Scottish football seems to be embroiled in an endless battle to overcome the sectarian undertones that stain it. Although it has been claimed that the propensity of sectarian discrimination is a myth unsupported by evidence, the popular perception is that a problem exists and that more action is required to eradicate it.

The Scottish government this week publishes its amended Offensive Behaviour at Football and Threatening Communications (Scotland) Bill. If passed, two new criminal offences will be created. The first relates to offensive or threatening behaviour likely to incite public disorder at certain football matches. The second is “Threatening Communications” which will criminalise recorded exchanges that contain threats of serious violence or threats intended to incite religious hatred. Anyone convicted under the bill faces a maximum of five years imprisonment.

The proposals are a direct response to the escalation of sectarian incidents towards the end of the last football season and most profoundly, the sending of suspected parcel bombs to Celtic Manager Neil Lennon, Paul McBride QC and former MSP Trish Godman.

At its Stage One reading on 23^rd June, Community Safety and Legal Affairs Minister Rosana Cunningham, explained that such incidents represent “some of the most shameful behaviour and incidents that have been seen in many years. Those scenes were broadcast and reported on repeatedly and seen throughout the world, and the disorder, the bigotry, the threats and, ultimately, the bullets and bombs through the post have shamed not only Scottish football but Scotland itself.”

Although conceived as emergency legislation to be pushed through in time for the start of the current football season, First Minister Alex Salmond dropped this proposal in light of criticism and readmitted the bill to the Justice Committee for proper consideration. The Committee published its official report on 6 October and supported the creation of both new offences by a narrow majority. A further challenge to the bill from all opposition parties and Independent MSP Margo MacDonald was deflected last week. The Labour led motion, arguing that the government had failed to make its case, was defeated 64-53 when put before an SNP majority Parliament.

Despite the government maintaining the legislation is “proportionate, justified and in line with human rights law”, the proposals represent a significant threat to the right to freedom of expression.

The first concern centres around the broad definition of offensive “behaviour”. Section one provides that a person commits an offence if:

“in relation to a regulated football match (a) the person engages in behaviour of a kind described in subsection (2) and (b) the behaviour—(i) is likely to incite public disorder, or (ii) would be likely to incite public disorder.”

The “behaviour” referred to in subsection (2) is much wider in scope than that of a sectarian character and includes expressing hatred based on colour, nationality, disability and sexual orientation (s.1(4)). In this light, although the Lord Advocate’s Guidance states that the singing of national anthems will not be prosecuted “in the absence of any other aggravating, threatening or offensive behaviour”  by the letter of the law singing the adopted Scottish National Anthem “Flower of Scotland” may infringe the legislation given its anti-English sentiment. Distinct from these grounds, the definition includes behaviour that is merely “threatening” (s.1(2)(d)) or the catch-all, “other behaviour that a reasonable person would be likely to consider offensive” (s.1(2)(e)). These last sub-sections could include an infinite number of scenarios and remove any requirement for the “behaviour” to be discriminatory in nature.

This “behaviour” will amount to a criminal offence if it is “likely to incite public disorder” or “would be likely to incite public disorder”. This may seem to safeguard free speech by providing a robust hurdle to overcome. However, section 1(5) makes it clear that hypothetical public disorder is sufficient to contravene the legislation. Specifically, it includes circumstances where public disorder may occur if it were not for the fact that “persons likely to be incited to public disorder are not present or are not present in sufficient numbers.” There is no lower limit on the number of people required. Therefore, at least theoretically, a joke made between two individuals could amount to an offence under the proposals. Such a joke made privately between friends would not incite public disorder but it is not hard to imagine how the same remark shouted in a pub full of Rangers or Celtic supports would.

The definition of “regulated football match” is equally wide and open to abuse. Offensive behaviour at a football match for the purpose of section one includes not only behaviour within the ground but also journeys to or from the match (s.2(2)(c)). Consequently, jokes and banter between friends whilst driving down the motorway on route to the game may technically breach the law. The ambit of the “regulated football match” will extend to “any place (other than domestic premises) at which such a match is televised” (s.2(3)). Therefore aside from obviously covering pubs, hospitals and retail shops selling televisions may also be caught, again demonstrating the act’s potentially broad application.

The second new offence of “Threatening Communications” denotes recorded communications that are threatening and either likely to cause fear and alarm or stir up religious hatred (Section 5). Online conduct is clearly included within the reach of “threatening communications”. Section 5(6) does offer a defence if the communication was reasonable. However, no guidance is provided on what is meant by “reasonable”. The Internet Service Providers Association has noted that this part of the act “needs to be fully justified to ensure that the balance between freedom of expression and protection of users is found.”

Of particular unease is the potentially wide interpretation of “stir up religious hatred”. Many of the harmful freedom of expression implications associated with the Racial and Religious Hatred Act 2006 (which does not apply in Scotland) are relevant in this context. In particular, the bill risks making it an offence to offend satirise or mock religion. In a plural society it is important that a doctrine based on faith and not fact should be open to criticism. There seems little to justify singling out of religion for special attention at the expense of other at least equally worthy causes such as protection from racial hatred.

However, arguably, the most alarming aspect of the bill is the potential for a five year prison sentence to be imposed for committing either offence (s.1(6 and s.5(7))). This risks creating an atmosphere where people are afraid to speak about religion (or otherwise) including perhaps, discussing the merits of this very act. It is convenient to argue that in reality the law would not be applied draconically but should an uncomfortable situation arise the government may find it preferable for these uncomfortable situations to just to disappear.

The compatibility of a five year prison sentence with the European Convention of Human Rights is a further concern as Article 10 requires any interference with freedom of expression to be proportionate. And in any event, even if the offence could be enforced by the police, which is doubtful, there is the additional unfortunate consequence of the law making criminals of many young people.

Nevertheless, all the above omit one overarching point — the legislation is completely unnecessary. Simply put, the bill aims to legislate over issues already covered by existing laws. A person committing any offence under this act could currently be prosecuted for breach of the peace. In Scotland breach of the peace only requires a “disturbance to the community” Mark Harris v HMA [2009] HCJAC 8 and being a common law offence is not subject to a maximum sentence. More notable however is section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 which only came into force on 6 October 2010 and provides that:-

“A person commits an offence if:-(a)A behaves in a threatening or abusive manner; (b)the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and (c)A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.”

In October Stephen Birrell was sentenced to eight months imprisonment in contravention of this act after posting various sectarian remarks on a Facebook page entitled “Neil Lennon Should be Banned”. This presumably is the exact kind of offence the government would envisage being governed by the new legislation. Yet Birrell’s conviction only demonstrates that further legislation is not required. In times of deep cuts, government funds and resources would be better spent on matters not already on the statute book.

Following the recommendations made by the Justice Committee, the government is expected to publish its amended bill this week. Amendments are likely to extend the ambit of “offensive behaviour” to explicitly include age and gender discrimination, add a legislation review clause and include a specific free speech provision. Whilst the recognition of the threat the legislation poses to freedom of expression is welcomed, a genuine respect for free speech would take account of the problems outlined above. New additions only complicate an already opaque bill.

Recent events show that Scottish football is not without its problems off the pitch. Perhaps it’s Rangers’ and Celtic’s failure to address the issues that has moved the Scottish government to act. Nevertheless, the reactionary nature of the legislation has left notable gaps. Gaps create uncertainty. Uncertainty may lead to the silencing of free and open debate. And this is the chilling effect that the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill risks creating.

David Paton is a member of the steering group of and editor for the Scottish Human Rights Law Group

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Scotland’s Offensive Behaviour at Football and Threatening Communications Bill was originally going to be rushed through Holyrood as an emergency bill ahead of the new football season, but it was challenged in the courts in June. As the politicians reconvene to consider the sectarianism bill, a former senior policeman and the Roman Catholic Church in Scotland last week called on the government to postpone the legislation.

The Minister for Community Safety and Legal Affairs, Roseanna Cunningham, introduced the bill as a “a clear signal to the police, the courts, the football authorities and the clubs, and to the fans and the wider public, that offensive and sectarian behaviour around football matches is simply not acceptable. It is time to end this blight on our national game.”

Celtic supporters are traditionally associated with Catholicism and Irish nationalism; fans of Rangers have historic connections with Northern Ireland Protestants and British Unionism. Football chants and songs are often linked to the teams’ supposed Catholic/nationalist and Protestant/unionist divide.

The historically antagonistic relationship between the Celtic and Rangers teams — known collectively as the “Old Firm” — is well known, but observers are divided about its role in religious sectarianism.

The new bill comes in the wake of several football-related incidents: in March, Ally McCoist, Rangers’ assistant manager, and Celtic manager Neil Lennon clashed outside the tunnel, following a match in which three players were sent off. Thirty-four fans were arrested in the ground. In the same month, suspected bombs were sent to the Celtic manager Neil Lennon and two supporters of the club, MSP Trish Godman and Paul McBride QC.

The proposed legislation, a direct response to these events, will cover abusive behaviour in the stadium, pub and online. The maximum prison sentence would be increased from six months to five years. After the bill passed the first stage, it was successfully delayed in late June, following concerns that various issues had not been properly thought through.

Cause for concern?

The Lord Advocate, Frank Mulholland, has tried to assuage concerns about the bill’s implications for freedom of expression by emphasising that facts, circumstances and context determine the offence, but club supporters and civil liberties activists are not persuaded.

Kevin Rooney, a Celtic-supporting teacher, has sympathy for chanting as it is a part of fans’ identity and has “no real substance, in regards to events in Northern Ireland”.

“Old firm fans are becoming the whipping boys for a new breed of intolerance masquerading as anti-sectarianism and this new law is the epitome of this new illiberalism.”

Rooney doesn’t have a problem with anti-Catholic chants sung by Rangers fans either. “If you go to a football match you have to have a thick skin”.

“I’m not saying it’s nice, but it’s life.”

Fans should be allowed to be offensive and sometimes Celtic and Ranger supporters “want the right not to like each other”, he says.

The rivalry has no real significance, in Rooney’s view: the fans go home to intermixed communities and the outcry about football-related sectarian violence is in “inverse proportion to its reality”.

In fact, he claims, there is desire among Celtic fans, who “don’t want to let the club down”, to appear respectable.

The proposed bill is simply part of a “moral panic” instigated by “middle-class do-gooders”, Rooney argues. What’s more, he says, the shape of the legislation has not been properly considered.

His view is supported by Dr Stuart Waiton, sociology and criminology lecturer at the University of Abertay Dundee, and founder of civil liberties blog Take A Liberty (Scotland), who believes certain behaviour at football matches has been wrongly conflated with violent acts.

Writing on The Free Society site, he argues “the Football Bill itself often reads as rather unworldly in its attempts to connect all sorts of social problems and incidents, like domestic violence or the sending of mail bombs, with the chanting of songs at football matches.

“By doing this, time and again the idea that, ‘we must stamp out this sectarianism’ can be repeated almost as a mantra, without any real clarity about what we are talking about.”

Waiton, supported by Rooney and others, has launched a petition against the Bill , with over 1,450 signatures at the time of writing. Waiton’s concern is that the new law will have wider repercussions for the culture of Scotland, “where a form of speech strait jacket will be further tightened”.

Beyond religious hatred

Other critics raise different concerns. Tim Hopkins, director of the Equality Network, was initially worried by the speed at which the bill was being rushed through; the bill’s subsequent extension has allowed his organisation time to conduct a small survey about the its remit.

In his view, the legislation repeats what is already in place under the common law offence of breach of the peace, but it could still provide a useful function, he says. “The value of the bill is to have [the law] clearly stated.” It will “make it easier for police to police [hatred],” he adds. “There can be value in codifying crime into legislation.”

Lilian Edwards, professor of e-governance at Strathclyde University, agrees that common law already governs this type of behaviour. She also points to other statutory measures: “Even if you think common law assault (which definitely makes threats an offence) is too vague for the police to charge (or even plain old breach of the peace), there is statute already quite sufficient”. In UK, for example, there is Section 127 of the Communications Act 2003 and in Scotland, Section 38 of the Criminal Justice and Licensing Act 2010, where breach of the peace also used.

Hopkins has identified a number of problems about the bill’s wording, and would like to see sexual orientation specifically addressed in Section 5 on threatening communications, as well as religious hatred. Amnesty International makes a similar point in its written submission to the Justice Committee: it does not advocate elevating religious hatred above other forms of discrimination.

Freedom of expression

While Amnesty “welcomes efforts to tackle the existence of sectarianism and intolerance in our society”, it also emphasises the ECHR right to freedom of expression. Hopkins is confident, however, that Article 10 will protect citizens’ right to free expression. In accordance with the Scotland Act 1998 , legislation is not law if it conflicts with the European Convention on Human Rights, he explains.

Harmless football chanting is unlikely to be affected, in Hopkins’ view: just as street preachers would have to cross a line for their statements to be considered an offence under common law, there’s a “similar kind of boundary” to what you can and can’t chant, he says.

Dr David McArdle, from Stirling Law School, agrees that the bill would be unlikely to have much effect on freedom of speech because existing laws already govern religious hatred: “The main implication will be that those laws, in whichever form the crown uses them, will be used more robustly — more prosecutions, more custodial sentences, more football banning orders.”

Additionally, he is concerned by the bill’s attempt to “criminalise” singing: “[I] don’t like football, I’m not religious, I’m not Scottish so for the life of me I don’t fully understand what’s going on and I wish all these people would crawl back into their respective holes, but music is an incredibly powerful social phenomenon — that’s why totalitarian regimes are most successful when they can police a culture’s music, literature or art out of existence — and for a mature democracy to seek to prevent people singing songs on the basis that others will find them distasteful or provocative isn’t a route we should be going down.”

The football songs should not be taken too seriously, he says: “If you look at the most high-profile one, The Famine Song: well there’s very little in there which can be properly regarded as offensive – there’s no swearing and you hear far worse week in-week out at grounds down south.” That is not to say there aren’t problems associated with football, he adds, “but it’s in the form of domestic violence, violence against vulnerable groups, knife crime, drink driving and so on”.

Alternatives to legislation

McArdle believes this legislation is unnecessary. In his view, “the robust application of the existing laws in appropriate cases — and a greater degree of proactivity on the part of the clubs themselves than we have seen hitherto — should be the default position”.

“We need to determine what is an appropriate response to ‘fighting words’ but yet more criminal law isn’t it. Abolishing faith-based schools would be a better long-term strategy: it’s not ok that, by the age of five, we have thousands of children every year who know that there’s us, and there’s the other lot. That’s ‘Scotland’s Shame’, and to expect football clubs to deal with the consequences of that is entirely unrealistic.”

Digital policing

And what of the internet? Hopkins pointed out to the Justice Committee that Section 5 on threatening communication makes a distinction between recorded and unrecorded speech. As he told the committee in June, it could create a situation in which “it would not be an offence to say a thing publicly, but it would be an offence if it were written down and reported on the blog of the person who said it, or if the organisation that the person was a member of reported it on its website, or if someone recorded it on a mobile phone and made a YouTube video out of it.” In his view, “that would not make sense”.

Edwards has flagged up other difficulties about the bill’s digital provisions. The Bill applies to “postings, messages etc., displayed in, or primarily intended to be seen in Scotland”, but she is wary of the practicalities of enforcing the law.

An obvious and easy evasion tactic would be to host a sectarian website abroad, she explains, where they would be protected by the US First Amendment. “In such cases it will be almost impossible to get the material taken down whether or not Scots law claims it is criminal,” she says. It would be difficult and expensive for the authorities to find out who the owner of a website was.

“Even if a foreign host was willing to disclose the ID of the person who subscribed to get a website host, it would be very easy to hide that identity by giving false credentials,” she adds. “In short this part of the bill is likely to be completely unenforceable and mainly symbolic.”

The committee has these — and other — problems to address when it re-considers the bill after the summer recess. Even with the time extension, there is a lot of ground to cover.

The Justice Committee will reconvene in September. The bill must pass the Stage 2 deadline by 11 November of this year; it will then be debated by MSPs in the Scottish Parliament. Written submissions and oral evidence given to date are available on the Parliamentary site.

Judith Townend is a freelance journalist and PhD candidate based at City University London. Her blog meejalaw covers digital media law

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