FAQs on the OB Act

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 ever held in the history of the Scottish Parliament. 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/

The Justice Committee took written and oral evidence from October to December 2017.  This again received a very large number of responses.  Over 75% of the individual responses were in favour of repeal  and over half the organisations who submitted views were in favour of outright repeal. See here for independent commentary:

Commonspace article dated 23 August 2017

and here for the Justice Committee Stage 1 report which summarised the outcome of the consultation.

Justice Committee Stage 1 Report

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.

Another poll commissioned by an independence campaigner is frequently cited.  This poll was conducted through an opt-in site which pays money to partipants and, as a non-random poll in which participants are self-selected, it is known to have higher errors and likelihood of bias.  In fact, there is no statistically valid way to be sure that an opt-in poll is truly representative of the whole population.  Further, this poll was of 1013 people of of which 511 (50.4%) declared no interest in football.  See comments re the YouGov poll above in relation to this point. The question asked appears to have been ‘Do you support the Offensive Behaviour Act’.  The findings report that 60% of those sampled supported the Act.  The company then breaks down the sample into those who support various or any team (including, oddly, supporters of English clubs where the Act does not apply).  For example, they report that 99 people who declare themselves to be Celtic supporters, support the Act.  Even in a truly random poll this would be far too small a sample size to be able to infer anything about the population of Celtic supporters (for comparison, to be 95% confident that the figure was correct to between +/- 1% you would need a sample size of 8279.  No real credibility can be attached to this opt-in poll which is, in any event, now considerably out of date.

The data gathered in open public consultation and by survey shows that, those who express a view, overwhelmingly  support repeal.

5. 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.

 

6. 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%.

7. 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).

8. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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’.

16. 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