Offensive Behaviour at Football etc. Bill: Further assessment of the Bill (Part 3)

This is the third and final part of a series of articles on the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill coming after the Scottish Parliament Justice Committee issued its stage 2 report on Thursday in support of the Bill (by majority).  The first part which gives a brief background to the Bill and looks at the first offence to be created by the Bill can be read here while the second part which focuses on the second offence can be read here.  This final part will look at more general matters and come to a conclusion on the Bill.

One of the first more general aspects to be looked at is the so Committee’s support for a clause within the Bill requiring the Scottish Government to review the legislation at a defined point in the future.  This strikes as an admission that the legislation is not actually right.  Legislation should, as a matter of course, be under constant review to ensure that nothing needs to be altered and tweaked as society changes and the interpretation of international instruments such as the European Convention on Human Rights develops.  Why the Government insists on rushing this through is beyond comprehension.  It featured nowhere in the SNP manifesto in the election and seemed to somewhat come out of the blue following the events of some football games earlier in the year, rushed legislation is never good legislation.  While the initial timescale was extended to allow further time for the legislation to pass it has not been extended enough.  This type of legislation is extremely complex and takes time to ensure that it is right first time.  There is little point in passing legislation and then discovering that it criminalises people for conduct which the Government had not envisaged or even worse doesn’t catch that conduct which it was intended to catch.  It’s worth noting that it took the UK Government a number of years to pass its religious hatred legislation as it was refined and made better so that what was passed was something as close to right as was reasonably practicable.

There is no doubting the SNPs desire to tackle sectarianism and indeed it is hard to imagine any MSP in the Parliament who would not be so determined.  The First Minister’s rhetoric that suggests those who do not support his legislation are part of the problem is entirely unhelpful.  The exchanges during First Minister’s Question Time on Thursday revealed that this has become about political point scoring.  This issue is far too important for politicians to be trying to score one over on each other.

The proposed legislation itself will not eradicate sectarianism; in fact it won’t even come close to it.  The problem is far wider that football and it infects the wider society.  Sectarian comments and references can be heard in circumstances entirely outside of football.  Any changes in the law on this issue must come as part of a wider plan to tackle sectarianism.  The legislation ignores the fact that it is a wider societal problem.  There needs to be a co-ordinated plan looking at the criminal law (if it were accepted that changes are needed, something which is heavily debated) as well as education.  Much of these behaviours are learned behaviours.  Children pick them up as they grow and develop.  They hear their parents and other role models in their lives conducting themselves in such ways and pic these behaviours up.  Getting into schools and communities to educate and build bridges is essential.  The Government keep telling the people of Scotland that they are working on a wider plan beyond the legislation.  However, the plan should have come before the legislation.  The legislation should have been in response to a wide-ranging expert review on the issue.  Unilateral changes in the criminal law on issues as complex and important as this one is will do more harm than good.

Passing legislation gives the First Minister and his party the sound bites they want.  It allows them to point to a piece of legislation and say that they enacted it and that this proves their credentials as being tough on sectarianism and committed to eradicating it.  It ignores the evidence provided to the Committee.  This is dangerous.  Why bother asking for evidence and examining witnesses if it is simply going to be ignored and Committee members are going to vote along party political lines.  The case has not been made out and the MSPS on the justice committee, regardless of political persuasion, should have reported this.

When the First Minister won his historic election victory in May he said that while the SNP had the majority of seats it did not have the majority of wisdom.  At the first real test of the Government’s belief in this it has spectacularly failed.

Other general issues with the Bill include the inclusion of other “protected characteristics” within the legislation.  While it might be necessary to deal with other behaviours, such as the making of homophobic remarks, this Bill was introduced with a clear aim: to deal with sectarianism in football.  The other “protected characteristics” included within the Bill seem to have just been added there for the sake of it.  They do not help with the main published aim of the Bill.

The Justice Committee has decided by a majority (With only the SNP members voting in favour) that the Government had made out its claims that the current law in Scotland was insufficient in dealing with the sectarian problem currently facing Scotland, particularly around football, and that legislation had to be introduced to deal with these problems.

This is a totally illogical position for the majority of the Committee members to have arrived at and can be demonstrated by simply reading the report.  Throughout the report the Committee constantly contradicts itself.  The Committee seeks clarification on an area of the law to which it said it had heard little evidence on its operation.  That wouldn’t be too much of a problem if it were not for the fact that this particular area of the law was one to which witnesses were pointing to as a reason why the legislation is not required.

This particular area of law is the offence under Section 38 of the Criminal Justice and Licencing (Scotland) Act 2010.  The Committee and the Government have focused on Breach of the Peace in their deliberations over this Bill.  However, the SNP Government brought in the s38 offence as a way of dealing with the inability of Breach of the Peace to cover certain situations.  There has been no proper analysis of this legislation and its use in relation to football.  A request for information under the Freedom of Information (Scotland) Act 2002 revealed how frequently the offence is being used generally across Scotland.  Clearly it is serving a purpose given that at the time these figures were obtained the offence had been in place for less than 12 months.

The length of time that s38 has been in existence is also a consideration.  If legislation is passed it needs time to operate before the Government can declare that there are gaps in the law.  The fact that this offence is still less than 12 months old suggests that not enough research and analysis can have been conducted on it and that more time would be required for this to happen.  Indeed, as pointed out in part 1, the Justice Committee pointed to specific examples of where s38 had been used in relation to football related sectarianism.

Politicians can fall into the trap of thinking that they can legislate to fix every problem in society.  If legislation stopped people from doing things then there would be no crime at all.  Problems as complex as this and which have an intrinsic social element cannot be dealt with by unilateral changes to the criminal law; they need a more focused solution.  That may indeed involve criminal legislation, but it will also involve education and certainly education will lie at the heart of any successful plan to tackle this problem.

 The only conclusion that can be drawn at this stage is that the Bill in its current form is not fit to be passed as legislation.  There are too many concerns around rights and freedoms in the way the Bill has been drafted, particularly with the wide way in which it has been drafted.  The Government has fundamentally failed to demonstrate that the current Bill represents a proportional means to a legitimate aim.  The current law has not been proven to be lacking and in view of that it cannot be argued that this Bill is even necessary.

 The Bill will go back to the Scottish Parliament before the end of the year for Stage 3.  No doubt many amendments will be proposed to the Bill and voted on.  No doubt much more will be written on the Bill between now and then.  However, if you are in agreement that the Bill is wrong in its current form then it is important that you make this known to your MSPs.  Remember there is not just your constituency MSPs but also the MSPs representing the larger region within which your constituency lies.  Write to them all expressing your concerns.  This is far too important an issue to remain silent on.