A CONTROVERSIAL new law designed to tackle bigotry and disorder in football will be powerless against anti-English racism and violence during this summer’s European Championships.
Fans of the Auld Enemy who are abused while watching games in Scotland will not be protected by the Offensive Behaviour at Football Act, which came into force earlier this year.
Instead, police responding to incidents will have to resort to breach of the peace common law, which was deemed insufficient to root sectarianism out of the Scottish game.
The Crown Office always insisted the new law was not just about tackling sectarianism. In his guidelines, issued in February, the Lord Advocate Frank Mulholland said: “The offence is not restricted to behaviour which is ‘sectarian’ but applies to all offensive behaviour related to football that is likely to lead to public disorder.”
However, the act, which he wrote, says the offence has to be attached to a game played in Scotland or involving a Scottish team abroad. That includes fans in the stadium, travelling to a match or watching it in a public place.
But it will not cover the European Championships, which Scotland is neither hosting nor competing in.
In recent years, major tournaments have brought a rise in anti-English sentiments, with attacks on people wearing England shirts in Scotland.
Eddie Bone, chairman of the Campaign for an English Parliament, believes the Offensive Behaviour at Football legislation represents a missed opportunity, as a law is needed to deal with anti-English bigotry. I think new laws are needed to tackle it,” he said.
“Either you produce a piece of legislation to deal with the problem or you don’t bother. I remember an incident in Scotland where a disabled man was dragged out of his car, because it had England flags on, and savagely beaten.
“It seems to me there is a genuine problem and if you have a problem you address it – you don’t just use a sticking plaster.”
Last week, Mulholland was clear that anti-English bigotry in pubs which leads to disorder during the European Championships will not be tolerated, even if it is not covered by the act.
In a message to fans, he said: “Enjoy football in the pub, but bear in mind the law is there to protect everyone.
“People watching and enjoying football in the pub have always got to bear that in mind.”
Opposition politicians said the loophole showed the law is flawed. Lewis Macdonald, Scottish Labour justice spokesman, said: “It exposes to ridicule the nature of the legislation.
“If you go into a pub and it is showing Scotland playing in Paris, for example, and fans in the pub indulge in inappropriate behaviour, then that is covered.
“But if you go in the same pub the next day, and it’s England-Germany, and the same fans indulge in the same behaviour, then it is not. It should be treated in the same way.
“If the SNP has failed to make that the case then it is an even poorer piece of legislation than we thought.
“The anomaly that it does not apply to the same people in the same circumstances, because a different team is playing, is extraordinary.”
Scottish Conservatives justice spokesman David McLetchie added: “I think the legislation is nonsense and it comes as no surprise to me that it should contain such loopholes.
“But I think if we had to have this legislation, then it should cover all types of bigotry at football.”
During the 2006 World Cup there was a spate of anti-English racial attacks by Scots.
The most shocking was on a seven-year-old boy wearing an England shirt, who was punched in the head in an Edinburgh park, by a man who shouted: “This is Scotland, not f***ing England”, before running off.
In 2009, Lucy Newman, 22, who lived in Cheltenham as a child, was assaulted by a male stranger, who said “Get back to England”, before hitting her in the face. She fell and landed so hard that she fractured her left cheekbone when hitting the pavement.
During the last World Cup, police asked Aberdeen kilt-maker firm Slanj to remove “Anyone But England” T-shirts from the shop window due to their “potential to cause disturbance”.
Record chain HMV also removed items with the initials “ABE” from window displays in its Scottish stores.
The Scottish Liberal Democrats argued that common law should be sufficient to deal with all types of football hatred. Justice spokeswoman Alison McInnes said: “We condemn this kind of behaviour, regardless of what team is playing and where.
“People can rest assured that existing legislation fully provides for any act of aggression or violence in relation to football.”
A Scottish Government spokesman said: “We want everyone to enjoy watching football in a safe and friendly environment, but if trouble arises, anyone engaging in threatening or offensive behaviour will be dealt with by the full force of the law – whoever the perpetrators and whoever the victims.”
“With regard to the upcoming European Football Championships, although the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 does not apply to football matches which do not involve Scottish teams, there are other criminal provisions which can be utilised to cover disorderly conduct in licensed premises associated with the forthcoming European Championships.”
“COPFS has a zero-tolerance approach to football related violence and disorder and there is a strong presumption in favour of prosecution wherever there is sufficient evidence.”