Welcome to the Justice Committee The first item is the decision on taking business in private consideration of draft stage one report of the civil litigation bill both today and the future meeting should be taken in private, are we all agreed? Maen nhw Mary Sopologi ac Clare's attendance. We have apologies from Mary Fee, and I welcome to the committee, Clare Baker, as her substitute. We have received an indication that the minister is going to be a little late, so given the heavy agenda, we intend to move to agenda item 4, the subordinate legislation. Are we agreed to do that? Agenda item 4 is consideration of three negative instruments. I refer members to paper two, which is a note by the clerk. The first instrument is police pension scheme Scotland amendment regulations 2017, SSI 217, oblique 387. Do members have any comments? John. Can I make a declaration, please? Although that will not apply to me, I am in receipt of a police pension. Julie Notead. John. Any other comments? Right. Is the committee agreed that it does not wish to make any recommendations in relation to this instrument? Agreed. Thank you. The second instrument is prisons and young offenders institutions Scotland amendment rules 2017, SSI 2017, oblique 393. Do members have any comments? Clare. I was hoping to get some clarity around this. I do think that it is a challenging ambition to have smoke-free prisons by November 2018, but it was around the policy objective. It was around the definition of smoke, which was to include nicotine vapour products. It was some clarity around whether that meant that the nicotine vapour products would apply the same rules around a 30 minute clearing off the cell before an officer enters, or if that applied to the target for November 2018, if vapour products came under that target. Would you be satisfied to get maybe more information, more clarity from it, but in principle, to approve the recommendations? That would be helpful. Yes, some clarity would be helpful. Thank you. Clare can certainly seek that from the minister. Any other comments? If there aren't any, is the committee agreed that it does not wish to make any recommendations in relation to the instrument? Are we all agreed? I agree. I agree. Thank you. The third instrument is the first-tier tribunal for Scotland Health and Education Chamber and General Regulatory Chamber Charity Abuse, Procedure, Miscellaneous Amendments, Regulations 2017, SSI 2017, Oblique 398. Do members have any comments? Is the committee agreed that it does not wish to make any recommendations in relation to this instrument? Agenda item number five, we may as well move on to, is feedback from the Justice Sub-Committee on Policing on its meeting of the 23 November 2017, which, in the absence of Mary Fee, I will read. This will be a verbal report, and there will be opportunity for brief comments and questions. I refer members to paper three, which is a note by the clerk, and the Justice Sub-Committee on Policing met on the 23 November 2017, when it held an evidence session on the progress of the two independent investigations into Police Scotland's counter-corruption unit. The sub-committee took evidence from Police Scotland, the Scottish Police Authority, the Association of Scottish Police Superintendents and Unison. The sub-committee heard about the restructuring of Police Scotland's professional standards department and how Police Scotland handles complaints against its officers. The sub-committee also asked questions about the current status of the investigation into the CCU and about the publication status of the forthcoming reports of those investigations. The sub-committee will next meet on 7 December 2017, when it will hold an evidence session on Police Scotland's custody provisions. Are there any comments or questions following this? John Finnie? Thank you, convener. As you know, this is dragged on for a considerable length of time, and it looks like it is going to continue to drag on. I do not think that that is in anyone's interest. Indeed, there are three investigations on going, Darren Constable, the Northumberland Police and the Police Service of Northern Ireland. What we did learn, of course, was that there was an additional report from one of the English forces covering chief officers that I will hither to, I certainly wasn't aware of. I encourage Police Scotland to turn the issue around as quickly as possible to remove much of the unhelpful speculation that is about the work in this field. Any other comments following that sub-committee report? There has been a brief discussion this morning, and we may be looking at the possibility of the Justice Committee in the new year having the new chair of SPAN and the interim chief constable for full-time appointment hasn't been made, so there would be an opportunity for the full Justice Committee to have an opportunity to ask questions and to meet both of these people. We really cannot move much further on, so I intend to suspend until the minister arrives. Agenda item 2, subordinate legislation, is consideration of five affirmative instruments. The first is first-tier tribunal for Scotland transfer of functions and additional support needs tribunals for Scotland regulations 2018 draft. Second is first-tier tribunal for Scotland transfer of functions of the Scottish Charity Appeals panel regulations 2018 draft. Third is the first tribunal for Scotland health and education chamber and upper tribunal for Scotland composition regulations 2018 draft. The fourth is first-tier tribunal for Scotland general regulatory chamber charity appeals cases and upper tribunal for Scotland composition regulations 2018 draft. And the fifth and last, the Public Records Scotland 2011 authorities amendment order 2018 draft. I welcome Annabelle Ewing minister for community safe and legal affairs to the committee together with her officials, Hannah Fraudstrom, policy executive and John Sinclair, senior principal legal officer with the Scottish Government. This item is to transfer members to the minister and officials any points that they are seeking clarification on, the instrument before we formally dispose of it, and I refer members to paper 1, which is a note by the clerk. Minister, do you wish to make a short opening statement? Yes, thank you, convener. I'll deal firstly with the first four SSIs and then secondly with the Public Records Scotland SSI, if that's okay. If you could do it briefly in each order, then it allows us to ask the question and not get it to mix up. Yes, I believe that the speaking notes are in mentioning each separate SSI in order. First, the suite of fairly technical regulations will transfer the additional support needs tribunal for Scotland and the Scottish Charity Appeals panel into the Scottish Tribunal structure created by the Tribunals Scotland Act 2014. The first two instruments before you are the first tier tribunal for Scotland transfer functions of the additional support needs tribunals for Scotland regulations 2018 and the first tier tribunal for Scotland transfer functions of the Scottish Charity Appeals panel regulations 2018. Those regulations simply transfer the functions and members of the additional support needs tribunals for Scotland and the Scottish Charity Appeals panel to the first tier tribunal for Scotland. In addition, the regulations set out the transitional procedure for cases that are in progress on the date of transfer. The regulations also make consequential amendments to primary and secondary legislation resulting from the transfer of the additional supports needs tribunals for Scotland and the Scottish Charity Appeals panel into the Scottish Tribunals. As the additional support needs tribunals for Scotland and the Scottish Charity Appeals panel are listed separately in the Tribunals Act, each of the jurisdictions needs to be dealt with in separate instruments. The next set of regulations are the first tier tribunal for Scotland health and education chamber and upper tribunal for Scotland composition regulations 2018. Those regulations specify the type of member who will hear cases in the health and education chamber. Those provisions mirror the existing composition of the additional support needs tribunals for Scotland. Those regulations also allow the chamber president or a legal member sitting alone to hear any matter in a case under section 18 subsection 3, subsection EA or subsection EB of the Education Additional Support for Learning Scotland Act 2004. Those sections are due to be commenced on 10 January 2018 and allow the tribunal to decide whether a child over the age of 12 has capacity to exercise the rights under the 2004 act on their own behalf. The instrument also sets out the composition of the upper tribunal when hearing appeals from the first tier health and education chamber. Those regulations allow for a court of session judged to hear an appeal in the upper tribunal. This again mirrors the previous arrangements. The president of tribunals will determine who hears those appeals. The president may also select herself, the chamber president or indeed the Lord President if appropriate. The final set of regulations in this first suite of four is the First Tier Tribunal for Scotland general regulatory chamber charity appeals cases in upper tribunal for Scotland composition regulations 2018. Those regulations specify the type of member who will hear charity appeals cases in the first tier tribunal. Those provisions again mirror the existing composition of the Scottish charity appeals panel. The instrument also sets out the composition of the upper tribunal when hearing charity appeals from the general regulatory chamber. The regulations allow for a court of session judged to hear an appeal in the upper tribunal and this again mirrors the previous arrangements. The president of tribunals will determine who hears those appeals. The president may also select herself, the chamber president or indeed the Lord president if appropriate. In conclusion on those four SSIs, it is the case that each of those instruments plays a part in enabling the transfer of the additional support needs tribunals for Scotland and the Scottish charity appeals panel to the new structure. Finally, the last SSI is the Order Amending the Public Records Scotland Act 2011. This very technical instrument adds the first tier tribunal and upper tribunal to the list of authorities covered by the Public Records Scotland Act 2011. This act requires listed authorities to prepare and to submit a records management plan to the keeper of the records of Scotland for his agreement. The act also requires the authorities to implement their agreed plans, comply with the arrangements that they set out and keep them under review. Currently, a number of the tribunals are listed separately in the Public Records Scotland Act. However, as those tribunals transfer into the Scottish tribunal structure, their listing is deleted because the tribunal is abolished upon transfer. The instrument rectifies the list by adding the first tier tribunal and upper tribunal to the list of authorities. That is the conclusion of my opening remarks. Sorry, it was a bit long, but I felt that given the technicalities involved, it was important to set out the position. Thank you for that detail. Do members have any questions or comments? That being the case, we will move to agenda item number three, which is formal consideration of the motions in relation to their affirmative instruments. The Delegated Powers and Law Reform Committee has considered and reported on these instruments and has no comments on them. The motions will be moved with an opportunity for a formal debate if that is necessary. The first motion is motion 08839 that the Justice Committee recommends that the first tier tribunals for Scotland transfer of functions of the additional support needs tribunals for Scotland regulations 2018 draft be approved. Minister, will you move the motion? Form you move. Thank you. Do members have any questions? In that case, I put the question that motion 08839 in the name of Annabelle Ewing be approved. Are we all agreed? Great. We are all agreed. Thank you. The second motion is motion 08840 that the Justice Committee recommends that the first tier tribunals for Scotland transfer of functions of the Scottish Charity Appeals Panel regulations 2018 draft be approved. Minister, will you move the motion? Move. Thank you. Do members have any questions or comments? That being the case, the question is motion 08840 in the name of Annabelle Ewing be approved. Are we all agreed? We are all agreed. The third motion is motion 08841 that the Justice Committee recommends that the first tier tribunals for Scotland health and education chamber and upper tribunals for Scotland composition regulations 2018 draft be approved. Will you move the motion? Form you move. Thank you. Do members have any comments or questions? No. The question is that motion 08841 in the name of Annabelle Ewing be approved. Are we all agreed? We are all agreed. The fourth motion is motion 09234 that the Justice Committee recommends that the first tier tribunals for Scotland general regulatory chamber, charity appeals cases and the upper tribunals for Scotland composition regulations 2018 draft be approved. Will you move the motion? Form you move. Thank you. Any questions or comments from members? No. The question is that motion 09234 in the name of Annabelle Ewing be approved. Are we all agreed? We are all agreed. The fifth and final motion is motion 08843 that the Justice Committee recommends that the Public Records Scotland Act 2011 authorities amendment order 2018 draft be approved. Will you move the motion? Form you move. Thank you. Do members have any questions or comments? No. The question is that motion 08843 in the name of Annabelle Ewing be approved. Are we all agreed? We are all agreed. Are members content to delegate authority to me as a convener to clear the final draft report? Thank you. Can I thank the minister and her officials for attending and suspend briefly for a change of officials before our next item? The agenda item 6 is our fifth evidence session of the offensive behaviour football and threatening communications repeal Scotland Bill. I refer members to paper 4, which is a note by the Clark and paper 5, which is a private paper. Again, I welcome James Kelly, the member in charge of the bill, to the meeting. I also welcome back Annabelle Ewing minister for community safety and legal affairs and her officials, David Bell, senior policy officer, Catherine Mayant, principal research officer and Craig French, the Lister, directorate of legal services with the Scottish Government. Do you wish to make a short opening statement, minister? Yes. Thank you for inviting me to give evidence to the committee today. The Scottish Government believes that the offensive behaviour at football act should not be repealed without putting a viable alternative in place. The act did not appear in a vacuum. Far back as 2008, there were complaints raised by the Irish Consulate and the Catholic Church about the singing of the famine song at matches, deemed to be racist by our courts. In 2011, we witnessed multiple arrests at a Scottish Cup match, pitched-side aggression between the former Rangers and Celtic managers, Ali McCoyst and Neil Lennon, death threats being made to Mr Lennon and live bullets being sent through the post to a range of public figures. Those incidents could not be ignored and swift action was required to make it clear that such behaviour would not be tolerated. A strong signal was needed and that took the form of the Offensive Behaviour at Football Act. That was not without precedent. The Emergency Worker Scotland Act 2005 is an example of legislation used to send a strong signal that particular behaviours are not acceptable. The act responded to the circumstances that existed at the time and, as we have seen in the latest death threat to Neil Lennon, which resulted in a 54-year-old man being convicted under section 6 of the act, we are not rid of those problems. However, there is more to the act than making a statement. The act provides extra territorial powers to ensure that those behaving in an abusive manner outside Scotland can be held to account and section 6 brings Scotland into line with the rest of the UK in relation to incitement to religious hatred. I am grateful to the committee for drawing the recent submission by the Scottish Human Rights Commission to my attention and remain happy that the act is also compatible with human rights. The commission's submission appears to be a statement of its 2011 position, which does not take account of developments such as the Donnelly and Walsh case of 2015, which did not identify any human rights issues. We remain happy to improve the act based on evidence. Indeed, although entirely separate from the repeal bill, the reason for inviting Lord Bracadale to conduct a review of hate crime legislation was to identify how all existing legislation in this area could be improved. There are three principles that underpin our position in relation to the act. The first is acceptance that there is a problem with behaviour at and associated with Scottish football. Offensive singing and chanting is not a feature of any other sporting events. The vast majority of football fans are well behaved, but the fact that we do continue to regularly hear offensive singing and chanting clearly tells us that there is a problem that needs to be dealt with. Football is not an island on its own where people are free to do as they choose without any need to consider the wider impact of their behaviours. Aggressive behaviour deemed acceptable at football will simply be carried into other areas of life. The second principle is that action and interventions are required to tackle all social problems. Offensive behaviour at football will not simply disappear on its own. Football clubs and authorities have had decades to tackle this issue and failed to take effective action to bring it under control. The third principle is that legislation is needed, but it is not a panacea in and of itself. At legislation sets the standards for what is and is not acceptable in society. It has an important role to play in tackling offensive behaviour at football. Outright repeal is not favoured by those representing vulnerable minority communities. It is not favoured by the Scottish Government. Thank you, convener. Thank you very much. I wonder if I can ask for your thoughts, minister, on why so many people feel that the 2012 act should be repealed. I cannot put my head easily inside of those who seek repeal. I think that it would be important to state at the same time that many people do not support repeal or do not support repeal absent a viable alternative being put in place or who feel the repeal without such a viable alternative would risk sending entirely the wrong message in terms of the possible consequence that people could think that that offensive behaviour was, in fact, acceptable. It is difficult for me to put myself in the heads and minds of those who seek repeal, but it is fair to say that, obviously, and you will be well aware, the committee has received a range of evidence with very differing views on that particular issue. I wonder if I could ask you specifically about the guidance and the regulations that the SP, FL and SFA have put in place. A very detailed one, which seemed to really, in minute detail, go down to the behaviour with sanctions, checks and balances, because in your opening statement you mentioned that the authorities did not seem to have tackled the problem. Was that still the case? I think that it is correct to say that it has taken quite a long time to get this arrangement in place, now that there is an arrangement in place looking at unacceptable conduct, and I believe that data has been gathered over this first season of its full application, and obviously we await to see with interest what the data tells us, and obviously we are very keen to continue to work with the football authorities and football clubs to ensure that we eradicate this bile and bigotry form at football in Scotland. Would there be acknowledgement that before, in your opening statement, you said that the authorities did not seem to have tackled that, that we have moved a considerable way in terms of their involvement in addressing the issue? I think that it is fair to say that this arrangement is really quite new. I think that this is the first season of its full application, so I think that it is fair to say that it has been quite some time coming, but nonetheless it is welcome in that regard, and of course we wait to see that the data has been collected over this first season of its full application. We await to see what that data tells us to see if indeed more needs to be done, but we, as I say, are very happy to continue to work with football authorities and indeed football clubs to ensure that we all work together to eradicate this unacceptable behaviour from Scottish football. George Adam? I was quite interested in how, when you were opening remarks here, when you mentioned the fact that this did not happen in a vacuum, you know there is an urban myth that has basically happened when the two managers went toe-to-toe in the so-called game of shame, but there was, as you quite rightly said, the bullets through the post, a Celtic manager having sectarian slogans scrolled outside his home. The famine song was sung on a regular occasion, so much so that, as you said, the Irish consulate complained about it and songs that were supportive on both sides of acts of terrorism. Now, with all that in mind, what do you believe the introduction of the legislation was a proportional response to what was happening? Yes, I do. I think that the match that the member refers to, I think it's called the game of shame or the shame game for short. I think that that certainly was the tip of the iceberg, but I don't think that that in and of itself was the catalyst. I think it was this catalogue of very, very serious incidents in and around football, and of course decades of seeing this kind of problem at football in terms of the religious, the homophobic slurs, the bile, the bigotry, sexist comments and sectarianism and this hateful and prejudicial behaviour. So I think there were a number of factors, but certainly in terms of when the original legislation was put forward, there was a backdrop of very, very serious events indeed, and I think it was felt appropriate that this Parliament, the National Parliament of Scotland should be seeking to respond to those very, very serious events in a reasonable and proportionate manner, and that was what culminated in the legislation which was adopted by this Parliament. It's interesting you brought the fact that you said there's homophobia, because this is one of the parts that was quite interesting during the evidence that we received from Colin McFarlane from Stonewall Scotland, because he said repealing the act without putting other measures in could undermine the work that had been undertaken by organisations such as Stonewall, the Equality Network and Football Clubs in Police Scotland. Is it not the case that what type of message would this send out to these clubs if we went for repeal? Does this not give some fans, some of the fans who actually did get involved in all this nonsense, they actually would think that this is some kind of victory in their part, they could then behave as they wished from that point on? I think I've read what Stonewall Scotland and the Equality Network indeed in terms of the comments submitted to the committee, and I do understand that they have very serious concerns that there is a significant risk that repeal of this legislation without any viable alternative being in place would send entirely their own message that somehow this prejudicial and hateful behaviour would somehow be condoned and all that might come from that, so I very much understand their concerns in that regard, and I think they refer to surveys that had been carried out and where it shows that actually amongst, for example, the LGBTI community, there are very serious concerns about what happens at football, and they consistently said in response to questionnaires that they have fears about football and the level of homophobic diatribe directed at who are citizens of Scotland like everybody else, so I think that yes, I do understand the very serious concerns that repeal, absent of viable alternative risks, very significant signals being sent that somehow this behaviour is in fact to be condoned and that society is quite happy to see this continue. One final very short question is the fact that we received evidence, I can't even remember the individual's name, but it's quite interesting if you look at it that way where he effectively told us that and an academic told us that he believed that it was your right to be offensive at football, it would take all the passion out of the game if you weren't offensive at football. Surely the 21st century minister, that can't possibly be the way that we conduct ourselves in a public place? I sincerely hope not, that's not the kind of Scotland that most people want to live in. Of course freedom of speech is an absolute fundamental right, but it's not an absolute right. There's freedom also to be not subjected to hateful and prejudicial behaviour and I think it was Dr Duncan Morrow's advisory committee on tackling sectarianism that made the point that football seems to provide a permissive environment where people feel that they can behave in a way, some people, there might be very much the minority of people has to be said, but nonetheless feel they can behave in a way that they wouldn't really contemplate necessarily behaving in any other part of their life. It's this permissive nature of the environment of football that we have to reflect on. For my part, the part of the Scottish Government is absolutely not acceptable. Hate crime in whatever form, hateful and prejudicial behaviour is not acceptable and people have to, in exercise of their freedom of expression, recognise the rights of others who they live side by side with in society. Perhaps, in the event that, for example, the act is repealed, what steps would the Scottish Government take to ensure that there is clarity for supporters and the general public as to what will be criminal in the football context? Obviously, if that were the will of Parliament that the act were to be repealed absent any viable alternative, we would nonetheless, of course, as a responsible Government, continue to work with football authorities, continue to work with football clubs. We would continue to try to seek to send strong messages. We'd work with stakeholders that we already work with at a grassroots level in an effort to try to meet the significant concerns that have been raised by various organisations, not just the quality organisations, that indeed there could be a very negative message sent in circumstances of repeal without a viable alternative, but we, as a responsible Government, would continue to do what we could. Obviously, in terms of the criminal law, I think it was the representative from the crime office in his oral evidence who indicated that they would be looking at then coming up with guidelines about Breach of the Peace in section 38 of the Criminal Justice Scotland and Licensing Act 2010. I imagine that we're going to get onto how that sits with the act. I won't do it just now. That would be something that could be done, but whether that would address the real and significant concerns of those who have expressed those concerns, that somehow this would send a really very bad message indeed is another matter, but we, as a responsible Government, would of course continue to do what we can. Is that supplementary, Fulton MacGregor? I want to ask something that we've not really touched on before in relation to this, if the act is to be repealed and there's to be a broad public messaging campaign. If the Government had any thoughts on how much that might cost, given the difficulties facing the public sector just now across the board, which has been widely discussed, what financial implications might there be of such a campaign if the act is to be repealed? I don't think that that's noble. As of this moment in time, I think that there would be a number of strands that would have to be reflected upon to be published out in detail, and only at that stage could you start to attach a budgetary implication for each of those strands, but I suppose it's a fair point, something to bear in mind. I don't think it's possible today to give any figure because we don't have enough knowledge about each of the elements that would require to be reflected upon to arrive at a comprehensive, accurate figure. I think that the point that I was making is in relation to the amount of evidence that was prepared, the concerns around repeal of the act would lead to a signal in a message being sent out. So it was just to sort of put out there that there might be financial implications to addressing that message if that is something that people were still saying to us at that point, but it's just a point there. Cleo, did you have something to mention? Thank you, convener. There's a couple of things I wanted to pick up on on the minister's opening statements. The minister said that she can't put her head into those who want to repeal the act, which I find disappointing that the Government is not able to articulate or recognise the concerns that are around the act. I can accept that the Government might not agree with some, but I think that it's important that the Government does recognise the arguments that are coming forward that are asking for repeal of the act. Also, the minister said that we hear offensive chanting, which means that we continue to hear offensive chanting, which suggests that the bill hasn't been as effective as what the Government would want it to be if that's the area that it's trying to tackle. The third point was that there was nothing I disagreed with in terms of the minister's comments around what is acceptable behaviour at football, and I recognise the comments that have been from Stonewall and the concerns that they have. My understanding of the convictions that have been under legislation, though I'm happy to be corrected, have been concentrated around sectarianism and not so much around homophobic abuse. I don't know if there's any cases where that has been the key element being brought forward in a charge, and that would strengthen the argument that there is sufficient and other legislation in place to deal with these type of hate crimes. OK. In terms of the first point that the member raised, I'm not suggesting that other people are not entitled to have their views in regard to the member referred to to have concerns. That's their entitlement. That's the view that they have. I just don't share their views, and I imagine that we're going to get on to a lot of the detail about the act versus what the existing law was. For example, having read through all the written submissions, claims that somehow the act is criminalising a whole swath of the fan body when we see the number of charges reflected at all of that statement where we see the suggestion that the act is going after specific football clubs or fans, and it's not. The evidence has been given to show that that's not the case. Indeed, Police Scotland indicated that of the 42 professional clubs in Scotland, 24 clubs have had instances where their fans have been involved, so that suggests that not a particular football club is the subject of some vindictive victimisation. I note all the points that have been made. I don't necessarily agree with them, but I guess that we'll get on to some of the more detailed issues in due course. In terms of the effect of the act, I think, as I said in my opening remarks, that legislation is one element. There are many other strands of the work that the Scottish Government is doing in terms of hate crime in general, but the legislation to set normative standards is quite an accepted way to proceed. In terms of the effectiveness, it has been stated by the Crown Office in particular in the evidence session here. It provides a tool that the Crown Office can use. There have been, I think, in 1617 some 377 charges, so that's an increase of 32 per cent over the previous year, which suggests that there are still, and it is the absolute minority, tiny minority of fans who engage in this behaviour, but nonetheless it can be very serious behaviour, a seriously offensive, threatening, abusive behaviour that surely, as a society, we accept that we are going to say that that is not acceptable. On the last point about the instances of cases where there may have been a charge libled as regards the home of abuse, I'm afraid, I don't have that stat, but I don't know if the... We are on the subject of an entry, and we've got a whole lot of questions to go through, so we can perhaps... The Crown Office would have that and perhaps the clerk would like to get that. I just don't have that stat off the top of my head again. Thank you. There has been some criticism, levied at the... We've had people say about the perceived speed at which the act in 2012 was passed, and criticism that they feel that the legislation was rushed, and as a result of that, perhaps not drafted as tightly as it might have been, and I would just ask for your response to those comments. Well, obviously the circumstances of the introduction legislation I narrated in my opening statement, the act I think was passed in a period of six months, normal stages. Indeed, at stage 1, I believe that I was there at the time. There were 103 votes in favour of the bill proceeding at stage 1, and 5 against and 15 abstentions, so it did pass at stage 1 procedure. It went through its normal legislative scrutiny thereafter. Obviously, that's a six-month period. I think in terms of the original timescale for Mr Kelly's bill, you were perhaps looking at an eight-month period, so it's not so different in terms of the original act. In terms of whether things can be improved, my experience in life is most always things can be improved upon, and I've always said that my door is open. If people wish to come forward with constructive suggestions, evidence-based, as to how we can collectively work to improve the legislation, and my door remains open in that regard. My next question, because that was going to be the exact thing I was going to ask, was about have you had any contact from anyone with evidence-based changes or any proposals as to how the legislation could be improved? I've not received any specific proposals as Government Minister to suggest making such improvements or amendments to the act. We heard in our last evidence session where we had a panel of academics from Andrew Tickell who had said that rather than repealing the act it needed amending and he gave some proposals which I imagine you'll have seen and seen the evidence from the committee we took that day. How would you respond to some of the suggestions and ideas that he put forward at that session? What I would say is that we are perfectly happy to reflect on that on those suggestions and that's what we will be quite happy to do. Obviously, there are suggestions based on the act not being repealed so if the act were to be repealed there are not suggestions that could be brought forward as improvements to the act but we're perfectly happy to consider and reflect on Andrew Tickell's suggestions. Okay, thank you. I think some of the concerns that we've heard have been, well, what will happen if the act is repealed? What's left in its place and what kind of behaviour are we saying to the public is therefore acceptable? I remember a concern, I think it was a headline that was in the news last week that food-borrow related hate crimes have gone up by a third on railways and I do think that, I mean, how do we tackle that then if the act is to be repealed? I just feel like it does send out completely the wrong message especially if we're seeing that sort of crime increase about the message that would send out if we went forward and repealed the act. Yeah, I mean, I fear I fear very seriously that repealing the act without a viable alternative would send entirely the wrong signal and I note, as I've said that there's a number of organisations that have made that point in terms of that they have concerns that there would be a risk that that would happen I feel that it may be more likely than not but certainly I accept as do many organisations like Stonewall Equality Network the Scottish Council of Jewish Communities the Church of Scotland I think Victim Support Scotland and others, I think there is a concern that at this time when we have seen incidences in different areas of hate crime increasing and particularly online hate crime as well I think that this would send entirely the wrong signal and as I said in my response to the member's initial questions the Scottish Government remains happy to work to improve the act to listen to those who have specific views about how that could be done on a constructive basis, evidence based and we would be happy to reflect on that. I mean, the member talked a moment ago about hate crime instances having increased by a third on railways I mean it was just dropped when I was reading one of the written submissions of the Scottish Women's Convention I think it was where they said that actually women are afraid to go into the city of Glasgow if there is a big match on I think that just sums it up in one sentence Okay, thank you. Maurice Thank you, minister Have you, has the Government considered whether the actual act itself could be improved by amendment and if so what changes do you make to the section 1 offence? Well, as I say our door is open to constructive suggestions thus far I as minister personally have not nobody's been exactly queuing outside my door to make those suggestions but my door remains open to that a moment ago we were discussing Andrew Tickell's interesting suggestions and I've said that we would be happy to look at that in more detail that's helpful to the member It's great, follow on In fact, you as a Government your Government hasn't actually come up with any amendments itself forget what else other people bring in you haven't seen any need to change it We feel that on balance the issue of the section 1 versus the existing law that has allowed additional tools to be at the disposal of those seeking to enforce the law of the land and therefore a lot of the submissions have focused on that issue and I don't really share the view that if you were to repeal without any viable alternative that the existing legislation would not involve limitations on what could be done because I think it would involve limitations on what could be done so in that regard I'm not convinced completely that an amendment in that regard would be the way to go however as I say I did note with interest Mr Tekel's suggestions and as I say we'd be happy to reflect on those further That point could I just absolutely nail if you think section 1 as currently drafted is fit for purpose Yes, I think it is it is fit for purpose I think that has been demonstrated in the courts Could things be improved upon convener, as I've said most things in life can benefit from improvement so we're happy to consider what improvements substantive improvements constructively suggested and evidence based could be made and that is the commitment that I have been happy to reaffirm today Maurice Corry Can I further ask minister the term that I see other behaviour and I quote other behaviour that a reasonable person might need to consider offensive should have been defined on the face of the legislation to provide clarity doesn't minister accept that the provision as currently drafted is too broad and if the act was to be amended rather than be appealed would such a definition be required Follows on The reasonable person test is a common feature of the law and for example I know that much has been breached piece and section 38 of the 2010 criminal justice and licensing Scotland act but that involves a reasonable person approach as well this is quite common The danger of absolutely defining something to the end degree is that you leave something out and that is always a balance when you're drafting legislation for example the example was given of dangerous driving where that is not subject to an exhaustive list of circumstances which would meet the test of dangerous driving but there are facts and circumstances to be reduced in that consideration also of course the test of the reasonable person has to sit alongside the other part of the test which is looking at likely to incite public disorder so there are two strands to this test not just one and of course the Lord Advocate's updated guidelines in August 2015 are helpful in fleshing out exactly what is likely to be included in this and I think you've had a look around the guidelines in previous evidence sessions I'm happy to refer to them they're quite lengthy but the Lord Advocate's guidelines do in fact cover many of these issues So you don't, sorry Minister, can I just follow on? Minister, so therefore you don't believe that taking a too big a net out to catch all sorts of fish that might come into that and therefore it's too broad a brush approach and not taking a scalpel to identify the critical problem? Well the reasonable person test the concern that the member had around this issue the reasonable person test is quite a common test in law and indeed is in the 2010 criminal justice and licensing Scotland act so it's a common concept that the law has dealt with quite comfortably over many years and as I say fleshed out by the fact that there are the Lord Advocate guidelines of 2015 and also to bear in mind that there's another element to this test which is that it also must be a behaviour that is likely to cause public disorder Thank you, thank you. And we do have the guidelines of the minister. So you don't want me to read them out? No, it's fine, thank you. Ben MacPherson. Briefly on, to follow on from the previous questions there's been some discussion this morning about amendment potential amendment of the current act and you said in your opening statement that you'd be happy to improve the act based on evidence. Is the position of the Government similar to those of many witnesses that we've heard from in recent weeks from the Church of Scotland Society Council to Andrew Tekel and others that there's a strong argument and a strong consensus to wait until the review being undertaken by Lord Bracadale is complete in order to consider what positions he has taken at the end of that review before considering amendment of the current act and of course that is predicated on repeal not taking place. Okay, obviously the Lord Bracadale review is independent of Government and I, like everybody else, await his recommendations which I think are expected at the present time in spring 2018. I don't know what those will be and I await them like everybody else I wouldn't want to preempt that. I know that in terms of the remit that Lord Bracadale had it was to look at hate crime in the round in Scotland and in effect to see if what we have is sufficient for the 21st century for where we currently are and included in that was to have a look at the act in that context and that is the task that Lord Bracadale has. I know that he has engaged in a wide-ranging consultation and in the invitation to seek submissions to his consultation he did also seek inter alia views on the potential impacts consequences of a repeal of the 2012 act and I think the consultation is now closed so he will be looking at the responses that he has received across the piece on a whole host of issues including on that issue. Obviously Mr Kelly's bill and the progress of that is a matter in the first instance I don't know for this committee I guess and the Parliament as a whole and if the committee felt that they wished to wait or to pause their deliberations pending Lord Bracadale that would be expanding on that later in the committee but I just thought it was important in terms of dovetailing with the previous questions. At the other point I wanted to bring up was Maintree from me, McCarty. We are going into private session shortly to consider a report in the Civil Litigation Bill that was based on a report by Sheriff Principal Taylor was published in 2013 so in awaiting the report from Lord Bracadale it is conceivable that we could be waiting some four or five years before any legislation is brought forward to address the shortcomings that I think by wide consensus are accepted in this bill particularly in relation to section 1 so does the minister accept that that while it's interesting that Lord Bracadale is undertaking this review and I think all of us will await the outcomes of that with some interest it would perhaps be naive to assume that any legislation flowing from that addressing the shortcomings in this bill is likely to happen anytime soon. I can't pre-empt the work of Lord Bracadale, it's an independent piece of work and I wouldn't dare to pre-empt that in any regard be it in terms of the recommendations whether it's proposing legislation new or not whether it's making any other suggestions I can't pre-empt that and I think we just have to let Lord Bracadale proceed in the way that he was tasked to do. Obviously the work that he is doing does tell I think as Ben Macpherson said with the work that's currently before the committee in regard to this matter and it would be a matter for the committee to see if it wished to be informed by the work of Lord Bracadale or not. Ben Macpherson Thank you convener, I just wanted to now move on to the point that was raised in your opening statement Minister about the evidence that's been received from the Scottish Human Rights Commission they have made reference in their view that key provisions in the 20 tail of act may fall short of the principles of legal certainty and the requirement of lawfulness under the European convention on human rights. However the committee has also heard from the equality and human rights commission Mr Chris Oswald when he gave evidence a number of weeks ago that although the ECHR recognises that freedom of speech and freedom of expression are enormously important and are protected by article 10 of the European convention on human rights they need to be balanced against the international covenant on civil and political rights which says that states need to have in place laws that counter incitement to discrimination, hostility or violence. On the basis particularly of the recent submission of the Scottish Human Rights Commission Minister just clarify that you're confident that the 20 tail of act has not fallen short of those principles. Okay, in terms of the Scottish Human Rights Commission's submission I think you received it around the weekend what I would say is that firstly when the original legislation when the bill was put before Parliament of course like any bill it has to be certified by the presiding officers within competence and we have a duty to comply with the Human Rights Act under the Scotland Act obviously then it was passed by Parliament now following its passage by the Parliament no the law officers did not seek to raise any action to challenge compatibility since that time we have seen as I referred to I think a while back at a particular appeal case the case of Donnelly and Walt versus the Procurator Fiscal and that was a appeal case of March 2015 with three appeal judges and the view was taken that actually in that instant case it was article 7 but the article 7 of the EHR was not infringed and the appeal was dismissed and I think in terms of the paper of the Scottish Human Rights Commission they were engaged in the discussions around the original legislation I think it seems to me that their paper is kind of echoing what they said then but maybe perhaps not taking into account particular developments that have happened since then including of course this appeal case and also the fact that the Lord Advocate issued guidelines no account has been taken of that as regards issues about certainty of law and so forth. On the member's other point about the evidence from the equality and human rights commission I noted that and this reference to the international covenant taking precedence in this regard over the EHR and that I thought was an interesting submission and one I would imagine that the committee would wish to reflect on when it is deliberating in terms of its report. Thank you for clarifying that, it's very helpful. On the moving forward somewhat into other evidence we've received referring back to section 1 of the 2012 act it's been argued by some that the act should be extended to include outside of a football context for example marches and parades bearing in mind everything that's been said earlier that no proposals for amendment have been brought forward to yourself and that in order for the current act to be amended it needs to not be repealed with all those caveats do you think it's a feasible suggestion to potentially include marches and parades? I know having read the evidence that issues of certain marches have caused concern and there are a number of points here there was a fairly recent report by Dr Michael Rosie on marches, parades and static demonstrations I think was the title and a number of issues were put forward but I do recall that he concluded that in terms of the investigation he had carried out the vast majority of marches and parades of whatever persuasion were carried out in good order and peacefully now obviously the police do have powers under the public order act 1986 to deal with disorder at marches and parades however what I would say is of course in terms of an open door approach if there is significant evidence of problems of disorder at marches will be required to look at that and if that means that possible response to that could be assuming the act is still in place a look at the act then that's something we're prepared to do obviously it would be too early to preempt what the result of that deliberation would be but we would need to see firstly that there was evidence of a significant problem that needed to be tackled in some way and then we would need to reflect on what we thought working with others and stakeholders would be the best way to tackle that but it's certainly an issue that we keep under advisement and will continue to do so of course we get back to the key one of the key arguments here on the part of those who seek to repeal the bill which is freedom of expression now of course freedom of expression it's always fine when you're expressing what you want to hear and you don't want to nicely hear the other view but of course we live in a society where marches and parades are part of our understanding of freedom of expression of course the people who participate therein are subject to the same rules and norms as everybody else and if there are significant issues of disorder then absolutely we would be wishing to look into that yeah supplementary linker just minister if I may the doctor rosie's research she said it concluded that the vast majority of these marches was carried out peacefully and he went on from that to say that that's a reason not to legislate against it if we accept then that the vast majority of football matches are carried out peacefully do not exhibit the behaviors complained of then isn't that a reason not to legislate on them either I don't know if it's exact analogy to be fair to Mr Kerr what we have seen and what we continue to see at football are instances of abusive offensive threatening behaviour chanting offensive chanting and all the rest of it and we continue to see that regularly I think the point that was made in the rosie research was that in many instances where he had had a look at the matter there weren't really any issues raised about public disorder that's not the case sadly in and around football where there are and continue to be issues raised in terms of unacceptable behaviour and as I think I mentioned a while ago in 1617 2016-17 we have seen 377 charges under the act an increase of 32% from the previous year so I think that would suggest that there's still an issue there and that we're not yet ready to rest on our laurels about conduct at football on the part of the absolutely agree with the member in that regard on the part of a tiny minority but a tiny minority that can have quite an impact in terms of the messages that we are sending out particularly to young people in Scotland To me that marches and parades are subject to scrutiny by local authority committees prior to any such march taking place that football games are not The process for approving marches and parades and static demonstrations is very much driven by local authorities in discussion with the police and obviously that is there for a matter of them as regards this Parliament obviously if people come forward indicating there is very significant evidence of disorder of such a nature that action would require to be considered at least then we would consider that the member is absolutely right to say that in the first instance an application is made to the relevant local authority and then there's a procedure in place as to how that local authority will then make a decision as to whether that march, parade or static demonstrations should go ahead Rona Mackay Thank you, convener, good morning Minister During evidence to the committee the Scottish council of Jewish communities said anybody who's old enough to remember the race relations act 1975 how much society's changed in that people don't say things now that they would have said in the 1960s at least not in public that's partly down to legislation so I don't think that we can underestimate the effect that legislation has on attitudes so I wanted to ask the government has stated that there are contexts where strongly held religious political or cultural views are acceptable and quite appropriate I wonder if you could sort of outline what those contexts are and if in your views there's still a place for this in football in 2017 I did read the Scottish Council of Jewish Communities submission and I did think that it was an interesting point that they made citing the race relations act of 1965 I think it was where they said that amongst other things that a very strong signal had been sent by that one piece of legislation to society about what was acceptable as regards those matters and going back to the the fundamental principles always come back to this conversation the issue of freedom of expression freedom of expression is a right but it is not absolute and it is tempered by the need to respect the rights of others and I think that is there for the key element of this part of the discussion on the act and the members bill and certainly as I say as to where we should see the dividing lines clear guidance is given by the world advocates guidelines of updated guidelines of August 2015 as to where in all relevant respects that that judgment should be made and in that regard of course police officers make judgments on a daily basis about things and they use their judgment in accordance with guidelines set down in accordance with training that they have had and that is the same for this legislation as it is for many other parts of the law Thank you, if I could just briefly follow up with given that 69% of offences under this act occur at football stadiums would you say it's a fair reflection that football culture has not been targeted by this legislation if 69% of the offences occur at football stadiums? Well I think that it's fair to say that the legislation is to do with behaviour in and around football and that is the way the legislation was drafted of course this piece of legislation it's not alone in looking at football where there is evidence of significant problems over the years we have seen legislation in England and Wales the football offences act 1991 where legislation was introduced to deal with specific problems including pitch invasion and chanting and we have seen also both north and south of the border legislation introduced to deal with football in terms of alcohol and issues around alcohol, sales and consumption so I think first of all we have recognised that there are problems and that we have sought to try to address those and that is in keeping with other jurisdictions and other kinds of legislation that recognises also problems in this regard it is fair to say and as I said before that this is a tiny minority of fans that cause problems in this regard and the vast majority of football fans want to go to the match and enjoy the game and they want to be able to take their families and I did read some really quite depressing submissions on individuals, grandfathers and so on who said that they wouldn't take their grandson to a game anymore because they just felt it was inappropriate that they were young. Family should be subjected to this kind of behaviour so I do think that that is very telling and indeed very depressing in 21st century Scotland so it is clear that there is a problem at football it is a tiny minority of fans I think the figure from Police Scotland was something like 4 million turnstile visits to football matches I guess over the season and of that 4 million so in 1617 for example you are looking at charges under this particular legislation of 377 so I think that gives you the context but just because there are 377 charges and 4 million visits at the turnstile that doesn't mean to say that this is not a problem that is corrosive and is damaging to society and impacts negatively on so many other people including vulnerable groups so I think that it is there for appropriate that we recognise that there was an issue to tackle and we sought to do that by way of this legislation amongst other actions Okay thank you very much If I could perhaps at this point ask if members and the minister could be as concise as possible it would be very helpful if we were questioning with less than half of our time left Liam Kerr Sticking with previous evidence Bemis stated that the 2012 act has had a negligible effect when it comes to tackling hate crime and if anything they suggest that it has caused confusion as to what is actually criminalised by the act Do you accept that criticism? No I read both Bemis I think quite full of the second one but no I don't really accept that I think that as we have seen for example in 1617 377 charges we have seen in 1516 a conviction rate of I think around 76% and if we compare that in 1516 comparable conviction rate so for beach of the peace was 74% common assault was 84% so I think we see that that fits you know in a reasonable spot so the act has been effective of course the act is one element of the work that the government does in this regard I think also it was Police Scotland that indicated that improvements in football behaviour in general terms the act has been influential but should not be seen in isolation and many other issues come to the fore including improvements in studio as well Minister forgive me can I ask you about that you said at the start that we need to eradicate the bile do you believe that the act has done anything of itself to eradicate the underlying attitudes and beliefs that manifest themselves as this offensive behaviour yes I do and I think that was recorded in the evidence from Police Scotland that there is a greater awareness now of these issues it's much more to the fore and indeed I think the police officer referenced an example of self-reporting at a particular match so I think yes it has had an impact but I wouldn't be at all suggesting that it is the only piece of work of importance in this regard it is not it is not a panacea as I said my opening statement but it nonetheless is important to give the police and the crime office the tools that they need to seek to tackle the problems that we face in this regard that football-related hate crime was increased by a third on the railways and I think in response you accepted and noted that women were afraid to go into Glasgow presumably on a match day I'm not sure if you qualified it but I imagine you meant to but doesn't that tend to suggest that the act isn't working well it was I was actually quoting the Scottish Women's Convention I think you'll find from their evidence that they made that point that actually women are afraid to go into Glasgow on a Saturday if there's a big match on and as a Glaswegian female who lived in Glasgow for many years I get that I get it, I got it then and I still get it to this day but in terms of the I think the issue that the member is trying to get at is people's underlying feelings here in terms of whether they have particularly strong feelings that the rest of society is unacceptable in terms of public display and of course we need to work in a number of ways to tackle underlying feelings such that to promote your identity to celebrate your identity you have to hate somebody else's identity I think was put forward by one of the academics yes there are a number of standards but the act as well has a role to play yes the point was I was interested on statistics here about this third rise and does that not tend to suggest given that the act's been in if there's been a decline in this behaviour which you would attribute to the act coming in presumably and now it's on the rise again does that not tend to suggest that the act is either has either worked and now is no longer working or that any previous decline is a function of other things going on as you say other behaviours in the football club for example well as I say the act is not panaceining of itself and the fact that sadly in our society in many regards hate crime is increasing I think is not a reason to take our foot off the pedo I think it rather is a reason to reflect very carefully on what we have as tools available in this case to the police and to the crime office and procreative fiscal service to help to tackle problems where they arise hateful and prejudicial behaviour that actually is a criminal it's against the law the norms of our society and I think therefore that the act plays a role in that regard obviously as has been said already repealing the act without a viable alternative being placed has been said to risk very serious consequences in terms of the wrong signal being sent the wrong message and I think that would be a very important point in terms of what the member has just rightly said about increases in hate crime generally in terms of certain types of hate crime so I think it's a good reason to reflect very carefully on actions taken and not to act too hastily and maybe regret at leisure one final question for me you stated in your opening remarks that the offensive behaviours displayed by football fans are not replicated in any other sport which begs a question if someone at a rugby match made a homophobic or a racist comment which was audible to others which was offensive and perhaps led to a public disorder presumably they would be charged with an offence if so which offence that would be a matter for the crime office in the end of the day but I would imagine in those circumstances that one potential route would be to protect the criminal justice and licensing in Scotland act 2010 for example they wouldn't be charged under this legislation no of course because it would not be taking in and around football that is part of this legislation and I think what has been seen in a number of submissions made is that actually this problem doesn't exist in any particular degree in any other sport but I see in the submissions about an offensive behaviour at Bowls act now I'm not aware that there is a huge incidence of disorder at bowling clubs the length and breadth of Scotland where we have racist and religious and homophobic slurs and bigotry and bio so I think we have to accept where the evidence leads us the evidence leads us to the place where we see that there is a problem in and around football and vast majority of fans do not want to engage in this behaviour but not recognising that there is a problem I don't think it takes us very far in a debate on how best to tackle the issue OK, moving on Liam McArthur Following up on that does that not the issue that Liam Kerr has just highlighted not point to a fundamental problem in that if the behaviour is offensive and something that we would wish to see eradicated it didn't really matter where it happens and that talking of this legislation in the context or of a piece with the race relations act is to misrepresent the race relations act which was targeting behaviour, racist behaviour and acts across the piece irrespective of where they took place whereas this has solely focused on behaviour in and around football whether it may be more prevalent there or not it actually sends out a message that that behaviour in other contexts either is not deemed to be important enough to tackle or can be tackled through other means which is certainly the case that has been made by many that this behaviour is already covered in the existing legislation prior to the 2012 act What I would say, a couple of points if I may The member referred to a particular piece of legislation and that applied Erga Omnys and this doesn't Of course, there has been I think I mentioned in my opening statement for example the emergency workers act which was introduced in 2005 and that was recognising a specific problem Now, there is an overlap in terms of the offences there they can be charged I'm looking to see some of the Scottish legal department nodding they can be charged under other libows Yes, it was felt important to recognise that there was a specific problem and to deal with that by way of a particular piece of legislation for emergency workers In terms of the general issue that the member raises as I've said this legislation provides an extra tool it's an extra tool for the police and for the Crown and Procurator Fiscal Service I think you've had very detailed evidence from the Crown Office explaining exactly why the position of the existing legislation could of course be reverted too but there would be limitations therefore going forward in what kind of behaviours could be dealt with and that was dealt with very clearly by the Crown Office in their oral evidence to the committees, I won't repeat it all again so there was a very clear explanation given as to where we would fall short of what we currently have if the act is repealed I'll come on to that in a second but if we deprecate the behaviour and want to see it eradicated and we want to send out a strong message to that effect then why on earth are we distinguishing between offensive behaviour in one context and offensive behaviour in another context I think we go back to first principles and the debate we've been having all morning which was that there was a recognition that there was a particular problem that wasn't replicated at tennis wasn't replicated at bowling clubs the length and breadth of Scotland was a particular problem but is replicated in society at large in the sense that what we're seeing is a reflection at football of something that is still all too prevalent I think all of us would agree within society in general now there may be flash points at football but if you're going to deprecate the behaviour surely it should make no difference where that behaviour happens I would go back to the comment I made about Dr Duncan Morrow's approach in terms of the advisory group on tackling sectarianism where they recognised that football provides a permissive environment where people may act in a way that they wouldn't actually act in other environments but in the football environment it's this permissive environment that seems to engender among some minority of people the idea that you can act with impunity and behaviour that would not be acceptable in society at large and that is recognising the fundamental crux of the issue here about why it is legislation designed to deal with issues in and around football in the way that has been recognised in England as far as the English legislation of 1991 and indeed approaches on both sides of the border about alcohol at football and the recognition that there are particular issues to be addressed and recognising too, as I've said from the outset that legislation by itself is not a panacea but recognising too that legislation is a tool and it has a role to play but that would suggest that you would expect more of the convictions and more of the charges to be brought in relation to incidents in and around football but again should not deter us from cracking down on tackling this behaviour I mean on the issue of section 1 which you touched on and the evidence from the Crown Office simple fiscal service around repeal of the 2012 act would leave gaps in the law for tackling these offences we also had evidence that there was no real gap that would be left by the removal of section 1 so can you perhaps elaborate what specifically the gap would be should the bill be repealed particularly in relation to section 1 OK, I think I would point to the evidence that was given by the Crown Office representative I thought it was a very clear statement of the position but it was contradicted by other legal representatives it's playing the law day and day in the Crown Office so I felt that as a person who has to work with the act to determine what charges can be libled in circumstances I thought it was a reasonable source to go to to get a clear picture of where exactly things are in the Crown Office as we speak so as far as section 1 is concerned it was said that firstly the provisions concerning extraterritorial application of the act are not present in what was existing legislation prior to the entry into force of the act secondly there are limitations as regards a different evidential test and we've dealt with the issue of the incitement to public disorder in terms of breach of the peace in section 38 of the 2010 criminal justice and licensing Scotland act that is a fear and alarm test if you like so there's a different evidential test and then in terms of section 6 there is an issue about extraterritorial application that is not present in other legislation there's an issue about differential sentencing powers in terms of existing legislation i.e legislation before the entry into force of the 2012 act the issue is that the penalties can be pursued on a summary basis whereas under the 2012 act they can be pursued on a solemn basis and I think that's a very important extra tool that the Crown Office should have also the Lord Advocate's guidelines sorry the Crown Office letter to Mr Kelly in his consultation on his bill made it quite clear that there could be behaviour that could be prosecuted under section 1 which would not be capable or securely capable of being prosecuted under existing legislation and I think it was the former Lord Advocate Frank Mulholland when he was before the justice committee but perhaps a previous session of the justice committee who explained that a benefit of the act is that you don't then have to shoehorn cases into existing legislation so I think that is a reflection of where matters stand in terms of the Crown Office of Scotland an independent office of government I think it explains very well what the deficiencies are in the existing legislation and it shows quite clearly why the 2012 act gives this additional power additional tool to have at the disposal of those seeking to apply the laws of the country Finally briefly and talking of deficiencies of legislation obviously we've heard a considerable amount of evidence about the deficiencies of this 2012 act particularly in relation to section 1 Do you regret or does the Government regret not bringing forward its own proposals for amendment to address those deficiencies prior to the publication of the repeal bill? Well we don't believe that the act should be repealed That's a different point You can argue whether or not it's easier to address the issues that we all agree are there and that Lord Bracadale will in part be looking to address with his own recommendations in due course debatable whether or not it's easier to do that on the basis of a deficient legislation being in place that needs to be amended or clearing the decks of that legislation and putting in place a firmer and more well balanced structure but what I'm asking is whether or not, given the evidence the committee has heard does the Government regret not having brought forward its own proposals for reform of the 2012 act prior to the publication of the repeal bill that James Kelly has brought forward? Well as I mentioned in my response to Claire Baker a while back, I don't necessarily accept the kind of list of complaints about the act in some of the submissions I have also said to the convener on a number of occasions this morning that of course everything in life in my experience can be improved including legislation I don't accept that the act is deficient but can legislation be improved? Legislation can always be improved I've also said that my door has always been open to people coming to make constructive suggestions that are evidence based not one person has sought to come to speak to me so we are where we are and what I would say is that of course I absolutely note the evidence of a whole host of people but by the same token it is important as well to note that there is evidence whereby people take very different views as well and I think obviously that is something the committee will have to reflect on in its deliberations If your door is open and you can't get inside the head of those that are raising concerns is it a surprise that they haven't taken up that offer? No, I don't think that's a very constructive comment so my door is always open I've said that from the outset and nobody has come to make any constructive suggestion at all What I said at the beginning was that some of the instances as I've mentioned which were stepped forward in various of the individual submissions and the fact that all fans are being criminalised on Julie and blah blah blah I mean I don't accept that as a matter of fact that the evidence shows that that is the case I do not believe that therefore I find it difficult in that regard to get into the mind of somebody that is saying that this is criminalising all football fans when the evidence patently shows that that's not the case so in that regard I do struggle to understand why to hold that view but by the same token I do note that obviously people have very strong views and they have strong views on both sides and obviously the committee will want to reflect on that in its further deliberations First Minister I want to touch on the threatening communications aspect of the current act and section 6 in particular which the Scottish Council of Jewish Communities has said has remarked on that repeal of section 6 would inevitably send both to perpetrators and victims of threatening communications as well as the fact that it would be more difficult for such offences to be prosecuted you spoke in your opening of remarks about the extra-territorial element to section 6 and indeed evidence from the current office in Procurator Fiscal Service spoke of its benefits as well so in somebody could the minister elaborate on why the repeal of section 6 would in the Government's evidence be deeply problematic? I believe that section 6 has provided some clarity so it has introduced for the first time into Scots law a specific offence of threatening communications to stir up religious hatred that was present down south that wasn't a specific offence in Scotland so that has given again the current office has given them a clear tool available where the circumstances of an incident case are relevant and of course as I've already mentioned the act provides extra-territorial application which has proven to be useful in a recent case I don't know if Craig has that to hand I don't have that case to hand A recent case involved extra-territoriality as such but there is an extra-territorial aspect to section 6 which is that people beyond Scotland sending messages which are intended to be reined by a Scottish audience or by a person in Scotland are encompassed by the reach of the act which would be lost obviously on repeal I should perhaps just say just to go back to Mr Kerr's previous point for the sake of completeness the committee might find it useful we're talking about gaps I think it's accepted by everyone who's given evidence and certainly would be my view on the statement to religious hatred in Scotland absent the provision in section 6 of the act and that I suspect might be a relevant gap for the committee to consider going forward Thank you and that's helpful and just to elaborate further with regard to section 6 we've heard a different comment on it for example from Dr Webster that has asserted that section 6 fails to distinguish hatred from abuse thereby conflating the two and criminalising both and also we heard written evidence from Police Scotland that section 6 is narrow in scope and that's made it challenging in terms of wide use by the police so I wondered if the minister could comment on those two concerns that have been raised with regard to section 6 Firstly on Dr Webster's submission I didn't quite I don't agree with his conclusion in that regard Secondly on the issue of the Police Scotland's the representative in the oral evidence that the scope may be narrow in their view I would be as again my door is open I'm happy to discuss matters with Police Scotland on that particular point we hold regular discussions about many issues about the act and if there are issues that they wish to bring to my attention then I'm happy to look at that Moving on Maurice Corry Minister could you comment on the suggestion that the 2012 act has made tackling sectarianism in the context of football matches much more difficult? I don't believe that's the case I'm not quite sure what's triggering the members Is it meaning that the policeman who is dealing with the issue of taking the law and dealing with it is making it more difficult to understand he or she to understand where he or she can bring a charge? Well I think as I've said in terms of the Lord Advocate's guidelines it's very clear what the circumstances will be and of course in the guidelines it's a requirement to exercise common sense to reflect football rivalry football fan rivalry and to reflect proportionality and of course the police have been trained in their approach to various pieces of legislation including with regard to the 2012 act I think it's important to remember that the act itself makes no provision for policing at all policing is an operational matter of course for police Scotland and I think it was in the police evidence they suggested that actually in terms of the number of cases brought before the crime office there was something like an 89% 85% progression of that case and so they felt that they were understanding very well the legislation in that so many cases were being proceeded with of course I think it's also fair just in conclusion to say that also reading the police evidence has expressed the view that actually they don't see necessarily that much would change in terms of policing if the act were to be repealed it would be business as usual Can I add another one? Do you feel that there's a sort of feeling there's a group of fans who feel that their side's been unfairly targeted but you feel that's a pretty reasonable representation of the facts? No I don't think the evidence bears that out I think as I said already so the example was given I think again by Police Scotland that of the 42 professional clubs in Scotland charges have involved fans coming from about 24 of those clubs and therefore it was indicated of the fact that this is not a piece of legislation that is simply applied to one particular kind of football fan but this is applied to Erga Omnys and it is applied with respect to the behaviour not the team that the particular fan supports it is the behaviour of the individual concerned that attracts the attention of the act In relation to sectarianism it's not defined in scots law as you probably realise as a lawyer yourself minister will it ever be possible to define sectarianism in a scottish context so that's quite important in relation to the subject? I think it's a very interesting question certainly at the origin of this legislation was that it shouldn't be wider than simply looking at sectarianism but I think it is interesting to note that in the interim period of time Dr Morrill's advisory group on tackling sectarianism in Scotland it did come up with a definition of sectarianism and I think there has been some work with grassroots organisations to get some feedback on what people feel about that definition so we are again happy to reflect on where we are with that and indeed to reflect on whether it would be advisable in all circumstances to seek to proceed with a definition of sectarianism bearing in mind again as what I said earlier and the member will know himself that obviously if you come up with a particular definition in law you've got to be careful that you're not being unduly restrictive in terms of how you want to phrase that but I think it's certainly interesting that the advisory committee have done a lot of work in that regard and it would be a timely moment to have a look at that. That concludes the committee's question and I now ask James Kelly to ask any questions that he'd like to on the bill. Thank you convener, during the course of the session this morning you've made a number of comments about behaviour of football fans the atmosphere around football stadiums what informed your view on that how many football matches have you attended over the years? My last football match I think it was the first ranger Celtic game after recent developments affecting rangers football club and it was last September, would it have been? September 2016 I attended that game and that game took place at Celtic Park. So have you ever actually paid 10 to a football match? Well I was there as Minister I've been quite happy to pay but I was there as Minister and I think I was probably there at least tolerated by Celtic football club themselves because I did visit the command centre and all the rest of it but if I asked to pay now I'm quite happy to do that Mr Kelly From what you're saying I don't think you've actually paid to enter Oh no I have, I've been over the past but I tend to, it's a national game that I would perhaps find more interesting but in terms of the recent times the match in September 2016 was the most recent match I have been to. But your experience of club football is somewhat limited? I'm not I usually experience club football person no and I've never I pretended to be so Mr Kelly Okay so in that case can you understand the criticisms that are made towards yourself and your Government and they feel that the view that you've formed is one that you've formed from your ministerial office and it's not actually informed from being in the football stadium and sharing the experiences of football supporters My job as Minister is to work with all relevant stakeholders and others is to read the evidence is to listen is to work hard and the evidence before me is to reach conclusions and the evidence before me, for example on the issue of the claim that this act has criminalised football fans this act has dealt with those cases where the behaviour itself has attracted has attracted the attention irrespective of club of football strip of affiliation of any other issue of the act and that is the evidence that is before me and that is the evidence indeed that has been given to this committee by, for example, on that issue at Police Scotland I wonder if you can help me on another issue if someone goes to a religious venue a church of Scotland venue a Catholic church and a mosque and behaves in a hateful manner towards people who are entering that venue how are they dealt with in the courts? Well, each case would depend on its own individual facts and circumstances so it would depend on what the behaviour was and all the rest of it it would be really very difficult to make a general sweeping statement but each case depends it's not a kind of template there's the individual behaviour that then attracts attention depending on what the behaviour is in each fact and circumstance I don't know I think the point that the minister is making is the correct answer which is the facts and circumstances the context are everything in terms of determining whether a crime has been committed or not so to take your example just at its highest if the person runs into the church brandishing a machine gun and firing that would present one set of charges if they run into the church and punch him and that's a different set of charges if they try to incite religious hatred that's potentially a different set of charges so fact and circumstance specific is very very important in determining it's not possible to give a set answer to something without knowing the specifics Well, that does be a bit more specific then somebody stands outside a religious venue and incites religious hatred abuses people who are entering that religious venue what how would we prosecute it through the courts for example if it was threatening communication it might potentially be under section 6 of this act if they were looking to serve up religious hatred through issuing unrecorded speech for example a banner or leaflets or whatever they were threatening in that sense it could alternatively breach with a piece under the criminal justice licensing act there are a range of different potential options it really matters what the specifics are what the person is saying or doing who else is there at the time so if someone then exhibits the same behaviour at a football stadium clearly that's unacceptable and it has to be prosecuted through the courts and in your case it would be it would be brought forward in the legislation offensive behaviour at football why do we need two sets of laws why do we need a particular set of laws where someone exhibits religious hatred in the street or outside a religious venue and a different set of laws for a football ground the idea of laws overlapping is not unique to the area of football I gave the example of the emergency workers act of 2005 where other laws are there but it was felt nonetheless that there was a very specific problem that needed to be addressed and the emergency workers act was truly passed by this parliament so an overlap of laws is not a new thing and in terms of the why the act we I think have had a good get go about why the act this morning because there was deemed to be a particular problem in and around football that needed to be addressed and of course whilst I have already said that legislation in and of itself is not a panacea it is not the only strand available to seek to improve matters nonetheless it was felt that legislation was also a necessary response to behaviour that really was acceptable to the vast majority of football fans and the vast majority of people in society so on you've made a couple of references minister to the emergency workers act and I was on the committee when we passed that act it was a very short act it was a very problematic act for example if someone disappeared through a door and they were no longer in an emergency environment and the same attack happened it wasn't necessarily covered by the act the absence of post-legislative scrutiny I think it's maybe helpful to make that point to just balance how effective that's been okay but it's on the statute book nobody's coming forward with the bill to repeal it so it's still there and still can be used you've spoken a lot about the message and the signals that are sent surely having one effective piece of legislation that makes it clear on issues for example like religious hatred that such behaviours are unacceptable in the football ground in the street or outside religious venues it's a much stronger message than multiple sets of legislation Lord Bracadale is looking into Raleigh at issues of consolidation that was part of the remit so that is a fair point in that regard but in terms of whether this behaviour is to be tackled the legislation as I say provides this to in terms of both section 1 and in section 6 in terms of looking at the limitations of the existing legislation it does provide it to and I have dealt with that quite some length in response to in particular Mr McArthur so it allows this behaviour to be prosecuted and I think we have heard that certainly as far as Police Scotland is concerned it will be business as usual in terms of policing football matches even in the event that this bill is repealed OK, if I can look at another issue you'll be aware that in August 2016 a Champions League qualifier match the Celtic support took part in a a display in support of Palestine and that was then supported by motions in this Parliament tabled by James Dorn and your colleague Ross Greer the police took the view at the time that the demonstration wasn't in breach of the offensive behaviour football act have you got a view on that? Individual instances are matters for in the first instance the police act in accordance with the law in accordance with their training having cognisance of the Lord Advocate's guidelines and then for the Crown Office to take what the police have passed on to them and consider that so it's difficult to absent any other facts and circumstances to come out with any particular conclusion as has been mentioned the importance of the law is that it deals with facts and circumstances of each case and all of that is relevant before arriving at a conclusion and otherwise you would have a very dangerous situation in society where you didn't look at each individual fact and circumstances but rather made some sort of blanket had some sort of blanket approach but you accept the view that the police took on that occasion? I don't have all the facts and circumstances before me Mr Kelly so I just don't I would need to know all the circumstances of the case but I don't have all the circumstances to what attendant behaviour there may not have been around that banner and so forth if the member wishes to give me chapter and verse in that then that's fine It's a matter of public record that the police concluded that there were no charges relevant under that so you can understand the confusion people have in that that was clearly a political display and people look at other political displays that take place at football matches which are captured under the act for example at a recent Rangers part of this whole game someone at the height of the catalan crisis someone brandishing a catalan flag was ejected from the game surely you see the inconsistencies that there are here minister? Well as I say each case has to do with its facts and circumstances so I think if the member were to look in detail at the guidelines updated from August 2015 he would find some helpful information as to what benchmarks are used to help the police and the Crown Office in their approach to this matter and as I say facts and circumstances are really important you have to look at the attendant circumstances of any particular behaviour and of course in terms of banners and flags and chants there are and songs provisions of the Lord Advocate guidelines which deals expressly with those matters which I'm happy to read out but I think the convener is not wanting me to do that but I'm sure the member is well aware of the guidelines in that regard Can you perhaps understand why people think that that reinforces the point made by the Scottish Human Rights Commission in relation to legal certainty when if a lot of people and you're not being clear about it here minister if people aren't clear what is there is not a criminal act under the law how can there be legal certainty? Well I think on the issue of the the Scottish Human Rights Commission's submission I have already responded to that and I would cite again the case of Donnelly and Walsch vs Buckley to Fiscal which went to the appeal court in March of 2015 three appeal judges ruled that article 7 of the ECHR was not engaged on the issue of legal certainty if you like of the certainty of the law so that's a ruling from Scotland's appeal court and I'm sure that the member would reflect that that would have some validity in the context of this debate Final point convener is it right minister that you're a member of the Law Society? I am a member of the Law Society of Scotland You would give weight to the views of the Law Society then I would listen as minister to the views of the Law Society I am a member and I have declared that in many cases but I'll just do it again quickly I remember the Law Society of Scotland I hold a current practicing certificate but I'm not currently practicing So in terms of the Law Society submission in relation to this bill they said in a quote directly in 2015-16 287 charges were brought under the section 1 of the 2012 act of the review that all of them could have been prosecuted under pre-existing legislation or criminal law Surely that is a credible opinion coming from the Law Society you have looked at this in detail and surely that's something you must give some weight to I listen to the Law Society I listen to every other person that makes a submission individual named, anonymous, organisation or anybody else and what I would say, as I've said already is that the issue of where the act gives this extra 2 was very clearly set forth by the Crown Office in their evidence, the oral evidence session before the committee where they explained that as far as section 1 was concerned under the pre-existing laws available extra territorial application is not there is a different evidential test so that provides limitations where you to repeal the act without a viable alternative being in place and on section 6 we have heard that the extra territorial effect is not present under pre-existing legislation that there are differences in sentencing opportunities, one is summary that's a pre-existing approach and one is solemn which is the legislation that of course the legislation introduces into Scots law for the first time a statutory provision criminalising threats made with the intention of stirring up religious hatred so if you were to repeal the act without a viable alternative you would take all that away and it wouldn't therefore be there and it wouldn't be available to the police and particularly the Crown Office to proceed to deal with behaviours that fell within those circumstances so that is the position initiated by the Crown Office before this committee just in terms of section 6 do you accept the police view that the legal threshold is too high in terms of section 6 and therefore it's not effective and the evidence shows that in terms of a small number of prosecutions and therefore the communications act has to be used the position is with any statute that I don't think you decide whether a statute is useful depending upon how many recourses are made to it there are many laws out there for different reasons passed by this Parliament or elsewhere and I don't think there's a yearly swoop to see how many charges have been made and therefore to say that we have to disregard certain statutes and repeal them just because in that particular year there weren't charges brought there under but it is clear that each case again falls within its own facts and circumstances where section 6 is the appropriate route and there will be circumstances where it won't and each case is determined by its facts and circumstances and that is entirely the right approach of any civilised legal system thank you can you do that? can I thank the minister and the officials for attending we now move into private session our next meeting will be on Tuesday 12 December when we will continue our consideration of the offensive behaviour of football repeal bill and we will also complete stage 2 consideration of the domestic abuse bill I suspend now to allow the public gallery to clear