Two weeks ago saw the Scottish Parliament vote in favour of repealing the much-criticised Offensive Behaviour at Football and Threatening Communications (S) Act 2012. While the vote is merely advisory, and for now the Scottish Government have undertaken to review the legislation, it creates an interesting new category of 'zombie' legislation. It has not yet been repealed, but neither does it have the support of parliament. It is not yet dead, but not quite alive - the living dead.
But this raises a significant issue. Will it be legitimate for the police to continue to enforce the legislation or for the Crown Office to continue bring prosecutions? Is it legitimate for legislation that has been formally condemned in this way to be used after Parliament has clearly indicated that it is no longer has the support of its members? So far, I can see no indication on the websites of either Police Scotland or the Crown Office that there will be any change in policy.
The vote has been seen as an example of political point scoring, but the underlying criticism is that the offences in the Act are poorly drafted and that the legislation is illiberal - and I have written before about these shortcomings. Until reassurances have been offered on these underlying issues it must be inappropriate to use the Act. This is not to approve sectarianism, but to recognise that there are real concerns about the scope of the offences which were not properly addressed when the Act was passed.
While it may formally remain the law, there is no question that it now completely lacks any legitimacy, whatever its supporters in government might say. It is truly zombie legislation.
This article originally featured on Professor Farmer's 'Oblique Intention' blog.
