The Irish community was celebrating as people power won the day and the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 was consigned to history.
The act had been described as ‘the worst piece of legislation in the Scottish Parliament’s history,’ by Labour MSP James Kelly, who spearheaded the repeal effort inside Holyrood—and thanks to a concerted effort by opposition parties, who were united in opposing the act, as well as a campaign (right), which lasted from the bill stage until its final repeal by Fans Against Criminalisation.
FAC were present in parliament to see the final moment of victory in their campaign, along with several prominent members of the Irish community who had brought the weight of the Irish community to bear in the fight to defeat the government.
Many Irish cultural organisations and community groups had stated their objection to the act, and The Irish Voice campaigned throughout the act’s lifetime at the manner in which sections of the Irish community and certain Irish political expressions had become criminalised.
Among the first to bring greater attention to the concerns within the Irish community was BEMIS, and in their work supporting ethnic minority voluntary organisations in Scotland entered into dialogue with those who felt their culture and identity were coming under attack through the legislation.
Danny Boyle, who was called as an expert witness to give evidence before committees charged first with introducing the act and later with repealing it, spoke to The Irish Voice about those community concerns and the flaws in the legislation, which his organisation had discovered.
“BEMIS were made aware of significant concerns within the Irish community with regards to the act from 2011/12,” Mr Boyle explained. “These concerns centred around two fundamental points. Firstly, that expressions of Irish social, cultural and political identity were being ‘sectarianised,’ and secondly that the broad scope of section 1 2(e) [of the act] would result in the prosecution of community members for ‘other behaviour that a reasonable person would be likely to consider offensive.’
“These concerns appear to have been confirmed in the act’s implementation. For example, we are aware of charges progressed in relation to celebrations pertaining to the Easter Rising of 1916, despite the fact that such acknowledgements also took place via parliamentary structures and in collaboration with the community alongside Irish and Scottish governmental and civic representatives.
“This then presents an additional human rights challenge. As outlined previously, Article 7 of the European Convention of Human Rights dictates that: ‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.’
“Simply put this means that it must be clear to the potential perpetrator that their actions will merit prosecution. Specifically in the context of the OBFA an individual could argue that something articulated by various MSPs in the Scottish Parliament would not constitute an offence in broader society.”
Through their work on these issues BEMIS received the support of the Scottish Human Rights Commission, who suggested that the act may in fact have been unlawful from a human rights perspective.
“Indeed, the Scottish Human Rights Commission supported our analysis and outlined that the act ‘in all likelihood does not meet the requirement of lawfulness,’” Mr Boyle explained. “Additionally, as outlined in our verbal and written submissions to the Justice Committee, we were of the opinion that it had had a negligible to non-existent impact on challenging hate crime with less than 20 per cent of charges over the duration of the act being for hate crimes, all covered by pre-existing legislation and of this number over 80 per cent of charges related to anti-Catholicism.
“It remains unclear as to what the act actually criminalised despite the political, social and media narrative that has accompanied it.”
Speaking after the repeal, James Kelly called on a new approach from the SNP Government, suggesting that education is a better way to tackle such a problem in society than draconian legislation.
“The Football Act was scrapped because every opposition party knows that the roots of bigotry do not lie in football stands but in communities,” Mr Kelly said. “Tackling sectarianism must start in schools by changing views and attitudes, and the money must be there for projects to do this effectively. The Scottish Government must listen to parliament, accept it has been defeated, and commit to re-investing in worthwhile anti-sectarianism schemes.
“SNP ministers can’t respond by putting their fingers in their ears. They have an opportunity to refresh their approach and listen to the experts and that starts by pledging the cash for these vital projects.”
However, despite the humiliating defeat, many in the SNP remain personally attached to the act, which was defeated by a long and hard fought campaign, and First Minister Nicola Sturgeon was among those who attacked the successful repeal.
“I’m disappointed,” she said. “I think it was a retrograde step. Obviously, we’ve had a concern about repealing the act before alternatives were in place but we’ve moved on from that. It’s important that we do not lose sight of the collective need across society to have zero tolerance towards sectarianism and I hope that message, notwithstanding the vote yesterday, continues to go out very strongly.”