Alex Salmond's forced climbdown over his football hate-crime bill may not be enough to save it

HIS MSPs didn't know. The Opposition parties definitely didn't know. Most embarrassingly of all, the minister in charge of the legislation had just spent the previous couple of hours doggedly telling MSPs the government wasn't for turning.

The Lord Advocate, Frank Mulholland, had claimed the choice was between parliamentarians talking among themselves and getting on with changing the laws. But then democracy is all about talking. Alex Salmond's decision to allow more time for parliamentarians to debate the workings of his crackdown on football-related violence and antisocial behaviour showed that it is politicians, not lawyers, who still run the country.

Salmond's abrupt volte-face on Thursday - when he went back on previous pledges to push through his crackdown on football-related hate-crime by the end of this week, and would instead allow parliamentarians time to scrutinise the laws right until the end of the year - meant having to eat a large helping of humble pie. But in a week which had seen Roseanna Cunningham, the minister in charge, trying chaotically to explain the bill's provisions to puzzled MSPs, and a legal challenge mounted by Christian groups fearing it could criminalise street preachers, there was little doubting Salmond had made the correct call.

The First Minister - who could have opted to railroad the bill through thanks to his overall majority - told MSPs he wanted to get full consensus across parliament, and society in general, winning plaudits for showing statesmanship as a result. But this weekend, as attention turns back from the process of the bill and back on to its substance, the question his administration faces is whether that consensus is achievable. The debate has now mushroomed into fundamental questions about the ancient right of freedom of speech.

The bill now to be scrutinised by MSPs has been described in shorthand as anti-sectarian but, as became clear last week as parliamentarians, led by the justice committee convener Christine Grahame, began to delve into it, its scope goes far wider. The first part, cracking down on offensive behaviour at or around football matches, covers all offensive or threatening behaviour, regardless of whether it is "sectarian" or not. Someone expressing hatred of disabled or gay people at a football match would be covered, for example. The second part of the bill, cracking down on "threatening communications" is restricted to religious hatred, but it too is not just about sectarianism. All acts which incite religious hatred are covered. There is no doubting both measures will crack down on repugnant sectarian chanting and the Old Firm death threats posted online in recent months. But, say critics, doesn't the law already do this? And, if these new elements are introduced, what else might become a crime?

One submission, by academics Dr Sarah Christie and Dr David McArdle last week, declared the new legislation "adds little to the existing criminal legal remedies". These include breach of the peace and more than half a dozen other statutes on public order, crime and communications. A lack of laws isn't the problem, it is their implementation, says McArdle. Ironically, he adds, the political focus is likely to make the police and courts more rigorous in both arresting and sentencing offenders once the new season starts next month (without new laws). He adds: "One sheriff said to me: ‘If we are aware that there are particular concerns about knife crime or domestic violence we respond to it, as we will with this next season'. So even before the laws come in we will see a more robust approach. Then people might end up saying, do we really need new legislation?"

This was disputed firmly by Mulholland last week, whose case is that the current laws fail to send out a zero tolerance message. He cited one case where, on a breach of the peace charge, a sheriff ruled that supporters shouting racist abuse at a black player, and another supporter "grunting in an ape-like fashion", had not amounted to an offence because it had taken place very quickly, was not flagrant and was not deemed to have caused anyone offence in the context of the match.

The police too complain that, currently, a football hooligan can tell two of them to f*** off and get away scot-free. "How ridiculous is that in today's society?" asked Les Gray, of the Scottish Police Federation. Mulholland's point is that "offensive behaviour" around games would now be more rigorously defined. He offered another example: at a recent Edinburgh derby, a fan who had chanted homophobic remarks towards a player had been found not guilty because the sheriff decided it had not amounted to a breach of the peace. Under the new law, which criminalises "expressing hatred" of faith groups, or groups defined by race, sexual orientation of disability, a sheriff would probably reach a different view. Likewise, on the second part of the bill, Mulholland argued that it is required to iron out wrinkles in the law - such as the requirement to prove that a blogger threatening to kill someone had the "intent" to carry that out. Once the new law is in, there is no doubt: post a blog threatening to kill an opposition player, or religious foe, and the Crown will prosecute and the courts will jail you for up to five years.

The trouble is, warn sceptics, there are questions as to whether more than just sick bloggers and abusive football fans could be brought under this new approach - while the rules on who is offending and who isn't appear arbitrary. Ministers agreed last week that a crackdown on offensive behaviour could apply to fans not just at the ground, but also watching a game on TV in the pub. As Johann Lamont, Labour's justice spokeswoman asked, couldn't this mean a sectarian bigot being prosecuted when the TV is on, but not when the TV is off? McCardle notes that a group singing an offensive song during the marching season could be legal, so long as they weren't causing any offence or public disorder - only for it to become an offence a week later on the way to a football match.

Wider questions face the second part of the bill, on the definition of threatening communications. For gay rights groups there is puzzlement as to why the law is now going after football thugs on the web, but not homophobes. Tim Hopkins of the LGBT network warned MSPs of Facebook groups called "Kill the Gays", terrifying young gay men and women. These are not covered by a bill which seeks only to proscribe threatening communications of a religious nature. The law, to quote the Scottish Council of Jewish Communities, is in danger of creating a "hierarchy of discrimination".

The LGBT community were joined (on this occasion) by Christian campaigners whose legal challenge last week centred on their fear that Christians distributing religious material, or even street preaching, could be deemed a "threatening communication", classified in the same breath as a vicious blog. Gordon MacDonald, of the group CARE, said: "I spoke to one civil servant who told me preaching would come under the bill" (a claim denied by Mulholland). Such proscription would include non-Christian faiths as well, MacDonald added- citing how the police could be able to arrest a Muslim preacher if they decided that his comments were deemed to be "threatening".

The legal challenge from Christians was being cited yesterday as one of the key reasons why Salmond decided to give ground last Thursday, a day before the case was to be heard in the Court of Session. Their grounds - that there had been limited consultation, that some of the proposals contravened ECHR, and were reserved to Westminster - were dismissed by Salmond's aides last week, but the groups concerned claim they were confident of winning a case that would have hit the SNP's reputation for competence hard.

That legal challenge is off the cards for now, but the danger for Salmond and the SNP is that their plans spiral out of control. Freedom of Speech campaigners who believe fans should be able to "let off steam" have already begun a petition to campaign against laws which, they claim, amount to a further encroachment of the Big Brother society. Their point is that the free expression of opinions, however unpleasant and offensive, should never be a crime in a free society. As we report today, Dr McArdle likens the crackdown on offensive behaviour around football matches to the laws in Germany and Austria banning holocaust denial.

For the police, the lawyers and the politicians in favour, the point they will continue to hammer home is that context is all. Nobody is going to be arrested simply for singing God Save The Queen, Mulholland argued last week; but, if a Rangers fan runs on to the pitch and over to the Celtic contingent, and then starts singing it in an offensive manner, he might.

But the simple pressure of time and resources will ensure police won't be arresting pubs full of rowdy fans. The danger is that the law becomes an ass if police end up being unable to enforce it or, worse, end up applying it in areas which are seen to limit freedom of speech. Much to debate - just as well Salmond agreed to allow that debate to happen.

NEW CRIMINAL OFFENCES

THE Offensive Behaviour at Football and Threatening Communications (Scotland) Bill creates two new criminal offences.

The first criminalises the full range of offensive or threatening behaviour at football matches or in connection with football matches. The new offence will define offensive behaviour as behaviour likely to incite public disorder and offensive to a reasonable person, leaving less room for doubt about what can be prosecuted.

It includes behaviour which spreads hate about groups defined by their race, sexual orientation, disability, as well as their religion. Police could make arrests not just at games, but also in pubs where games are being shown, or even as fans make their way to grounds on public transport.

The second part of the Act concerns the sending or posting on the web of threatening communications of a religious nature. It criminalises communication which threatens a person with serious violence or death, or incites others to kill or commit a seriously violent act against a person, or which implies such a threat. An offence would be committed if a communication would cause a reasonable person to suffer fear or alarm - and where it could be shown that the sender had either intended this to happen, or had been reckless in sending it.

The requirement to prove intent is designed to tighten the definition; for example, so that a comedian writing a joke about Catholics is not caught. The offence also criminalises threats made in an attempts to stir up religious hatred. Many laws already cover these crimes, but ministers argue a specific new offence is required on religious hate.