Eddie Barnes: Divided he stands

The black Senegalese striker has long managed to attract controversy. And, surrounded by members of his Celtic tribe, Smith couldn’t resist. As Diouf reached the corner flag, Smith began making monkey gestures at him, shouting out racial slurs in his direction. It was an act he would come to regret. Fellow Celtic fans reported Smith to stewards and to the police.

Smith was charged with a racially aggravated breach of the peace. At Glasgow Sheriff Court, Sheriff Lindsay Wood told him he had been guilty of “despicable racist behaviour” and had made a “fool of himself”. Three months in jail and a five-year ban from attending football matches was the end result.

As with the English magistrates who handed out meaty sentences to some of those whose rioting hit the cities of London, Birmingham and Manchester in August, the sentenced handed to Smith was meant to send a signal. The court was sitting in early May, in the wake of letter bombs posted to Celtic manager Neil Lennon and others. The court wanted to make clear its displeasure. And so an ashamed Smith had the book thrown at him.

Justice is there to send a signal to society. Few would dispute that Sean Smith’s case did just that. But this weekend, this well-resolved case poses an awkward question for First Minister Alex Salmond. Last week, Salmond declared he was pressing ahead with his plans to introduce further sanctions against the likes of Smith. A new offence will be created, in which all offensive or threatening behaviour which is deemed likely to incite public disorder – sectarian, racist or homophobic abuse – could attract a sentence of five years.

In a fiery session of First Minister’s Questions last week, during which Labour leader Iain Gray withdrew his support for the proposals, Salmond angrily insisted his plans were necessary. “We can either be part of the backlash or part of the solution. I truly hope most people in this parliament decide to be part of the solution,” he declared. More powers for the police and the courts were necessary to deal with that, he argued. But the question facing him this week is clear. Does it really require a further dose of the Salmond Big Stick to sort this? After all, didn’t Smith get punished?

The legislative crackdown proposed by Salmond had its genesis in May just as Smith was being sentenced. Later that same day, Neil Lennon was attacked by a Hearts fan at the Tynecastle dugout. Two weeks later, the First Minister signed off a two-pronged legislative plan in response. The first section would hit people such as Smith: offensive behaviour in and around grounds. The second would focus on religious hate peddled on the internet – a direct attempt to crack down on some of the vile material aimed at Lennon, and others, urging his killing. Anyone caught offending risked a maximum sentence of up to five years in jail. The original idea was to push the new laws through before the Scottish Parliament rose for the summer.

But amid a deluge of questions from Church bodies to gay rights groups, Salmond agreed to postpone the bill and allow further parliamentary scrutiny. Last week, having taken evidence, the parliament’s justice committee, on which the ruling SNP holds a majority, backed the bill, with the Nationalist members voting down their opposition counterparts. But Salmond’s hope of finding consensus on an issue which transcends the usual political battlefield presently looks set to fall short. He may not need the votes of other parties, but – as he said in his address after winning the election in May – he did not want to govern as if with a “monopoly of wisdom”.

The central bone of contention is over the first part of the new bill on offensive behaviour and whether the planned legislation is really that necessary. The anti-sectarian charity Nil by Mouth, set up after the horrific murder of Celtic supporting schoolboy Mark Scott, declared last week that the laws as they stood were “robust” enough. Dave Scott, the charity’s director, warned that the high-profile targeting of fans in and around football games served to distract attention away from what he claims was sectarianism elsewhere in society. He noted: “I think people are confused as to what the bill is supposed to do.”

The charity spoke out after the Catholic Church expressed doubts over the proposals. Another sceptic is law expert Dr David McCardle, who recently carried out a review of football banning orders, which prevent offenders from attending games. “This is coming from the something-must-be-done brigade. We are not short of criminal law in this country and I have massive reservations about whether this will all be necessary,” he declared. The odd wrinkles in the new law are likely to be mocked by fans, he added – noting that, for example, Rangers fans may end up getting around the “offensive” singing of the so-called Famine Song, by simply singing the lyrics of Sloop John B, the original tune. He adds: “It will be likely that these laws will get used for a wee while but after that I suspect the sheriffs will fall back on the old laws, once the originality has gone out of it. They’ll just turn round and say this is good, old-fashioned breach of the peace, or an aggravated offence [crimes which are deemed to be compounded by either sectarian or racial hatred].”

The proposed new law, claim critics such as historian Professor Tom Devine, confuses matters because the offence now could simply be “expressing hatred”, with no other crime attracted to it. And how would this be defined? “If Celtic supporters go down to watch their team play Manchester United and sing songs that they think deal with Irish freedom or oppression by the British state, is that offensive or is it a statement of political belief?” he asked MSPs last month.

Other evidence heard included the example of a hypothetical man talking into his mobile phone in Coatbridge and saying, “I’m surrounded by hundreds of Fenians”. If spoken in the context of a football match would that be an offence? Labour party sceptics have already noted that, as offences have to be committed in relation to football, one way for bigots in a pub to avoid breaking the law would simply be to turn the television game off.

Roseanna Cunningham, the minister tasked with pushing this legislation through, replies by noting that the new law was never intended to be a silver bullet. The new laws are there simply to plug a hole. And, she adds, authorities will only be able to act against offensive behaviour where such behaviour is likely to incite public disorder. The point is, she argues, that creating a new specific crime, rather than attaching such behaviour to a breach of the peace, will have a powerful effect. Being punished under the new law will create a “stigma”, she argues, which, in itself, will become a deterrent. Salmond added last week that it simply gives police – who support the move – an extra tool in their armoury as they seek to crack down on such behaviour.

One of those who received threatening mail in the spring, QC Paul McBride, says that Salmond and his Lord Advocate, Frank Mulholland, have got things spot on. “At the end of last season we had everyone calling for something to be done. And now they [the opposition parties] are all running away from it. I think they are completely wrong. This is transformational legislation. We’ve tried education for 30 or 40 years. We’ve said that will be enough. I think the other parties should be ashamed of themselves for opposing this. I hope it will be passed without their consent so that we all get to see what they are really like. They are just playing politics with this.”

On Friday, Salmond won further ground, allaying concerns from the Catholic Church about the scope of the second part of the bill on the definition of threatening communications. Today Bishop Joseph Devine of Motherwell says: “The First Minister is to be congratulated for his painstaking efforts and exemplary initiative to rid Scotland of the evil of sectarianism. I wish him Godspeed.”

As Scotland on Sunday reports today, Salmond is set to agree to a request by the parliament’s justice committee that he agree to a formal review of the legislation after it is introduced, in the hope of allaying concerns the law will be counter-productive. Furthermore, it appears ministers are lowering expectations about the bill: at a meeting with the Catholic Church on Friday, Cunningham is understood to have said that the offensive behaviour section of the bill was intended to be “symbolic”. In other words, ministers believe there is merit simply in using legislation as a opinion-changing battering ram. This is a long-standing practice in politics. But, the bill’s opponents argue, such battering rams are already being smashed into the sectarian mindset, as cases such as Smith’s have shown.

The concern of some is not just that the bill isn’t necessary, but that the heavy fist it represents could be actively damaging, stoking up resentment and a sense of victimisation on the terraces, thereby adding to self-justifying tribal lore. Only last month, Rangers fans unveiled a poster at one game declaring: “SNP Weak On Criminals, Tough On Fans”, in a sign that football supporters themselves are already feeling hard done by.

Meanwhile, Salmond’s hopes of persuading political opponents have been damaged by what they claim is his political sniping – summed up last week when he tartly noted how Dave Scott, the Nil by Mouth chief opposed to the bill, was formerly a Labour party researcher.

But the First Minister has said clearly he intends to press on. Having invested so much political capital in the proposals, and apparently determined to send out a clear statement of intent on the matter, he has little choice.

The First Minister can claim ownership of the bigger picture, showing Scots tangible evidence of a zero tolerance approach to such offences. The danger is that his new crackdown ends up as a soon to-be-forgotten publicity campaign, with little impact on ridding Scotland of the shame of sectarianism. None the less, that is a risk Alex Salmond looks certain to take.