In an interview with Gordon Brewer on Newsnicht earlier this week on the SNP's anti-sectarianism legislation, Kenny MacAskill used the words "matter" or "matters" no fewer than 35 times in an 11 minute interview. In my experience, the number of times the Cabinet Secretary for Justice uses this particular term is inversely proportional to the amount of sense he is making. It is what I like to think of as Kenny's Goldfish orator mode. Like the little brazen fishlet spinning forgetfully about in its bowl, when flustered, MacAskill has the tendency to lose the stream of his discourse mid-sentence - but not a moment stops nor stays he. With gallant mien, bravely he flippers on, in mounting and often comic circumlocution. Clarity is not its keynote.
Regular readers will know that I am intensely skeptical about the approach being taken by the SNP to its early legislative priority to "stamp out bigotry". Whatever one's view of the generality of the proposals themselves, Kenny's performance on Newsnicht seriously lacked credibility. The party leadership's public pronouncements on their plans thus far have been an embarrassing guddle. Are they proposing to legislate against threats of violence made online - or are they proposing to go beyond violence in a general attempt to criminalise uttering sectarian sentiments? Salmond certainly seemed to suggest so. If the government hope to go beyond incitement to violence, what precisely are they legislating against? Practically, speaking, how can such broad legislative intentions be framed in any satisfactory way in a piece of legislation? These are eminently fair questions, and thus far I'm afraid MacAskill and Salmond haven't been able to produce any remotely clear answers. All of this might be less concerning, if we could anticipate an extended process of reflection and deliberation on the Bill, scrutinised in depth by Holyrood's Justice Committee and subjected to independent analysis by figures outside parliament. In its urgency, however, the SNP Government is committed to passing their law before Holyrood goes into recess over the summer. Practically, this means a third stage vote on the Bill before the 30th of June. Time is short. To be short on answers when one is proposing to close the book on the proposed law in just over a month, is frankly, idiotic.
I find it utterly incensing to be treated to pious homilies about supporting a piece of legislation, whose contents those proposing it show little indication of having determined or understood. For my part, I have sympathy with the idea of clearly criminalising making threats, if parliament is persuaded to do so might be helpful. As I've explained elsewhere, uttering threats is already a crime at common law, so a statutory offence is no radical departure. Similarly, I wouldn't want entirely to dismiss the idea that such legislation can "send a message", although compliance and (non)compliance with law is a complex social phenomenon. I can envisage how a new Act explicitly relating to conduct in football stadiums might achieve this, although the common law of breach of the peace already covers a great deal of conduct of this character. Again, no radical departure. Legally, such a reform may be of questionable necessity, but if a statute could have some wider social good - I wouldn't oppose that. It is really the third prong of all of this which has got my dander up, Salmond's supremely vague and illiberal proposition that...
"I am determined that the authorities have the powers they need to clamp down effectively on bigotry peddled online. The Internet is a force for good in so many ways – but it can also be abused by those who seek to spread hatred. That’s why 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."
Kenny MacAskill's interview was an excellent opportunity to clear up what all of this might mean in practice and to distinguish what they are and are not proposing to do. For my part, I'd much rather have a clear idea what the SNP is about, and enthusiastically disagree with it, than fray my mental fibres trying to weave something coherent out of a ragbag of inconsistent propositions and doe-eyed reassurances about the good intentions driving the escapade. Here's the transcript of the Newsnicht conversation. If you can make out head or tail of the Bill from Kenny's atrociously vague performance, you are of much greater acuity than I.
Gordon Brewer: "Where are you going to draw the line? I can see that there's an argument that says that if you incite violence against someone, that that should be a prosecutable offence. Is that what you are saying? Or will your internet crime encompass something broader than that?"
Kenny MacAskill: "Well there are two aspects that we're seeking to deal with. One is disorderly conduct, unacceptable behaviour at, on their way, to football games. In the stadia. That's a matter where breach of the peace would be inadequate in many instances and that is why we do have to have a specific law as well as showing our opprobrium as a community and as a country. Secondly, incitement of hatred is something - and resulting in threats - these are matters that we're trying to make sure that we get the correct balance. Discussions are ongoing. We'll make sure we speak to opposition parties but what we're trying to deal with is those threats of violence in equally, at the same time, those incitement, that are unacceptable to right-minded people in Scotland. This is a small minority - but as I say..."
Brewer: "Hold on a second. There is a very important distinction between inciting acts of violence against another citizen and having opinions which people might find obnoxious. And I'm not clear whether you're saying that you are only going to legislate on the internet for the first, or whether you are somehow encompassing this much more nebulous concept of the second?"
MacAskill: "Well, the legislation won't simply be for the internet. If somebody put it on a placard or waves it on a T-shirt, inciting violence against another person, then that would be dealt with-"
Brewer: "But would it only be if you incite violence?"
MacAskill: "No, I think we have to go further than that. We have to make sure that matters which would be viewed as unacceptable by the ordinary man on the street, or woman, that is what we're trying to address."
Brewer: "Like what?"
MacAskill: "Well, as I say, I think it is quite clear that there are statements that are simply unacceptable on a religious basis and this is what we're looking into. In every piece of legislation, Gordon, the devil is in the detail. That is what's being looked at by parliamentary draftsmen. These are complicated matters."
Brewer: "Sure. But you surely can accept that there are potentially big dangers here. If someone says, in the course of a discussion on the internet, I think the Catholic Church, or the Church of Scotland - take your pick - has been a force for evil in society in 500 years and we'd be better off without them, you're not going to legislate against that are you?"
MacAskill: "No. We're not seeking to interfere with free speech and legitimate comment or indeed illegitimate comment that goes beyond what some ordinary people - many ordinary right-minded people - would think. So as I say, at the end of the day, the ultimate arbiter here will be the courts. It is a matter of common sense in many instances what prosecutors will bring. So as I say - "
Brewer: "But I'm curious about what you think the boundaries are. I mean, if you say someone is a - inverted commas, choose your swearword Catholic/Protestant - is that going to be a crime on the internet?"
MacAskill: "I think what we're looking to do is to deal with those cases where people are inciting matters that cause great distress and fear and alarm and where it goes beyond matters which could be viewed as minor banter. These matters have to be dealt with by the police and dealt with by the prosecution authorities with the ultimate arbiter being the court. What we're required to do as a government is to bring legislation which will provide that balance - and there does have to be a balance in all these matters between prosecuting what is unacceptable and intolerable in a tolerant society and protecting civil liberties."
Does anyone feel any the wiser about what the SNP government is doing? Does anyone feel remotely reassured that Kenny MacAskill has a clear and delineated sense of what the devil he's about? From the jadedness of his performance, you might hazard a guess that the man himself feels rather lukewarm about the wheeze. At one stage, the ordinary fellow in the street is the supreme arbiter of right-reason. If his conscience was offended, this new law would be offended. Moments later, this commonplace customer is told to stuff any sense of outrage he might have, in the name of free speech. Despite perfectly clear, fair and direct questioning from Brewer, the relevance of violence and threats remains totally opaque, although it seems clear the SNP will try to give the idea of "peddling bigotry online" some legal substance. I almost fell out of my chair at the Cabinet Secretary's final remarks - commending that we trust the police, trust prosecutors and trust courts - precisely the suspect formulation I anticipated and criticised in my first post on this issue. At this stage, on this element of the Bill, I thoroughly agree with Alex Massie:
"It cannot, as the proposals stand, be thought fair, proportionate or workable. 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. In short, as the proposals currently stand this is a nonsensical, hideously-sweeping and illiberal piece of speech-curbing malfeasance that, in terms of its narrower objectives, is scarcely needed in the first place and that, more broadly speaking, is a grotesque infringement upon liberty and common-sense alike. No wonder it's a favoured party-piece and just the sort of Bad Idea politicians find irresistible."
So what the devil can the SNP do to get out of this muddle-guddle rapidly and with credible and concrete proposals? The answer, I suspect, will be the same one reached by the schoolboy who forgot to do his homework the night before and finds himself in a morning's panic before his first lesson - he'll peep over the shoulder of one of his fellows, and copy down their work instead, passing it off as his own. As we discovered by looking into Iain MacWhirter's poorly informed Herald column earlier this week, stirring up hatred against persons on religious grounds is not an offence in Scotland, Tony Blair's broadly-discussed 2006 Act applying only in England and Wales. It would be an obvious and speedily solution to Scottish Ministers' unnecessary self- (or rather Eck-) imposed expedition, simply to amend the Public Order Act of 1986 up here too, so incitement of religious hatred became a stand-alone Scottish offence. It would also provide the opportunity for Ministers to use favoured commonsensical formulations and metaphors about "bringing Scotland into line" with the position South of the Border, supplemented by its air of "modernisation" and "updating" fustian legal norms with lively contemporary standards.
While an obvious solution to the SNP government's anti-sectarian conundrums, for Holyrood breezily to pass such an offence in a single month ought to be scandal. In Westminster, it took the Labour government a number of attempts and a number of months to pass its Racial and Religious Hatred Act 2006, the government majority being frustrated at many points along the way, by the House of Lords and its own backbenchers. And Holyrood could do such a thing in thirty days, without pause to consider its implications or time to doubt? For shame.