Offensive Behaviour at Football and Threatening Communications (Scotland) Bill
Notes towards a response….
The Scottish Governments Offensive Behaviour at Football and Threatening Communications (Scotland)
Bill has again been making the headlines and again not for the right reasons. Firstly the Labour Party very publicly decided to withdraw support for the Bill and then the Parliaments Justice Committee backed the new legislation by a slim majority amongst much acrimony. These developments were sandwiched between the interventions of the Catholic Church which first opposed the Bill and then backed the Bill. So what are we to make of these political manoeuvres and where does it leave the Bill and those opposed to its implementation?
The first thing to say is that the Offensive Behaviour Bill remains a terrible piece of legislation, even after the late human rights amendments being offered to the Catholic Church, and should be vigorously opposed. Without boring people to death with the detail this law has two parts and both are flawed. Firstly the most discussed part of the legislation deals with ‘offensive’ behaviour at football matches which will be punishable with up to five years in prison. There are so many problems here it is difficult to know where to begin.
Despite months of debate and discussion the SNP government have been unable to explain what ‘offensive’ means for the purpose of this new law. As the Scottish Human Rights Commission has pointed out any law must ‘comply with the principles of reasonable certainty and forseeability’ under the
European Convention on Human Rights. This cannot be achieved when even the government minister introducing the legislation cannot specify what is and is not an offence in this context (remember the blessing yourself and national anthem debacle?).
Another problem is that this law does not only apply to football as the SNP (and the Bills name) claim.
4 a) A person may be regarded as having been on a journey to and from a regulated football match whether or not the person attended, or intended to attend the match
3 A regulated football match include a reference to any place (other than domestic premises) at which
such a match is televised.
So in short if you are on a bus, train or in a pub or club and an incident occurs you could get prosecuted under this legislation and receive five years in prison irrespective of whether you were at , or interested in, a football match.
The second part of the Bill deals with threatening behaviour over the internet and this also carries a five year imprisonment penalty. Whereas in the first part of the Bill the definition is extremely broad ‘offensive to a reasonable person’, in the second part the law is very specific, it relates behaviour ‘intended to stir up religious hatred’. Why this should be the case is another of the many unanswered questions. The above are just some of the basic problems with this Bill.
What should be said at this point is that under any normal, or even half decent, parliamentary process these flaws and ambiguities would be largely sorted out. While this would not ensure everyone agreed with the legislation it would give it a legal clarity and intellectual rigour which this Bill does not have. Instead the Justice Committee report on the Bill, published yesterday, is shocking in its feebleness. Not only does it predictably split on party lines but it lacks scrutiny of the key legal and philosophical
questions raised by this legislation and fails to address the numerous objections the committee has received.
The performance of the SNP members of the Justice Committee at the evidence gathering sessions really had to be seen to be believed. Not only were they clearly going to agree with the government no matter what, at times they were actually repeating word for word what officials had said at briefings on the legislation. This pathetic performance follows the recent decision of the Equal Opportunities Committee to abandon the investigation into the disproportionate number of Catholics in Scottish prisons. So since the SNP got control of the committee system they have not exactly reassured their critics over concerns they would use their majority to quell opposition.
However, the poor drafting of the legislation and even the failure of our parliament to provide an effective scrutinising process is not the problem. No the real problem with this Bill lies in the politics behind it. No one would oppose a government initiative to genuinely tackle racism and bigotry in Scotland. The problem is this Bill does not do that. In fact there exists legislation which is there specifically to deal with hate crimes and crimes motivated by some form of prejudice including the fairly recent Section 74 offences of Religious Aggravation introduced by the Scottish Parliament less than ten years ago. And even if we consider the second part of the Bill on threatening communications the SNP government themselves introduced the Criminal Justice and Licensing (Scotland) 2010 Bill which in Section 38 specifically prohibits threatening or alarming behaviour including via any means of communication ie over the internet. In fact the SNP claims to be filling ‘gaps in the law’ are so obviously false even Ian Gray is pointing it out.
Over the years many people have asked why anti Irish racism which in England is prosecuted under anti racism legislation is prosecuted under religiously aggravated legislation, if at all, in Scotland? The Section 74, religiously aggravated, offences statistics show catholics are overwhelmingly more likely to be victims than protestants. While it is good news the government have agreed to publish all these figures but why no investigation into this disparity and direct resources to tackle this endemic problem? It seems like the statistics give the SNP an answer they don’t like so they want to change the question. If you read between the lines of ‘making it easier for the police’ and ‘breach of the peace is too narrowly defined’ what you see is a blatant attempt to criminalise expressions of political views.
The example repeatedly used is of the football fan at court for singing an Irish republican song and having his religiously aggravated charges thrown out as the judge correctly viewed the song as political. And it is this type of political expression the SNP want to criminalise with this legislation. Given that the focus is on football fans the likely outcome is that a generation of predominantly young, working class people will be ciminalised or at the very least drawn into the criminal justice system for behaviour no one believes is criminal.
In my view the Labour Party’s withdrawal of support for the legislation is more of a tactic than a genuine attempt to either challenge the SNP or start a much needed discussion about the broader societal problems the Bill and the SNP avoid. Since Jack McConnell left the Labour leadership the party has shown absolutely no appetite for dealing with religious bigotry or anti Irish Racism. In fact their failure to hold the government to account on the issue contributed to the SNP’s delusion that if they ignored the problem it would go away. This week Labour have simply recognised that this legislation is a mess and incredibly unpopular with football fans. Given the lack of leadership or ideas in that party the fact they had that degree of political acumen is in itself quite impressive.
However I would expect the Labour Party to join the Catholic Church in eventually backing the legislation. Structurally and politically weak the Labour party do not have the stomach for a fight on this issue. And let us be clear the decision of the Church to back the state was never in doubt. I see this as an opportunity for a genuine, bottom up campaign against the legislation. At its heart this legislation is a further attack on football fans rights and an attempt to criminalise political and cultural expressions which the state find uncomfortable. Key to this strategy is the ever increasing role of police power in the state’s engagement with working class communities.
As commentator Alex Massie points out
“Nor is it a braw step for the brave new Scotland to create a new class of “Thought Crime”, criminalising opinions merely because parliamentarians find those views distasteful”.
It is this aspect of the SNP government’s proposals which any protest should focus on. This legislation is an attack on people’s freedoms and exposes an illiberal and reactionary streak in the SNP leadership. The SNP view this legislation as a way of closing down the issue in the run up to the Independence referendum. Instead their failure to tackle anti Irish racism and institutional discrimination should be used as a catalyst to ask the key question: what kind of Scotland do we want to live in?
The SNP have decided to introduce this legislation for its own political purposes. It wants to make sure it goes into the independence referendum in a position where it can claim to be tackling sectarianism or more accurately it does not want to go into the referendum in a position where its opponents can accuse it of doing nothing about sectarianism, which is exactly what they had done for their first four years in government.
Alex Salmond’s attempts to close down the discussion by claiming ‘you are either part of the solution or part of the backlash’ are laughable. Some of us remember the previous administrations attempts to tackle
this problem and the SNP were very much part of the backlash. While Salmond was sitting at Tynecastle claiming there was no problem some of us were working to challenge discrimination and celebrate diversity. It is the establishment who have questions to answer about their commitment to tackling racism and bigotry not the legislations opponents.
The SNP’s decision to abandon plans for a post independence referendum on the monarchy and their fetish with British militarism cannot be separated from their failure to face down the most reactionary elements in Scottish society. Just ask yourself when was the last time the SNP mentioned the Orange Order in this debate? Or mentioned the institutional bias in the Justice system? Those of us who believe in the breakup of Britain and want to build a Scotland free from prejudice, monarchy or militarism need to think very carefully about the direction this government, and country, are moving in. And we need to think about it now.