Serious concerns have been raised by political activists and civic society regarding the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (henceforth, OBFA). In coming to this debate, I am interested in free speech, online media, and fair trials. Legally, it is a wide-open bourach.
I nominally support Hibernian FC. (A socialist, and a Hibs supporter? You learn to make friends with defeat and soul-rending pain.) I have occasionally been to a football match – the last one was against the club formerly known as Rangers. Afterwards, I was called “a specky Fenian bastard”. Sectarianism is shameful. Religious discrimination by any section of society is unacceptable. Its presence in football is an extension of centuries of anti-Irish racism and melting-pot conflict.
In its boiled down essence, the Act sets out to criminalise behaviour “likely to lead to public disorder which expresses or incites hatred, is threatening or is otherwise offensive to a reasonable person” in an achingly wide vicinity of football.
It is in the underlined clause which reveals the class issues. Cat Boyd, in her The National column, correctly grasps it: ‘“Offensive” behaviour tends to be committed by poor and vulnerable people who violate rich people’s social norms; by contrast, dominant group behaviour is rarely seen as “offensive”’. It hands over far too much power to agents of a newly centralised and Metropolitan authoritarian police structure. Also, who counts as a “reasonable person”? Senior policemen, judges, pious blood and thunder politicians? Basically, middle class people.
Furthermore, the broad scope of the act extends far beyond sectarian filth. Scottish Socialist Party member Rod Copeland noted: “It covers the second you leave your house to the second you return from the match (including European trips), and it covers any football being in a pub when a Scottish game is on TV”. It is repulsively broad – “the legislation makes it one law for a football fan & another for the rest of the population.”
In actual practice, the police seem to be using the OBFA to explicitly avoid actively policing disorder & anti-social behaviour at matches. You can hear sectarian singing loud and clear there, and this is not tackled. The tactics are instead filming supporters and using dawn raids months afterwards. This is not the practise of a liberal society.
No anti-sectarian provision
Scottish Government supporters argue that it is a bill for the purpose of dealing with sectarian behaviour. This is false. The legislation itself makes no provision for sectarian behaviour. It is also damaging to livelihoods. Arrests and convictions under the act, where no hate crime or speech has been committed comes with a damning spectre of sectarianism.
People have been ostracised, dragged through the courts, banned from football, then months later when the case is dropped, a not-guilty verdict reached. The accused missed the entertainment they had paid for with no recompense. Additionally, the accused who lose their jobs are damaged because their employers incorrectly believe the OBFA is introduced to deal with sectarianism.
The lawmaking process which led to the OBFA coming into force – slammed home by an SNP majority government desperately looking for a swift resolution – does not reflect the Scotland I seek. Law which prescribes against social problems should be clear and unambiguous, encompassing the specific areas, avenues and means and not one line or context more – otherwise it’s open to abuse and clear ignorance which damages lives.
In response to letters as to why the wording of the legislation consciously excludes ‘sectarianism’, representatives of former First Minister Alex Salmond made claims the aim is to tackle ‘offensiveness’. This should set alarm bells ringing in anyone who values freedom of speech.
Creating a law which outlaws something as subjective as ‘offensiveness’ is both ridiculous and inherently dangerous. It creates a broadening blurring of what is allowed and what is not. It is very easy to see how freedom of speech is under immense risk.
Sectarian hate crime legislation is already given purpose, vigour and legislative power via previously existing clearly defined law; breach of the peace and its racially-aggravated derivatives encompass the legal tools for police and prosecutors to deal with hate crimes.
Since the time of its enactment, it has been lambasted by academics, ridiculed by lawyers and dismissed as ‘mince’ and a ‘nonsense’ by judges of the Sheriff court. The legal consensus is that it is a worse than useless law.
It is for all of these reasons: the scope of the law, the lack of legal clarity on offences, the tin-eared class ignorance, the damaging social nature of the Scottish Government’s false-flag “let’s fight sectarianism” strategy, that any such amending of the act would inevitably be a top-to-tail turd polishing exercise.
Encouraging amendments simply liberates political Tory, Labour, SNP and Liberal infighting, while the Greens hold king-maker over the results. It is a waste of Holyrood time, while political parties chew over the bones.
A repeal, and a subsequent period of analysis and reaching out to affected people, football clubs, fans’ organisations, domestic violence organisations and anti-sectarianism groups to develop a multi-faceted policy platform geared towards truly tackling Scotland’s shame, and promoting an inclusive environment at football games is the correct step – it would also correctly demonstrate political humility.
Scottish clubs have been reluctant to follow Uefa’s lead on strict liability, which is essentially adopting a regulatory framework that makes clubs responsible for their supporters’ conduct within football stadiums – thereby forcing the clubs to get their houses in order. This is a reasonable regulatory avenue, also – but the Scottish Government will require persuading of its merits.
The Scottish Socialist Party will work with others towards the immediate repeal of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act (2012). It will also participate in the bringing together of disparate threads of Scottish society to create a lasting solution against the underlying insidious nature of anti-Irish bigotry and sectarian forces.
Until it’s repealed, let us hope that George Osborne doesn’t attend a football game in Scotland. He might get offended by cacophonous curse words, and then everyone’s buggered.