Alex Massie

A Bill That Shames Scotland

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Here's a clue for politicians: when you're asked if you've just criminalised the national anthem and all you can do is say "Er, maybe, it all kinda depends on the circumstances" the chances are you've produced a bill that tests even the patient, hard-to-exhaust, limits of parliamentary absurdity and you should probably put it through the shredder and start again. If, that is, you should even be legislating in these matters at all.

We do things differently in Scotia New and Braw, don't you know? So today the Scottish Parliament's Justice Committee took evidence on the government's planned and loopy and shameful and illiberal Offensive Behaviour at Football and Threatening Communications (Scotland) Act (the text of which may be contemplated here) and, yup, Roseanna Cunningham (the poor fish lumbered with this disaster) was left to look a prize fool:

When asked by John Lamont, the Tory justice spokesman, if singing God Save the Queen could lead to a jail term, she replied: "The glib answer would be 'no' but it depends on the circumstances."

Cunningham, a practising Catholic, said: "I have seen hundreds of Celtic fans making the sign of the cross in what can only be described as an aggressive manner at Rangers fans. Making the sign of the cross is not, in itself, offensive but it all depends on the circumstances."

The offensive behaviour at football and threatening communications at football (Scotland) bill covers all types of media, including social networking sites, Twitter, bulletin boards, T-shirts, posters and graffiti. "Arguably, if somebody tattoos a death threat all over their body, then it's falling within the ambit of this legislation," she said.

This was not, understand, a politician making the case against her bill; it was the bloody thing's sponsor! Now it may not come to this. Much will depend upon the police and the procurator fiscal behaving more sensibly than anyone has any right to expect. Nevertheless and in the absence, alas, of a backbench revolt on the SNP benches, this is a wicked bill that shames Scotland vastly more than the behaviour it is designed to address (and much of which - the issuing of death threats, for instance - is already frowned-upon). Parliamentary majorities are depressing things.

Ironists will also be pleased to discover that the SNP - those doughty worthies hellbent on preserving the structural and intellectual distinctiveness of the Caledonian legal canon - insist this bill is needed to bring Scotland into line with the situation as it presently exists in England. This is droll, not least since the nationalists opposed passage of the (slightly) comparable English bill when it was presented before Westminster all those many (ie, five) years ago. Then there was much concern that an English bill's tentacles might creep over the border; now it's a sign that no-one should be troubled by this latest bill.

To recap, it is really quite difficult to craft a bill that permits the lusty singing of Flower of Scotland but prohibits a rendition of the Sash. More to the point, the legislation indulges the very people it targets since Glasgow (to use a useful shorthand) does not lack for football fans with grievances. Victimhood is the city's second-favourite sport and the men who clog the intertube and radio phone-ins will rededicate themselves to proving just how ghastly and law-breaking the other mob are. What joy! These complaints - and there will be many of them - will doubtless require investigation and lo this too will prove a waste of time, effort and money.

The bill is, admittedly, narrower than some reports have suggested it would be. Nevertheless it is not very narrow since it includes "other behaviour that a reasonable person would be likely to consider offensive" and this, again, is a catch-all clause that further indulges idiocy not least since, almost by definition, football inspires passions that many people consider wholly unreasonable.

It is already the case that you may be charged a breach of the peace that is "religiously aggravated". There was a case this year that failed when a Sheriff ruled that IRA songs of the type much-favoured by elements within the Celtic fanbase were acceptable - legally speaking - since the IRA was a "republican military organisation" and not "sectarian in intent". Broadly speaking, this seems reasonable to me not least since that organisation took a murderously ecumenical approach to its victims and I certainly don't think that singing these songs should be illegal. But if this remains the case then the new bill is stranger still since, I suspect, we will end up with lists of ancient battles about which it is just about permissable to sing and a proscribed list of songs and battles which must never, on pain of arrest, be mentioned.

This being so we're headed down the rabbit-hole and this is before one even considers the implications of singing one set of words to a tune more often associated with supposedly-sectarian or "political" songs (examples could be the two sets of lyrics to the tune of The Boys of the Old Brigade or God Bless the Prince of Wales - more often heard as Derry's Walls). In each case the "innocent" words could surely be sung to the "offensive" tune knowing that all concerned will "understand" the real "meaning" of the "stirring-up". Again, Celtic and Rangers supporters do not lack for creativity in these matters.)

More importantly, restrictions on speech are dangerous things to be imposed so lightly or without serious consideration. This does not, you will note, seem to matter at Holyrood and it is beyond depressing that so few of our parliamentarians appear to care even half a jot about these matters.

We're assured that context matters and that the police and courts can be trusted to implement everything sensibly but wouldn't it be more reassuring not to have to worry about any of this at all? You and I would know that a (hypothetical!) Partick Thistle song* that went "We hate Roman Catholics/We hate Protestants too/We hate Jews and Muslims/Partick Thistle we love you" would be but a gentle reflection on Glasgow's football crazies but there'd bound to be someone upset by it and just as likely that their "concerns" would be treated sympathetically. 

Nor does it end there. The mere singing of songs - in a football ground, on a train, in a public house - is even if criminalised a victimless crime. (It may lead to other breaches of the peace and, indeed, injury but that's a different matter.) As a rule, victimless crimes ought not to be crimes. Of course, there are times when these breaches of the peace may be covered by existing legislation; that's all the more reason to throw out this ill-considered piece of Something Must Be Done foolishness.

Furthermore, the proposed bill claims universal jurisdiction and threatens imprisonment for anyone guilty of breaching its terms no matter where in the world they may be. Well! Good luck getting the American courts to agree to this. Effectively, then, Scots abroad who sing sectarian songs (however these be defined) are to be considered a menace comparable to sex tourists guilty of exploiting children overseas. Few other statutes carry this kind of universal sanction regardless of local laws and customs.

This is justified by some on the grounds that said football supporters are somehow "representing" Scotland when furth of their native heath. Again, this is to exalt their status. What's more I reject this implied ownership or sense that the individual must be thought representative of the nation at large. Perhaps nationalists are comfortable with this kind of facile reductionism but they don't speak for all of us, far less have the right to insist upon speech crimes that break no local statute.

Offering special protections to football clubs and religion is, in the end, to give remarkable tolerance to two brands of superstitiion neither of which deserve to be inoculated in this fashion. As the great man put it "We must respect the other fellow's religion, but only in the sense and to the extent that we respect his theory that his wife is beautiful and his children smart." Mencken was right. The same call for manners might be extended to the other fellow's football club. But no more and certainly no further than that.

The whole thing is, to use the legal term, a fucking nonsense.


*Edited to clarify: this is a song imagined by Alastair Gray in his short story A Mouth Piece. I didn't intend to suggest (but did for some reason) that it's still part of the regular Maryhill repertoire. Sorry Jags fans.