23/06/2011 Newsnight Scotland

egos bruelzed. -- bruised.

Tonight on Newsnight Scotland: Six more months to consider anti-

sectarian legislation. The Government may have extended the

parliamentary timetable, but will that be enough to overcome the

reservations of the Catholic Church, Rangers and Celtic? And are Alex

Salmond's ups-and-downs since the election opera or soap opera?

Good evening. Alex Salmond used First Minister's Questions this

afternoon to announce that the Government will no longer seek to

rush anti-sectarianism legislation through the Parliament before the

summer recess. MSPs will now have until the end of the year to

consider the new laws. But with subjects as controversial as

segregated schooling raised in this morning's Stage 1 debate, will six

months be enough? Derek Bateman reports.

Children in Glasgow get an early introduction to the sectarian

divide, although these youngsters performing a musical interpretation

are learning how to understand the issues without becoming sectarian

themselves. It's a commonly held view throughout Scotland that

denominational schooling in which largely Catholic pupils are

educated separately reinforces division and leads to conflict.

Here is the tore MSP speaking in today's debate. My school was a co-

educational comprehensive non- denominational school. There were

some pupils who originated from other parts of the world. The

school was predominantly white and Protestant. I have quite a lot to

say. Every morning the buses would bus the pupils to the Catholic

school around the corner. Many will be inclined to agree. But there is

a noticeable absence of any up-to- date evidence to justify that

assertion. Just as importantly, the Government and the main parties

don't Inception rat schooling is at the root of the problem. But what

is the problem? Some claim it is a deep rooted anti-Catholic sentiment,

an idea promoted by the Catholic Church. By the overwhelming

demonstration of sectarianism is football. It focuses precisely on

two clubs and results from an acrimonious season and a new

heightened level of associated criminality. Is that the basis on

which to legislate? We already have laws covering every eventuality

except internet hate. The argument is that they haven't been fully

enforced because of a lack of political will, perhaps, or limited

police resources. But the immediate difficulty the Government finds

itself in is one of definition. What is sectarianism and what

isn't? If fans can't sing God Save The

Queen the law will be an ass. Eagle-eyed lawyer also be looking

for loopholes. Abusing Rangers fans outside Ibrox could result in a

five-year jail term, abusing marchers on an Orange walk wouldn't.

With such big questions unanswered, the rush to push this measure

through has become controversial in itself. We believe it is right we

should give a clear signal to police, courts, football

authorities and clubs and to the fans that offensive and sectarian

behaviour around football matches is not acceptable. Are the

Government suggesting that wider Scotland should be not be given the

opportunity to interrogate this legislation at every opportunity?

Now the SNP is attempting to use that majority to circumvent, and

plain ignore the wisdom of this Parliament of outside experts and

of the people of Scotland. After the debate, it came up at First

Minister's Questions. Does he now regret not acting for four years

and having to squeeze this into two weeks? I propose business managers

and consultation with the convenor of the Justice Committee discuss a

new timetable for the bill which will allow for further

consideration and evidence to be taken on the bill in advance of

formal consideration amendments at Stage 2. Stage 3 proceedings would

follow in the usual manner for a public bill and the intention

behind such a timetable for discussion with the bill being

passed by the end of this year. What are you talking about, Danny?

So the outcome is that the bill has been delayed. To be fair, the Old

Firm are uneasy as is the Church of Scotland. Extra time has been

called and the argument will now be refined. The cynics will doubt that

sectarianism can ever be legally defined without human rights being

compromised. Earlier I spoke to the Justice

Minister Roseanna Cunningham. I asked her if she was prepared to

consider fundamental changes to this bill. Well, we want it through

and let's be honest, we could have put it through if we had wanted to

do it this week. But we felt on balance there was such a consensus

of the aims in respect of this legislation that to have spoilt the

atmosphere because of the issue of the timetable would have been

unfortunate so it is still our intention to get this piece of

legislation on to the statute books but we are now allowing a longer

time for people to think about it and yes, I expect there will be

some amendments that may come forward and we will take them into

consideration if they do. I must confess, I'm getting more confused

by this bill adds each day goes by. Since your appearance at the

Justice Committee, the Lord Advocate has said, "We don't

believe that it covers things like making the sign of the cross or

singing the National Anthem." The whole point as I understood it, was

not to define what would be an offence, it would be entirely

dependent on the context? It is about the context, it is about the

circumstances, the context and the Lord Advocate didn't say anything

different to what I had said... did, he said it is not intended to

criminalise the making of religious gestures while singing National

Anthems in the absence of any other aggravating behaviour? My first

response was no. There is an issue about context and that's always the

case. It is the case now... But... The truth of it is, it is the same

situation that currently exists. is because the sign of the cross

thing has become what everyone talks about. I know.

understanding from reading the bill is actually that could in certain

circumstances be considered to be offensive if it was done, if

somebody runs up to a bunch of angry Rangers fans and makes a sign

of the cross, a fracas ensues and you could be arrested? There are

times and I think the Lord Advocate, to be fair, said really nothing

very different at all to what I said. He used a wonderful example

if only I had thought of it of the banana. I don't know whether you

have read that bit. Do tell us about the banana? He made the point

quite reasonably that if you eat a banana at home and throw the skin

in the bin there is no issue with that. If you do that hat a football

match, while making ape-like gestures and throwing the skin at

the feet of a black player, you are in a very different set of

circumstances. I understand that. The context is what is important.

So therefore all other things being equal, making the sign of cross

could be construed offensive, singing the National Anthem could

be construed as offensive, making a joke or indulging in sectarian

satire, all of them, all of which would be innocuous in certain

circumstances, would be offensive? The newspapers had their bit of fun

with this. We cannot be in a position of putting hypotheticals

up all the time. The Lord Advocate gave some very good examples of how

context and circumstances change things. That is the situation now

as well in terms of context and circumstances. What we have tried

to do, however, is to deal with some of the problems that were

arising with breach of the peace that we wanted to make sure was

going to make it better and easily prosecutable. What would your reply

be to the head of the Catholic Church that certain things should

never be deemed unacceptable - his example was making the sign of the

cross. He also mentioned singing the National Anthem and Flower of

Scotland. His argument is there are certain things that should never in

any context be prosecutable offences? Well, we have declined to

provide lists either of prescribed songs, or of anything that is

excluded because every single crime is about the facts and

circumstances. How am I to interpret the Lord Advocate then?

Well, because that is the point. The aggravating behaviour... Is the

context? Is the potential context. Making the sign of the cross no

matter what the context is? Lord Advocate gave some very good

examples, extreme but very good examples of precisely where that

might happen. That is all that the law is always about, the law is

always about context and appropriate behaviour. All right.

There are circumstances where quite serious actions can in different

contexts be treated differently. What did you make of the comments

about Catholic schools? Skon's comments were rather -- John's

comments were rather unfortunate today. In the context of the debate,

they didn't make much sense. They didn't fit. Fair enough. I suspect

he is regretting it now. If John got on a train to a football match,

and engaged in a debate with some football fans and argued his

position and they found it offensive and a fracas ensued, and

they started it, he could be arrested as well as the people who

started the fracas? Under any law, all of those facts and

circumstances would be considered by the police, by the prosecution

and may or may not amount to criminal activity. It is only...

better watch his step? It is only about context. I thu you know that

very well. -- I think you know that very well. We will have to leave it

there. I'm joined now by the QC, Paul

McBride, and by the former President of the Law Society in

Scotland, Ian Smart. Are you convinced by the approach that this

bill is taking? I have yet to see a practical example of anything in

this bill that's going to be made illegal that is not illegal already.

For all that the best efforts of both the Minister and the Lord

Advocate, nobody has yet come up with a practical example of

something that has been criminalised here that is not

already a crime. Give us an example? Any example will do. If it

is a crime at the moment, and it is covered with a bill, there should

be no objection. What the bill does though is make it clearer than the

law currently is and also putting crimes into a certain category.

Football crime and hate-related crime, punishable by a certain term

of imprisonment. It can range from conduct involving a �40 fixed

penalty to potentially five years imprisonment. So this bill defines

the parameters of behaviour which is acceptable and which isn't. Just

like we have... Again, Ian Smart's question was give me a practical

example of something that you can be arrested and charged for under

the new law that you can't be arrested and charged for now?

for example, homophobic abuse from the terracing. We had a case a few

years ago involving Paul Hartley, he played for Hearts, someone

shouted homophobic remarks from the crowd, they were prosecuted for

breach of the peace and the court held it wasn't a breach of the

peace. There you are. I thought this was anti-sectarian legislation.

It covers sectarianism... It is an anti-homophobic piece of

legislation. It is offensive behaviour. Sectarianism, homophobic

behaviour and other types of behaviour involving racism. That is

quite clear to most people. These things are all against the law at

the moment. I'm still looking for a practical example. We have a

position whereby breach of the peace has been increasingly

constrained by the Appeal Court and you now have to demonstrate that

would cause severe disturbance in the community. Police officers have

had difficulty in interpreting what they do when faced with certain

situations. That is why the Association of Chief Police

Officers were in contact with the Crown Office looking for guidance.

It's been a long-standing approach by the Crown to tighten up the laws

relating to breach of the peace. That is what this legislation does.

The most recent case that the Appeal Court dealt with was Harris

against Her Majesty's Advocate. Still your argument is there is no

need for it? I'm still looking for a practical example. If he wants to

give me a set of facts, then we can discuss the rights and wrongs of

that being criminal sized. I just did. Your Paul Hartley example,

whoever was responsible wasn't done for it, or was it that as a matter

of law it was that the offender couldn't have been done for it?

Sheriff decided no offence had been committed and what the Crown Office

did was monitor cases following that and they found a number of

examples all over the country where Sheriffs were acquitting because

the test for breach of the peace was too high and that is one of the

reasons they embarked on this particular exercise. All right. We

are getting a bit bogged down. Can you see any harm in this

legislation? I think the harm is more what it accidentally does. It

is not the intention to criminalise going to a football match. A lot of

football teams other than Rangers in Scotland and the fans like to

sing offensive things about each other backwards and forwards. It is

part of the experience. There is a real danger that we are

criminalising just... To give you one that struck me, you can't have

abuse on the grounds of intersexuality. I'm not quite sure

what that means. Does it mean if a player is falling down too easily

and the opposition fans shout, "You are a big girl's blouse" they are

committing a criminal offence? was designed in the... What does it

mean? It is to deal with attacking people's sexual orientation in a

vile way from the terraces. Not calling somebody big... Can I.

might fall into the category of breach of the peace at the moment,

it might not. The purpose is to tighten all of that up. It is not a

Draconian piece of legislation. It is setting the law straight for

everyone to understand. I will give you an example. It is not unknown

for Aberdeen fans to be serenaded that they might like to enjoy

sexual relations with sheep, is that to become a crime? From the

face of the Act, I don't know whether it is a crime unless the

supporters being addressed do have such relations. LAUGHTER This is

the difficulty of getting into silly examples. We could have this

discussion in relation to the laws of breach of the peace... Let's say

the Aberdeen supporters don't take kindly to this and a fight starts,

I would have thought the people who are shouting these things could be

arrested? It is a possibility just as it is a possibility at the

moment. This Act is designed to affect offensive behaviour, that is

what it is meant to do. We saw plenty of examples of that last

season. The people of Scotland have commonsense. They know what is a

joke, they know what is light- hearted, so do the police and so do

the prosecutors and so do the courts. It will all run smoothly. I

guarantee in six mofpbts' time, this legislation will -- months'

time, this legislation will be passed. Which is what policemen

always say when they want to introduce new laws. You can bet

your house there is going to be a boundary case here. Yes. You can

bet your house someone is going to say if they are found guilty, "I'm

off to the British Supreme Court because my human rights have been

infringed." Are there civil liberty issues here? I think there are. I

suspect it will form part of the Government's consideration today.

Yes. I still come back to civil liberties. Paul McBride's argument

is we have nothing to fear even though for example you are supposed

to be, it is supposed to do with football but to cover fans who are

going to a match without tickets, you don't have to have any

intention to attend a match to be caught up by this legislation.

Someone who has no connection with any match ends up being done?

Absolutely. If somebody gets on a train at 2.15 from Glasgow to

Paisley account James, how do you prove they are intending the St

Mirren game? That is a matter for the courts. This is... I said that

is what police... They are guided by the joint Action Group which has

Rangers and Celtic on it. They wanted this legislation. They did

not want it today. They still support it. Right. OK. We will have

to leave it there. Alex Salmond's bullish attitude

towards the UK Supreme Court and the subsequent row shows just how

far he is prepared to go when he feels it necessary. Indeed, some

observers felt things were getting a bit out of hand and urged the

First Minister to calm down. So is today's decision to use the

legislative brake on the anti- sectarian behaviour bill rather

than keep a foot on the throttle a sign Mr Salmond is listening? David

Allison indulges in some amateur Act one, Alex Salmond's return as

First Minister in a landslide arriving... He promises to continue

governing as if still a minority. Although the SNP have a majority of

the seats, we don't have a monopoly of wisdom. Enter Nat Fraser,

convicted of murdering his wife. He takes his case to the UK Supreme

Court and they rule in his favour. The court holds that the trial

would have been significantly different if the undisclosed

evidence had been available. This annoys our hero who sets out to

challenge the Supreme Court. not criticise the situation which

boils down to the potential replacement of Scottish law with

Lord Hope's law? That is not a satisfactory situation. The issues

that arise from it in the interests of people in Scotland are both far-

reaching and require to be corrected. In Act two his loyal

Justice Secretary enters the battle threatening the Supreme Court's

funding criticising ambulance- chasing lawyers and saying who pays

the piper calls the tune. That annoys the Advocate General for

Scotland. One of the most fundamental principles of any

system, a free and democratic society is the rule of law and what

underpins that is the independence of the judiciary. I'm not sure what

is meant when a Government says they are paying the piper and

should be calling the tune. chorus asks if the First Minister

has gone too far this time. REPORTER: Will you apologise today?

He faces an onslaught at First Minister's Questions. His opponents

urge him to back down and apologise. Grow up, own up and apologise...

Will he now apologise for bringing the office of First Minister into

disrepute? First Minister? No, the First Minister's refusal to

withdraw is embarrassing for him, for this Parliament and for

Scotland. Act Three sees a new challenge, stamping out

sectarianism in Scottish football. The police and the clubs, the

churches and the politicians all have to be brought on side. It is

not going to be easy. It might take more than a season to do this. That

is the way it is going to be. We will drive these things from our

beautiful game of football. The rest of us, I'm talking about the

vast majority of decent football fans, we are fed up with this. It

is going to be eliminated. That is the way it is going to be. Will it

prove a challenge too far? Can our hero take this on alone? In the

finale n the face of significant opposition, he decides to return to

his original promise of seeking consensus, delaying his legislation

to seek out the wisdom of his opponents. This Government wishes

to achieve the consensus within Parliament and throughout Scottish

society. APPLAUSE A quick look at tomorrow's papers. A story in The

Herald. Depression warning on Scotland's economy.

A picture of JK Rowling. You will be able to buy Harry Potter as an

e-book. The Times, union power hit by fall in income in members, it

says. On the side, Milly Dowler family weeps as bouncer is found