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Justice Committee in split decision to back Offensive Behaviour Act repeal

18 January 2018

Holyrood's Justice Committee has backed the repeal of the controversial legislaton targeting sectarian behaviour at football matches, by a single vote majority.

By six votes to five, the committee's stage 1 report supports the general principles of James Kelly MSP’s Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill.

The five SNP members on the committee supported the retention of their party's Act, passed in 2012, but taking the approach that the Scottish Government should revisit the 2012 Act and bring forward constructive amendments.

While strongly condemning sectarian behaviour, the majority of the committee found that the original Act was flawed, and other existing laws largely capture the behaviours it criminalises.

Regarding the s 6 offence of threatening communications, the committee accepts that repeal of the Act would result in no specific offence of incitement to religious hatred in Scotland. However, it also notes concerns that the wording of s 6 has inadvertently created a high threshold, which has concomitantly led to its limited use and relatively low number of convictions.

Should the Bill become law and the 2012 Act is repealed, the committee considers it important that the public clearly undersrtand that offensive behaviour at football and threatening communications can still be tackled and prosecuted using other legislation and the common law.

The report also makes a number of other unanimous recommendations that would apply whether or not the Act is repealed. These include an appeal to the Scottish Government to define sectarianism in law and to bring forward amendments to clear up some of the uncertainty if the current Act is kept.

While the Crown Office & Procurator Fiscal Service gave evidence that a lack of definition is not unusual, giving the examples of dangerous driving and breach of the peace, the committee observed that these do not appear to have caused the same difficulties with understanding as is the case with the 2012 Act.

The bill is due to be debated at stage 1 next Thursday, 25 January. 

Committee convener Margaret Mitchell MSP commented: "The committee heard a wide range of opposing views during our scrutiny of the bill. We are grateful to the individuals and organisations who shared their views with us.

“Whether the Act is finally repealed or not, the message that came through from the vast majority of witnesses was that this legislation needs to be changed.

“While there is disagreement over the best way to proceed, the committee is united in its desire to have laws that help the police and prosecutors to clamp down on unacceptable behaviour. However, it is vitally important that our laws actually improve relationships between various groups within society, including law enforcement and sports fans."

Responding for the Scottish Government, Annabelle Ewing, Minister for Community Safety and Legal Affairs, said: "The evidence in this report clearly shows that a range of organisations have highlighted real concerns to MSPs about depriving our law enforcement agencies of this legislation completely without putting a viable alternative in place.

"We share those manifest concerns that repeal will send entirely the wrong message, leaving vulnerable communities feeling exposed to abuse and prejudice and putting Scotland behind the rest of the UK in terms of protection from incitement to religious hatred, currently provided by s 6."


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