SENIOR Scots judge Lord Bracadale should not preside over a review of a Scots law aimed at tackling sectarian behaviour at football matches because of his involvement in a ruling over whether the singing of a pro-IRA song was a criminal act.

BEMIS Scotland, the national ethnic minorities umbrella body, made the call and said the legislation should be suspended while its repeal is being considered by MSPs, saying it breaches human rights.

They say law enforcement agencies should use existing laws to tackle hate crime and public order issues.

The group also questioned whether senior judge Lord Bracadale should be examining the Scottish Government’s controversial Offensive Behaviour at Football and Threatening Communications Act having presided over "the leading case" over the interpretation of the Act which found that the singing of a pro-IRA song was likely to be a criminal offence.

And they said it was "inappropriate" for the hate crime review to include the Act when parliament had already enacted a "clearly sufficient process" through its own review.

HeraldScotland:

The BEMIS Scotland comments came as the Scottish Parliament’s justice committee considers legislation which would repeal the act brought in following the Old Firm “shame game” between Rangers and Celtic in 2011.

Lord Bracadale was one of three appeal court judges that decided that the singing of the pro-IRA Roll of Honour by a significant group of fans will be regarded by a reasonable person as being both threatening and offensive.

Lord Carloway, now head of the Scottish judiciary delivered the opinion four years while rejecting a claim that a charge under the controversial law led to the contravention of two convicted fans' human rights.

William Donnelly and Martin Walsh were convicted of charges surrounding the singing of the pro-IRA song at a match between Hibs and Celtic at Easter Road on 19 October 2013.

In February 2014, the Roll of Honour song reached the UK Top 40 Singles chart after the band Irish Brigade, were asked by supporters group Fans Against Criminalisation to cover the song to highlight their opposition to the Offensive Behaviour at Football and Threatening Communications (Scotland) Act.

The 1980s song celebrates the lives of 10 republican prisoners who died in 1981 at the Maze Prison.

Donnelly and Walsh's lawyers said they might not have appreciated that their rendition of the song could be regarded as threatening or offensive and thus render them liable to criminal conviction and sentence.

But Lord Carloway, who was then the Lord Justice Clerk, in delivering the judges' rejection of their appeal, said that it was "firmly established in law, and incidentally very well-known" that singing songs of a sectarian nature at football matches "is likely to be a criminal act".

HeraldScotland:

Leave to appeal had been granted over the conviction under Section One of the Offensive Behaviour act on the question of whether there was a conflict with Article Seven of the European Convention on Human Rights.

Danny Boyle, BEMIS Scotland's parliamentary and policy officer said in a memo to MSPs considering the repeal of the Act: "Given that the Act is not primarily a piece of hate crime legislation and that the esteemed Lord Bracadale has presided over the leading case in relation to the Act it seems a matter of natural independence that Lord Bracadale should not be expected to review contentious legislation that is being reviewed by parliament..."

"The independence of the executive, parliament and judiciary are fundamental for the appropriate mechanisms of a democratic state and this example provides a clear opportunity for the parliamentary function with the statutory locus to this review to be allowed to progress its work as the primary democratic function."

Mr Boyle added: "Given that we know that 99 per cent per cent of hate crime aggravations in 2016/17 took place outside of the scope of the Act's provisions it remains a mystery why the football act is routinely described as hate crime legislation."

The leave to appeal for Mr Donnelly and Mr Walsh was granted over the conviction under section one of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 on the question of whether there was a conflict with Article seven of the European Convention on Human Rights (ECHR).

HeraldScotland:

Fans display flags at Glasgow Derby

The leave to appeal involved whether there was, "in the circumstances of the case, a breach in the applicants' right to know, with sufficient clarity, of the nature of the crime, in terms of Article seven".

The pair's lawyers specifically argued that the Act does not make it clear that singing the Roll of Honour song would contravene the act

Lord Carloway said the appeal would proceed only on the the Article Seven question and added: "That may involve, in due course, a consideration of whether the result of the answer... is that the conviction must be quashed."

A month before the match, a Celtic supporter was convicted after singing the song at a match against Dundee United. He was banned from attending football matches for three years and fined £600.

But five months earlier, a Celtic fan caught singing the song was cleared at Dundee Sheriff Court of inciting public disorder during Dundee's Boxing Day match against Celtic. Sheriff Richard Davidson said during the case the law had been badly drafted.

The Scottish Human Rights Commission previously raised the "potential lack of legal certainty" over the Act as required by Articles six and seven of the ECHR during the legislation's formation.

A Scottish Government spokesman said: “Lord Bracadale is conducting a review of all hate crime legislation in Scotland with a view to making sure it is fit for purpose in the modern multi-faith and multicultural country that Scotland is. 

“Lord Bracadale is an independent former member of the judiciary and is working with a reference group of nine experts to develop and deliver the review – which has been welcomed by all political parties in the Parliament.

“It is entirely right for them to consider any piece of legislation which includes elements aimed at tackling hate crime.”