2 November 2016

Escaping the Mire

Longstanding readers of this blog know what I think about the Offensive Behaviour at Football Act, and the events which led to its introduction. Alex Salmond seized on an Old Firm fracas in 2011, arguing that this so-called "shame game" required special legal measures.

Elected with a majority in the Holyrood election of that year, there was no restraining the former First Minister. He tapped unlucky Roseanna Cunningham to be the ministerial face and voice for a policy which was justified by sweeping populist rhetoric, but which was fundamentally reckless and un-thought-through.

A succession of embarrassing ministerial performances followed, in the chamber, and in the media. Kenny MacAskill sputtered "matters" relentlessly on Newsnicht. Roseanna suggested, depending on the context, that genuflecting or singing the national anthem might get you a jail term under the new rules. Unlucky civil servants were drafted in to give legislative shape to ministers' vague aspiration to use the criminal law still further to intervene in the regulation of fan behaviour in and around football matches.

Folk in parliament rhubarbed. Folk outside parliament rhubarbed.  Folk inside the SNP rhubarbed, including elected members, who nevertheless, cast their votes for the measure under the stern gaze of party whips. I remember taking to the airwaves against - now - Green MSP John Finnie. In those days, he was a Nationalist politician, and vociferously defended the legislation, accompanied by retired coppers and politically-helpful prosecutors from the Crown Office. None of this eliminated the fundamental problem with the law. 

To borrow a phrase from one of Scotland's judges, it was "mince." Certainly, the Act "sent a message" to hooligan elements who hover around football clubs and matches. But that message was as muddled and confused as the legislative provisions themselves.  Polling evidence showed - and has shown since - that the Act is supported by a majority of the public. But popularity doesn't transform a bad, paradoxical law into a good law. Being a lawyer, these problems perhaps excessively preoccupy me. But even if you are broadly supportive of the idea of prohibiting threatening and hateful speech in football grounds and outside them -- you still can't escape the conclusion that in 2011, Scottish ministers had no idea what they were doing, or why they were doing it, or why they were doing so on an "emergency" timetable. It was a picture of recklessness. 

The Act they left behind them is an appropriate testament to their cack-handedness. Getting your head around what the legislation does and does not criminalise can be tricky. That's one of the failings of the law. But it outline: it creates two new criminal offences: (1) offensive behaviour at football, and (2) threatening communications. The first offence applies in a range of locations. If you are in and around the ground of football matches, or on a journey to and from the grounds, it applies to you.

It also applies to you if you are in a public space, with a regulated match playing in the background. If you begin shouting and bawling at folk on their way to matches, the Act catches you too. There are some paradoxes about this. The law treats you as "on a journey" to a match, whether you attend, or even intend to attend a match. This even includes overnight breaks. Philosophically, we are all, potentially, on our way to a regulated football match. At least according to parliament.

But the new crime focuses on offensive behaviour. The law recognises different kinds of bad behaviour. It criminalises "expressing hatred" against groups or individuals, on the basis of their perceived religious affiliations, or on the grounds of sexuality, disability, nationality or race. This might be singing "the Famine Song," or saying "I hate the Orange Order", as you prop up a bar in which the Greenock Morton v Partick Thistle match is playing in the background.

But the law also extends to "threatening" behaviour, and  -- most controversially -- "behaviour the reasonable person would find offensive." The old common law offence of breach of the peace only criminalised behaviour which could "alarm the ordinary person" and "threaten serious disturbance in the community." The OFBA goes far further. The old offence of breach of the peace was certainly vague. Making "offence" the criterion for a criminal offence is even more problematic.

Recognising this, SNP ministers introduced what they characterised as a "safeguard." It wasn't enough for behaviour to be hateful, threatening, or offensive. In order to be punished under the new Act, it had to be "likely to incite public disorder." This sounds like a high hurdle for prosecutors to overcome. The SNP's justice team represented it as such to the Scottish Parliament's Justice Committee. But the detail of the law blew the lid from this "safeguard." 

Why? Because in the absence of any actual members of the public to be scandalised into violent disturbances by offensive behaviour, the Act instructs sheriffs to invent turbulent soccer fans or supporters who might have been provoked into violence by the offensive singing, or banners, or behaviour. The Act provides that courts should discount the fact that "persons likely to be incited to public disorder are not present or are not present in sufficient numbers." Defenders of the OBFA often claim that they are objecting about sectarian singing "in context." But the Act specifically requires prosecutors, police and courts to ignore the real context where songs are being sung, or behaviour is taking place. 

Singing the Sash in die-hard loyalist pub, for example, is unlikely to generate any mischief. But ministers were determined that this kind of - unattractive - behaviour should be prohibited by the legislation. In so doing, they made a mockery of the idea that the "public order" test was any meaningful limitation to the broad new offences created by the Act. 

So what's to be done? Repealing the Act simpliciter? As defenders of the legislation point out, what kind of message would that send to the diehard bigots, mischief-makers and trolls? And for that matter, what alternative is the opposition in the Scottish Parliament proposing? It is all very well to carp from the sidelines, but what constructive solution are James Kelly and his allies offering? Those are the Scottish Government's lines in today's spinwar. But there are a few obvious, practical solutions which the Cabinet Secretary for Justice, Michael Matheson, ought to be considering.  

In passing the Act in 2012, Holyrood gave ministers considerable power to amend the most controversial parts of the legislation.  We don't need new legislation to strip out the "behaviour the reasonable person considers offensive" provision of the Act.  Section 5 of the OFBA gives Michael Matheson the power to strike that provision from the statute book tomorrow. You'd be left, criminalising "expressions of hatred", and "threatening" behaviour.

It would be an altogether tougher spot, for Mr Kelly to defend abolishing those offences. Unless, that is, you approve of threatening behaviour in sports grounds. But the Act goes further. It also empowers ministers to draw a line through the daft provision, which instructs judges to invent potential incitees to public disorder. Again, this wouldn't require new legislation. Michael Matheson need only lay the order before Holyrood, and MSPs need only vote for it.

If the Scottish Government took both of these steps, the law would be considerably tightened. Procurators fiscal would have to establish (a) hateful or (b) threatening behaviour, and beyond that, they'd also have to establish that behaviour was "likely to incite public disorder" in the real context in which it takes place. That is a far higher test for prosecutors to satisfy, and doesn't transport our sheriffs to a fantasy land of invisible, touchy Queen of the South fans, or furious Dons, tired of unsubstantiated allegations of sheep-shagging.

If these reforms were introduced, in a trice, the Scottish Government would have eliminated the Act's most controversial (and badly thought-through) sections. The temperature would be turned up considerable on the opposition -- some of which is principled, but a good part of which is calculating, shallow and partisan. 

There is no shame in admitting you got things wrong. It was a bad Bill, introduced after a bad process, badly defended and badly enforced. To a significant extent, the outgoing FM must bear the burden of having foisted this inconvenient controversy on his successor. But there are obvious opportunities here for Nicola Sturgeon's government to revisit its errors, to make the law better, and to turn up the heat on their opponents.

As things stand -- the Scottish Government seems confident it can win the PR battles against James Kelly and his allies. It seems to have given scanty thought to reform, and to seizing the initiative from the serried ranks of their opponents. They seem primed to stare defeat in the face, but well-prepared to grouse about it. But for this critic of the legislation, they can do much, much better than that. They said they believed in this measure. Let them fix it. If they don't take these opportunities, they have only themselves to blame.


  1. "or furious Dons, tired of unsubstantiated allegations of sheep-shagging."

    I don't see why the allegations should have to be unsubstantiated to count.

  2. Sound suggestions. But what troubles me of all the criticism of the Act is that people endlessly go "Ah, but [ridiculous scenario] could happen, resulting in [awful infringement of civil liberties]!" What's always missing is a single instance when they actually HAVE, a single person who's been heinously wronged by the Act.

    For three years I've been asking its most hysterical critics for the name of a single OBFA martyr. Still waiting.

    1. Scott Lamont, 24, jailed last year in Glasgow for 4 months for singing "We are the Billy Boys." There you go.

    2. You wrote "ridiculous scenario... awful infringement of civil liberties." Scott Lamont. There you go.

    3. I think many UK laws stupid. I would still expect to be punished for breaking them though.

    4. Yes, but the vicar didn't clarify whether he was using the word "wronged" in a legal or a moral sense. Hence, he's been impaled on a kind of pun.

      If you heard that someone had been jailed for singing a song (say, in Saudi Arabia), you would normally react to the news with moral horror.

    5. "We're up to our knees in Fenian blood, surrender or you'll die".

      Screaming that at the top of your voice in public where there are likely to be 'Fenians' listening seems like a hate crime to me; change Fenian to lesbian. Or Muslim...

      It doesn't matter what law you use to discourage these arseholes, so long it is enforced.

    6. Up to our knees in Muslim blood? No, for the record, I don't think it should be illegal to sing that. Unless there was some kind of public emergency and martial law had been imposed.

      On the highly rare occasion that you heard people singing about Fenian blood, you might like to rebuke them yourself, in person. This is what I would do, as a fearless street-fighter against bigotry and injustice.

    7. Thinking about Tichy and the Reverend (great name for a band btw), I wonder if the unicorn in the room is not the ongoing normalisation of Scottish society, of us adopting the aspirations of modern social democracies.

      I can remember when it was normal - normal - for Orange bands to pause outside Catholic churches in Glasgow and play and sing louder. it was normal for Peter Kemp to be told he would not have been appointed Glasgow Herald editor had he been Catholic (though Kemp was a bit shocked). None of this I think would have been seen as normal in Birmingham, Oslo or Rennes.

    8. "The Scottish Government defines Hate Crime as crime committed against a person or property that is motivated by 'malice or ill-will towards an identifiable social group'. ... In Scotland, the law recognises hate crimes as crimes motivated by prejudice based on: Race. Religion. Sexual orientation."

      My bold.

    9. Ironically, that's exactly one of the key criticisms... If it's enough to invent notional incitees for the provisions of the Act to apply, surely it's also enough to invent notional misapplications for the purposes of criticism?

    10. No worries Edwin, though I can't imagine "Tychy and the Reverend" selling out the SECC, not as we currently are...

      Your point on sectarianism is well made and it almost convinces me. Yet, as someone who is often written off as a Unionist, I'd argue that the distrust of football fans, and the resort to legislation, is hardly just a Scottish phenomenon. The mentality that fans are animals whose behaviour has to be monitored and controlled by the state had led to the cages, had led to Hillsborough.

    11. 'the flanneled fools at the wicket,the muddied oafs at the goal'.

      You're right of course, class is in the sorry mix as well.

    12. 'Up to our knees in Muslim blood' That would actually have been a common sentiment among Scots crusaders such as the Black Douglas, carrier of Bruce's heart.

    13. According to Raymond of Aguilers on the sack of Jerusalem in 1099: "in the Temple and porch of Solomon, men rode in blood up to their knees and bridle reins."

      And the proddies only managed ankles. Poor show.

    14. ARNOLD Kemp of course - the Carlist Peter Kemp must have popped into my scrambled brain.

    15. The prosecution of Adam Richmond for singing an anti-sectarian song at a football match between Partick Thistle and Celtic.

  3. "or furious Dons, tired of unsubstantiated allegations of sheep-shagging."

    Fans of the Dundee clubs have been known to get the same insult in Glasgow - jealousy on the part of sex-starved weegies no doubt.

    I get a friend's seat at Celtic Park sometimes and was at the May 2013 game at which they were crowned champions. The Green Brigade sent round a big banner showing Salmond and a cop and a rhyme about SNP sending 'cops to your door’. It went round in slow motion, watched hungrily by stewards and cops until it reached a break in the stands, at which point it moved slowly back again to the GB, a striking display, and illustrative perhaps of the absurd progress of the bill itself. (I don't have any figures but I read somewhere that most people charged under the bill are not even Old Form fans.)

    I recognise the desire to do something to fix the problem, but the OBA hasn't been it. Ineffective policing has always been part of the problem, one compounded by resources. Anyone who lives a few streets from Hampden - where the cop perimeter ends - will tell you of street fights, close doors being peed on, and no law about at all. Songs about the sash or the Easter Rising are optional.

  4. Touchy Queen of the South fans? WHAT DO YOU MEAN BY THAT?

    (Interesting piece though, thanks)

  5. Wonder what the stats are on leanings of those arrested and whether they reflect the demographics of our constabulary

  6. Lallands Peat Worrier's suggested amendments to the Offensive Behaviour at Football Act (OBFA), if 'amendment' is the correct term in the circumstances, sound eminently sensible. But there's a couple of things about this article that concern me.

    Firstly, there is the fact that so much of the article is given over to what comes across as irascible, if not intemperate, attacks on the SNP administration responsible for the legislation. Perhaps I'm missing something here. Perhaps my disinterested attitude to football renders me unable to appreciate the justification for such a highly emotional perspective. But I cannot be other than cautious about any analysis which appears to owe more to hormones than neurons.

    Then there is the effort that LPW puts into emphasising (I do not say exaggerating) the vagueness of the law and the notion that, with something sufficiently less than the best will in the world, OBFA can be construed as applying much more broadly than LPW considers proper. So intent is he on persuading us that we all might fall within the compass of this legislation even as we lie innocently asleep in beds unadorned by footballing regalia of any kind, he loses sight (I do not say obscures) the fact that the law actually impinges only on that subset of the population which participates in a most odious form of anti-social behaviour.

    The one thing all of those caught by OBFA have in common is, not that they are self-evidently innocent, but that they stand accused of committing acts which society deems to be reprehensible. In this, OBFA is no different from any other law. So what's the problem? Of course, they remain innocent until proven guilty. Just as does any other accused person. They are absolutely entitled to due process. So, I ask again, what is the problem?

    The OBFA may be flawed. Although I am far from persuaded that the flaws are as serious as some make out. However, an important function of the law is to send signals. To lay down markers. The reason a clear majority of people in Scotland favour the legislation is that it serves as a declaration of our abhorrence for malicious sectarian agitation. I cannot be alone in insisting that this message must not be diluted through pandering to those with a strong emotional attachment to what is, after all, just a game. It could well be argued that an imperfect measure which sends a strong message is to be preferred over a perfect measure which is ineffective in communicating to the bigots among us just how determined we are that expressions of bigotry will not be accepted as part of Scotland's public life.

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