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The Offensive Behaviour at Football Act – A History

Corrie Innes

“This bill sends out an important message about the kind of Scotland we want to live in” – Roseanna Cunningham MSP, then Minister for Community Safety

“The legislation is likely to go down in history as the most illiberal and counterproductive act passed by our young Parliament to date” – Professor Tom Devine

James Kelly’s Member’s Bill to repeal the Offensive Behaviour at Football and Threatening Communications (Scotland) Act has the potential to unite every opposition party in the Scottish Parliament. It could bring about an embarrassing defeat for the Scottish Government and its passage is sure to be one of the most interesting issues of the upcoming parliamentary year. So let’s take a look through the potted history of the Act.

The Context

“In 40 years of covering Old Firm matches, this one is up there with one of the most scandalous I have ever seen.” – Chick Young, sports journalist, March 2011

The 2010-11 Scottish football season was a turbulent one. Celtic manager, Neil Lennon, was assaulted by a fan at an away match at Hearts, while Lennon and prominent Celtic supporters, Paul McBride QC and Trish Godman (the retiring Deputy Presiding Officer of the Scottish Parliament), were sent parcel-bombs and bullets. At one particularly belligerent Scottish Cup tie between the Old Firm, Lennon and Rangers Assistant Manager, Ally McCoist, clashed on the touchline, and 34 arrests were made inside the stadium. At FMQs the next day, then First Minister, Alex Salmond, announced that he was convening a roundtable with representatives from Celtic, Rangers, the police, the Scottish Football Association and the Scottish parties. There was a widespread feeling that something had to be done.

“Something needs to happen, I'm realistic enough to know that they'll probably never stop [Old Firm related violence] but we need to have a serious look at it.” – Les Gray, Scottish Police Federation Chair

“It is essential to make clear the scenes of last season must never be repeated and we do believe the bill sends a clear message to the people of Scotland – which they do expect, I think, in response to what was witnessed over the past few months.” – Roseanna Cunningham

The Bill

“The SNP has used its majority to force through bad law that risks doing more harm than good. It sets a worrying precedent for this parliament.” ­– Statement by opposition parties

The Holyrood voting system was not supposed to produce majority governments. Compromise and cooperation is meant to be the order of the day, not one party assertively dealing with issues on its own terms. When Alex Salmond surveyed Scotland after the SNP won a majority in May 2011, he knew he could take decisive action on the big issue of the day. And with the most volatile and violent football season in recent memory reaching a tumultuous conclusion, that issue was Scotland’s proverbial shame: sectarianism in football.

“This is bad law. It has united football fans, commentators, lawyers and the judiciary in opposition – it is unworkable and creates tensions between fans and police.” – Murdo Fraser MSP

But the SNP arguably misdiagnosed the problem. The party threw itself into dealing with the problem under the influence of simplistic media coverage, and not as the ingrained and complex set of phenomena it was. The legislation explicitly criminalises football fans (while leaving other sports exempt) for expressing opinions acceptable (legally speaking) in other spheres of society. Kenny MacAskill, speaking after his stint at Cabinet Secretary for Justice, saw no problem supporting calls for a statue of James Connolly in Edinburgh while prosecuting those who sang about his deeds in Glasgow. The SNP have been accused of being too preoccupied with satiating public opinion to listen to the experts, the people who would be affected by the legislation and the opposition parties who consistently warned the law was poorly thought through and needed revising.

“We accept the need to legislate on sectarianism – that does not mean that any legislation has to be supported. It must garner the support of the country.” – Iain Gray MSP, then Labour Leader

“The Offensive Behaviour at Football Act has been criticised by both liberal and libertarian academics and castigated by politicians from both the Left and the Right. However, polling shows it is hugely popular with the public at large.” – Kenny MacAskill, former Cabinet Secretary for Justice

The Backlash

After the Act came into effect, supporters’ groups, including Fans Against Criminalisation, have campaigned vigorously and consistently for its repeal. Representatives of the group submitted petitions to Parliament, organised demonstrations and helped individuals prosecuted under the Act.

“We call on all football fans to join us in fighting this oppressive, unnecessary and illiberal Act and to put aside traditional football rivalries to unite against this legislation…” – Fans Against Criminalisation

With the SNP forming a minority government after the 2016 election, the issue has returned to the fore. Douglas Ross’s debate on the issue led to a symbolic defeat for the Scottish Government. A consultation on James Kelly’s Member’s Bill garnered more than 3,000 responses, over 70% of which supported repealing the Bill’s offensive behaviour at football provisions.

“…the law is arbitrary and capricious and such a mess that conviction rates are lower than for almost all other offences save cases of rape and sexual assault.” – Alex Massie, Spectator Scotland Editor

Conviction rates have fluctuated and the application of the law by judges has been notably inconsistent. James Kelly’s repeal bill looks set to have the numbers to make it through Parliament, probably to the private relief of many in the SNP. The Act was undoubtedly well intentioned – every party and fans group agrees on the need to tackle sectarianism – but critics state it was rushed through parliament, despite concerns of stakeholders. A consensus exists among experts and opposition parties that the best way to move forward is to repeal the Act and try something new.

“It is time that this flawed act was repealed. Not only does it unfairly target those civilised, law-abiding fans who simply want to enjoy Scotland’s beautiful game, but it has served simply to create confusion rather than clarity.” – Douglas Ross, former MSP

“My personal opinion is that the Act is too wide sweeping in its approach and doesn’t work in practice as well as it should or could have. Legislation isn’t always the answer to questions over problems within our society. […] there are other approaches we should take. A lot of the issues are deep rooted, generational and societal.” – Richard Lyle MSP, 2015 (discussion among SNP figures, leaked to The Herald)

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