Legal definition of sectarianism working group: final report

Section 2: Background to the Advisory Group on Tackling Sectarianism

The Scottish Government has been actively committed to tackling sectarianism for over a decade. Although the advantages and disadvantages of defining such a complex and contested issue as sectarianism in law have been debated on a number of occasions, no clear conclusion on establishing a legal definition has ever been reached.

The most recent work of the independent Advisory Group on Tackling Sectarianism in Scotland came up with a descriptive working definition, and engaged on consultation on this issue, but it is important to note that this was not focussed on legal application. In their final report of April 2015 – “Tackling Sectarianism and its Consequences in Scotland” – the Advisory Group included the following working definition designed as an attempt to capture the full scope of sectarianism as it now exists:

Sectarianism in Scotland is a mixture of perceptions, attitudes, actions, and structures that involves overlooking, excluding, discriminating against or being abusive or violent towards others on the basis of their perceived Christian denominational background. This perception is always mixed with other factors such as, but not confined to, politics, football allegiance and national identity.^[1]

It was always recognised that this was a social definition to be tested through a range of grass-roots projects aimed at tackling sectarianism in different communities. Over the last three years, YouthLink Scotland has been consulting on this definition through the Action on Sectarianism (AoS) website and their various social media accounts. AoS asked partners, other funded projects and users of their website to provide them with feedback on what they liked and didn’t like about the definition and to advise on improvements which could be made.

There were many positive responses. However, some of the most helpful came from those who thought that the definition could be improved, including comments on both complexity and content, and on what was missing from the definition. These responses are summarised below:

Complexity

• It is far too wide-reaching for practical application.
• The definition is significantly over-complicated, and convoluted.
• It is too long.
• It has too much jargon.
• It is a mixture of elements that are unhelpful.
• Academics or sociologists may understand this, but most people in communities will not.
• Sectarianism can also exist without reference to politics, football or nationality and this is not clear from the definition

What should be included and what is missing?

• More emphasis needs to be placed on the role of identity.
• Support for terrorist groups should be included.
• Anti-Irish racism should be included.
• It should focus on discrimination and violence.
• Organised segregation of groups based on religion (practicing or perceived) should be included.
• The issue stems from racism/xenophobia as a result of Irish immigration and this should be clearer.
• It should not single out any specific denomination (i.e. Christianity).

While there was a particular welcome for the fact that sectarianism had been acknowledged as an issue for legitimate public discussion and consideration, it was clear that the definition provided as the basis for general debate by the Advisory Group could not simply be passed into law.

The issue was most recently raised through the evidence-gathering sessions held by the Scottish Parliament’s Justice Committee while considering the Offensive Behaviour at Football and Threatening Communications (Repeal) (Scotland) Bill, which was subsequently passed by parliament and came into effect in April 2018. The Committee heard from a range of sources of a need to establish a legal definition of the term sectarianism to aid application of the law by police and prosecutors, and on 18 January 2018 recommended that:

The Committee considers it important that the Scottish Government gives consideration to introducing a definition of sectarianism in Scots Law, which – whether or not the 2012 Act^[2] is repealed – would help any future parliaments and governments in taking forward laws to tackle sectarianism^[3].

In response, the Scottish Government established this Working Group to provide some evidence which could be used as the basis for finding an answer to the Justice Committee’s recommendation with the remit:

To consider and weigh up the pros and cons of establishing a legal definition of “sectarianism” in Scots Law. Report the findings of these considerations to Scottish Ministers making clear recommendations on whether such a definition should be introduced and, if so, propose the text of such a definition.

The content of this report is the summary of this work. The central task of this Working Group was to provide non-binding advice to the Scottish Government as a basis for undertaking a wider consultation on the question of whether a legal definition of sectarianism can and should be established in Scots Law. We look forward to seeing how the consultation develops.