It didn't help that Scottish ministers have seemed pretty consistently unsure about what they intend the Bill to do. Was it an absolutely necessary measure, to soup-up the ancient, hobbled Scots law so it could keep up with fleeter technological developments? Was it intended as a restatement of the law, with a sectarian tag, to "send a message" and communicate scorn for sectarian-inspired violence and threats? More generally, was the problem one of legislation, or enforcement?
Alex Salmond initially suggested that the law would criminalise "bigotry peddled online". This characterisation of the Bill was buttressed by the impression that the First Minister was empowering the police to act, where presently, they could not. ""I am determined that the authorities have the powers they need to clamp down effectively on bigotry peddled online", he said. Salmond's statement was followed by an interview with Kenny MacAskill on Newsnicht which pursued the Maximum Eck's illiberal strain. The Cabinet Secretary for Justice suggested that the Bill's new provisions would not be limited to threats of violence, but provide for the punishment of sectarian speech under certain vague conditions. Even sympathetically considered, Kenny did not impart an impression of a clear sense of direction.
In her first appearance before the Justice Committee, Roseanna Cunningham seemed similarly flustered. At this stage, she was still echoing Salmond's first proposition: that the Bill shored up the leaky dyke of the law. Repeated reference was made to the narrowing of the offence of breach of the peace in recent judicial rulings. Generally neglected were the provisions of Holyrood's 2010 Criminal Justice and Licensing (Scotland) Act, which already criminalises "threatening or alarming behaviour". Having reconvened after the summer recess, the Justice Committee has been taking oral evidence from a range of characters, including fan associations from football clubs, pundits, academics with an interest including the historian, Professor Tom Devine, church representatives, police and prosecutors, supplementing the extensive written material which has been submitted. Most recently, Roseanna returned to the Committee with the Lord Advocate, visibly much more assured. Curiously, however, the stated rationale for the Bill has shifted slightly again. In contrast to the keynote of her June appearance - that the Bill is a necessary, emergency measure to cure deficiencies in the law - Roseanna is now emphasising that it is a declaratory instrument, expressing scorn for bigotry. In her opening statement, she emphasised ideas of public recognition, of condemnation:
"I have heard many times the accusation that new laws are unnecessary because laws are already in place. We are mindful of that point, although we do not agree that it is the case. What we propose arises out of concerns that the police had earlier in the year. Furthermore, there is a danger that we miss another fundamental point: it is an entirely proper role for the Parliament to use legislation to register public outrage about a particular behaviour even when other criminal offences cover aspects of that behaviour. We have seen that in legislation to protect emergency workers, to outlaw stalking, to criminalise slavery and servitude and to express our abhorrence of genocide—all those matters were already criminal. Right-minded people are as outraged by bombs, bullets and bigotry as they are by those other crimes and will, I am sure, welcome the Parliament’s decision to bring this behaviour fully into view."
Anyone who watched First Ministers Questions yesterday will have detected that the First Minister hasn't picked up the change in emphasis suggested by his junior justice minister. In answer to an eminently fair question about the necessity of the Bill posed by Dame Bella of Doily, Salmond returned to the familiar theme of a narrowing offence of breach of the peace. You can see why Roseanna has changed tack. Events in the intervening period have combined to undermine the thesis that the current law was unable to deal with threatening or alarming communications, whether online or anywhere else. A government-commissioned report on football banning orders has been published, indicating that the police has not been using the powers at their disposal to ban offenders from football grounds, while a number of suspects have been arrested and charged under existing laws, a fact that shouldn't surprise those who have read the Law Society of Scotland's contribution to the Justice Committee's deliberations.
Just yesterday, having pled guilty to a religiously aggravated breach of the peace, one convict was told by Sheriff Bill Totten that he'll likely go to jail on a "substantial custodial sentence" for comments posted on a Facebook group entitled "Neil Lennon Should Be Banned". While he is clearly an exceedingly unattractive figure, expressing exceedingly unattractive sentiments, it seems astonishing to me that we should think it necessary to jail a man for saying them. Having briefly rummaged through the press reports, the list of Birrell's web statements given in the Daily Record seems the most comprehensive:
"Hope they all die. Simple. Catholic scumbags ha ha."
"Proud to hate fucking tattie farmers. Simple ha ha."
"They're all ploughing the fields the dirrty scumbags. FTP and the 'Tic. WATP. No Surrender."
"Fuck the Fenian bastardsds who have fuck all else to do than talk shit."
Self awareness clearly isn't this raconteur's keynote. For those unfamiliar with acronyms, given the context, and the lack of originality, it seems reasonable to conclude that FTP denotes "Fuck the Pope", and WATP, "we are the people". I sympathise with the the man's lawyer's characterisation of these postings:
"These postings were distasteful and abusive. However, his postings did not contain threats or incitement to violence. There was no mention on them of Neil Lennon or the manager of Celtic. It was hackneyed sectarian language."
The Sheriff has not yet passed sentence, having requested a social enquiry report and freed Birrell on bail. While this prosecution clearly undermines the idea that the Offensive Behaviour at Football etc. (Scotland) Bill is necessary in the way that Salmond seems still to be maintaining, for those of us minded to give priority to the liberty of the subject to entertain and utter thoughts, however odious or gormless they are, Sheriff Totten's observations are very ominous indeed. It should come as no surprise that the Common Law shares the latent, illiberal potential of the new Bill. But to jail a man, however generally villainous he might be, for vacuous, horrid, borrowed babble? That gives me pangs.