Yesterday the Cabinet Secretary for Justice, Kenny MacAskill MSP, introduced to the Scottish Parliament the first Bill to be considered by the new session of the Parliament. The Offensive Behaviour at Football and Threatening Communications (Scotland) Bill is the long awaited “Anti-sectarian Bill” that the First Minister and Justice Secretary had promised would be in place before the beginning of the new football season.
Throughout today I have been giving the Bill some thought and have arrived at some initial conclusions on the content of the Bill, which I will come onto in a moment. However, I am settled in my mind that the Bill should not be passed by Parliament if it is to be dealt with under an expedited procedure that would see a stage 3 vote on the 30th June 2011. As I have said previously the timescale for this Bill is of great concern. There is very little time for the Bill to be scrutinised. Indeed, those who are going to be submitting oral and written evidence to the Justice Committee of the Scottish Parliament have just one week to read through the Bill, gather their thoughts and submit them to the Scottish Parliament’s justice committee. Given that the Bill is only 9 sections long, two of which are standard to any Bill that goes before the Scottish Parliament that may seem simple to do, but that would be suggestive of someone who has little experience in reading and interpreting statutes. Scrutinising the Bill requires careful consideration of exactly what each section of the Bill will mean in practice. More often than not the most obvious effects of any particular section of a Bill are not the only effects. If the less obvious are not identified during the parliamentary stages it can result in unintended consequences. There is no emergency here, it is not as if we have a situation where there is nothing within the criminal law to deal with these incidents – there are plenty of offences that can be utilised (and have been heretofore used). Parliament really does need to take its time and construct a comprehensive long-term plan rather than a poorly constructed criminal statute.
Turning to look at the actual content of the Bill my initial view is that much of it is not required. I would go so far as to say that sections 1-4 should probably be removed from the Bill. Section 1 simply covers conduct which is already an offence carrying the same range of available sentences. Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 created an offence of “threatening and abusive behaviour”. The conduct covered under section 1 of this Bill fits very well into the definition of section 38. The powers of sentencing open to a court under section 38(4) are identical to what is set out in section 1(6) of the Bill. By removing section 1 the need for sections 2-4 is also removed as they all relate to section 1 of the Bill. Some could argue that the inclusion of section 1 is entirely political. I would say that is unfair. Certainly, the way in which the Bill has been introduced has a smell of politics, but I do believe that there is a strong determination amongst the SNP group (and indeed the Scottish Parliament as a whole) to deal with the scourge that is sectarianism. That determination is one that, I believe, is reflective of the general mood in Scotland.
Section 5 is slightly more complex in that while the conduct could very well be covered by offences already in existence it aims to come down a lot more severely on those who pedal bigotry on the internet. I do not like bigotry and I believe we have to do something to tackle it. However, at the same time I believe in the right to free expression and generally support a very narrow interpretation of Article 10(2) of the European Convention so as to protect the right of people to hold their own views and express such views. It is entirely wrong though for a person to use their freedom of expression to incite violence and I would be prepared to accept what section 5 aims to do if the section is tightened up a lot more to ensure that those who hold distasteful views about sections of society are free to hold those views and to express them. Specifically subsection (2) has to be looked at very closely. In the way this subsection is phrased I can see real potential for unintended consequences to occur. There is, from my reading of the subsection, the potential for persons communicating distasteful comments, which may very well cause the reasonable person to be alarmed, to fall foul of this law where their conduct isn’t really what Parliament intended to criminalise. As the drafting currently stands paragraph (a) and (b) could very well be read separately from one another and I do not think that is what the Scottish Ministers have intended. Possibly inserting the word “and” at the end of paragraph (a) could clear up any doubt. Certainly reading the explanatory notes one can clearly see that for Condition A to be satisfied all three paragraphs of subsection (2) must be satisfied.
Certainly subsection (6) would appear, on a first reading, to protect comedians, filmmakers and others from prosecution under section 5(1). However, my first few readings of the section do not give me confidence that subsection (6) is strong enough to protect free speech. For example, while a speech itself containing conduct which falls foul of Condition A it could very well be that any audio or visual recording of said speech that is later distributed may render the distributor liable to prosecution. I am also concerned by condition B (found in subsection (5)) for similar reasons. This needs to be looked at closely and I do not think that the 8 days in which the Scottish Parliament will be sitting prior to breaking for its summer recess on the 30 June is sufficient to look at it closely enough. On the whole, my initial impression is that section 5 could have serious consequences, quite unintended, for free expression.
These are only my initial thoughts on the Bill and I intend on giving it a significant amount of thought over the coming weeks. I am sure that as the Bill passes through Parliament that I will have further opportunity to comment on it and that this will give me an opportunity to share with you my developing thoughts on the Bill.
prout de jure 
If section 38 is better at dealing with the behaviour that we’ve seen recently then I would expect the police to robustly enforce it. One of the first points raised in the recent Committee meeting was whether or not it was actually necessary to include large parts of the bill, given that there are already a raft of legislative provisions aimed at dealing with these very issues.
The media has pounced on the idea that the bill may even criminalise national anthems. While I doubt that is the intention of the Parliament, Roseanna Cunningham hardly made things easier for herself by saying that it “all depends on the context”. Many will see that as confirm that it COULD be used in that way. The government seems expect the police to be ‘reasonable’ in their enforcement of the legislation, instead of crafting the bill so as to state what the police powers in relation to it actually are.
I don’t think that the bill should contain a list of songs or chants (I seriously doubt that the people would ever obey a law that forbade them from singing national anthems), but it raises that all important question yet again. Exactly what kind of behaviour will be criminalised as a result of this bill? It isn’t clear enough and vague criminal laws are bad laws.
As we have both mentioned, the time-scale for this bill is far too short. The Parliament has just over a week to pass this and that means that it will be full of problems. They should just take their time with it rather than creating yet another couple of statutory offences that are going to have to be examined by the courts.
Although I did agree with you all those months ago as to the swiftness with which the Cadder legislation was passed, something did need to be done about it. The UK Supreme Court’s decision blew a hole in our criminal law that needed to be filled. Whether or not the final result of the bill was entirely satisfactory is of course a different matter…
Watching the recorded Committee meeting with Roseanna Cunningham was interesting. She seems to suggest that while breach of the peace was historically “a great strength” in Scotland, its vagueness is concerning. She states that there needs to be a “position” when it comes to Criminal offences. I don’t necessarily oppose that attitude, however we aren’t going to solve the inherent problems of breach of the peace by creating dozens of statutory offences spread over many different Acts – replicating the legislation as we go. The alternative, of course, would be to codify, but that would be a lot more work than this little bill entails…
For the police to robustly enforce section 38 they need to be aware of it. I have it on good authority from sources inside the police that legislative changes are filtered through by E-MAIL. Once an officer has gone through their initial training (which I believe contains just 4 weeks on law and procedure) there is little training provided that keeps them up-to-date on law and procedure. Plenty of training on “diversity” and such like, but precious little on law and procedure. If all the police have had is an E-mail telling them that a new offence exists and what it is they’re not really going to be all that confident in using it (that’s my theory anyway) and will stick to what they know. This lack of training of those employed to enforce the law in the law is a very real issue.
Section 38 is more than adequate to deal with, at the very least, what is covered by section 1 of the Bill. I’m awaiting an FOI response from COPFS in relation to statistics relating to section 38 since its coming into force. I suspect that they will make for some very interesting reading.
I very much doubt criminalising national anthems was the intention of Parliament it is conceivable that the Bill would lead to such actions being criminalised in its current form.
As to the timescale, I believe that papers were lodged late this evening with the Court of Session. That’s worth watching with interest.
Re Cadder, it is not really a relevant point here. However, something did need to be done, but we could have probably continued to run with the LA’s guidelines in place for 6 weeks or so to allow some more robust scrutiny of the Bill before it was passed. What we ended up with was something entirely inappropriate and full of holes. For example, there are no provisions re Children and vulnerable adults.
Breach of the Peace, at least the 2001 definition provided in Smith v Donnelly is Convention compliant. While it is vague, it’s not so vague that nobody knows what it means and since 2001 court decisions have helped to further define it, but the conduct covered by it has been somewhat limited by these decisions of the court.