Alex Massie: Offending imaginary people?

Tony Higgins, Alex Salmond and Gordon Smith launch the Anti-Bigotry campaign in 2007. Picture: PA Wire

Last Sunday, 40,000 fans of Aberdeen Football Club took over Celtic Park and turned it red for the Scottish League Cup final. As part of the pre-match festivities, thousands of Aberdeen supporters held up thousands of placards to create a mosaic spelling out their tribal affiliation. It was a cheerful, colourful, spectacular display of Aberdonian pride.

The original plans for the display, however, had been rejected by Police Scotland. A spokeswoman for the police said that “during discussions between the police, club safety and SPFL [Scottish Professional Football League]representatives the match commander expressed a view that an emblem in the display proposed by Aberdeen fans may cause offence”.

What was this vile provocation? A sunburst in red and white, that’s what. According to the police, this kind of display might provoke or incite public disorder. It might even fall within the purview of the Scottish Government’s much-criticised, utterly daft Offensive Behaviour at Football Act (OBFA).

Why so? Because, in the 19th century, the Irish Republican Brotherhood used a flag sporting a sunburst motif and because some fringe republican groups continue to do so today.

And so it came to pass that, in 2014, the “safety” regulations at a football match between Aberdeen and Inverness Caledonian Thistle – those noted bastions of sectarianism – were dictated, in part, by banners sported by Irish nationalists more than 150 years ago. Someone, you see, might have been offended and the causing of offence is something that cannot be tolerated. Police Scotland – and their supporters in the Scottish Government – are eternally vigilant on the matter of offence-giving. So much so, in fact, that if, regrettably, it is discovered no offence has actually been caused, the law will invent fictitious persons who, had they existed and been present, might have been offended.

I wish I were exaggerating. Consider the case of Joseph Cairns, a Celtic supporter charged under OBFA last year. His crime? Singing traditional Celtic songs – albeit songs of an Irish republican bent – at a match in Inverness. Though initially acquitted, the Crown appealed and Mr Cairns’ acquittal was overturned by the High Court.

No-one was incited to public disorder by Mr Cairns’ singing, but that did not matter because the law provides for the unfortunate absence of disturbance. As the appeal court put it, the law covers “behaviour ‘likely to incite public disorder’ if public disorder would be likely to occur but for the fact that … persons likely to be incited to public disorder are not present”.

The evidentiary bar is lowered still further by the fact that, as the High Court’s verdict put it, “the act distinguishes between, on the one hand, ‘a reasonable person’ and, on the other, a person ‘likely to be incited to public disorder’. It may be that a person to be incited to public disorder is of a more volatile temperament than a reasonable person … He may have particular views about the songs in question or those who sing them”.

“Volatile temperament” is judge-speak for “bampot”. Which is why Aberdeen fans were prevented from showing off their preferred display at Celtic Park last weekend. Someone might have made an unwarranted connection between these placards and Irish republicanism and, having made this startling leap of logic, been offended and, who knows, even provoked to public disorder.

If all this seems irredeemably stupid, it is worth recalling that it was also predicted. Everything critics said about the Offensive Behaviour at Football Act has been proven correct. It was obvious then this was a manifestly illiberal, stupid and unworkable piece of panicky legislation, and so it has proved. How could it be otherwise when ministers were not sure if singing the national anthem might constitute an offence? How could it be otherwise when ministers suggested “threatening” tattoos might fall within the bill’s remit?

The bill’s defenders ask us to believe none of this matters. Some thoughts, they say, should be criminalised. Besides, sectarianism is an important problem and any effort to “tackle” it should be applauded. Even a rotten something is better than nothing at all.

The test of a modern and liberal polity, however, is whether we tolerate opinions we might quite reasonably find distasteful. It is a test modern Scotland – so preeningly “progressive” – fails. Ordinary manifestations of ordinary behaviour – that is, supporting a football club – have been criminalised. Free speech has been reclassified as a form of hate crime and the law written so broadly that almost no defence is possible.

It is typical of the man that justice secretary Kenny MacAskill considers high rates of conviction – more than 80 per cent – for OBFA offences a mark of pride rather than a badge of shame.

The law is such an ass that even Scottish Labour recognises its shortcomings. According to the party’s deputy leader, Anas Sarwar, the act is “ineffective and unpopular” and will be repealed if Labour ever returns to power at Holyrood. This is worth one cheer, but only one since it seems clear Labour is concerned the act is “unworkable”, not that its very principle is offensive.

Which is to say, it would be a bad and loathsome piece of illiberal legislation even if it worked. That it does not and cannot work may be important but is, in the end, a secondary consideration. Repeal it by all means, but do not replace it with measures that make the same mistake of peering into men’s souls and determining which of their thoughts and utterances constitute a crime.