Yesterday I listened to the Justice Committee deliberations on the Offensive Behaviour and Threatening Communications (Scotland) Act and by 20 minutes in I was starting to feel like I was taking part in some twisted social experiment.
Firstly, Roseanna Cunningham attempted to contextualize the bill within Old Firm tensions and the targeting of Neil Lennon in 2011. Twenty minutes later, answering a question about the possibility of giving further guidance to clubs and supporters to help them understand the legislation in the absence of any legislative prescription about what could and could not be sung, she cited the Lord Advocate’s “clear” guidelines about what constituted offensive:
Songs, lyrics, which promote or celebrate violence against other persons’ religion, culture, or heritage.
And songs, lyrics which are hateful towards another person’s religion or religious leaders, race, ethnicity, colour, sexuality, heritage or culture.(22.01)
I don’t understand how the songs I hear at Celtic games, and particularly the Roll of Honour which the enforcement of this bill has focused disproportionately on, falls into any of those categories. Moreover, Cunningham was quick to remind the committee that indeed there were two parts to the enforcement of the act: firstly the actual offensiveness itself, and secondly the likeliness of it causing public disorder. I don’t understand how Roll of Honour could be considered likely to cause public disorder at a Celtic game. Surely it would be more likely to cause public disorder if sung in the Garage on a Friday night, which is a “mass gathering” in turn. But this piece of legislation is not about that. So, as far as I understand, this legislation is targeting an inoffensive song (at least by the Lord Advocate’s guidelines that Cunningham cited) specifically in the place that it is least likely to cause public disorder, outrage, or offense. Cunningham said it was “counterproductive” to prescribe songs as words can be changed and new songs sung. I think the real reason why it is “counterproductive” to prescribe what songs are and are not offensive is that the bill would be binned in seconds.
This is where the vicious Orwellian violence of the bill really comes in. It is up to police officers to interpret “on the spot” whether a song is offensive or not. I’ll say that again: it comes down to an on the spot interpretation by Police Scotland whether or not a crime is being committed. How blind Cunningham’s faith must be in the unshakable benevolence of Police Scotland. Or perhaps she is merely following in the footsteps of her predecessor Christine Grahame who thought more Catholics had to be arrested to “even things up”. A transparent history of ‘sectarian’ prosecution in Scotland was denied us in 2011 when the Crown Office admitted it had destroyed the data on sectarian offenses that Alex Salmond told the Church he would publish. To avoid what she calls a “constant cycle of catch up” created by the possibility of new songs being introduced or lyrics changed, Cunningham is happy to devolve the definition of an offense to the judgement of police officers in the first instance. At the very least this has the ability to be exploited to normalize and excuse the intimidation and targeting of Celtic supporters which should be enough to have it binned and it seems to me that it has to go that way eventually. But we’re not there yet.