Abstract
The record of the devolved Scottish National Party government in Edinburgh suggests that an independent Scotland might not be a beacon for freedom of expression, warns
As news broke of the Clutha helicopter crash, a 16-year old Scottish boy sent the almost obligatory offensive tweet that follows all tragic news events.
It was yet another contribution to the mountain of pointless trolling tweets that are sent every day, usually by young men. But then the police got involved.
The boy was arrested and charged under the recently enacted Offensive Behaviour at Football and Threatening Communications (Scotland) Act.
That was bad enough, you’d have thought. But Lord Advocate Frank Mulholland, Scotland’s chief legal officer, would disagree with you. According to the Herald newspaper, he advised procurators fiscal (public prosecutors) that “where it can be demonstrated an offence was motivated by a reaction to events at the Clutha, there will be a presumption in favour of criminal proceedings”.
The Herald welcomed the Lord Advocate’s advice, stating in an editorial: “The internet should be a place of free expression but it should not be a place that is free from the law. Those who do not realise that should be met with a policy of zero tolerance until the culture catches up with the law.”
Mulholland’s statement came just weeks after the Scottish National Party government issued its blueprint for an independent Scotland. As Scotsman columnist Alex Massie despairingly tweeted: “The new Scotland, don’t you know.”
The SNP document, Scotland’s Future, doesn’t really mention free speech. But recent legislation does not inspire a huge amount of confidence in an independent Scotland’s commitment to freedom.
Discussions about speech laws in Scotland have largely concerned the sectarian divide between Protestants and Catholics that has blighted the country.
Until the demotion of Rangers football club to Scotland’s lowest league in 2012, punishment for years of financial mismanagement, “Old Firm” matches between Rangers and their Glasgow rivals Celtic were pretty much the highlight of a top-flight domestic football season that had long since stopped being competitive. The clubs dwarfed the other teams in the Scottish Premier League, in terms of money, success and influence.
The Old Firm matches come with a history of antagonism. Celtic is seen as the team of immigrant Irish Catholics, while Rangers is the team of lowland Scots Protestants. Exacerbated by the sectarian conflict in Northern Ireland, the rivalry has long been a hotbed of bitterness and abuse. “The Famine Song” is an example of a song that Rangers fans would sing about Celtic fans. Referring to the Irish potato famine of the mid-19th century, which caused huge numbers of Irish people to leave the country (some finishing up in Glasgow), the song’s pretty uninspired lyrics played on various anti-Catholic tropes, dotted with the catchy refrain “The famine’s over, why don’t you go home?” In 2008, it gained notoriety when the Irish consulate in Glasgow formally complained about its use, and in 2009 a man was successfully prosecuted for singing it. But that was not the end of the issue.
ABOVE: Scotland’s First Minister and Scottish National Party (SNP) leader Alex Salmond smiles after delivering his keynote speech at the party’s annual conference in Perth, Scotland October 2012
Credit: David Moir/Reuters
Studies suggested that public order breaches and incidents of domestic violence increased sharply on the days of Old Firm matches. The solution was proposed that in order to dampen the tensions on matchdays, the “Up The ‘RA!”/”Fuck The Pope!” songs be criminalised.
The Offensive Behaviour at Football and Threatening Communications Act aimed to curb sectarian and abusive chanting at Old Firm games, where nominally Catholic, Irish republican Celtic fans would sing songs about praising the IRA, and nominally Protestant, Ulster loyalist Rangers fans would sing anti-Catholic and anti-Irish songs.
It is, by all accounts, a dreadful piece of legislation. Indeed, one sheriff (judge), dismissing a case, went so far in describing the act as to say: “Somehow the word mince comes to mind.”
But now this particular dog’s dinner is already being used beyond its original purpose, which was to attempt to quell match-day tensions. The fact that this is the first major piece of legislation affecting speech brought in under an SNP government (and an independent Scotland would, presumably, have an SNP government at least in its early years) does not bode well.
There have been other worrying signs of Scotland’s possible direction when it comes to future free-expression issues.
On 29 November 2012, the day Lord Justice Leveson announced the findings of his inquiry into the “culture, standards and ethics” of the press, Scotland’s first minister, Alex Salmond, announced that Scotland would have an expert group look into the report and make its own recommendations.
The report of the Expert Group on the Leveson Report in Scotland was published in March 2013. The group, led by Lord McCluskey, a former solicitor general, did not depart hugely from any of Lord Justice Leveson’s recommendations – except on one key, and quite alarming, point.
Leveson, in an admittedly muddled way, had attempted to retain voluntary status for a regulator, and differentiate between the traditional business of newspapers and other, newer, publishing models.
But McCluskey’s men were not convinced of this distinction. They stated: “There is no practical alternative to making it compulsory for all news-related publishers to be subject to the new system of regulation. It appears to us that the Leveson approach was predicated on the hope that most – or even all – significant news publishers would join the new system voluntarily. But on that approach, if significant news publishers declined to join there would be no mechanism to compel them to do so.”
Alarmingly, they went on to suggest that any Scottish regulator would have to include social media, a step too far for the first minister.
“Alex Salmond ain’t stupid, so thanked the commissioners for their hard work and filed it under ‘too hot to handle’,” David Torrance, author of an autobiography of Salmond, told Index.
He went on: “Last time I heard, Scottish government officials were simply suggesting tweaks to the UK Royal Charter, so it’s quite a climbdown from the original posture. But press regulation is fully devolved, so they can do what they want.”
So is there any hope at all for Scotland becoming a beacon of free speech? Gerry Hassan, author of Caledonian Dreaming: The Quest for a Different Scotland, suggested to Index that, freed from the constraints of Eurosceptic feeling in Westminster, Scotland could talk more positively about the right to free speech enshrined in the European Convention. But even then, he warned against the dangers of being seen to be doing something, as evidenced by the Offensive Behaviour at Football law.
The Offensive Behaviour at Football and Threatening Communications Act is already being used beyond its original purpose, which was to attempt to quell match-day tensions
So the question still looms: will an independent Scotland be a free Scotland?