22 June 2011

Cunningham up before the beak...

Today and yesterday, Holyrood's Justice Committee took evidence on the Government's expedited Offensive Behaviour at Football and Threatening Communications Bill. In addition to Ministers' accompanying Explanatory Notes and Policy Memorandum, the Scottish Parliament's Information Centre have published a briefing paper on the Bill as introduced, which sets out the general implications of these proposals much more clearly than I could, across fifteen pages. Reference is also made to the much-mooted existing legal framework which Roseanna Cunningham is seeking to supplement with these new offences. It is also worth reading the range of written submissions the Justice Committee have already received.  Thoughtfully, the team who put the SPIce briefing together included this quotation, attributed to Samuel Taylor Coleridge...

“The spirit of sectarianism has been the cause of our failures. We have imprisoned our own conceptions by the lines, which we have drawn, in order to exclude the conceptions of others.”

I'm feeling a bit under the weather today, so I don't intend to go into these matters in any depth at the moment. In the meanwhile, Alex Massie and Ideas of Civilisation have had their say on the proposals. Massie is inveterately hostile, styling it "a Bill that shames Scotland"; while IoC tells the tale of "Humpty Dumpty the Sectarian Bigot". As to the evidence sessions themselves, they confirm two fears. Firstly, confusion and uncertainty about the scope of these proposals reigned and the Committee clearly had insufficient time to come to a clear understanding of the legal scope of these proposals, never mind their desirability or potential problems which the government drafters have not foreseen. Secondly, there was a great deal of the rhetoric I've criticised before, which recognises that broadly-drafted laws may well criminalise a great gamut of unintended conduct, but soothes parliamentarians with reassurances that the trusty authorities can be relied upon to limit enforcement of the laws to the real villains, so we shouldn't really worry about it. On the first fear, I'm afraid that even the Minister herself, sponsoring this would-be law and guiding it through parliament, did not always appear fully in command of the detail of her proposals. Like Scots Law Thoughts, I was particularly surprised to hear Roseanna argue, when asked how many people she envisaged would be prosecuted under the Bill's two new offences, that...

"I cannot answer your question. It would perhaps be better to ask the police witnesses what they believe is the likely extent to which they will be able to use the legislation. All I would be able to do is take a wild guess, but I am not in a position to do that. We are obviously not expecting the police to arrest 5,000 people, but if disorder of the kind that we have seen kicks off, we expect the police to use the legislation, where they consider it appropriate."

This might be unobjectionable, but for the fact that the Minister makes just such an estimate - or in her terms, a wild guess - in the Explanatory Notes to the Bill, explaining the Government's financial calculations about how much it will cost. The Notes explicitly anticipate that there will be between five to ten sheriff and jury trials under this Bill [Explanatory Notes, para 65] and an additional 50 - 100 additional summary cases per annum [para 66] for section 1 offences (offensive behaviour at regulated football matches). Similarly, the Government estimate that the Bill's section 5 threatening communications provisions will see an increase of between 2 - 5 solemn cases each year [para 73] and 20 - 50 new summary cases [para 74]. Either we have no idea how many people this Bill will see prosecuted, or these financial figures are basically moonshine. My own sense is that Roseanna's oral comments emphasise an important aspect of this - given the breadth of the powers proposed, this is a Bill which could be enforced with a range of intensities and which also relies to some extent on how football fans conduct themselves (at least for section 1 offences).

That no member of the Committee noticed this discrepancy in the Minister's paper and oral submissions, can be taken as evidence that they too are (quite understandably) struggling to conduct an examination of this Bill properly.  It is profoundly silly, when a self-imposed haste results in the Bill's lead Minister telling the scrutinising Committee that her officials may well be unable to produce written responses to detailed concerns raised by external witnesses. "We will do what we can in the available time. The short timescale imposes certain difficulties for us, too, in giving as much information as we can", she said.  More positively, I'm much encouraged by the inquisitorial performance of new Justice Committee itself. While it was always going to be a relief to get shot of Baillie Bill Aitken, it was a joy to hear Graeme Pearson, one of Labour's new MSPs actually express the following sentiments...

"I have seldom heard a police officer who did not welcome additional powers. I do not think that the fact that the police welcome additional powers is, in itself, a virtue. I am more interested in a free community than in a community that is policed to the nth degree."

In the event, the media mainly focussed Roseanna's response to Tory member of the Committee, John Lamont. Here's the section of the official report (which one should always remember, tends to deviate somewhat from what the speakers actually said...)

John Lamont: The minister will be aware of the words of the song "Flower of Scotland" and those of the British national anthem. Can you envisage the singing of either of those songs becoming offensive behaviour under the act?
Roseanna Cunningham: The glib answer to that is no, of course not. However, in terms of a criminal offence, all the surrounding facts and circumstances might turn that into something problematic. It might have been more appropriate to consider, for example, "Rule, Britannia", which I understand is frequently sung on one side of the terraces in Scotland and which I would not regard as being an offensive song. However, we do not define which songs are offensive and list them, because whether something is offensive is a matter of the facts and circumstances of the case.  I have seen hundreds of Celtic fans gesticulating across an open area to Rangers fans by making the sign of the cross in a manner that I can only describe as aggressive. The sign of the cross is not, in itself, offensive, but I suppose that in circumstances such as Rangers and Celtic fans meeting on a crowded street, it could be construed as being so, which shows why the circumstances are so important.  My immediate answer to your question is no, of course not. However, no matter how inoffensive an action, the response must always be qualified with the caveat that it depends on the circumstances.

John Lamont: Just to be clear, is the minister saying that if supporters want to be absolutely sure of not falling within the definition of the act, they should probably avoid singing those songs?

Roseanna Cunningham: I will not be drawn into making that kind of statement, Mr Lamont. You know perfectly well what I am saying, and so does everybody else.

For those interested in hearing what Roseanna had to say, here is live coverage of the first evidence-taking session from the BBC's Democracy Live. The second session is now also available here. Those wanting to skim it can read the official report of the Committee's proceedings here. For my part, I did not find it a particularly reassuring performance, just nine days before this Bill is expected to be passed into law...


  1. Legislate in haste, repent at leisure..

    remember the Dangerous Dogs act!!!

  2. Maybe that should be The Dangerous Teddy Bears Act....

  3. I think I just heard Eck on FMQs say that the timetable for the bill had been extended to the end of the year.

    Much more sensible.

  4. Not long enough...

    Do you think Rosanna will still be the minister in charge when (if) the bill goes through in six months....

  5. Braveheart,

    I disagree. A six month delay furnishes everyone with plenty of time. On your second point, my hunch is that if Roseanna had been minded to resign in high dudgeon, she would have done so before now.

  6. But surely the Bill has to become law before the start of the new football season otherwise, well, er, something terrible will happen?

    Never mind, it will soon be the marching season. Makes you proud to be Scotch.

  7. Anonymous,

    I've never subscribed to that particular argument - but the shift in direction undoubtedly stings those who were wedded to the language of emergency. No question, there.