Extract from Scotland Parliament General Question Time: Flags (Criminal Offences) - Oct 4

To ask the Scottish Government what discussions it has had with Police Scotland regarding the reported list of flags that it could be a criminal offence to fly. (S5O-02440)

This is an operational matter for Police Scotland, which has confirmed that the list of flags was produced to assist officers in differentiating between legitimate flags and those which include illegal images, such as the symbols of proscribed terrorist organisations. Police Scotland has clearly confirmed that, in the absence of other associated criminal behaviour, it is not illegal to fly any national flag in its unaltered state.

The cabinet secretary will be aware that some of the flags on the list were the national flag of Ireland, the Vatican City, Israel and Palestine. Perhaps the cabinet secretary could speak to Police Scotland and provide details of who created the list and the rationale behind it. The document that I received says that if the flags are

“flown or displayed in a provocative manner”

—I would like to know who defines “provocative”—the people doing so would be subject to section 38 of the Criminal Justice and Licensing (Scotland) Act 2010.

I will try to give the member some reassurance. I have the guidance in front of me and the flags that she asked about come under the heading of “Flags which do not in themselves constitute criminality”. The document and the list of flags were prepared by Police Scotland and it is for Police Scotland to determine.

The member asked who is to judge what is provocative. It is very much within the law and statute. She will recognise that, for example, any threatening gestures and so on could lead to some criminal offences under the appropriate legislation. If Sandra White has any further questions, I am more than happy to provide her with details of who in Police Scotland she can correspond with directly.

It is simply unacceptable that flags that demonstrate religious and political beliefs should be restricted. It is a breach of civil liberties. It is outrageous that the Vatican City flag can be considered one that might get somebody criminalised. Can the cabinet secretary make it clear to Police Scotland that, as lawmakers, the Scottish Parliament finds it deeply offensive and unacceptable that such flags are listed and that people’s civil liberties are being breached?

I will give James Kelly the benefit of the doubt, because he might not have read the guidance in detail. As I said in my previous answer, the guidance states that flying the Vatican City flag, for example, in its unaltered state—that is important—would not, in itself, be a criminal offence. Police Scotland has said that, and it is happy for me to say that, too. Particular actions, such as altering any national flag, could make flying that flag an offence. As attendees at football matches, James Kelly and I know that flags could be altered to include the names of organisations that are proscribed under the Terrorism Act 2000. Flying national flags, such as the Vatican City flag, in their unaltered state would not, in itself, be a criminal offence. I give that reassurance to James Kelly and other members.