The SNP's sectarian politics is no way to fight sectarianism

The SNP's sectarian politics is no way to fight sectarianism

by Liam Kerr
article from Monday 24, July, 2017

THE SNP does not shy away from ill-conceived, controversial legislation – you only have to look at the past few years: the Named Person Scheme, the destruction of British Transport Police in Scotland, and the continued pressure for a divisive, unwanted Indyref2.

Arguably, however, the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 is the most unnecessary, illiberal and unworkable of all.

From March 2012, the legislation created two new offences, punishable with penalties of up to a maximum five-year prison sentence with an unlimited fine. The first new offence targets offensive behaviour experienced at football matches which is likely to cause public disorder; the second relates to the communication of threats of serious harm or which are intended to stir up religious hatred.

On its progress through Parliament, the Bill had no cross-party support. In fact, it was met with the opposite: criticism and disapproval from the opposition parties who believed the legislation was unfair, unworkable and inconsistent. Almost five years later and that consensus remains.

So much so that in November 2016, a clear majority of MSPs voted to repeal the 2012 Act as “matter of priority”.

They did so to urge the Scottish Government to listen to the vast majority of football fans, legal experts and now Parliament, and blow the full time whistle on this badly drafted and ill-thought-out piece of legislation once and for all.

Of the 3,200 football clubs and members of the public who took part in a consultation for the Member’s bill to repeal the Act, a hefty 71 per cent backed the repeal of Sections 1-5 and 61 per cent per cent supported abolishing Sections 6-9.

During the Stage 3 proceedings of the Bill, Roseanna Cunningham, then Minister for Community Safety and Legal Affairs, said: “the critical role for Government… is to ensure that the law is fit for purpose”.

I agree.

But that is precisely the issue with the argument that she and her SNP colleagues deploy: this legislation is not fit for purpose.

The stated aim was to tackle sectarianism. Such behaviour must be stamped out, but the Act has done little to help address the deep-rooted problems we face in Scotland. It is a short-term solution to a long-term problem; legislating for legislating’s sake; a political reaction for political gain, with little regard for the concerns, warnings and evidence brought forward by stakeholders, experts and fans alike.

A recent report from expert Dr Duncan Morrow said “there is no single, simple answer to deep seated issues of social division such as sectarianism.” This legislation does not achieve the balanced mix of community-led, civil and Government action that Morrow says is key to achieving real change. 

Not only that but it is unnecessary. The Law Society of Scotland have said that a “substantial portion” of behaviour which leads to a public disorder at football “was likely to be caught by the substantive criminal law which existed prior to the 2012 Act.”

In other words, this part of the Act does not improve on the law that was already in place.

Other parts of the statute place restrictions on our fundamental freedoms for no justifiable reason. Professor Sir Tom Devine has said the legislation, which was “pushed through by the SNP Government with no concern for the considered views of other parties and expert evidence to the contrary”, would go down in history as “the most illiberal and counterproductive Act passed by our young Parliament to date”.

You can see what Devine means when reading the ludicrously open-ended and ambiguous Section 1(2)(e), which criminalises any “other behaviour that a reasonable person would be likely to consider offensive”. It is no wonder that a senior judge has said the whole thing was “horribly drafted”.

It should always ring alarm bells when a Government starts telling its people what they can and cannot say, whether it’s on the terraces or on the streets. Of course there must be robust prosecution of racism and other hate crimes, but this law allows a football fan to be prosecuted even if there’s nobody around to be offended by them. And it must be wrong to judge a song illegal when sung at a football ground but not if it is sung by rugby supporters at Murrayfield. 

The Scottish Human Rights Commission expressed concerns in 2010 that the (then) Bill’s restrictions of freedom of expression made it contrary to human rights treaties. In 2014 the Commission even went as far as to report their concerns to the United Nations so that they could monitor whether the restrictions placed on freedom of speech “are truly necessary in a democratic society.”

It is clear that a free society must be able to tolerate views that it finds offensive. We best tackle sectarianism through the battleground of ideas and debate, and by challenging deep-seated perspectives – not through arbitrary criminalisation of a demographic mostly made up of working-class men.

Certain SNP MSPs have argued in the Chamber, in general terms that “bad law is better than no law”. I fundamentally disagree, particularly where existing law is adequate. And it is not even workable in the courts.

Responding to calls for evidence in 2016, the Law Society reiterated their previous concerns over “the enforceability of the legislation.” This is backed up by the latest statistics, which show only 175 people were proceeded against in 2015-16, including only two for the “threatening communications” part of the Act. The publication commented that the number of charges remains “relatively low”.

None of us want to see our society blighted by this problem either now or in the future and sectarianism must not and will not be tolerated. Sectarian violence, slogans and songs in and around Scotland’s stadiums can provoke distress and division for fans who just want to enjoy our national game. If we are to address this issue effectively, we need an enduring change in culture and attitudes. A change that happens in homes, in classrooms and communities. A change that we ought to be encouraging and supporting.

But this piece of legislation has not been the answer.

The SNP continue to bury its head in the sand and stand by this law. The Scottish Conservatives will instead stand by the academics, legal experts, football clubs and fans who opposed it then and continue to oppose it now and move to repeal this bad law.

Liam Kerr MSP is the Scottish Conservative & Unionist shadow cabinet secretary for Justice.


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