 Gwoody, iawn yn bau i gael i'r Cymru. Ieithiwch y Cymru. Apolygiad bai gael y gael Prydweith Unedol Lleon MacArthur. Gael i'r gael i'r hawdd, mae'r mai gael, mae'r ddechloi gyda lawr iawn Lleon MacArthur. Apolygiad bai, maen nhw'n gwneud i chi'n gael, maen nhw'n gwneud i chi'n gael i'r lawr iawn Lleon MacArthur i Gael i gael i'r Cyfrydd Prydweith Unedol i leolau i Gael i'r Lleon MacArthur i Gael i'r Cyfrwyth. ac mae'r llanddlodd yn y cyfleu cyffredinol ym Gwyliannol y Llywodraeth Ysgrifennig, yn edrych i'r gŷnod y bydd y Llywodraeth Ysgrifennig. Ben Macpherson. Yr reuherdau gyda'r ddechrau ym Mhwylwyr yn yr olfawr oedd y Llywodraeth Ysgrifennig. Dysgannol feddwl i'r gynhyrchu eich lŷnol, ond mae'r gynhyrchu eich lŷnol yn y gynhyrchu. Agenda item number one is consideration of the affirmative instrument on telecommunications restriction orders custodial institutions Scotland regulations 2017, and I welcome Michael Matheson, cabinet secretary for justice and his officials, and Davis, who is senior principal legal officer director of legal services with the Scottish Government, and Jim O'Neill, senior legal services manager with the Scottish prison service. I refer members to paper one, which is a note by the clerk, and ask the cabinet secretary if he wants to make an opening statement. Thank you, convener. Members may recall that the Scottish Parliament agreed by legislative consent motion in 2015 to amendments to the then UK series crime bill to allow us to bring forward these regulations. The regulations build on the steps that we have already taken to tackle illicit mobile phone use in prisons. Parliament has already agreed changes to prison rules, made changes to the law to create offences for introduction and possession of mobile phones, or their component parts in prison without authorisation, and made changes in the law to allow us to interfere with the wireless spectrum and pilot interference technology in two prisons to disrupt mobile phone use. I understand that members took the opportunity to understand more about the technology and its capabilities in private, and I am grateful to the members who participated in that. Let me be clear. The unauthorised use of mobile phones in prison presents a range of serious risks to the security of prisons and to the safety of the public. They can be used to plan escape, or in discipline, or to conduct serious organised crime, including drug imports and serious violence from behind bars. Those regulations will support our commitment to reducing the harm caused by serious organised crime as part of Scotland's serious organised crime strategy. The challenges posed by unauthorised mobile phones and their component parts into prisons and young offenders institutions is not insignificant. Component parts such as SIM cards are easily concealed. While we may have been able to recover a number with more than 1,500 mobile phones or component parts since 2013, more will escape detection. We remain committed, however, to minimising the number of mobile phones entering prisons to find phones and, for those who have got them, to block phones to make sure that they are not able to access the network. With those provisions, the courts will be able to also set in place a process to remove particular phones from the network. That will render them worthless and stop prisoners using those phones to engage in criminal activity from prison permanently. That will help both the police and prison authorities to maintain the security of our prisons and the safety of our communities. Those regulations will not prevent the introduction of illicit mobile phones or their component parts to prisons. However, the successful disabling of a mobile phone will put it beyond use and will seriously disrupt the activities of those individuals, including those involved in serious and organised crime, who would seek to extend their criminal activity threats or presence beyond the walls of our prisons. I know that some members will be concerned about the potential impact of the regulations outside prisons. However, I trust that the opportunities provided by my officials to understand the evidence that will be obtained to satisfy a court that those mobile phones are in prison has provided the reassurances that they needed. The committee may also find it useful to know that the communications service providers have told us that they would welcome a clear legal instrument that establishes a route by which they would be able to be compelled to act on those matters. Those regulations will provide that clarity. I am happy to take any questions from members. John Finnie, Mary Fee. I availed myself of that briefing last week and took no reassurance. In fact, simple questions that I asked the last time that was discussed, which I thought could have been addressed, were not, and remain the case that is not addressed. The particular SI, Regulation 3, and I have read from the explanatory note, which is a bit easier for the layperson, says that this is to cater for the situation whereby a communication device is disconnected in error, and it obviates the need for an individual or the applicant to apply to the sheriff for the order to be varied or discharged. In what circumstances would that become the case? If a phone had been blocked from the network and it was brought to the prison services' attention that it was not a mobile phone that was within a prison establishment, it could be reconnected to the network. The way in which the orders will operate is that when a court issues the order for the communication service provider to block it, it will be provisioned within the order to allow it to be reconnected if an error has been identified. However, experience today would suggest that the likelihood of an error like that happening would be extremely rare, but there is provision to allow it to be reconnected to the network. I am neither a lawyer nor a telecommunications expert, but my job is to understand the legislation and provide reassurance where it is required. There is no consultation taking place in this legislation. There is no equality of children's or privacy impact assessments. Why is that the case? The particular reason for not requiring any further assessment of that is because it relates to communication devices within the prison estate, which is already illegal. At the same time, in relation to privacy impact assessment, it does not allow access to communications between individuals. This is about communication traffic. It is about numbers of phones, SIM cards and so on. It is not about the communications that take place between two individuals, which is a different process that I am sure the member is aware of. If Asgai and David Shee can set out a wee bit more fully the process that will happen with the orders when they go before the court and the provision that will be made within that to allow any variation of that to be made, subsequently, should further information become available, if that would be helpful? Perhaps if I may in advance of that. My concern is about collateral intrusion and the potential impact, if indeed there is any, to interfere with particularly health apps. For instance, Trial does a Crohn's disease health app that can help people remotely. A very quick search just before I come up here, a press release from the NHS using mobile technology for safe and effective care of patients taking multiple medicines. This is something that is done remotely and it is about polypharmacy issues. I asked the official had there been discussions with NHS about potential impact. All I am wanting is for someone to say that there is no impact or there is an impact but we understand it and we will take that into consideration. I absolutely want robust procedures to ensure that there is not an abusive mobile phones and that the law is enforced but I do not want any suggestion of anyone being vulnerable. I have given the example in the past of Inverness prison where you know that dwelling houses are closer to the prison than you are to me at this particular moment. Can you provide any reassurance? I can provide assurances on what experience we have today and the experience that we have today with the pilots that I have been operating is that no issues have been identified of the nature that the member has raised. Some of those establishments have residential properties very close by to them. Secondly, it is also worth saying that the experience that we have today has also been shared with our counterparts in England and Wales who have also been using similar types of technology. Again, they have not identified the same types of problems or concerns that the member has expressed. I can say that the Scottish Prince has already engaged with the Scottish Centre for Telecare and Telehealth on those issues and will continue to engage with them going forward. Given the way in which that technology operates, we are keeping in mind that, for example, in telecare, the vast majority of telecare is provided through landline-based systems, although I suspect that as time goes by a greater amount of it will be provided through mobile phone technology. The data that is collected is part of the process of identifying a phone that is being used within the prison estate and the further measures that are then taken forward by the prison service, along with Police Scotland and the service provider, would allow them to identify a line that was being used for telecare or telehealth at that stage. I am confident that the process in there would allow those types of use of a mobile network to be identified if it had been used in close proximity to a prison estate. It is also worth keeping in mind that the way in which the prison service deployed that technology can also ensure that it minimises the risk of it going beyond the boundary of the prison walls itself. I do not want to go into the details of this too much, because it is operationally sensitive. The way in which the data that is gathered and the way in which it verifies that data is sensitive. I would like to provide a reassurance to remember that these matters have been thought through. We will continue to engage with stakeholders such as the Scottish Centre for Telecare and Telehealth to make sure that the way in which the prison service operates is mindful of the needs of individuals who may live in close proximity to prisons for making use of telecare and telehealth provisions. I have a similar concern to that of my colleague John Finnie. At the briefing last week, I raised the issue of emergency calls being made outside the prison grounds. I was quite concerned to hear that those regulations, and while I have no issue at all with the need for those regulations, there is a potential for a call made immediately outside the perimeter of the prison to emergency services. If there was a threat to life, a health problem, the call would be barred. I really want a similar reassurance that you have given to John Finnie that those are issues that you will continue to monitor and perhaps work with network providers and emergency services to make sure that those calls, if barred, will be reconnected as quickly as possible. I cannot guarantee that they will be reconnected as quickly as possible, because I am not a communications service provider, but what I can assure you is that what those regulations provide for is a process that allows the Scottish prison service to go and get a court order for a mobile phone device to be blocked from the system, which renders it useless. There are a number of steps in that particular process that they would go through, so it would not happen immediately at that particular point. In terms of the technology, the interference technology, which is already used at some of our prison establishments, we have not experienced that type of issue to date. There are ways in which we can continue to monitor that, and the prison service is taking a precautionary approach in trying to address those types of issues should arise. If an incident like that did arise and it came to retention, it would be a matter for the prison service to look at other measures that we need to take forward in order to minimise that. Part of that is about the nature of the deployment of the technology. Again, those are operationally sensitive issues, and I do not want to give too much detail around those, because they could be useful to those who wish to circumvent them. The technology is continually developing as well, which will allow the prison service to continue to adapt its approach as technology develops and to make sure that it is taken into account that it is not causing undue risk to individuals who live in close proximity to our prison estates. I would be supportive of that measure, but I did not have the benefit of attending that brief in the other week, so I am just wondering if you can help me to understand just a bit more about it. Am I right, then, that this does not require the actual finding of a unit? What it requires is the discovery of a signal, and then the telecom provider locking down that specific individual signal? If I am right on that, then who monitors for that, and who has the onus of taking the steps to shut it down, to phone the telecoms provider as it were and say, there is the signal, lock it down? The way in which it will operate is that the prison service will use the interference technology that allows it to identify whether the mobile phone is being used in the prison estate. If it believes that it could capture that data, it will then work in partnership with Police Scotland on some checks that it will then carry out on the data that the prison service has. It will then go to the communication service provider, who will carry out some further checks. Once that process is completed, it will then allow the prison service to bring that information together and then to put it to a sheriff, who will then determine whether an order should be issued. Once the order has been issued, the communication service provider has a legal responsibility to block that particular device, which renders it useless and can't be used. There is a process in there that has gone through. Again, I do not want to go into the details around specifically the information that they get and the different elements that the agencies take forward to identify a particular phone, but it is one that I believe, once the courts have received that data, there will be in a position where they can make an informed decision about whether an order should be issued. For the communication service provider, I should say that there is a memorandum of understanding that has been a guide between the Scottish Government, OFCOM and the communication service providers on how technology will operate and how it will be implemented. That has been in place since 2014, and we have continued to refresh that and develop that and go forward as technology develops. Overall, testing on how the prison service is utilising that technology is a matter that OFCOM would be responsible for. Ofcom would need to be satisfied that the prison service is using it appropriately and with the appropriate safeguards in place. There are a number of different mechanisms around this process, but it is a process that involves a number of different parties before it gets to the court and then for the court to then consider the evidence that is presented to them before issuing an order. We now move to consideration of the motion. A gender item 2 is the formal consideration of the motion in relation to the affirmative instrument. The Delegated Powers and Law Reform Committee has considered the report and reported on the instrument that has no comment to make. The motion will be moved and an opportunity for formal debate is necessary. The motion is 08386 that the Justice Committee recommends that the telecommunications restriction orders custodial institutions Scotland regulations 2017 draft be approved. I invite the cabinet secretary to make any closing comments and move the motion. The question is that motion 08386, in the name of Michael Matheson, be approved. Are we all agreed? We are all agreed. That concludes consideration of the affirmative instrument. The committee's report will note and confirm the outcome of the debate. Are members content to delegate authority to me as convener to clear the final draft report? I thank the cabinet secretary and his officials for attending and Mr McNeill from the SPS. The committee appreciated the briefing that we got at Schott's prison, which was very full and very helpful, and the briefing that the committee got last week in private. I suspend briefly now to allow the cabinet secretary and officials to leave. Agenda item 4 is consideration of three negative instruments. I refer members to paper 2, which is note by the clerk. The first instrument is Housing Scotland Act 2014 consequential provisions, order 2017 SSI 217 oblique 329. Do members have any comments? Is the committee agreed that it does not wish to make any recommendations in relation to this instrument? Second instrument is Rent Regulation Assured Tendencies Form Scotland Regulations 2017 SSI 217 oblique 349. Do members have any comments? Is the committee agreed that it does not wish to make any recommendations in relation to this instrument? The third instrument is Pensions Appeal Tribunals Scotland Amendment Rules 2017 SSI 2017 oblique 367. Do members have any comments? Is the committee agreed that it does not wish to make any recommendations in relation to this instrument? Agree. I suspend briefly to allow the panel of witnesses for the Civil Litigation Bill to take their seats. Agenda item 4 is our fifth evidence session on the civil litigation expenses in group preceding Scotland Bill. I refer members to paper 3, which is note by the clerk, and paper 4, which is private paper. I welcome Martin Hagarty, managing director of accident claims Scotland. Paul Brown, chief executive and principal solicitor of legal services agency. John Simon, director of quantum claims. Professor Alan Patterson, school of law, university of Strathclyde. Thomas Dockarty, parliamentary affairs manager. George Clark. I have misnamed you, George Clark, from director of quantum claims. Nice to have you, Mr Clark. Thank you in particular, Thomas Dockarty, for providing a written submission. We now move straight to questions starting with Fulton Mackay. McGregor. Mr Clark, have you been coming out for a while now? I have been called to Fulton Mackay before. I just have a very general question to kick us off with. We know that the objective of the bill is to increase access to justice. We have heard various evidence from various people on that very issue. What are your views on that? Do you think that the bill will increase access to justice? I suppose, do you believe that there is an issue around access to justice in the first place? I am happy to take it in any order. Very briefly, we vigorously support the introduction of class actions and group proceedings. Indeed, it has been an idea floating around for my entire career. I can claim it to have been involved with two forms of group proceedings. One, the now defunct procedure on the Public Health Scotland Act 1897. I think that is what it is, which is a group procedure. Also, as one of hundreds of pursuers in a class action in New York, both of the sets of proceedings were infinitely more straightforward and supportive than the equivalent individual actions. In the case of the Public Health Scotland Act in the bit to do with the abatement of a nuisance, I think there were 18 pursuers. The only one writ, the cost to the defender and the complexity undoubtedly were less than there would have been otherwise. The only complexity really was the 18 legal aid applications and some people falling off legal aid, but that one level was my responsibility and not an access to justice issue as such. A remedy and abatement of a nuisance was obtained fairly speedily, so I was very impressed with that. It has not been abolished, but the opportunity for taking similar actions would seem to me to be a good idea. The other, the New York action, was basically a small claim that would have been unpersewable without a class action. It was an opt-out class action. Get a letter saying, you are in this claim whether you like it or not or you can sign a document saying you can get out if you want. Obviously, no reason not to, but I was very impressed with that. It was far more straightforward than claiming most benefits. So I have no doubt that the introduction of a group procedure would increase access to justice. Really, the main issues are legal aid and publicity, but those issues can be overcome. I think the ordinary person who reads national press or watches the news or whatever and hears about class actions elsewhere will come to an understanding of it fairly speedily. As I said, my experience is that it is hugely less stressful and more straightforward for the party, the pursuers and vault. Thank you very much. Professor Burgess. I too have been a member of a class action in America. I think it was overcharging for gas services and it applied to the whole area. Instead of the hundreds of thousands of people in the area each having to raise an individual action against the gas company, a collective action was raised, we didn't have to opt in. It was an opt-out one. It was very straightforward. This is the way to deal with very small cases or medium-level cases where everybody has a common interest and there are thousands of people involved, defective washing machines, all sorts of things. It is not cost effective to say that thousands of people have to raise the same action against a particular washing machine company or a gas company and so on. As Paul has indicated, the problems are how you fund these. We have known that class actions or group actions are a good thing for 30 years. We have had three reports in Scotland, all of them saying that we should have these things. The problem has been how you fund them and we will no doubt come back to that. Thomas Donkirk. We would echo the principle of group proceedings being important and I think that the key thing that you are hearing, convener, is that opt-out is the crucial bit rather than an opt-in mechanism. As we showed in our written submission to you, our concern is the bill as it currently stands at the risk of having my glass half full. It is better than nothing, but it won't deal with those specific cases that Professor Patterson touched on where you have a relatively small amount to an individual, but the cumulative damage to the group is significant if you do not have an opt-out mechanism rather than an opt-in mechanism. Any other comments, Mr Clark? I am here to focus on a couple of concerns, namely on two short points. Part 1 of the agreement under section 4 and Part 2 under section 10. Just by way of background, Quentin Clames was formed in 1988 as one of the first no-win-no-fee organisations in the UK. We have a very mature funding product that has evolved over time as the law has changed and evolved. Our pricing structure has been evolved very carefully to match the requirement of the public, obviously to meet the public expectation and to market ourselves in the best way. The bill is presently stated. It gives me two concerns about access to justice and a potential funding gap on individual cases, not on group litigation, which I will pass to those who have looked at this in more detail, but on individual cases, which gives me a little bit of concern. If I deal first with section 4, one of the paper section 4, the power to cap success fee, and this comes, obviously, from Sheriff Principal Taylor's report, he makes various recommendations about capping the success and the degree of the success fee and, generally speaking, at around about 20 per cent. I should say that that is roughly in line with what Quentin Clames' product is. We gave evidence to Sheriff Principal Taylor and perhaps he derived that idea from our experience of it. However, I should put a word of warning into that, in that the law is evolving. It seems to me that he seeks to apply a cap across all categories of cases, and that is extremely dangerous in our experience. Particularly in areas such as medical negligence, beach of contract, professional negligence, extraordinary complex cases, long-running cases, by definition, and expensive cases to fund. The capping of the fee at a level that may not be sustainable would discourage funding organisations from participating in the process and, therefore, denying access to justice to a certain category of pursuer in my view. I bring on to part 2 in section 10 of the third party funding of civil litigation. It is really a similar point, I suppose. The issue there is obviously about the ability or the proposal that the introduction of one-way cost shifting, which is a good thing and I think is generally approved there, but with an exception for third party funders to potentially be made liable for the expenses in an action. That is clearly a difficult position for companies such as ourselves in terms of providing funding if we are looking at a risk that we do not know before we enter into funding arrangement and for the pursuer also, whereby they could suddenly find themselves in a position whereby there is a funding aspect of it that they weren't aware of when they started. My concern about it is, and I will give an example, of a category of cases, what is a case worth? Covering that in more detail, it is just a rough kind of guidance of the areas of the bill at present where you have some concern. There will be an opportunity to come back with more detail as we go into that line of question about the third party. I was just by means of covering it up very briefly to finish my final point really about this. Just to say that in terms of that, whereby the funding of a small, let's say a case of £5,000 to £10,000 category of cases, whereby the funder is being exposed to the coverage of outlays which average at about £2,000 minimum for even the smallest of cases, plus the exposure to civil expenses in the event of the case not one of, let's say, £30,000 to £40,000, that would discourage the funding of any action. And there are a large category of parties who would be discouraged from pursuing an action whereby they have got to find £2,000 to £3,000 of funding. My only point is in terms of these have to be looked extremely carefully in my opinion in terms of defeating the point of the bill which is to improve access to justice. That's my submission if you like. Right, thank you. Anyone else, other comments? Basically just to echo what Mr Clark has said, I think in general the principle of a cap on damages or success fees is fairly sound thinking but I do think there has to be a distinct reassessment of the amount of that again because of the type of cases involved and to reflect the complexity of the case. But otherwise I think anything that improves the access to justice for innocent victims has to be a good thing. Basically I think apart from that Mr Clark has covered the funding side of things in brief and I understand that we will go on to talk about that in more detail. Thank you, Rona. Thank you, convener. Good morning. Just you've talked quite a wee bit about what I was going to ask you but I just want to ask the panel if they think that damaged-based agreements and qualified one-way costs shifting does improve access to justice for the customer. Who would like to lead on that, Mr Clark? Yes, I think so. They are the way forward. Effectively we have been operating that for 30 years so to bring the rest of the law in line with that has got to be a sensible thing and a step forward in terms of access to justice with the qualifications that I've put in place about some of the detail. I should declare interest in the sense that I was on the reference group for Sarah Principal Taylor. I agreed that there was an argument for damages-based awards but very much agreed also with Sarah Principal Taylor that it has to be subject to appropriate protections so we may come on to the protections later. Can I ask, just hypothetically, is it possible for two fees to be paid under a success fee agreement, one to the claims management company and one to the solicitor? Does this system allow for that or is there a loophole that exists there? Are you talking specifically about success fees? Yes. From my experience and from my own company's point of view, no, because if we were to charge a success fee, we operate that only in the instance of cases that settle without the need for court proceedings. Thereafter, we have a mechanism whereby the solicitor can take over the litigation aspect of it and in recognition of the additional work that they will have to put in, they would then take the success fee rather than ourselves. I see, right. Thank you, that's clarified. Anyone else want to comment? Can I just ask you generally, are there any other measures which you'd like to see in the bill which would enable, which would improve the ability for access to justice? Anything you feel has been missed? Yes. You've seen a written submission, not from me, but it's concerning environmental law. I would have thought the proposal that the restriction on pursuers' liability for expenses should be expanded to include environmental issues. That does sound a reform that would improve access to justice, even in cases where there's not much likelihood of a pursuer paying the defender's expenses. It's a big disincentive to litigation. So I would support the proposal that the disqualification be applied to environmental issues as well. I suppose the example I could give is the almost complete absence of people taking up these issues. We've seen a large amount of publicity about air quality and so forth. Some circumstances, air quality would be a nuisance, but it doesn't seem to happen. The traditional controls over litigation that derive from other ages do provide a barrier. I think there is a need for removal of them. To do with the rule of law, and it's not just access to justice generally, the unison case made it clear that access to justice is a way of ensuring that Parliament's decisions are applied. That needs to be taken very seriously. As I know, the committee does. Thomas Docherty. A committee has been in discussions with the Scottish Government on claim management companies that need to be regulated. I suspect that's partly why some of the panel are here today. We think that that is crucial, particularly with the financial guidance bill that's currently just about half its third reading in the House of Lords, so it's at the halfway point. It would be odd if there was a gap in regulation between Scotland and England and Wales. Anyone else have a view on that? That's simply my experience. I do a fair amount of criminal justice compensation claims and sometimes people will find out and say, we've got somebody else dealing with it and it's purely telephone based advice based on a percentage fee. I would share the concern that people don't understand what they're getting involved with. Hard sell, not necessarily remotely in the best interests of the applicant, and also to sometimes defeating the objective of the whole arrangement, which is that people get compensation and they're paying 20% of it or whatever to somebody else for very little work. That doesn't seem to me to be achieving the objective that the whole arrangement has been set up to achieve. That whole line of questioning, we can go any more deep. A supplementary, Liam Kerr? We're absolutely clear, Mr Haggerty. Rona Mackay was talking about fees. I think you were saying where a matter escalates to a solicitor then the solicitor takes the success fee or that's there. Your firm will need to get paid. Do you get a referral fee from the solicitor? Yes, in principle it is a referral fee. I would quantify that by saying that we do a substantial amount of work in preparing the case, taking background information. We're also, unlike many claims management firms down south in particular, we engage with the client and we offer other services to the client such as replacement vehicles after a car accident assistance with finding vehicle repairers. We also, after the cases underway, are involved in such aspects as taking statements from witnesses, preparing a locus report. We provide a value phony service as distinct from my colleague here who has said that in many instances some claims management companies are purely a telephone-based marketing device. We do receive some payment from the solicitors partly for finding the case and partly for the work that we do. The question is then, if your firm gets a fee from the solicitor and Mr Brown talks about acting in the best interests of the client who is your firm's client? Not necessarily, because we do not act purely for one solicitor's firm or deal with one solicitor's firm. We deal with other firms and it depends on the type of case. For example, for a road traffic accident we may deal with one or two firms. We may have another firm who specialise in industrial disease or accidents at work or medical negligence. However, we are acting for the client at the first instance and we are offering to find that client as a range of services, including expert legal advice from someone who specialises in that area of law. I could pick up that last issue. It is not directly to claims management companies, but there are instances of claims companies who are encouraging PPI claims. Issues of a reason as to when a solicitor gets involved, who is the solicitor acting for? Is it for the claims company and the client? It makes a big difference because it affects producer's duty, it affects remedies if the lawyer is acting for the client or only for the claims company. It is very important that in those kinds of contracts, and that would extend to claims management companies, that there is clear explanation. There is a duty on solicitors not just to act in the best interests of the client, but there is also an ethical duty to communicate effectively and get their informed consent to certain contracts. That means that you have to tell them everything material that relates to the case that you are aware of as a solicitor. All of those things have to be carried through, and I am sure that they are carried through by quantum claims, but we are talking about all kinds of other claims management companies coming through, and those issues have to be addressed. I should say that the law society is aware of this, and there is a working party being set up to look at some of the ethical issues that might arise, but we have to be aware of those issues. John Finnie. Good morning, panel. The provisions of the bill will enable solicitors to enter into damage-based agreements. Can you outline what you see as the pros and cons of that form of payment? In addition, do you feel that there is a need for additional protections for consumers or for the perception of a conflict of interest for solicitors? I just said yes that there is. If you enter into a contract with your client normally, the contract has to be fair and reasonable, secondly it has to have informed consent, thirdly it must be something an independent person would advise, and as a matter of ethics, in addition to those duties which are fiduciary duties, you are required to be independently advised. That is impractical when it comes to the contract of retainer between lawyers and clients. I am talking about the general contracts of borrowing and lending between a lawyer and a solicitor, or getting gifts or wills and all sorts of things, but when you get into unusual retainers, supposing your fee was an equity fee or your fee was a publicity fee, now if you get into an unusual fee some of the claims management fees or some of the speculative action fee contracts we have could be viewed as quite unusual. In those circumstances, I think the need for informed consent and proper communication is there, and I would argue that there may be a case in some of these cases for independent advice. For example, I know share principles of the view that 2.5% of future loss is not, in the grand schemes, a problem, but in some cases it might be a problem and people need to be advised about that, and that's why 6.6 has the need for an independent advice from an actuary. In certain cases, I think there may be a need for independent advice from an independent lawyer. Not in all cases, but in some cases. Members, do you want to comment on that? On the regulation point, I can't really comment on the solicitor's duties to advise the clients. The regulation point, I welcome it, I think it is absolutely essential. I believe that there are, which you might call, cowboy organisations out there that would take advantage of situations, and I think that it has been prevalent. I think that it is less prevalent now, but it still exists, and I, for one, would welcome it. We have never engaged in telephone marketing sales or anything like that. We have advertised traditionally, we have written contracts where clients have cooling off periods and advice available to them, and that's what I would endorse, which Professor Patterson has said. That is entirely right, and I think that it should be brought into the realm for every contract entered into by clients. Frankly, I would welcome it. Can I maybe just clarify with Professor Patterson? You would see that independence is a protection not only for the client, but also for the solicitor. Oh, yes. Underneath it all is the potential for conflict, and it protects both. I'm not suggesting that you necessarily need it for every speculative fee and every damage-based award, but in some, I think that there may be an argument for it. In principle, I would agree. From my own perspective, my company, as I said, at the stage of any litigation, hands over the control of the case to the solicitor and any success fee thereafter, so thereby there is an impartiality. We've removed from the process. I would also point out that we don't engage as a company in any activity other than accident claims, we don't get involved in the less reputable, in my opinion, side of the business such as PPI or holiday sickness claims and things like that. Up until recently, I would have said that in Scotland, we don't necessarily need regulation because there are very few claims management companies here, but the problem to me really stems from the amount of English-based companies who are advertising nationwide and are preferring advice to people here without any regard for the laws of Scotland or the system of damages that we have, and perhaps just selling that case on to the highest bidder. In some cases, that's even been English-based solicitors firms who ostensibly then take the thing forward and try and resolve it without the need for litigation. More recently, with the increase that we are seeing in that, I would welcome some form of regulation here. It was really just in terms of some of the evidence that we'd heard in previous sessions, particularly from defender representatives. They raised concern that they believe that the bill is currently drafted would lead to a compensation culture in Scotland, and that we would need to put additional measures in place, such as fixed fees and strengthened pre-action protocols, to try and mitigate against that. It was really just to get your thoughts on that and do you believe that it would give rise to a compensation culture in Scotland? Over the years, I've been involved in claims since 1979, and I accidentally claimed that Scotland was formed in 2003. Over the years, we've done quite a lot of research into the behaviour of claimants and potential claimants. I don't really see that over the last 10 or 15 years or so that there has been particularly a rise in a compensation culture in Scotland. I think that we've always been fairly conservative with a small sea, if I may say that. Roughly, it's always been roughly that a one-in-three has sought compensation for minor injuries, and most claims are for minor injuries. I haven't seen a particularly large uptake despite all the rise in advertising and pressing on TV and on radio for accident claims companies or lawyers. I don't see that this will fuel any sudden rise in demand for compensation claims to be made. I think that all it really is is offering a fair means to members of the public to seek recompense that they are legally entitled to. The majority of people entitled to make a claim for personal injury don't do so for whatever reason, and those reasons are varied in my experience. Again, they are mostly minor injuries. I don't think that we're going to have a huge rush in the whiplash culture that has been experienced in particular parts of the south of Great Britain. Gabyd, do anybody else like to comment on that? Yes. There's a lot of prespability about compensation cultures. The research evidence doesn't bear it out in England and Wales apart from the pockets of whiplash to which you've referred. There was a beautiful article produced by an academic that showed that there was a direct correlation between the number of claims going down and the number of media stories about compensation going up. In Scotland, the evidence is that civil litigation rates have been gradually falling over the last five, six years. Now, I know that there was a spike in personal injury, but I don't think that there is evidence that there's a huge interest in raising personal injury claims. I'd be quite interested in the words because when I was doing the original path to justice research with Hazel Genn, which was the start of the needs assessment literature that's gone round the world, we found large areas of people who were either doing nothing when faced with a significant possible claim or trying to help themselves and failing. We often think that personal injury is where people know to go to a solicitor or a claims management company. Admittedly, that was 15 years ago, but what we found was that personal injury claims or possible claims were one of the highest ones where people did nothing. There is room for the claims management companies to help us to tackle things, provided we have appropriate safeguards and we monitor what's happening. I don't think that we are likely to see a compensation culture take off in Scotland. In some areas, there's been a big decline. People hear publicity about cutbacks and legal aids that are applied to Scotland and think that's the end of the legal aid for them, or they hear about cutbacks for criminal injuries compensation and think that that doesn't apply, but they don't realise that their injury hasn't been abolished or they hear that wage loss has been removed even though it's in criminal injuries compensation claims even though it still exists in some situations, or they hear about time limits and they don't realise that time limits in some situations are of guidance, but they're not absolute, they can be argued around. There's all sorts of impediments. I would have said that there was a need for greater publicity. Some sorts of publicity do result in overshoots, but there are some areas like Equality Act claims and whole rafts of employment-related matters which are barely pursued at all, so I don't see compensation culture being a problem. Mind you, I suppose one needs to look at the form of words used. Compensation in our world is a way of achieving accountability, so appropriate compensation needs to be encouraged. Lying, exaggerating needs to be discouraged. If that's what the problem is, that needs to be discouraged rather than just saying people claiming. Lying, exaggerating, fraudulent claims, well, the bill has sanctions built into it for those and people need to know about those as well. Just directly on the back of that, do you think that the bill tries to tackle some of that? Do you think that that will be effective enough in preventing some of those fraudulent claims? In terms of spurious claims as well, that was something that we've heard evidence on as well from the representatives of pursuers and from Sheriff's Principal Taylor who seem to think that there wouldn't necessarily be a rise in spurious claims because it's not within a solicitor's interest to take up a claim that may not necessarily go anywhere or doesn't have anything behind it. So it was really just to get your views on that as well. Do you think that there would be a rise in spurious claims as a result of this? Well, in my experience, solicitors need to be very clear about appropriately, clearly analysing cases and telling people when they don't have a claim. I suppose sometimes people have difficulty doing that. That's just because they want to help people. So that's a professional issue, but it is a real one because misleading somebody into being over-optimistic is just as bad as telling somebody that they don't have a claim when they do. So I think that's a professional issue that in one level that's to do with making sure that your publicity is clear so people really understand what it is that you're getting compensation for. So people need to just know the basics of the law and they need to keep on being told it because it's not something that people necessarily that fascinated by. I suppose the other thing about it is to encourage the right sort of soaps on telly that explain these things because people do pick up a lot through that route. As I said, I don't see there being a major problem to do with it. It's not one that I've come across. I would add that as the claims management, a representative of the claims management side of things, again, we haven't really seen a great increase over the last few years in spurious claims either, but we do, and I'm sure that Mr Clark will concur, we do as a responsible company actually discover and weed out some of the less desirable or more spurious cases. Therefore, we actually prevent some of those cases getting as far as the solicitor. It's not in our interests either in having spurious claims because if we were to present one, which did find its way to the solicitor and therefore potentially to litigation, any work that we have done or any referral fee that we charge to the solicitor is clawed back in the event that the case turns out to be in some way fraudulent or the client seems to be misrepresenting the situation unreasonably. There is an onus on us to ensure that we perform our part and weed out any undesirable claims. Thank you. I've got Professor Classerson and then Thomas Docherty. Just to add, the bill does contain certain protections so that if a legal representative raises a spurious claim and a spurious action, then they may be found personally liable and expensive. Now, I happen to think that that's the law anyway, but I'm glad to see it reinforced and statute now so that nobody can say, I don't agree with that bit of the case law. No, it's clear there. Qualified one cost-shifting, you lose the benefit of that if you prove to be fraudulent. Similarly, it's the same way with legal aid. One of the protections of legal aid is that if you lose, you can get your liability to pay the other side's expense modified to nothing, but that only applies if the court takes the view that you've behaved reasonably and the bill requires that as well. So there are the protections against these potential spurious claims. Thank you, Thomas Docherty. I think perhaps it goes back to the question that Mr McGregor asked at the start about access to justice. We don't see claims management companies as a symptom of a problem we have just too often companies, institutions, won't pay back to consumers the money that they owed. As a simple statistic, the National Audit Office estimates that between 2011 and 2015, claim management companies received, I think it was four to five billion pounds in management fees for PPI claims. That's because those financial institutions in the very first place weren't coming forward because obviously they knew who their customers were and saying, look, we owe you money, we've got this wrong. We have a very simple case at which we've been using a lot, which was we run a free service on our website for PPI claims, which we've now engaged with a lot of the institutions, and we had one which member who got 15,000 pounds by just going on to that website and putting in his details and obviously won't say which financial institution it was. That cut out the CMCs and that's a great result. But there's an argument that says if it wasn't for those CMCs in the first place, chipping away and raising this issue, those financial institutions wouldn't be in a situation where they have paid out, I guess, 18 to 20 billion pounds over the last few years. So hopefully that answers your point. That's really helpful. I very much look forward to the civil litigation dramatisation. Thank you. Can I ask about the issue of ambulance tracers? Obviously, you're talking about legitimate claims from consumers that perhaps haven't been followed, but there's the other side of the coin. While the two representatives, the three representatives from the claims companies have explained how they would behave with absolute propriety, is that still an issue? I would go back to Martin's point to me earlier about this. There is still an issue in England, I think, and there is a telemarketing culture. I think we've all had it. Anonymous phone calls, texts, et cetera, have you had an accident in the last three years? Et cetera, et cetera. I think there is still an issue. It's a country-wide issue, not just a Scottish issue. I genuinely agree that I don't think it is prevalent in Scotland. It comes from afar and it's generated from afar. I'm not aware of anyone in our industry, if you like, that actively practices that in Scotland. I'm not aware of it, but certainly I don't. I think it is an issue and it does need to be looked at. As I say, there is a danger in that field still, in my opinion. If I could add, I would agree that it is something that is very much driven from afar. In what I do day-to-day, I'm constantly bombarded by data marketing companies from other parts of the world, not just the United Kingdom. Offering data for people who have had accidents or have had PPI in the past or whatever it may be. We only deal with accident claims, but I do not nor do my colleagues that I know of in this industry engage in buying data. It's a very shoddy way to do business, but something should be done that protects the public from these mass data-gathering exercises and the constant exchange of details. In many cases, the data that I am being offered is said, whether it's genuine or not, to originate from insurance companies, the very people who cry wolf at the first sign of a potential personal injury claim. However they are getting their data, there is no doubt that there are some practices involved that are less than savoury. We would completely disagree that Scotland hasn't got a problem. Scotland has more of a problem with nuisance calls than any other part of the United Kingdom. We've done the research. There was a debate here in the Scottish Parliament in September which I know some members took part in. Eighty per cent of Scots have reported receiving nuisance calls on their landlines in the month of August alone, according to our studies. Almost half of those people are getting accident calls and PPI calls. It is not true that Scotland has more of a problem than anywhere else. In the last year, 16 claim management companies based in Scotland have registered the company's house. The problem isn't getting smaller, it's getting bigger. I don't deny that the members of the public are receiving unsolicited communications, whether by text or by telephone, whether it's PPI, personal injury or whatever. It's just that the majority of these calls or texts originate from outwith Scotland, the vast majority of them in my experience. The opportunities to buy that data or to acquire these potential customers or clients generally does not originate in Scotland. There may well have been several claims companies that have registered at the company's house. I understand that there may well be many PPI-based companies of that nature. I haven't seen any great increase from the personal injury side of the business in Scotland. To take your point, we are plagued by them, but I don't think that it's a big problem with the data originating here. I think that it's national companies marketing to the country as a whole and trying to pass the clients on to us up here in some way, shape or form. There's certainly some very useful information in Mr Docherty's written submission about even the Glasgow area and the number of calls there. It may be covered later. Maurice, do you want to answer something? Can I ask a general question to the panel? There is a feeling of reticence of people who genuinely have a claim and they believe they have a claim, but are put off by the fact that they might incur a record on the industry's notepad if they come to ask, for example, for the insurance of a cover for a house. There is a general trend to feel that. Can you comment on that? Therefore, it's a black mark against them. I think that that's very much the case, certainly, in motor accidents, of which the majority of personal injury claims will emanate from. I think that very much people think that if they make a claim, whether it be for their vehicle or whether it be for their person, that somehow this will affect their insurance premium and then very often it does. As a result of that, people very often seek the assistance of a claims management company, or they just decide it's more bother than it's worth, and they swallow their policy excess for the damage to their car and they get on with their daily lives. It's unfortunate that we've tried in the past to kind of educate, through our advertising, that the genuine members of the public who suffer an injury through no fault of their own, that they do have rights and that there is something they can do. I think that there is very much a perception that in some way they'll end up on a database somewhere and it's going to end up costing them more money. I think that it's worth pointing out that if insurance companies themselves acted honourably, then the claims management industry from a personal injury or from a vehicle damage perspective wouldn't exist. I say that as someone who originally came from an insurance company background and has seen this rise from nowhere, where people used to be left without any assistance. I think also another observation that's useful, even now as we approach 2018, there's a great many members of the public who are in some way reticent about approaching solicitors directly about a claim because they think it's going to cost them money. That is very off-putting, whereas they will come to a claims management company or an accident management company who are advertising no win no fee, because they realise, A, that the process is not going to cost them money if the case is unsuccessful, and B, at the end of the day, we are in some way more approachable than solicitors. I think that there's still a perception that in many areas of the law that solicitors are somehow slightly otherworldly or intimidating in some way, and that's not the case, obviously, but to many ordinary members of the public there's still a bit of reticence about that. I still have clients who, when they go to see a solicitor, put a shirt and tie on, that's the only time other than weddings and funerals that they do so. Over the years, there's been a feature of clients that are worried about the process and they're reticent to deal directly with a solicitor for those variety of reasons. Mr Cartman. Mr Cartman. I absolutely agree that that's why there's a need for law centres and, indeed, trade unions that help that bridge. I think solicitors could do a lot as well in that you continually hear stories and I know some of them are accurate about people being told or you want to see a solicitor, well, that's £250 an hour and you have to pay in advance, that sort of thing. There is a real need for better interface between the legal profession and people in need. It has improved in some areas and some people make a really big effort, but nonetheless, that's pushed back by, as I said, in some areas of work, I've been in a solicitor's waiting room when a client was asked to put his card in to pay £250 before he saw his solicitor just for one hour interview about complex employment law matter and she was very good advice, but the point is that these sorts of costs are completely unimpossible for 95% of the population and we think that that is the sort of level of costs that obviously makes a sensible calculation and realises that it's not irrecoverable, even though there are ways around these sorts of things. I share the concern about that. Mr Galock. Nothing else. We'll move on just to develop this a little bit, Liam Kerr. Thank you. Just briefly before we go into our substantive question, both the question there and the answers are various things about perceptions and resistance. I think that, Mr Brown, you said that 95% of the population finds something impossible. Is there a danger, or I feel there is a danger, that we draw universal conclusions from anecdotal evidence? Is there any objective evidence for any of the points that either of you have just made? You mean statistical surveys. I'm sure there are, I think that's probably Alan's field rather than mine, but I would say that we have considerable experience about people being hesitant. I take your point, it's anecdotal, but the Pathways to Justice did review those fields, which Alan probably can remember more about it than I. Yes. Pathways to Justice was a very large scale national random sample of people's experience of what we call justiciable problems. We asked them, have you had one of these? We give them a list of 65 possible problems, none of which mentioned the word law, and we said have you had a problem like sick pay, holiday pay, falling down stairs because of some accident or driving accident, and we asked them what they did with it and who they turned to, if anybody, why they did this rather than that, and of course we got evidence that she would not be surprised at about people being put off by the fear of cost. It's not necessarily a realistic fear of cost, sometimes it is a realistic fear of cost, but the litigation is very expensive for an ordinary person. Most lawyers would not advise people to embark on litigation individuals because it is not always predictable what the outcome will be and it can be very expensive, so people are right to have a fear about that. We've got research around the world. The past justice research has been followed in 26 countries with 35 studies around the world, all producing very similar forms of result. In England there's been more developments in past justice showing where justice problems are distributed. We've done a little more in Scotland and the crime and justice survey has some evidence as well. We've no reason to believe that people are not put off by fear of cost and they should be. We are regularly asked about whether or not we have done research on the legal experience for consumers in Scotland. It's a conversation that I've had with the Esther Robertson review and I think it's fair to say that we would very strongly suggest as part of Esther Robertson's review that research should be commissioned to look at the consumer experience and it frankly appears to me to be a bit odd that the starting point of that review has not been to actually do a proper piece of thorough research. It might be something that the committee may take up in the future with Esther Robertson. Thank you. I'm interested in this idea of regulation and I appreciate time short, so I'm going to fire questions and if you wouldn't mind keeping the answers brief, I'd appreciate it. Do the claims management companies who are on the panel today have to meet any regulatory standards? If so, who's the regulating body? Obviously in England and Wales there has been claims management regulation for some time and my own company registered with that even though we didn't necessarily have to. We did find the odd English case and we thought that we would potentially stay well inside the areas of law that that touched on even though the volumes weren't sufficient to meet the requirements. But I figured that at the time that it was morally the right thing to do and that it gave the client some assurance of the professionalism and the integrity of the company that they were dealing with. Other than that, there's no regulation of claims management activities in Scotland at present. Right. Anyone else want to add anything before I move on? Okay. Sheriff Principal Taylor last week said that most claims management companies were, quote, a fiction because they were actually subsidiaries of law firms. Is that your view? Are most claims management companies subsidiaries of law firms or do they often stand alone? If you take it in numerical terms, I don't think that's the case. If you took it in terms of the numbers of claims actually being processed, it may well be the case. There are a couple of higher profile law firms who have their own claims management activities rather than being independent of the process effectively. I may be wrong on that but that's my understanding of it. That's not our view and I know it's not the view of the ABI either. We think that Sheriff Principal Taylor spoke last week and I, as I said before, 16 CMCs have registered with Companies House in the last year alone. In some ways, forgive me, but the key thing is that regardless of whether or not you are attached to a law firm, the regulations should apply in exactly the same way. Again, that's why we strongly support the correspondence that you've been having as a committee with the Scottish Government that the financial guidance regulation bill should be extended to Scotland so that we have not just the same rules on law firms and those not, but the same rules operating in England, Scotland and Wales. That would go well a huge way so I want to explore that. Those 16, so I think what you're telling me is that in the last year 16 claims management companies have set up at Companies House but they do not require to be regulated in any way. That's correct. I think that Mr Docherty, if I'm reflecting on your right, you would say that claims management companies should be regulated in Scotland. Does the panel agree with that view? So the panel uniformly nods for the records. Sir, will Sheriff Principal Taylor? Will Sheriff Principal Taylor also talked about referral fees only being able to be charged by regulated bodies? I'll put this to Mr Haggerty just because we spoke about referral fees earlier. You'd presumably agree with that that referral fees should only be charged by regulated bodies and therefore you should be a regulated body. Yes, I don't have a problem with that at all. So will you become a regulated body? Yes, absolutely. Right. If that's the decision that's made that claims management activities should be regulated in Scotland, we were up there at the front of the queue. But if that decision is not made? Who would we register with then? If there's no regulation then there is nothing to sign up to. That would be my final question which I might put to Mr Dochsey, but obviously feel free to come in. If I engage a claims management company and something goes wrong in whatever way, to whom do I have recourse for my complaints at the moment? Where can I go? I'm the one who's not a lawyer on this panel so I'm actually going to defer to the lawyers on this. What I would say is that from our perspective we recognise that we are unregulated but we were formed by a solicitor and our firm has been formed effectively on the same basis as all law firms are with the same accounting process, professional and empty requirements et cetera. We murdered it. And in fact the only time I think in 30 years we've had two complaints that went to the Law Society and by agreement with the Law Society we agreed to let them dejudicate it and we did. I'm sure that you'd say we were formed to be not guilty of anything accused but we let the Law Society regulate us and they have a regulatory body that resolves conflicts or disputes. I know that from giving evidence to Sheriff Principal Taylor he didn't think that was a suitable way forward but I would say why not. It's legal services by another name so why not let the Law Society regulate claims management activity? Can I just clarify that? I personally know quantum claims pretty well from my previous career and so I know that quantum claims runs itself reputably and well but presumably there are these 16 other firms which we don't know but if I have a problem with them I have no recourse. So your suggestion Mr Clark is that the Law Society should be named as a regulatory body for claims management companies? I see no reason why not. I think that claims management companies should adopt the same professional standards that solicitors do and I'm not afraid of that and I think we should do. So why not and there is a body there already constituted to deal with this. Okay it's a self-regulatory body but nonetheless it is and has been the custodians of legal services in Scotland for many years so why not let them do that? It's not a huge even if it's 16 companies that's not a huge company there are hundreds of solicitors firms so this would be a relatively small part of their remit in my opinion. Just very briefly if the same regulatory environment was to be introduced for claims management companies the Scottish Legal Complaints Commission which set up by statute would have to be brought in well that would be presumably fairly complicated I'm sure it could be done but we need to remember that solicitors are regulated for different purposes by two bodies in the case of the Scottish Legal Complaints Commission that's got a fairly substantial teeth for inadequate professional service. Very briefly but there's a reason why the financial guidance regulation bill is moving from the MOJ for the regulation of claim management companies in England and Wales and I think that we just touched on some of it there as I say we're not opposed to it being done through legal regulation I think we're a bit skeptical about actually how close the relationship is between some of the claims management companies and the law firms they purport to be part of and I think the key principle is regardless of who the regulator is every claim management company that operates should operate to the same standard and if some people are regulated by the law society and some are regulated by the FCA we're not going to dine a ditch over that but it's the principles of regulation that are more important I'd agree with that and just to touch on your initial point at the moment claims management activities is a service industry and it's like any other service industry if you have a means to complain about service in our own case and in other companies that I know of you will make the complaint it will go to a director of the company and it will be dealt with if you still cannot receive that then customers will find a way either of going to a solicitor ironically to take advice on it or the legal services agency or the citizens advice bureau I personally have again been doing this very, very few genuine complaints and we've had a couple of instances where people have even gone to the papers their complaint has been found to be groundless but people do find ways of making their voice heard but I think whether it becomes a law society matter or having as I said registered with the English side of it in the past at the time with the Ministry of Justice doesn't really make a great deal of difference as long as we are all judged by the same standards then I think anybody doing it properly and reputably has nothing to fear Professor Burton I think the short answer to your question is who regulates them at the moment as trading standards of anybody but as far as I'm not going to comment about whether the law society I think there's an argument that regulates claims management companies which you should and I agree with Sarah Principal Taylor on that there's an argument that should be done on UK wide basis because the problems we're having now is people moving up so I don't think you want to have a situation where one law is regulated by one so the regulators and rules another by another the argument for a UK wide regulation sounds to me quite strong and just remember the reason why claims management companies are in a later environment from their perspective that damages based wards weren't allowed under our setup and secondly referral fees is a problem there was a huge fight on Taylor about referral fees England has swapped this places whether they allow referral fees and then they banned them Shared Principal Taylor in the end came to the conclusion that there'd be people there'd be ways round referral fees and that's ultimately why we came to where we have but as you heard earlier the comment about referral fees you have to do something as a solicitor you're going to pay a referral get a referral fee you've got to do something it's not just something a reward for giving something away you've got to actually have prepared done some administrative real work and the client has to fully understand what the referral fees are about and what it's been paid for so referral fees remains an area that was contested within Shared Principal Taylor's report Much of what I was going to ask about regulation has been covered and clearly the panel are in agreement that claims management companies need some form of regulation so would you say that this bill is a missed opportunity to not explicitly name claims management companies I see Mr Docherty nodding I agree with that because the panel will be aware of the Scottish Government's view that they could potentially piggyback on the Westminster regulations but this bill is a missed opportunity it could have been done here Obviously we are not wedded to whether or not it is done through this or through the bill that is currently going through Westminster although the clock is ticking as I say I think it's about to have its third reading in the Lords in the new year so we are not saying it has to be done this way but it would be astonishing if in the new year we found that we didn't have a mechanism in process to regulate Do any other panel members have any view on that? No Of proportion we have mentioned that was it in the last year 16 claims management companies have registered at the company's house when my firm was registered with the MOGA for English related activities in Wales we were one of at that time roughly 2800 registered UK claims management companies and bear in mind there was very few Scottish firms bothered registering with no requirement to do so but just to give you a sense of proportion 16 claims management companies in Scotland is a very, very small number but I do agree that we should be regulated but I don't think it's anything to panic about in England and Wales I say I don't know what the current numbers are I don't receive the don't receive the memos anymore but there was something approaching 2800 registered firms so even if you took it that we were roughly 10% of the population you would expect that to be 280 in Scotland and we're talking about 16 new firms and very few existing firms before that so a sense of perspective should be retained The Scottish Government has argued that claims management companies are covered by the definition of a provider of relevant legal services within this bill but if all of you agree that they should be regulated am I to suppose then that you don't agree with the Scottish Government's view I don't think that that you can say that we provide legal services per se we provide access to legal services we provide assistance in finding the right path to justice but we don't in my own instance we don't actually provide legal services so that catch-all doesn't really apply I don't think Does anyone else want to make any brief comments before I've got a very short final question I want to ask Can I just ask panel then if there is a delay in regulation of claims management companies however long that may be is there a potential for any problems to occur and people that are looking for services and where they go and we spoke earlier about cowboy companies is there a potential for cowboy companies to slip into a gap that's provided before regulation happens I see Mr Docherty's furiously nodding Absolutely I mean this is why both which and the ABI are in absolute the same place on this is that it's absolutely common sense that if England and Wales has a tighter regulatory framework those less scrupulous firms are going to look and say Scotland isn't having that same regulatory framework and let's be honest, if we are waiting for Esther Robertson's review to be published and then have a bill come forward and then be enacted it could be a significant period of time in which that vacuum or regulation occurs so that's absolutely why it either needs to be done through this bill or done through the financial guidance and claims bill that's helpful A couple of the panel members have made reference to the Esther Robertson review of regulation of legal services and it certainly will be touching on aspects of this bill which have been concerning so I think that the committee given that there seems to be a lack of progress with that review the committee will write and ask for an update of exactly where they are perhaps make specific reference to the aspects of that review which are pertinent to this bill Ben Macpherson I'll come back to an issue that was raised at the beginning of this evidence session by Paul Brown and Thomas Docherty and also in which he's written submission and that's with regard to part 4 around group proceedings there was some discussion earlier but I'd like to just probe it further around the alternatives between an opt-in system and an opt-out system Mr Docherty, I know that you've written evidence and earlier argued that you would prefer an opt-out system and I wondered if you could just explain why you see that as more advantageous I think that what we're talking specifically about Mr Macpherson are those types of claims where the detriment to an individual is relatively small but there is a large number of claimants so if we have an opt-in mechanism what, which or indeed a law firm or anyone else would have to do who wished to act on behalf of those claimants, they would have to bear all the upfront cost and resource commitment in reaching out and trying to find everybody who was potentially affected by that class action advertised widely to demonstrate to the courts that they were suitable to represent those people. That is obviously going to be fine where the individual claim is worth frankly a huge amount of redress or compensation but if it's a relatively small amount of money then with the best will in the world which or law firms or anybody else is really going to struggle to be able to justify that. I would also add we've had some interaction with the Scottish Government on this issue and we are puzzled by their argument which is that it's too difficult to come up with a system of opt-out. We have opt-out now under the 2015 Consumer Rights Act I would argue it operates effectively for two reasons because people understand the mechanisms that they have to go through to demonstrate that they are acting on behalf of a class of people and secondly the bar has not been set to a place where we've seen vexatious claims being brought forward we're not going to see I'm sure my age now a kind of Boston legal or LA law style mass class actions we're talking about a relatively small number of cases and as we said in our evidence Mr McPherson we have cases where either we've done opt-in and we frankly the JJB sports football shirts case we could talk about where we actually weren't able to represent everybody affected because it was an opt-in under the old system and we've had the opt-out in the last couple of years where we've only two cases so far at UK level the mastercard case and the disability mobility scooter case both of which are currently not being preceded because the judge involved said you actually haven't met the threshold so in conclusion we think opt-in will not lead will not do anything to help the consumer on the individual small amounts of money and it has to therefore be opt-out and opt-out is a system that does currently work at UK level under the CRA that's interesting from the consumer perspective Mr Brown you touched on earlier on the community perspective in terms of the difference between opt-in and opt-out and that this interests me as a constituency MSP as well as a member of this committee public health act the petition procedure was most definitely opt-in and a group of people are concerned with disrepair in a block of housing and that worked well but I take the point that in something that's more diffuse people leading it are going to have big expenses in a community situation where people know each other and if you look at the social media to look at and so forth things will take off but on a national basis or where there's a significant amount sorry smaller amounts of money involved you can certainly see there will be problems my experience of the New York case which I was a beneficiary it was an opt-out and that worked very well the thing I would be concerned about is that it has taken in an ordinance a amount of time to get to where we are that we are discussing this and it would be pity if the if one went for the most ambitious arrangement and resulted in further delay so I'm in favour entirely of an opt out system but the thing I'm principally in favour of is that there be some form of group proceedings which I'm sure will help some people and I can see people taking up quite major issues is that the actions are going to the court of session is going to have exclusive jurisdiction possibly and that will be an impediment I'm not sure that anybody's ever suggested that it should be I hope I've got that right I don't think anyone's ever suggested that it should be in the share of court as well I can't see any reason why but that court of session jurisdiction will be an impediment having to have Edinburgh agents having to have council or solicit advocates and so forth so that would be another issue that could be looked at but as I said my principal concern is that this system happens so the opt-in system could be of benefit to communities but you are principally in favour of opt-out I can see people taking up group actions almost immediately in a community basis and I suppose communications are cheaper than they were but nonetheless there is an issue so if someone was to say to me I would be in favour of going for the most ambitious arrangement but not if it took five years for the rules to be produced I'm glad you asked that because the next point I wanted to inquire about was around the fact that it's envisaged that the detailed court rules will be developed in consultation with stakeholders are you happy with this approach in terms of the legislation? I suppose ideally the more that's in the legislation the better in principle but as long as there's consultation and I think one possibly needs to encourage as open consultation as possible that's okay it will be fairly complex the other area where there needs to be consultation indeed is asking the Lord President to say which charities get pro bono legal expenses there needs to be consultation about these things I don't know that it's part of the Scottish legal tradition to consult widely about rules but with encouragement I don't see why it shouldn't be done people will think our rules are technical stuff but absolutely there will be substantive and really major issues to do with taking these remedies forward to be discussed in as open as possible so generally satisfied with that approach and satisfied that an opt in would make a difference it would make a difference yes thank you I think it's interesting that the Scottish Government's own I think it was the Prime Minister's memorandum but certainly in their documentation they've admitted that on opt-in all the consumer stakeholders argued for opt-out and they've been ignored so if you're asking me do I have a great deal of confidence in the Scottish Government's promise on stakeholder consultation laterally I'm kind of slightly skeptical we have talked to them, they have said they would be surprised if we weren't asked for our views as part of that working group that's not the same as a cast iron guarantee to do that as I say don't get me wrong we don't oppose opt-in it is better than nothing but it is going to do nothing for your constituents who are in a low individual value but a big case like dairy like JJB sports so my glass is about a third full to be honest on this well thanks very much both of your answers I was really helpful because I think it's important that we focus on this bit of the legislation as well as the other parts of legislation because it's a major step forward in Scots law anyone else want to contribute I would endorse what Mr Doherty says opt-in will be helpful but opt-out has much more impact as the Americans showed it in the pre-Ubo days in America and if my memory serves me right the New York-Yellow-Texid camps were all overcharging across the board so they didn't say let's get everybody who's ever used a New York taxi in the last five years to opt-in to an action what they did is they included them all in and brought the action now they couldn't pay damages to 5 million people so what they did is they forced the New York taxi companies to lower their fees for the next two years it has a much bigger impact for consumers if you go for opt-out okay just could I clarify at the beginning of our evidence session a number of the panels made reference to class actions the bill refers to group proceedings is there a difference no absolutely not and just in finishing the referral issue we take on board as being a little grey relation and can I just again highlight the written submission to Mr Doherty which has some pretty eye-watering figures in terms of 3-5 billion between April 2011 and November 2015 in some of these fees charged by CMCs and the point being made that they we could perhaps have gone directly to consumers so it's another aspect and written evidence we don't necessarily have to take any evidence on it now Professor Patrick sorry I apologise if we're coming on to it one of the key things about group actions is how you fund them and if we're not going to have a chance to say something and then I think how Paul Brown and I would like to say something about them this is only going to work if you can find a way of funding them class actions or group actions are very important things you've got to find a way of funding them now, legal aid might be one way but legal aid is set up for individuals so we've got examples in England and Wales where they have a kind of group action procedure where they had a big litigation by half of the old age pensioners where a drug went wrong or a legend had gone wrong half the people, the thousands of people who were affected were eligible for legal aid and the half weren't and it looked as though for a while the half that were eligible were going to get dealt with because the legal aid would cover them and the half that weren't they were just going to lose out they were going to have to be excluded from the action in the end a millionaire came out of wherever and paid for the fees of the ones who weren't eligible for legal aid that's no way to run your system we have to allow legal aid to operate in this case but it will require the regulations to be changed to allow groups to be assessed in a way okay thank you for that clarification and final question because we have overshot our estimated time the issue about group legal aid has always been a major problem and it isn't just to do with this field it's also environmental matters and the problem about one person representing a group of people and then the legal aid board saying well the group of people's circumstances need to be assessed as well there is a need for thinking outside the box on that particular issue okay and Ben did you have something no I was just interested to hear when Professor Patterson put up his hand on the issues he's now elaborated on so thank you that concludes our line of question can I thank the panel very much for what's been a very worthwhile evidence session I suspend briefly to allow a change over witnesses and a comfort break agenda item 5 is offensive behaviour and football and threatening communications repeal Scotland bill this is our fourth evidence session on the bill and I refer members to paper 5 which is note by the clerk and paper 6 which is a private paper and I again welcome a regular visitor to the committee James Kelly the member in charge of the bill also welcome Andrew Tekel lecturer in law Glasgow Caledonian University Dr Joseph Webster lecturer in Anthropology at Queens University Belfast Dr Stuart Weaton senior lecturer division of Sociology, School of Social and Health Sciences University of Aberty in Dundee and Dr John Kelly lecturer in Sport, Policy, Management and International Development at the University of Edinburgh and can I thank all the witnesses for providing written submissions they really are very helpful when we're preparing to take evidence from you to have these written submissions we move straight to questions and can I start by asking the members if they wish to comment on the general terms of the proposal just very general not going into too much detail but general terms on the proposal and if they can see any merit in the legislation who'd like to kick off don't all rush it once right Mr Clarifor you're essentially asking us to comment on whether or not we support the repeal and if so why so from my perspective there are three compelling reasons why the repeal should go forward the first as I outlined in my submission is that the legislation is currently unworkable on practical terms and having reviewed the earlier oral submissions the transcripts of those submissions I was very interested to see Assistant Chief Constable Higgins response to a question that Liam Kerr asked where the question was essentially what happens when an entire stand breaks out enchanting and the response was what we do is we use CCTV to identify the main protagonists and only arrest those so the point here is that the police are themselves giving evidence suggesting this is a mass phenomena and that arresting only individuals is possible therefore if the legislation were followed to its fullest extent there would need to be mass arrests because it can't happen so the first point I suppose is that practically this legislation is unworkable the second point more briefly is that the legislation is not justified on free speech grounds part 6.5 of the legislation does restrict part 7.1b the legislation essentially says that it makes acts of hatred illegal but it does not restrict antipathy dislike ridicule insult or abuse and the key problem here is that there is insufficient ability to parse those behaviours as evidenced again in earlier oral submissions whereby police are needing to be trained on how to interpret those different behaviours and how to classify any given behaviour as either hateful or perhaps abusive and where do we draw the line there and thirdly and this is a slightly finer point but I think it's absolutely essential is that the act fails to understand the types of behaviours that it is attempting to make illegal not only as a type of performance which the repeal bill outlines on page 10 I think that's a very important point but not only from my perspective based on my five years of ethnographic research on this topic not only is this type of behaviour a performance but crucially the bill as it currently stands does not take into account who the audience of that performance is and as I wrote in my written submission my point is that the types of chanting, the types of banners the types of behaviours that the 2012 act seeks to criminalise fails to understand that those types of behaviours are actually offered by fans of their own side essentially so these behaviours are not primarily an attempt to enrage an opposing side actually what's going on here within these types of behaviours is an attempt to build intra group solidarity, single fan bases communicating things to each other to affirm their own collective belonging rather than an attempt to enrage an opposite fan base the empirical evidence for this is pretty clear the vast majority of this type of behaviour occurs either in single stands where fans are strictly segregated or indeed in pubs and social clubs where the opposing fan base is simply absent so the point stands that this is about single fan bases building collective identity amongst themselves not primarily an attempt to enrage the opposite side who in most cases is simply absent from the situation thank you, other comments on the general position on the bill who wants to go next thank you I would also support the appeal of the bill because I think some of the warnings that were highlighted before the original bill have come to fruition most namely I think is this still in Scotland this misunderstanding what it is we are trying to police a legislate for when the word sectarian rears its head and I will notice the original bill didn't have the word sectarian mentioned in it but nevertheless much of the public commentary on this frames it as an anti sectarian bill and I think there's problems with this in the way that it's being policed and legislated because what it does is in reality it does potentially does the opposite of what the original bill sought to do i.e. the original bill sought to protect ethnic, national and a variety of other identities sexual, gendered disability and so on and what that does in Scotland when certain people from both of the major groups within the sectarian divide in Scotland when those groups exhibit elements of what they believe and I would argue quite correctly in many respects are their national identities diaspora group attachments and identities that these are legitimate identities for diaspora groups and rather than being protected in actual fact as the original bill sought to protect some of these groups are actually being accused of inciting hatred and intolerance and performing offensive behaviour now that's not to suggest that some of these national identities can have intolerance attached to them but that's the key for me we don't seek to police protect gay and home sexual and lesbian communities with this bill or any other bill by stopping people expressing elements of their gay identity and this is a crucial but it's a subtle but it's a crucial distinction when we seek to police and legislate and stop what some people perceive to be negative around sectarianism, sectarian behaviour they confuse sectarianism they confuse intolerance and hatred towards the other based on the belief of the other persons religious or national identity and that's different from policing someone exhibiting elements of a national identity and this is what's been happening in Scotland particularly with some of the fans that are being arrested for two or three different songs that in actual fact don't mention any intolerance or hatred of anybody else's protected characteristics that are actually in the original bill so I think that's a key element for me that and offensiveness itself is open to interpretation in the nature of racism, bigotry, homophobia and the other isms if you like with regard to the other protected groups the nature of these problems is that it's very subtle some of the prejudice is very subtle to such an extent that it's difficult even for the police and the law courts to agree on what actually is and is not offensive so I would support the repeal for those and indeed some other reasons but they are the main reasons because Professor Utica not Professor, you promoted me in that context I'm grateful for it I knew to get your name wrong somehow or other I appreciate the effort thank you for inviting me here again today my attitude towards this legislation is probably unpopular with more or less all of you I think this is a bad piece of legislation I think in parts it reads like magic realism I think the legal criticisms of great parts of this bill are very well founded and I think the response that this Parliament should make to those failures in the bill is to amend it and fix the problems with it rather than straightforwardly repealing it I think it's actually quite straightforward to transform the offensive behaviour at Football Act particularly section 1 of the legislation that's been the focus of the session thus far into a pretty mainstream public order offence so you do have the opportunity to do that if you choose not to then obviously that's your choice but I think there are big problems with it but it is using a sledgehammer for a task for which a scalpel is better devised I would argue to completely strike this act aside particularly in the context of a fact which a number of the witnesses you've heard from have already mentioned which is Lord Bracadale's on-going hate crime review I think in that context it seems to me it would be more sensible to make amendments where the act is bad and to listen to what Lord Bracadale has to say in the future of hate crime in Scotland and then revisit those issues that in a nutshell is more or less my attitude Doctor Whedon Well as you know I oppose this I think it has to be put more generally in terms of the sort of political culture as well in terms of what we're looking at because there's a key element of this I think where you could describe it as part of creating what you could call a safe space society so a society where people learn that if they say certain words they will be shunned possibly sacked or arrested in the case of football fans which is essentially what this is I think this Bill we hide behind this public order issue but essentially this is the criminalisation of words and thoughts and the arresting and imprisoning of people because you don't like their words and I was listening interesting on Radio 4 they were talking about the profumo of a fair in Christine Keillan in the 1950s early 60s and obscenity and the use of the idea of obscenity and it's often quite difficult I find to try and explain what we're looking at with acts like this because they seem to be political because they talk about things like racism and sectarianism but at the same time it also seems to me much more to be a form of etiquette and training of correct behaviour so I'll watch the last discussion and you're constantly talking about behaviour you're the behaviour, the behaviour of fans and we don't usually talk about the behaviour of murderers or rapists because crime is a crime and you talk about their crimes but you're talking about really educating their behaviours and quite a school marnish arguably patronising way we need to make these people a way of how they should behave and it seems to be a real element of this is around etiquette and what is seen as correct civil or civic behaviour if you like and I think it would be useful when you talk about things like racism and sectarianism I think really what we're saying is that we find racism obscene and we find homophobia obscene because it really does smack with me that this is a bit like the 1950s and a type of conformism and conservatism that's being forced on society and I think this bill is probably the best example of it possibly in Europe, possibly in the world in terms of an illustration of a new type of politically correct form of policing of civility in society very brief It's actually just a thanks very much to the panel for the submissions so far I was to pick up on a point that Dr Webster made something that I think is the first time we've heard that angle on things that actually people who are engaging in songs and behaviour are doing so to their own fans, supporters but I think that goes against what a lot of evidence that we heard was people saying that they were actually put off because of that so they may be a fan or supporter of that club and then choose not to go because of their offensive behaviour and I think that we all know personally from the experience from say for example Rangers and Celtic fans who are saying quite clearly and will all have antidote evidence of this, I wouldn't go at Parkhead of Ibrox because of this behaviour and interestingly when they become fathers they say that I'm not going to take my son or daughter to those places either so I wonder how that fits in with your overall analysis that they're not offending MD because they're talking to each other I want to clarify I'm not in any way saying that they're not offending anyone that's not the point I'm making the point I'm making is we need to understand the motive behind the behaviour we are assuming that these types of songs and chanting and displays of banners and other symbols are specifically designed to bring about maximum offence I'm simply saying that if you spend time conducting the type of ethnographic research that I do among people who engage in these types of behaviours you quickly realise that their primary intended motivation is not to offend the other but is to build bonds of sociality between each other your point is well taken that does not then preclude the possibility that other people listening on might indeed find some of those things to be offensive my point is that we are attributing false motivations often and I think this legislation does that to those who engage in this type of behaviour and that's an important point because if we reconfigure our understanding of what motivates this type of behaviour it might well then assist us it might well assist you as a panel to try and figure out what the best way forward is whether it's amending the legislation or bringing in something else my point is that I'm not convinced that any of us fully understand what is going on within the kind of social world of the people who engage in these behaviours and without that understanding without really understanding what's happening we can act to correct it or indeed to politely ignore it whatever course of action is deemed to be most useful my point is that we don't understand the types of behaviours that this legislation is trying to deal with and the reason I commend my supplementary is that I actually thought that your point was well made and it was made in a different way that we hadn't heard before but just to give my understanding of the act before becoming an MSP and since was it to incorporate offensive behaviour for everybody so I wasn't somebody that thought that the offensive behaviour had to be to an opposing group of fans or an opposing group of individuals actually I thought it was mainly to protect folk who were actually of the same support so it was just interesting to hear that angle and to suggest where people may come from it with that's certainly not my understanding of how the people who I've spent time researching among would understand the legislation they see themselves as the victim of this legislation they see themselves as the one being policed against now whether or not that's the case from my perspective as an ethnographer is beside the point the point in terms of how this legislation is interpreted by those who think of themselves as the victim of this type of legislation it then has all sorts of unintended consequences about how they relate to the police how they relate to each other and that's something that I'm sure will go on to talk about later being targeted by this legislation is essential in order to figure out how this legislation will or will not work and also what are the unintended consequences that it's bound to have Doctor Wheaton I mean it's worth bearing in mind that trying to get a ticket for an old firm game you have to bite somebody's hand off for it so people are queuing up to get to these games and the viewing figures when these games are on television are bigger than any other games so there might be some people who are offended by this but a lot of people are desperate to watch these games as I would be if rangers were any good and it would be worth watching but I think it's also worth bearing in mind that you don't have to go to Celtic Rangers type game to find people who have found football offensive I grew up in Newcastle I knew lots of people who wouldn't touch football with a barge pool people who generally saw themselves as more respectable than that but football was seen as uncouth and to some extent it is uncouth and that's what a lot of people love about it because it is offensive in your face sweary, shouty atmosphere and some people don't like that so you don't have to go to an old firm game to find people who are offended by football and you've also had a lot of snobbery about that The Times had a nice article in the 1980s that said football is a slum game watched in slum stadiums by slum people and I think there remains a snobbery about football fans except today it takes a more politically correct form so I think if we're looking at people who are offended by football fans sometimes we can look at prejudice and bigotry towards fans rather than just take this as good on good faith I've allowed quite a lot of latitude that was a supplementary and we have a lot of questions to get through in the limited times so we'll move on Rona Cymru I suppose my initial questions really for Dr Weighton we've heard from the evidence from the women's convention disability groups and equality groups who all say that they feel protected by this legislation and actually fear their appeal of it does their view do their views matter to you? So it was women's disability and what was the other group? disability disability aligns another one I thought was three sorry LGBT I have lots of problems with this actually because I don't think these groups are representative I don't think they're elected they seem to be special interest groups and there seems to be a problem especially in the framework of identity politics that groups like this need to be represented and to represent themselves in a kind of prism of victimhood and it's very rare I suspect you almost never find one of these groups that don't demand there needs to be more awareness or there needs to be more laws or more regulations because there is a tendency within the framework of identity politics to represent yourselves as victims and actually I think this is a very good example of the new type of political correct conformity and prejudice actually by football fans that there is a presumption that football fans are bigots, racists sexists homophobes and don't like disabled people and so on and then we get these groups of tiny numbers of people who come forward and say oh yes I find this a problem and I think that is grotesquely patronising to football fans who in my experience and through social latitude surveys and all the rest of it Britain, Scotland in general is a far more tolerant, far less racist far less homophobic society than it ever has been and yet we get football fans represented in a way essentially saying there is this sort of seething bigotry just waiting to get out here and if we don't have more and more laws there's a problem and I find it interesting that we don't seem to approach this to rugby fans or opera goers or anybody else it seems to be football fans where it's the white work in class mainly going there and I think this is the big prejudice that we should really explore as sociologists is your prejudice that's being represented as football fans essentially as potentially violent bigots I don't identify with anything that you've said there to be quite honest you're essentially disregarding the evidence that we've heard from groups who are not protest groups they're members of community who like to enjoy football like everyone else so equality matters and so I fundamentally disagree with you but my main question is really to the whole panel and it's something that Andrew Tickell mentioned and it's Lord Bracadil's review of hate crime legislation I think Mr Tickell's made his view on that one would the rest of you agree that it would be sensible to wait until that's completed next spring before repealing this if we are to repeal this act? No, no I think that the bill is shown that it's unfit for purpose actually but I do agree to some extent with the women's convention and disability and lesbian and gay and bisexual and trans groups rights, I agree that those rights need to be protected but my question to that would be I wonder what the figures are for the current arrests and convictions and indeed non convictions for offences at football since the bills being, the original bills being in power offences against those groups because I suspect and again, like my colleagues here I've actually done research and I do ethnographic research also with these groups I'm not aware of any case where it's been for those causes but that's not to say that we shouldn't protect those people but if the bill, if there's a bill that's flawed and faulty if we do agree that it is indeed, I know that's not complete agreement but if it is agreed that it's flawed and faulty I don't think it's a good enough reason to hold on to it because there's a fear from some minority groups that they feel that it's protected I think we could come up with something better quite frankly and as I say, I'm not entirely sure that it's people from those groups that have been that people have been arrested for attacking I don't think it's actually about people being arrested it's about people feeling comfortable let everyone else to be able to go and watch and enjoy football but my point is, I don't know why those people from those groups don't feel comfortable to go and watch football as a result of this bill that's the key, they may not feel comfortable going to watch the football as sure and my colleague Fulton has mentioned that some people aren't comfortable going to football for a variety of reasons I'm not sure how this bill and perhaps people can enlighten us here I don't know why this bill is giving this women's group a suppose comfort or encouraging them to feel that they'll be safe and secure at football because I just don't see how that bill's helping with that I'm not sure it's for you to question how they feel it's funny if I can just chip in there you see, if someone came in here and said, I feel really uncomfortable when I sit amongst a group that's got black people we would think they were potentially bigots and you would question their fear but the other groups here I sit amongst a group of football fans and I feel scared and you just take that as good coin and you don't question that actually perhaps their fear isn't legitimised certainly not legitimised by any of the statistics that I've seen in terms of attacks on gay people black people, women at football games zero as far as I can tell that's not true, I think there's two incidents of homophobic arrest as far as I'm away but you take that fear as good coin well actually perhaps we shouldn't just accept fear of other people as legitimate but perhaps that just fits into our own prejudices and then it goes on questioned I think the original question was on the back end wasn't it? Yes, I think we've got the answers for that one, yeah Mr Tekel, do you have a view on the equality aspect of it? I similarly, I think that there's an awful lot of discussion around this bill around messages and as a lawyer this disturbs me because the bill has content that I think we should address as well whether we're for or against getting rid of this legislation as far as I'm concerned it seems very likely that Lord Bracadale will come up with a comprehensive hate crime bill which you'll be invited to consider proposals around that it's a mess as an area of law at present there's no tidy minded lawyer who'd ever look at the current law and not think the solution to this is a bill which possibly comprehensively deals with incitement to hatreds of various kinds as the law stands at the moment south of the border we have incitement to racial hatred recognised we have incitement to LGBT hatred and we have religious hatred covered by English legislation those last two categories don't apply in Scotland I think this Parliament will come under considerable pressure from Lord Bracadale I'm prejudging his report but I'd be very surprised if he doesn't come out with a proposal for extensive hate crime legislation and I would be quite surprised frankly if most of the people in this Parliament who are going to vote to abolish the football act don't back broadly what Lord Bracadale suggests and I find that logically a little difficult to reconcile as things stand we'll see maybe the judge will surprise us and come up with different perspectives on that Mary a brief supplementary that's probably going to be the last supplementary given we're way behind it Okay thank you Cymru and I'll try and be as brief as possible because I do think that we really have to sort out some of the terminology and the words that are being used in the meeting so far today so do take great exception to some of the assertions made by by Dr Weighton now I don't think you'll find anybody around this table that would say that all football fans are bigots homophobic and racist there are pockets and elements of that that exist I mean for example we had the incident on a train a couple of weeks ago where fans were singing homophobic songs and and that kind of thing so it does happen but to actually dismiss the other evidence that we've heard and dismissing this women's group I think as Dr Kelly said and talking about how grossly patronising it is, I mean I think it's grossly patronising to refer to the evidence that these groups have given in the context that you have and I do think that when we've been discussing this bill it seems like the evidence that these groups have given has been analysed in a way that we haven't done in other bills and completely picked apart and we're made to think that because they don't represent 100 per cent of people then their opinion doesn't matter now when we look at other legislation such as the domestic abuse bill we have organisations such as women's aid children first who represent the views of the people that they come into contact with of course that's not going to be 100 per cent of people but that doesn't mean that their views don't matter and that is the basis on which this legislation is determined and I do think as I say it's grossly unfair to say that the organisations we've heard evidence from that their concerns don't matter at all because my question was going to be that the fact that if this bill is repealed what message all these groups are concerned at the message that that sends out about what is acceptable and what kind of behaviour we could potentially be condoning and to get your response to that because like I say I do take great exception to some of the assertions that have been made so far this morning Doctor Wade as a criminologist you always try and look at things about are fears real okay so in the 1970s there was a panic about black muggers and sociologists looked at that and said is this real or is this prejudice I think we should do the same thing when other groups say that they have fears about other groups in society but we don't do that we don't do that because there is a certain etiquette and political framework where these groups are seen as they are on the side of good and they are on the side of bad so I do think there is a genuine prejudice there so for example the idea of old firm domestic violence became an established term and then I worked out the number of cases this referred to and there were more newspaper articles the number of cases that were being referred to I then tried to calculate how many football fans in Strath Cly football fans in general were involved in domestic violence instance that led to an arrest I calculated that this was 0.0003% of fans which meant that 99.9997% of fans had nothing to do with domestic violence that led to arrest on the days when we started to talk about domestic violence now if these statistics were used about any other group in society where you have terms being bandied around and groups of fans being associated with things like domestic violence it would be seen as a moral panic Can I respond directly to the question of what message does this send if the legislation is repealed I think that's an excellent question I think it's a really important question for the panel to consider my understanding is that the message it would send would be that this legislation is not fit for purpose and the wider point here is that just because the faulty legislation as I think the panel in general agree the legislation has very significant problems just because the piece of legislation that is faulty is repealed does not mean that you are necessarily affirming the validity of the types of behaviours that the bill is trying to restrict and criminalise the way in which this is perceived is something that is essentially all of our collective responsibility to deal with to say that this legislation should not be repealed because it might send a problematic message to potential offenders is not a good enough reason not to repeal it I'm not saying that that message might not be taken into account I think it should be taken into account we do need to think about what will happen if and when this piece of legislation is repealed but to say that the legislation should not be repealed largely because it might potentially send a negative message to some potential offenders is a dangerous line to go down I think we need to grasp the nettle and either repeal or dramatically alter the legislation and simultaneously have a plan to deal with what type of message public society should be receiving as a result of those actions right we really have to move on now George Adam perspective of the reason why we ended up with the bill itself you know in 2011 we had the so-called game of shame where effectively that has been used by a lot of the supporters groups as a reason it made the legislation act but we all know there was an on-going it was building up to that with 3 or 4 games before that where things were getting out of control as well because in that game alone there was 34 arrests at the game of which 16 were sectarian and 229 in the Strathclyde area so and one of the other things is during the old firm Coptai there is actually the driving up domestic abuse rates of 43% according to the police in 2000 during that game there was 210 reported incidents as opposed to a normal 146 on the same day normally so is this not example with all that and the fact we have the Jewish community and Stonewall and Scottish Disabled Supporters Association saying that they feel protected by this bill is that not the case that you know when you look at it that way the government was probably right to legislate on this we'd like to start off with that one I'm happy to address that I think that often the principles behind this bill are some people would say they support them I think it's undeniable that this bill was extremely badly handled by the Scottish Government they erased it through Parliament with limited scrutiny they added additional provisions late on which actually are frequently the most problematic provisions of this legislation and they specifically highlighted in section 5 those areas that are particularly problematic they give the government the power to knock out the most problematic sections here I suppose the question is is it important that we have the criminalisation of offence as opposed to the kind of criminalisation that was undertaken under classic breach of the peace provisions I'm not sure I'm persuaded along with the number of other people that we need to criminalise offence for starters but people will disagree about that to some extent I'm not sure that this legislation for the reasons which a number of panellists have given have succeeded and perhaps it's a suggestion that criminal law isn't perhaps the best tool to try and change society in this kind of way so as far as I'm concerned I'm not sure this is an unvarnished success from the Scottish Government's perspective it's turned a very difficult area of talking about sectarianism in Scotland into an ever more hot house environment and heaven knows particularly hot issue for starters so I'm not sure looking across the piece that this has been a great triumph because despite all of my reservations we can fix this bill we can fix this act of Parliament it's easy for the Scottish Government to do so if it chooses to do so thus far there's no evidence the Scottish Government wants to amend this bill and I find that a somewhat disappointing fact Other views? Dr Kelly? Coming back to George Adam's point with regard to the so-called shame game there were other issues of course at that time with Neil Lennon and other sectarian related issues so it wasn't as colleagues probably know it wasn't simply that game but an answer to your question about what can we do about that sectarianism make a bill that deals with sectarianism don't make a bill that deals with offensiveness which is open to question and in actual fact doesn't specify for any of us around this table or the police or the courts actually truly specify what this country thinks is sectarian and what is sectarianism again I keep coming back to this because this is crucial it should not be illegal for people to have a sectarian identity that should not be illegal and there's confusion and misunderstanding about that in this country it's when one's identity whether it's sectarian or not is an identity it's when that identity is exhibiting or hated towards someone else's identity based on religion or any of the other protected characteristics and I certainly support as I said earlier the protection of those other characteristics in a properly worded bill and I'm also Rona I'm also very conscious and in fact Mary I'm very conscious that we're sitting here as a bunch of white males pontificating on this so I certainly don't mean to cause any offence to the women's groups on record of supporting the protection of women's rights gay rights all sorts of disability rights and minority rights at football I just don't think that this bill does that Okay, just my final question is just the fact that Doctor Wighton you actually say in your own evidence here you've got a part where you say people should be able to express their hatred of whoever they like as part of your own evidence here and I've also been part of a contributor book called Football Hooliganism, Fan Behaviour and Crime which you've said in many respects being offensive as football you know the simple question to that is are you saying that anybody can say whatever they like whenever they like no matter how offensive someone finds that? I mean I know it's I'm a bit of an extremist like this but I don't think you should call the police I know it's crazy in a liberal free society that you know but there you have it if someone sings a song I don't think you should call the police and put them in prison for that I mean unlike most Doctor Wighton can I just Unlike most of you I was actively involved in anti-racist politics the first newspaper I sold was in defence of gay rights protecting people in fact was it Ian McGuire Ian McGuire that extremist who said the Scottish Government should realise that the right to offend is the most basic right in a free society so yes it's true in a liberal free society different ideas and views should be expressed and if you disagree with them you should challenge those views with politics and with campaigns with articles when was the last time you were on the street handing out a leaflet perhaps you should do that to ordinary people so yes I don't think you should put people in prison for the words that they speak shock Can I just say Doctor Wighton but one of the things that as a football fan I've actually I remember a time back in the 80s when someone was actually playing in European football and Ruth Hullett came along to play in the final and he said it was the worst racism he'd ever experienced in his whole career he's still on record mentions that day in Love Street as one of the worst that was wrong then and I knew as a young man just in primary school at that point it was wrong to do that then is it not the case that there has to be some form of where people have to control themselves and they can't just say whatever they like at any point there's a problem in football now I think it was 2001 the statistics from England were there were 17 cases out of 13 million people which amounted to again something like 0.003 and you seem to be suggesting that if we didn't have the police hanging around people's necks they'd all be racist animals Now what we're concerned is what you've said Mr Wighton people should be able to express their hatred of whoever they like I find that quite offensive myself That is the nature of free societies that people express things but the way you would deal with that is not by putting people in prison for the views that they hold or the words that they say that is how a free society is meant to operate If the clubs want to do something about it that's different than their private institutions and they could do something else but the state and the police should not be involved in the policing of language and thought That is the most basic aspect of a free society which unfortunately we have completely lost it seems We have to move on now I have no time for supplementaries Liam Liam Kerr I'll be brief. I was fascinated by the analysis of the underlying legislation that the panel submitted and the assumptions that I think are inherent in what we've done Just drawing that to a practical level though If we accept this panel has heard a deal of evidence that suggests that there has been a reduction of the singing of songs in the stands Do any of the panel take a view on whether the underlying values the underlying societal beliefs have changed and if so is that a result of this legislation and in any event does that imply that if you take the legislation away the underlying belief the underlying mischief is still there waiting to spring back almost Having done extensive ethnographic work on exactly this question I would dispute that there has been a dramatic decline in the singing of certain songs I think what fans have done has changed their behaviour they have held their hands in front of their mouths while they sing certain songs in order to prevent CCTV from capturing them doing so they have, as we're all aware, replaced certain songs and chants with other words in order to try and skirt the law so my sense is that one of the major problems with this legislation is exactly the type of phenomena that you're putting your finger on here is what is the paveral change that this bill brings about does this bring about behavioural change yes it does but what it doesn't do is it doesn't change or discourage the expressions of the types of behaviour that the act seeks to do away with it doesn't make people less offensive it makes them engage in behaviour that the act regards as offensive in a different way it redirects those types of behaviours rather than prevents them from happening and I think that is a feature of the legislation in the way that it's been drafted but also more problematically or maybe not more problematically more fundamentally what we're coming up against here is something that all of us have already discussed that maybe legislation is not the best way to deal with the types of behaviour that the act is trying to prohibit laws might be less effective in early years education which is I would imagine a fairly uncontroversial suggestion has the singing decreased? No it's been redirected is the law working? No we need to replace it I would say with other methods of behavioural change probably the most sensible being early years education I think it has had an impact it's difficult to quantify because it comes with a much wider climate so for example my student association passed a no platform bill a few years ago and the opening sentence said this union notes that racism is illegal so the people that were drafting that bill that racism was illegal in case anyone's confused racism isn't illegal you are allowed to be a racist you're just not allowed to speak in relation to that and my concern in relation to this is that I think you create a climate where people are frightened to talk about certain things or a little bit nervous I think there's also a problem with this terms like protected characteristics it reminds me of a zoo where we've got these different groups walled off against each other because it seems to be helping to create a more fragmented slightly more distant society and I remember that Scotland used to have one Scotland many cultures and then they got rid of the many cultures at a time when there was concerns about whether multiculturalism was actually creating separate communities especially amongst the Muslim community and the many cultures a bit disappeared because there was a nervousness about that so I do think that this and other bills like this are having an impact on society they are having a sort of etiquette sensorious impact in terms of what can be discussed in things like anti-racism unfortunately into a mantra where you just say no to racism but you never discuss it you never actually have arguments about it you never actually are in a position where people will actually feel free to have a proper debate and actually develop proper anti-racist ideas and understandings Okay, Doctor Ken Thank you, I mean that last point certainly Stuart, I agree with that completely I would take an issue certainly a little bit with the assertion that there's been less I suppose problematic songs at football games I would argue certainly as someone who has been to quite a number of Celtic games over the last few years both among personal life and as an ethnographic observer I would argue and I think most Celtic fans certainly would argue that since this bill was coming in there's been actually more what the Scottish Government might define as problematic songs there's been more songs song at Celtic Park and indeed away from Celtic Park where Celtic had been playing that are of an Irish nationalist and an Irish republican nature then was previously the case leading up to the bill and in actual fact it was the case for quite a number of years that at Celtic Park the some of the old Irish national songs that were sung right through the 60s, 70s and 80s songs like Boys of the Old Brigade for example that mention the IRA and indeed are about various versions of the IRA or Irish nationalists or republicans if you prefer and those songs were actually disappearing from the mainstream Celtic support and this bill came in and they've actually become more popular in many ways almost as an act of defiance in some respects that the state to some extent an agreement with Stuart certainly some of the fans that sing it we shouldn't be told by the state they would say perhaps that what we should sing, what the state shouldn't be controlling people's songs and I just to think to some extent probably to possibly the same with the Rangers I'm not so sure if it applies to Rangers as much or indeed any other clubs at this example but I suspect that part of the I suppose the encouragement to sing these songs or the motivation to sing these songs after the bill was to show that they thought the bill was unfair and they thought the bill in actual fact was prohibiting them from expressing elements of their national identity and national identity people in this room might not understand or sympathise with but a national identity that they identify with and that's one of the key points that we completely fail to understand in grasp across the official structures in this country and I think that requires more dialogue with the fans, people that go to the games as I say, I can't speak for colleagues at the table, I don't know but I'm not only a researcher but I know about football, I'm a football fan and I think there's too many people that actually try and implement these rules and these laws and don't actually understand football culture We're less than halfway through our line of questioning so I can ask both the questioners and the panel's responses to be as succinct as possible, please. I have committee third evidence from the Crown Office and the Procurator Fiscal Society that repeal would leave a gap in the law. Do you agree? I think that the talk of a gap in the law rather begs the question frequently. For example, it's illegal in this country for a judge to sentence somebody to death if I'm in favour of the death penalty that's a gap in the law. If you're me and a squishy liberal person you think it's a feature, not a bug in this context. Often when we talk about gaps in the law we're begging the question, we're presupposing that the underlying behaviour should be criminalised. If I try and set aside that suspicion of the question, I suppose in terms of section 6 of the act it is very difficult to argue whatever you think of its merits that there is a specific criminalisation in Scotland of incitement to religious hatred. That provision that applies in England doesn't apply in Scotland in part because it was resisted by Scottish MPs when Tony Blair's Government brought it in several years ago. I think that it would create a gap in the law. It may well be possible that individuals could be prosecuted under other existing offences. That's one of the elements of this scrutiny of this proposal to repeal the bill, which I find a wee bit baffling on some level. Many critics of this bill, several of them on this panel argue that it's illiberal, that it interferes with free expression, but the policing around football and policing of singing songs around football is not new. It wasn't invented by this Parliament in 2012. Several breaches of the peace cases before this act came into force criminalised people singing because sometimes words read in their context are different than words in other contexts. If I go back to Glasgow this afternoon enter a Celtic pub and start singing the famine song, then that is obviously my free expression on one level, but it could lead to public disorder and could be analysed under the rubric of breach of the peace. I find the idea that we can comprehensively rather glibly say we shouldn't criminalise speech doesn't really relate to the law as we have had it before the Offensive Behaviour at Football Act and presents a rather exaggerated image of its illiberalism. There are plenty examples from the annals of our courts where just words have ended up in court. Mr Tickell, I wondered if you could elaborate on your specific concerns in relation to the drafting of section 1 and your proposals for amendment. I think that there are three particular problems with it. First, we have the prohibited behaviours, the list of prohibited behaviours, there's five broad categories, there's expressing hatred against groups or individuals on the basis of protected characteristics, there's threatening behaviour, so behaviour that's threatening can be covered, behaviour motivated by hatred, so that's behaviour which is not in itself an expression of hatefulness or is threatening, that's covered, and we have offensiveness. Personally, I don't think that offensiveness is an appropriate threshold for criminalisation. That's what's distinctive of this act from the earlier breach of the peace provisions, which only criminalises behaviour which would cause the reasonable person to suffer fear and alarm in the context that it takes place. I think that you should knock out section 1. Secondly, the definition of public order in the act is absolutely baffling in the sense that when the justice minister, the junior justice minister came to the predecessor of this committee introducing this public order restriction, she represented it as a safeguard for individuals who might find themselves accused of committing a criminal offence. But two things are excluded from the sheriff's deliberations about whether in the context that this criminal act took place, that public order, public disorder would arise. So we can discount the fact that public disorder doesn't happen because of the police being there, so if the police are there and public disorder doesn't result, then the accused can't claim any benefit from that. But secondly, if there's no one there to be incited, if we're in the kind of scenarios you've been talking about where I'm not marching into a Celtic pub to sing the famine song, but I'm in a certain kind of fraternal Protestant brother who sees this as a way of articulating a shared identity, in that kind of context the sheriff is invited to invent fictional, absent incites. So often proponents of this legislation would say it's offensive in the context of football matches and therefore it should be criminalised. That's often an argument you will hear. Whether or not you agree with that argument, the act specifically instructs judges to completely ignore the actual context in which the behaviour takes place. I think that's perverse. We can fix that too by knocking out that section which invites the court to invent fictional incites. The Scottish Government, even when they brought that in, recognised that that was a fairly indefensible or not long-term defensible section of this legislation because it gave ministers the power to knock it out using an order as opposed to primary legislation. So those are just a few of the examples of areas of problem and areas where there can be very straightforward fixes, leaving us only criminalising hateful behaviour which I know some members of the panel won't agree with. Threatening behaviour in this context which is likely to give rise to public disorder in the context that it is actually taking place in. I think that's a mainstream public order piece of legislation which is very much compatible with most UK approaches to dealing with this issue. If you've got a contribution, do you want to reply to that? Just very briefly before Dr Joseph Webster comes in and I'll have another question for Mr Kerl. In terms of the context at that point, there's been some argument from witnesses that football fans are unfairly targeted because of the context in which section one is targeted. In your view, is that justified and would an expansion of the context help to alleviate some of that sense of being singled out? It was, I think, a point that your colleague Fulton and McGregor put to the fans against criminalisation. So their argument is, this is discriminatory, it will only target football fans. One way to make it not discriminatory is to make it apply to everyone and they were still against the legislation because of that offensiveness provision in there. I think when Lord Bracadale comes to give his proposals about hate crime, you're going to see not sectoral specific offences but a comprehensive piece of legislation around this, like the common law breach of the peace. I think the argument from discrimination against football fans is essentially a red herring because if you would be unhappy about this extending to cricket matches then your argument isn't principally about discrimination. It's about the act setting a tool at lower hurdle for criminalisation. That would be my analysis. Briefly, Dr Wood. It's a bit of a comeback on that to say that if we remove the pieces or the aspects of the legislation that is being suggested here my sense is that we lose everything that's distinctive about the act and therefore we have no need of the act in itself. Existing legislation, particularly breach of the peace, which we've already discussed would seem to stand. If you take away particularly the element of offensiveness which is the one thing that is genuinely unique about this act then you take out the one thing that makes it what it is and therefore presumably you no longer need the legislation in general. Ben, we really don't have very much time left. Thank you, convener. You spoke Andrew Tekel about the fact that in your view Bracadale will bring forward an extensive set of hate crime legislation and that leads into what Dr Swifter said there as well. Is your view that revision would take place as part of that new piece of legislation and that it would almost be part of the consolidation and that would be a more advantageous way of using what's good in the act there but thinking carefully about it. Andrew Tekel. No, I don't think I would do that. I think it's partly because of the critical voices inside this Parliament in relation to this bill. It's not this act, sorry, the 2012 act. It needs fixed and it needs fixed now and the power in section 5 is given to the Scottish ministers by order to fix all the things that I've described. They could lay that before you tomorrow if they wanted within the procedures of the Parliament. I think that would be very sensible. It would deal with the substantive criticism of this legislation and then an amended bill could go forward and be taken account of in the context of the Bracadale report. After all, that would be a complicated area of law. I dare say that you'll want to hold scrutiny and hearings and a range of different folk who will want to argue about what's in there. That may be some way down the line in terms of that. I think that there's a strong argument to act now not least because it would be good if the Scottish Government showed some recognition that they got this one wrong and many, many people who are otherwise sympathetic to them recognised that in several elements of this legislation they rushed through it too hastily and made mistakes as we all do and rushed through those things much too hastily. That would be my analysis. Can I ask you about Dr Webster's comment if you remove all these things there since the bill has gone anyway? There are two different answers or two different ways you could look at that. Firstly, the message-related concerns which a number of the folk that you've talked to would be alleviated to some extent. There would still be a recognition of offending around football. Secondly, if you're a statistician, you might like the data in the sense that it's useful because, as I say, you don't have 20,000 people singing songs about up-to-your-knees and fenion blood at cricket matches. There is a particular set of problems around football in Scotland and whatever you think about this legislation one can't be blind to that fundamental fact. I'm preparing to your written submission. Can you elaborate on the way that you said that what are your key concerns in regard to section 6 offences? In terms of how they do not provide suitable provision for... Briefly, my point is very simple. My understanding is that section 5 claims that it does not restrict the behaviours outlined in section 7.1b expressions of antipathy, dislike, ridicule, insult and abuse. My sense is that the legislation is not sufficiently finely grained to allow particularly police officers on the ground to distinguish what is hatred and what is antipathy, dislike, ridicule, insult or abuse. The inability to figure out which behaviour belongs in which category leads to policemen being put in the position of needing to interpret all sorts of areas of grey which, in conversation with police, my research suggests that they themselves are being put in that interpretative position and also this fuels resentment and anger among grassroots fans who feel that expressions of antipathy, dislike, ridicule insult and abuse are indeed being criminalised even though the legislation says that they are not. I just ask a quick question. Do you believe that's unfair then on the police to have to do that? To interpret these areas of grey? The areas of grey? I think that police interpret things all the time and generally do a very good job at doing so. The problem here is quite acute in so far as there are a number of different categories mentioned in 7.1b which require far more interpretation than the police would normally be expected to apply on other pieces of legislation. So I'm not against the police interpreting things because I think they're professionals and they do a good job at interpretation in general. But the level of interpretation that we're expecting here is beyond that and, as a result, causes problematic situations within their own job and also how that job is perceived by those who themselves feel they're being targeted by the bill. Thank you. Can I ask... Is it... ...related to the other panel members in their views of section 6? Yes, please. The other panel members, the three of you, what's your views about appealing section 6 and the problems you may see in that? Is it direct provision in Scots law that incitement to religious hatred should be a distinct offence? That's merely a statement of fact. Whether or not you think it should be is, again, an open question in this context. I should stress, though, that this is not principally about football so section 6 is not about fans. If fans are particularly preoccupied by section 6 then they're not reading the act closely. That's the threatening communications element of this legislation so section 6 extends much more widely and if you abolish it I would be stunned if you're not reintroducing something quite similar in a few months or a few years' time down the line. I think that raises fundamental questions of principle. Why repeal it if it's something that you're very likely to want to back in future? No screen. More generally on the communication side of things I think it's very problematic. Not just... I don't think this law is in and of itself restricting freedom of speech. I think there are many, many, many laws and it's become an accepted cultural framework. In terms of threatening communication I find a real problem with that in particular that you can get arrested now for being threatening even though there's no evidence of any reality to the threat so again we are arresting people for saying stupid things often when they are drunk often then called hateful even though you talk to these people they usually embarrassed fearless, stupid and all the rest of it so I think there is a real problem with again the criminalisation of words and the people putting people in prison for saying stupid things where there is absolutely no evidence at all that there is any intent to act upon those stupid words so these are essentially thought and word crimes that we are talking about. I would certainly agree with my two colleagues at the end in pretty much totality that if one was to revise the bill then that may alleviate some of the fears that some of the minority groups have and in actual fact and again from the very beginning I've highlighted the following point that's very positive about the original bill the point being that it seeks to protect ethnic and national identities but in reality the way the bill is being policed that's not what's been happening on force, it's not the opposite it's been the case so would there be a gap potentially not lawyers are better and legal experts are better positioned to judge that than myself but my gut would be there might be a gap in the sense of protecting people's rights to express their national and ethnic identities and that's the key the implementation of that is the key because the current bill claims to do that and I would argue it actually does the opposite in some of the workings and implementations of the bill Mary just to round off the committee's questions before I bring in James Kenny Thank you, convener and I will be brief currently sectarianism is not defined in Scots law do the panel think it would be helpful if it's possible to do it to define it and would definition of it help in educating people to understand what it means and help to if it needs to be eradicated help to eradicator Doctor Webster Very briefly I think that's an excellent question my sense is that the Scottish Government's advisory group on sectarianism has already produced numerous reports two of which include pretty finely grained definitions of what sectarianism is I think it would be helpful to define sectarianism I think it's already been done and it's been done by academics who the Scottish Parliament have themselves asked to produce that type of definition I'm thinking here of the work of Doctor Michael Rosie and others who have been involved in the advisory group on sectarianism that definition exists it's a good definition and I think it should be taken seriously both in the legislative process and also more widely in social and political debate That's helpful, thank you Does anyone else want to comment? Well I think if you look at research that's been done by Professor John Flint on this or Tom Devine and other people the question that they raise is not about the rise of sectarianism and the problem of sectarianism but the obsession with it and they make the observation that as far as most people can see or would argue the problem of sectarianism certainly in terms of religion or its relation to troubles in Northern Ireland is a fraction of what it was in fact Graham Spears wrote an article in 1997 that's 20 years ago almost a generation about people in wine bars being obsessed with sectarianism I think he may have been in too many wine bars in the last two decades but never mind Tom Devine for example said for most of the last century when the disease of sectarianism was rampant and noxious it was little discussed or debated in public like an unpleasant smell at a middle class dinner party everyone knew it existed there but nobody wanted to talk about it today with the old monster in its death throes sectarianism has spawned a new growth sector a well financed anti-sectarian industry a delicious irony indeed and I think time and money would be better spent trying to work out why politicians talk about sectarianism so much at a time when Tom Devine who historically saw sectarianism as a problem says that it is in its death throes okay thank you Dr Kelly did you want to? Yes, again from the very early days of this bill and indeed before it as an academic and speaker in any kind of forum discussing these things I've always said let's define it because I don't think we have a clear definition in this country although I take my colleague's point that the working group certainly provided what I thought was a fairly reasonable definition and I think that needs to be a starting point actually if you are going to legislate for something that we generally call sectarian behaviour or sectarian identities I think that we do need to define it and agree on what it is if indeed that's at all possible and the police are very good at interpreting as colleagues have said earlier but I don't think that with this bill we haven't given them a framework around which to even work from in terms of their interpretation and it's led to all sorts of issues and I have complete sympathy for the courts as well as the football fans that have been arrested How important is education then to change behaviour and it could be a generational thing but how important is education? I mean my understanding is that we have a debate maybe within the panel about whether or not we want to go down the route of education whether we want to aim for behaviour change that's a separate debate but if we do want to aim for behaviour change the crucial way is to engage in early years education you know whether or not we value the aim of behaviour change is a different debate as I say but if we want to encourage people to do certain things and not do others we probably need to start telling them that when they're about age 3 or 4 not when they're aged 18, 19, 20 by then in terms of behavioural science and perspectives it's simply too light Okay, thank you James Kelly Okay, thank you convener I've got a question for each panelist Start with Dr Weighton You've criticised the authoritarian nature of the act and your submission and also your evidence this morning Just wonder about your view as of the policing of the act the way it's been policed Well it's an interesting one because I was invited into Ibrox to look at the policing because the police are aware of my interest in this and then I was invited into Hamden to watch the old firm semi-final which was a bit more interesting where 20,000 people did start singing Billy Boys although they've been trying to hold on to their tongues clearly for as long as possible and then it just exploded didn't seem to create a public order issue perhaps worth noting but as far as I can tell from the fans responses in terms of contact that I've received over the years there is a sense of the escalation of surveillance I suppose I don't think it necessarily needs to arrest but an escalation of surveillance and a sense that they are being policed permanently and have to watch their words which some people would say is a good thing but I think that is a sentiment amongst fans there's also especially amongst rangers fans a growing resentment I think this small piece of research I did about what they see as Celtic being grasses in other words this is not in relation to this bill particularly but in general but a sense that Celtic fans tell the police and I think there's a new tension and potentially a tension will develop amongst other fans where there is a feeling that different finding groups essentially tell tales on one another so it's not just about the policing directly but about a sense that other fans are policing each other in a sense of resentment that's emerged around that Doctor Webster you touched on this briefly and answered to one of the questions but in terms of your research what does it tell you about the impact that the act has had in the relationship between fans and police I think it's a really important question my sense is that it's done two things one it has changed the way in which certain behaviours that are deemed offensive by the act are enacted in some cases in quite ingenious ways we might not like the behaviours but for instance the idea of holding your hand in front of your mouth whilst you chant something well aware that you are being recorded by CCTV in that speech act indicates that we are seeing behaviour change but we're not seeing a decrease in offensive behaviour we're simply seeing a different way that that behaviour is being enacted my second observation is to simply say that both sides of the sectarian divide if you want to use Celtic and Rangers as the kind of typical case here but my sense is that it's not typical at all my sense is that what's happening is both opposing fan bases feel themselves to be uniquely victimised by the police Rangers fans think that they are the ones being picked on Celtic fans think that they are the ones being picked on and as a result what we have is an environment where a fan base finds themselves not only at odds with each other but at odds with the police so in very simple terms my sense is that this has not only made policing sectarianism more difficult because fans have got wise to how to circumvent the law but also that it's led to a deterioration in a relationship between fan bases and also between fan bases and the police OK, Mr Tickel just interested in your view in terms of how these cases are handled within the judicial system we've had submissions from a couple of lawyers who have said that normally as cases progress in general in the system level cases there can be plea bargaining between lawyers and prosecutors cases may be withdrawing if there's not enough evidence by the prosecutors but in relation to cases that have been brought forward for this act nearly all the cases have brought to trial and the prosecutors so we're told by these lawyers don't have any capacity to negotiate or to plea bargaining I wonder if you've got a view on that It certainly is likely to be the case given the high priority that the Crown Office who got very involved in bringing this bill to fruition took towards the Football Act that it was an important tool as they presented to the Justice Committee of the time to deal with it and as we've seen with the domestic abuse interventions from the police with the Crown Office that if there is a policy coming out of Chambers Street which is then enforced by Procurator Fiscals across the entire country then their liberty to deal with cases in different ways will be restricted on that I think that that seems to be a clear example of course one point that many critics of the bill would make as the conviction rates despite all these cases going to court are still not great still have charges under the Football Act the conviction rate being slightly lower than the general average of about 87% maybe that's because cases are ending up in court which might not otherwise have done so if prosecutors had more discretion about particular cases before them OK, and final question to Dr Kelly when the original legislation was brought forward in 2011 you made the reasonable point that the law needs to be explicit and unequivocal and you were anxious about the proposed legislation back then and it wasn't clear what was allowed and what is prohibited having seen the act passed and then implemented over five years how do you feel those issues have played out? I told you so they've come what was predicted by not just myself but what was predicted by a number of people who understand Scottish football when our football fans and researchers within football and possibly some of all of many of us suggested that this was likely to happen that the police and again I come back to the police that they were being asked to do an impossible task an impossible job and again I agree with my colleagues I think what's happened is we've had more tolerance and decency if you like even though I don't think a fence should be illegal but even lack of a fence I think it's gone the opposite there's been mistrust between fans and indeed between the police and fans a certain feeling of hyper surveillance and there's been a feeling that possibly even in some cases wrongly but wrongly feeling that some behaviors that aren't being targeted are being targeted so there's just confusion pretty much around it and again as far as I'm concerned a lot of it comes back down to the very fact that this what was being policed wasn't well worded wasn't purely defined clearly defined rather and that might come back to some of the points if we are seeking to criminalise sectarianism and tolerance against someone else's sectarian identity then we need to be absolutely clear about defining that and defining that for the police defining that for schools defining that for discussions and indeed if we're going to have education discussions about it not only trying to train children to behave in a particular way but to actually question why people are offended by these identities in the first place I think that that's crucial to any education programme on these issues so I'm going to wee bit back to a point previously but I'm not surprised I'm just in final summary of that I'm not surprised what's happened has happened and again I think most commentators would agree that it's largely not exclusively but largely due to poor wording of the bill and a lack of agreement about what is offensive and what is a human right to express an identity Can I say one very brief point on this though I'm not sure that opponents of the bill who want to roll it back to breach of the peace are entirely logically coherent here the definition of breach of the peace in Scots law is behaviour severe enough to allow modern people and threaten serious disturbance in the community that's in the case of Smith against Donnelly that's not exactly a comprehensive set of detailed legal rules that the ordinary punter wherever they are in Scotland can understand so I suppose what I find slightly confusing about the position you've articulated as promoting this repeal bill is that you're criticising the offensive behaviour bill for being vague but saying breach of the peace is fine despite the fact that breach of the peace is notoriously vague and has been used to prosecute everything from playing marbles on a Sunday on the island of Lewis to walking the streets of Aberdeen wearing women's clothing so I think the critics of this legislation do have to have some account of how the common law is somehow substantially better because even though I think there's tremendous things wrong with this offensive behaviour at Football Act the common law is notoriously vague unclear and doesn't specify to football fans what is and is not criminal I mean if this bill passes and you repeal the Football Act Last word doctor I really want to come back on that just briefly my sense is that what we have within the 2012 act is a unique combination of problematic specificity and problematic vagueness so we have the worst of both worlds and what the breach of the peace offers I think is not perfect but sufficiently general form of legislation to deal with these behaviours reality or perception about this being targeted at football fans or indeed including and weaving through the 2012 act rather problematic specific attention to the nature of offensive behaviour so I'm not saying breach of the peace is perfect but certainly my sense is that what we have in the 2012 act is a damaging combination of problematic specificity and problematic vagueness that concludes our lines of questioning all the witnesses for attending for your participation in the helping the committee scrutinises legislation agenda item 6 is feedback from the justice subcommittee on policing on its meeting of 9 November 2017 following a verbal report there will be an opportunity for brief comments from from members I refer members to paper 7 which is the note by the clerk Mary subcommittee on policing met on 9 November 2017 when it held an evidence session on the police services budget planning for 2018-19 in preparation for the publication of the Scottish government's draft budget 2018-19 in December the subcommittee took evidence from the Association of Scottish Police Superintendents Police Scotland, the Scottish Police Authority and the Scottish Police Federation the subcommittee heard about actions taken by Police Scotland and the Scottish Police Authority to support financial planning and to develop its three-year and ten-year financial plans and that the Auditor General is to publish a section 22 report again this year the subcommittee heard that more is needed to be done to involve the unions and staff associations in discussions about budget priorities and future financial planning it also heard about a reduction in custody capacity and the impact of the transfer of prisoners between custody centres the next meeting of the subcommittee is scheduled for Thursday 23 November when it will take evidence on the progress of the independent investigations into Police Scotland's counter-corruption unit and I'm happy to answer any questions any questions from Mary John Finnie I'll just make a brief point that although it was a budget there was very important information forthcoming on the issue of custodies and I was keen that we had a human rights assessment given to us by Police Scotland in respect of their current arrangements I understand that has been asked for but I do think that the subcommittee needs to look deeper into that issue I think that there are some significant matters we need to address There was certainly additional information requested and will be received on a number of issues that were raised That being no more questions Thank you for that Mary Agenda item number seven invites members to delegate responsibility to me to arrange for the SPCB to pay on request witness expenses for the current offensive behaviour at football, etc repeal bill are we all agreed? We are all agreed. Thank you for that and I formally close the meeting that concludes the 33rd meeting of 2007 our next meeting will be the 21st of November and will be the third of November and we will be able to meet the SPCB and I would like to ask the SPCB to meet the SPCB ydi wrth am 1 November 21, ddisgu sy'n cael ei clywed o'r cyfnod agon o'r Minister o'r Belyddiaeth Cymru i'r Llywodraeth Cysriadau Cymru a'r Llywodraeth Cymru i'r stagau pellau agon o'r cyfnod.