer people the protections that committee members have spoken about. I regard the review as a very important piece of work. However, Liam McArthur made the excellent point, when the issue was being discussed at last week’s meeting, that the committee is currently looking at the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill, which was driven by the Taylor report that was produced in 2013. There has been a big time gap between the production of that report and the introduction of a bill. I simply do not think that it is acceptable to leave in place, until the outcome of the Bracadale review and the work that it will drive, what I believe to be a fundamentally unfair piece of legislation that is not working properly.
You have consistently said that the legislation targets football fans, but others might say that it uniquely protects football fans and others from what is a serious issue in the Scottish context and that it recognises the important role that the game of football has in our country. I offer that point for comment.
Way back at the beginning of our evidence sessions, the committee heard a quite powerful statement from the Crown Office and Procurator Fiscal Service to the effect that repeal of the 2012 act would leave
“a gap in the law.”—[Official Report, Justice Committee, 6 October 2017; c 6.]
Have you had time to reflect on that point?
Can you elaborate on what you mean by “a gap in the law”?
The Crown Office and Procurator Fiscal Service said that there are powers in the 2012 act that allow it to prosecute certain offences that it would otherwise not be able to prosecute. The Crown Office stated quite strongly that repeal of the 2012 act would lead to a gap in the law. I want to know what your view of that point is.
My position has been consistent throughout in that I do not believe that there would be a gap in the law following repeal of the 2012 act. In terms of the offence in sections 1 to 5, the Law Society of Scotland has made it clear that all offences in relation to that could be captured under pre-existing legislation such as section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and section 74 of the Criminal Justice (Scotland) Act 2003.
There was a reasonable objective behind the provisions in section 6 of the 2012 act but, because of the way in which they were drafted and the fact that the threshold is too high, the reality is that, as the police have told us, cases of threatening communications have been prosecuted using section 127 of the Communications Act 2003 rather than section 6 of the 2012 act.
I want to move on to policing. The policy memorandum to your bill suggests—you have mentioned this already—that the relationship between fans and the police has deteriorated because of the 2012 act. However, you will be aware that the act makes no provision in relation to policing and that Police Scotland has told the committee in evidence that policing will not change if the act is repealed. Therefore, how would repealing the act improve the relationship between the police and fans?
As I have said a number of times, some serious work needs to be done to rebuild the relationship between fans, the police and clubs, and I believe that forums should be set up so that they can work together, as the Scottish Football Supporters Association has suggested.
In addition, serious consideration needs to be given to how matches are policed. Given that a former Cabinet Secretary for Justice has said that police officers are “run ragged” and will not be able to investigate low-level crime—which is a serious issue in itself—the public will wonder why resources are being wasted on filming football supporters inside and outside stadiums.
The key point is that serious work needs to be done by all concerned—the supporters, the clubs and the police—to rebuild the relationship between them.
You have mentioned the need to rebuild the relationship between fans and the police several times. Are you referring to all fans or just certain groups of fans? If you are referring to certain groups of fans, will you expand on which groups you mean?
Supporters have representatives who will liaise with the clubs and the police, but it is important that all fans are involved in the process. They need to have an avenue of communication through their representatives or directly to the police. For the policing of football to work, everybody needs to be involved in and committed to the process.
Do you think that all fans who go to football games have difficulties in their relationship with the police?
No, I am not saying that all fans have such difficulties. As the committee has heard in evidence, there are always on-going discussions with the police. I am not saying that there is no communication whatever, but it is quite clear that, as a result of the 2012 act and the way in which matches have been policed, there is more friction between the police and fans than there was previously. If we are to improve the atmosphere, we need to rebuild those relationships.
Before you move on, Fulton, Mary Fee has a brief supplementary question.
It is on the gap in the law, but Mr MacGregor might want to finish his current line of questioning.
Yes—I have not finished asking about policing.
Mr Kelly, you have talked about how the police have managed games—I think that you have referred to it as “disproportionate policing”. Can you give any examples of that and explain why you think that it was disproportionate? Why do you think that the police officers concerned did not respond appropriately, in the best way that they could, to the circumstances?
I will give two examples. I have seen cases in which the police have spent a good bit of the game filming supporters. I do not understand what that is for. I have also seen photographs of a police officer at a football game in Perth, who had photographs in front of him of fans who the police might regard as needing more of their attention. That sort of policing is at odds with the policing that we usually see in Scotland.
If the policing of football is such an important issue for you and such a fundamental driver of the approach that you have taken, why did you decide to seek repeal of the act instead of calling for a review of the policing of football? As I have said, repealing the act will not change the policing of football.
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I have said consistently that I seek repeal of the act because it is unfair that football fans are being targeted. The legislation is not working.
Separately, work is needed with supporters, police and clubs to build a better relationship in order to get more effective policing. In addition, when a former justice secretary has told us that low-level crime cannot be investigated because police officers are “run ragged”, we need to have a serious look at the resources that we put in to police football games.
If you had taken your concerns about policing to the justice secretary, could you not have worked with him and the Scottish Government to find a better solution that may not have been as politically emotive as going for repeal of the act?
That issue has already been covered. We will move on to the rest of the policing questions.
Do you concede that police officers must carry out their duties regardless of how unpopular a piece of legislation is?
I accept that the police need to take forward the law of the land that has been agreed to by Parliament, and, although I opposed the 2012 act and believe that it is deeply flawed, it is the current law. It puts the police in a difficult position. As I said earlier, offensive behaviour has such a wide definition within the bill that police officers have had to be trained to interpret what behaviour might be offensive.
I agree. Do you believe that repeal of the 2012 act would automatically repair the perceived loss of trust between police and fans?
Repeal of the act would not be the end of the matter, as I said in answer to Fulton MacGregor’s question. All of us would have the job of putting out the message that religious intolerance is unacceptable and pointing to effective legislation to deal with it. There is a big job to be done with both police and supporters—it is a two-way street—working together to build trust. A programme of work would be required following repeal of the act.
Do you agree that behavioural problems for policing occur only when certain teams play each other?
The police understandably target resources at games with bigger attendances or games at which there has been trouble previously. I understand how resources are allocated and games are prioritised.
From the evidence that we have heard, most of the criticism of the act relates to section 1, and we have covered the issue of whether you believe there would be a gap in the existing law in relation to section 1 if the 2012 act was repealed. In relation to section 6, the arguments from those who have given evidence seem to be more nuanced. What is your view on whether repeal would leave a gap in the law in relation to the offences that are covered by section 6?
In 2011, although I had disagreed fundamentally with sections 1 to 5, I could see the point in section 6, which deals with threatening communications. In the intervening five-year period, there has been an increase in internet usage and, sadly, online abuse, so we can see the case for that section.
However, the reality is that section 6 has not been widely used: there have been only 17 cases in those five years. As we heard from the police, the threshold is too high and prosecutors and the police tend to use section 127 of the Communications Act 2003.
I accept that, in relation to evidence that we have heard about cases that have been brought forward for indictment, the potential penalties under the 2012 act are greater than they would be under the Communications Act 2003. The Glasgow Bar Association indicated that one way forward might be to strengthen the powers under section 127 of the 2003 act. I recognise that as an issue and I am prepared to enter discussions with interested parties about it. I will actively consider it prior to the stage 1 vote.
That is helpful. A point was made earlier about the message that would be sent out by repeal. From what you are saying about the motivations that gave rise to the 2012 act, there might be more legitimate concerns about the message that would be sent out if section 6 were to be repealed. Is that fair?
I do not regard section 6 as fit for purpose. If the police and prosecutors are not using it, it is not effective. I accept that threatening communications and online abuse are major issues, and, as the person who is proposing repeal of the 2012 act, I need to be confident that appropriate measures and protections are in place to deal with those.
I have a brief supplementary question on the potential gap in the law and the point that Fulton MacGregor raised with you. The 2012 act is used if someone is on the way to, at or watching a football match and they sing an offensive song or use offensive or abusive language. If an individual was to stand in the middle of a busy shopping centre or in the street on a random afternoon and sing such a song or use abusive or offensive language that caused offence, would the police be able to prosecute them for that?
Yes. If somebody stood in the middle of a shopping centre on a Tuesday afternoon when no football was being played and they were hateful and abusive towards somebody’s religion, they could be prosecuted under section 74 of the Criminal Justice (Scotland) Act 2003.
Could they be prosecuted if they used sectarian language?
Yes, under that same provision.
That concludes our questioning. Can I—
Convener, can I correct something that Mr Kelly said earlier?
By all means, but Mr Kelly will have a right of reply.
It is on his comments about the 2012 act being incompatible with the ECHR. The appeal court considered a challenge under the ECHR and it was rejected. The Government, the Presiding Officer and the Parliament passed the 2012 act as being compatible with the ECHR. I just wanted to correct that. I believe that Mr Kelly said that it was incompatible.
No. That is not what I said, and I apologise if I misled you in any way. I said that the Scottish Human Rights Commission’s submission to the committee, which was based on hearing the evidence that the committee had taken in relation to the bill, expressed concern that there could be a breach of the ECHR, particularly in relation to legal certainty. The SHRC said that that is a serious issue and that there could be a future challenge.
That concern was not upheld—it was not accepted.
No. I understand that, when the legislation was originally laid before the Parliament, it required a compatibility certificate from the Presiding Officer, which it got. However, once legislation has been enacted and is in place, somebody can make a challenge, saying that the ECHR has been compromised or undermined, which is the Scottish Human Rights Commission’s point.
There was a challenge, but it was rejected in the appeal court.
That was one case, but it does not prevent other people from making challenges, as both the Scottish Human Rights Commission and the Law Society of Scotland have pointed out. The point that I am making is that there continues to be uncertainty about the legislation, which could be open to further challenge. I accept what you say about previous challenges, but that does not prevent someone from making a further challenge.
That clarification was helpful. If there are definitely no other questions, that concludes our questioning. I thank James Kelly and the officials for attending.