Meeting of the Parliament 02 November 2016
I welcome the opportunity to have this debate.
Labour has an established position on the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. We are against this unworkable, poorly drafted act. It has soured relationships, focused on a very specific group of people and failed to address and tackle the issues of sectarianism, bigotry and offensive behaviour. That is why repeal of the act was in our manifesto, why my colleague James Kelly is bringing forward a member’s bill to do just that and why today we will support the motion.
Let me be clear that Scottish Labour does not condone any threatening, abusive, sectarian, bigoted or violent behaviour at football, in our schools, communities or homes, or online. I know that all of us in the chamber can unite on that position. We need a strategy that works, but unfortunately the act does not.
So far, the Government has failed to fully and satisfactorily answer the concerns with the drafting of the legislation. The issues range from subjectivity in deciding what offensive behaviour is to the way in which the act criminalises certain behaviours only in a football setting. There are also concerns about the consequences of the legislation for freedom of speech and human rights. According to Lady Paton, Lord Brodie and Lord Philip of the appeal court, the act
“created a criminal offence with an extremely long reach.”
It allows someone to be charged if they are on a journey to a football match, even if they have no intention of actually attending the match.
The law allows Police Scotland officers to use discretion when it comes to deeming what is offensive. Officers now have to become judge and jury in considering when “bad sentiment” becomes “hatred”, as one sheriff put it. That has led to claims of misapplication and misuse. Many people have been arrested without there being an identifiable victim and many charges have failed to lead to conviction.
It is clear that, since the introduction of the legislation, the relationship between fans and fan groups and the police has deteriorated. That relationship needs to be strong if we are to tackle sectarianism and offensive behaviour. Instead of co-operation and self-policing, we have fans being filmed, followed and searched. According to Fans Against Criminalisation,
“the whole atmosphere of football has become one of antagonism—not between opposing fan groups but between fans and the police.”
Young fans are growing up in a culture of distrust of our police force and a feeling of injustice. That is not a healthy relationship to foster in modern Scotland and it could have a knock-on effect on other justice issues.
Football is Scotland’s game, yet when we discuss it in the chamber, we often paint a dark and negative picture of the game. Fan behaviour has changed dramatically since the 1980s. The tartan army is renowned and loved the world over, and the tens of thousands of Celtic fans in Seville for the UEFA cup final won UEFA’s fair play award. Scotland’s clubs are the best supported in Europe if we consider attendances on a per capita basis. Every weekend, thousands of fans travel to games to support their team, doing their club and country proud. Yes, a minority of fans let the side down, but having an act that treats all football fans differently from fans of other sports such as rugby, golf or ice hockey is not the answer.
Ahead of the debate, the Government has repeatedly called for alternatives but, as has been repeatedly pointed out, the alternatives are already in place. Among others, we have the Criminal Justice (Scotland) Act 2003, the Police, Public Order and Criminal Justice (Scotland) Act 2006 and the Criminal Justice and Licensing (Scotland) Act 2010. Sectarianism, bigotry, hatred and violence are not new offences. We have common-law offences such as breach of the peace; public order offences relating to the incitement of racial hatred, harassment and religious prejudice; football banning orders; and a raft of other charges that can be brought against anyone who is clearly breaking the law. That was discussed at length during the passage of the legislation. Concerns were raised but went unheeded by the Government, which used its majority at the time to force through the legislation. However, nothing since the passing of the 2012 act has eased those concerns.
The best laws and legislation are simple, clear and understood, not just by the courts and the police but by the public. However, the act is at best confusing or, in the words of Sheriff Richard Davidson, “horribly drafted”. That critique is simple, clear and understood.
Repeal of the act would include repeal of section 6, which the Law Society of Scotland suggests adds to the complexity of prosecuting the offence and is an area that could benefit from clarity. I am confident that repeal would not restrict the ability to prosecute in that area.
Today, Parliament is uniting against this unworkable act. We have an opportunity to listen to the courts, lawyers, academics and fans and the chance to repair relationships between fans and the police. This is not the time for arrogance or stubbornness; it is time for the Scottish Government to accept the need to repeal the act.