OBFA vote and High Court rulings demonstrate limits of modern democracy


Commentary by Derek Bateman

It’s the struggle between people and power…the state versus the citizen. It could be the courts or the politicians, no matter. It’s authority putting up the halt sign to the voters. Who’s in charge – the people who pay for it all and in whose name it’s carried out, or the ones the people employ to administer it?

There’s little doubt after the last few days that the answer is – Power is in charge. The state – the elite – is the winner and the people come second.

Derek Bateman
Derek Bateman

In Scotland the law criminalising offensive behaviour associated with football – a scourge which repels most of the country and gives rise to national shame – is voted down by an assortment of principled politicians and MSP chancers who magically agree with each other, every one, across all parties from landed Tory gentry (‘Play up, you Aberdonians. Put in the pill in the onion bag’) and football-ambivalent Greens to Labour opportunists. The elected elite contrived a coalition in an attempt to destroy a serious legal initiative to target the most insidious and ugly manifestation of tribal football behaviour in Scotland.

*In London the High Court decides on one section of the State, the Executive, against another, Parliament, and comes down on the side of MPs. They must have the right to vote on Article 50 and not leave it in the hands of unbridled ministerial authority, throwing the whole Brexit issue into the air (and possibly postponing it indefinitely). This, of course after a Leave vote in the EU referendum whose supporters now feel disenfranchised, indeed doubly so since many voted out of political estrangement. Well, I suppose it’s what we pay them for…

It demonstrates the limits of democracy because I haven’t the least doubt that a venture on to the streets of your town or city today would reveal a widespread public loathing for football bigotry – indeed, from some, for football itself. I know it’s a long time since the Fife riot squad were called out to break up riots at Bayview (after East Fife 4 – Forfar 5, what a thriller) but try a trip on the Glasgow subway when Rangers are at home. Think how the Scottish Cup Final looked to viewers in other countries with grown men losing all dignity. I used to spend time in a bar frequented by both sides of the Old Firm divide where, in a group who understood the unspoken limits, there was a masterclass in Glasgow banter. I loved it. But what’s the reality on the terracing? I could barely believe the blow-up effigies hanging from the Parkhead stands. No wonder one side hates the other. For the uncommitted viewer, and, interestingly, even some of Rangers/Celtic adherents, it is a cause of revulsion and embarrassment.


Arguments about bad law and dodgy precedents don’t convince a Scottish public who just wish the whole lot would disappear. They see little changing despite all the effort of the clubs themselves. Even in their greatest hour – winning European trophies – the fans of both Rangers and Celtic couldn’t contain themselves and invaded the pitch. That isn’t sectarianism of course but it does explain why there is such public contempt…they even ruin their own success. Wherever (big time) football goes, trouble seems to follow. That’s why any attempt to curtail its worst excesses is popular. The public is sick of it. The SNP at least came up with a plan and gave the police powers and, I suggest, that’s what the majority are happy with. Watching the police lamely escorting bands of what they regard as noisy thugs belting out bigoted chants and songs infuriates the public.

Most will agree that… ‘as a country, we have come a long way from the overt sectarianism of the 19th and 20th centuries, but sectarianism still scars Scotland. Tackling it is not a political choice – it is a public duty.’ That’s Jack McConnell in 2011, the year before OBFA came in. He complained that the initiative to fight sectarianism had stalled after 2007 (SNP bad) and that no single piece of legislation can stop it. But he wanted action and the SNP provided it.

However…however. It ain’t good law. And that’s a problem. As far as the voters are concerned any rough treatment of hateful sectarian oafs wearing scarves is ok by them. But that isn’t how it works. Because the public don’t care about the niceties and wish a plague on all their houses just isn’t a good enough reason to create laws that are difficult to implement and that generate random outcomes by criminalising behavior that would be acceptable away from a football environment. I don’t think it’s as clear-cut as some would argue – for example how can you sing Flower of Scotland about fighting England and not the Roll of Honour? – because I think to be a crime there has to be intent. When we sing Flower of Scotland there can’t be many who imagine it’s urging an attack on English supporters. But when the Billy Boys is sung, is it in the spirit of sport or is it out of hatred for opponents from a different cultural tradition? What do you think the law’s mythical reasonable person would say? But this time the elite is right – it’s time to call a halt and honour the vote – at the very least by amendment if not abolition.


I think in any case before the vote there was a case for a comprehensive review of the legislation because you really can’t have sheriffs questioning law from the bench. And I have previously argued that a committee has to be assigned the role of reviewing and revising legislation after it is voted through. It should not have any power to amend the intent of the law but should check it for potential holes and efficacy in the drafting and then follow its implementation to guage how it’s working.

Now I have no doubt that much of this is being presented as a keen interest in civil rights – always a Tory hallmark, of course – while it is in fact a blatant way of exploiting the lack of an SNP majority – the same majority us closed-minded diehards would have preferred.

We’re now paying the price of votes bleeding away to the Greens who, in demonstrating they won’t be SNP puppets, are instead demonstrating they are the new best pals of the Tories. It’s true repeal was in their manifesto but that wasn’t exactly what they majored on when punting for SNP second preferences. They focused on land reform and fracking but hey, it’s up to the voters. This is a trend that will continue throughout the parliament as we witness the bold new parliament ‘keeping the SNP radical’. It should win over new voters to the Greens who admire their work in parliament but the other side of the equation is how many SNP 2nd voters they lose at the same time. I suspect right now that is a one-way movement. When the Greens said voting for them would increase pro-indy MSPs, they didn’t add they would undermine the SNP government on just about everything else.


But why am I complaining…I’d like to see the SNP move to amend the OBFA law in a way that convinces the majority of MSPs, although it will be revealing to see just how many are actually interested in achieving that when their only plan was repeal and rejoice.

In accepting the need to review and revise, I find it troubling that the new cross-party opposition could conspire a combined vote but not a solution. If there was genuine concern to solve the sectarian problem (as if) couldn’t they have convened some meetings and agreed their own amendments which could have been presented simultaneously? Or is it the case they actually don’t agree with each other? Or haven’t bothered with alternatives, when the objective was always just to sink the Nats’ law? I know Patrick is planning some proposals sometime but currently we have a vacuum in which the bigots are claiming their victory. They can sing what they want, in their mind, because they’ll see the Act is going. It unhands the police and dismays the wider public impatient that so much concern is shown to thugs who show none to others. They want to know what the replacement is. Wouldn’t we all.

Well, the SNP were keen to act on sectarianism but should have listened.

The opposition has undermined the law without offering any replacement.

Meanwhile the hatred will keep spilling out, disgusting the Scots and shaming the nation.

However, I assume we can look forward to some incisive, detailed human rights-compliant outline legislation from the parliament’s new rainbow coalition. But will it be ready before the Hogmanay Old Firm match?

*This is the right decision. An advisory referendum does not bestow all-consuming powers on an unelected leader on a matter of vital national interest.