Seen to be doing something

So it is possible that our majority SNP Government can be persuaded to have second thoughts - and credit where credit is due. Once it became clear that worries about the Offensive Behaviour at Football and Threatening Communications Bill, and specifically the speed with which it was proposed to be enacted, were not just the preserve of a few legislative purists, the First Minister commendably announced a new timetable, at the expense of the professed aim of having the law in place in time for the new football season.

For a Government that set store on having the weight of civic Scotland behind the measure, it would have looked a bit awkward, to say the least, to legislate in the face of the broad church (pardon the expression) of concern that built up in the few days since the bill was published. And who knows, it may just have saved a potentially embarrassing trip to the UK Supreme Court to test the human rights compatibility of the Act - potential embarrassing to both court and Government, in the wake of recent events, I would think.

That leaves us with more adequate time to answer the other question being posed, whether the bill is actually necessary. Here the question is being asked, does it actually criminalise anything that isn't already criminal? The Lord Advocate maintains that with the scope of common law breach of the peace being defined more strictly in line with the European Convention on Human Rights (i.e. the need to be reasonably clear about what is and is not criminal), and some sheriffs showing a reluctance to convict under current "hate crime" legislation without evidence that there were people who actually heard and were affected by offending remarks, something more is needed. Others in the legal profession disagree, on the basis that the law is already quite sufficient.

Much the same argument could be, and sometimes was, had over the other hate crime enactments passed in recent years, relating to racially aggravated, homophobia-aggravated etc breaches of the peace, not to mention offences in relation to emergency workers and the like. I have sympathy with the view that it is more in keeping with the principles of Scots law to have fewer, more general offences and have clear policies in relation to levels of prosecution, and/or sentencing guidelines, for particular variants of an offence that are thought to be a particular issue in society. I also recognise that there may have been times when such types of offence have not been treated with the seriousness with which they are perceived by the victims.

Incidentally, we should not be too distracted by what might or might not in particular circumstances constitute an offence under the new bill, or seek to exempt specific acts. Suppose it were enacted that the sign of the cross should be protected, and Old Firm fans (yes, on either side) took to using it in a mocking way towards their rivals? And the Sex Pistols managed to come up with a version of  "God Save the Queen" that at least got itself banned from the airwaves. Better not to give any hostages to fortune there.

There is nothing intrinsically wrong with restating an existing law in terms that reflect modern conditions. Much law reform work consists of just that sort of exercise. There is nothing wrong either with "sending out a message" that some forms of conduct will not be tolerated, and may be punished severely if they occur. Of course, politicians should not pretend that by doing so they have cured some great social evil, but that is another matter. However there does appear to be a risk that in this area of the law we are ending up with a series of Acts of the Scottish Parliament, each quite limited in scope, and not always sitting very neatly or consistently together.

We have also had on the shelf for some years now a draft criminal law code, which showed little sign of becoming a reality until MSPs decided two years ago that the law of sexual offences needed clarifying and passed a statutory restatement in the form of the Sexual Offences (Scotland) Act 2009. Has the time not come for a similar treatment of public order crime?

My suggestion, therefore, would be for interested parties to work with the Scottish Government to get the present bill through in the now-proposed timescale, working to achieve consistency so far as possible with recent public order enactments. The Government for its part, rather than adopting the device of the sunset clause, should now initiate a review of the whole law in this area, preferably with the help of the Scottish Law Commission, with a view to achieving a coherent statutory public order code - complete with such penalties as are thought fit.

Perhaps that way we might achieve a result that civic Scotland can rightly be proud of.