Alex Massie

Scotland’s free-speech opponents remain as hypocritical as they are illiberal. Shame on them.

Scotland's free-speech opponents remain as hypocritical as they are illiberal. Shame on them.
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Like an old friend you do not actually like very much, the Scottish government's Offensive Behaviour at Football Act will not go away. It is five years since this offensive piece of legislation was passed and time has done nothing to lessen either its absurdity or its offensiveness.

To recap for readers who, for doubtless honourable reasons, have not kept up with one of the more extraordinary speech-curbing measures passed by any UK legislature in recent years, the bill's premise is that creating new kinds of thought and speech crime can eliminate thoughts and speech deemed offensive. (Some past reflections on this execrable bill can be found here, here and here.)

And so it came to pass that the Scottish police, with the full backing of the Crown Office and the Scottish government, began their programme of harassing football supporters whose only crime was to behave as football supporters. The singing of songs - speech, that is - would henceforth be deemed a criminal offence if the police could be satisfied that said songs were in some dubious sense 'offensive'.

It cannot be stressed too often that the law, as interpreted by the judicial system, rigs the game against any defendant. It allows - and I am not kidding here or making this up - for imaginary persons to be conjured into existence who might have been offended had they, you know, actually existed and been present and thus in a position to be offended or incited to public disorder by the singing of a football song. In Scotland, these days, you can offend people who do not exist. It takes the definition of a victimless 'crime' to hitherto unknown heights.

In a better, more sensible, society this would be reckoned laughable. That is not the society we inhabit, however. This, after all, is the Age of Hurt Feelings and if you hurt my feelings it is only proper that you pay a price for that.

To take but one of any number of examples that demonstrate the idiocy of this bill, consider the fact that a song sung by football supporters could be considered offensive but were the same song sung by rugby supporters at Murrayfield it would not be reckoned offensive. Remember too, that ministers were initially not sure if singing the national anthem might be grounds for arrest and prosecution.

So, 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. Because, jings, what's offensive to some tender-brained folk is not at all offensive to sensible people.

Earlier this month the Scottish parliament's public petitions committee considered an appeal for the bill to be reviewed. This petition submitted by the Fans Against Criminalisation pressure group (an organisation chiefly consisting of Celtic supporters but one that should be supported by all football supporters and, indeed, by people with no interest in football), led to scenes of low farce and high idiocy. This was entirely predictable. Kenny MacAskill, justice secretary at the time the bill was passed, was present.

Let's go to the official transcript. For reasons known only to himself and a higher power, Mr MacAskill demanded to know if the petitioners considered the targetting and murder of catholic police officers in the Royal Ulster Constabularly (and then the PSNI) a sectarian matter. What this had to do with the singing of anthems at football matches was not clear.

Undaunted, Mr MacAskill trudged on, suggesting it was 'perfectly reasonable' to in some way link actual murders in Northern Ireland with the singing of traditional Republican songs in Scotland. Awkwardly, he could not - or would not - actually name any of the songs about which he seemed so concerned. A minor detail, I suppose.

But then we should not expect Mr MacAskill to understand the issue. Because the root of the matter is not the content of the songs - no, not even those, as he put it, 'that venerate the killers of British soldiers' - but, rather, the right of individuals to exercise their right to speech. The actual words don't matter.

The committee's convenor, Labour's Michael McMahon, then asked a good question: 'What would you think of a motion in the Scottish Parliament urging the commemoration of the Easter Rising when it would lead to your arrest if you were to say the same thing at a football match?'

Well, quite. According to Mr MacAskill that would be different (perhaps, Father Kenny, even an ecumenical matter?) It is a 'question of context' since 'making a political statement at a political gathering is one thing. Shouting something offensive at a crowd, where people could be distressed, is another.' Alas, how it is another matter entirely was never explained.

As FAC's Jeanette Findlay observed, Mr MacAskill supports the erection of a statue of James Connolly the better to commemorate his role in the Irish uprising even as he also supports the criminalisation of football supporters who sing songs that could be understood as commemorating, even saluting, Connolly's service in the Easter Rising and eventual martyrdom. Liberty for Mr MacAskill but not for the lumpen republican proletariate, I suppose.

Celtic supporters have born the brunt of this shamefully illiberal bill. As the Lord Advocate, Frank Mulholland, noted in 2013, political chanting falls within the remit of the bill (an unusually honest admission of its speech-curbing nature but one that, characteristically, he failed to recognise as a problem). Asked if holding and expressing an Irish Republican identity was now potentially criminal, he replied 'Potentially criminal under this Act, yes.' So, of course, is its opposite. If it can be criminal to express Republican views it is equally criminal to express Loyalist views.

I'll grant Mr MacAskill this, however: the context in which these views are expressed really might matter. That is, the singing of 'sectarian' songs at football matches should not necessarily be understood as a declaration that, say, Rangers fans really wish to be 'up to their knees in Fenian blood' or that Celtic supporters necessarily really support the provisional IRA. Rather these are simply anthems of identity and declarations that we are different from them. In this fashion, singing is little more than the expression of affiliation. Again, the actual words don't matter very much.

Indeed, they might matter less inside a football ground than outside it. I certainly cannot see why a football supporter's fondness for James Connolly or the IRA is more offensive than a politician's support for the same.

But even if it were generally reckoned offensive, so what? A civilised and free society can cope with the expression of views it considers retrograde and even offensive. That's one of the ways in which you can tell it is a civilised and free society. By that standard, Scotland is neither free nor civilised.

In a better country, politicians would be ashamed of criminalising political speech, footballing anthems and, even, in other circumstances, jokes. It is typical of Kenny MacAskill and everyone else who supported this bill that they remain proud of it.

It's not about football and it's not about sectarianism. It's about speech. Which is why everyone should be concerned by it. And also, I would suggest, why supporters of every football club in Scotland should sing a medley comprising the Roll of Honour, The SashThe Boys of the Old Brigade and Derry's Walls. Make them arrest everyone.

Written byAlex Massie

Alex Massie is Scotland Editor of The Spectator. He also writes a column for The Times and is a regular contributor to the Scottish Daily Mail, The Scotsman and other publications.

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