Scottish lawyer PAUL McCONVILLE shares his reservations about Scottish Government plans to combat sectarianism
Would the proposed anti-sectarian legislation for Scotland make singing “God Save the Queen” illegal?
The Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, before the Scottish Parliament today, does not include a list of proscribed songs, the making of which was considered, but rejected, by the Scottish Government.
Imagine the scene. A packed Parkhead. Rangers two goals up on Celtic. The blue faction jubilant, the green silent. The Rangers fans, in their corner of the stadium, strike up the National Anthem.
Clause 1 (1) of the Bill states “A person commits an offence if, in relation to a regulated football match— (a) the person engages in behaviour of a kind described in subsection (2), and (b) the behaviour— (i) is likely to incite public disorder, or (ii) would be likely to incite public disorder.”
Dealing with clause 1 (1) (b) such singing clearly “is likely to incite public disorder” amongst the Celtic fans, who, whether right or wrong, are generally less than pleased whenever that song is heard at Parkhead.
Clause 2 states “The behaviour is— (a) expressing hatred of, or stirring up hatred against, a group of persons based on their membership (or presumed membership) of— (i) a religious group, (ii) a social or cultural group with a perceived religious affiliation, (iii) a group defined by reference to a thing mentioned in subsection (4), (b) expressing hatred of, or stirring up hatred against, an individual based on the individual’s membership (or presumed membership) of a group mentioned in any of sub-paragraphs (i) to (iii) of paragraph (a), (c) behaviour that is motivated (wholly or partly) by hatred of a group mentioned in any of those sub-paragraphs, (d) behaviour that is threatening, or (e) other behaviour that a reasonable person would be likely to consider offensive.”
It is at least arguable that such a song, in those circumstances falls foul of clause 2 (c). The song may be being sung by the Rangers support in praise of Her Majesty, or may be “behavior motivated (wholly or partly) by hatred of a group mentioned” above – ie, “a social or cultural group with a perceived religious affiliation” namely Celtic fans, presumably perceived as Catholics.
Clause 5 states that “behaviour would be likely to incite public disorder if public disorder would be likely to occur but for the fact that— (a) measures are in place to prevent public disorder, or (b) persons likely to be incited to public disorder are not present or are not present in sufficient numbers.”
So the fact that large numbers of Strathclyde’s finest, together with the omni-present staff of G4 Security, are forming the ”thin, fluorescent line” separating the Celtic fans from the Rangers fans is irrelevant (clause 5 (a)).
So there we have it. In certain circumstances, it might be illegal to sing the National Anthem.
And in the interests of balance such songs as the Irish National Anthem or the Fields of Athenry sung by Celtic fans at Ibrox could fall in to the same category.
Of course the answer will be that we can rely on the good sense of the police, and of the prosecuting authorities not to act where it is unnecessary.
However we have already seen former Celtic goalkeeper Artur Boruc cautioned by police for incitement by making the sign of the Cross in front of Rangers fans. One politician at the time stated “Crossing yourself cannot possibly be considered a breach of the peace. It is a religious sign and has international recognition. It is ludicrous. If they had taken this to court then it would have been laughed out.”
That was the now First Minister, Mr Salmond, speaking in 2006.
How should this issue be treated now? Can we rely on the fiscal service to “do the right thing” especially if the aim is the eradication in Scotland of the sectarian “parasite”? Applying the same reading of the Bill as above to Mr Boruc blessing himself, would a player repeating the action now face prosecution?
It is often the case that hasty law is bad law. Does this Bill “fit the bill” too?
In the Justice Committee (Tuesday 21 June) the Minister, Roseanna Cunningham, was asked whether it could be a crime to sing the National Anthem in Scotland by John Lamont MSP.
She replied that the glib answer was no.
However, she then went on to say, specifically referencing “Rule Britannia” and hundreds of Celtic fans “aggressively” making the sign of the Cross, that these would be matters of fact and circumstances, and could well be!
When I asked the question, I did not frankly expect the Executive to agree!
(Read Paul’s account of the full committee exchange between Roseanna Cunningham MSP and Johann Lamont MSP here.)
Paul McConville is a lawyer by training and a floating voter. This post was originally published on his website.