Michael Kelly: Final nail in the coffin for SNP act

First Minister Alex Salmond. Picture: Getty

The latest slap in the face to the efficiency of the SNP government came from the judiciary. Weak though the economic case for nationalism is increasingly being shown to be, it is in the area of justice that the SNP is most at sea.

The most blatant piece of bad judgment – if you except freeing the Lockerbie mass murderer – was introducing the Offensive Behaviour at Football and Threatening Communications (Scotland) Act in 2012. This piece of “mince”, as one sheriff has described it, designed to tackle sectarian behaviour at football matches was so wrongly motivated and so badly drafted that the courts are now refusing to convict under it.

More to increase their workload and to fight impending job cuts than for any concerns about public safety at football matches, the police demanded a new law after Old Firm managers Neil Lennon and Ally McCoist clashed on the touchline. The First Minister, seeing an opportunity for easy publicity leapt on this Black Maria and drove it from a hastily called one-day conference into a new law grossly interfering with human rights.

Now, as the government’s reputation continues to suffer, justice secretary Kenny MacAskill has been very careful to point out just who started it, saying, “this legislation was introduced in response to Scotland’s police and prosecutors, who told us they needed greater powers to take a hard line on sectarianism associated with football”. Nice one, Pontius.

Alex Salmond did not need to respond to the police’s blandishments, but he embraced them eagerly and for the first time in Scotland’s history, community singing was banned. Indeed, so wide was the act in declaring illegal chanting in the stands that questions were raised as to whether or not the National Anthem could legally be sung or whether the waving of the Union Flag was an act of provocation. Roseanna Cunningham, another lawyer in the SNP government, was in no doubt that aggressively making the Sign of the Cross was an offence.

This illiberal nonsense has been going on for more than a year. Lawyer Paul Kavanagh had already asked: “What about a person displaying a banner that is not sectarian in any way, simply walking to a football match and being told to provide his name and address to police for no apparent reason, or walking down the street with his family and being spoken to by the police as they recognised him at a football match? Where is their right to privacy? Where is the crime?”

And yet the government has consistently defended the act against parliamentary criticism. MacAskill again: “The charge and conviction rates for people arrested under this legislation show that it is working well.” An innovative approach. “Government causes crime rates to rise” is not normally a headline linked to electoral success. However, at long last the law is calling this law an ass. In a judgment, Inverness Sheriff Margaret Neilson cleared Celtic fan Calum Graham of singing a chant that was “likely to incite public disorder” after he was accused of singing a pro-IRA song at a football match. She decided that it was not enough for a song to be offensive to warrant a conviction, going on to say that “parliament clearly has it in mind that you must pass this hurdle [of inciting public disorder] for it to be an offence”.Who in Inverness cared what his political views were?

This is what critics of this law have been arguing since it was introduced. People have a right to be offensive. Indeed, the point of much singing at football is to offend the opposition and individual players in it. Why else was Celtic’s Scott Brown booed by Hibs’ fans, who idolised him when he played for their team, every time he touched the ball in Sunday’s Scottish Cup final?

The sheriff was being extremely kind to the government, if not parliament, when she allows that the law was clearly intended to be directed at those inciting trouble. That is not true. For ministers, singing sectarian songs was enough. And that is the principle under which police have operated this act: if you sing, you get lifted. In the cases that have been brought to court, police have simply demonstrated the act of singing. They haven’t sought to produce evidence of an attempt to incite trouble or to foment terrorist activity.

The flaws in the act have been evident ever since it was drafted. Yet, the SNP has consistently ignored calls for it to be examined. Even before this latest blow, SNP convener Christine Grahame was desperately trying to prevent the justice committee demanding an immediate review of the law by suggesting instead that they write letters to the Lord Advocate, Police Scotland, the Scottish Police Authority and the justice secretary seeking their views – nothing more than a delaying tactic. She confirmed that the Lord Advocate would be asked whether prosecutors and sheriffs are “having difficulty” interpreting the wording of the act, in light of the earlier comments by a Dundee sheriff.

The latest judgment confirms sheriffs are not having any difficulty at all. All they are doing is interpreting the act in a way that displeases the government and the police, who want to prosecute any singing they don’t like. It’s as vague as that.

This act is not only an affront to civil liberties, it is also a waste of money. Sheriff Neilson’s court in Inverness heard that the accused was prosecuted after being caught on camera by officers drafted in from Glasgow. In terms of creating jobs for the boys in blue, it has certainly worked. But at what cost to the public?

The worst outcome of this ill-advised legislation is that it has set back the fight against inappropriate behaviour at football matches. Before it, chanting IRA songs was seen as distasteful and Celtic had been working hard to root it out at their matches. Judging that singing pro-terrorist songs is not in itself illegal, it cuts the feet from the football authorities who want their fans to focus on supporting the team, leaving their political prejudices at the turnstile. A clearer example of government incompetence would be hard to find. This law does not need to be reviewed; it needs to be struck from the statute books.