19 May 2011

Against criminalising "bigotry peddled online..."

My own views on sectarianism are awfully anodyne. I don't take in the football, on the terraces or on the telly. I am interested in religion, but it is with the bloodlessness of atheistical intellectual curiosity. I was raised in a household whose characteristics were overwhelmingly, atheism existentially untroubled. I am not baptised. As a wean in a wee school on the extreme west coast of the country, I was aware that a few fellow pupils were Catholics, but frankly, the tag had as little significance for me as affiliation with the Church of Scotland around the corner. For my younger self, no doubt already over-keen on flouncy verbiage, being an Episcopalian seemed an obscure and curiously much more romantic idiosyncrasy. The community was not pious. One generation back, Mater and Pater Peat Worrier can recall sites explicitly structured by sectarian logics - the golf club that will not admit Catholics and so on - but in my life, the phenomenon is basically inexplicable, absent from my direct social experience, elsewhere in its setting. 

On my father's side, I only recently discovered that his father had been a Catholic, although not of Irish provenance, while my grandmother's relations include a Church of Scotland minister. My mother's side of the family tells a similar story, albeit with the daughter of an Irish Catholic family marrying my other grandfather, who was a Protestant of limited religious conviction, best I can discern. All involved are now dead, so testimonials cannot be sought. However, there is no abiding sense of sectarianism as an "issue" in the family memory. I have some general awareness of the history of misdeeds and sufferings caused by sectarian hatreds in Scotland, contemporary and ancient, and accept that Scottish public life must take seriously - and reflect deeply - on the phenomenon of sectarianism, and its brutal wages. Such reflection is not, it seems to me, terrifically straightforward. Analytically, we're dealing with a number of commingled things - religion, football, ethnicity, ubiquitous issues caused by moronic and aggressive Scotsmen on the skite, songs, symbols, sentiments, beliefs and violence. 

Even reading off the surface language is problematic. Is the social problem really attributable to the religious contents of chants? Are drunken acts of violence and vitriol spouted deducible to remotely coherent ethnic theories about the Irish, or understandings of Irish history, of Revolutions more or less glorious, Catholic doctrine, or Protestant beliefs? Alternatively, should we scrabble about elsewhere for explanations, looking to the psychological function served by sectarian divisions, where ideologies are pressed into service as a clueless language for the expression of other social pressures and tensions? For many, these questions may seem to miss the point of sectarianism as a brute reality, with material victims and wounds. A certain impatience with abstraction is, I think, understandable. Yet it does to realise that our understanding of the scope of the "problem" of sectarianism will begin to entail the sort of solutions we devise and expedients pressed into service. How you frame a question very often limits the sort of answers you will generate.  Analytically, it is vital to realise that commonsensical simpletons are no less abstract than those tempted to ask these questions, they just lack the self-reflection.

"We will adopt a zero-tolerance approach to football-related violence and prejudice, including domestic abuse, alcohol misuse, racism and sectarianism, and we will work with the police and wider community to clamp down on such intolerable behaviour."

Thus read the SNP manifesto. But what the devil does zero tolerance actually mean in practice? Kenny MacAskill and Alex Salmond have been quick to explain their position. Of the "new laws to tackle online bigotry" he has planned, Salmond has said:

"I am determined that the authorities have the powers they need to clamp down effectively on bigotry peddled online. The Scottish Government will bring forward legislation as soon as we can to make such online behaviour, including posts on sites like Facebook and Twitter, an indictable offence with a maximum punishment of five years in jail."

It is difficult to judge a potential Act on the basis of a couple of sentences, but in general terms, I find this an exceedingly unwelcome and illiberal proposal.  Even provisionally, let's try to unpack some of the laden terminology Salmond is using here. Notice the First Minister is not talking about violent threats, but a much more general course of "bigoted" conduct. As well he might.  It is, admittedly, an archaic corner of our criminal law, but uttering threats to kill or injure anybody - whether in words or in writing - is already a criminal offence at common law.  As you would expect. Moreover, as in the case of vicious poison pen letters, it is not even necessary that the epistle reaches its intended victim. Postage is quite sufficient. Analogously, there seems no good reason why the victim of threats online would have to encounter the vitriol personally, for it to constitute a punishable offence of uttering threats.  Clarity on this point is vital.

How is "bigotry" to be defined? "To peddle" is not a legal verb. How are such peddlers and hawkers of "hate" to be identified? Scots Courts have found that singing "the Famine Song" - with its refrain of "the famine's over, why don't you go home" - crying "Fuck the Pope" and "Fenian bastards" are racial and religious aggravations to a breach of the peace, when chanted at a football match.  Is Salmond proposing to make uttering (or rather, typing) such sentiments per se criminal? On twitter, you've only got 140 characters to play with, so he clearly has it in mind to prosecute the coiners of some fairly clipped phrases.  Without giving us any examples of what sort of behaviour, words or ideas he is taking about, Salmond breezily advances to the penalties, leaving us to fill out the completely opaque concept of "such online behaviour" for ourselves. No doubt the Bill will come forward in due course and will hopefully make some attempt to define these open-ended terms. However, I'm not optimistic.  The Nationalists have demonstrated little interest in arguments for personal liberty, and the importance of toleration despite the ugliness, wrongheadedness and blockheaddedness of the tolerated, particularly in the domain of speech. Like the whole parliament, SNP parliamentarians have been terrifically keen on passing ridiculously broad penal statues.  For example, in the last session, Holyrood passed an Act which on its face, defines two juveniles joining together to steal a bridie as serious organised crime. The point is categorically not that these legal innovations are aimed at banging up hungry but larcenous duos. Each piece of legislation has had a comprehensible purpose and intention, aiming to use the criminal law to regulate behaviour which I think the community would unite in regarding as problematic.

Most often as not, good broad intentions struggle to find a satisfactory statutory definition.  Where defining the scope of criminalisation has proved problematic, in almost every case, parliament has pressed on, answering trust the law officers, trust the police, trust the courts. Which is, often as not, simply shorthand for this is a terrifically complicated issue, and we only want some of these malefactors prosecuted, so let's just pass a really broad Act and cross our fingers that the procurator fiscal use their best judgement to persecute those who really deserve it. 

This approach to law reform has a number of rather queer features, but perhaps the most paradoxical is that our MSPs pass Acts on the basis of reassurances that they won't be enforced according to their letter. Practically, this also gives the lie to the commonly held idea that Procurators Fiscal and courts simply apply the law, cracking any image of a mechanical bureaucracy simply "implementing" the pre-ordained projects handed down by those enjoying democratic legitimacy, who have already settled all of the high questions of "policy". Practically, of course, things are a bit more complicated. Many studies have demonstrated that what seems rule-bound legally may be highly discretionary in practice - discretion being strongly implicated in the use and application of even the clearest of rules. In the other direction, research has also found that open-textured statutes, whose language apparently affords plenty of discretion to courts and prosecutors, are in practice rather more regulated by social rules and broader organisational values than a legal analysis would suggest. Anyone attached in any respect to the idea that there should be the rule of law, and sympathetic to the idea that the rationally-calculating citizen should be able to acquire a reasonably clear idea of what falls within our outwith the category of the criminal, needs must be unsympathetic to this approach. Parliament, however, has rarely heard much dissent of this character expressed. Where problems with definitions have been identified by parliamentarians, these tend to make little difference in the final analysis, and the Bill is meekly passed despite its inscrutable terminology. Trust us, purr the Crown witnesses. And parliament blithely takes prosecutors into its confidence.

However, is this approach really acceptable? Should we overcriminalise and leave it to the Lord Advocate and his or her assistants to decide? Cannot sectarian sentiment be condemned - and action punished, and threats of violence investigated and brought to Court - without resorting to extreme general measures, vaguely drafted? I am not suggesting that the prosecution service in Scotland will use such powers unethically, or even unwisely. As is so often the case in this world, the mischief is the pervasive good conscience of everyone involved. I repeat, all of these broad Acts have been aimed and substantial social woes. However, we should ruthlessly reject the simpleton's false modesty, that holds out that something must be done, this is something, therefore we must do it. Doubly so, when we are plotting to subject the country's idle, even sectarian tongues to the vice of a vague and potentially capricious criminal law. Where is liberty's refuge in that doubt-riddled jurisprudence? The SNP may seek liberty for Scotland. It should also, I'd suggest, have a care for the liberty of its citizens, even its sectarian troglodytes.


  1. This is an absolutely terrible idea. I moderate on a religion bulletin board and read and comment on others. How can you define anti-sectarian legislation on the internet so that you catch the thug hoping to stir up violence and leave robust and sometimes deserved criticism of the institution? It's not hard to find people on message boards who like to cast any criticism of the institution and its acts as sectarianism and who will be first in line to report those whose views they don't like. What happens when the accused turns out not to be a wannabe football thug, but a gay rights campaigner or feminist or victim of abuse who said a few choice things about the church on a twitter account or blogpost?

  2. Religion is poison.

    Ban it.

    By all means fine or put these hate-filled sectarian swine in the clink to cool off.


  3. As you say - context is important. Acts may be inciteful in the atmosphere of a football stadium but not elsewhere. I recall a few years ago a Partick Thistle player being booked (if not actually arrested) for making a sign of the cross before a game, which he habitually did. But because that particular game was against Rangers, it was viewed as malicious and inciting violence.

    What legislating against Twitter statements does is make context universal - the context being the sum of all contexts in which it might be read. If any of those component contexts are inciteful then it's actionable. Which is removing the idea of context at all.

    And if you don't get your shit together and agree, then I'm going to blow this place Sky High /PaulChambers.

  4. A well-crafted piece, but we are still wringing hands. I find any aspect of criticism - say, for example, of an artist, musician or even government minister - laced with an implicit threat "because you have criticised my work, you must be anti - name of religion/sect. There is one composer who usually bleats on about sectarianism, but the music is still awful!

    I was talking to an 80 year old musicologist who had dared to criticise a concert conducted by Georg Solti. Solti's first wife accused the critic of being anti-Semitic, to which the critic could only reply: I didn't know your husband was Jewish.

    It appears that any comment about artistic performance harks back to accusations of the 'degenerate art' type of the 1930s. Let's hope the events in Dublin show the maturity of the Irish and other inhabitants of these islands.

  5. Apologies in advance for the lack of brevity...

    The SNP has assiduously courted the West of Scotland Roman Catholic Irish Republican tribal vote once so wedded to Labour – I stood next to Donald Dewar and Alex Salmond in January 1999 at a Mass in Glasgow’s City Halls to celebrate the golden jubilee of Cardinal Winning’s ordination as a priest (incidentally, Winning delivered a homily that was intolerant of the secular direction of society and obliquely condemned gay people to Hell); I was not the only one to notice that Salmond slipped four-times as much cash into the collection plate as Dewar – but at post-Mass drinks perhaps twenty friends huddled round and smiled wryly at the suggestion that any of “us” could be tempted to vote SNP. Today I suspect that every one of that huddled crowd has cast a ballot for the Nationalists.

    Nevertheless, our parents, Aunts and older friends still hesitate to do so, nervous of losing the protection of the British security blanket that, despite its part in brutality can, in the astonishing form of a right-wing prime minister, gracefully apologise in the House of Commons for a massacre committed well within living memory and send its Queen to address diners in Dublin in Gaeilge and lay wreaths at statues to our martyred dead. There persists a fear than an illiberal Scotland – reminiscent of illiberal post-1922 Ireland – would never bring itself to do such things and will still try to criminalise “us”.

    A principle obstacle to tackling what is referred to as sectarianism in Scotland comes from lumping “two sides” together and treating the problem as one of intractable mirror images. In fact, the paramount tribal motivation from one side is ethno-religious intolerance of Irish Catholics; from the other an ingrained political stance at odds with the mainstream and too often suffering from a lack of self-reflection. Until institutional Scotland realises that existing bitterness is not a facsimile of the opposition it will be unable to tackle ill-feeling in our society. One is about religion, the other politics.

    Growing-up as an Irish Catholic Republican Glaswegian Celtic fan(!) in the Southside of the city I can count in single figures the number of times I heard my contemporaries air specifically anti-Protestant views and when they did it was from a couple of guys who you would generously describe as “struggling” in class. Anti-Loyalist, anti-Orange, anti-British, anti-Rangers: yes, those sentiments are part of the very fabric of the community but, anti-Protestant, no. And, for us, none of the other “antis” were synonyms for religion.

    But, overwhelmingly, the intolerance directed at “us” is to do with ethnicity and (now perceived) religion.

    I think, LPW, that one of the reasons for the vagueness of the proposed legislation (and therefore its dangerous, illiberal nature) is that it is trying to catch opposition to two different behaviours without really distinguishing between them for fear that hard won votes from still tribal voters will be lost.

    The answer is to parse the issues and treat each one on its merits.

  6. A non starter. Facebook and Twitter will simply laugh in their face. If comments are that bad then they would be deemed against their terms and deleted..but getting them to cough up names and addresses?
    And where does it start and end? The church of Scotland / Presbyterian Church`s Westminster confession of Faith has some pretty strong language as does the Bible

  7. Mick

    great post, thanks for that.

    I must admit, I've rarely (if ever actually) heard a catholic spout biggotery towards a protestant but have heard protestants make anti-papist remarks.

    The catholics should grow a pair as I hope they are and destroy the union upon which the protestant myth (because it is a sad old Battle of the Boyne myth) thatnis the union.

    With it gone there is no more of this 'British' nonsense.

  8. While it might not address the various potential problems outlined by LPW, the Twitter injunction case down south might at least throw some light on the enforceability issue, and thus could be of pivotal importance to the SNP's proposal.

  9. Thanks for all of the interesting comments. To pluck out a few to respond to...

    Mick, lack of brevity is the ruling spirit of this blog - and I'm not minded jealously to retain to myself all the verbiage! I very much appreciated your observations, not least for the biographical reasons I outlined in the post, such insights help to alleviate my own sense of social distance from the phenomenon of "sectarianism", examined from whatever perspective. At the very least, I take your remarks as a confirmation of the thought that we shouldn't rush into superficial conclusions about the phenonomenon, and there is plenty of material over which we should pause and reflect, rather than rushing to the satisfactions of a broad judgment against an abstract "bad thing", unanchored in any real social experience.


    You certainly make an important point, if Salmond really is envisaging a Bill that goes beyond threats or incitement to violence, as he has implied. At this stage, the proposals are insufficiently clarified to take a clear view on that.


    You may not be surprised to hear that I am absolutely opposed to any question of the general proscription of religion. It's not a serious or worthy proposition.


    It's an important point - and Scotland's notoriously casuistical criminal law very much relies on discretion-laden judicial apprehensions about context. Particularly when we're talking about the nebulous offence of breach of the peace, which is often successfully prosecuted, despite the absence of much (or any) alarm on the part of onlookers and the immediately proximate citizenry.

    Stuart, Kilsally,

    I dare say concerns about the practical enforceability of such a Bill will emerge in a more elaborated way when we have concrete proposals. Certainly, it is easy to envisage circumstances in which detection and prosecution would be impossible, particularly with pseudonymous tweeting. However, there are plenty of numpties on facebook who I dare say would not be difficult for the police to track down. You might wonder, however, whether it is the best use of the stretched time of coppers, to spend their days on fan forums and trawling facebook pages...

  10. I suspect the online hatred will be available and used only in specific circumstances.

    It's surely too difficult to police it in general.

  11. natha,

    I've clearly said my piece on the proposals as they are presently being presented to us - and look forward to the government publishing its concrete proposals. After that, I'll be certain to return to the specific proposals and review my position.

  12. Well, we won't have to wait long. I must say I generally dislike making new laws against reprehensible behaviour that could actually be dealt with in terms of the existing corpus, as I fear may be the case with the proposed bill. That said, I'm not against vague legislation. We wouldn't trust 129 random punters to design bridges or carry out brain surgery, and we shouldn't trust them to make laws either, no matter how well advised they may be. We should allow them to set the policy direction and have the details hammered out by experts. We call those "experts" judges. And indeed this was the approach of the Scottish parliament when it was running a proper independent country. The Leases Act 1449 has done more than 5 centuries of sterling service precisely because the devil-ridden details were left to judges. By contrast the nonsense of Parliament micro-managing legislation was an English mistake, and one which, as Stair remarked, "occasions many sad debates". In the case of sectarianism, there are rules agin it, so I am sorry to make more; but on the other hand the existing rules aren't applied and someone needs a push. Our parliament can supply that: but make the God of all religions alike help us if they start getting too detailed about it!

  13. Mick
    'Nevertheless, our parents, Aunts and older friends still hesitate to do so,'

    Perhaps because they are of a generation that, if it can't personally recall, at least has some awareness of the anti Irish Catholic sentiments expressed by leading Scottish nationalists in the 1920s and 30s. Sentiments that found an echo in William Wolfe's comments on the Falklands war and the visit of the then Pope, and more recently a perhaps fainter echo in Salmond's reference to the people of Northern Ireland as 'blood of our blood, bone of our bone'.

  14. Am Firinn,

    An interesting alternative perspective there, on the relationship between Scotland's traditionally flexible law. I almost quoted a 18th century letter on that very subject, which I read in Michael Fry's biography of Henry Dundas, 1st Viscount Melville. Maybe I'll come back to that again at a later point.


    There was a small section devoted to that issue in David Torrance's recent biography of the Maximum Eck. Rather before my time I'm afraid, despite my powdered face and periwig. It's an interesting issue.

  15. @Anon,

    I have no doubt that those are precisely the reasons for their hesitation and whilst only those people with a high degree of political awareness are able to articulate the specific reasoning for such equivocation there are far more who recall with discomfort the Monklands East by-election in 1994 and the explicit marshalling of the Orange vote in favour of the SNP against now Baroness Liddell of Coatdyke.

    Alex Salmond insisted at the time that the SNP itself played no part in encouraging the Orange vote to support their candidate on a sectarian basis but there is no doubt that the Orange Order itself did organise against what they saw as Catholic dominated Labour on that basis. Whatever the stance of the SNP leadership, Eck did not reject the Orange block support and the SNP came much closer than ever before to taking the seat that had been held immediately prior to the by-election by the popular Leader of the UK Labour Party. In the context of increasing tensions in the mid-1990s as the IRA and British government entered negotiations and as anxiety grew in the Orange community at restrictions placed on their traditional behaviour (to explode the following summer at Drumcree) many Irish people in Scotland felt that the SNP’s actions were irresponsible at best and revealed bigotry at worst.

    Salmond and the SNP had a lot of making-up to do and hence the assiduous courting of the west of Scotland Catholic Irish Republican tribal vote I referred to.