"I hate Huguenots..."

To say that the SNP Government's Offensive Behaviour at Football Bill introduces two new criminal offences is superficially correct but practically misleading. It is better to think of both as little clusters of criminalisation - with several limbs - entangling conduct of a great range of severity by the bonds of a section and ties of a clause. With the addition of a public order element, the first new offence proposed - offensive behaviour at football - criminalises (a) expressing hatred, (b) stirring up hatred, (c) behaviour motivated by hatred, (d) threatening behaviour and (e) any other behaviour that a reasonable person would find offensive. Try to get your head around the gigantic range of conduct encompassed in that, particularly by ideas of expressing hatred and things the Reasonable Man would get disgruntled by, whatever the devil that might be. 

As one academic who submitted evidence on the Bill noted, holding all of the elements of the offences in one's head, and coming to some understanding of what sort of conduct is caught by them, can be a rather bamboozling enterprise. It is also an enterprise which has long been deferred in the parliament, which has thus far preferred to engage in a rather airy debate about the necessity of the new law and general condemnation of sectarian recrimination.  No longer, with any luck. Today in Holyrood, the Justice Committee is considering stage two amendments to the Bill. These have been forthcoming from Roseanna Cunningham, David McLetchie and Patrick Harvie. Depressingly, however, on a quick look through them, the proposed changed are all rather superficial, and don't invite SNP members and ministers to justify their proposals in detail in a way they have not been challenged to do thus far - and I fear - likely won't be before this Bill is enshrined in law.

From the government side, Cunningham proposes to introduce a mandatory reporting mechanism on how the law operates in practice, empower ministers to change the list of things-it-is-illegal-to-express-hatred of-in-relation-to-regulated-football-matches, and an additional clause on the protection of the freedom of speech (which significantly, only attaches to the threatening communications offences, rather than the offensive behaviour at football-specific provisions). As Christine Grahame noted in the stage two debate in Holyrood, it is unfortunate that this second plank of the proposed legislation has largely been ignored. In order to weigh this post by the kilogram rather than the tonne, that is a matter for another day.

For today, I wanted to focus in a little more detail on the first offence, by way of a wee scenario. When questioned about the breadth of the provisions criminalising offensive behaviour at football, Minister's have often rebutted: public order's the thing, and conduct which doesn't threaten public disorder won't be criminalised. But soft, what about section 1(5)?

1(5) For the purposes of subsection (1)(b)(ii), behaviour would be likely to incite public disorder if public disorder would be likely to occur but for the fact that—
(a) measures are in place to prevent public disorder, or
(b) persons likely to be incited to public disorder are not present or are not present in
sufficient numbers.

Think this through. Say I am a raging anti-Huguenot bigot, and have raging bigoted, anti-Huguenot friends. We congregate in a local pub, which is discreetly showing the mighty Kinlochbervie Rangers thrashing Partick Thistle on the telly.  "Aren't Huguenots bastards?", I ask my friend, who promptly sums up his choice catalogue of poisonous sentiments about French Protestants, saying "I hate Huguenots". It is at this point that the police happen to chance in, scoping out a suitable spot for a post-shift tipple. Overhearing my hating crony's remarks, and armed with the newly-passed Offensive Behaviour at Football Act, they get out the handcuffs and advise him that post-Cadder, he can now avail himself of legal representation when questioned. Before he is carted off, I just manage to ask one of the constables "how the devil was this a crime?" 

This learned officer of the law could give me the following information. Firstly, he points to the football match being broadcast in the background, regulating my chums comments under s2(3) of the Offensive Behaviour at Football Act. Grudgingly, I cannot avoid conceding that our anti-Huguenot hate meeting is potentially caught. Secondly, the jurisprudentially informed officer would identify that one element of the offence is simply to "express hatred" [s1(2)(a)] about a "social or cultural group with a perceived religious affiliation" [s1(2)(a)(ii)]. To say "I hate Huguenots" is to do just that. Being a calculating, raging anti-Huguenot bigot, I too had boned up on the new law.  "But what about the public order element?", I ask triumphantly, assured that my friend would soon be liberated. "Look around," I say. "The pub is passive, chaos has not ensued and the peace remains undisturbed." The officer could concede the general serenity of the room easily enough, but that wouldn't smudge away his indulging smile or liberate my loathesome friend. 

"Read section 1(5) more closely, young man. You don't have to cause public disorder. The test is that the 'behaviour would be likely to incite public disorder', even if where is really nobody there to be incited." Goggling, I stammer out "so you mean, if we pretend a Huguenot had been here, and we assume that he would be likely to being incited to cause a hubbub by my friend's expressions of hatred, then he can be convicted of offensive behaviour at football?" "Yup". "So basically, the vaunted public order limitation is potentially entirely fictional, since the Act specifically aims to criminalise situations relating to regulated football matches where groups of bigoted misanthropes congregate to air their views, and nobody who is actually present would bat an eyelid at the scabrous sentiments we express, being bigots themselves?" Shoving the miserable anti-Huguenot out of the door, the constable crisply concludes: "Just read the law, son." 

I can hear the sound of distant scoffing already, but on my reading of this tortured statute, the scenario I'm envisaging is clearly regulated by this Bill. Clearly, it isn't the primary business which Holyrood thinks it is about, but it is the practical consequence of their general commitments to it. More generally, ministerial protestations that the "public order" aspect will be a substantial safeguard at least start to look questionable, when the statute itself invites courts to invent imaginary incitees from impugned groups to justify the criminalisation of dismal sentiments with no realistic prospect of inciting assembled persons at all. 

This morning, I note that some nationalist members of the Committee are scoffing at the failure by Labour and the Liberal Democrats to produce any substantial amendments to this Bill, suggesting that their opposition amounts to shameless opportunism. That is certainly a disappointing. However, to imply that this is the only reason anybody could have for questioning or doubting the virtues of this hastily-drafted and complicated statute is clearly ridiculous.  From the beginning, ministers from the First Minister downwards have made muddled and often confused pronouncements on the policy objectives this Bill seeks to realise, while justifications given for the proposed provisions have marched and counter-marched all over the place since the Bill's first "emergency" introduction in the summer. Partisan loyalty being what it is, I don't expect SNP MSPs to publicly concede these things, but the defensive arts of the braggart are growing tedious. 

Legislators, it is your job to scrutinise Bills. You'll do your country a far greater service by applying your mind to the confusions and limitations of what this Bill is actually proposing, than gloating over a crushed opposition in the chamber.  Indeed, it strikes me that the Nationalist tone at the stage two debate on the Bill in Holyrood struck an ugly parallel with recent Scottish Questions in the House of Commons. A tiny knot in a gigantic room full of folk opposed to them, the Unionist parties delivered a hysterical kicking to the Nationalists. I was particularly struck by the psychological satisfaction this piece of institutionally sanctioned barbarity clearly gave to those who participated in it. Whatever the triumphant Nationalists do elsewhere, however pitiful the electoral fortunes of the Labour, Liberal and Tory parties in the country, in the serene tabernacle of the House of Commons, the small sprout of Nats can always be treated like contemptible, upstart toadstools, handily unrooted. The delirious kicking in the room makes up for the kicking that all three received out of it. 

Similarly, in Holyrood, the SNP benches may applaud ministerial invective, indict the intentions of their opponents and scoff at any expressions of concern about the football legislation. In the space, I'm sure this lends them an overwhelming sense of reassurance. It is a warm and compensating feeling. Our lot didn't cock up, it is just everyone else, up to their usual obstructionist tricks.  Particularly significant, I think, that the SNP have reached so speedily for this familiar, self-satisfying puir me narrative, which in turn disavows the extent to which this whole Bill has been a bungling enterprise, and the shock at the skepticism and division which has met what they clearly hoped would be a simple, popular proposal.

Just as their disavowed defeats make the Unionist majority in Westminster don their tackety-boots, whatever doubts are expressed about the Football Bill outside Holyrood, in the chamber the roaring Nationalist majority can always cheer away these anxieties. This is political intoxication, not good sense and not good governance. We're stuck talking about a general diagnosis, rather than attending to the reason or unreason of the particular prescription the SNP has proposed. Parliamentarians considering amendments in the Justice Committee today would do well to follow the advice of my fictional policeman: "Just read the law, son."