It cannot be said that Alex Salmond’s ministry is off to a good legislative start. Not when its immediate aim is, apparently, to rush through ill-considered, illiberal, speech-curbing legislation that asks the public not to worry about the detail and trust that the legal authorities will not actually enforce either the letter or the spirit of the Offensive Behaviour in Football and Threatening Communications (Scotland) Bill. According to Salmond:
"I am determined that the authorities have the powers they need to clamp down effectively on bigotry peddled online. The Internet is a force for good in so many ways – but it can also be abused by those who seek to spread hatred. That’s why the Scottish Government will bring forward legislation as soon as we can to make such online behaviour, including posts on sites like Facebook and Twitter, an indictable offence with a maximum punishment of five years in jail.
Dearie me, what a dreadful example of the Something Must Be Done school of legislating this is. I have no idea how this is supposed to work and nor, I rather suspect, do ministers. As Lallands Peat Worrier reminds us the English offence of "incitement to religious hatred" does not exist in Scotland, though prosecutions may be brought under the terms of the 1986 Public Order Act or the Criminal Justice and Licensing Act 2010 which criminalises "threatening or abusive behaviour" (however that may be defined). In other words, to the extent that threats against individuals, whether delivered by the Royal Mail or across the internet, may be fall foul of the law as it presently stands there’s no need for additional legislation at all.
Moreover, as LPW rightly asks in another post, how is this "bigotry" to be defined? At first glance it would seem to extend the protections afforded religious and racial groups to football clubs and their supporters. Or, perhaps, it uses football affiliations – that is, Celtic and Rangers – as proxies for religious and/or racial identity. If that is the case then, paradoxically, the legislation would seem to reinforce sectarian stereotypes even as it attempts to curb them.
Furthermore, this illiberal bill, which seeks to peer into men’s souls via their Twitterings, would, on the basis of what we know so far, define "bigotry" so broadly that half the football supporters in the land could theoretically be prosecuted since "bigorty" seems likely to mean simply "prejudice" and footballing affiliations are entirely based upon prejudice. In other words, there is not likely to be any reasonable grounds for supposing it can or will be enforced to its fullest extent. Which rather makes one wonder why it’s considered a useful piece of legislation in the first place. This is no way to run a government.
Note too that Salmond says:
In addition, threatening and abusive behaviour inside a football ground would similarly become an indictable offence, again with prison sentences of up to five years available to the courts for anyone found guilty.
If this woolly-thinking makes it into the bill then, on the face of it, I struggle to see how it can be enforced without also prosecuting players. Do they not threaten and abuse referees on a weekly basis? Indeed they do. As for the supporters in the stands, they too had best not howl with rage or indignation or express their displeasure with referees or opposing players either. Not unless they are willing to risk the Procurator Fiscal’s wrath.
Since this seems unlikely to happen, this new law must be applied capriciously and this should surely undermine the validity of the bill before it’s even been considered, let alone passed. It cannot, as the proposals stand, be thought fair, proportionate or workable. Nor is it a braw step for the brave new Scotland to create a new class of "Thought Crime", criminalising opinions merely because parliamentarians find those views disasteful.
In short, as the proposals currently stand this is a nonsensical, hideously-sweeping and illiberal piece of speech-curbing malfeasance that, in terms of its narrower obectives, is scarcely needed in the first place and that, more broadly speaking, is a grotesque infringement upon liberty and common-sense alike. No wonder it’s a favoured party-piece and just the sort of Bad Idea politicians find irresistable.
Oh for the days of minority government!