The OFAB – An Act Of Folly: Part Two

by | Apr 17, 2018

The story so far: The Scottish National Party (SNP) jerked its law and order knee to produce the Offensive Behaviour at Football and Threatening Communications Act (Scotland) 2012, more ‘popularly’ known as the ‘Offensive Behaviour at Football Act’ (OBFA). People ‘at football,’ and others, foresaw legal and practical problems…

“Rushed law is bad law” is widely-perceived legal wisdom. And the recently-deceased OBFA was SOOO rushed and bad.

Ostensibly, it was passed because of unity among the overall majority of SNP members of Scotland’s parliament (MSPs) in Holyrood, Edinburgh in 2011…and repealed because of unity among the overall majority of opposition MSPs which emerged after 2015’s Holyrood Elections. Critics of its repeal accredited this rare opposition unity solely to a desire to give the SNP a political ‘kicking.’ However, this airbrushes from history how anti-Act campaigners made football fans’ criminalisation the venue for said ‘kicking.’

The Act became law in March 2012. But it had long-since affected its targets. Despite being ‘inspired’ by high-profile sectarian attacks on high-profile Celtic fans, the Act’s predominant targets WERE Celtic fans, who suffered from increasingly ‘confident’ activity by their local Strathclyde Police force (since incorporated, structurally AND attitudinally, into Police Scotland) for months beforehand.

This targeting had history. Formed in 2006, the ‘Green Brigade’ (GB) attracts positive publicity for their raucous vocal and visible support for Celtic. They self-style as “a broad front of anti-fascist, anti-racist, anti-sectarian” fans, which could make them advocates for anti-sectarian legislation.

However, they ARE advocates for Irish nationalism/republicanism. And in Scotland, that’s a no-no, even among Scottish nationalists; a dichotomy the GB highlighted, expertly, with a display featuring images of William Wallace (Braveheart etc…) and IRA hunger striker Bobby Sands, alongside the song lyric “the terrorist or the dreamer; the savage or the brave? Depends whose vote you’re trying to catch or whose face you’re trying to save.”

And their use of pyrotechnics at matches has landed Celtic with regular fines from European football’s governing body Uefa. So, many relished the opportunity the Act provided to down the GB. But while the police lobbied parliament (“Can we have more powers, please?” “Aye, what size?”), fans organised.

In May 2011, five Celtic supporters’ groups, including the GB, formed ‘Fans Against Criminalisation” (FAC), as the SNP tried to shoe-horn an entire legislative process into six weeks. The SNP failed, which FAC attributed to “very public blunders by high ranking ministers.” However, the hold-up barely affected the legislation (“Scottish cabinet backs sectarian proposals” ran a Freudian slip of a BBC website headline. “MSPs on Justice Committee back sectarian bill,” they Freudian slipped again).

FAC declared it “discriminatory…to create…an offence for one group (in) society, when the same behaviours would not result in criminal charges for others.” They rejected the notion of laws “based on something as ridiculously ambiguous as offensiveness,” and presciently predicted that ‘offensiveness’ would be “a catch-all” to give police “almost limitless powers” to “criminalise and harass fans.”

Contentiously, they objected “to being told when and where our rights to express a political opinion can be applied,” translated by critics as “rights” to “sing IRA songs.” But FAC insisted the Act was no more effective than existing law. Act advocates struggled with this (or pretended to). But the Act was as firmly in place as the SNP’s Holyrood majority…until the campaign was catapulted towards headline news by events in Glasgow’s Gallowgate, on 16th March 2013. (‘Gallowgate-gate’ anyone? No?? Good).

The GB arranged a “corteo” (procession) to Celtic Park, for a Celtic/Aberdeen game, supporting “the growing list of Celtic supporters facing bans” while long-awaiting trial for charges under the Act. “The level of harassment many fans receive” from police had been “no secret,” the GB added. After 16th March, it certainly wasn’t.

Police stopped the “official” corteo, for which Glasgow’s City Council had denied permission. And, as ever in such situations, conflicting reports emerged about what happened when fans headed, en masse, for Celtic Park. That police “kettled” what they claimed was a “confrontational and aggressive crowd” wasn’t disputed. Whether this contained or instigated the confrontational aggression was.

Thirteen protestors were arrested and Strathclyde Chief Constable, Stephen House claimed: “Video footage will…show that the actions of my officers were necessary, justified and proportionate.” Protest organisers, however, were well-pre-prepared, asking protestors to “have witnesses around you and a camera to film/photograph” events. The resultant video, photographic and eye-witness accounts challenged police claims of necessary, justifiable proportionality. The arrests produced TWO convictions. And while 16th March was never directly about the OBFA, it certainly challenged its credibility.

Court cases confirmed the Act’s illiberal, ill-drafted nature and occasionally exposed ‘inconsistencies’ in police ‘interpretations’ (which lawyers might advise me not to call ‘lies,’ so I won’t…oh no)). One officer testified that the song “Roll of Honour” was “widely-regarded” as offensive/sectarian and “recognised” as such by “official Celtic supporters’ organisations and the club itself.” But the Herald newspaper’s Gerry Braiden reported in July 2015 that Celtic had never “publicly indicated the song was sectarian.”

Fans were convicted AND acquitted of singing the song, with one conviction part-based on opposition supporters’ booing. It wasn’t clear whether this was for the song or its atonal rendition. But it met the “likely to incite public disorder” test set by the legislation. Indeed, when Joseph Cairns rolled his honour, officers testified that opposition fans hadn’t reacted, but that Cairns had still been “likely to incite public disorder.”

FAC were fighting an uphill battle until the SNP lost their Holyrood majority in May 2015. On 2nd June, when Celtic formally declared that “at a minimum, certain offences under the Act should be repealed.” And the new government took desperate PR/rebuttal action. A University of Stirling Evaluation Report was advertised both as the legislative review built into the Act and as an endorsement of it. However, the authors said it: “neither endorses nor rejects the Act” and was only “intended to be one contribution” to the review.” One co-author told FAC: “whatever it is, it is not the Review.”

The government also claimed a YouGov poll had revealed “80% backing” for the Act. But 52% (the ‘will of the people,’ some say) of respondents were ‘not interested’ in football. The eleven-question poll would have doubled-plus-two Scotland’s Commonwealth Games gold medal tally if “leading questions” was an event. And it referenced no legislative alternatives.

Martin Hannan, of the unsurprisingly pro-SNP National newspaper, responded vigorously to this governmental call-to-arms, rightly noting the absurdity of “singing about the IRA, which has nothing to do with Celtic’s history,” and similar drivel from Ibrox die/blowhards. This echoed newspaper columnist Graham Spiers’ embarrassment at hearing “this cack inside Scottish football stadiums,” and Lord Carloway’s striking law-lordly perspective on such singing: “A source of some bafflement to many.”

Hannan was “amazed that people try to justify sectarianism in a football context” while admitting he joined in “when I was a boy at Celtic Park, but guess what? I grew up.” There was, though, little “grown-up” in his side-swipes at FAC. “I await the messages of support for the Rangers Three from the Celtic contingent of FAC,” he sneered, referencing Rangers fans convicted for “singing about the UVF.” Without the Act, he dubiously claimed, “the three…would have been free to chant their sectarian nonsense.”

He said the Act “needs to be comprehensively reviewed and…must be more specific about what constitutes ‘offensive’.” He railed against those “still determined to abolish it,” suggesting the Act “however imperfect, must be obeyed,” implying that FAC were disobeying the “law.” And he claimed campaigners wanted instead “a law they haven’t given details of” (using a preposition to end a sentence with? Risible).

Leading FAC campaigner Paul Quigley lambasted Hannan for “perhaps deliberately” missing the point that FAC had never “sought to defend sectarianism” (a word not even in the Act). He added, clearly not for the first time, that it was “illegal under previous legislation.” And he wearily wondered: “how often we are expected to repeat that most basic statement of fact.” That Quigley himself was charged under the Act in 2016 was unsurprising.

However, the Act’s days were numbered. In May 2016, Labour MSP James Kelly started work on a Private Members’ Repeal Bill. And in August, he launched a consultation exercise on the Act’s future, or otherwise, which he claimed offered 71% backing for repeal.

Five months later, the government announced that Lord Bracadale would review Scotland’s ‘hate crime’ legislation. This included the OBFA, offering a delaying tactic to repeal opponents. The BBC reported, as late as January 2018, that MSPs were being urged by many of the Act’s proponents “to delay consideration of…repeal” until Bracadale finished his work “in the spring.”

But Holyrood’s Justice Committee said this wasn’t “appropriate.” And FAC noted that “as the Act is not hate crime legislation” there was “no reason to delay the inevitable further.” Kelly tabled his bill on 22nd June 2017 (no six-week rush to de-legislate here). And written evidence to the Justice Committee, covering the full spectrum of views, was published last August.

FAC produced the most detailed analysis, meticulously recording and statistically-backing every argument they’d absorbed since 2011. They squished all statistical attempts to show the Act was working by noting that “criminality was previously declining in football stadia.” They said the Act “targets and criminalises largely young men with no previous contact with the criminal justice system.”

And they squeezed some unlikely backing from law-lordly claims that the Act’s “main focus” was “the behaviour of certain Celtic and Rangers fans with their long-standing attachment to…the politics of Ireland.” This, FAC contended, exposed the Act as targeting “the expression of political views” which “many in Scotland might not like” but “are perfectly-legitimately held in a democratic society.”

Scotland’s Law Society noted that “all 287 (offensive behaviour) charges” brought in 2015-16 “could have been prosecuted under pre-existing legislation.” Glasgow’s Bar Association (NOT a pub-crawlers’ troupe) highlighted “concerns…among lawyers, judges, civil rights groups, fans and clubs” (apart from that…) and listed existing legislation available to police and prosecutors. “When respected charities say the law has been a distraction from implementing better ways to tackle sectarianism, there is clearly a problem,” they concluded.

Glasgow Caledonian University law lecturer Andrew Tickell worried about the Act’s “logical structure and the scope of what it criminalises.” Yet he felt repeal would “take a sledgehammer to a task designed for the scalpel,” as any “legislative overreach” could “be curbed by judicious amendments.”

Victim Support Scotland opposed repeal without “a viable alternative to support victims of threatening communications and religious prejudice.” But they overlooked the ‘at football’ legislation. And Scotland’s Council of Jewish Communities recommended the Act’s scope be extended. But while they supported the it’s “intention,” they “regretted” that “‘offensive behaviour’ relates exclusively to football.” Which…erm…WAS it’s “intention.”

Sadly, the repeal debate was not well-informed by these well-informed perspectives. Like Fifa’s Executive Committee deciding to hold the World Cup during a fifty-degree desert summer, MSPs had other ‘motivations.” Where the ExCo had money in mind, MSPs had politics.

SNP member Hannan stuck his anti-repeal oar back into matters before the Justice Committee, with SNP MSPs now in a six-five minority, received verbal submissions from FAC and others. “Perhaps someone…can ask (FAC) what laws they would bring in to tackle sectarianism,” Hannan suggested, (yet) again. That sound you heard was probably Paul Quigley sobbing in frustration.

“Out-of-date statistics, out-of-date arguments,” sighed an FAC website headline, correctly. Media reports on the repeal process could have been directly airlifted from 2011. And there was one more intervention from Hannan, who blamed an offensive Rangers fans’ march on the Act’s repeal, despite the Act still being law at the time. But despite (because of?) this, the necessary Holyrood votes were won, on 15th March, 62-60.

“We axed the Act,” sings the FAC website. And the closeness of the parliamentary votes suggests that, despite the fundamental influence of the 2015 Holyrood election result, FAC’s persistent resistance to the legislation played a significant part.

The singing of certain songs still causes “some bafflement to many” and “this cack inside Scottish football stadiums” remains embarrassing. Celtic were hardly inspired to Sunday’s Glasgow Derby victory by tales of the “Boys from the Old Brigade.” Rangers’ players from catholic Portugal would have been hilariously abysmal without channelling their inner Billy Fullerton, the 1920s Glasgow fascist whose Boys were “up to their knees in Fenian blood,” (huge laundry bill, that).

And legislation, national AND football, outlaws such stuff (though not the irretrievable dirge “Fields of Athenry” alas). The bitterness of the soundtrack to Glasgow derbies not involving Partick Thistle is a societal problem. But, as Labour MSP Neil Findlay noted: “a certain class of politicians has never liked football fans.” And sectarian discrimination against football fans, especially in supposedly anti-sectarian law, produces bad law. Rushed or not. To those who played any part in “axing the Act,” well done.