Football matters run deep at first minister's questions

Alex Salmond is a Jambo. Iain Gray is a Hibee. Alex Salmond leads the SNP and is first minister. Iain Gray (currently) leads Labour at Holyrood and had sought to be first minister.

It is to be expected, then, that the two will disagree from time to time, not least over matters pertaining to football.

Despite that intrinsic division, I would not impute questionable motives to either man in the controversy over proposed anti-sectarian legislation.

Inasmuch as such things are possible in partisan politics, I believe that each is genuinely pursuing a course in the belief that it is merited by evidence and by elevated considerations of the public weal rather than low calculations of advantage.

Let us remind ourselves what is at stake. The Offensive Behaviour at Football Bill seeks to criminalise "offensive or threatening behaviour which would be liable to incite public disorder" at a football match, on the way to the ground or in a pub where a game is being shown.

It also criminalises "threatening communications" intended to stir up religious hatred, such as are occasionally witnessed on the internet.

Each offence would carry maximum penalties of five years imprisonment plus an unlimited fine on indictment or 12 months gaol plus a fine of up to £10k in summary cases.

The attempt to legislate started with broad consensus - although, it now appears with the benefit of hindsight, that that was little more than an acceptance that "something must be done".

That consensus has now vanished.

Mr Gray made clear in questions to the first minister that his party cannot support the bill as it stands.

That disquiet extends to other opposition parties - as will be made clear when the justice committee's report on the bill emerges this afternoon.

You will hear it said around Holyrood that Labour's position is partly motivated by electoral reasons, pursuing an apparent backlash bandwagon.

You will hear it said around Holyrood (in different quarters) that the SNP position is motivated by a private acknowledgement that they were, initially, relatively slack on sectarianism by comparison with their Labour predecessor in office.

I say again that I believe there are more elevated considerations on both sides.

Certainly, the exchanges in the chamber were heated but also pointed. Mr Gray argued that the measure as it stands lacked clarity. Mr Salmond said one could either be part of the solution or part of the problem.

Perhaps we might look behind these exchanges - valuable though they were and plainly part of legitimate parliamentary debate.

Mr Gray has two fundamental objections.

He believes that evidence given to the committee has failed to specify the scope of the bill, that it fails to make plain which songs sung in which circumstances at football matches would attract prosecution and, perhaps, sever penalties. He argues that existing law can cope in many circumstances.

He believes further that, strategically, such uncertainty may give succour and strength to those who persist in sectarian attitudes, encouraging them to see themselves as somehow persecuted and hence justified in their behaviour.

And what does he want? He wants the bill as it stands to be withdrawn, opening up a new attempt to find a consensual approach through different legislation in this field.

And Mr Salmond?

He believes that existing law such as breach of the peace has withered in practice to the point where it is ineffective in key cases.

Image copyright Reuters
Image caption The bill aims to tackle behaviour the leads to public disorder

In particular, he believes that juries need to be told precisely what crime has been committed and what sanction is available. He notes that point is accepted - and endorsed - by police and prosecuting authorities.

He believes further that Scotland faces a fundamental choice. Is it tolerable in contemporary Scotland for football fans to belt out The Sash or songs glorifying the IRA?

If not - and he concludes definitely not - then Scotland, collectively, should signal that fact with specific, targeted legislation.

Could the bill, then, be altered? Mr Salmond says, with some justification, that he looks forward to opposition parties displaying their erudite solutions to the problem through suitable amendments.

Could there be other changes? I believe ministers are relaxed about the concept of what might be called a Voltaire clause, specifying a right to freedom of expression in the bill - although such matters are never entirely limitless. (Think defamation, contempt of court, race hatred etc)

I believe, further, that ministers are relaxed about the concept that the bill might be subject to a pre-scheduled review.

Other matters. The anti-sectarian charity Nil by Mouth has expressed doubts about the bill.

Mr Salmond noted that their spokesman used to work for a (defeated) Labour MSP.

He provoked fury from the Labour benches for this remark. I suspect that, on reflection, Mr Salmond wishes he had not mentioned that particular point, in passing.

Offence sources

Caused a distraction from his core argument. However, he went on to note that the charity arose from the death of a young man in a sectarian killing and that the young man's father backed the bill.

It is perhaps more telling to reflect that, to general puzzlement, Nil by Mouth were not asked to give evidence to the Holyrood committee.

Perhaps they would have been less critical of the process had they been involved in that process.

And, tomorrow, Mr Salmond will meet the Rt Rev Philip Tartaglia, the Roman Catholic Bishop of Paisley, who has also expressed disquiet as to whether the bill targets the authentic root and substance of sectarianism in Scotland.

The first minister believes that he can assuage his clerical critic. For example, one concern of the bishop has been the promised publication of a full breakdown of the source of sectarian offences in Scotland.

Mr Salmond will say that such a document will indeed be published, in November, once all the detailed data has been scrutinised and categorised.

To sum up, Mr Gray insists that he is not opposed to legislation per se - but that support for the concept of legislation, in general terms, does not equate to supporting an individual bill which may be flawed.

I believe that Mr Salmond is quite determined that his measure, perhaps with suitable amendments, should carry.

In facing down the bigots, as he sees it, he is prepared to face down political opponents.