The OBFA – An Act of Folly: Part One

by | Mar 29, 2018

On 15th March, the catchily-titled Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 (OBFA) was repealed by Scotland’s parliament. In the first of two articles, Mark Murphy examines the origin of this particular species and how, as ever, the rush to produce legislation produced bad legislation.

In the 1970s and 80s, the West Indies cricket team were menacingly successful, leading to calls for heavy restrictions to be put on a menace which usually came from four very fast bowlers indeed.

For the cricket uninitiated, a “bouncer” is a short-pitched delivery designed to pass, and usually aimed at, the upper part of a batsman’s body. And West Indies’ quartets bowled piles of them at often intimidated, terrified batsmen. Something, apparently, had to be done.

The Independent’s cricket correspondent Martin Johnson wrote, in 1994: “the regulation on intimidatory fast bowling” had been “a perfectly clear law of cricket (42: Unfair Play) since W G Grace first grew a beard.” But it was “so inconsistently applied,” that cricket’s lawmakers “felt compelled to give umpires a sharp nudge towards tougher action and stricter interpretation.”

Thus, in 1991, an experimental law limited bowlers to one “bouncer” per batsman per over. However, as Johnson noted in his inimitable style, cricket’s lawmakers “conduct so many experiments that (they) ought to meet inside a laboratory rather than Lord’s.” So, they soon introduced “a further three-year experiment of two bouncers per over.”

The concept of new legislation replacing adequate, if inadequately applied, existing legislation precisely applied to Scotland’s just-repealed Offensive Behaviour at Football and Threatening Communications Act 2012 (OBFA).

The Act died as it was born, subject to the political make-up of Scotland’s parliament at Holyrood. Proposed by the Scottish National Party (SNP) it became law on 1st March 2012, having been passed by parliament in December 2011, 64 SNP votes to 57 Labour, Conservative, Liberal Democrat, Green and Independent votes. The SNP lost this majority in May 2016. The vote to repeal the Act was 62 opposition votes to 60 SNP votes. And the law will cease to be law next week.

It was born of a desperation to “do something” about “sectarianism” in Scottish football, which was most obviously, though not exclusively, manifested at “Old Firm” Celtic/Rangers matches. Scottish First Minister Alex Salmond responded to events at a Celtic/Rangers clash in March 2011 by calling a ‘Old Firm summit,’ to address sectarianism in football and “wider society” (but mostly football). Salmond reportedly had this idea already. The “shame game” (not the first Celtic/Rangers match to attract the epithet) rushed his thinking.

Ironically, these events involved players and managers, not fans. The defining image was Celtic manager Neil Lennon’s angrily contorted face as he and Rangers assistant boss Ally McCoist ‘clashed’ at the final whistle. But most of the problems stemmed from Rangers players generally (three red and nine yellow cards alongside three yellows for Celtic) and El Hadji Diouf particularly, who displayed what Guardian newspaper match reporter Ewan Murray called his “wilder tendencies.”

As ever in such situations, blame was apportioned equally, regardless of actual events. But ‘football sectarianism’ took an uglier turn later that month. “Viable parcel bombs” were posted to three Celtic-supporting public figures; Lennon, his high-profile lawyer Paul McBride QC and Scottish Labour parliamentarian Trish Godman. This, two months after Glasgow’s postal service intercepted a package containing bullets, addressed to Lennon.

The summit brought together football’s authorities, Celtic, Rangers, police and government. A joint-statement declared no club “directly responsible” for the problems…but effectively said Celtic and Rangers were. Rangers CEO Martin Bain and Celtic counterpart Peter Lawwell stressed, correctly, that “there are a number of societal issues which need to be addressed.” However, Salmond’s SNP were keener to do something at all than do something properly. And focusing on football “sharply nudged” them in the wrong direction, at the wrong speed.

In May, Lennon was attacked by Hearts fan John Wilson during Celtic’s league game at Tynecastle. Hearts were not ‘worthy’ of a seat at Hearts fan Salmond’s summit. And while Wilson probably wasn’t expressing anger at this ‘snub,’ he wasn’t ultimately convicted of ‘sectarian’ motives either (LONG story). Still, Salmond had his cue to declare it time to “eradicate” football sectarianism and for “people taking part” to be “subject to the full force of the law.”

He meant NEW law, despite producing no evidence that current law was inadequate (which didn’t stop gormless Scottish FA CEO Stewart Regan proclaiming it “necessary”). Salmond promised statistical analyses of Scotland’s sectarian attacks. But, ahem, ‘unfortunately’ it emerged in October that the Crown Office had destroyed the previous seven years’ relevant data (and, apparently, all back-up material), an interesting interpretation of ‘eradicating’ sectarianism.

Salmond also announced, on 20th May, that legislation was required before the new football season (23rd July). Lord Advocate Frank Mulholland (the government’s chief legal officer) drafted proposals which were backed by the Scottish Cabinet FIVE DAYS later and a proposed Bill was speedily put to Holyrood’s Justice Committee, thereby facilitating the 30th June vote necessitated by parliamentary timetables. In an ideal world, effective legislation could take six weeks. But not the real world. And the proposals and their logic would soon be shredded by all-comers.

‘Offensive’ behaviour is, by its subjective nature, ill-defined. This should have mitigated against legislation based on defining ‘offensive.’ It didn’t. For example, singing certain songs is regarded as the clearest manifestation of offensive behaviour at matches. But there wasn’t a list of proscribed songs in the bill.

This side-stepped contentions about ‘political’ songs and potential European Convention of Human Rights (freedom of speech) conflicts. Obviously, a dirge such as ‘Fields of Athenry’ is offensive, without contention. But there were also ‘facetious’ questions on potentially offensive national anthems, as Ireland’s ‘Soldiers’ Song’ was/is deemed by certain fans.

Remarkably, Roseanna Cunningham, Community Safety Minister with ‘special responsibility for tackling sectarianism,’ said, out loud, to the Justice Committee, that singing ‘Rule Britannia’ and aggressively making the sign of the cross (nope…me neither), could be deemed offensive under the proposals in certain circumstances.

The late Paul McConville noted in his ‘Random Thoughts re Scots Law’ blog: “When I asked the question, I did not expect the Executive to agree!” And as one MSP suggested, in 2006, it was “ludicrous” to consider “crossing yourself” an offence. Any prosecution, they claimed, would be ”laughed out” of court. The MSP’s name? Alex Elliot Anderson Salmond.

The proposals’ frighteningly wide definition of “at football” covered “travel to and from matches and wherever such matches are being broadcast,” raising “onus of proof” issues. Justice Committee convener Christine Grahame MSP, an experienced lawyer, was confused by the concept of fans travelling “to” matches they were only “travelling” to watch on telly. And if those tellys were in, say, supporters’ clubs, could behaviour BE offensive, without opposition fans there to take offence? (football’s equivalent of “if a tree falls over and no-one is around to hear it, does it make a sound?”) Remarkably, even the Lord Advocate didn’t know…about the fans, that is, not the tree.

The government’s “Policy Memorandum” on the bill cited “unsavoury events connected to Scottish football last season” (McBride, Godman etc…) as evidence for new legislation requirements. But McConville suggested “Scots Law, as it stands,” had “the tools to hand to deal with these matters.”

A prime example was ‘section 38’ (s38) of 2010’s Criminal Justice and Licensing Act, addressing “threatening and abusive behaviour.” Even the policy memo acknowledged its ability to deal with “disorderly and offensive behaviour” at matches. But it failed to evidence claims “that a substantial proportion” of such behaviour “which leads to public disorder is not explicitly caught by current law.”

Glasgow-based civil court solicitor Alistair Sloan, on his ‘Prout de Jure’ legal analysis website, counterpointed this, with statistics from Scotland’s Crown Office and Procurator Fiscal Service on s38 use in the Act’s early months which revealed multiple charges and convictions. He thus concluded it was “foolish to introduce new offences when statutory offences already exist” covering the relevant (mis)conduct

The Law Society of Scotland’s written evidence to the Justice Committee that the proposed new offences failed to “improve on” s38 and “rather than result in clarity, may cause confusion with particular reference to what type of behaviour is to be considered unacceptable” at matches.

And most alarmingly, the committee admitted in their 6th October report that THEY still needed “clarification” on “whether s38…is being used to prosecute cases of offensive behaviour at football” and “an assessment of the efficacy of that provision in obtaining convictions.” As Sloan noted, they were “backing the introduction of a new criminal offence while being totally in the dark as to how the current law is operating…and without any sort of assessment of the (current) offence.” Three months after the bill was originally due to become law.

Justice Committee witnesses and other observers made these points and more. Meanwhile, ministers and committee members struggled to justify the proposals beyond police and prosecutors wanting more power (which, committee member and former police officer Graeme Pearson MSP noted, was no reason for granting them). And, echoing thoughts dating back to March’s ‘Old Firm summit,’ Sloan noted that “the legislation ignores the fact that (sectarianism) is a wider societal problem.”

In May, he had noted ministers’ apparent inability to “set the record straight on what this new legislation will do.” And in June, Cunningham was embarrassingly unable to present key statistical data to the committee, despite it being in the government’s own explanatory notes. Despite such ministerial ignorance and ineptitudes, opposition seemed futile. However, seven days before the vote, with Cunningham having dutifully punted the need for immediacy moments earlier, Salmond decreed again.

The debate had convinced him that a suddenly-required “consensus” could only be achieved by “making the bill available for full consideration” before a final vote by the end of the year (the gormless Regan co-incidentally had a similar epiphany, deeming it “important that the necessary groundwork is undertaken” to make the law “practical and enforceable”).

The intervening months gave the bill’s opponents opportunities to mobilise. However, parliamentary debate on the bill on 3rd November merely reinforced previous divides, with Cunningham ‘reminding’ MSPs that the bill had gained principled acceptance in June. This meant “accepting there is a problem infecting Scottish football and wider society. The task now,” she insisted, “is not to question whether action is necessary” but how to “deliver on the commitment made to Scotland in June.”

This was ‘straw-man’ stuff. Opposition MSPs had questioned the need for new legislation, not for action. As Sloan acknowledged, even while dismantling the bill’s logic, its “general principles are to be commended.”  And when SNP Justice Committee member Humza Yousaf said Labour were “reluctant to help eradicate the scourge of sectarian hate crime,” he was plain wrong.

Cunningham said an “overwhelming majority” of people “backed the ambition” of the bill but falsely equated that with specific support for it. A Labour amendment accused the government of failing to “make the case for the requirement for new offences,” and claimed the bill “lacks clarity” and “would be difficult to enforce.” And opposition MSPs said the government was “driven by a desire to be seen to do something, not by any evidence that this plan would actually work.”

Two key elements were also unchanged, as arch-politician Salmond surely knew when lapping up the plaudits for his June ‘epiphany’; the SNP’s parliamentary majority and parliamentary party unity. Labour’s amendment was defeated 64-53. And SNP MSPs defied reams of expert evidence to pass the Bill. As Sloan noted, the Justice Committee (SNP majority, 5-4) supported the bill even though its report contained “mostly elements of criticism (from) the significant majority of witnesses” to the committee.

After the December vote, Cunningham again prioritised the “message” and claimed: “We’ve listened, we’ve acted, and the experts are firmly behind it.” Well, if they listened, they didn’t hear. Indeed, Cunningham later let slip that “we listened to Scotland’s police and prosecutors when they told us they needed greater powers.” And that, dangerously, sufficed. Other experts were still anywhere but ‘behind’ the legislation.

The SNP still had to lose their parliamentary majority and control before repeal of the new law could begin. But, as we’ll see next time, the law continued to look an ass…and soon proved to be an ass.