THE main lesson from the SNP’s botched legislation on combating sectarianism is the folly of legislating on the basis of a row between Old Firm managers.
Alex Salmond’s ‘Offensive Behaviour at Football and Threatening Communications Act’ was borne out of a skirmish between Neil Lennon and Ally McCoist after a turbulent Scottish Cup replay at Parkhead in 2011.
Lennon and other prominent figures were later sent parcel bombs and a resulting Government “summit” was followed by legislation.
The Act, which became operational in 2012, created two new offences - "threatening communications" and, more controversially, "offensive behaviour at regulated football matches".
The latter, opposed by fans’ groups from the start, covered people who attended matches and those watching a game on TV in a pub, as well as fans travelling to and from the games.
Critics outlined a number of concerns during the Bill’s passage through the SNP-majority Parliament, including that existing law was sufficient and that football fans were being unfairly targeted.
The Bill’s focus on “offensive” behaviour was also feared to be so subjective that prosecutions would be a nightmare.
During a Holyrood Committee session, Government Minister Roseanna Cunningham informed MSPs she could not rule out circumstances in which individuals were prosecuted for singing the national anthem.
After the Bill was approved by MSPs, lawyers scratched their heads as cases they believed were a waste of time worked their way through the courts.
In 2013, Sheriff Richard Davidson derided the anti-bigotry law as “mince” as he cleared a Celtic fan who sang an Irish republican anthem at a match.
The Sheriff ruled there was “no evidence” that the 19-year-old man had incited trouble when he and other Celtic fans sang ‘Roll of Honour’.
He said: “In this context there might be a problem with Flower of Scotland. The word ‘mince’ comes to mind.”
The legislation became vulnerable after the SNP lost its Holyrood majority in 2016. Labour MSP James Kelly, scenting cross-party support for scrapping the Act, steered a repeal bill through Parliament. It was over.
Now, the critics of the repealed law are angry with the Crown Office. The Act allowed outstanding charges to be “converted” to other statutory offences, but there was a perception such cases would be limited. Over half of the 86 charges have been re-badged.
It could be argued that this practice vindicates the original argument against the Act: existing legislation was sufficient, and no new law was required.
But the more important point is on governance. In spite of warnings from a range of stakeholders, the SNP Government wasted parliamentary time by enacting a bad law after a night of trouble at Celtic Park. When the Act was repealed, the charges were reclassified as different offences. Devolution was supposed to be an opportunity to modernise the law, not degrade it.
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