The Scottish Government has been warned that the Offensive Behaviour at Football Act (OBFA) may not comply with the European Convention on Human Rights, and could be beyond the legislative competence of the Scottish Parliament.
OBFA came into force in 2012, a law intended to ban behaviour which may incite public disorder and discriminate against racial groups, as well as “other behaviour that a reasonable person would be likely to consider offensive”.
Ending sectarianism at football matches was one of the main aims of the Act but opponents of the law say it is poorly written, unnecessary in light of existing legislation and unfairly targets football fans, who have campaigned against it.
Their position was endorsed by Holyrood’s Justice Committee last week when it published a Stage One report on OBFA. It recommended its repeal following a public consultation.
In its submission to the Justice Committee, the Scottish Human Rights Commission (SHRC) said it welcomed efforts to address offensive and threatening behaviour at football.
However, SHRC also urged the Scottish Parliament to “carefully consider” whether OBFA complies with the European Convention on Human Rights (ECHR).
The first vote in parliament on OBFA’s repeal – proposed by Scottish Labour MSP James Kelly – will take place on Thursday 24 January when MSPs will vote on the principles of Kelly’s bill. The process will then move to stage 2 when amendments to the Bill will be considered.
Judith Robertson, Chair of the Scottish Human Rights Commission, said: “We have advised the Parliament that the current Act needs to have the correct balance between the right to freedom of expression and the need to tackle behaviour that incites hate and violence.
“We have also questioned whether the Act meets the Convention’s requirements of legal certainty and lawfulness.”
“We have advised the Parliament that the current Act needs to have the correct balance between the right to freedom of expression and the need to tackle behaviour that incites hate and violence. We have also questioned whether the Act meets the Convention’s requirements of legal certainty and lawfulness.” Judith Robertson, of the Scottish Human Rights Commission.
SHRC previously raised the potential lack of legal certainty over the Act as required by Articles six and seven of the ECHR, during the legislation’s formation.
The human rights organisation also stressed the fundamental importance of the right to freedom of expression and its submission to the Justice Committee was backed by BEMIS Scotland.
Danny Boyle, parliamentary and policy Officer at BEMIS, said: “We fully endorse the position set out by the Scottish Human Rights Commission that in “all likelihood the act fails to meet the requirement of lawfulness’.
He added: “As such we support its immediate repeal and usage of well substantiated common law provisions to protect communities from actual hate crime and not ‘general offense’ which is an entirely different concept and reflects a breath-taking expansion of criminal law.”
Over 70 per cent of respondents to a public consultation supported a repeal of the Act, while over 75 per cent of individual submissions – and more than half of organisational submissions to the Justice Committee – supported the proposed repeal.
Each of Holyrood’s opposition parties campaigned on manifesto pledges to scrap OBFA in 2016, and with the SNP now a minority government, have moved to do so via Kelly’s members bill.
Many witnesses and supporters of the Football Act had urged MSPs to delay consideration of the repeal legislation until an ongoing review of hate crime legislation by Lord Bracadale concludes in the spring.
However, the committee report last week said it “would not be appropriate to delay consideration” while Lord Bracadale concludes his work.
In reply, the Scottish Government said that the Act is compatible with the European Convention on Human Rights (ECHR).
A Scottish Government spokesperson said: “It was passed by Parliament and was not referred to the Supreme Court by the Law Officers. Further, it has been judicially considered in the context of challenges under the ECHR and those challenges did not succeed.
“This government stands on the side of the vast majority of football fans who want to enjoy the game in an atmosphere untainted by offensive, abusive or threatening behaviour.
“As groups representing victims and equalities campaigners have indicated, repealing the Act in the absence of a viable alternative would send entirely the wrong signal to both football and wider society.
“Those advocating repeal need to explain exactly how they would fill the potentially dangerous gaps in the law that would result.”
Figures published last year revealed a rise in prosecutions under the controversial legislation, in which three quarters of prosecutions were successful.
A total of 132 people were convicted out of 175 charged for under the Offensive Behaviour at Football and Threatening Communications (Scotland) Act in 2015/16.
That figure compared to 86 and 76 convictions in the previous two years, respectively.
If MSPs vote to repeal OBFA, it will move to stage 2 of the bill process that usually requires further detailed considerations of the bills provisions.
Photo credit: Scottish Parliament | Mark Longair | CC | https://flic.kr/p/6YUQDC