Proposing a bill in the Scottish Parliament to scrap the controversial Offensive Behaviour at Football and Threatening Communications (Scotland) Act, two years ago, Labour MSP James Kelly said:
The Football Act is the worst piece of legislation in the Scottish Parliament’s history and it is time for it to go. It has not tackled bigotry, it has been widely criticised by lawyers and human rights groups, and football fans have been treated as second-class citizens.
The act, which applied only to football fans, was intended to deal with sectarian behaviour such as bigoted chanting at matches, in pubs or on public transport. It also sought to prevent malicious communications that incited religious hatred on social media and the internet. On March 16 2018, the act was finally overturned by the Scottish Parliament almost exactly six years after it was introduced.
The overturning happened in the face of opposition of the government – one of the few times this has happened in the last 20 years of Scottish devolution. Although the vote was tight – 62 votes to 60 – the outcome was clear: not one MSP outside the governing SNP voted to retain the law.
It was also the result of a grassroots campaign by many football supporting groups including the umbrella organisation, Fans Against Criminalisation, which called the vote “historic”. So how did a law designed to stop inappropriate and antisocial behaviour provoke such anger and a political consensus in favour of abolition?
How it all kicked off
Politicians involving themselves in the legal policing of football fans does not have an illustrious history. Margaret Thatcher promoted the Football Spectators Act 1989 which sought to impose ID cards on all football supporters. Singling football fans out as the only group in the UK to carry ID cards was seen as unfair and discriminatory. But this was only shelved following the tragic Hillsborough disaster and the subsequent Taylor Report, which raised serious issues on fans carrying such cards.
The genesis of the Scottish political intervention came in the aftermath of a match in March 2011. A cup replay between Rangers and Celtic (aka the Old Firm) had seen aggressive confrontation between coaching staff and players – with three red cards shown.
For then First Minister Alex Salmond this match epitomised an unacceptable aspect of Scottish society – violence, aggression and sectarianism in football – and required legal regulation. He was backed by the chief constable of Strathclyde Police, Stephen House, who jointly convened an emergency summit after the March game.
House provided statistics that illustrated the spike in numbers of arrests around Old Firm matches and specifically the growth in reported cases of domestic violence. The summit came up with proposals on scheduling fixtures and limiting alcohol sales in the run up to matches, but nothing on legal reform.
However, a few weeks later the SNP and Salmond had a major victory in the May 2011 Scottish elections and formed a majority government. The SNP then announced it would introduce a new football law aimed at fans’ behaviour as a piece of emergency legislation – rushing it through the parliament in time for the beginning of the football season in August 2011.
Such was the outcry from the legal profession, politicians and campaigners, this procedure was dropped to give more time for scrutiny. It was eventually passed in 2012 with only the SNP in favour – another unusual occurrence for the Scottish Parliament where cross-party consensus is the norm.
What was in the law?
A criticism of the law was that it was unnecessary as there were already legal instruments in place to deal with disturbances at football matches. The existing criminal offence of “breach of the peace”, for example, punishes behaviour “causing alarm to ordinary people or serious disturbance to the community”. Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 also criminalises “threatening and abusive behaviour”.
But the Scottish Government believed these did not go far enough and, with the 2012 act, expanded this to “offensive” behaviour. This included the remarkably broad definition of “other behaviour that a reasonable person would be likely to consider offensive”. This made the test very subjective and broad – a point made by Scottish judges when they were asked to rule on it.
In a contradictory way it also narrowed the scope of the law as it only applied to actions of football fans. This included not just during football matches but travelling to matches – a large number of the arrests under the Act were actually carried out by the British Transport Police.
This new broad criminal law was coupled with increased monitoring of football fans’ activities and a polarised relationship with the police. The statistics also showed a relatively low level of conviction if the charges were taken to court. In 2016-17 there was a conviction rate of 40%.
What happens now?
Supporters of the law like SNP MSP James Dornan stated the repeal was an “error of massive proportions” and sent the wrong message in the battle against sectarianism. Although the law does create charges against expressing hatred against specific groups, it gives no definition of sectarianism, which historically has always been a problem in the West of Scotland.
When it introduced the law the government was clear: “We intend that these measures will cover all offensive or threatening behaviour at football matches, regardless of whether it is sectarian.” Again, the promotion of hatred against different groups in society was also covered by other legislation prior to the act.
When the dust settles, there should be reflection on the fact that creating new broad criminal offences in society without political or legal consensus is extremely problematic. Further targeting of one group in society for criminal sanction – in this case football supporters – is difficult to justify.
Yet the confusion over the existing legal regulation of this area also raises the possibility of a new general law concerning “hate speech” against protected groups. This is currently subject to a review headed by Lord Bracadale. Hopefully this time it will not be introduced in haste.
First published by The Conversation