JUSTICE COMMITTEE Tuesday 20 September 2011 Session 4 © Parliamentary copyright. Scottish Parliamentary Corporate Body Information on the Scottish Parliament’s copyright policy can be found on the website - www.scottish.parliament.uk or by contacting Public Information on 0131 348 5000 Tuesday 20 September 2011 CONTENTS Col. DECISION ON TAKING BUSINESS IN PRIVATE ................................................................................................... 277 OFFENSIVE BEHAVIOUR AT FOOTBALL AND THREATENING COMMUNICATIONS (SCOTLAND) BILL ...................... 278 SUBORDINATE LEGISLATION........................................................................................................................... 323 International Criminal Court (Libya) Order 2011 (SI 2011/1696) ............................................................. 323 Damages (Scotland) Act 2011 (Commencement, Transitional Provisions and Savings) Order 2011 (SSI 2011/268) ...................................................................................................................................... 323 Act of Sederunt (Rules of the Court of Session Amendment No 4) (Miscellaneous) 2011 (SSI 2011/288) ...................................................................................................................................... 323 Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) (No 2) 2011 (SSI 2011/289) ......... 323 Act of Adjournal (Criminal Procedure Rules Amendment No 5) (Miscellaneous) 2011 (SSI 2011/290) ...................................................................................................................................... 323 Act of Sederunt (Rules of the Court of Session Amendment No 5) (Causes in the Inner House) 2011 (SSI 2011/303) ............................................................................................................................. 323 Act of Sederunt (Regulation of Advocates) 2011 (SSI 2011/312) ............................................................ 323 JUSTICE COMMITTEE 7th Meeting 2011, Session 4 CONVENER *Christine Grahame (Midlothian South, Tweeddale and Lauderdale) (SNP) DEPUTY CONVENER *James Kelly (Rutherglen) (Lab) COMMITTEE MEMBERS *Roderick Campbell (North East Fife) (SNP) *John Finnie (Highlands and Islands) (SNP) *Colin Keir (Edinburgh Western) (SNP) *John Lamont (Ettrick, Roxburgh and Berwickshire) (Con) *Alison McInnes (North East Scotland) (LD) *Graeme Pearson (South Scotland) (Lab) *Humza Yousaf (Glasgow) (SNP) *attended THE FOLLOWING ALSO PARTICIPATED: Professor Bill Buchanan (Edinburgh Napier University) Roseanna Cunningham (Minister for Community Safety and Legal Affairs) Richard Foggo (Scottish Government) Shelagh McCall (Scottish Human Rights Commission) Frank Mulholland (Lord Advocate) CLERK TO THE COMMITTEE Peter McGrath LOCATION Committee Room 2 277 20 SEPTEMBER 2011 278 Scottish Parliament Offensive Behaviour at Football and Threatening Justice Committee Communications (Scotland) Bill Tuesday 20 September 2011 10:04 [The Convener opened the meeting at 10:03] The Convener: Item 2 is the Offensive Decision on Taking Business in Behaviour at Football and Threatening Communications (Scotland) Bill. Before we begin Private our final evidence session, I want to clarify some issues that appeared in news reports at the The Convener (Christine Grahame): Good weekend. morning. I welcome everyone to the seventh meeting of the Justice Committee in session 4. I I received a letter from Nil by Mouth that asked ask everyone to switch off their mobile phones and why we did not require it to give oral evidence on other electronic devices, as they interfere with the the bill, but the letter did not come in until Friday at broadcasting system, even when they are 6.30 pm, when, of course, no one was available to switched to silent. No apologies have been deal with it. It arrived quite late. Nil by Mouth did received. not indicate to the committee at any point prior to that that it wished to give oral evidence, and the Agenda item 1 is to decide on taking business in rest of the committee did not hear of its private. The committee is invited to agree to disappointment until they saw press reports. I am consider in private at future meetings the main sorry that Nil by Mouth was disappointed. That themes arising from the evidence received on the said, its written evidence was substantial, and the Offensive Behaviour at Football and Threatening whole committee took the view that it was Communications (Scotland) Bill; our draft report on sufficient. However, I wrote to Nil by Mouth that bill; and our approach to the Scottish yesterday, asking it to make clear whether it Government’s draft budget and the spending wished to provide any further written evidence, review. It has been the usual practice to take such which we would be pleased to consider before we an approach. Do members agree to consider report. I hope that it feels that it can do that. those items in private? On to business. We have two witnesses to hear Members indicated agreement. from separately before we question the Lord Advocate and the minister, so, as usual, I would appreciate brief, focused questions from members. I will not say that again, as I know that members will provide that. Our first witness today is Shelagh McCall, one of the commissioners at the Scottish Human Rights Commission. Thank you for your written submission. James Kelly (Rutherglen) (Lab): Good morning and thank you for attending the committee this morning. In your written submission, you express the view that the bill as drafted would be open to challenge under the European convention on human rights. Can you outline your reasons for stating that? Shelagh McCall (Scottish Human Rights Commission): Thank you for inviting the commission to give evidence to the committee. There are five main areas in which the bill could be improved. I appreciate that, in other evidence sessions, the committee has been grappling with the question of freedom of expression, and I am happy to talk in general terms about what is required of the Parliament in that respect. First, we recommend that the committee advise the Government to delete section 1(2)(e)—the paragraph about behaviour that a reasonable 279 20 SEPTEMBER 2011 280 person might find offensive. Offensive speech is through the microphone but is not being recorded. protected by article 10 of the European convention It may be that the Government intends to catch on human rights. The European Court of Human those sorts of things but exclude private Rights in Strasbourg and domestic courts have conversations. Further consideration could be repeatedly said that not only popular speech but given to that point because, in freedom of offensive, unpopular, shocking and disturbing expression terms, the fact that speech is recorded speech is protected. I appreciate that the word or unrecorded is not a critical factor. “offensive” is intended to mean something different The other matter relating to section 5 is whether in the bill, but it is an immediate flag for a there should be a specific exemption for artistic challenge under article 10. There are also issues expression, peaceful preaching and so on, as with the clarity of that provision and whether an there is in the equivalent English legislation. I am individual citizen could foresee that his action sorry that my answer was rather long, but I have would be criminal under that section. That raises set out the five areas in which we think there can issues not only under article 10 but under articles be improvement and explained why that is. 5 and 7. Article 5 relates to whether someone can be deprived of their liberty and article 7 is broadly The Convener: It is right that it is what is in the described as the principle of legal certainty, bill that counts but, notwithstanding that, have the meaning that the law needs to be clear in draft guidelines from the Lord Advocate changed advance. your view? Secondly, subsections (2) to (4) of section 2 Shelagh McCall: No, they have not. There are could be improved. I recognise that the committee two aspects when talking about interfering with has also been grappling with those subsections, freedom of expression. The first is that the which concern journeys to and from football lawmakers must get it right as best they can. matches or places where matches are being Secondly, those enforcing the law must get it right. shown and conduct that occurs at a location where One of the gaps is that the Lord Advocate does a match is being televised. We recommend that not publish his guidelines to prosecutors as a the committee consider clarifying those provisions matter of course—he said here that he will not to avoid unforeseen and unintended publish his guidelines to prosecutors. Although I consequences. For example, if someone is in a can understand the desire of lawmakers to leave public house or a private members club where a that to police and prosecutors, there is an match is being shown and they engage in conduct unknown quantity there, and the Parliament that stirs up hatred against one of the groups that should take the opportunity to get it as right as it are protected under the bill but it has nothing to do can at the beginning. with football nor is the person at whom that Roderick Campbell (North East Fife) (SNP): I conduct is directed anything to do with the football, that would be caught under the bill. It may be that want to return to the first point raised, concerning the matter could be left