Hansard

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

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

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

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

“somehow the word mince comes to mind”.

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

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

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

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

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

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

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

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

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

“continues to be an important tool.”

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

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

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

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

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