As the dust settles after the SNP published their bill on Sectarianism on Friday the only conclusion that can be drawn from said publication is that it is a waste of time, energy and resource by a Government lacking imagination and courage.
The government have employed the most influential legal brains in Scotland to create a bill covering a range of “crimes” already covered within Scottish law.
Existing laws could easily have been amended.
This new bill should be read, in full by all Scots, in order that they too can see how their tax contributions are being wasted.
Each document should be read in its entirety, in order that you see the sheer scale of work put in to this, including estimated costing of prison sentences.
As for the bill itself, it is worthy of some detailed analysis.
Firstly, there are 3 specific areas of interest that the bill directs itself at
1) Offensive behaviour at regulated football matches
2) Threatening communications
3) Offences outside Scotland
Area 1 is further explained thus
1) 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)
(2) The behaviour is—
(a) expressing hatred of, or stirring up hatred against, a group of persons based on
their membership (or presumed membership) of—
(i) a religious group,
(ii) a social or cultural group with a perceived religious affiliation,
(iii) a group defined by reference to a thing mentioned in subsection (4),
(b) expressing hatred of, or stirring up hatred against, an individual based on the
individual’s membership (or presumed membership) of a group mentioned in any
of sub-paragraphs (i) to (iii) of paragraph (a),
(c) behaviour that is motivated (wholly or partly) by hatred of a group mentioned in
any of those sub-paragraphs,
(d) behaviour that is threatening, or
(e) other behaviour that a reasonable person would be likely to consider offensive
1 Continued
and
(b) the behaviour—
(i) is likely to incite public disorder, or
(ii) would be likely to incite public disorder.
As we address Area 1, it becomes apparent that this is a “catch all” bill that will most likely be interpreted by the Police and/or the Procurator Fiscals as directed specifically by Roseanna Cunningham and Frank Mulholland, as the wording on actual offences appears to be deliberately ambiguous.
I’ve heard some observers state the wording is in said manner due to the rushed timescale of the Bill. I beg to differ.
There can be no other reason than to hide the specific interpretation of certain phrases, in order that this gets cross party support with as little opposition as possible.
As the first section continues, the bill adds the following sub sections
(3) For the purposes of subsection (2)(a) and (b) it is irrelevant whether the hatred is also
based (to any extent) on any other factor.
(4) The things referred to in subsection (2)(a)(iii) are—
(a) colour,
(b) race,
(c) nationality (including citizenship),
(d) ethnic or national origins,
(e) sexual orientation,
(f) transgender identity,
(g) disability.
The Bill then adds further Sub Sections:
(5) For the purposes of subsection (1)(b)(ii), behaviour would be likely to incite public
disorder if public disorder would be likely to occur but for the fact that—
(a) measures are in place to prevent public disorder, or
(b) persons likely to be incited to public disorder are not present or are not present in
sufficient numbers.
(6) A person guilty of an offence under subsection (1) is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or
to a fine, or to both, or
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or
to a fine not exceeding the statutory maximum, or to both.
There are, of course, two supplementary documents on the link above. As recommended, these are worth a read.
It should be cautioned that they should only be read in order to establish just how ridiculous the bill is, as you will read both documents and find no further clarity on just what will be defined sectarian, or how it will be interpreted that the recipient, or intended recipient of hate mail or worse is the victim of a sectarian crime.
Let me start with section 1, where the target group of offenders is at a football match.
On the face of it, all bases are covered, and many politicians at Holyrood will have difficulty arguing against the bill, without putting their own interpretation on the sub sections.
The volume of words throughout the 3 hefty documents belies the fact that the key aspects are covered between pages 3 and 4 of the Bill itself, with all of that element reproduced above in italics.
So what does each element mean in that key sub section 2?
(2) The behaviour is—
(a) expressing hatred of, or stirring up hatred against, a group of persons based on
their membership (or presumed membership) of—
(i) a religious group,
This is where the scratching of heads begins.
To all intents and purposes, this is indeed a statement no sensible person could disagree with, until you start to analyse each word very carefully. This will be “the law”, unless enough people mobilise against it, so one should not scan the bill, nor ignore the “small print”.
What then does “expressing hatred of” mean exactly, and what does “stirring up hatred against” mean?
Is there a different approach to constructive criticism of any group, to some hate filled fan ending every reference with “bastards”, or “scum”, or such like?
Despite the clear effort at closing legal loopholes to cover any offence the legal fraternity wish to deem sectarian, they didn’t appear to put the required time and effort in to explaining what this actually means.
How do you “stir up hatred”, and how is it measured if someone has actually stirred up hatred? Is it measured by the volume of expressions of anger on extremist websites? We really should be told.
What this means is that there can still be a level of interpretation put on test cases, which could well be inaccurate and most probably unfair.
While the disgraceful behaviour towards Neil Lennon will be covered (which it was anyway, or there would have been no arrests) either by an offender being of a different nationality or religion, it would remain to be seen how a regular victim of hatred such as Nacho Novo would be tackled?
Does this Bill cover all bases for certain expressions of hatred but not cover Catholics who play for Rangers?
The sub section lines “colour”, “race”, and “nationality including citizenship”, are very interesting indeed.
Will expressions of hatred of nationality include hatred of being British or English?
Will booing the UK national anthem be classified as such an expression?
Will the Anti-English songs of the tartan army also be addressed?
Does the addition of “citizenship” mean anything in particular or refer to specific cases in the past?
The most disappointing aspect of this bill is that it does not offer that clarity up front that could genuinely have an immediate impact on the most obvious displays of sectarianism at football matches.
It does not list songs, chants or phrases that are unacceptable, with explanations and case studies or test cases to explain why.
Why not?
Why not just state in plain language that songs or chants that are derogatory about Catholics or Protestants, or their derivative slang nicknames are captured within the bill, and state what those derivative nicknames are.
Why not just state in plain language that certain definitions as claimed by certain groups are NOT sectarian?
Why not state once and for all that the term “Hun” is sectarian?
Why not address the term “fenian”? Why has it got two Dictionary definitions, and who decides which one that an alleged offender means?
Why not address the Sectarian “Old” IRA, and the Sectarian Provisional IRA, and both subliminal and obvious support for these organisations?
Given the man hours already put in to this Bill; the effort required to implement the bill, and the effort to manage the bill on an ongoing basis, I state today that unless these issues are addressed, and some assurances given to the good people of Scotland that this Bill is a) fair, and b) of value to Scottish Society as a whole.
At a time of desperate financial woes, it is entirely inappropriate to spend in the region of £250K+ for many of the individuals who are likely to find themselves hauled up in court.
(£40K per year, plus legal costs conservatively estimated at 50K for a routine hearing)
For Area 2 of the bill (Threatening Communications), it seems simply that this is just an addition of “sectarianism” to the physical sending of hate mail, or the sending of (or posting of) offensive electronic communication either indirectly or directly at a group or individual.
Like Area 1, it will be the interpretation of the Sectarian element which will define if this is a fair bill, or an unjust one.
Many of the questions above apply here. What defines the motivation being sectarian, racist or “anti” anything?
Is it simply if the recipient, or intended recipient, or their advisors say so?
It’s at area 3 though that you start to question both the sanity and the agenda of the bill
Sections 1(1) and 5(1): offences outside Scotland
(1) As well as applying to anything done in Scotland, sections 1(1) and 5(1) also apply to
anything done outside Scotland by—
(a) a British citizen, a British Overseas Territories citizen, a British National
(Overseas) or a British Overseas citizen,
(b) a person who under the British Nationality Act 1981 (c.61) is a British subject,
(c) a British protected person within the meaning of that Act, or
(d) a person who is habitually resident in Scotland.
(2) Section 5(1) also applies to a communication made by any person from outside Scotland
if the person intends the material communicated to be read, looked at, watched or
listened to primarily in Scotland.
(3) Where an offence under section 1(1) or 5(1) is committed outside Scotland, the person
committing the offence may be prosecuted, tried and punished for the offence—
(a) in any sheriff court district in which the person is apprehended or in custody, or
(b) in such sheriff court district as the Lord Advocate may direct,
as if the offence had been committed in that district (and the offence is, for all purposes
incidental to or consequential on the trial and punishment, deemed to have been
committed in that district).
The obvious glaring hole in this policy is that it is only legally workable to chase British Citizens overseas, so Citizens of other nations outside of the UK can effectively state what they like online, or anywhere else, with impunity.
The thought that Scotland will be sending Police to Australia or Canada or the USA to pick up someone for calling someone else a term ending in Bastard (enter your own prefix as applicable) is absurd, and failure to adhere to this strand of the bill would be hypocritical and would smash any credibility that any subsequent act would carry.
There are already dissenting voices in Scotland at credible levels, and I’d ask that you join these people, while also raising specific concerns with your MSP.
If you don’t, then this bill will pass in its current state, and the interpretation of these ambiguous sub sections will be down to unelected legal people who may not share your interpretation of the key points here.
You have been warned.
DJM
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