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The Offensive Behaviour etc. Act is unfair, unworkable and illiberal.

2016 was all about taking offence at things. The Scottish Government took profound offence over Fifa’s ban on players wearing poppies at the Scotland England fixture It also took offence on a monthly basis against those calling for the repeal of the Offensive Behaviour at Football etc Act.  How dare they condone sectarianism – SNPBad!  They didn’t seem to understand the glaring contradiction – governments are programmed not to.

It may seem extreme to those who regard the poppy simply as a commemoration of war dead but some people regard the symbol as a political statement. The footballer, James McClean of West Brom, and the broadcaster Jon Snow refuse to wear it publicly for that reason. The world governing body of football has taken the precautionary act of banning all symbols and insignia for fear that, if it allows one, it allows all. Theresa May describes this as outrageous.

Yet, here in Scotland, singing of Roll of Honour at a football match, a song that commemorates the dead in the Irish Troubles, could result in five years in jail; or an acquittal depending on which sheriff happens to hear the case. Famously, Dundee sheriff Richard Davidson dismissed an action brought under the OBFA which he described, in learned opinion, as “mince”. Others have been found guilty for singing the song that made it into the top 40 UK singles chart in February 2014.

The problem is that the OBFA created an entirely new legal concept: a category of person who might be offended by something even if there was no evidence of such offence being taken. As the SNP-supporting legal expert, Andrew Tickell, described it: “In short, the court must invent a whole cast of touchy, grievance seeking, conspiratorial, irrational figures, and ask whether they might kick off in response to the hapless accused’s conduct. This is madness.” It then tests the offensive behaviour against this construct, with predictably inconsistent results.

People can take offence at different things. You could construct an argument that Flower of Scotland is offensive since it is a war-like dirge celebrating a bloody victory by Scots over the English. I find it offensive and I voted Yes in the referendum.

But I wouldn’t dream of calling for it to be banned, any more than the National Anthem should be banned; nor should people be prosecuted for singing it in a sports ground. The Scottish Government, when it framed the legislation, didn’t even try to compile a list of banned songs. Context, it seems is everything. But the idea that a particular song could carry a five-year sentence if sung in a football stadium but not outside it is legally nonsensical, as well as prejudicial to football fans.

Think of this for a moment. If you emit a sweary incantation – not even a particularly sectarian one – against any Scottish team while watching football on TV in a pub this weekend you could be banged up.  But if you were to utter the same incantation in the street outside, you’d be okay because you are not in the .   Bad laws like this bring the justice system itself into disrepute.

Defenders of the OBFA get very touchy when you talk of these anomalies. They regard it crafty legal sophistry disguising a capitulation to intolerance. Why would anyone defend sectarianism, Scotland’s disgrace, they ask? The only way to ensure that religious hate crime is eradicated is for nasty football supporters to be locked up. But the point is that threatening behaviour and inciting hatred are already against the law.

The OBFA has been criticised by lawyers, the Scottish Human Rights Commission, football groups and even sheriffs who have to prosecute it. There were only 79 convictions last year against 15,000 for breach of the peace, the law the Government thought was failing to tackle actions threatening public disorder. It insists, without irony, that the low level of convictions confirms that the act is working, an interesting way of assessing its effectiveness. I’m not sure it views rape convictions in the same light.

The OBFA was simply an exercise in public relations posing as legislation. The SNP bulldozed the act through Parliament against widespread opposition in 2012, following a number of highly publicised sectarian events, including that infamous touchline row between Neil Lennon and Ally McCoist. It had to “do something”. Many in the SNP have misgivings about the OBFA but party loyalty keeps them from condemning it.

Instead, apologists repeat this mantra: “It is sending a message that Scotland is a country which will not tolerate any form of prejudice, discrimination or hate crime.” But if you want to send a message it should be done by a public relations campaign and education. You don’t do it by making up a nonsense law and then driving it through Parliament on the strength of a captive vote.

A by-product of this cack-handed attempt to outlaw offensiveness is the competitive victimhood that has followed in its train. You can’t move for people taking offence, complaining that it is a racial slur for a BBC headline to use the term “Jock” or for a lesbian rap group to use the word “dyke”. Policing language, including songs, is extremely dangerous, especially when you have to invent people who might be offended by it.

The Government will have to repeal or amend the act eventually. It should take up some of the suggestions offered by lawyers to defuse the worst of it without appearing to make religious hatred “legal”. Threatening behaviour has never been legal; nor has incitement to public disorder.

Instead, the Government has circled the wagons and tried to suggest that all the criticism is just politically motivated carping from Unionist parties and apologists for sectarianism. It isn’t. Even the Scottish Greens voted for Labour MSP James Kelly’s private bill  to abolish the OBFA.
The worst thing about this legislation, apart from the manifest unfairness of certain acts being legal in rugby grounds but not in football grounds, is that it hasn’t even stopped the sectarian chanting, which can still be heard loud and clear at any Old Firm game.There are some unpleasant things in life that the law is just ill-equipped to address. Giving and taking offence is one of them.

The Government is not obliged to do anything as a result of yesterday’s vote. But it is a significant moral defeat. No sensible administration should persevere with a piece of unworkable legislation that has been rejected by Parliament, should never have been on the statute book in the first place and has left even sheriffs reduced to despair trying to apply it. It may be popular, but so was hanging.

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About iain2macwhirter

Writer and journalist.

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