The Offensive Behaviour at Football and Threatening Communications (Scotland) Bill
The haste with which the Scottish Government seeks to put through the proposed legislation http://bit.ly/iTEH3y to deal with the acute sectarian issue in Scotland and Scottish football seems, on close examination, to be unnecessary. A flurry of eminent parties, from the Kirk to politicians of all political hues, together with the Law Society, have criticised the speed with which it is proposed this legislation is to be dealt with (and with the SNP majority there is little doubt it will be passed on time.)
It is often the case that rushed law is bad law, whether it is drafted on the crest of a wave of public or media hysteria (e.g. the Dangerous Dogs Act 1991); because it is hurried through to meet a perceived political need (the post-Cadder Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010) or simply because the Government wishes to be seen to be “doing something”, whether it is necessary or will be effective at all.
One of the complaints about the Westminster legislative process was and is that law can be passed after little or no proper scrutiny, especially if at the end of a Parliamentary session, and as statute law has increased in size and complexity, there is often little or no time to have the Commons in particular scrutinise a Bill thoroughly.
To deal with this issue in the Scottish Parliament, and the absence of a revising chamber, the legislative process was broken down in such a way as to allow the Parliament, both in the chamber and in committee, to consider legislation fully and indeed to consider evidence from experts and interested parties before finalising the new law.
If therefore the Scottish Government feels that it is necessary to by-pass these checks and balances to rush a new law on to the statute book, we are entitled to ask why, and to consider if such a change is justified, both politically and legally.
One of the advantages of the Scottish system is that a Bill comes with additional documents attached, being Explanatory Notes and a Financial Memorandum detailing the cost effects, if any, of the Bill http://bit.ly/jivL9T and a Policy Memorandum, explaining what the legislation is for and why it is considered necessary http://bit.ly/kyBvLn.
Might this extra information help us to see whether the Bill needs to be rushed through at all?
The Government has made it clear that it wants this Bill to be law in time for the next football season which effectively means it must pass through its stages by the end of this month (June). The Government has announced that it will listen to comments, and the closing date for these is only one week away!
The Policy Memorandum starts by quoting the First Minister, speaking in Parliament on 18th May 2011, where he referred to sectarianism as a “parasite” that would not be tolerated as part of our national game or elsewhere in this society.
The objective of the Bill is “to tackle sectarianism by preventing offensive and threatening behaviour related to football matches and preventing the communication of threatening material, particularly where it incites religious hatred. These measures are intended to help make Scotland safer and stronger, and contribute to tackling inequalities in Scottish society.”
The Bill seeks to do so by creation of two new offences, the first criminalising “the full range of offensive and threatening behaviour, including “sectarian” behaviour, at or in connection with football matches,” whilst the second criminalises “threatening, or inciting, serious violence and threats which incite religious hatred.”
Though the press coverage and the statements by SNP politicians have made repeated reference to this legalisation being needed to fight “sectarianism” the Memorandum states that “We intend that these measures will cover all offensive or threatening behaviour at football matches, regardless of whether it is “sectarian”. This means offensive or threatening behaviour likely to incite public disorder, whether that is through songs and chants, displaying banners or otherwise. In terms of threatening communications, the focus is on threatening or inciting serious harm intended to cause fear and alarm or threats that incite religious hatred, regardless of whether such communications are of a “sectarian” character or not.” (All emphases added.)
When therefore is an anti-sectarian Bill not an anti-sectarian Bill?
The Memorandum continues by referring to the Bill seeking “to strengthen our established laws to ensure that we can root out these violent and bigoted attitudes and behaviours from Scottish society and make our communities safer.”
Interesting – this suggests not that we have a gap in the law that needs to be filled, but that it is something built on what is already there.
The Memorandum continues “The primary but not sole motivation for the measures in this Bill, both in terms of the nature of the measures themselves and the urgency with which we are seeking to introduce them, concerns football. Football is Scotland’s national game; it brings pleasure to millions and can serve to bring communities closer together … However, there is absolutely no place in football for those who let their passion become violence, or their pride become bigotry.” Sentiments few would argue with there, as anyone who has attended a major football match, especially involving one or both of the “Old Firm” can testify.
So where is the need for urgency now?
As regards football related offensive behaviour, the Memorandum continues “These are not new problems ... While increasingly effective policing has meant that there have been improvements, in terms of the behaviour within football grounds, stubborn elements remain including “sectarian” and otherwise offensive chanting.”
Still looking for the need for urgency…
The Memorandum then goes on to summarise briefly some of the unsavoury events connected to Scottish football last season, including “ ‘sectarian’ and offensive behaviour, misconduct from players and managers, death threats, and live ammunition and bombs sent to prominent figures directly and indirectly associated with football”.
It would be surprising if the law did not have the tools to hand to deal with these matters already. It will not be a shock to the reader to find out that Scots Law, as it stands, potentially criminalizes all of the above without the need for new law. I will pass over or now the matter of “offensive” behaviour and whether there is a right not to be offended – an argument for another day.
Reference is then made to the publicity given round the world to these matters, and to the shame this brings to Scotland. “Decisive and immediate action is required to begin to repair this damage and to demonstrate our collective view that such attitudes and behaviours will no longer be tolerated in any form. This Bill is a crucial first step in pursuing our vision for a better Scotland.”
Here we seem to be getting to the reason for the haste – it’s not that the law is necessary to deal with people who are creeping through the gaps in the statue books, but instead, it is so that the Government is seen to be doing something.
The summit which took place after the Old Firm debacles earlier this year is referred to, when the various parties were gathered together, to be seen to be doing something. At that summit in March “agreement was reached to work together to tackle the serious social issues affecting Scottish football; including sectarianism, alcohol misuse and violence.”
However, after the summit, further serious incidents occurred, “which caused even greater damage to the reputation of Scottish football and to our nation’s reputation as a tolerant and inclusive society. These incidents demand a serious and immediate response and this Bill is a central part of that response, reinforcing the Scottish Government’s full commitment to the work of the Joint Action Group and to our wider work on sectarianism. There is no doubt that a transformation of attitudes and behaviours is needed to restore Scottish football’s reputation. Small steps are no longer adequate; the context of Scottish football needs to change from one too often dragged down by the negative, to one that again can encourage and sustain the pride and passion for which Scottish supporters are still known throughout the world. All the partners in the Joint Action Group share this vision for Scottish football, which reflects the Government’s wider vision for a better Scotland.”
So there we have it – new law, and at a rush, so that the message goes out to the “small, often determined, minority for whom provoking, antagonising, threatening and offending are seen as part and parcel of what it means to support a football team. Whatever their motivation, this Bill seeks to demonstrate that such a view is mistaken and will no longer be accepted.”
The late Sheriff Fitzsimons, who presided so wisely at Dumbarton, was a great man for “having a message go out”. If he was about to sentence a miscreant who had committed a particularly objectionable offence, perhaps of a type becoming unduly prevalent in the area, the local newspaper reporter would appear, as if by magic, pencil sharpened, just in time to record the Sheriff’s stern words that such behaviour would not be tolerated, and that people found guilty of such charges faced severe penalties. The local paper then had its front page story, with “the message going out” to the local community. It did not need legislation to do this. Education and publicity could get the message across.
Dealing with the specifics of the proposed new football related offence, the Memorandum states “At present, disorderly and offensive behaviour at football matches can, in certain circumstances, be prosecuted under the common law as a breach of the peace, or using the offence of “threatening and abusive behaviour” at section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. Where there is a racist element to the behaviour, prosecution using the offences at Part III of the Public Order Act 1986 (incitement of racial hatred) may also be appropriate. Section 74 of the Criminal Justice (Scotland) Act 2003 and section 96 of the Crime and Disorder Act 1986, which provide for statutory aggravations on grounds of religious or racial hatred, might also be relevant.”
But “there is concern that a substantial proportion of offensive behaviour related to football which leads to public disorder is not explicitly caught by current law. Such offensive behaviour might not satisfy the strict criteria for causing ‘fear and alarm’ required to prove Breach of the Peace, or section 38 of the 2010 Act. The Bill, therefore, seeks to put beyond doubt that behaviour related to football matches which is likely to incite public disorder and which would be offensive to any reasonable person is a criminal offence. Introducing this offence will serve to clarify rather than complicate the law, and will provide reassurance to the public in relation to our collective abhorrence of this sort of behaviour. It will serve to send a very clear and powerful signal to football fans and the public more generally that such behaviour at football matches is simply unacceptable. It will also mean that an offender’s criminal record will clearly show that that he or she had engaged in offensive behaviour specifically related to football, rather than any more general offence.”
We come to perhaps the crux of this new offence. The implication is, to me, that conduct that was not formerly criminal, now may well be. If the conduct was not criminal before, then what justifies it being criminalised now? Are there examples the Government can give us to see how they see this offence being used rather than a breach of the peace charge? In addition, note that an Act of 2010 is referred to, and it is stated that that might not be framed properly to catch the behaviour at the focus of this Bill. How many cases have been dropped by the prosecuting authorities because s38 of the 2010 Act does not go far enough?
The Memorandum goes on to address the second new offence, that of “Threatening Communications”. Perhaps here there is a lacuna needing to be filled?
Or perhaps not…
“Whether it be in open view in banners waved, or behind the wrongly presumed anonymity of a computer keyboard, threats to seriously harm or threats intended to stir up religious hatred have no place in the Scotland we want to live in. Such acts are often already criminal but the range of ways in which such threatening behaviour can be expressed requires a stronger response from the law. Threats to seriously harm another person or threats intended to stir up religious hatred are simply unacceptable and this Bill will serve to ensure that they are also serious crimes.”
I would be astonished if the Government believes what the last sentence seems to be suggesting, namely that threats to seriously harm another person or threats intended to stir up religious hatred are not covered by existing law, even if the old standby of “Breach of the Peace”. Whilst in Scotland there has been no specific offence of “stirring up religious hatred” till now is the creation of one truly necessary, or are we doing it simply to keep up with England and Wales?
As regards this proposed offence “there is a wider problem with the posting of threatening material, including bullets, and the motivation for these threats appears to be of a “sectarian” nature. This threatening material appears intended to stir up hatred against people of a particular religious faith or ethnicity and create or contribute to an atmosphere in which some see it as acceptable to threaten certain individuals with serious violence. The Bill, therefore, does not confine the threatening communications offence to football, nor to “sectarian” incidents. Threatening communications are a serious concern, regardless of whether they are, or can be proven to be, “sectarian” or connected to football.”
Are the matters to be covered by this new offence not crimes already though? “There are a number of offence provisions which may currently apply in respect of the making of threatening communications. These include the common law offences of breach of the peace and uttering threats, the offence of “threatening and abusive behaviour” at section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and the offences at Part III of the Public Order Act 1986 (incitement of racial hatred). Section 74 of the Criminal Justice (Scotland) Act 2003 and section 96 of the Crime and Disorder Act 1986, which provide for statutory aggravations on grounds of religious or racial hatred, might also be relevant. Furthermore, it is a crime in itself under Scots law to incite the commission of a criminal offence. Finally, where the communication is electronic in nature, section 127 of the Communications Act 2003 criminalises “improper use of a public electronic communications network”, specifically the sending of a message or other matter that is grossly offensive, or of an indecent, obscene or menacing character.”
That seems very comprehensive. Surely the matters we want to catch in this new offence are already subject to the law as mentioned above?
“While these laws are in place they are not always easily applied to this behaviour. The requirement for a “public element” can make a charge of breach of the peace difficult to bring in some cases. It can also be difficult to establish that someone actually intended to carry out a threat or incite someone else to commit a crime in relation to the common law offences of uttering threats and incitement. While the offence of “threatening and abusive behaviour” does not require a public element, it does require that the behaviour must be of a threatening and abusive manner and could not necessarily be used to prosecute threats made with the intent of inciting religious hatred. Finally, in relation to electronic communications, case law has left some doubt about whether the Communications Act offence can be used to prosecute people who create offensive websites or “groups” on social networks, as opposed to sending threatening emails or other communications.”
As has been seen recently in England in the “Twitter Joke Trial” http://www.guardian.co.uk/law/twitter-joke-trial, the Communications Act has been used to prosecute what, frankly, was a clear joke made on Twitter. Bearing in mind the vile nature of the material being referred to here, I find it hard to believe that the existing law does not give the prosecution enough to frame a suitable charge. Again some information as to how many cases have not been prosecuted, only because of this lacuna, would be useful.
In relation to serious matters, the issue should be more clear cut, as the Memorandum states that “where there is compelling evidence that a person making a threat to kill a person intends to act upon that threat, it would be possible to charge the person with uttering threats or conspiracy to murder, which carry a maximum penalty of life imprisonment. This offence is intended to deal with threats of death or serious injury where there may not be evidence of intention to carry it out, including where the person making such a threat may not intend to carry it out, but who nonetheless causes fear and alarm to those subjected to such threats.”
Surely there have not been any cases dropped where the latter situation has applied? If so, what were the circumstances and why?
The Memorandum then proceeds to its conclusion, saying “these are issues that have poisoned the national game for a long time now. We are clear that very few people will deny that action is due. It is a manifesto commitment of the Government to take a “zero tolerance” approach to the problems of violence and sectarianism. This provides a clear mandate for action. The very serious nature of the disorder associated with Scottish football and the recent prevalence of serious threats communicated through an increasing variety of means, demanded that this necessary action also be immediate to ensure that any necessary measures are in place ahead of the next football season to address any repetition of such unacceptable behaviour.”
It is clear that right minded people want something to be done about these matters. However, should politicians question the specifics of the proposals, I trust they will not be accused of being soft on sectarianism! The job of the opposition is to challenge the necessity for this new law, and to ensure that, if there are gaps to be filled, this Bill does so. As has been shown above, the imperative is “doing something” rather than having to do so.
“Considerable thought was given to whether the necessary and immediate action need involve a Bill to create new criminal offences or whether it could have involved a further determination to use existing measures more effectively. While in relation to offensive and disorderly conduct at football matches there is coverage of existing law in relation to most of the behaviour we are seeking to eradicate, there are nevertheless areas where greater clarity and a strengthened response would be beneficial. In relation to the communication of threatening material, there is an obvious gap when compared to elsewhere in the UK regarding the behaviour we are seeking to eradicate. It is clear, therefore, that legislation is required to achieve our stated aims.”
The points above are arguable and, as yet, the information produced by the Government does not, to my eyes anyway, justify the need for this new legislation. It is also surprising, referring back to the Lallands Peat Worrier article linked to above, that the SNP Government seem to want to ride on English coat tails here!
The rousing final chorus of the Memorandum addresses the need for speed. “To allow the measures introduced by this Bill to be in place by the start of the new football season, will require a fast-track parliamentary process. We accept that this will limit the time available for detailed scrutiny of the Bill. The Scottish Government has considered carefully whether the benefits of a more prolonged parliamentary process to allow more time for discussion and wider consultation would outweigh the risks of further damage to Scottish football and our society if we do not take immediate action to address the issues arising during the 2010/11 season. The Government is convinced that responding quickly and decisively to the seriousness of the situation we find ourselves in is, on balance, more important…The need for a fast track procedure to ensure that the new offences created by the Bill are in place in time for the 2011/12 football season has been an important consideration for the Scottish Government in considering the scope and content of the Bill. This Policy Memorandum makes clear that the specific impetus for this fast track legislation was the recent upsurge in unacceptable behaviour related to football, including bullets being posted to people connected to football and sectarian threats to people connected to football being posted on the internet and on social networking media.”
So, to deal with situations already being dealt with by the existing criminal justice system, we need this new legislation in place at a gallop, and this, even in the absence of any evidence of actual cases failing because the Bill is not yet law, is better than having proper Parliamentary scrutiny?
“We believe that the measures in this Bill need to be in place before the start of the 2011/12 football season, not least to begin to repair the damage done to the reputation of Scottish football and Scotland more generally by recent events. This has of necessity curtailed the opportunity to engage in a standard consultation on the provisions of the Bill. Nevertheless, we have and will engage with a wide range of people and interest groups on the provisions of the Bill.”
It is clear that, since the March summit, the Government has been in ongoing discussions regarding this matter, which is entirely appropriate. However, even with the upheaval of the election in May, it seems strange that the proposed legislation only appears now, less that two weeks before the Government want it enshrined into law. Could draft proposals have been produced before now for public consolation, and if not, why not?
To conclude, we have a Bill which, without apparent supporting evidence, is stated by the Government to be urgent. This deliberately cuts down the time for proper scrutiny. Parliament will be unable to do its job properly regarding this Bill, and, as has been the case so often in the past, we await the unintended consequences.