Scottish Government’s controversial Sectarian Offences Bill to tackle Homophobic crimes, possibly songs of sex with sheep says QC Paul McBride

The debate on the highly controversial Offensive Behaviour at Football and Threatening Communications (Scotland) Bill which aims to tackle acts committed at Football matches in Scotland and ‘threatening communications’ on the internet has taken a new twist with claims in a televised debate from famous QC Paul McBride the legislation will also tackle homophobic crimes, and, in response to points raised by a former Law Society President, songs relating to football fans seeking sexual relationships with animals.

Ian Smart, solicitor & former President of the Law Society of Scotland asked Mr McBride for a practical example of an act which will be criminalised by the new bill which is not already a crime covered by current legislation. Mr Smart remained unconvinced after responses from Mr McBride who gave the example of homophobic abuse involving Paul Hartley for Hearts, where someone was alleged to have shouted homophobic remarks from the crowd, were prosecuted for breach of the peace and the court held it was not a breach of the peace under current legislation,.

Mr McBride said the bill would cover sectarianism, homophobia and other forms of …. its offensive behaviour … it defines offensive behaviour sectarianism, homophobic behaviour and other types of behaviour involving racism, that's quite clear to most people. Mr McBride went onto say Breach of the Peace was being constrained & defined by the courts.

When asked about the clause in the bill regarding “intersexuality”, Mr McBride said the clause was designed to deal “with attacking people’s sexual orientation in a vile way…”. Ian Smart in response used an example of where Aberdeen fans are used to being serenaded with songs suggesting ‘sexual relations with a sheep’, and asked if those songs were to be criminalised too. Mr McBride said it was a possibility… (Mind the sheep then ! – Ed)

Is it sectarian or homophobic legislation ? Ian Smart & Paul McBride debate Offensive behaviour at football matches in Scotland. (Click image below to view video)

The section of THE BILL dealing with “intersexuality” as highlighted in the above interview, refers to the interpretation of what is to be classed as “offensive behaviour” :

(3)  In section 1(4)—
(a)  “disability” means physical or mental impairment of any kind,
(b)  “transgender identity” means any of the following—
(i)  transvestism,
(ii)  transsexualism,
(iii)  intersexuality,
(iv)  having, by virtue of the Gender Recognition Act 2004 (c.7), changed
gender,
(v)  any other gender identity that is not standard male or female gender identity.

(So, if I read this right, only R2D2 could be subject to offensive behaviour at a football match, unless it claims a gender at some stage … heck I might have committed an offence just saying that much ! – Ed)

Asked about whether the bill would deal with homophobic offences, a Scottish Government spokesman speaking to one of our reporters on the subject of Mr McBride’s remarks, said : “On the Paul McBride comments, absolutely. The offensive behaviour bill relates to all forms of hatred. Any behaviour which is threatening, which would be offensive to any reasonable person, or which expresses or incites religious, racial or other forms of hatred can result in a conviction of up to five years in prison under the proposed new legislation.”

The Scottish Government’s Press Release on the bill, from earlier this week stated :

Tough new laws on sectarian and offensive behaviour
Bigots will face five year jail terms

Tough new laws to crack down on sectarian and other forms of hatred in Scotland should be in place in time for the new football season after Ministers introduced a draft Bill to the Scottish Parliament.

The legislation seeks to create two new offences relating to offensive behaviour that can incite religious, racial or other forms of hatred, in and around football grounds and on the internet.

If approved, the ‘Offensive Behaviour at Football and Threatening Communications (Scotland) Bill’, will mean bigots will face up to five years in prison upon conviction and the possibility of a football banning order.

The Bill is being fast-tracked through the parliamentary process to ensure the new powers are in place in time for the new football season.

The Minister responsible for tackling sectarianism, Minister for Community Safety and Legal Affairs Roseanna Cunningham said: “Racism, bigotry and sectarianism are not welcome in Scotland, it is totally unacceptable, and those who perpetuate this hatred will be punished through the full force of the law. These new laws will send out a clear message that there is no place for bigots in a modern-day Scotland. 

“From the start of the new season, anyone who peddles sectarian hatred - in any football stadium in Scotland, on the way to or from a game, or hiding behind a computer screen - could now face up to five years in jail. The events of last season were unprecedented and they need to be met with an unprecedented response. Actions which are threatening, offensive and which incite hatred and public disorder simply cannot be allowed to happen again. That is why this Government is taking decisive and immediate action to ensure law enforcement agencies have the additional tools in their armoury to crack down upon these individuals with full force.”

”However, clearly laws alone won’t solve this problem and convictions should be the last resort. We need a wholesale change in attitudes amongst those who spout offensive or threatening rhetoric in the name of football. And these new laws need to be supplemented by a united effort on behalf of all involved in football, from the football clubs, fans, police, government, and the football authorities. That is why the Joint Action Group is working to deliver upon the eight commitments agreed at the Football Summit in March.  Along with the Bill, this will bring about real and lasting change. This legislation is just the start, we are in this for the long term, and we will not hesitate to bring forward further action over the five year parliamentary term if required.”

“If we are to rid Scotland of sectarianism, we need to come together as a country and I hope that MSPs from all sides will support this Bill as it progresses through the parliamentary process. Sectarianism has huge consequences for individuals who are threatened, major consequences for communities, and it undermines the very fabric of a Scotland that we want to be tolerant, respectful and forward looking. Sectarianism is a hate crime, it has got to stop, and it will stop.”

Roseanna Cunningham told the Scottish Parliament’s Justice Committee making the sign of the cross & singing God Save the Queen might also be sectarian offences (Click image below to view video)

After Ms Cunningham’s appearance before the Justice Committee on Tuesday, and Scotland’s Lord Advocate Frank Mulholland clarifying which songs wont be sectarian the following day, the bill which was to be rushed through in two weeks has now been delayed for six months, clarified in an announcement from the First Minister Alex Salmond during a statement to the Scottish Parliament.

Background

The Bill provides for two new offences: Offensive Behaviour related to football and Threatening Communications.

“OFFENSIVE BEHAVIOUR”

Intended to deal with sectarian and other offensive chanting and threatening behaviour likely to cause public disorder.  The offence covers behaviour likely to lead to public disorder:
*    Expressing or inciting religious, racial or other forms of hatred.
*    Threatening behaviour or behaviour which would be Offensive to any reasonable person
*    Covers behaviour at and on the way to or from a “regulated football match”, which includes league, European and international matches. 
*    Definition based on football banning orders (FBO) legislation, which means there is the potential for an FBO to be imposed in every case.
*    Also covers anywhere a match is being broadcast in a public place, and travel to and from such places.
*    Covers a wide range of behaviours with appropriate penalties up to a maximum of 5 years in prison and an unlimited fine.

OFFENCE B – “THREATENING COMMUNICATIONS”

Intended to deal with threats of serious harm and threats which incite religious hatred. 
The offence covers:
*    Threats of serious harm intended to cause fear and alarm, or reckless as to whether they do.  This includes implied threats (e.g. the posting of bullets or images depicting serious harm).
*    Threats intended to incite religious hatred.
*    It is a defence that the behaviour was in the situation “reasonable”. This is intended to exclude artistic performance etc.
*   Maximum penalty of 5 years in prison and an unlimited fine.

The offence will NOT:
*    Stop peaceful preaching or proselytising.
*    Restrict freedom of speech including the right to criticise or comment on religion or non-religious beliefs, even in harsh terms.
*    Criminalise jokes and satire about religion or non-religious belief.

A copy of the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill can be found HERE

The Scottish Parliament’s Justice Committee is seeking views on the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill.

The Bill was introduced to the Scottish Parliament on 16 June 2011 and was subsequently agreed to be considered as an emergency Bill. Because of this expedited procedure, the Justice Committee issued a call for written evidence on 16 June and took oral evidence at meetings on Tuesday 21 June and Wednesday 22 June in order to help inform the Bill’s consideration by the Parliament. After its Stage 1 debate on Thursday 23 June, the First Minister announced that the Scottish Government would seek to extend the Bill's timetable (date to be confirmed) to allow further scrutiny by the Justice Committee. As there is now more time available for the Justice Committee to consider the Bill, the Convener has agreed to extend the call for written evidence to noon on Friday 26 August 2011.

The Committee is interested in the views of any organisations, bodies and individuals on the Bill’s proposals and their likely impact and about any issues that respondents consider may have been omitted from the Bill.

How to submit written evidence

It would be helpful for your submission to clearly highlight your views on the broad thrust of the policy proposals and to also flag up any particular areas of concern you may have.

Before making a submission, please read the Parliament’s policy on treatment of written evidence by subject and mandatory committees.

Written submissions should normally be limited to around 4 sides of A4 but, if they need to be much longer than this, they should be accompanied by a short summary of the main points.  Submissions should be set out in numbered paragraphs.  Where the submission refers to existing published material, it is preferable to provide hyperlinks or full citations (rather than extensive extracts). The Committee welcomes written evidence in English, Gaelic or any other language.

The Committee prefers to receive written submissions electronically (preferably in Microsoft Word format). These should be sent by e-mail to: justice.committee@scottish.parliament.uk

However you may also make hard copy written submissions to: Justice Committee, Room TG.01,The Scottish Parliament, Edinburgh, EH99 1SP

Any queries about written submissions should be addressed in the first instance to the Justice Committee clerking team at the above e-mail address or on (0131) 348 5047.