0:00:03 > 0:00:08egos bruelzed. -- bruised.
0:00:08 > 0:00:10Tonight on Newsnight Scotland: Six more months to consider anti-
0:00:10 > 0:00:13sectarian legislation. The Government may have extended the
0:00:13 > 0:00:20parliamentary timetable, but will that be enough to overcome the
0:00:20 > 0:00:26reservations of the Catholic Church, Rangers and Celtic? And are Alex
0:00:26 > 0:00:29Salmond's ups-and-downs since the election opera or soap opera?
0:00:29 > 0:00:31Good evening. Alex Salmond used First Minister's Questions this
0:00:32 > 0:00:33afternoon to announce that the Government will no longer seek to
0:00:34 > 0:00:38rush anti-sectarianism legislation through the Parliament before the
0:00:38 > 0:00:41summer recess. MSPs will now have until the end of the year to
0:00:41 > 0:00:44consider the new laws. But with subjects as controversial as
0:00:44 > 0:00:54segregated schooling raised in this morning's Stage 1 debate, will six
0:00:54 > 0:01:02
0:01:02 > 0:01:06months be enough? Derek Bateman reports.
0:01:06 > 0:01:09Children in Glasgow get an early introduction to the sectarian
0:01:09 > 0:01:14divide, although these youngsters performing a musical interpretation
0:01:14 > 0:01:18are learning how to understand the issues without becoming sectarian
0:01:18 > 0:01:22themselves. It's a commonly held view throughout Scotland that
0:01:22 > 0:01:26denominational schooling in which largely Catholic pupils are
0:01:26 > 0:01:34educated separately reinforces division and leads to conflict.
0:01:34 > 0:01:36Here is the tore MSP speaking in today's debate. My school was a co-
0:01:36 > 0:01:43educational comprehensive non- denominational school. There were
0:01:43 > 0:01:52some pupils who originated from other parts of the world. The
0:01:52 > 0:01:59school was predominantly white and Protestant. I have quite a lot to
0:01:59 > 0:02:06say. Every morning the buses would bus the pupils to the Catholic
0:02:06 > 0:02:10school around the corner. Many will be inclined to agree. But there is
0:02:10 > 0:02:13a noticeable absence of any up-to- date evidence to justify that
0:02:14 > 0:02:18assertion. Just as importantly, the Government and the main parties
0:02:18 > 0:02:24don't Inception rat schooling is at the root of the problem. But what
0:02:24 > 0:02:31is the problem? Some claim it is a deep rooted anti-Catholic sentiment,
0:02:31 > 0:02:36an idea promoted by the Catholic Church. By the overwhelming
0:02:36 > 0:02:41demonstration of sectarianism is football. It focuses precisely on
0:02:41 > 0:02:45two clubs and results from an acrimonious season and a new
0:02:45 > 0:02:50heightened level of associated criminality. Is that the basis on
0:02:50 > 0:02:54which to legislate? We already have laws covering every eventuality
0:02:54 > 0:02:59except internet hate. The argument is that they haven't been fully
0:02:59 > 0:03:03enforced because of a lack of political will, perhaps, or limited
0:03:03 > 0:03:09police resources. But the immediate difficulty the Government finds
0:03:09 > 0:03:18itself in is one of definition. What is sectarianism and what
0:03:18 > 0:03:28isn't? If fans can't sing God Save The
0:03:28 > 0:03:28
0:03:28 > 0:03:33Queen the law will be an ass. Eagle-eyed lawyer also be looking
0:03:33 > 0:03:42for loopholes. Abusing Rangers fans outside Ibrox could result in a
0:03:42 > 0:03:47five-year jail term, abusing marchers on an Orange walk wouldn't.
0:03:47 > 0:03:50With such big questions unanswered, the rush to push this measure
0:03:51 > 0:03:54through has become controversial in itself. We believe it is right we
0:03:54 > 0:04:00should give a clear signal to police, courts, football
0:04:00 > 0:04:04authorities and clubs and to the fans that offensive and sectarian
0:04:04 > 0:04:08behaviour around football matches is not acceptable. Are the
0:04:09 > 0:04:12Government suggesting that wider Scotland should be not be given the
0:04:12 > 0:04:18opportunity to interrogate this legislation at every opportunity?
0:04:18 > 0:04:21Now the SNP is attempting to use that majority to circumvent, and
0:04:21 > 0:04:27plain ignore the wisdom of this Parliament of outside experts and
0:04:27 > 0:04:31of the people of Scotland. After the debate, it came up at First
0:04:31 > 0:04:37Minister's Questions. Does he now regret not acting for four years
0:04:37 > 0:04:40and having to squeeze this into two weeks? I propose business managers
0:04:40 > 0:04:43and consultation with the convenor of the Justice Committee discuss a
0:04:43 > 0:04:47new timetable for the bill which will allow for further
0:04:47 > 0:04:52consideration and evidence to be taken on the bill in advance of
0:04:52 > 0:04:56formal consideration amendments at Stage 2. Stage 3 proceedings would
0:04:56 > 0:05:01follow in the usual manner for a public bill and the intention
0:05:01 > 0:05:08behind such a timetable for discussion with the bill being
0:05:08 > 0:05:13passed by the end of this year. What are you talking about, Danny?
0:05:13 > 0:05:17So the outcome is that the bill has been delayed. To be fair, the Old
0:05:17 > 0:05:23Firm are uneasy as is the Church of Scotland. Extra time has been
0:05:23 > 0:05:27called and the argument will now be refined. The cynics will doubt that
0:05:27 > 0:05:31sectarianism can ever be legally defined without human rights being
0:05:31 > 0:05:34compromised. Earlier I spoke to the Justice
0:05:34 > 0:05:44Minister Roseanna Cunningham. I asked her if she was prepared to
0:05:44 > 0:05:44
0:05:44 > 0:05:49consider fundamental changes to this bill. Well, we want it through
0:05:49 > 0:05:54and let's be honest, we could have put it through if we had wanted to
0:05:54 > 0:06:01do it this week. But we felt on balance there was such a consensus
0:06:01 > 0:06:04of the aims in respect of this legislation that to have spoilt the
0:06:04 > 0:06:08atmosphere because of the issue of the timetable would have been
0:06:08 > 0:06:12unfortunate so it is still our intention to get this piece of
0:06:12 > 0:06:16legislation on to the statute books but we are now allowing a longer
0:06:16 > 0:06:19time for people to think about it and yes, I expect there will be
0:06:19 > 0:06:23some amendments that may come forward and we will take them into
0:06:23 > 0:06:31consideration if they do. I must confess, I'm getting more confused
0:06:31 > 0:06:34by this bill adds each day goes by. Since your appearance at the
0:06:34 > 0:06:39Justice Committee, the Lord Advocate has said, "We don't
0:06:39 > 0:06:43believe that it covers things like making the sign of the cross or
0:06:43 > 0:06:46singing the National Anthem." The whole point as I understood it, was
0:06:46 > 0:06:53not to define what would be an offence, it would be entirely
0:06:53 > 0:06:56dependent on the context? It is about the context, it is about the
0:06:56 > 0:07:01circumstances, the context and the Lord Advocate didn't say anything
0:07:01 > 0:07:05different to what I had said... did, he said it is not intended to
0:07:05 > 0:07:10criminalise the making of religious gestures while singing National
0:07:10 > 0:07:14Anthems in the absence of any other aggravating behaviour? My first
0:07:14 > 0:07:20response was no. There is an issue about context and that's always the
0:07:20 > 0:07:24case. It is the case now... But... The truth of it is, it is the same
0:07:24 > 0:07:27situation that currently exists. is because the sign of the cross
0:07:27 > 0:07:31thing has become what everyone talks about. I know.
0:07:32 > 0:07:38understanding from reading the bill is actually that could in certain
0:07:38 > 0:07:43circumstances be considered to be offensive if it was done, if
0:07:43 > 0:07:49somebody runs up to a bunch of angry Rangers fans and makes a sign
0:07:49 > 0:07:52of the cross, a fracas ensues and you could be arrested? There are
0:07:52 > 0:07:57times and I think the Lord Advocate, to be fair, said really nothing
0:07:57 > 0:08:00very different at all to what I said. He used a wonderful example
0:08:00 > 0:08:06if only I had thought of it of the banana. I don't know whether you
0:08:06 > 0:08:13have read that bit. Do tell us about the banana? He made the point
0:08:13 > 0:08:17quite reasonably that if you eat a banana at home and throw the skin
0:08:17 > 0:08:21in the bin there is no issue with that. If you do that hat a football
0:08:21 > 0:08:26match, while making ape-like gestures and throwing the skin at
0:08:26 > 0:08:33the feet of a black player, you are in a very different set of
0:08:33 > 0:08:37circumstances. I understand that. The context is what is important.
0:08:37 > 0:08:42So therefore all other things being equal, making the sign of cross
0:08:42 > 0:08:47could be construed offensive, singing the National Anthem could
0:08:47 > 0:08:54be construed as offensive, making a joke or indulging in sectarian
0:08:54 > 0:08:57satire, all of them, all of which would be innocuous in certain
0:08:57 > 0:09:03circumstances, would be offensive? The newspapers had their bit of fun
0:09:03 > 0:09:09with this. We cannot be in a position of putting hypotheticals
0:09:09 > 0:09:13up all the time. The Lord Advocate gave some very good examples of how
0:09:13 > 0:09:17context and circumstances change things. That is the situation now
0:09:17 > 0:09:21as well in terms of context and circumstances. What we have tried
0:09:21 > 0:09:26to do, however, is to deal with some of the problems that were
0:09:26 > 0:09:32arising with breach of the peace that we wanted to make sure was
0:09:32 > 0:09:36going to make it better and easily prosecutable. What would your reply
0:09:36 > 0:09:40be to the head of the Catholic Church that certain things should
0:09:40 > 0:09:46never be deemed unacceptable - his example was making the sign of the
0:09:46 > 0:09:50cross. He also mentioned singing the National Anthem and Flower of
0:09:50 > 0:09:56Scotland. His argument is there are certain things that should never in
0:09:56 > 0:10:01any context be prosecutable offences? Well, we have declined to
0:10:01 > 0:10:07provide lists either of prescribed songs, or of anything that is
0:10:07 > 0:10:15excluded because every single crime is about the facts and
0:10:15 > 0:10:20circumstances. How am I to interpret the Lord Advocate then?
0:10:20 > 0:10:25Well, because that is the point. The aggravating behaviour... Is the
0:10:25 > 0:10:29context? Is the potential context. Making the sign of the cross no
0:10:29 > 0:10:32matter what the context is? Lord Advocate gave some very good
0:10:32 > 0:10:37examples, extreme but very good examples of precisely where that
0:10:37 > 0:10:40might happen. That is all that the law is always about, the law is
0:10:40 > 0:10:44always about context and appropriate behaviour. All right.
0:10:44 > 0:10:49There are circumstances where quite serious actions can in different
0:10:49 > 0:10:54contexts be treated differently. What did you make of the comments
0:10:54 > 0:10:57about Catholic schools? Skon's comments were rather -- John's
0:10:57 > 0:11:01comments were rather unfortunate today. In the context of the debate,
0:11:01 > 0:11:06they didn't make much sense. They didn't fit. Fair enough. I suspect
0:11:06 > 0:11:10he is regretting it now. If John got on a train to a football match,
0:11:10 > 0:11:14and engaged in a debate with some football fans and argued his
0:11:14 > 0:11:17position and they found it offensive and a fracas ensued, and
0:11:17 > 0:11:22they started it, he could be arrested as well as the people who
0:11:22 > 0:11:26started the fracas? Under any law, all of those facts and
0:11:26 > 0:11:31circumstances would be considered by the police, by the prosecution
0:11:31 > 0:11:37and may or may not amount to criminal activity. It is only...
0:11:37 > 0:11:42better watch his step? It is only about context. I thu you know that
0:11:42 > 0:11:44very well. -- I think you know that very well. We will have to leave it
0:11:44 > 0:11:47there. I'm joined now by the QC, Paul
0:11:47 > 0:11:49McBride, and by the former President of the Law Society in
0:11:49 > 0:11:52Scotland, Ian Smart. Are you convinced by the approach that this
0:11:52 > 0:11:55bill is taking? I have yet to see a practical example of anything in
0:11:55 > 0:11:59this bill that's going to be made illegal that is not illegal already.
0:11:59 > 0:12:02For all that the best efforts of both the Minister and the Lord
0:12:02 > 0:12:05Advocate, nobody has yet come up with a practical example of
0:12:05 > 0:12:10something that has been criminalised here that is not
0:12:10 > 0:12:13already a crime. Give us an example? Any example will do. If it
0:12:13 > 0:12:17is a crime at the moment, and it is covered with a bill, there should
0:12:17 > 0:12:24be no objection. What the bill does though is make it clearer than the
0:12:24 > 0:12:28law currently is and also putting crimes into a certain category.
0:12:28 > 0:12:33Football crime and hate-related crime, punishable by a certain term
0:12:33 > 0:12:39of imprisonment. It can range from conduct involving a �40 fixed
0:12:39 > 0:12:42penalty to potentially five years imprisonment. So this bill defines
0:12:42 > 0:12:47the parameters of behaviour which is acceptable and which isn't. Just
0:12:47 > 0:12:51like we have... Again, Ian Smart's question was give me a practical
0:12:51 > 0:12:56example of something that you can be arrested and charged for under
0:12:56 > 0:13:02the new law that you can't be arrested and charged for now?
0:13:02 > 0:13:07for example, homophobic abuse from the terracing. We had a case a few
0:13:07 > 0:13:09years ago involving Paul Hartley, he played for Hearts, someone
0:13:09 > 0:13:13shouted homophobic remarks from the crowd, they were prosecuted for
0:13:13 > 0:13:18breach of the peace and the court held it wasn't a breach of the
0:13:18 > 0:13:25peace. There you are. I thought this was anti-sectarian legislation.
0:13:25 > 0:13:29It covers sectarianism... It is an anti-homophobic piece of
0:13:29 > 0:13:33legislation. It is offensive behaviour. Sectarianism, homophobic
0:13:33 > 0:13:38behaviour and other types of behaviour involving racism. That is
0:13:38 > 0:13:43quite clear to most people. These things are all against the law at
0:13:43 > 0:13:46the moment. I'm still looking for a practical example. We have a
0:13:46 > 0:13:51position whereby breach of the peace has been increasingly
0:13:51 > 0:13:54constrained by the Appeal Court and you now have to demonstrate that
0:13:55 > 0:14:00would cause severe disturbance in the community. Police officers have
0:14:00 > 0:14:03had difficulty in interpreting what they do when faced with certain
0:14:03 > 0:14:08situations. That is why the Association of Chief Police
0:14:08 > 0:14:11Officers were in contact with the Crown Office looking for guidance.
0:14:11 > 0:14:15It's been a long-standing approach by the Crown to tighten up the laws
0:14:15 > 0:14:22relating to breach of the peace. That is what this legislation does.
0:14:22 > 0:14:27The most recent case that the Appeal Court dealt with was Harris
0:14:27 > 0:14:32against Her Majesty's Advocate. Still your argument is there is no
0:14:32 > 0:14:38need for it? I'm still looking for a practical example. If he wants to
0:14:38 > 0:14:47give me a set of facts, then we can discuss the rights and wrongs of
0:14:47 > 0:14:51that being criminal sized. I just did. Your Paul Hartley example,
0:14:51 > 0:14:59whoever was responsible wasn't done for it, or was it that as a matter
0:14:59 > 0:15:03of law it was that the offender couldn't have been done for it?
0:15:03 > 0:15:08Sheriff decided no offence had been committed and what the Crown Office
0:15:08 > 0:15:11did was monitor cases following that and they found a number of
0:15:11 > 0:15:14examples all over the country where Sheriffs were acquitting because
0:15:14 > 0:15:19the test for breach of the peace was too high and that is one of the
0:15:19 > 0:15:24reasons they embarked on this particular exercise. All right. We
0:15:24 > 0:15:28are getting a bit bogged down. Can you see any harm in this
0:15:28 > 0:15:34legislation? I think the harm is more what it accidentally does. It
0:15:34 > 0:15:37is not the intention to criminalise going to a football match. A lot of
0:15:37 > 0:15:41football teams other than Rangers in Scotland and the fans like to
0:15:41 > 0:15:46sing offensive things about each other backwards and forwards. It is
0:15:46 > 0:15:50part of the experience. There is a real danger that we are
0:15:50 > 0:15:54criminalising just... To give you one that struck me, you can't have
0:15:54 > 0:16:01abuse on the grounds of intersexuality. I'm not quite sure
0:16:01 > 0:16:06what that means. Does it mean if a player is falling down too easily
0:16:06 > 0:16:10and the opposition fans shout, "You are a big girl's blouse" they are
0:16:10 > 0:16:15committing a criminal offence? was designed in the... What does it
0:16:15 > 0:16:24mean? It is to deal with attacking people's sexual orientation in a
0:16:24 > 0:16:27vile way from the terraces. Not calling somebody big... Can I.
0:16:27 > 0:16:32might fall into the category of breach of the peace at the moment,
0:16:32 > 0:16:35it might not. The purpose is to tighten all of that up. It is not a
0:16:35 > 0:16:41Draconian piece of legislation. It is setting the law straight for
0:16:41 > 0:16:44everyone to understand. I will give you an example. It is not unknown
0:16:44 > 0:16:49for Aberdeen fans to be serenaded that they might like to enjoy
0:16:49 > 0:16:54sexual relations with sheep, is that to become a crime? From the
0:16:54 > 0:17:00face of the Act, I don't know whether it is a crime unless the
0:17:00 > 0:17:04supporters being addressed do have such relations. LAUGHTER This is
0:17:04 > 0:17:09the difficulty of getting into silly examples. We could have this
0:17:09 > 0:17:14discussion in relation to the laws of breach of the peace... Let's say
0:17:14 > 0:17:19the Aberdeen supporters don't take kindly to this and a fight starts,
0:17:19 > 0:17:22I would have thought the people who are shouting these things could be
0:17:22 > 0:17:27arrested? It is a possibility just as it is a possibility at the
0:17:27 > 0:17:31moment. This Act is designed to affect offensive behaviour, that is
0:17:31 > 0:17:34what it is meant to do. We saw plenty of examples of that last
0:17:34 > 0:17:39season. The people of Scotland have commonsense. They know what is a
0:17:39 > 0:17:43joke, they know what is light- hearted, so do the police and so do
0:17:43 > 0:17:48the prosecutors and so do the courts. It will all run smoothly. I
0:17:48 > 0:17:53guarantee in six mofpbts' time, this legislation will -- months'
0:17:53 > 0:17:57time, this legislation will be passed. Which is what policemen
0:17:57 > 0:18:02always say when they want to introduce new laws. You can bet
0:18:02 > 0:18:06your house there is going to be a boundary case here. Yes. You can
0:18:06 > 0:18:11bet your house someone is going to say if they are found guilty, "I'm
0:18:11 > 0:18:21off to the British Supreme Court because my human rights have been
0:18:21 > 0:18:29
0:18:29 > 0:18:34infringed." Are there civil liberty issues here? I think there are. I
0:18:34 > 0:18:40suspect it will form part of the Government's consideration today.
0:18:40 > 0:18:45Yes. I still come back to civil liberties. Paul McBride's argument
0:18:45 > 0:18:49is we have nothing to fear even though for example you are supposed
0:18:49 > 0:18:54to be, it is supposed to do with football but to cover fans who are
0:18:54 > 0:18:58going to a match without tickets, you don't have to have any
0:18:58 > 0:19:02intention to attend a match to be caught up by this legislation.
0:19:02 > 0:19:09Someone who has no connection with any match ends up being done?
0:19:09 > 0:19:19Absolutely. If somebody gets on a train at 2.15 from Glasgow to
0:19:19 > 0:19:27Paisley account James, how do you prove they are intending the St
0:19:27 > 0:19:32Mirren game? That is a matter for the courts. This is... I said that
0:19:32 > 0:19:36is what police... They are guided by the joint Action Group which has
0:19:36 > 0:19:41Rangers and Celtic on it. They wanted this legislation. They did
0:19:41 > 0:19:44not want it today. They still support it. Right. OK. We will have
0:19:44 > 0:19:47to leave it there. Alex Salmond's bullish attitude
0:19:47 > 0:19:50towards the UK Supreme Court and the subsequent row shows just how
0:19:50 > 0:19:53far he is prepared to go when he feels it necessary. Indeed, some
0:19:53 > 0:19:56observers felt things were getting a bit out of hand and urged the
0:19:56 > 0:19:59First Minister to calm down. So is today's decision to use the
0:19:59 > 0:20:02legislative brake on the anti- sectarian behaviour bill rather
0:20:02 > 0:20:12than keep a foot on the throttle a sign Mr Salmond is listening? David
0:20:12 > 0:20:23
0:20:23 > 0:20:30Allison indulges in some amateur Act one, Alex Salmond's return as
0:20:30 > 0:20:40First Minister in a landslide arriving... He promises to continue
0:20:40 > 0:20:41
0:20:41 > 0:20:49governing as if still a minority. Although the SNP have a majority of
0:20:49 > 0:20:54the seats, we don't have a monopoly of wisdom. Enter Nat Fraser,
0:20:54 > 0:20:58convicted of murdering his wife. He takes his case to the UK Supreme
0:20:58 > 0:21:02Court and they rule in his favour. The court holds that the trial
0:21:02 > 0:21:08would have been significantly different if the undisclosed
0:21:08 > 0:21:12evidence had been available. This annoys our hero who sets out to
0:21:12 > 0:21:17challenge the Supreme Court. not criticise the situation which
0:21:17 > 0:21:20boils down to the potential replacement of Scottish law with
0:21:20 > 0:21:25Lord Hope's law? That is not a satisfactory situation. The issues
0:21:25 > 0:21:32that arise from it in the interests of people in Scotland are both far-
0:21:32 > 0:21:36reaching and require to be corrected. In Act two his loyal
0:21:36 > 0:21:40Justice Secretary enters the battle threatening the Supreme Court's
0:21:40 > 0:21:45funding criticising ambulance- chasing lawyers and saying who pays
0:21:45 > 0:21:49the piper calls the tune. That annoys the Advocate General for
0:21:49 > 0:21:52Scotland. One of the most fundamental principles of any
0:21:52 > 0:21:56system, a free and democratic society is the rule of law and what
0:21:56 > 0:22:00underpins that is the independence of the judiciary. I'm not sure what
0:22:00 > 0:22:07is meant when a Government says they are paying the piper and
0:22:07 > 0:22:13should be calling the tune. chorus asks if the First Minister
0:22:13 > 0:22:17has gone too far this time. REPORTER: Will you apologise today?
0:22:17 > 0:22:23He faces an onslaught at First Minister's Questions. His opponents
0:22:23 > 0:22:27urge him to back down and apologise. Grow up, own up and apologise...
0:22:27 > 0:22:36Will he now apologise for bringing the office of First Minister into
0:22:36 > 0:22:41disrepute? First Minister? No, the First Minister's refusal to
0:22:41 > 0:22:50withdraw is embarrassing for him, for this Parliament and for
0:22:50 > 0:22:53Scotland. Act Three sees a new challenge, stamping out
0:22:53 > 0:22:57sectarianism in Scottish football. The police and the clubs, the
0:22:57 > 0:23:00churches and the politicians all have to be brought on side. It is
0:23:00 > 0:23:04not going to be easy. It might take more than a season to do this. That
0:23:04 > 0:23:08is the way it is going to be. We will drive these things from our
0:23:08 > 0:23:14beautiful game of football. The rest of us, I'm talking about the
0:23:14 > 0:23:21vast majority of decent football fans, we are fed up with this. It
0:23:21 > 0:23:25is going to be eliminated. That is the way it is going to be. Will it
0:23:25 > 0:23:29prove a challenge too far? Can our hero take this on alone? In the
0:23:29 > 0:23:33finale n the face of significant opposition, he decides to return to
0:23:33 > 0:23:38his original promise of seeking consensus, delaying his legislation
0:23:38 > 0:23:44to seek out the wisdom of his opponents. This Government wishes
0:23:44 > 0:23:54to achieve the consensus within Parliament and throughout Scottish
0:23:54 > 0:24:00
0:24:00 > 0:24:08society. APPLAUSE A quick look at tomorrow's papers. A story in The
0:24:08 > 0:24:14Herald. Depression warning on Scotland's economy.
0:24:14 > 0:24:21A picture of JK Rowling. You will be able to buy Harry Potter as an
0:24:21 > 0:24:28e-book. The Times, union power hit by fall in income in members, it
0:24:28 > 0:24:31says. On the side, Milly Dowler family weeps as bouncer is found