7 October 2011

A doltish, dim & disappointing report...

Imagine a primary school yard. It is play time, and the whole square is alive with cackling weans, making mischief. In the far corner, out of the teacher's eyeline, a lucrative little boy stands, surrounded by a gaggle of his impressed cronies. Striking attitudes, this muckle tyke has a gambler's heart, and has persuaded his schoolmates to enter into wagers with him, promising that to the victors go the poke of soor plooms. One, narrow-beamed but stout-hearted character is all too keen to put his five pence pieces to the touch to win or lose them all. The callow croupier explains the rules thus. He raises his two small fists, a number of coins apparently clutched in each. He opens his right paw, giving the slim fellow a look at the first count: only three coins. His left paw remains resolutely closed. 

Fixing his risk-takers with a beady eye and assuming his best poker-face, the runt gravely pronounces "I'm holding ten coins". It is for the plucky gamer to decide whether this claim is "true or false", ignorant of what the left hand contains. If they spot a truth or lie, they get a sweetie; if they get it wrong, the miser keeps their hazarded coin. Mathematically speaking, the young dealer may not be running a gainful scheme, but he enjoys the frisson of cunning it gives him, and doesn't much care for the neon greenness of the soor plooms in any case. In this, he is assisted by his rodent's phizog, instinctively mistrusted by his comrades, who consistently call him a liar, only to lose their money on account of his unexpected, consistent truthfulness. The bell rings, class is reconvened, the losers fizz and our croupier's pockets clink with the happy sound of hoodwinked lucre.


Yesterday, Holyrood's Justice Committee published its stage 2 report on the Offensive Behaviour at Football etc (Scotland) Bill, setting out its preliminary conclusions and summarising the concerns of witnesses lately examined before them. I'm exceedingly disappointed with it, not because it deviates from my own opinion (which it does), but because it makes the case for the legislation so poorly, and so partisanly. As you may recall, there are two main clusters of offences in the Bill. The first relates to "offensive behaviour at football", the second to "threatening communications".  While encouraging increased clarity in the terms of section 1 of the Bill - "offensive behaviour at football" - the SNP members on the Committee concluded:

138. A majority of the Committee support the new offence of offensive behaviour at football. The majority believe that the Government has made the case that there are gaps in the law that do not enable the police and prosecutors to target offensive behaviour effectively.

Apparently without any sense of irony or dissonance, after a paragraph outlining the doubts of the non-SNP minority on the Committee, they have written:

140. The Committee would welcome clarification from the Lord Advocate as to whether section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 is being used this season to prosecute cases of offensive behaviour at football matches. If so, we would also welcome an assessment from the Lord Advocate of the efficacy of that provision in obtaining convictions.

On the Bill's second major offence - that of threatening communications set out in section 5 - they make substantially the same point. The SNP majority is "prepared to support the proposal for a new offence of threatening communications" [para 218] and justify the Bill's provisions once again in terms of "gaps in the current law", despite the fact that:

217. ... not all Members are wholly convinced that the Scottish Government has made a clear case that those gaps exist, particularly in view of recent successful prosecutions under current law.

Certainly, it seems a queer sort of loophole, that sees proceedings brought, a conviction and potential prison term imposed, yet the SNP majority doggedly accept it. In the same ridiculous vein as their analysis of the Bill's offensive behaviour at football offence, despite the legal gaps they feel convinced exist to justify this legislation, the Committee ask the Scottish Government to provide:

220. ... further information to the Committee on whether and, if so, why, section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 is not considered adequate to prosecute threatening online communications, despite a number of apparently successful recent prosecutions.

Even more tellingly (and one would hope, damagingly), in the same report, the Committee emphasises that it hasn't really looked into the offence of threatening or alarming behaviour (which includes all communication), which was only passed by the SNP government in 2010. Not to have done so is particularly strange, given the rationale for introducing that offence clearly relates to the Scottish Government's thesis that gaps in the law are being remedied by the Football Bill:

125. The Human Rights Consortium Scotland suggested that: "we need to understand if the problem is with the law or its application in Scotland. So far, there is insufficient evidence to demonstrate that the law is inadequate."

126. To some extent this has been answered in the debate played out before the Committee on the effectiveness of breach of the peace. We have had less opportunity to undertake scrutiny of the very new offence of threatening and abusive behaviour under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, which was conceived in response to concerns that the test for breach of the peace had become too narrow. (emphasis mine)

Although the ludicrousness and obvious partisanship of this analysis ought to be plain enough, there is no harm in outlining it in stark terms. The SNP majority on the Committee accept the Bill is substantially justified on grounds of "gaps in the law" on breach of the peace. They admit that the new SNP offence of threatening or alarming behaviour included in an Act of 2010 was passed primarily to solve the problem of the narrowing of the common law offence of breach of the peace, which is presently being used by Ministers to justify the new provisions of this Bill. Conscious of their past legislative intentions, any assessment of the current state of the law must surely require section 38 of the 2010 Act to be taken seriously into account. However, the Committee concedes that they have only cursorily considered the offence of threatening or alarming behaviour, and unabashedly admit ignorance of (a) whether this new offence is being used by prosecutors or (b) why the Government consider it inadequate, and the new threatening communications provisions of the Bill necessary, despite recent convictions. None of these doubts, uncertainties and ignorances about the current law and its application apparently disturb the SNP majority's blithe and general acceptance that the Bill's new offences are justified by "gaps in the law".

This is not to say that there are not other ways of justifying the new offences set out in the Football Bill - there are, some of which were suggested by Roseanna Cunningham and promoted by Dr Kay Goddall in their respective appearances before the Committee. Whatever one's view of the Bill, we are surely ill served by doltish scrutiny and embarrassingly craven, intellectually sloppy and caballing reports from SNP-dominated Committees of the Parliament, obviously at variance with the legal evidence and their own ignorance about existing offences beyond breach of the peace. At least the daft wee laddies contending for the soor plooms and guessing at the contents of a clenched fist were aware that they were hazarding guesses, and weighing up the croupier's authority and sincerity.  In this case, the majority on the Committee speaks with their master's voice, appear to have failed to engage their brains, and risk making themselves look ridiculous by doing so.

Full Justice Committee report.


  1. I much agree with what you have said, as has bene the case in the past on this issue.

    Another matter that I find rather odd is the inclusiouirement to review the legislation in the future. This, I would submit, suggests that they are not all that sure that the Bill is right in its current form. If this is indeed the reason behind this then one must question their support for the Bill. If it's not right then why seek to pass it in the first place? Why can't we just work on getting it right first time (or as close to right as cane be achieved given the way in which the law operates)?

  2. Perhaps because legislation like this is so controversial that no one will agree on it, so you put in a sunset clause to see how it works

    The SNP got so much stick after the election about using the majority to force through legislation that they are trying to be considerate

    And they get stick for that.

    Salmond must think "WHy not just be the dictator they say I am?"

  3. Because he's too smart to play dictator.

    The law will be used by the police should they need it, or not if it's pointless.

    If the existing laws are sufficient then this new legislation won't do any harm; if not, then the police have a tool to hand.

    It's better to at least keep the sectarians off balance rather than to do nothing and allow the situation in Glasgow continue to get worse.

    It does seem to have calmed them down a bit.

    Though, perhaps I'm wrong about that.

  4. Alistair

    Quite. To be discussing potential reviews at this stage hardly betokens an excess of confidence.


    Given Roseanna's past observations on the topic, I don't think the Scottish Government are contemplating a sunset clause when they are envisaging a review, with the Act lapsing without positive measures to keep it in force.


    I've written before about my concerns about the illiberal way existing laws can be enforced, however, it strikes me as immediately rather suspect if a piece of legislation, proposed in haste and justified on the grounds of necessity, turns out not to be closing loopholes and enabling officers of the law to intervene where presently, they are unable to do so.

  5. LPW

    'turns out not to be closing loopholes'

    But there's the rub.The proposed legislation does close a loophole.

    As things stand the songs and chants of the Celtic support are not illegal, because they are not sectarian.

    Under the proposed legislation they will be deemed to be offensive and therefore illegal. So the legislation will even up the scales. Christine Graham did stumble upon/blurt out the point in her exchange with Prof Devine at the select committee.

    It's part of the 'two sides of the same coin' 'one's as bad as the other' mindset which is so useful to Scottish nationalists because it avoids them/you having to examine, explain or justify their/your party's own involvement in anti Irish Catholic racism that figured so largley in the thinking of many of the founders of the SNP.