Football justice for imaginary North Koreans!

A comic thought this morning on twitter from Love and Garbage.  At Hampden park yesterday, the doughty Olympic organisers experienced a wee technical hiccup. Or at least, something rhyming with hiccup.  The sport was women's football, the teams all set to play, Colombia and North Korea, but the flag flying on the big screen - alas - was South Korea's four black trigrams and central blue and red taegeuk instead of the North's red star and red white and blue bands. Cue predictable outrage from the players, and delays, and red phizogs from the ignorant numpties charged with organising the show. Widely reported as a gaffe, could running up the wrong pennant be treated something rather more serious? As Love and Garbage asks, only half-jestingly, might flying the South Korean flag actually have breached Offensive Behaviour at Football Act?

The answer, ridiculously, entertainingly, is yes.  Remember, the 2012 Act provided that:

1(1) A person commits an offence if, in relation to a regulated football match—
(a) the person engages in behaviour of a kind described in subsection (2), and
(b) the behaviour—
(i) is likely to incite public disorder, or
(ii) would be likely to incite public disorder.

Firstly, was the Hampden game a "regulated football match"? The 2012 Act is perfectly plain about that.  A game involving one or more teams representing "countries or territories" is a regulated match, covered by the law. What about the behaviour itself? The folk at Hampden broadcast the flag and the faces of North Korean players onto a big screen within the stadium itself. There was no physical flag, as I understand it, but the 2012 Act is uncompromisingly broad, covering:

4(1)(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done.

The next question we have to ask ourselves is whether hoisting the wrong flag meets one of the Act's definitions of "offensive behaviour".  As you may recall, these are diverse, the definitions driven by the domestic vices of sectarianism, but go well beyond the traditional hatred and ditties which have squalled over Scotland's football terraces.

(2) The behaviour is—
(a) expressing hatred of, or stirring up hatred against, a group of persons based on their membership (or presumed membership) of—
(i) a religious group,
(ii) a social or cultural group with a perceived religious affiliation,
(iii) a group defined by reference to a thing mentioned in subsection (4),
(b) expressing hatred of, or stirring up hatred against, an individual based on the individual’s membership (or presumed membership) of a group mentioned in any of sub-paragraphs (i) to (iii) of paragraph (a),
(c) behaviour that is motivated (wholly or partly) by hatred of a group mentioned in any of those sub-paragraphs,
(d) behaviour that is threatening, or
(e) other behaviour that a reasonable person would be likely to consider offensive.

I don't think one can get very far with the idea that flying the incorrect banner expressed or stirred up hatred against North Koreans, or for that matter, that it was threatening - but look at section (e): "Other behaviour that a reasonable person would be likely to consider offensive".  As concepts go, this one is hardly very clearly pinned down, and I'm no expert on the current state of North-South Korean relations, but given the history and ongoing tensions between the two countries, and the mine field which runs along their borders, it seems fair to say that the transposition of one flag for the other is sorely affronting.

The reasonable person seems likely to consider it to be offensive, nor is this necessarily an eccentric conclusion.  Imagine a bumbling football organiser negligently flew the Orange Order flag, in place of Celtic's green and white pennant, or for that matter, in place of Rangers' blue; or someone waggishly or accidentally substituted the flag of the state of Israel for the Nazi flag, and didn't realise his mistake till he saw it on the big screen. It is easy to imagine any of these scenarios being prosecuted under the Football Act.

But what about public order? As the Minister assured us when the Bill was being finalised earlier this year, while the concept of offensive behaviour is extremely broad, the government sought to qualify it with a narrower condition: that offensive behaviour had to put public order at risk before it would be criminalised under the new legislation. 

Certainly, the women's team refused to set foot on the green in high dudgeon, but I imagine the crowd wasn't exactly awash with North Korean football fans. Surely the chances of public disorder as a result of this "offensive behaviour" was limited? You may be right, but the Football Bill plays a natty little trick which makes such common sense calculations irrelevant.  The offensive behaviour doesn't have to cause a stramash. Indeed, a stramash doesn't even have to be possible, never mind probable, for offensive behaviour to be criminalised under the 2012 Act. The behaviour need only be 1(1)(b)(i) "likely to incite public disorder" or alternatively, such behaviour as 1(1)(b)(ii) "would be likely to incite public disorder".

In one of its daffier, more whimsical provisions, the Act makes it eminently clear that as we puzzle through whether the impugned behaviour risks causing public disorder to break out, we should invent hypothetical crowds of people likely to be antagonised, and on that basis, come to a view about whether a fray is likely to be provoked by the behaviour:

1(5) For the purposes of subsection (1)(b)(ii), behaviour would be likely to incite public disorder if public disorder would be likely to occur but for the fact that—
(a) measures are in place to prevent public disorder, or
(b) persons likely to be incited to public disorder are not present or are not present in sufficient numbers.

Just think about that.  In this case, the question we must ask is not whether it is likely North Korean sections of the crowd might have been provoked into a swirling cavalcade of outraged violence, only failing to work up a riot because they didn't bring their families over to Scotland to see the women's team play.  Instead, the Football Act invites us to engage in counterfactual thinking, speculating on what might have happened, had Hampden been stuffed to the gunnels with wholly fictional North Koreans, troubled, insulted and offended by the flag of their inveterate foe flying beside the faces of their football team.  

And for that matter, what seems likely to have happened, if all of Hampden's empty seats have been full of patriotic North Korean football fans, when the big screen flashed its foolish error? Things needn't even degenerate into a brawl.  Imagine if imaginary crowds of North Koreans had all attempted to leave the stadium at once, outraged at this affront. Plenty of capacity for imaginary jostling, heated encounters and a disordered crowd crush, a threat to life and limb.  Imaginary public order was clearly imperilled. 

I'm sure I recall someone - several important characters in fact - saying something once about taking a "zero tolerance" attitude to offensive behaviour at football in Scotland.  Surely all those fictional North Koreans who weren't sitting in Hampden deserve a little justice.

The criminal law & mitey morphin' power Rangers...

I'm not your man for the football. I have no thoughts on the state of Scottish football, the liquidation of Rangers, or their strange, attenuated reincarnation, beyond the - hopefully uncontroversial - observation that corporations should pay their taxes, directors should be honest, not venal and negligent and gains got by theft and malpractice should not be rewarded. The collapse of some empires definitively should not be mourned. I've a weakness for stories of hubris whose disaster is royally visited upon itself, and have surveyed the engulfing calamity in that spirit. 

That said, I am interested in the law which Scotland has built up around football, most recently the Offensive Behaviour at Football Act of 2012, which you may remember I was and remain very much opposed to.  But bracket that.  What effect, if any, might Rangers' crashing out of the Scottish Premier League have on the implementation of legislation which was, as you'll recall, largely premised on the familiar spectre of the big and bitter Old Firm match, resounding with chant, singsong and mutual recrimination? I've been wondering if a peripheral section of the 2012 Act might not increase in significance.

Remember, the law primarily criminalises "offensive behaviour at regulated football matches". "Offensiveness" is defined exceedingly broadly. The definition of "regulated football matches" for the 2012 is largely borrowed from the Public Order and Criminal Justice (Scotland) Act 2006, which includes all games where one or both of the teams are members of the SPL and SFL, of the the Football League, the Football Association Premier League, the Football Conference or the League of Wales, or whether the Scottish national team is playing, whether at home or abroad. The 2012 Act is slightly more limited in its compass, and the offence it created:

2(1)(b) does not include a regulated football match outside Scotland unless the match involves—
(i) a national team appointed to represent Scotland, or
(ii) a team representing a club that is a member of a football association or league based in Scotland.

As you may recall, the "offensive behaviour" criminalised by this Act applies to folk in, entering, leaving or on their way to a football ground where a regulated match is taking place.  It also applies in:

2(3) "... any place (other than domestic premises) at which such a match is televised."

Rangers' fans may not see their team playing in the SPL, and if consigned to the third division, their games presumably won't be televised, but assuming that they are sporting enthusiasts with a certain attachment to the spectacle of top-flight of Scottish football booting the bladder about, they might at the very minimum decamp to a comfortable pub to watch their inveterate foes and former competitors fighting it out in their absence.  In the final controversial stages of the Football Bill, various Scottish politicians and senior policemen envisaged ostentatious police raids on pubs where regulated football matches were broadcast, silencing singers and penalising sectarian expressions wherever they risked creating "public disorder". At the time, this mostly came off as the empty, "tough" rhetoric of political poseurs, but I wonder if the provision might not become more important, as Rangers fans are cleared off of Premier Division terraces, and a segment of their supporters are obliged to take their sectarian ditties with them - presumably - to the pub.

85% already believe "sectarianism" is a criminal offence...

On Wednesday, Holyrood is due to pass the final version of the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill into law at stage three.  Yesterday, the BBC's Politics Show Scotland discussed the issue, and somewhat unexpectedly, yours truly was invited back on to contribute. The section starts around 01:04:16.  While there is still time for the legislation to be amended, its substantial revision seems unlikely.  I've made my own views on this legislation, and how it has been handled, defended and justified, exceedingly - one might even say tediously - plain across a series of more-and-less temperately worded pieces on this blog.  Such doubts are now moot. The Bill will pass on Wednesday. Our thoughts must turn to its implementation, its operation in practice and anxious scrutiny of how prosecutors and police officers use the sweeping powers it gives them. It is in that spirit that I tried to contribute to yesterday's programme.

Whether or not you regard this law as the bee's knees, we must be frank about the challenges presented by how its actual provisions have been composed. It is very broadly drafted, potentially criminalising a great gamut of conduct around and near football matches and football fans, whether in stadia, on public transport, or in pubs with the football on. In these settings, the police will be armed with very broad powers indeed, mediated primarily by that less-than-reassuring concept "common sense", to guide them. If this is your goal, or one you find attractive, this Bill will certainly satisfy. However, the breadth which will give the police such "flexibility" correlatively - and self-evidently - presents challenges for the liberty of the subject.

Some of you, I think, may have misapprehended the point I was trying to make in my ad absurdam piece about the criminalisation of Huguenot-haters. By no means am I seriously suggesting that the police will be spending their time, scourging around in bars, seeking out and persecuting those fondly reminiscing about St Bartholomew's Day in 1572.   By taking such an improbable example, and demonstrating how the new law will criminalise the eccentric conduct and prejudices of its characters, I hoped primarily to prompt a little thought. What about more plausible scenarios closer to home, closer to the Scottish experience? Do we seriously think that such cases really merit criminalisation and jail terms? Anybody who believes that the police and prosecutors never stumble and misjudge, I'd encourage you to read up on Paul Chambers and the scandal of his "Twitter Joke Trial". Such concerns are not hysterical. They are just the sorts of cases which are left vulnerable to prosecution, when you enact very broad criminal legislation, relying on the good sense of law officers and public prosecutors to use their provisions sparingly and selectively. Supporters of the Bill must be frank with themselves about that.

Finally, I wanted to expand upon a point raised in yesterday's Politics Show, on public knowledge of the law and potential challenges posed to the enforceability of this legislation. Les Gray, for the Police Federation, was profoundly skeptical about the idea that football fans - and I suppose, the public in general - will  struggle to ascertain what behaviour, speech or songs will be criminal under the new regime and which will not.  This robust confidence, despite the plain obscurity of the legislation's vaguest section, which criminalises "behaviour that a reasonable person would consider offensive" which a sheriff can be persuaded "is likely" or "would be likely to lead to public disorder". There is, for example, no list of proscribed songs or lyrics appended to this Bill, nor even a series of non-exhaustive scenarios, adding some meat to the concise definitions of its offences, to guide football fans and others exchanging views which might, conceivably, shade into the idea of "expressing hatred" against any of the groups enumerated in the law.

Is Les Gray right to be cynical about the idea that people have a clear idea what is permitted and what isn't? Here's a piece of evidence which suggests not, which I had rather intended to mention on the programme, but lamentably, slipped my mind when the camera had me in its beady, unresponsive gaze.  Seeking to bolster their waylaid plans for this legislation, the SNP Government commissioned a  poll from TNS-BMRB over the late summer, asking a series of questions about public attitudes towards "sectarianism". Do you agree that sectarianism is offensive? Do you agree that sectarianism is unacceptable in Scottish football? Do you agree or disagree that stronger action needs to be taken to tackle sectarianism and offensive behaviour associated with football in Scotland? 

From their point of view, the findings were ideal.  89% agreeing sectarianism was offensive, 91% agreeing that "stronger action was needed". Since, Roseanna Cunningham has regularly syllogised around these findings thus: 

Almost everyone agrees stronger action on sectarianism is needed. This Bill is stronger action on sectarianism. Therefore almost everyone supports this Bill.  

Best I can discern, at no point in this polling exercise did the government or TNS-BMRB attempt to posit any definition of what they actually meant by sectarianism, so heaven knows what those polled made of the questions. I'm reminded of George Orwell's essay, "What is Fascism?", on wild, undefined commonplaces in our discourses, which all too easily obscure rather than illuminate the issues we're trying to talk about. Fundamentally, to ask if folk if they think sectarianism is offensive is basically to ask do you think that this Bad Thing is good or bad? It is no surprise, thus framed, that such questions generate such stonking results.  

On my main theme, however - public knowledge of the law - the poll generated one finding which the government have conspicuously not discussed. Indeed, insofar as they have made reference to it, they've appear to have distorted the significance of the data. TNS-BMRB report that they asked their respondents if they thought that sectarianism is a criminal offence, under existing legislation? The key rationale now advanced by Scottish Government ministers is that this new Bill closes "gaps in the law", which is a rhetorical way of saying, "criminalising things which are not criminal but we think ought to be." So how knowledgeable were the public about these "gaps"? Did they see sectarianism as already criminal, or presently permitted by the law, and requiring criminalised in a "crackdown" aiming to expunge it from society and eliminate its lyrics from football? Strikingly, the poll showed that the vast, vast majority of respondents already thought that sectarianism was a criminal offence. The results were as follows:

Q: Sectarianism is a criminal offence. Agree or disagree?

Agree: 85%

Disagree: 5%

Neither agree nor disagree: 10%

Extremely cheekily, in a naked distortion of the polling data, in its news release, the Scottish Government appears to have substituted the is for an ought, suggesting that the poll showed that 85% of people "agreed that sectarianism should be a criminal offence". Not so. And the difference between the two statements is absolutely crucial. While the second may support the Scottish Government position, the question as posed by TNS-BMRB is more interesting, and more challenging. If most folk already regard "sectarianism" as criminal, what can new, symbolic criminal legislation contribute to changing behaviours, stopping mouths and slaying songs? More generally, if people have a very loose grasp on what the law requires of them as is, failing even to recognise the "gaps" the SNP government have put at the heart of their justification of this legislation, who can have much confidence that the broad-brush terms of the Offensive Behaviour at Football Bill will be seriously comprehensible, allowing people to discern what is and is not criminal, and regulate their conduct accordingly?  

At the very least, the Scottish Government's own poll suggests that Les Gray's cynicism about knowing fans, feigning ignorance about what is and is not required of them by the criminal law, may be seriously misplaced.

"I hate Huguenots..."

To say that the SNP Government's Offensive Behaviour at Football Bill introduces two new criminal offences is superficially correct but practically misleading. It is better to think of both as little clusters of criminalisation - with several limbs - entangling conduct of a great range of severity by the bonds of a section and ties of a clause. With the addition of a public order element, the first new offence proposed - offensive behaviour at football - criminalises (a) expressing hatred, (b) stirring up hatred, (c) behaviour motivated by hatred, (d) threatening behaviour and (e) any other behaviour that a reasonable person would find offensive. Try to get your head around the gigantic range of conduct encompassed in that, particularly by ideas of expressing hatred and things the Reasonable Man would get disgruntled by, whatever the devil that might be. 

As one academic who submitted evidence on the Bill noted, holding all of the elements of the offences in one's head, and coming to some understanding of what sort of conduct is caught by them, can be a rather bamboozling enterprise. It is also an enterprise which has long been deferred in the parliament, which has thus far preferred to engage in a rather airy debate about the necessity of the new law and general condemnation of sectarian recrimination.  No longer, with any luck. Today in Holyrood, the Justice Committee is considering stage two amendments to the Bill. These have been forthcoming from Roseanna Cunningham, David McLetchie and Patrick Harvie. Depressingly, however, on a quick look through them, the proposed changed are all rather superficial, and don't invite SNP members and ministers to justify their proposals in detail in a way they have not been challenged to do thus far - and I fear - likely won't be before this Bill is enshrined in law.

From the government side, Cunningham proposes to introduce a mandatory reporting mechanism on how the law operates in practice, empower ministers to change the list of things-it-is-illegal-to-express-hatred of-in-relation-to-regulated-football-matches, and an additional clause on the protection of the freedom of speech (which significantly, only attaches to the threatening communications offences, rather than the offensive behaviour at football-specific provisions). As Christine Grahame noted in the stage two debate in Holyrood, it is unfortunate that this second plank of the proposed legislation has largely been ignored. In order to weigh this post by the kilogram rather than the tonne, that is a matter for another day.

For today, I wanted to focus in a little more detail on the first offence, by way of a wee scenario. When questioned about the breadth of the provisions criminalising offensive behaviour at football, Minister's have often rebutted: public order's the thing, and conduct which doesn't threaten public disorder won't be criminalised. But soft, what about section 1(5)?

1(5) For the purposes of subsection (1)(b)(ii), behaviour would be likely to incite public disorder if public disorder would be likely to occur but for the fact that—
(a) measures are in place to prevent public disorder, or
(b) persons likely to be incited to public disorder are not present or are not present in
sufficient numbers.

Think this through. Say I am a raging anti-Huguenot bigot, and have raging bigoted, anti-Huguenot friends. We congregate in a local pub, which is discreetly showing the mighty Kinlochbervie Rangers thrashing Partick Thistle on the telly.  "Aren't Huguenots bastards?", I ask my friend, who promptly sums up his choice catalogue of poisonous sentiments about French Protestants, saying "I hate Huguenots". It is at this point that the police happen to chance in, scoping out a suitable spot for a post-shift tipple. Overhearing my hating crony's remarks, and armed with the newly-passed Offensive Behaviour at Football Act, they get out the handcuffs and advise him that post-Cadder, he can now avail himself of legal representation when questioned. Before he is carted off, I just manage to ask one of the constables "how the devil was this a crime?" 

This learned officer of the law could give me the following information. Firstly, he points to the football match being broadcast in the background, regulating my chums comments under s2(3) of the Offensive Behaviour at Football Act. Grudgingly, I cannot avoid conceding that our anti-Huguenot hate meeting is potentially caught. Secondly, the jurisprudentially informed officer would identify that one element of the offence is simply to "express hatred" [s1(2)(a)] about a "social or cultural group with a perceived religious affiliation" [s1(2)(a)(ii)]. To say "I hate Huguenots" is to do just that. Being a calculating, raging anti-Huguenot bigot, I too had boned up on the new law.  "But what about the public order element?", I ask triumphantly, assured that my friend would soon be liberated. "Look around," I say. "The pub is passive, chaos has not ensued and the peace remains undisturbed." The officer could concede the general serenity of the room easily enough, but that wouldn't smudge away his indulging smile or liberate my loathesome friend. 

"Read section 1(5) more closely, young man. You don't have to cause public disorder. The test is that the 'behaviour would be likely to incite public disorder', even if where is really nobody there to be incited." Goggling, I stammer out "so you mean, if we pretend a Huguenot had been here, and we assume that he would be likely to being incited to cause a hubbub by my friend's expressions of hatred, then he can be convicted of offensive behaviour at football?" "Yup". "So basically, the vaunted public order limitation is potentially entirely fictional, since the Act specifically aims to criminalise situations relating to regulated football matches where groups of bigoted misanthropes congregate to air their views, and nobody who is actually present would bat an eyelid at the scabrous sentiments we express, being bigots themselves?" Shoving the miserable anti-Huguenot out of the door, the constable crisply concludes: "Just read the law, son." 

I can hear the sound of distant scoffing already, but on my reading of this tortured statute, the scenario I'm envisaging is clearly regulated by this Bill. Clearly, it isn't the primary business which Holyrood thinks it is about, but it is the practical consequence of their general commitments to it. More generally, ministerial protestations that the "public order" aspect will be a substantial safeguard at least start to look questionable, when the statute itself invites courts to invent imaginary incitees from impugned groups to justify the criminalisation of dismal sentiments with no realistic prospect of inciting assembled persons at all. 

This morning, I note that some nationalist members of the Committee are scoffing at the failure by Labour and the Liberal Democrats to produce any substantial amendments to this Bill, suggesting that their opposition amounts to shameless opportunism. That is certainly a disappointing. However, to imply that this is the only reason anybody could have for questioning or doubting the virtues of this hastily-drafted and complicated statute is clearly ridiculous.  From the beginning, ministers from the First Minister downwards have made muddled and often confused pronouncements on the policy objectives this Bill seeks to realise, while justifications given for the proposed provisions have marched and counter-marched all over the place since the Bill's first "emergency" introduction in the summer. Partisan loyalty being what it is, I don't expect SNP MSPs to publicly concede these things, but the defensive arts of the braggart are growing tedious. 

Legislators, it is your job to scrutinise Bills. You'll do your country a far greater service by applying your mind to the confusions and limitations of what this Bill is actually proposing, than gloating over a crushed opposition in the chamber.  Indeed, it strikes me that the Nationalist tone at the stage two debate on the Bill in Holyrood struck an ugly parallel with recent Scottish Questions in the House of Commons. A tiny knot in a gigantic room full of folk opposed to them, the Unionist parties delivered a hysterical kicking to the Nationalists. I was particularly struck by the psychological satisfaction this piece of institutionally sanctioned barbarity clearly gave to those who participated in it. Whatever the triumphant Nationalists do elsewhere, however pitiful the electoral fortunes of the Labour, Liberal and Tory parties in the country, in the serene tabernacle of the House of Commons, the small sprout of Nats can always be treated like contemptible, upstart toadstools, handily unrooted. The delirious kicking in the room makes up for the kicking that all three received out of it. 

Similarly, in Holyrood, the SNP benches may applaud ministerial invective, indict the intentions of their opponents and scoff at any expressions of concern about the football legislation. In the space, I'm sure this lends them an overwhelming sense of reassurance. It is a warm and compensating feeling. Our lot didn't cock up, it is just everyone else, up to their usual obstructionist tricks.  Particularly significant, I think, that the SNP have reached so speedily for this familiar, self-satisfying puir me narrative, which in turn disavows the extent to which this whole Bill has been a bungling enterprise, and the shock at the skepticism and division which has met what they clearly hoped would be a simple, popular proposal.

Just as their disavowed defeats make the Unionist majority in Westminster don their tackety-boots, whatever doubts are expressed about the Football Bill outside Holyrood, in the chamber the roaring Nationalist majority can always cheer away these anxieties. This is political intoxication, not good sense and not good governance. We're stuck talking about a general diagnosis, rather than attending to the reason or unreason of the particular prescription the SNP has proposed. Parliamentarians considering amendments in the Justice Committee today would do well to follow the advice of my fictional policeman: "Just read the law, son."

That latest TNS-BMRB poll on Scottish independence...

From summer drought to Autumn monsoon! After the full Scottish poll from Ipsos-MORI, which I took apart in a little bit of detail yesterday, the clouding over of the inscrutable firmament of public opinion has ended. With a splash to delight obsessives, the pitter-patter of opinion is pelting down on us again. (I'm conscious that for readers based in Scotland, they may struggle to connect this metaphor of drought to their experiences of the weather over the past few months, rejoicing in the ironic title of Summer. Think of it as moving from June smirr to September drizzle).  

Take your pick which you find more interesting. Over today and yesterday, the attitude-tabulating folk at TNS-BMRB have published the detail of two of their polls, the first commissioned by the Scottish Government, the second by the Herald newspaper.  While Scottish Ministers were particularly interested in attitudes towards sectarianism and its legal regulation, the newspaper wanted to know what folk make of the idea of Scottish independence. The independence poll sampled the opinions of 1,007 folk between the 24th and 31st of August, while the sectarianism poll questioned 1,028 people between the 27th of July and the 3rd of August. In the interests of giving both studies the space they deserve, I propose briefly to deconstruct the independence polling here, and return to the results of the sectarianism enquiry later in the week. The headline in the paper this morning proved suitably dramatic "Yes voters take lead in Scottish independence poll". As memory serves, the most recent poll on the question of Scottish independence was also conducted by TNS-BMRB and was published in June 2011.  I looked at some of its below-the-topline detail here. In the interests of continuity, beside the results of today's poll, I'll add the change from the pollster's findings of June.

TNS-BMRB asked their respondents the following "The SNP have outlined their plans for a possible referendum on Scottish independence in the future. If such a referendum were to be held tomorrow, how would you vote?" Respondents could declare themselves for or agin the idea of the Scottish Government negotiating "a settlement with the Government of the  UK so that Scotland becomes an independent state". For the indecisive, there was always "don't know". That produced the topline results, emphasised in the press:

All respondents...

• Agree  ~ 39% (+2%)
• Disagree ~ 38% (−7%)
• Don't know ~ 23% (+5%)

What about gendered differences in attitudes towards independence? Overall, TNS-BMRB found...

Men...

• Agree  ~ 43% (-)
• Disagree ~ 40% (−5%)
• Don't know ~ 17% (+4%)

Women...

• Agree  ~ 36% (+4%)
• Disagree ~ 36% (−9%)
• Don't know ~ 28% (+5%)

While yesterday's Ipsos-MORI poll did have a breakdown of its findings by affluence (which I didn't discuss in the body of my post), it didn't use the social gradings you may be familiar with from the YouGov polls before the Holyrood election, which predicted the movement in working class voters away from Labour towards the SNP which seems to have been confirmed by the preliminary findings of the Scottish Election Survey 2011. TNS-BMRB use the same social grading we saw in the YouGov polling. If you need reminding, here's a brief account of the rationale for these rather unrefined social grades. On independence, how did it turn out?

AB...

• Agree  ~ 37% (+8%)
• Disagree ~ 49% (−9%)
• Don't know ~ 14% (+1%)

C1...

• Agree  ~ 37% (+3%)
• Disagree ~ 42% (−8%)
• Don't know ~ 21% (+5%)

C2...

• Agree  ~ 38% (+1%)
• Disagree ~ 38% (−4%)
• Don't know ~ 24% (+3%)

DE...

• Agree  ~ 44% (+1%)
• Disagree ~ 27% (−8%)
• Don't know ~ 29% (+7%)

Next, take age. The last independence poll indicated advancing hostility towards independence as you sidled through the generations, with the young folk being more up for Scotland assuming sovereignty, while the more ancient felt that we oughtn't.  As before, the first number given is the result from today's poll, the figure in brackets being the change in the results since early June this year.

18-24...

• Agree ~ 40% (−11%)
• Disagree ~ 32% (−4%)
• Don't know ~ 27% (+14%)

25-34...

• Agree ~ 46% (+6%)
• Disagree ~ 23% (−13%)
• Don't know ~ 31% (+7%)

35-44...

• Agree ~ 47% (+9%)
• Disagree ~ 32% (−4%)
• Don't know ~ 21% (−6%)

45-54...

• Agree ~ 38% (−1%)
• Disagree ~ 39% (−8%)
• Don't know ~ 23% (+9%)

55-64...

• Agree ~ 37% (+6%)
• Disagree ~ 41% (−12%)
• Don't know ~ 22% (+6%)

65+ ...

• Agree ~ 31% (+3%)
• Disagree ~ 53% (−4%)
• Don't know ~ 16% (+1%)

Finally, on its last outing, the independent poll produced some surprising regional differences. In areas where the SNP prosper well such as the North East, independence was opposed. By contrast, in Glasgow - and the traditional fastnesses of Labour Unionists, only shaken in May, the favoured option was independence. It is worth bearing in mind that in each case, we are only talking about a hundred or so folk per folk. We should not, therefore, be hugely surprised if the results produced appear volatile and shifting in nature.  A few months on, across the eight Holyrood regions, the pollsters found...

Highlands and Islands...

• Agree ~ 45% (+20%)
• Disagree ~ 33% (−14%)
• Don't know ~ 22% (−6%)

North East...

• Agree ~ 45% (+7%)
• Disagree ~ 28% (−17%)
• Don't know ~ 27% (+10%)

Mid-Scotland and Fife...

• Agree ~ 43% (+10%)
• Disagree ~ 28% (−13%)
• Don't know ~ 29% (+3%)

Lothian...

• Agree ~ 30% (−4%)
• Disagree ~ 46% (−1%)
• Don't know ~ 24% (+6%)

Central Scotland...

• Agree ~ 39% (-)
• Disagree ~ 38% (−7%)
• Don't know ~ 23% (+7%)

Glasgow...

• Agree ~ 41% (−5%)
• Disagree ~ 42% (+3%)
• Don't know ~ 17% (+2%)

West Scotland...

• Agree ~ 46% (+5%)
• Disagree ~ 40% (−4%)
• Don't know ~ 14% (−2%)

South Scotland...

• Agree ~ 30% (−4%)
• Disagree ~ 45% (−8%)
• Don't know ~ 25% (+12%)

The full TNS-BMRB tables.

That anti-sectarianism Bill in full...

As Roseanna Cunningham promised on Wednesday, the Scottish Government's anti-sectarianism Bill, or to give it is proper title - the would-be Offensive Behaviour at Football and Threatening Communications (Scotland) Act - was introduced to parliament yesterday and is publicly available on the internet from this morning. For your information, I have set out the proposed Bill in full below. You may also be interested in a couple of the accompanying documents published alongside the draft, particularly the Government's explanatory notes to the Bill and their supporting policy memorandum.  I will have more to say about the contents of the proposed legislation anon.  For those without a background reading statues, their fashion of leaping about and referring you to five subsections and definitions simultaneously can make grasping their meaning something of a chore. That said, the broad gist of the Bill is, I think, reasonably plain.

Offensive Behaviour at Football and Threatening Communications (Scotland) Bill

[AS INTRODUCED]

CONTENTS

Section

Offensive behaviour at regulated football matches

• 1 Offensive behaviour at regulated football matches
• 2 Regulated football match: definition and meaning of behaviour “in relation to” match
• 3 Fixed penalties
• 4 Sections 1 and 2: interpretation

Threatening communications

• 5 Threatening communications
• 6 Section 5: interpretation

General

• 7 Sections 1(1) and 5(1): offences outside Scotland
• 8 Commencement
• 9 Short title

----

Offensive behaviour at regulated football matches...

1 Offensive behaviour at regulated football matches

(1) A person commits an offence if, in relation to a regulated football match—

• (a) the person engages in behaviour of a kind described in subsection (2), and
• (b) the behaviour—
• (i) is likely to incite public disorder, or
• (ii) would be likely to incite public disorder.

(2) The behaviour is—

• (a) expressing hatred of, or stirring up hatred against, a group of persons based on their membership (or presumed membership) of—
• (i) a religious group,
• (ii) a social or cultural group with a perceived religious affiliation,
• (iii) a group defined by reference to a thing mentioned in subsection (4),
• (b) expressing hatred of, or stirring up hatred against, an individual based on the individual’s membership (or presumed membership) of a group mentioned in any of sub-paragraphs (i) to (iii) of paragraph (a),
• (c) behaviour that is motivated (wholly or partly) by hatred of a group mentioned in any of those sub-paragraphs, (d) behaviour that is threatening, or
• (e) other behaviour that a reasonable person would be likely to consider offensive.

(3) For the purposes of subsection (2)(a) and (b) it is irrelevant whether the hatred is also based (to any extent) on any other factor.

(4) The things referred to in subsection (2)(a)(iii) are—

• (a) colour,
• (b) race,
• (c) nationality (including citizenship),
• (d) ethnic or national origins,
• (e) sexual orientation,
• (f) transgender identity,
• (g) disability.

(5) For the purposes of subsection (1)(b)(ii), behaviour would be likely to incite public disorder if public disorder would be likely to occur but for the fact that—

• (a) measures are in place to prevent public disorder, or
• (b) persons likely to be incited to public disorder are not present or are not present in sufficient numbers.

(6) A person guilty of an offence under subsection (1) is liable—

• (a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or
• (b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

2 Regulated football match: definition and meaning of behaviour “in relation to” match

(1) In section 1 and this section, “regulated football match”—

• (a) has the same meaning as it has for the purposes of Chapter 1 (football banning orders) of Part 2 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10) (see section 55(2) of that Act), but
• (b) does not include a football match outside Scotland unless the match involves—
• (i) a national team appointed to represent Scotland, or
• (ii) a team representing a club that is a member of a football association or league based in Scotland.

(2) For the purposes of section 1(1), a person’s behaviour is in relation to a regulated football match if it occurs—

• (a) in the ground where the regulated football match is being held on the day on which it is being held,
• (b) while the person is entering or leaving (or trying to enter or leave) the ground where the match is being held, or
• (c) on a journey to or from the regulated football match.

(3) The references in subsection (2)(a) to (c) to a regulated football match include a reference to any place (other than domestic premises) at which such a match is televised; and, in the case of such a place, the references in subsection (2)(a) and (b) to the ground where the match is being held are to be taken to be references to that place.

(4) For the purpose of subsection (2)(c)—

• (a) a person may be regarded as having been on a journey to or from a regulated football match whether or not the person attended or intended to attend the match, and
• (b) a person’s journey includes breaks (including overnight breaks).

3 Fixed penalties

In Part 1 of the table in section 128 of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8) (fixed penalty offences), after the entry relating to section 52(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, insert— “Section 1(1) of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2011 (asp 00) Offensive behaviour at regulated football matches”

4 Sections 1 and 2: interpretation

(1) Section 1(1) applies to—

• (a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and
• (b) behaviour consisting of—
• (i) a single act, or
• (ii) a course of conduct.

(2) In section 1(2)—

• (a) membership, in relation to a group, includes association with members of that group,
• (b) “presumed” means presumed by the person expressing hatred or, as the case may be, doing the stirring up,
• (c) “religious group” has the meaning given by section 74(7) of the Criminal Justice (Scotland) Act 2003 (asp 7).

(3) In section 1(4)—

• (a) “disability” means physical or mental impairment of any kind,
• (b) “transgender identity” means any of the following—
• (i) transvestism,
• (ii) transsexualism,
• (iii) intersexuality,
• (iv) having, by virtue of the Gender Recognition Act 2004 (c.7), changed gender,
• (v) any other gender identity that is not standard male or female gender identity.

(4) In section 2(3), “televised” means shown (on a screen or by projection onto any surface) whether by means of the broadcast transmission of pictures or otherwise.

Threatening communications...

5 Threatening communications

(1) A person commits an offence if—

• (a) the person communicates material to another person, and
• (b) either Condition A or Condition B is satisfied.

(2) Condition A is that—

• (a) the material consists of, contains or implies a threat, or an incitement, to carry out a seriously violent act against a person or against persons of a particular description,
• (b) the material or the communication of it would be likely to cause a reasonable person to suffer fear or alarm, and
• (c) the person communicating the material—
• (i) intends by doing so to cause fear or alarm, or
• (ii) is reckless as to whether the communication of the material would cause fear or alarm.

(3) For the purposes of Condition A, where the material consists of or includes an image (whether still or moving), the image is taken to imply a threat or incitement such as is mentioned in paragraph (a) of subsection (2) if—

• (a) the image depicts or implies the carrying out of a seriously violent act (whether actual or fictitious) against a person or against persons of a particular description (whether the person or persons depicted are living or dead or actual or fictitious), and
• (b) a reasonable person would be likely to consider that the image implies the carrying out of a seriously violent act against an actual person or against actual persons of a particular description.

(4) Subsection (3) does not affect the generality of subsection (2)(a).

(5) Condition B is that—

• (a) the material is threatening, and
• (b) the person communicating it intends by doing so to stir up religious hatred.

(6) It is a defence for a person charged with an offence under subsection (1) to show that the communication of the material was, in the particular circumstances, reasonable.

(7) A person guilty of an offence under subsection (1) is liable—

• (a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or
• (b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

6 Section 5: interpretation

(1) Subsections (2) to (5) define expressions used in section 5.

(2) “Communicates” means communicates by any means (other than by means of unrecorded speech); and related expressions are to be construed accordingly.

(3) “Material” means anything that is capable of being read, looked at, watched or listened to, either directly or after conversion from data stored in another form.

(4) “Religious hatred” means hatred against—

• (a) a group of persons based on their membership (or presumed membership) of—
• (i) a religious group (within the meaning given by section 74(7) of the Criminal Justice (Scotland) Act 2003 (asp 7)),
• (ii) a social or cultural group with a perceived religious affiliation, or
• (b) an individual based on the individual’s membership (or presumed membership) of a group mentioned in either of sub-paragraphs (i) and (ii) of paragraph (a).

(5) “Seriously violent act” means an act that would cause serious injury to, or the death of, a person.

(6) In subsection (4)—

• (a) “membership”, in relation to a group, includes association with members of that group, and
• (b) “presumed” means presumed by the person making the communication.

General...

7 Sections 1(1) and 5(1): offences outside Scotland

(1) As well as applying to anything done in Scotland, sections 1(1) and 5(1) also apply to anything done outside Scotland by—

• (a) a British citizen, a British Overseas Territories citizen, a British National (Overseas) or a British Overseas citizen,
• (b) a person who under the British Nationality Act 1981 (c.61) is a British subject,
• (c) a British protected person within the meaning of that Act, or
• (d) a person who is habitually resident in Scotland.

(2) Section 5(1) also applies to a communication made by any person from outside Scotland if the person intends the material communicated to be read, looked at, watched or listened to primarily in Scotland.

(3) Where an offence under section 1(1) or 5(1) is committed outside Scotland, the person committing the offence may be prosecuted, tried and punished for the offence—

• (a) in any sheriff court district in which the person is apprehended or in custody, or
• (b) in such sheriff court district as the Lord Advocate may direct, as if the offence had been committed in that district (and the offence is, for all purposes incidental to or consequential on the trial and punishment, deemed to have been committed in that district).

8 Commencement

This Act comes into force on the day after Royal Assent.

9 Short title

The short title of this Act is the Offensive Behaviour at Football and Threatening

Communications (Scotland) Act 2011.

Source.

A political case for deferring the anti-sectarianism Bill...

According to the Minister for Community Safety, Roseanna Cunningham, we can expect the Scottish Government's anti-sectarianism Bill to be introduced to Holyrood tomorrow. Which means that, after some at-pace legal wrangling, the Presiding Officer has been willing to certify that the Bill falls within the parliament's legislative competence under the Scotland Act 1998, despite the potential devolution competence and European Convention compatibility hurdles identified in my post on the fortnight left to Holyrood, to debate and scrutinise this text, before the summer recess.

After a number of post-election blogposts on the law and policy issues raised by these proposals, my own views should be familiar. Depending on the precise wording of the Bill, I anticipate strong objections of principle. More generally, whatever the first draft of this law actually says, it is recklessness and folly to blunder ahead with a piece of unscrutinised legislation in the name of a concocted emergency, the consequences of which ministers themselves have only just begun to guess and which the wider community of the realm still has had no opportunity to read, never mind deliberate upon.  That would be true whatever the subject matter of the Bill.  Such concerns ought to be all the more pressing when we are talking about empowering state agencies, through a criminal statute, to take legal action against individual citizens which is likely to have a profound implications for their liberty. A decent sense of the value of reflection and the perils of haste is not, as verve-invoking ministers might suggest, a prescription for endless delay, nor high praise for parliamentary ponderousness. There are issues in law reform which, in my view, have been investigated and mooted well beyond needful and beneficial scrutiny. This is not one of them. To ordain that no substantial evidence be taken, no time be given to would-be evidence givers to collect their thoughts, no time for parliamentarians to learn what questions they ought to be asking, never mind getting around to asking them - is reckless administration, pure and simple. Reason enough, you might think, to defer consideration of this Bill until Holyrood re-congregates after its vacation.  However, this appeal alone seems to leave the Scottish Ministers unmoved. Salmond is famously keen on the Marquess of Montrose's gambler's adage...

"He either fears his fate too much
Or his deserts are small,
That puts it not unto the touch
To win or lose it all."

As far as this piece of legislation goes, he keeps to his genre, but comes over all Richard III...

"Slave, I have set my life upon a cast,
And I will stand the hazard of the die..."

Having built himself a political cell from his promised expedition and the hasty rhetoric of a sectarian emergency requiring immediate legislative relief, Salmond has gingerly turned the locks on himself and his unfortunate Justice Secretary. Since reason seems incapable of moving the First Minister to break out of these confines, I thought a different tack was indicated, something which Mr Salmond is likely better to appreciate: picklock politics.

Observers of the Holyrood scene will well-recognise the emergence of a particular strain of opposition rhetoric, replete with dark threats about the "elected dictatorship" of the SNP, and equally implausibly, the brutalising machinery of its "one party state".  For reasons of comity and managing the danger of triumphant Nationalist crowing over a crushed and addled opposition, the SNP has a clear interest in thinking about how it uses its majority in Holyrood, and how that majority might appear, both to the public and the rather more attentive press. The election of Tricia Marwick, some observers suggested, missed an opportunity for magnanimity, permitting an opposition member to snatch the office, rather than following the PM's motto from Yes Minister: "In defeat malice, in victory revenge". The party's dominance across the convenorships of the Holyrood committees, however justified this might be by the democratic support it achieved in May, presents similar issues. A gaggle of gormless stooges, without the independence of mind God gave a oyster, does not an impressive political outfit make. Today in Holyrood, Tory MSP and Justice Spokesperson, Margaret Mitchell, closed the justice debate with a rather o'er-sharp denunciation of ... um ... lots of stuff, including Salmond's recent intemperate remarks about Lord Hope (more on which later). Aidan Skinner wasn't entirely off-piste, when he tweeted "that was a brave phalanx of junior SNP MSPs throwing themselves on points of order to defend the Emperor."  

The issue for the SNP is twofold: firstly, how are they to sustain an idea of parliament holding a government to account (thereby generating some sense of consensual politics, stymieing wrongheaded allegations of elective dictatorship)? Secondly, how are SNP backbench MSPs to avoid being (and for the party, probably more pressingly, appearing to be) a supine, incurious and unassertive band, crammers and stuffers labouring only for the whips, unwilling to articulate any robust independence of mind or recognise government fallibility or folly? 

And how, for that matter, does this connect to sectarianism? Here's how. Firstly, parliament can probably be relied upon to put up some limp disagreement with the pace of these anti-sectarian innovations. From today's debate in Holyrood, we can anticipate that these protests will cross parties. Concern about the speediness of these reforms will thus be a proper, parliamentary affair. However, if ministers press ahead, anaemic opposition qualms about the rush seem unlikely to cause the Labour Party and others to actually oppose the Bill. However unfairly, that would leave them politically vulnerable to the allegation that they are lily-livered on sectarianism, the bigots' tribunes. Unfortunately, in the world of the politician, is seems far easier quietly to pass an illiberal statute than face a such a vacuous drubbing. These opposition qualms are therefore only likely to be useful if Ministers decide to incline their heads to parliament. Here's where the the SNP's supine backbench problem comes in. How are they to demonstrate that SNP representatives will robustly hold the government to account and critically, that ministers may, now and then, fold in the face of such criticisms? 

Alex Salmond's self-imposed haste to pass this Bill was folly. And yet, it seems to me that this conjunction of events can turn that folly into a political opportunity. Why not wait for the opposition to whip up a bit of hysteria about the risks associated with breakneck criminal legislation and rely on Christine Grahame, as Convenor of the Justice Committee, to make a maverick case for delay - and more in sorrow than in anger, after a show of resistance, choreograph a ministerial deferral of the issue until Holyrood reconvenes, allowing for discussion and examination? Be even more artificial. Encourage other SNP backbenchers to vent their cares and concerns about the passage of a scantily scrutinised Sectarian Bill. It would be a splendid opportunity to rebuke those who've been talking about dictatorships and domination.

In the process, the Government would achieve a number of things. It may be monstrously cynical, but you'd struggle to find a better issue to pick, as opposition representatives will doubtless be anxious not to appear to be caballing and frivolous about an issue of serious societal concern. You may get the odd stray quote about Salmond's misjudgement in terms of timing this reform - but he has misjudged it. In the end, you'll still likely pass an Act of some character, with some juicy criminal sections, affording ministers an opportunity to utter resounding denunciations about sectarian goons and ultimately prosecute a few under the new legislation.  On the other issues I mention, how otherwise is the SNP to emphasise its parliamentary credentials - and the hardiness of its own backbenchers?

It strikes me that if you have to change your mind in government, why not change your mind on an issue you actually got wrong, which is unlikely to do you any political damage in the longer term, which serves the difficult function of emphasising the independence of your own backbenchers and government submission to parliament - and for which the opposition will find it difficult seriously to criticise you? Such a conjunction of factors seems unlikely to recur any time soon. Against this proposal - and the political case for deferring the Bill - you might put up the argument that so radically to depart from your ordained schedule for the first major policy act of your re-elected administration is a sign of weakness or an admission of error. For my part, I find the reasoned case against speedily passing this legislation most compelling. The political case, by contrast, is horribly cynical.  For those deaf to reason, however, think on this. You can still make a virtue of the necessity, and turn the trap into a political opportunity.

Holyrood's scant sectarianism fortnight...

Today is Friday the 10th of June. A cause for celebration, for many of you. The long week's work is done. Shoes are kicked off - and with any luck, it will be a beauteous evening, calm and free. Wine glugs a friendly glug as it slaps into the belly of the glass. Slurping it down, you may well feel soothed, as your worldly cares evaporate for a time. Ordinary mortals, many of our legislators likely share in such rituals of relaxation, idly anticipating what next week might bring.  Some of their minds, no doubt, are already turning to schemes for Holyrood's summer recess, which runs from the 2nd of July until the 4th of September. 

But not, I fancy, Kenny MacAskill and his oppressed officials, who still have weightier matters to contend with. One third of the month of June has already passed - and we still haven't seen a single section, clause or word of the Government's proposed anti-sectarianism Bill. As you will likely recall, Alex Salmond invoked a spirit of emergency, impetuously promising that the legislation - whose precise ambit remains totally vague, both at the level of its ruling policy aims and its legal shape - would be signed, sealed and promulgated before the start of the new football season. Should it and will it apply to "peddling bigotry online"? Are we talking about extending Tony Blair's "incitement to religious hatred" law to Scotland? Are the government primarily striking at sectarian speech with a public order dimension, or is something broader intended? Will any new offences created be limited to incitements to violent conduct, or might expressing other hostile sentiments based on religious or irreligious feeling be criminalised? 

Given the present time frame, the earliest the Bill can be formally introduced is Monday of next week (13th), though I have no intelligence on when the government plan to do so. Under the Scotland Act 1998 (§31(2)), the proposed legislation will also have to be submitted to the Presiding Officer before introduction:

"... to decide whether or not in his view the provisions of the Bill would be within the legislative competence of the Parliament and state his decision..."*

With a Bill of this nature, assessing legal competence is by no means a straightforward endeavour. While some of the anticipated sections may clearly fall within Holyrood's powers, others aspects will be knottier, depending on what Ministers concretely propose. For example, the Scottish Parliament is constrained by the European Convention on Human Rights and any law it passes which is incompatible with the Convention is ultra vires, beyond its legal competence, and no law at all. Freedom of expression, including "freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers" is a right afforded under Article 10(1) of the Convention. However, this general statement of principle is heavily qualified by 10(2), allowing Member States to limit freedom of expression on a number of grounds, including "the prevention of disorder or crime", amongst others. Article 10 is clearly engaged, but whether or not sections of the proposed Bill are clearly justifiable infringements the rights it enshrines - and thus within the parliament's legislative competence - will very much depend on the offences the Bill hopes to create. Criminalising threats of violence would pose no issue - but generally proscribing "peddling bigotry online"? That's far, far more problematic.

There are also some curious devolution aspects which most will not have considered. "Telecommunications" are subject to a specific reservation of power to Westminster under Schedule 5 of the Scotland Act (C10). In their remarks, both Salmond and MacAskill have explicitly discussed targeting sectarian expressions on Twitter and on Facebook groups. This Bill is clearly not a general attempt to regulate the internet, but it does touch on an reserved area - which makes discerning legal competence less than self-evident (see further the UK Supreme Court's decision in Martin and Miller v. H.M. Advocate, which similarly addressed an issue of devolved legislation, and whether it "related to" reserved matters under the 1998 Act). The critical issue, with time a-wasting, is that the Presiding Officer's assessment of the Bill's competence might take a day or two, depending on the level of pre-submission communication between Marwick's office and the Cabinet Secretary's.

We might, therefore, expect the Bill to be introduced some time in the middle of next week, rather than from the get-go on Monday morning.  At the other end of the calendar, we have the summer holidays. Realistically, Thursday the 30th of June is the latest day on which Holyrood can pass the final Bill before the recess and I'd expect to see the Stage 3 debate and vote staged on that day. Basically, the Scottish Parliament will be afforded a total of (at most) just over two weeks in total to scrutinise these as yet nebulous proposals, to question their questionable rationale, to explore their ambit and trace their implications. The idea that Holyrood is seriously being invited independently to analyse the proposals to be set out in this Bill is ridiculous, not to mention the wider community of the realm, who are similarly muted by Salmond's heedless and needless expedition to slap a legislative bandage over this manufactured emergency. MacAskill is keen on telling us that we should trust the police, trust prosecutors and our courts. To his Scottish parliamentary colleagues, he commends a fourth trusty band of characters - trust us too. Thus far, this whole endeavour has been a mishandled, reckless, politically self-indulgent flim-flam. Serious issues deserve to be addressed seriously, not hazardously rattled off like a half-prepared undergraduate essay.

*[Sic] This is a profoundly irritating example of the unnecessary use of the male pronoun to encompass the female. An inapt usage, in modern legislation.

On MacAskill's Newsnicht car crash...

In an interview with Gordon Brewer on Newsnicht earlier this week on the SNP's anti-sectarianism legislation, Kenny MacAskill used the words "matter" or "matters" no fewer than 35 times in an 11 minute interview. In my experience, the number of times the Cabinet Secretary for Justice uses this particular term is inversely proportional to the amount of sense he is making. It is what I like to think of as Kenny's Goldfish orator mode. Like the little brazen fishlet spinning forgetfully about in its bowl, when flustered, MacAskill has the tendency to lose the stream of his discourse mid-sentence - but not a moment stops nor stays he. With gallant mien, bravely he flippers on, in mounting and often comic circumlocution. Clarity is not its keynote.

Regular readers will know that I am intensely skeptical about the approach being taken by the SNP to its early legislative priority to "stamp out bigotry". Whatever one's view of the generality of the proposals themselves, Kenny's performance on Newsnicht seriously lacked credibility. The party leadership's public pronouncements on their plans thus far have been an embarrassing guddle. Are they proposing to legislate against threats of violence made online - or are they proposing to go beyond violence in a general attempt to criminalise uttering sectarian sentiments? Salmond certainly seemed to suggest so. If the government hope to go beyond incitement to violence, what precisely are they legislating against? Practically, speaking, how can such broad legislative intentions be framed in any satisfactory way in a piece of legislation? These are eminently fair questions, and thus far I'm afraid MacAskill and Salmond haven't been able to produce any remotely clear answers. All of this might be less concerning, if we could anticipate an extended process of reflection and deliberation on the Bill, scrutinised in depth by Holyrood's Justice Committee and subjected to independent analysis by figures outside parliament. In its urgency, however, the SNP Government is committed to passing their law before Holyrood goes into recess over the summer. Practically, this means a third stage vote on the Bill before the 30th of June. Time is short.  To be short on answers when one is proposing to close the book on the proposed law in just over a month, is frankly, idiotic.

I find it utterly incensing to be treated to pious homilies about supporting a piece of legislation, whose contents those proposing it show little indication of having determined or understood. For my part, I have sympathy with the idea of clearly criminalising making threats, if parliament is persuaded to do so might be helpful. As I've explained elsewhere, uttering threats is already a crime at common law, so a statutory offence is no radical departure. Similarly, I wouldn't want entirely to dismiss the idea that such legislation can "send a message", although compliance and (non)compliance with law is a complex social phenomenon. I can envisage how a new Act explicitly relating to conduct in football stadiums might achieve this, although the common law of breach of the peace already covers a great deal of conduct of this character. Again, no radical departure. Legally, such a reform may be of questionable necessity, but if a statute could have some wider social good - I wouldn't oppose that. It is really the third prong of all of this which has got my dander up, Salmond's supremely vague and illiberal proposition that...

 "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."

Kenny MacAskill's interview was an excellent opportunity to clear up what all of this might mean in practice and to distinguish what they are and are not proposing to do. For my part, I'd much rather have a clear idea what the SNP is about, and enthusiastically disagree with it, than fray my mental fibres trying to weave something coherent out of a ragbag of inconsistent propositions and doe-eyed reassurances about the good intentions driving the escapade. Here's the transcript of the Newsnicht conversation. If you can make out head or tail of the Bill from Kenny's atrociously vague performance, you are of much greater acuity than I.

Gordon Brewer: "Where are you going to draw the line? I can see that there's an argument that says that if you incite violence against someone, that that should be a prosecutable offence. Is that what you are saying? Or will your internet crime encompass something broader than that?"

Kenny MacAskill: "Well there are two aspects that we're seeking to deal with. One is disorderly conduct, unacceptable behaviour at, on their way, to football games. In the stadia.  That's a matter where breach of the peace would be inadequate in many instances and that is why we do have to have a specific law as well as showing our opprobrium as a community and as a country. Secondly, incitement of hatred is something - and resulting in threats - these are matters that we're trying to make sure that we get the correct balance. Discussions are ongoing. We'll make sure we speak to opposition parties but what we're trying to deal with is those threats of violence in equally, at the same time, those incitement, that are unacceptable to right-minded people in Scotland. This is a small minority - but as I say..."

Brewer: "Hold on a second. There is a very important distinction between inciting acts of violence against another citizen and having opinions which people might find obnoxious. And I'm not clear whether you're saying that you are only going to legislate on the internet for the first, or whether you are somehow encompassing this much more nebulous concept of the second?"

MacAskill: "Well, the legislation won't simply be for the internet. If somebody put it on a placard or waves it on a T-shirt, inciting violence against another person, then that would be dealt with-"

Brewer: "But would it only be if you incite violence?"

MacAskill: "No, I think we have to go further than that. We have to make sure that matters which would be viewed as unacceptable by the ordinary man on the street, or woman, that is what we're trying to address."

Brewer: "Like what?"

MacAskill: "Well, as I say, I think it is quite clear that there are statements that are simply unacceptable on a religious basis and this is what we're looking into. In every piece of legislation, Gordon, the devil is in the detail. That is what's being looked at by parliamentary draftsmen. These are complicated matters."

Brewer: "Sure. But you surely can accept that there are potentially big dangers here. If someone says, in the course of a discussion on the internet, I think the Catholic Church, or the Church of Scotland - take your pick - has been a force for evil in society in 500 years and we'd be better off without them, you're not going to legislate against that are you?"

MacAskill: "No. We're not seeking to interfere with free speech and legitimate comment or indeed illegitimate comment that goes beyond what some ordinary people - many ordinary right-minded people - would think. So as I say, at the end of the day, the ultimate arbiter here will be the courts. It is a matter of common sense in many instances what prosecutors will bring. So as I say - "

Brewer: "But I'm curious about what you think the boundaries are. I mean, if you say someone is a - inverted commas, choose your swearword Catholic/Protestant - is that going to be a crime on the internet?"

MacAskill: "I think what we're looking to do is to deal with those cases where people are inciting matters that cause great distress and fear and alarm and where it goes beyond matters which could be viewed as minor banter. These matters have to be dealt with by the police and dealt with by the prosecution authorities with the ultimate arbiter being the court. What we're required to do as a government is to bring legislation which will provide that balance - and there does have to be a balance in all these matters between prosecuting what is unacceptable and intolerable in a tolerant society and protecting civil liberties."

Does anyone feel any the wiser about what the SNP government is doing? Does anyone feel remotely reassured that Kenny MacAskill has a clear and delineated sense of what the devil he's about? From the jadedness of his performance, you might hazard a guess that the man himself feels rather lukewarm about the wheeze. At one stage, the ordinary fellow in the street is the supreme arbiter of right-reason. If his conscience was offended, this new law would be offended. Moments later, this commonplace customer is told to stuff any sense of outrage he might have, in the name of free speech. Despite perfectly clear, fair and direct questioning from Brewer, the relevance of violence and threats remains totally opaque, although it seems clear the SNP will try to give the idea of "peddling bigotry online" some legal substance. I almost fell out of my chair at the Cabinet Secretary's final remarks - commending that we trust the police, trust prosecutors and trust courts - precisely the suspect formulation I anticipated and criticised in my first post on this issue. At this stage, on this element of the Bill, I thoroughly agree with Alex Massie:

"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 distasteful. 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 objectives, 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 irresistible." 

So what the devil can the SNP do to get out of this muddle-guddle rapidly and with credible and concrete proposals? The answer, I suspect, will be the same one reached by the schoolboy who forgot to do his homework the night before and finds himself in a morning's panic before his first lesson - he'll peep over the shoulder of one of his fellows, and copy down their work instead, passing it off as his own.  As we discovered by looking into Iain MacWhirter's poorly informed Herald column earlier this week, stirring up hatred against persons on religious grounds is not an offence in Scotland, Tony Blair's broadly-discussed 2006 Act applying only in England and Wales. It would be an obvious and speedily solution to Scottish Ministers' unnecessary self- (or rather Eck-) imposed expedition, simply to amend the Public Order Act of 1986 up here too, so incitement of religious hatred became a stand-alone Scottish offence. It would also provide the opportunity for Ministers to use favoured commonsensical formulations and metaphors about "bringing Scotland into line" with the position South of the Border, supplemented by its air of "modernisation" and "updating" fustian legal norms with lively contemporary standards. 

While an obvious solution to the SNP government's anti-sectarian conundrums, for Holyrood breezily to pass such an offence in a single month ought to be scandal. In Westminster, it took the Labour government a number of attempts and a number of months to pass its Racial and Religious Hatred Act 2006, the government majority being frustrated at many points along the way, by the House of Lords and its own backbenchers. And Holyrood could do such a thing in thirty days, without pause to consider its implications or time to doubt? For shame.

MacWhirter's legal bunkum on sectarianism...

I'm afraid to say it, but Iain MacWhirter's column in the Herald this week is embarrassingly ill-informed. He takes up the issue of sectarianism and the SNP's still vague plans to criminalise "peddling bigotry online", about which I have expressed my qualms before on a number of grounds, principled and practical. We clearly disagree on that. However, what concerns me is that MacWhirter's position is underpinned by a number of unhappy legal inexactitudes. He writes...

"Last year a blogger, Mohammed Sandia, was successfully prosecuted for posting antisemitic comments on the internet, so it is not true that the net is beyond the law. Indeed, many of the same newspapers who only last week were lamenting the futility of superinjunctions, have this week been calling for a clampdown on other forms of lawbreaking on the web. Does this mean that internet service providers and hosting companies, as well as individual websites are going to have to behave as responsibly as TV, newspapers and magazines?  If I gave vent to sectarian hate crime in this column, the editor would go to jail for publishing it and so would I. There is no reason why this should not apply to an internet publication. Facebook, YouTube and Twitter operate within a jurisdiction, and are therefore subject to the law of the land, otherwise it could be prevented from operating here. The problem here isn’t one of law, but of enforcement."

If you look into the case of Mohammed Sandia, however, you'll discover that the individual in question was prosecuted under the provisions of the Public Order Act 1986. More specifically, Sandia pleaded guilty to publishing written material which was threatening abusive or insulting "whereby having regard for all the circumstances racial hatred was likely to be stirred up."  Critically, "racial hatred" as defined in the Act is "hatred against a group of persons" defined "by reference to colour, race, nationality (including citizenship) or ethnic or national origins" (§17). Its applicability in the Sandia case relies on the classification of Jews in racial, national or ethnic terms - rather than their religious beliefs as MacWhirter implies in this piece. As a result, while this section of the 1986 Act does seem likely to apply to stirring up hateful anti-Irish feeling, its applicability to particular religious sects in the Christian tradition is highly dubious, requiring an unholy interpretative stretch. 

So why does MacWhirter think he would go to jail for "sectarian hate crime"? What offence does he have in mind and where is it to be found? He furnishes no clear answers on this score, but I fancy MacWhirter is referring to the highly controversial and debated provisions of the Racial and Religious Hatred Act 2006. Passed by Tony Blair's Labour Government in Westminster, the Act amended the 1986 to criminalise "stirring up hatred on religious grounds", defined as "hatred against a group of persons defined by reference to religious belief or lack of religious belief". MacWhirter clearly hasn't troubled himself to read §3 of the 2006 Act, however, which goes under the admittedly drab-sounding title of "Short title, commencement and extent". If he had consulted this clause of the legislation, he'd see that the new offence of incitement to religious hatred only applies in England and Wales, and does not extend to Scotland.  He boldly declaims "people may disagree with such controls, but it is the law, and the law is there to be enforced." As we have seen elsewhere this week, invocations of the law of the land is generally suspect in a legally pluralistic state such as the United Kingdom. I know of no statute passed by Holyrood - at least thus far - explicitly mirroring the "religious hatred" provisions of the 2006 Act.

So "stirring up religious hatred" isn't an offence known to Scots law. Perhaps MacWhirter has in mind some creative application of the common law? Or perhaps § 38 of the Scottish Parliament's Criminal Justice and Licensing Act 2010, which criminalises "threatening of abusive behaviour", and could be taken to include writing online, applying as it does to "any behaviour of any kind including, in particular, things said or otherwise communicated". In Scotland, one could make the argument that some forms of writing or performances, posted online, constitute a breach of the peace aggravated by religious prejudice. A University of Stirling student was arrested and charged earlier this year for posting pictures on himself on Facebook, wearing a Postman Pat costume, and carrying a parcel addressed to Celtic manager Neil Lennon. For my part, although I have only seen part of the image, with much of the parcel text redacted, I struggle to understand the religious prejudice immediately disclosed by the photograph, never mind that it constitutes both “conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community” - the legal definition of breach.

Moreover, in the discussion surrounding the new legislation, Scottish Government figures have suggested that they are increasing sentencing powers from six months to five years for "sectarian hate crimes". Frankly, I'm a bit bamboozled about what the media are referring to. While statutory offences generally prescribe a maximum penalty, sentencing powers are also determined by the judicial forum in which an offence is prosecuted, Justice of the Peace court, summary Sheriff Court - and so on. While some offences are triable only summarily (i.e. without a jury) or must be tried solemnly (with a jury), a great many offences can be prosecuted in either manner. While religious and racial motivations - amongst others - can be added as aggravations to other offences, I can't for the life of me uncover what Scottish offence criminalises "sectarian hate" - not a legal phrase, I'll be bound to say - attracting only a six-month custodial penalty at the highest. All insights appreciated, if anyone else has been able to come to a clearer idea than I about what the devil they're talking about. At least infosar as MacWhirter's article goes, however, it seems much more likely to me that MacWhirter thinks the 2006 Act applies in Scotland, rather than lending his mind to the flexibility of Scotland's criminal laws and the open-endedness of our recently-passed penal statutes.

Practically, one should add, the English offence of stirring up religious hatred, despite not applying in Scotland, can have significant impact on writers and publishers north of the Tweed.   For example, as we have seen with the Sunday Herald's sally into the "superinjunction" controversy by naming the footballer in question on its front page, precautions are necessary if papers are to avoid being taken by English courts to have "published" the material in England. While emblazoned starkly on their front pages, the Herald conspicuously avoided putting the man's face online or references to his name on the web, limiting the "publication" to their print circulation. In a similar mode, if MacWhirter was desperately keen to pen a column actively inciting religious hatred - barring intervention by Scottish authorities on the basis of rather vague common law crimes - if the piece only appeared in the Herald's print edition, I see no legal reason (but am happy to be corrected, if there's something I've overlooked) why he or his editor need fear being slammed up with their chamberpots by English or Scottish courts.

It isn't the law, and what isn't law isn't there to be enforced.