Government attempts to clamp down on sectarian abuse and violence are a recipe for uncertainty and censorship, says David Paton
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 23rd 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  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