Tuesday 31 May 2016

Constitutional Futures and Fudges

For some months now the focus of my PhD thesis has looked at the secession movements in Quebec, Catalonia and Scotland. I'm especially interested in how each of the Canadian, Spanish and British constitutional orders have gone about responding to desires both for a referendum on secession or independence, and what role the courts have in clarifying the parameters of and enforcing duties owed between the relevant parties in delivering referendums and in responding to their results.

I don't want to get too deep into the nuances of what I've been writing about, though that is for another time. I do think, however, it would be interesting and (I hope) useful to explain a couple of recent developments in the Quebec and Catalan disputes.

Canada and Quebec - Brief Context

Quebec's National Assembly drafted legislation for the holding of a referendum on secession from Canada in 1995, known as the Sovereignty Bill, which led to a razor-thin majority of voters supporting the province's continued place in Canada. There was a legal challenge made by a Canadian citizen to the competence of the provincial government to organise that referendum, in a case called Bertrand v Attorney General and the legislation was found to be unconstitutional, but the provincial judge declined to order the provincial government to cease and desist with holding the referendum pursuant to it. The federal government had been reluctant to get involved in that litigation, lest it be seen to be acting anti-democratically, a perception which could help the Quebecois secessionists' cause.

Nevertheless, in the aftermath of that referendum, the federal government referred a number of hypothetical questions to the Canadian Supreme Court. In the Reference Re Secession of Quebec, the Canadian Supreme Court concluded that there was no constitutional route, otherwise than the amendment procedures provided in the Canadian Constitution itself, by which Quebec could secede from Canada. This ruled-out "unilateral declaration of independence", a right asserted by the Parti Quebecois and Bloc Quebecois, as being potentially legal. This position is adopted either implicitly or explicitly by most country's constitutions, whether or not codified.

What was more controversial in that judgment was that it did say that, under the confluence of the core constitutional principles of Canada, including federalism, democracy, the rule of law and protection of minorities, there would be a "duty" on the part of the federal government to "enter negotiations" to "respond to" a clearly expressed desire to secede from Canada. In my current work, I have explored at length what the substance and effect of these duties would be, and how if at all they can be enforced (my conclusion is that, in reality, they can't). This section of the judgment was important, however, because it gave rise to two pieces of legislation in Canada: one federal; one provincial. Each represented what the federal government and the provincial government respectively believed would constitute a "clear majority" on a "clear question" expressing the desire to secede, and in each case spelled-out the implications of this.

The Legislation

Both pieces of legislation have their faults. The Clarity Act, for example, takes a very narrow interpretation of the Supreme Court's ruling and in many respects, despite its name, does not in fact provide "clarity" as to the circumstances in which Quebec may secede. It does not provide a definition of a "clear majority" and leaves that open to interpretation: for the House of Commons to decide, in the aftermath of the actual holding of a referendum. Canadian politicians have also been less than completely clear or honest as to what aspects of the Clarity Act affirm what the Supreme Court said, and what parts go beyond it, merely drawing their preferred constitutional inferences from it.

In the Macleans Election Debate, current Prime Minister Justin Trudeau claimed that the 9 Supreme Court justices said that a simple majority of support was not sufficient for Quebec to secede from Canada. The Supreme Court did not in fact state that even unanimity of the Quebecois was, in and of itself, enough to give rise to a right to secede, though the context in which they said the threshold imposed may be higher than a simple majority was in relation to this "duty to respond" and not with respect to a right to secede. They were merely saying that the Canadian government could constitutionally insist on a higher threshold; not that they should. Trudeau's position was therefore based on the Clarity Act itself, and was not itself a defence of it remaining in place as compared to an alternative piece of legislation, the like of which was proposed by Tom Mulcair's party the NDP.

However, the "mirror" law passed by the Quebec National Assembly, known as Bill 99, was equally contentious. It attempted explicitly to define a clear majority as 50% plus 1 of those who voted in a future referendum. It also made some pretty broad-brush rhetorical claims about sovereignty that went explicitly at odds with what the Supreme Court had said.

Catalan Parallels

Bill 99 has a lot of similarity with both the Declaration of Sovereignty and subsequent resolutions of the Catalan Parliament when it comes to proclaiming sovereignty and the right to secede. The critical difference, so far, has been that the Canadian federal government had been happy just to leave Bill 99 on the statute book, so as not to inflame tensions in Quebec, especially given there had been no imminent threat of another referendum. Parti Quebecois had weakened at a provincial level and Bloc Quebecois had lost many of its seats in the Canadian House of Commons, first to NDP candidates and then to the resurgent Liberal Party.

In Catalonia, the Spanish Government has been unrelenting in its determination to prevent the holding of a constitutional referendum. They believe that, as the Spanish Constitution states sovereignty rests in the Spanish nation, any plebiscite should take place throughout Spain and not in Catalonia alone on the question of secession. It is also arguably the case that for a referendum only of Catalans to be held, the Spanish Constitutional amendment procedure would itself require a referendum of the whole of Spain. On no fewer than five occasions has the Tribunal Constitucional declared aspects of the secession project to be illegal, and Artur Mas, former Catalan President, was impeached for his role in holding the "non-referendum popular consultation" in November 2014. The Catalan situation has reached something of an impasse, not helped by the inconclusive nature both of the most recent Catalan and Spanish elections.

Bill 99

Despite having left Bill 99 alone, probably hoping it would remain hypothetical and that its inconsistencies with the Clarity Act and the Constitution would never really matter, the federal government could not prevent private litigants from challenging it. In a similar vein to the way that Guy Bertrand had challenged the Sovereignty Bill back in 1995, an English language-rights party in Quebec, the Equality Party, had sought standing to challenge its provisions as unconstitutional. In 2007 the Quebec Court of Appeal granted permission for this challenge to take place, but the litigation had been incredibly slow.

In 2013, then Canadian Prime Minister Stephen Harper asked his Attorney General to intervene in that case and make direct representations as to the legality of Bill 99. There is an excellent piece by Paul Wells, formerly of Macleans, which shows the nature of the challenge and explains some of the context behind it. Progress in this case has been slow, but having contacted Mark Walters, prominent Canadian public law academic who wrote a seminal piece some years ago on the Secession Reference, I understand that this case will be heard by the Quebec Superior Court some time in September this year. As an aside, Mark is currently a Professor at Queen's University in Kingston, but will shortly be taking up the FR Scott Chair at McGill. His help on the Canadian aspects of my thesis has been hugely appreciated.

Why should we care?

The implications of Bill 99 potentially being struck down are significant, as it may agitate Quebecois secessionists, contrary to the wishes of the ardently pro-federalist Liberal government, which continued with the case initiated by Harper's Conservatives. I was prompted to draw attention to these ongoing developments in light of an article I saw in the Canadian media this afternoon. Le Devoir, a French language news outlet, has drawn attention to the calls of a number of Parti Quebecois representatives for the holding of another referendum to try to "break the liberal monopoly and resolve the national question once and for all". The PQ deputies want Quebec to be given a choice between independence and a "new" federal settlement.

The Canadian Supreme Court, Clarity Act and Bill 99 were not just concerned with what constituted a clear majority in favour of secession. They were also anxious that any referendum should ask a question "free from ambiguity". The inclusion of a "new federalism" settlement would very obviously fall foul of the Clarity Act and at least arguably would be unconstitutional in the terms described by the Supreme Court in the Secession Reference. The problem with these proposals, just as with the undefined "sovereignty association" suggestion in the 1995 Quebec referendum, is that they can both skew the result on the principal question and entail their own aspects of constitutional unfairness.

Unless voters are completely clear about what the "developed" or "new" alternative to secession or the status quo is, and what major specific changes it makes to the existing settlement they are being asked to provide a mandate that is simultaneously all things to all people and nothing to anyone. There is also a really basic principle of democracy which is an obstacle in these situations. It's quite right or at least a strong case to argue that democracy can be invoked to decide whether a people want to be part of a club or association of nations or states that make decisions about how they govern themselves. It is quite another to say that a state, nation or country, having decided to be a member of such an association, can then unilaterally set their own terms of membership or impose a broader set of rules for governance that affect all of the other parts of that state. The comparisons to the European Union referendum the UK is currently engaged in is an important one here: trying to set the rules of the game at the same time as trying to play the game to find a winner, in the constitutional context, is messy.

The Scottish Dimension

These developments produce an interesting parallel for Scottish observers, because in the first and second SNP administrations at Holyrood, minority then majority, the prospect of a "two-question" referendum was heavily mooted. I argued at the time that my own political party, the Scottish Liberal Democrats, should have worked with the SNP to develop a "third way". I wanted them very clearly to spell-out an alternative basket of powers and responsibilities Holyrood should have and then to use a political mandate from a referendum to try to encourage the rest of the UK to move towards a more overtly federal structure. Such an approach clearly does come with risks, and if done recklessly could be considered to be constitutionally improper.

But if referendums are to become the principal method by which constitutional change is demanded (the new "gold standard" if you will) constitutional orders need to find ways simultaneously both to make secession disputes much more constitutionally clear-cut, and also to find ways of making internal constitutional reform more flexible and responsive to the structural challenges secessionist movements pose.

Hopefully I'll have a working solution for you before my stipend runs out!

Thursday 26 May 2016

Wildfire Myths, Student Finance and Social Media - Again!

Social media has seen a complaint about the English student finance system go viral. Simon Crowther, a recent civil engineering graduate from Nottingham, was shocked when, on receiving statements from the Student Loan Company, it transpired his student finance arrangement was not what he thought it was.

He accused the Government of having "misled" him and other students when it came to the student loans system. He took-out a student loan in 2012 under the scheme introduced under the Coalition Government, which overhauled completely the way Universities and student maintenance was funded by government.

What changed in 2012

The key changes to the system included the raising of tuition fees to a maximum of £9kpa, a significant up-rating of the "repayment threshold" above which graduates have to begin to repay their loans, a substantial expansion of the maximum maintenance payment for which a student was eligible (especially those from disadvantaged backgrounds), the imposition of a 30-year rule wereby unpaid balances of a student loan are written-off after that period, and a move away from charging RPI inflation on the balance of a student loan, to something resembling more closely, but still well below, a commercial borrowing rate.

All of this information was extensively made available and was able to be read about on both the Student Loan Company's website, the Department for Business Skills and Innovation website, was discussed at length in government information campaigns about the new system, was disclosed in all the paperwork made available to students applying for a student loan, and was spoken about almost non-stop by people like Martin Lewis on his MoneySavingExpert website and in television interviews. At the time many of us were frustrated that the mainstream media, including the BBC, and the opposition political parties, were focused obsessively only on the £9k fees, ignoring the other changes to the system that, in fact, cut the contributions made by low-earning graduates, both at the beginning of their careers and across their earning lifetime.

What's the problem?

The news coverage of Crowther's letter has perpetuated or accepted several myths and pieces of misinformation about the new scheme. The letter makes the false claim that the government has "sold our loans to a private company which has caused the interest rate to skyrocket". This is wrong on two levels.

"THEY SOLD OUR LOANS!" No. No they didn't.

Firstly, it is not true that the government has sold-off the right to receive loan repayments to a private company, at least not with respect to people like Simon. His loan is disbursed and administered by the Student Loans Company, which is wholly owned by government actors in the UK (85% by the Department for Business, Skills and Innovation, responsible for support of tertiary education in England and 5% each by the devolved administrations). The government has owned and run student finance through the SLC for almost three decades. This is nothing new. Nothing has changed here.

It is true that some legacy loans were sold-off by the Student Loans Company in 2013. These related to what were "mortgage-style" borrowing arrangements that existed to meet tertiary education/living costs between the formation of the SLC in 1989-90 and 1998. One of the reasons for the decision to sell-off these loans is that they individually had very low outstanding balances, and those that didn't were becoming a lot more expensive to collect. This was a consequence of difficulties tracking-down graduates that had long since disappeared off the radar of the SLC. The effect of this is to divert time and other resources available to the SLC from focusing on ensuring that more recent loans are paid back promptly. Even though the "book value" of these loans was about £890 million, the actual amount the government would stand to realise from enforcing these debts themselves would likely have been much lower. This explains why a £160 million lump sum, paid by the successful bidder, is not the terrible or outrageous sham its critics say it is.

It is also true that, since the Conservatives acquired a majority in May 2015, there has been renewed consideration given to whether the loans incurred between 1998 and 2012 should be sold-off. Vince Cable, as Secretary of State for Business Innovation and Skills, had been strongly opposed to this move, and blocked some efforts to take this idea further than exploratory stages. However, it should be noted that in the last budget this idea was put back on the back-burner and a recent OBR report suggested the plan was not advancing in the near future.


The second problem with Crowther's open letter is that he has seriously misunderstood how interest works in student loans. It is not the case, even among the loans that the Student Loans Company has sold-off, that the new beneficiaries have the right to change the terms and conditions, like the rate of interest the lender can charge on the remaining balance of the principal debt. That would be a breach of contract and those taking out loans between 1990 and 1998 could contest it.

But it's not even true that interest rates have rocketed on student loans under the new system, which remember hasn't been privatised. Part of the new scheme did, it is true, change the system that previously charged RPI inflation as the rate of interest on the accrued student loan balance. It changed it to RPI + 3% when you are studying, then RPI inflation on graduation if you earn less than the repayment threshold (£21kpa) and then a variable rate of interest between RPI and RPI + 3% until a student earns over £41kpa. These terms were made completely clear at the time and were readily available on the Student Loans Company website.

At the moment RPI inflation is about 0.9%, meaning the maximum rate of interest on the loan is 3.9%. This is actually lower than the rate charged on loans in the two years immediate preceding the introduction of the new system, because RPI inflation was itself higher than 3.9% in those years! It is also lower than most mortgage rates at the moment and much lower than most unsecured credit arrangements. It is straight-up fiction on his part when he claims that, when he took out the loan "the loan was at a very low interest, and at the time was around 0.5%."

This is, admittedly, one of the most complicated aspects of the system. Crowther has clearly misunderstood how this works. The impression his letter gives is that the 3% above inflation rate is charged on all graduates, and that therefore, as he claims, he would need to be earning over £41kpa to begin to repay the principal debt over and above the interest.

How it actually works

This is wrong for two reasons. Firstly, someone earning, say, £27kpa, the national median household wage, will only be paying interest of 1.8% on the principal. The purpose of having a sliding scale of interest levied on graduates is actually to prevent higher-earning graduates from getting an unfair advantage in saved interest with respect to saving money by paying-off their debt earlier than those earning less than them. It isn't a perfect way of doing it, but, assuming we are talking about those who do in fact pay off the whole principal of their student loan, this isn't unfair and only hits graduates earning almost double the middle income of someone living in the UK. Instead, these people would, just like anyone else, have to make a conscious overpayment if they wanted to extinguish the debt early, though why they'd want to given the generous terms of repayment I cannot for the life of me understand.

The second reason it is wrong is because it completely ignores the fact that interest, for many graduates, will function as a hypothetical accounting exercise and for most will only slightly increase the total amount for which they are liable. The fact that student loans are written-off after 30 years means that, regardless of how much you've paid, you don't have to pay any more. If you are paying 9% of all your earnings over the threshold for 30 years, and the total of that contribution is less than the original loan amount you took out, the government is effectively writing off both the amount of the principal you didn't pay, and every single penny of the interest you accrued.

Even if you would have just and no-more paid off the principal but for interest charged, then the amount of interest you are effectively charged is still only the difference between your total repayments and the original sum you took out; not the whole amount of interest nominally charged to your account.

The only people actually affected by high rates of interest are those who are paying off their student loan with several years to spare.

The frustrating thing

If Crowther is right about one thing, it's about just how much of a gap there is between how the student finance system actually works, and how many people think it works. The problem is that how he now thinks it works, having had this "veil of secrecy lifted", is in fact... not how it works. What we are seeing is a culmination of media dumbing down of the system, to such an extent that it seems clear that bright, generally mathematically literate, students, secondary school teachers and politicians alike do not understand the mechanics of it all, despite the information being readily available and easy to communicate to those taking out those loans.

It is also clear that headline grabbing about "selling loans to the private sector" and "commercial rate interest" and the like are being used as dumbed-down signals to suggest that education is being marketised in some sort of free market frenzy. This makes the debate turn into one of ideological criticism of what the political extremes think the system is motivated by, rather than an evidence-based approach that properly considers how the scheme works compared to others.

It also distracts from the ability genuinely to criticise changes made by the government that actually are unfair and retrospective. When the new scheme was introduced, it was understood that the £21kpa repayment threshold was supposed to rise in-line with inflation. This would mean that, as the cost of living went up, graduates were not left with less real disposable income in the years to come. Alas, in George Osborne's Autumn Statement, he left in the fine-print the fact that this was no longer going to be the case.

The effect of this was a bit like cutting the personal allowance for taxpayers: more of a graduate's income would be subject to the 9% deduction from their pay-packet than if it had held with inflation. In terms of the impact on real disposable income, this most affects those whose debt repayments are least contingent on the size of their principal debt. Put more simply, it affects those earning between about £21k and £40k the most. Those earning much more than that don't suffer as much from a lower threshold as they end-up repaying their debt in full, and do it earlier than they otherwise would. The effect of that is... that they don't accrue as much interest on the debt as they otherwise would have so pay less for their University education!

Martin Lewis has been very vocal about this change, and it is one people should be angry about. That really is a case of going back on an implied undertaking or changing the rules of the game after the fact.

Wider context

This debate also takes place, from the perspective of observers like me in Scotland, against the backdrop of a vastly oversimplified public debate about the full state-funding of tuition fees in Scotland. This is a policy that benefits those who frankly don't need the state to underwrite their education for them. The evidence shows that this policy has done nothing to widen access to Scottish Universities when it comes to admitting those from deprived backgrounds. While the gap is closing in fee-ridden England, it is stubborn and static in Scotland.

We are also seeing Scottish Universities increasingly dependent on international and rUK students being admitted in order to meet their costs of operating and providing a diverse range of courses and subjects. This need to admit those bringing external sources of funding is holding back admissions levels for Scottish students, which disproportionately hits those from disadvantaged and minority backgrounds.

The dangers of misinformation in public debate allow governments to advocate things that are symbolically powerful, but ultimately terrible policies. And in the age of social media, the myth can travel half-way across the world before the truth has so much as got its boots on. We need to demand better.

Wednesday 25 May 2016

An Addendum: Offensive Behaviour at Football Act

Further to last night's post, one of the three men referred to in the STV News report as having been charged under the Offensive Behaviour (etc.) Act has been named as Greg Binnie. He appeared before Glasgow Sheriff Court on a charge sheet which averred that he had run onto the field of play, run towards Rangers goalkeeper Wes Foderingham and had gesticulated in an offensive manner.

There is absolutely no obvious reason from the perspective of a Procurator Fiscal's perspective why it would be preferable to prosecute that behaviour under the auspices of the Offensive Behaviour Act, rather than the alternatives. There is a strong arguable case that charging at a person falls within the definition of assault in Scotland. In Atkinson v HM Advocate in 1987, the principle was clearly established that physical contact was not necessary to substantiate an assault charge.

In that instance simply jumping over a shop counter while wearing a ski-mask was enough to satisfy the definition of an assault. It is enough that the perpetrator made threatening gestures sufficient to produce alarm. Quite clearly in this case, that threshold would have been met, and would have been no more difficult to prove from an evidence perspective than the particulars of the OBFA. If anything, it is easier to prove!

Equally, Mr Binnie could have been charged under s38 of the Criminal Justice and Licensing Act 2010, for behaving in a threatening or abusive manner, in such a way as the reasonable person would be likely to be induced to fear or alarm, and did so either intentionally or was reckless as to whether his conduct would have that effect. This would have been no more difficult to prove than an offence under the 2012 Act.

He could even have been charged with breach of the peace, or incitement to breach of the peace, had either of those charges failed to produce the desired result.

Which returns us to the very obvious question: why have the police chosen in this instance to charge him under the Offensive Behaviour at Football Act?

This was a choice. This behaviour does not even relate to the more controversial provisions of the 2012 Act, and expressions of hatred towards protected groups. The Police has very clearly taken the view that it would be desirable to make an example of Binnie to conflate in the minds of passive observers the preservation of the OBFA and the need to ensure order at football matches and prevent a repeat of the scenes on Saturday.

This is simply indefensible. Police Scotland are playing politics with their powers to influence the legislative process.

Meanwhile, we have today heard from former Cabinet Secretary for Justice Kenny "wrong thing for the right reasons" MacAskill, who has stated in plain terms that he thinks winding-up opposition fans by waving your own club's flag in front of them should be capable of constituting a criminal offence. I was almost left lost for words at how breathtakingly stupid a notion that was.

In his piece in The Herald he also characterises opposition to the 2012 Act as being the preserve of extreme leftists and right libertarians, even comparing those opponents to the NRA. As Alex Massie deftly pointed out, he should probably think about comparing these people, myself included, to people who would defend a First Amendment right to the hilt, rather than the Second.

This false equivalence is so ridiculous that it borders on the offensive. In fact, if Kenny MacAskill were to say this at a football match, it would arguably constitute "behaviour the reasonable person would be likely to consider offensive". And if, in the hypothetical, it would have been likely to cause a heated argument with other people had they heard him say it, it would have been "likely to incite public disorder". And the fact that he could then be prosecuted under that Act tells you all you need to know about the merits of it remaining on the statute book in its current form.

Politicised Policing in Scotland

Reports are emerging that, following the events that took place after the final whistle of Saturday's Scottish Cup final between Hibs and Rangers, Police Scotland have made a number of arrests and have charged several individuals with a variety of offences, relating to public order.

I don't want to get into the he-said-she-said of which set of fans were to blame for the altercations that took place on the pitch, or indeed for the encroachment on the pitch itself. Clearly acts of violence and abuse, whether against fans, players, staff or officials, are completely inexcusable, are criminal, disgusting, and should be punished by the full extent of the law on identifying those culpable. Clearly the Police should use all proper avenues available to them to collect evidence and do their job.

I also, just to be clear from the outset, think that the SFA specifically and the governing bodies in Scotland in general have to take far greater responsibility for punishing clubs whose fans commit acts of violence, public disorder, and who partake in sectarian chanting and singing during the football matches for which they are responsible.

I am, however, deeply troubled by the news that three individuals have been charged under the Offensive Behaviour at Football and Threatening Communications (Scotland) Act. According to STV:

"Police Scotland said three men, aged 18, 19 and 23, were arrested for allegedly breaching the Offensive Behaviour at Football Scotland Act due to a pitch invasion."

Political Background

Those who have been following Scottish politics in the weeks following the election will know that this piece of legislation is, to put it kindly, very politically sensitive and controversial. All of the opposition parties, from the left-wing Greens through to the Conservatives, opposed its introduction when the SNP proposed it and all of them want either to repeal it completely or to repeal most of it and substantially amend parts of the "Threatening Communications" section.

It seems clear to me that the motivation for prosecuting people in relation to incursions onto the pitch, as described, is to manufacture  or at least buttress a justification against the repeal of this legislation. It is not clear whether the charged three are Hibs or Rangers fans, or both. In either case, if indeed the prosecutions relate to conduct associated with the pitch invasion and not, independently, with sectarian singing, then other laws would have been completely sufficient to prosecute anyone for criminal activity. If it is for violence, assault is a crime. If it was for goading opposition fans or setting off flares, public order offences exist.

If the prosecutions relate to the singing of sectarian songs, then it is misleading to suggest that these charges were in relation to the pitch invasion, or that Saturday's game, as opposed to any other, reiterates the need for the Act to stay.

Is this law necessary?

Police Scotland has always maintained that the existing laws it had to deal with crowd disorder, and specifically the singing of sectarian songs, were inadequate in order successfully to identify and prosecute the perpetrators of wrongdoing. In 2012, when their immediate predecessor forces supported this Act being forced through, this was and indeed it still is, a hugely dubious claim. In Scotland it has always been a crime to assault someone. Any violence at a football match, the Police have, and have always had, the authority to arrest and charge people.

There have always been a range of "public order" offences, the two best-known of which are "breach of the peace" and more recently section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. It is a crime to behave in such a way as is "severe enough enough to cause alarm to ordinary people and threaten serious disturbance to the community" or deliberately or recklessly to "behave in a threatening or abusive manner" that "would be likely to cause a reasonable person to suffer fear or alarm".

It is also a crime to "incite" someone to commit an act of violence, or to threaten public order in the manner described above. Goading people into creating unrest, or deliberately behaving in ways that make it difficult for the Police to maintain public order, are themselves capable of falling under conduct which is criminal. When you commit any of these crimes, and there is a sectarian element to the people you are attacking or disturbing or inciting, it is already possible for a court to consider this to be an "aggravating factor" and this can increase the maximum sentence you receive or be led by a prosecutor against any attempt at plea in mitigation when a judge is exercising discretion. The harsher sentencing of sectarian aggravation was introduced way back under Jack McConnell's tenure as First Minister.

"Breach of the peace is too broad"

One of the objections to the suggestion that existing laws were sufficient to deal with crowd trouble was that there is an "indeterminacy" to the law of breach of the peace. Its definition is very broad, owing in part to its origins in the common law of Scotland. There are perfectly valid arguments that it should be replaced completely with much more exacting public order offences, but significant progress has already been made in that direction. The aforementioned s38 is used far more often to deal with instances of public disorder involving intimidation and mob-like behaviour.

The definition of BOTP has also been construed more narrowly by the courts in more recent years in order to make sure that it is compatible especially with Articles 10 and 11 of the European Convention on Human Rights, for which the Human Rights Act provides domestic protection of our rights to freedom of expression and of assembly. This greater degree of specificity was something demanded in order to ensure that Scotland's criminal justice system was providing procedural fairness to people accused of criminal offences, to satisfy their Article 6 and 7 rights under the Convention in relation to having a fair hearing and not retrospectively to be criminalised.

The Police attempted to argue that the Offensive Behaviour (etc.) Act powers were necessary in order that they would be less reliant on breach of the peace. There is nothing wrong in principle with this argument as long as the offences that replace an old law are themselves less intrusive. Yet if anything, the 2012 Act is a greater affront to the basic principles of the rule of law and protection of fundamental human rights than what is now the scope of the crime of breach of the peace, at the very least in relation to maintaining order at football matches.

What does the Act change?

The Act creates a new statutory offence, when at or travelling to or from a regulated football match, of "expressing hatred of, or stirring up hatred against" an individual or group of individuals based on their actual or perceived membership of:

  • a religious group
  • a social or cultural group with a perceived religious affiliation; or
  • a group characterised by colour, race, nationality (including citizenship), ethnic or national origins, sexual orientation, transgender identity or disability.

It also makes it a crime to to engage in "threatening behaviour" or any behaviour "motivated by hatred" towards any of these groups or, most sweepingly of all, "any other behaviour" the reasonable person would "be likely to consider offensive".

There is an additional requirement that the conduct must be likely to cause public disorder, or would have been likely to cause public disorder but for the fact that "measures were in place to prevent public disorder" or that "persons likely to be incited to public disorder were not present or were not present in sufficient numbers."

What impact does that have?

It is very difficult to conceive of any instances in Scottish football where something like fan violence, singing designed to incite violence or public disorder would not have been a criminal offence before, especially under s38 of the Criminal Justice (etc.) Act 2010, that would now be a criminal offence as a result of this Act. Yet paradoxically, this attempt to give specificity to criminal activity has, if anything, broadened the scope of public order offences into the realms of things which anyone who believes strongly in human rights or freedom of expression should be deeply concerned.

Criminalising people condemning the thing you're condemning

This Act is very explicit in that it is attacking not "behaviour" or "violence" or "disorder". It is criminalising "expression" of certain kinds of views, when uttered in a hateful way. The fact that they have chosen the word "expression" should immediately set alarm-bells ringing for those who value human rights. The state's objection, and rationale for criminalising people under this statute, is that the content of what they are saying is or could be offensive to other people. Even if your concern is that certain kinds of offensive speech, especially sectarian speech, is hurtful and harmful to those who hear it, this Act does not constrain its ire to offensive songs of a sectarian nature. Indeed, one can "express hatred of" a group based on their belonging or perceived affiliation to a religious group, precisely because one is criticising the import of religion into football.

One such example of this was when a teenage Partick Thistle fan was convicted of singing an anti-sectarian song at a match at Firhill against Celtic. The song in question contains the lyrics:

"Hello, Hello, How do you do,
We hate the boys in Royal Blue
We hate the boys in Emerald Green
So **** your Pope and **** your Queen"

Anyone who understands the context of that song knows that it is sung as a critique of the import of religion and constitutional politics by Rangers and Celtic fans into Scottish football. Yet the chant, quite literally, "expresses hatred" towards individuals or a group of individuals based on a social group's perceived affiliation to a religious organisation. And the reasonable person could say that, but for the presence of Police and stewarding and segregation, singing a song like that could incite public disorder.

Indeed, at the next game between those two sides at Firhill, when Celtic won the game to clinch the league, the clandestine subversion of segregation in the Jackie Husband Stand led to some pretty unpleasant scenes in the home end. I saw normally fairly placid middle-aged men on the verge of an "actual physical fight" when the green and white scarves emerged from under coats and goading and gloating began. It is not hard to see how, if the above song was sung in that environment, it could have escalated the situation.

Yet it was obviously absurd that this was what the Act was criminalising. The Sheriff in that case, having found the solitary arrested perpetrator for singing this song out of a group of easily several hundred, refused to punish him and granted an absolute discharge and so prevented him from getting a criminal record. This isn't, it should be stressed, the same as finding him not guilty. What this guy did was, according to the law of the land, a crime.

This is not evidence of a working scheme

We should not have to rely on the goodwill or discretion of judges, prosecutors or the police to prevent sweeping state powers from being abused, especially where there is evidence that they are being used overzealously. These abortive prosecutions still have a significant impact on those who are dragged through the courts for several months fearing a criminal record.

Police Scotland also has form for using its powers to the point of abusive excess. It previously used stop and search powers so sweepingly that they went beyond the per capita search rates of the London Metropolitan Police and the New York Police Department, including searching children below the age of criminal responsibility. It was only after politicians, especially within the Liberal Democrats, had the courage and bloody-mindedness to keep raising this issue in public debate that the Scottish Parliament was able to exert pressure on the police to review its procedures. A 93% reduction in stop and searches since tells its own story. A law is a bad law if it criminalises conduct that its advocates do not believe should be criminal, or which gives the police broad powers without a clear and carefully defined purpose.

This is principally objectionable

The refrain of Evelyn Beatrice Hall that "I disapprove of what you say, but I will defend to the death your right to say it" is also important here. What the football authorities decide should be the terms and conditions of entry to their grounds and how people should have to conduct themselves there is ultimately their decision. But the right to freedom of expression that protects hateful and discriminatory and horrible opinions and beliefs that we utterly condemn in a progressive society is precisely the same right that lets us challenge the social attitudes that give rise to those beliefs and how people express them in the first place. 

An aspect to this crime is that you can be prosecuted under it even if, on the facts, your conduct was not actually likely to cause disorder. If the Police had implemented very effective segregation at a football match, or not enough people sung the song that the opposition fans could actually hear the damned thing, you can still be prosecuted. This reiterates that it is not the behaviour in its social context and the effect it has on other people that is being criminalised, but the very words uttered or gestures made that "express hatred". To mix two metaphors, if a "Teddy Bear" shits in the woods, and no one's there to hear it, does the Billy Boy make a sound?

Part of the reason this Act targets football fans is that there would be an absolute uproar if its provisions were to apply to the general public at large. Incursions into fundamental rights and freedoms are much more popular and readily accepted when most of the population think they won't conceivably apply to them, and that the kind of people who will get caught on some level are "trouble" and that they "deserve it". See also why the majority of people support capital punishment and depriving prisoners the right to vote.

Other problems

The Act does not stop there in terms of what we should principally object to. Even if its advocates are right and this expression is something we should criminalise, why does it only apply to football fans? The mere fact that football fans are more likely to engage in this conduct than the general population does not justify a law that specifically and only targets them. If the conduct is wrong, it should be wrong regardless of whether it takes place on the terraces or anywhere else.

This creates some absurd consequences. Imagine that I am on the Subway to Kelvinbridge, en-route to Firhill. I am "on a journey to" a regulated football match, so the Act applies to me. Imagine I meet a friend, who is a Thistle fan but is instead going into town. If we were to sing "Hello Hello" together, but the carriage is empty, I am committing a criminal offence and he is not. We may be arseholes for singing in an enclosed public place, but that isn't a justification for criminalising me but not him.

In a similar vein, it purports to criminalise Scottish resident football fans for actions undertaken when they attend football matches not even taking place in this country. If by some freak of magic Partick Thistle qualify for Europe and we draw Honved in the UEFA Cup, I might take a bus down to London and then fly out to Budapest for the away leg. I may be joined by a "Thistle Nomad" who lives in England, and we might board the same flight to Hungary. If we sing "Hello Hello" together on the plane, or at the football game, I have committed a criminal offence but he has not. And not a criminal offence pertinent to Hungary, but pertinent to Scotland! The powers arrogated by this Act are simultaneously extraordinary yet also inconsistent.

Broader Problem

What this Act does, by saying that the relevant expressions of hatred are uniquely criminal in a football setting, is create an image of "victimhood" among the football fans that actually are engaging in unpleasant sectarian singing. This victimhood complex is manifest when you look at the statements from Rangers in the last few days, where they convey the impression that entering the field of play in response to another team's fans doing so and provoking you is somehow a completely "natural" or "understandable" or "reasonable" response. That victimhood actually makes the potential for antagonism and retaliation and violence at football games worse, not better.

It lets them say that they are being treated differently from other people. That creates a horrendous distraction from efforts in education, and for that matter among the football governing bodies, to eradicate sectarianism in Scottish football. For too long those bodies have sought to oursource this problem as being "a matter for the police" when if the expression of these views at football matches is a problem (and I believe it is), it is one for which they and not the criminal law are responsible in terms of responding.

There is no evidence that this Act has reduced the preponderance of sectarian singing at football matches. There is no evidence that it has cut violent crime or domestic abuse, whether or not related to sectarianism. There is no evidence that it has reduced problems with public order. There is no evidence that it has made it easier for Police to arrest actual troublemakers with cause. If anything the opposite is true as we have seen the Act used as often with individual supporters of "provincial" clubs as we have with the two clubs, large groups of whose supporters are responsible for the vast majority of sectarian singing.

Ulterior Motives

Perhaps most worryingly, though, the fact that the Scottish Cup Final is now being used, by the police, by SNP politicians like John Mason, and by the Scottish Government as evidenced by Michael Matheson's statement. Specifically, it is being used to further political objectives before we have even established what wrongdoing occurred on Saturday and who the perpetrators were.

Politicised Police

The Police have very clearly chosen to prosecute under the Act rather than other criminal offences in order to make a point, and to try to suggest that it is a necessary and effective part of their armoury, despite the total absence of evidence to support this. It renews broader concerns about how much influence the SNP government is exerting over the single police force after its centralisation project, which make the police, including its most senior appointments, directly accountable to the Cabinet Secretary for Justice.

It may well be that Police Scotland has done this off their own backs, but the combined effect of the close relationship between them and the Scottish Government and their "at one" positions on the events at Hampden, does little for public trust that they are executing their functions apolitically. At a time when the future of the 2012 Act is under very public scrutiny, it surely behoves Police Scotland only to use the offence under the Act as an absolute last resort when other crimes of equal severity and sufficient specificity are not viable alternatives with which to charge people. To behave in this way totally undermines the principle of policing by consent and the separation of power we consciously impose between those who make the laws and those who enforce them.

Jumping to Conclusions on Alcohol

The SNP is also using this Cup Final as evidence why alcohol should not be allowed to be consumed at football grounds. This is despite the fact that there is no evidence to support the view that drunkenness was what caused the disorder and violence at Hampden and it was in any case a match at which no alcohol was available for consumption. In a classic turn, they have made generalisations about football matches and fans on the basis of the most intense and raucous of them, in order to discredit, without evidence or causal link, the arguments of their opponents. Advocates for a relaxation of the ban have called for a more flexible approach that properly involves the police in assessing the risk posed in each individual case, not the mass availability of alcohol at every match.

As we have seen with the upcoming European Championships match between England and Wales, alcohol restrictions can be imposed on "high profile" or high risk games. In Scotland, junior football does not prohibit the drinking in social clubs at grounds during matches, yet they often have higher attendances than third and fourth tier matches in the SPFL where alcohol is banned! England, Germany and Spain all have alcohol available for sale at top-flight games, the vast majority of which pass completely without incident. There are probably more drink-related arrests at T in the Park each year than there are outside the top-flight of Scottish football in an entire season.

The Scottish Government and Police Scotland clearly aren't interested in having a grown-up discussion about issues affecting Scottish football relating to violence, public order, safety and sectarianism. They want to maintain their existing power to control football fans at all costs, but in doing so totally undermine the calls within the game for the SFA and SPFL to get a grip and start forcing clubs with badly behaved fans to play games behind closed doors. Instead they want to treat football fans like children or animals, and their authoritarian instincts shine through at the first opportunity.

And if you treat people like animals, it isn't a surprise when they act like them.

Update 20:34 25.05.2016 - An addendum to this post in light of new information

Friday 6 May 2016

A Counterintuitive Liberal Opportunity

A superficial look at the Scottish Parliamentary election results would suggest that Scotland has divided along Nationalist and Unionist lines. Two unexpected and impressive victories by Willie Rennie in North East Fife and Alex Cole-Hamilton in Edinburgh Western have made us harder to dislodge and re-established a core for our party. It is tempting not just to attribute that to the marshalling of a tactical Unionist vote but to act accordingly.

This should not be a reason now to be cautious: to justify Unionist opposition for opposition's sake. The fact that the SNP have failed to win a majority offers us an unexpected but critical opportunity to maintain our relevance in Scottish politics. It makes the fact that the Greens have overtaken us in seats less of a problem than it otherwise would have been.

All of the talk will be about what deals the SNP can do with the Scottish Greens. But the split of the independence vote in this election represents a fundamental fault-line that is not so easily bridged as people might think. Especially on taxation and macroeconomic policy there is much that separates the SNP and the Greens. It doesn't seem plausible to me that John Swinney will swallow much of substance of the Patrick Harvie tax-plan, or his uncompromising approach to the energy sector.

It is also true that this minority SNP government will not be like the 2007 one. No longer can they rely on the Tories to waive through their budgets on the promise of a few more bobbies on the beat, like they could under Annabelle Goldie. The Tories positioning themselves as the main opposition, and the SNP having vilified cooperation with the Tories during the independence referendum, has burned those bridges.

Against that backdrop, the Liberal group of 5 MSPs, who maintain their status as an official "group" at Holyrood, can make a constructive, liberal and centrist, contribution to this Parliament. We can be the pragmatic reformists: the "better Union" power-brokers that the SNP can, and ultimately must, do business with.

This doesn't just make sense from a policy perspective. Sure, it can keep the SNP from their worst authoritarian excesses and stop self-defeating economic policies of the Malthusian left from holding Scotland back. But it makes sense from an electoral perspective too. It's time, much as it pains some Liberals, to try to heal the rift with liberal Nationalists after our immensely damaging sulk post 2007. If we do this, we can secure significant concessions on our core priorities, especially mental health and education.

This minority government also buys us time that we frankly did not expect to have to shore-up our response to the constitutional question. Holyrood's Committees, including its Devolution Committee, are no longer subject to majority SNP control. We can now work internally, with less timidity, on the detail of what is actually needed to deliver a federal Britain. We can afford to be bolder with our ideas now that a second independence referendum is unlikely to feature in this Holyrood parliamentary term. This will be the long-term route to the Liberal Democrats not just to dig-in like "cockroaches" as Tim Farron once put it, but actively to rebuild our Parliamentary presence into double-digits.

The Labour Party now faces an existential crisis in Scotland. If we seize the opportunity to work with the Scottish Government, we can make ourselves genuinely indispensable to the national debate, on both bread-and-butter and constitutional issues, and fill the gap they have vacated. If, on the other hand, we retreat into our bunker, the victories of Willie and Alex will have been phyrric.