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.