Back in May 2011, when the SNP beat the Scottish parliament’s proportional electoral system to achieve an overall majority, the then first minister Alex Salmond made his victory speech in the grounds of Edinburgh’s Prestonfield House hotel.
Notwithstanding the SNP’s newly won dominance of the chamber, Salmond said that the Scottish government still wanted to build support for policies among other political groups, as had been the arithmetical necessity during the party’s minority government in the previous parliament.
A few weeks after the election, Salmond pulled back from fast-tracking legislation to criminalise offensive or threatening behaviour connected to football matches, and communications containing threats of violence or inciting religious hatred.
Public concern was high, not least in the aftermath of parcel bombs that had been sent to Neil Lennon, Celtic manager, and two prominent fans of the club: the late Paul McBride QC and former Labour MSP Trish Godman.
However, opposition parties were concerned about rushing the process, and the government responded by pressing the pause button in the hope that consensus for the measures could be built. The initial signs were good, with MSPs backing the principles of the bill by 103 votes for, with five against and 15 abstentions.
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As the first minister’s spokesman at the time, I even coined an alliterative description of the government’s U-turn — it was the “Prestonfield principle” in operation: a majority government still operating as if it was a minority.
Unfortunately, that was as good as it got. Consensus was cancelled, and the bill passed in December 2011 by 64 votes to 57, with only SNP MSPs in favour.
Taking all circumstances into account, I think that new legislation was the right thing to do, but it was wrong to pass something so controversial on such a partisan basis. Given the overwhelming vote for the bill’s principles, it may be that more effort could have achieved an act that had broader political support, which would have eased its passage into the frenetic world of Scottish football.
Last week, Labour MSP James Kelly’s bill to repeal the Offensive Behaviour at Football and Threatening Communications Act was backed at its first stage by 65 votes to 61.
But scrapping the act and putting nothing in its place would bring its own problems. Doing so on the basis of partisan voting and a slender majority would also be the wrong thing to do.
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Repeal would create gaps in Scotland’s criminal law, and cause us to fall behind certain standards south of the border. For example, the act strengthened the law by focusing on whether behaviour would incite public disorder rather than, as with breach of the peace, having to prove fear and alarm. It also has extra-territorial application, making it possible to bring a prosecution for incidents at matches played by Scottish teams abroad. And unlike elsewhere in the UK, prior to the “threatening communications” aspect of the act there was no specific offence in Scots law that criminalised threats made with the intent of inciting religious hatred.
Important voices such as Victim Support Scotland and the Equality Network oppose repeal without putting a viable alternative in place.
Aside from legal specifics, removing laws designed to crack down on blights such as sectarianism sends out a terrible message about what Scottish society regards as acceptable conduct.
On this, our MSPs should be acting as legislators, not just politicians. Compromise is the only responsible course. All sides need to put the Prestonfield principle into practice.