Campaign News

Justice Committee support the Repeal Bill

Justice Committee of the Scottish Parliament publishes its Stage 1 report on the Repeal of the Offensive Behaviour at Football and Threatening Communication (Scotland) 2012 Act

Following the largest public consultation that the Scottish Parliament has ever had on any issue, the Justice Committee began hearing oral evidence on 3rd October 2017. There followed several sessions which involved legal bodies, fans groups, the football authorities, academics, the police and civil rights and equalities bodies and which concluded on 12 December 2017.

The overwhelming message which was given to the Justice Committee was that the Act was unnecessary, illiberal, damaging to police-fan relations and potentially in breach of the European Convention on Human Rights.

In light of this, the Justice Committee has today recommended the Repeal Bill to the Parliament and the vote on the Stage 1 report will take place on 25th of September.

We call on all MSPs to recognise that this law is bad law, it is a failure and it needs to be repealed as a matter of urgency so that the injustice meted out to young football fans can stop and the damage which it has caused can begin to be repaired. This also leaves the way clear for a sensible and mature discussion to take place which addresses those social issues which the Act was alleged to be about but which have been advanced not one iota since 2011.

Having campaigned against this Act for close to seven years, we now look forward to the next stage in the process (amendments) and the eventual Stage 3 vote which will see this ‘stain on the reputation of the Scottish legal system’ finally removed.

FAQs

The following are a set of FAQs which will be going up on the main site soon.

Please use them to send follow-up correspondence with your MSPs

  1. Why does FAC oppose the Offensive Behaviour at Football Act?

    FAC opposes the OBA for two primary reasons.

    Firstly, we believe that laws should apply universally and that is discriminatory to introduce legislation which only applies to one sector of society.

    Secondly, we believe that it is both dangerous and absurd in equal measure to outlaw something as subjective as ‘offensiveness’. This is impossible to police fairly in practical terms and infringes upon the right to freedom of expression.

  2. Was the OBA necessary?

    Statistics prior to the enactment of the legislation demonstrated that the vast, vast majority of football fans are impeccably behaved and that the vast majority of religiously aggravated offences take place away from football stadiums.

    For offences which did take place, there were adequate laws in place to deal with issues of disorder and hate crime according legal experts such as the Glasgow Bar Association, the Law Society of Scotland and legal academics such as Professor Fiona Leverick of the University of Glasgow.

  3. Doesn’t the OBA just try to tackle sectarianism?

    No, the Offensive Behaviour Act doesn’t even contain the word sectarian at any point throughout it and sectarian has no meaning in Scots Law in any event. As has been repeated by our campaign continually since 2011, religious aggravated criminal behaviour was already covered by existing legislation. What this Act sought to criminalise was ‘’offensiveness’’, which is a much broader concept.

  4. Doesn’t the public support the OBA?

    No, credible polls and consultations actually show that the public overwhelmingly opposes this legislation.

An open public consultation was held regarding the repeal Bill, receiving 3248 responses making it the largest of its kind. 71.12% of respondents were strongly supportive of repealing sections 1-6, as opposed to 24.48% who were fully opposed.

https://scraptheact.com/consultation-results/

Supporters Direct held a survey in 2017 of 14,000 fans. 71% of respondents to this survey opposed the OBA.

http://www.scottishsupporters.net/wp-content/uploads/2017/04/Supporters-Direct-Scotland-Survey-Results-2017.pdf

Supporters of the OBA often cite an opinion poll carried out by YouGov in 2015, which seemingly demonstrated that 80% of people support the legislation.

There are however crucial problems with this research. Firstly, whilst the sample of 1044 is, in itself, large enough to make inference about the opinion of the country more broadly, more than half of the respondents admit to either being not very interested or not all interested in football. Given that this legislation only applies to football fans and society has been generally mislead about what this legislation does, these people could not be expected to provide a meaningful answer on the questions posed.

Moreover, whilst those who are interested in football in the majority proclaim support for the legislation, this number is not high enough to make an inference about broader opinions among fans across Scotland.

The arguably even greater issue however is with the questioning itself, which is deliberately designed to elicit a certain response. The question reads

‘’The Offensive Behaviour at Football and Threatening Communications Act aims to tackle sectarianism or offensive chanting or threatening behaviour at football which likely to cause public disorder. To what extent do you support or oppose this law?’’

Given the way this question is worded, it is a surprise that response rate was not 100% supportive as opposed to 80%. This question deliberately misrepresents the legislation and nudges participants to respond in support. The data gathered is meaningless and this poll is utterly discredited.

It is also our understanding that another poll was carried out by another website, however given that we have asked for the details of this and been refused, this cannot be taken seriously either. The data gathered in open public consultation and by survey shows that fans support repeal.  

  1. Who else opposes the OBA?

    The OBA is opposed by every mainstream political party in Scotland except for the SNP. This includes pro-independence groups such as the Green Party, RISE and the Scottish Socialist Party.

    BEMIS, the national Ethnic Minorities led umbrella body, has said that it targets ethnic minorities. Liberty (the UK’s biggest civil rights organisation) has said that it endangers civil rights. The Law Society of Scotland has said that it is unnecessary and poorly drafted law. The Scottish Human Rights Commission[1] have said that it ‘considers there is a strong likelihood that key provisions of the Act fall short of the principle of legal certainty and the requirement of lawfulness.’

    The legislation has been lambasted by fans, football clubs, judges, lawyers, academics and prominent journalists. Any credible voice on this issue has spoken out against the law.

  2. What is the conviction rate for the OBA?

The conviction rates published by the Scottish Government and by the Crown Office Procurator Fiscal Service relate only to concluded cases at the time or the reporting period and are never corrected after all of the charges for that year are concluded.  For reasons explained in our supplementary submission to the Justice Committee[2] this has a particular impact on data relating to the Offensive Behaviour Act because of the length of time it takes for those cases to conclude (this is recognised in the Scottish Government’s own evaluation by the University of Stirling).  Using the official data, we have calculated that the true conviction rate over the whole period of the Act (2011-12 – 2016-17) could be as low as 36%.

  1. Surely there is smoke without fire, and people being arrested deserve to be arrested?

    The vast majority of fans who have been arrested, in our experience, have had no previous contact with the justice system and have only been criminalised as a result of this legislation.

    Fans have been arrested for a catalogue of ridiculous alleged offences, such as swearing or for acts of political expression. Most fans are also found not guilty of any offence (see FAQ6). 

  2. Surely we can’t repeal the Act without anything in its place without leaving a gap in law?

    Given that there was already legislation in place, there would be no gap in law as argued by credible groups such as the Law Society of Scotland, the Glasgow Bar Association and legal academics.

    Police Scotland have also noted that they would be able to continue to police football matches using previous existing legislation.

  3. If the issue is about the Act singling out football fans, why not expand the Act?

    You cannot expand the Act by criminalising offensiveness in wider society as this would seriously restrict people’s right to freedom of expression, which is one of the foundations of a democratic society.

  4. Wouldn’t repealing the Act send the wrong message?

    The only message that repealing the legislation would send is that this Act is not fit for purpose and that all people in Scotland will be treated equally before the law.

  5. Shouldn’t we wait until the Bracadale review before making a decision on this?

    Given that this Act is not actually hate crime legislation and that sufficient legislation exists to ensure there is no gap in law, we see no reason to delay the inevitable further.

    Whilst the repeal Bill is ongoing, so too are cases for many fans whose lives are still being seriously impacted on by this illiberal legislation.

  6. Shouldn’t the opposition parties put forward proposals to amend the Act?

 

The Scottish Government has never been interested in either properly reviewing this Act or considering using their powers to vary it in any way.  It is only now, with the Parliamentary arithmetic no longer being in their favour that we have heard the suggestion that amendments should be proposed.  However, given the other arguments against the Act, principally that it is unnecessary and that repealing it would leave no gap in the law, it is illogical to suggest amending the Act.  Our suggestion is that pre-existing legislation should be applied when necessary to any citizen in any context ie not just in the context of a regulated football match.

  1. Isn’t the legislation just intended for Celtic and Rangers fans?

    No, this legislation has negatively impacted fans across the country which is why fans of many clubs have protested against this Act. Non-Celtic and Rangers fans form the majority of those charged in each year of the Act except 2012-13.

  2. Is this simply an issue for football fans?

    No, whilst football fans have felt the brunt of this legislation it should concern all citizens who care about civil liberties and equality.

  3. Do the opposition parties just want to score political points by defeating the SNP?

    Whilst this has been continually suggested by disgruntled SNP MSP’s, we do not believe that the insinuation has any merit.

    All non-Government MSP’s voted against the legislation in 2011, making it the first law ever passed by the Scottish Parliament without any cross-party support. They have maintained this opposition ever since.

    This is a law which has united Celtic and Rangers fans, the Green Party & the Scottish Conservatives. A bad law is a bad law, and the only party playing politics on this is the one which is refusing to admit that they got it wrong.

  4. Is the OBA compatible with the Convention of Human Rights?

As outlined in FAQ5,  the Scottish Human Rights Commission, a body set up by legislation of the Scottish Parliament but which is independent from Government, has expressed very serious concern about the extent to which the Act is compliant with Articles 10 (freedom of expression), 7 (legal certainty) and 5 (right to liberty) of the European Convention on Human Rights[3].

Liberty, the leading UK civil and human rights organisation, has also stated in 2011 and again during the scrutiny of the Repeal Bill in late 2017 that ‘the Act poses a threat to human rights’, saying that it is ‘deep affront to the right to free speech’ and saying that ‘the Act should be repealed’.

  1. Didn’t the Walsh & Donnelly case prove that the Act is HRA compatible?

This case is the leading case relating to this Act because Counsel for the two young men convicted, appealed their conviction to the High Court.  The High Court rejected their appeal but the appeal was very specific to a particular song and was not in relation to the Act as a whole.  Therefore, despite inaccurate comments by the Community Safety Minister, Annabelle Ewing, in 2017, this case did not involve any test that the Act is ECHR-compliant.

 

[1] The Scottish Human Rights Commission was established by The Scottish Commission for Human Rights Act 2006, and formed in 2008. The Commission is the national human rights institution for Scotland and is independent of the Scottish Government and Parliament in the exercise of its functions. The Commission has a general duty to promote human rights and a series of specific powers to protect human rights for everyone in Scotland.

[2] http://www.parliament.scot/S5_JusticeCommittee/Inquiries/OBR145a-FAC.pdf

[3] http://www.parliament.scot/S5_JusticeCommittee/Inquiries/OBR227-SHRC.pdf

Out of date stats – out of date arguments

Today constituents of SNP MSPs began to received responses to the emails they sent asking them to vote for James Kelly’s repeal bill.  The responses we have seen indicate a complete contempt for their constituents and for Scottish society in general.  Every single one is based on arguments which have been put forward and rebutted several times over in the course of the past six year.  They have even been reduced to quoting a discredited Scottish Government-funded womens’ organisation who lied to the Justice Committee about the nature of their evidence.

However, in order to be helpful to those receiving the letters, we will dig out all the responses we have given over the years and provide them in FAQ format on this site over the next few days.

It is a sad day when elected members have so little respect for the people they represent that they cannot be bothered to actually respond to their concerns.  To send out such embarrassing drivel is disprespectful to the recipients but it also highlights the paucity of any real case for retaining the Offensive Behaviour Act.  If they had any real arguments at all, they certainly wouldn’t be relying on these ones.

 

New email campaign launched today

As we write the draft Stage 1 report from the Justice Committee of the Scottish Parliament is being prepared.  This report which summarises the evidence provided  in relation to the Repeal of the Offensive Behaviour and Threatening Communications (Scotland) Act 2012 will be presented to Parliament and voted on before 26 January 2018.  That vote will complete Stage 1 of the legislative process.  Stage 2 relates to any amendments and Stage 3 is the final vote on the Bill itself.

It is absolutely vital that the process does not stall this month and that every MSP whose party has committed to supporting repeal (ie all opposition parties) turns up and votes to adopt the Stage 1 report (assuming that the report supports the Bill which, given the balance of evidence, it certainly should!).

For that reason, we are calling on all opponents of the Act to email their MSPs (constituency and list) to ask that they support the repeal bill at all stages.  You can do this by simply emailing your MSP or, better yet, by visiting her/him at their local surgery.  In order to make this easier for everyone, and given the success of past email campaigns, we have once again asked the Celtic Trust to host an automated system on their website which can be accessed here on the right hand side of the page at the button marked ‘Contact your MSP’.  Please note that the email template makes no mention of the Trust or of Celtic and can be used by supporters of any club or none.  We are using the Trust site for convenience as the system is already up and running on their site and it has been used successfully in the past.

It is absolutely vital that the process does not stall at this late stage and we strongly urge you to contact your MSP and  to spread the word to others to do the same.  We know from previous campaigns how important these emails are.

So, regardless of which party your MSP belongs to or who she/he is, please take the few minutes to contact them and make it clear how you wish them to vote.

OB Act may be in breach of ECRH Articles

Fans Against Criminalisation welcome the evidence today submitted to the Justice Committee by the Scottish Human Rights Commission regarding the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.  The SHRC is the national human rights institution for Scotland. It was established by an Act of the Scottish Parliament and began its work in 2008.

Submission to the Justice Committee from the Scottish Human Rights Committee 30 November 2017

The evidence presented clearly casts significant doubt on the prospect of the Offensive Behaviour Act being in compliance with the European Convention on Human Rights.  Specifically, it is potentially in breach of Article 5 (deprivation of liberty), Article 7 (no punishment without law) and Article 10 (freedom of expression).  We would like to support their call for the Justice Committee to evaluate this in full.

It is clear that the credibility of this legislation simply cannot recover, and whilst such serious doubts are cast regarding the legality of it, we believe that steps should be taken to suspend criminal proceedings against fans charged under it as a matter of urgency.

Justice Committee evidence sessons continue Tuesday 24/10/17

Tomorrow the Justice Committee continues to hear evidence in relation to James Kelly’s Repeal Bill which will, we expect, finally bring about the demise of the hated Offensive Behaviour Act.

The Committee will hear from a number of equalities and other groups including BEMIS, Scottish Disabled Supporters Association, the Scottish Women’s Convention, Stonewall Scotland and  SACRO.

The papers for the meeting can be found at

Papers for the Justice Committee 231017

Additional material supplied by the Police Service of Scotland and the COPFS can be found here and both make interesting reading…

FAC’s own supplementary evidence does not appear to have been posted yet but we will let you know when it has.

For those who have time tomorrow the meeting will be shown live on Parliamentary TV and later on the archive service.

FAC comment on Justice Committe Evidence session

Fans Against Criminalisation are grateful to have had the opportunity, as part of the Stage 1 evidence gathering process, to address yesterday’s meeting of the Justice Committee at the Scottish Parliament and to present our case in support of James Kelly’s Bill for the repeal of the hated Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.

The video of the session can be found  here:

Justice Committee evidence session 3/10/17

We were present to hear the arguments made by Police Scotland and the Crown Office Procurator Fiscal Service and were happy to note that it was confirmed that football matches could be policed safely in the absence of this legislation if it is repealed. We would also note once again the opinion of The Law Society who are clear that repealing section 1 would not leave a gap in law, and the point made by James Kelly that the minimal use of section 6 demonstrates that Fiscals clearly do not have any faith in this law to bring about the convictions which they seek for what they deem to be online offences.

The fans panel were united in opposing any piece of legislation which only applies to football supporters. We would also like to re-iterate our stance that broadening the legislation to apply it to other sectors of society would also be wrong as to criminalise something as subjective as offensive would present a huge threat to people’s right to freedom of expression and thus our democracy as a whole.

We raised a number of arguments in our written submission and our oral evidence. In addition, we were asked by the Committee to provide additional clarification in relation to the calculation of conviction rates which we have consistently said are much lower than the headline numbers quoted by the government each year. We will provide this evidence plus further evidence to back up our contention that Procurator Fiscals working in Sheriff Courts are prevented from exercising normal discretion in the handling of charges under the Offensive Behaviour Act; are forced to seek permission from Senior Fiscals and are rarely allowed to drop cases even when the prospects of a successful conviction are slim.

The arguments have been set out. This Act was ill-advised and is frighteningly illiberal. This Act was unjustifiable and is now entirely unworkable. In theory this piece of legislation is draconian and discriminatory and should worry all citizens of Scotland. In practice, this Act has ruined lives and will continue to do so. It is time for the Scottish Parliament to repeal this catastrophic piece of legislation as quickly as possible.

 

FAC reps off to Holyrood next Tuesday!

Next Tuesday (3rd October) sees another milestone in the campaign when FAC reps will appear before the Justice Committee to give evidence on why the Offensive Behaviour and Threatening Communications (Scotland) Act 2012 should be repealed.  This is the start of a series of sessions at the Committee’s regular Tuesday meetings when Parliament is in session to scrutinise James Kelly MSP’s repeal bill.

On Tuesday at 10am the Police Service of Scotland will give their evidence and this will be followed at around 11.15 by the two FAC representatives, together with representatives from Supporters Direct Scotland and the Scottish Football Supporters Association.

If you wish to follow this live you can do this via the Parliament TV channel by searching under the Justice Committee:

Scottish Parliament TV

The recording can be accessed on the site afterwards if you wish to watch it later instead of live.

ACC Higgins: uniformed or uninformed?

“Police Scotland’s purpose is to improve the safety and wellbeing of people, places and communities in Scotland.  Our focus is on Keeping People Safe which is at the heart of everything that we do”[1].

 “It is arguable that the essence of the general equality duty is to eliminate unlawful discrimination, advance equality of opportunity and foster good relations. This is at the heart of the strategic aims of police reform, namely to:

  •  Strengthen the connection between services and communities”[2]

Police Scotland have an important job to do. Administering the law and keeping communities safe is no easy task. Additionally developing relationships with an ever changing demographic takes time and requires trust.

The General Equality duties acknowledged by Police Scotland as their fundamental guiding principles however are entirely incompatible with their use of the ‘Act’.

In an astonishing sequence of media comments Assistant Chief Constable Higgins has let the cat out the bag.

The “regression” in behaviour ACC Higgins alludes too in relation to “offensiveness” contextualises perfectly the abnormality of this legislation and the role of Police Scotland in placing officers and young people with no previous criminal convictions at loggerheads.

None of this is possible in relation to the Act without the stubborn support of their political allies, the current office bearers of the Scottish Government.

Of course it also beneficial to have the additional support of the Crown office in a “criminal” law dogfight and in this current scenario we can see the beautiful confluence of executive, crown and police working as a single unit.

This is underdog challenge that provides a perfect footballing analogy. Organised individual citizen’s vs the tripartite of the Police, Executive and Crown Office. Not since the sloping out cases or Cadder has the Scottish Executive/Government dangled on the precipice of such a broad ranging human rights embarrassment. Of course the current Scottish Government, who provide the strategy at the head of this moral “anti-offensive” tripartite, are quick to remind us of the Acts ECHR/HRA compatibility.

For the moment we can set aside the fact that parliamentary scrutiny of the ‘Act’ at Bill stage was conducted against the backdrop of an executive partisan majority in a parliament devoid of a human rights committee.

We can begin to appreciate, however, that an Act which provides a ‘breath-taking expansion of the criminal Law’ (Liberty’s submission to the Justice Committee of the Scottish Parliament, August 2017 and empowers ACC Higgins’ band of anthropologists, sociologists, historians and political scientists on the beat, is in Police Scotland’s interest. It certainly makes their life “easier” in the short term. Our campaign proves however that, medium to long term, it will be met by a vociferous defence of football fans and young people.

Much like the infamous slopping out cases, or Cadder, the elements of a serious mistake are presenting themselves again. A maligned, crudely interpreted group of people, in this case football fans, mostly under 30 and almost exclusively with no previous interaction with the criminal justice system are being forced to navigate uncertain legislative territory with almost no power. Time will tell how this plays out and where the ‘cup final’ is played. The game is live in the Parliament and the Courts.

We have rattled the “moralistic” troika to the extent that Chief Social Scientist Higgins warns of grave outbreaks of “offensiveness” if his own subordinates are not allowed to retain the power to assess “subjective offense” to potentially imaginary people.

In truth the tripartite know they have already lost the battle for ‘hearts and minds’. Individual police officers have told us, COPFS staff have told us, and believe it or not MSP’s of a certain constitutional persuasion have told us, off the record of course, “it’s a disaster” – “I avoid using it at all costs”. In time we’ll share some additional ‘match procedure’ Information covering the policing of football fans which mentions every piece of legislation under the sun, bar astonishingly, the ‘Act’. Don’t take our word for it though. The comments of sheriffs are in the public domain.

What is happening now will illuminate to those who are victims of the Act, or who take an interest in equality, to what extent the tripartite will sacrifice otherwise law-abiding young citizens to save political face.

So directly to ACC Higgins and the tripartite, the story here is not your assertion that so called ‘offensive’ signing will increase but, instead, how senior public servants – such as ACC Higgins –  feel empowered, beyond meaningful scrutiny, to identify, articulate and advocate for substantial power based upon an unquantifiable variable. Power which contradicts your own guiding principles.

Hopefully the penny is beginning to drop for anyone who takes an interest in maintaining an effective democracy.

The Act has zero credibility. It needs to be repealed. Anything short of that is window dressing.

 

 

 

[1] http://www.scotland.police.uk/about-us/

[2]http://www.scotland.police.uk/assets/pdf/foidocuments/diversityandequalityinpolicescotlandreportfinal?view=Standard

FAC submission to the Justice Committee

Fans Against Criminalisation are happy to announce that our submission to the Scottish Parliament Justice Committee’s call for evidence regarding the bill in motion for the repeal of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 has now been published on the Parliament’s website.

FAC submission to Justice Committee

We would like to thank the organisations who have responded to this consultation with honesty and integrity. The evidence provided is clear. The Law Society and the Glasgow Bar Association are adamant that this is poorly drafted legislation and that the repeal of it would leave no gap in law. BEMIS, a foremost advocate of ethnic minority rights in Scotland make it clear that this Act represents a risk to ethnic minority rights. CRER, a prominent race equality group have advanced similar views. Liberty, the UK’s most reputable civil liberties advocacy group have been damning in their indictment of this law as being a grave threat to civil liberties in Scotland. The figures cited by Supporters Direct Scotland unequivocally demonstrates that football supporters are vastly opposed to this Act. Individual responses from academics highlight the theoretical problems with the legislation whilst submissions from normal fans have indicated the real life impact that this has had. Numerous individual responses from football fans give powerful testimony to the impact of this badly thought out, poorly implemented and wholly unnecessary Act.

This law is illiberal, irresponsible and irredeemable. People’s lives have been ruined as a result of it.

On the side of the Scottish Government in defending this Act are several government-funded groups who have opted to weigh in on the debate despite a clear lack of understanding of the impact that this legislation has had.  Their minimal, or total lack of, engagement with the community who are impacted by this Act is obvious in the quality of their submissions. Furthermore, we are not in the least bit surprised that the Government has once again sought to mislead the public in their defence of this law, this time by misrepresenting the views of several quoted figures. They have simply no credibility left on this issue. It is time for them to accept the will of the Scottish people and the will of the Scottish Parliament and withdraw their opposition to this bill.

It is time to axe the Act.