Salmond v Cunningham – Match Postponed – Pools Panel Decide Home Win

 

Yesterday (Thursday) was unexpectedly one of the most dramatic of days at Holyrood since the Parliament came in to being.

The Stage 1 Debate on the Offensive Behaviour at Football and Threatening Communications (Scotland) Billhttp://www.scottish.parliament.uk/s4/bills/01-offbehfoot/index.htm was to take place, followed by First Minister’s Question Time. Many observers expected that (a) the Minister, Roseanna Cunningham, would attempt to mount a strenuous defence of her Bill, following her criticised performance at the Justice Committee earlier in the week http://bit.ly/knSjxc (b) there would be vigorous debate in the Chamber, some partisan and some not and (c) Mr Salmond would then have the other party leaders lining up to give him a kicking re the Bill and its numerous faults, or, to be neutral, areas of concern.

Parts a and b proceeded much as expected. Ms Cunningham’s defence of the Bill (when strictly I suppose she was there to promote it) seemed less than convincing, although avoiding the clear errors which seemed to be made at the Justice Committee. It was made clear that the Bill was going to go through, because it was essential that the new law be in force for the start of the football season, and that this was what the police and football authorities wanted. The Executive agreed and, whilst sharing the concerns re the accelerated Bill procedure, there was really no alternative to proceeding now. Indeed an offer by the Labour Party for members to sit over the summer break to deal with this matter was rejected. The Bill, like the Pony Express, had to get through on time.

When the matter was opened up for debate, one of the flaws of the Holyrood system was apparent. Bearing in mind that one of the many criticisms of the Bill was the haste with which it was being rushed through, and the consequent lack of Parliamentary analysis, it seemed ironic that the members who spoke were limited in time, at first to five minutes and then, by the end, to four. It is accepted clearly that Parliament has to manage limited time resources, but where time itself is the issue, this seemed inappropriate. However, matters seemed rather more organised than my re-collections of “guillotine” debates in the Commons, but that is for another day. (Thank goodness it’s not for now – Ed.)

Particularly impressive were Christine Grahame, the SNP MSP who is Convener of the Justice Committee, Graeme Pearson and Patrick Harvie.

The Convener, though not strictly supposed to speak in that capacity, donned her non-partisan hat and rattled through a number of her concerns regarding matters. Bearing in mind that she was, in effect, raising serious questions regarding her own party’s legislation, it was heartening to see a politician whose concern was that Parliament dealt properly with a vital issue, rather than simply following the mantra of “My party, right or wrong.”

Mr Pearson, former Head of the Scottish Drug Enforcement Agency, has seemed to my eyes anyway, ever more impressive with each contribution to the Parliament. Whilst only an MSP since the May election, he has taken his extensive experience of real life, and especially of policing, and applied it to the issues before him. His very frank comment in Committee that you would never see the police turning down more powers, but that that in itself was not a reason for granting them, was refreshing. Having seen Mr Pearson speak impressively in his previous role, it is good for Parliament that people of such expertise are available to provide their informed analysis on issues.

Mr Harvie made the very telling comment that the Parliament did not, and ought not to, run in line with the football season.

On the other hand John Lamont, the Conservative Justice Spokesman, who earlier in the week had asked two questions in Committee (re the National Anthem http://bit.ly/lmoMAG and how many prosecutions were expected http://bit.ly/jC74Dk ) which I had earlier posed on my blog (although I claim no credit for him asking the questions), went off on what lawyers would call “a frolic of his own” seeming to blame the existence of Catholic schools for sectarianism. This, not surprisingly, made headlines but was a distraction from the issues before Parliament yesterday. In any event, squeezing in an attack on such education as the third part of a speech only five minutes long is hardly the way the issue ought to be addressed in any event. I wonder if what he was saying was Conservative policy. I am sure someone will find out!

Interestingly, one SNP member asked the Labour spokesman whether, if the Bill was delayed, this would be treated by the Labour Party in a non partisan way, on the basis that this would be respecting the wishes of Parliament, rather than being subject of criticism as a “u-turn”. The response was, on the basis that there was no expectation of any delay, that of course there would be no political capital sought should there be such a pause for consideration. (I paraphrase on the basis that, as I type, the Official Report of yesterday’s proceedings is not yet online.) This seemed a throw away line, and may indeed have been so. It was to become relevant only minutes later.

The Minister summed up, just before First Minister’s Questions, by moving the Bill, and ruling out the calls for delays. Matters would progress, and the Bill would become law next week. Ms Cunningham sat down; I am sure greatly relieved that the debate was over.

A few minutes after that Mr Salmond stood up. There was no expectation of what he was going to say. In response to his first supplementary question from Mr Gray on the anti-sectarian Bill, Mr Salmond produced his rabbit. He had listened to the debate – serious issues had been raised – it was a mater of getting things right. He hoped the Parliament would approve Stage 1 of the Bill that afternoon, and then the following Stages would take place, however on the normal timetable, with an expectation that the Bill would be passed by the end of the year. Mr Salmond spoke quietly and in a reserved, and one might say, statesman-like manner. The TV feed I was watching happened to show Christine Grahame sitting behind Mr Salmond. As he spoke she at first looked annoyed, it appeared, as he asked Parliament to support the Bill, and then stunned as she realised that, in fact, the demands for more time had been heard. She could be seen turning to the person on her right (who was not visible in the feed at that point) clearly looking to see if that person’s understanding was the same.

Once Mr Salmond finished, and it was clear that the Bill was to be delayed, he sat down to applause from his own members. However, the person to whom Christine Grahame had been speaking turned out to have been the Minister, Roseanna Cunningham, herself. She did not appear from the footage to be joining in the clapping! http://bbc.in/jhmkyk

Two issues arise (well many more, but let’s keep them at two for now).

First of all, Mr Salmond totally wrong-footed the other party leaders. Their prepared questioning withered on the vine. Mr Gray seemed, at first, not really to have noticed and his follow up questions still seemed premised on the Bill being rushed through next week.  Standing the comments from his party earlier in the debate, it was going to be very hard for him now to criticise the Executive for dong what he had been asking them to do!

Mr Rennie’s first supplementary question was simply a thank you to Mr Salmond, literally, and the wind had gone from his sails too.

Even Mrs Goldie could not divert herself too far from her planned attack.

Mr Salmond, who had stood up expecting to be caught in a barrage of criticism, with one bound, was free.

Politically it was the right thing to do, and hopefully time for reflection will lead to a far batter Bill than that presently before Parliament.

Secondly though, where does this leave Ms Cunningham?

This issue is discussed at length in an excellent post at http://lallandspeatworrier.blogspot.com/2011/06/laws-delays-insolence-of-office.html.

My tuppence worth is that Ms Cunningham has been left in a hole here – her credibility re the issue in tatters. Either she had to stand up to move the Bill, knowing that Mr Salmond was going to change tack 20 minutes later, in which case I can see why she would not be happy – the credit for the change going to the First Minister, not her (though, as a lawyer, fighting a case you know is lost is not uncommon) or she remained of the mind that the Bill was to go through as planned, and had the feet pulled from under her by the First Minister.

Either way, I suspect that Mr Salmond and Ms Cunningham will have, or will already have had, discussions about how her status might be restored. After all, she is the Minister specifically tasked with dealing with sectarianism. She will still be at the forefront of this Bill, and whilst I think Mr Salmond’s change of tack will see him fairly clear of criticism, I can well imagine that opposition MSP’s will find as many reasons as they can to remind Ms Cunningham of lunchtime on 23^rd June 2011.

Bottom line though – it is a good thing that the Bill has been delayed. Better to get it right, than to cause even more problems by getting it wrong in haste.

Finally, as was commented by the blogger @loveandgarbage Mr Salmond, having succeeded in uniting Celtic and Rangers, and then the Law Society and the Faculty of Advocates, must now be headed for the Middle East to work his magic there!

 

 

The Justice Committee Further Considers the “Anti-Sectarian” Bill

Today we had a further session of the Justice Committee considering the  Offensive Behaviour at Football and Threatening Communications Bill.

This can be seen at http://bbc.in/lerUuo.

Today’s session was rather less messy for the Executive than yesterday – perhaps because Roseanna Cunningham was nowhere to be seen.

Principally we heard from Frank Mulholland, the Lord Advocate, wearing his hat as head of the prosecution service

Perhaps, as a life long prosecutor, it was not surprising to see him, despite the bafflement at the Bill shown by some Committee members, commend it for its clarity and the fact that it would make matters easier for prosecutors.

Mr Mulholland made reference to various cases where he clearly felt defences had been run by solicitors to allow their clients to escape justice in connection with breach of the peace charges. He made reference to cases where, what seemed to be clear cases of breach of the peace did not result in convictions. He did not consider it appropriate to mention details of these cases, even where the decisions of the court had been reported – in one instance he quoted at length from the Sheriff’s judgement. Quite why he did not consider it appropriate to mention reported cases was not clear.

If the Sheriffs in question had made what Mr Mulholland appeared to be suggesting as such egregious mistakes, then one wonders if any of the cases were subject to Crown appeals, if appropriate.

These cases were prayed in aid of the need for this new legislation, designed to “clarify” matters.

Mr Mulholland also pointed out that the crime of breach of the peace was narrowing as a result of European Convention on Human Rights issues. He criticised it for its lack of specification. It was not appropriate, under the ECHR, for citizens not to know the definition of a crime, and if what they did was criminal or not.

He indicated that this Bill was short and made things clear.

When various hypothetical situations were out to him, he was reluctant to address these on the grounds they were hypothetical, but, when it suited him to do so, he was happy to refer to hypotheticals.

One particular sign of the lack of clarity was the confusion of the Convener of the Committee, Christine Grahame. She was herself an experienced lawyer prior ro becoming an MSP. She was tied in knots by the definitions relating to attending regulated football matches, and whether this included “attending” such a game on television in a pub or club.

She asked the interesting logical question about how a person could be said to be travelling to a match to which they had no intention to go! She also asked if a supporters’ club, where there were entirely fans of one team only, could be the locus for an offence if offensive songs were sung in relation to the absent team’s fans. The Lord Advocate, despite the “clarity” of the Bill decided he needed to reflect on the question, and would write to the Convener with an answer.

All in all, whilst he did a far better job defending the Bill than the Justice Minister, it remains clear that the Committee, and not split on partisan grounds, is gravely concerned by the Bill and its haste.

He also promised the Committee to issue to them his draft guidance to Chief Constables on the Bill and its day-to-day operation.

Whilst Mr Mulholland made it clear that there is always guidance issued by the Crown Office when new offences are created, it is interesting that, whilst Parliament decides what the Act will say, there is no control over the Lord Advocate’s interpretation of the Bill as will be shown in his draft guidance.

Equally, the courts will enforce the Act, as they interpret it, not the Lord Advocate’s guidance.

The remaining witnesses today all added, to some degree or other, to the fun.

The “football witnesses” being representative from the Scottish Premier League, Scottish Football League, Celtic and Rangers showed a clear divide. The “Old Firm” representatives both criticised the speed of the legislation which had prevented any meaningful discussion with their own supporters. There was a great deal of pragmatism, especially from Mr Martin from Rangers who pointed out that the “Game of Shame” had been the 1980 Cup Final where Old Firm fans fought with bottles on the pitch at Hampden, as mounted police tried to restore order. As he rightly said there has been an almost infinite improvement since then. It was also noted that the response of the Government of the day had not been to rush through legislation in two weeks.

Mr Martin even made reference to the fact that marches in Glasgow, Lanarkshire and Ayrshire over the summer are likely to have as much, if not more, sectarian abuse shouted at them, but this Bill, as far as “offensive behaviour” goes, only deals with football matches. If sectarianism, rather than purely football-related sectarianism, is the problem, why does the Bill not address these issues?

The football authorities expressed themselves disappointed about how the clubs had reacted, and were entirely in agreement with the Executive re the need for the new laws now. I imagine there would have been some interesting discussions between them should they have shared a train carriage back to Glasgow together!

There is clearly much more ink to be spilt considering this matter even in the short time left in its Parliamentarylife – what further joys await?

Roseanna Cunningham Apparently Fails to Read her own Brief

Yesterday in the Justice Committee hearing on the Offensive Behaviour at Football and Threatening Communications (Scotland) Bil, reported at http://bit.ly/jmLzOK the Justice Minister, Roseanna Cunningham, was asked the following question by John Lamont, MSP.

“Given the history of the laws and your frustration that they are not working to achieve your objective, how many people do you anticipate will face prosecution once the bill is enacted? Clearly, that is not in the Government’s control, but you must have a feeling for how many people will face prosecution under the new laws who escape prosecution under the current regime.”

The Minister then proceeded to answer. I expected that she would repeat the statistics which are contained in the Explanatory Notes accompanying the Bill, and which I wrote about recently .

I was then astonished by her reply. (Emphases added.)

“Roseanna Cunningham: I cannot possibly answer that, I am afraid, because it will depend entirely on circumstances that arise at matches and decisions that are made by match commanders and the police on the ground. If you were to ask me what the Government is hoping for, it is for there to be immediate and early arrests in situations where there is disorder, but we hope that, over the piece, the bill will act as a deterrent as much as anything else and that there will not be hundreds or indeed thousands of arrests week in, week out. We are hoping that the legislation will be used by the police in the early part of the season and that it will be needed less as time goes on.”

Mr Lamont then further pressed by asking:-

“With the greatest respect, minister, that is the critical point. Surely the point about deterrence is that it works when people fear the prospect of being arrested and prosecuted under new legislation. Currently, such deterrence is not there. If you are not able to tell me how many more people are going to be prosecuted, surely that is a fundamental hole in your proposal. If you are not able to say that X number of people are going to face prosecution, what is the deterrence?”

The reply:-

“Roseanna Cunningham: I am sorry, but how can I possibly answer that? I cannot possibly say. For the first three months there might be absolutely no disorder at any single football match...With the very greatest respect, 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. It will still be a matter for the police on the ground to make those decisions, because they are operational issues. We hope that early use of the legislation will result in enough salutary lessons being learnt by football fans to ensure that its use is needed less in the future.”

Perhaps I misunderstand the reason for the Executive to issue additional information alongside its bills. Perhaps a Financial Memorandum referring to less than 700 cases being brought, including 500 fixed penalties, is nothing to do with what the Executive actually thinks.

Surely in that case the Minister could have made that clear. I would be very reluctant to suggest that any lawyer, particularly one as experienced as Ms Cunningham, forgot her brief (it can happen to anyone) but I can’t see any other reason for the discrepancy between the Justice Department’s own paperwork, and the Justice Minister’s words.

Hopefully she can clarify this wehn she appears again at the Committee next week.

 

 

How Might the Proposed Anti-Sectarian Law Work at an Old Firm Game?

The Offensive Behaviour at Football and Threatening Communications (Scotland) Bill seems on every examination to open up yet more questions.

In this post I want to look at the narrow issue of how it might work in practice.

This relates to Part 1 of the Bill which brings in the offence of football related offensive behaviour and refers to the meeting of the Justice Committee on 21st June 2011 when the Bill was discussed. The Report of those proceedings can be found at http://bit.ly/jmLzOK.

Assistant Chief Constable Corrigan, speaking for ACPO, indicated that he did not foresee the police routinely wading in to large crowds of chanting football fans to make arrests, on the basis that this itself could occasion further disorder. That was an entirely appropriate response from a witness to the Committee who seemed to do a far better job defending the Bill than the Minister there to promote it!

However, we need to look at the practicalities.

Already when there are high profile incidents at matches, such as Neil Lennon cupping his ears to the Rangers fans howling abuse at him, we see reports of spectators having had a fit of the vapours contacting the police in their droves to make complaints. The police, quite sensibly, generally take no action, except of course in respect of Artur Boruc blessing himself.

The proposed new law however opens up a huge new can of worms.

Dr David McArdle, from Stirling University Law School, pointed out that even under existing rules, most reports to police come, not from the police themselves, nor from stewards, but from fellow spectators.

We have a Bill here which makes great play of the need to stamp out sectarianism in Scotland, and where the offence is that of “offensive behavior”. Great publicity is being given to the evils the Bill is to resolve and the penalties for breach.

One can easily envisage the next Old Firm match – the away fans penned in their corner of the stadium with the thin flourescent line of police and stewards keeping the opposing fans at a distance, and vice versa.

Some of the delicate flowers who go to these matches take offence at a song, chant, t-shirt, banner or even tattoo on the other side of the divide. They are concerned that this could occasion public disorder. They therefore seek to report the matter to a steward or a police officer. I suspect the stewarding companies would direct the complaining fan to the nearest police officer immediately.

How many complaints do the police anticipate receiving during matches? The officers attending will need to bring extra large notebooks with them.

And could one of the officers politely tell a complainer not to bring the complaint, or that it will not be acted upon by the police?

Cue headlines the next day criticising the police for failing to apply the vital new law (the most important legislation in Scotland in the last 30 years, according to Paul McBride QC.)

Alternatively the police might direct that complaints be made after the game. If so, Strathclyde Police will have to employ extra operators, or install segregated front desks at London Road and other Glasgow police offices.

And would an officer take the chance of dismissing a complaint on the spot, on the off chance that that one might be genuine?

As with any new legislation, it would be hoped that such circumstances would quickly calm down, but the Old Firm fans are not known for their tolerance generally towards each other (even though, as a matter of fact, the vast majority are at games only for the football and not these extraneous matters).

The first Old Firm game under the new law, if passed, might well end up making a mockery of the whole thing.

How would that seem to the outside world, bearing in mind that one express purpose of this Bill is to show the rest of the world that Scotland cares about this problem?

Breaking news – Minister agrees could be crime to sing “Rule Britannia” or to make Sign of the Cross in Scotland!

Update – 21/6 @ 10.30 am.

In the Justice Committee the Minister, Roseanna Cunningham, was asked whether it could be a crime to sing the National Anthem in Scotland by John Lamont MSP.

She replied that the glib answer was no.

However, she then went on to say, specifically referencing “Rule Britannia” and hundreds of Celtic fans “aggressively” making the sign of the Cross, that these would be matters of fact and circumstances, and could well be!

When I asked the question, I did not frankly expect the Executive to agree!

Original post follows

Would the proposed anti-sectarian legislation for Scotland make singing “God Save the Queen” illegal?

The Offensive Behaviour at Football and Threatening Communications (Scotland) Bill as introduced today does not include a list of proscribed songs, the making of which was considered, but rejected, by the Scottish Government.

Imagine the scene. A packed Parkhead. Rangers two goals up on Celtic. The blue faction jubilant, the green silent. The Rangers fans, in their corner of the stadium, strike up the National Anthem.

Clause 1 (1) of the Bill states “A person commits an offence if, in relation to a regulated football match— (a) the person engages in behaviour of a kind described in subsection (2), and (b) the behaviour— (i) is likely to incite public disorder, or (ii) would be likely to incite public disorder.”

Dealing with clause 1 (1) (b) such singing clearly “is likely to incite public disorder” amongst the Celtic fans, who, whether right or wrong, are generally less than pleased whenever that song is heard at Parkhead.

Clause 2 states “The behaviour is— (a) expressing hatred of, or stirring up hatred against, a group of persons based on their membership (or presumed membership) of— (i) a religious group, (ii) a social or cultural group with a perceived religious affiliation, (iii) a group defined by reference to a thing mentioned in subsection (4), (b) expressing hatred of, or stirring up hatred against, an individual based on the individual’s membership (or presumed membership) of a group mentioned in any of sub-paragraphs (i) to (iii) of paragraph (a), (c) behaviour that is motivated (wholly or partly) by hatred of a group mentioned in any of those sub-paragraphs, (d) behaviour that is threatening, or (e) other behaviour that a reasonable person would be likely to consider offensive.”

It is at least arguable that such a song, in those circumstances falls foul of clause 2 (c). The song may be being sung by the Rangers support in praise of Her Majesty, or, may be “behavior motivated (wholly or partly) by hatred of a group mentioned” above i.e. “a social or cultural group with a perceived religious affiliation” namely Celtic fans, presumably perceived as Catholics.

Clause 5 states that “behaviour would be likely to incite public disorder if public disorder would be likely to occur but for the fact that— (a) measures are in place to prevent public disorder, or (b) persons likely to be incited to public disorder are not present or are not present in sufficient numbers.”

So the fact that large numbers of Strathclyde’s finest, together with the omni-present staff of G4 Security, are forming the ”thin, fluorescent line” separating the Celtic fans from the Rangers fans is irrelevant (clause 5 (a)).

So there we have it. In certain circumstances, it  might be illegal to sing the National Anthem.

And in the interests of balance such songs as the Irish National Anthem or the Fields of Athenry sung by Celtic fans at Ibrox could fall in to the same category.

Of course the answer will be that we can rely on the good sense of the police, and of the prosecuting authorities not to act where it is unnecessary.

However we have already seen former Celtic goalkeeper Artur Boruc cautioned by police for incitement by making the sign of the Cross in front of Rangers fans http://thetim.es/lka0wU. One politician at the time stated ““Crossing yourself cannot possibly be considered a breach of the peace. It is a religious sign and has international recognition. It is ludicrous. If they had taken this to court then it would have been laughed out.”

That was the now First Minister, Mr Salmond, speaking in 2006.

How should this issue be treated now? Can we rely on the fiscal service to “do the right thing” especially if the aim is the eradication in Scotland of the sectarian “parasite”? Applying the same reading of the Bill as above to Mr Boruc blessing himself, would a player repeating the action now face prosecution?

It is often the case that hasty law is bad law. Does this Bill “fit the bill” too?