The Scottish Parliament’s Justice Committee is currently taking evidence on the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill: a Member’s bill introduced by James Kelly MSP on 21 June. The Bill, if enacted, would repeal the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.

The Act is aimed at offensive sectarian behaviour at and in the context of professional association football matches. In the accompanying Explanatory Notes, however, James Kelly argues that

• the specific offence of “offensive behaviour at regulated football matches” is unnecessary, because such behaviour can be prosecuted under a range of other public order offences;
• the Act is illiberal, in particular because its provision criminalising “other behaviour that a reasonable person would be likely to consider offensive” (where it is or would be likely to incite public disorder) is confusing and unclear: it does not differentiate between the specific behaviour it is targeted at – offensive behaviour at football – and “a wider category of behaviour that people should be free to engage in”; and
• it is inequitable because it only covers football matches and not other sports events, or events such as parades, at which sectarian behaviour might occur.

Kelly deploys largely similar arguments against the threatening communications limb of the Act.

The Justice Committee has received a considerable number of written submissions on the Bill – on which opinions are divided. Both the Rangers fans shareholder group, Club 1872, and the Celtic Trust have made submissions supporting repeal. Liberty concludes that the Act is “poorly thought-through and unnecessary” and suggests that

“The offences set out in the Act … extend the reach of the criminal law too far into the realm of free expression without offering meaningful additional protection.”

The Scottish Council of Jewish Communities, however, has called for an extension of the legislation, citing an incident in which Jews were subjected to “taunts and intimidation” at a performance by an Israeli dance group at an Edinburgh Fringe Festival event. Its submission to the Justice Committee, the Council notes that Crown Office believes that some behaviour which may be prosecuted under section 1 of the Act “would not be capable, or would not be securely capable, of being prosecuted under any other provision” and that it was possible to envisage behaviour that would be offensive to the reasonable person and which would cause or risk public disorder under s 1 of the Act but might not constitute a breach of the peace or fall within s 38 of the Criminal Justice and Licensing (Scotland) Act 2010. And without the powers under the Act, said Crown Office, an incident at a Berwick Rangers match – Berwick being in England – “could not have been prosecuted in Scotland because offences such as breach of the peace and section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 do not have extraterritorial effect”.

The Council concludes:

“Repeal would inevitably, even though not by intention, signal that certain behaviour currently prohibited under the 2012 Act is now permitted. The alternative of extending the coverage of the Act to other contexts, venues, and characteristics would undoubtedly have a far more positive effect for all the listed groups.

“We would regret the repeal of legislation that the prosecuting authorities believe has enabled them to pursue offenders who would otherwise have been able to continue their course of abuse and causing offence with impunity.”

A review group chaired by Lord Bracadale is currently looking at the law relating to hate-crime offences in Scotland; and the Church of Scotland’s Church and Society Council suggests – correctly, in my view – that “It would be wise to await the recommendations of [the Bracadale] review before repealing an Act which is currently in force”. Moreover, the Council believes that, though tackling sectarian attitudes and behaviours is probably still best done through supporting grassroots and community action rather than legislation, “the question of religious hatred in an increasingly multi-religious society is one which needs to be addressed”:

“There remain concerns that, regardless of the technical details of the legislation and prosecution and conviction rates, repealing the Act without replacement would be a symbol that our elected representatives do not think that behaving offensively or sending threatening communications is problematic.”