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.