Hard cases make bad law.
The Scottish government for the first time has used its overall majority to pass legislation against a largely united opposition of Labour, Lib Dem, Tories and Greens.
I believe that SNP’s new law will fail on two accounts.
Firstly it criminalises that which should be legal.
The freedom of speech argument has been repeatedly made in the run up to the bill being passed so there is no need for me to rehearse that once more.
Suffice to say it is fairly rudimentary for any criminal justice system to be able to discern the difference between an opinion which offends and an outburst which incites hatred and violence.
The second fatal flaw within the bill’s DNA has largely gone unreported in the mainstream media.
This “anti-bigotry bill” does not acknowledge the ethnic component in Scotland’s so-called “secret shame.”
The SNP policy wonks can’t claim the excuse of ignorance as there were enough of them at the “Changein Scotland” conference last month in Ullapool.
I told them that, born in the West of Scotland in the 1950s, the derogatory terms I grew up with for Catholics all had a distinct Hibernian edge to them.
Despite the presence of kids of Highland, Italian and Polish extraction at Lanarkshire school it was a specifically Irish badge of disdain that was attached to all Catholics.
Wherever our ancestors had originated we were all, in the eyes of the host community, “Fenians.”
There is a paradox in that Catholic scots has this Irish otherness imposed on them while at the same time anyone wishing to embrace an Irish heritage were told that they could make no such claim!
I know that when Irish politicians raised the issue of anti-Irish racism with Scottish officials they were answered with policy apropos “sectarianism.”
It was as if the denizens of Holyrood feared mentioning the “I” word and that the mere acknowledgement of Scotland’s largest ethnic group would somehow fatally undermine their nationalist project.
When Eoin Ryan MEP visited Scotland in November 2008 as a guest of Alan Smith MEP I was the only journalist to cover his visit and working launch at Glasgow City Chambers. He had raised the “Famine Song “issue on the floor of the European parliament and he had been invited over to see that everything was in fact hunky dory. When he spoke to the assembled group about “racism” they spoke of “sectarianism.”
I discussed this Derry/Londonderry issue with Eoin Ryan’s savvy press officer.
It was clear to us that these functionaries of the Scottish government were incapable of discussing the “Famine song” controversy as a manifestation of anti-irish racism.
Three years on the Scottish political elite are no further forward to be able to utter the words “anti-Irish racism.”
During the dying months of 2008 as the “Famine Song” controversy raged I saw correspondence between several opposition TDs and the Scottish authorities. All of the TDs stated that they were writing about the racism contained in the newest addition to the Rangers songbook and they would get a standard letter back about “anti-sectarianism.”
This is what Danny Boyle of the Harps Community Project refers to as the “Sectarian Framework” and refusal by official Scotland to recognise the irish as an ethnic group and ditties like the “Famine Song” as a manifestation of anti-Irish racism.
The new bill is a product of “Sectarian Framework” mind-set at Holyrood.
Many believe that the new law will be unworkable.
This law which purports to put manners on Planet Fitba is an object lesson in what happens when politicians get panicked in to doing something about a problem they had previously been deliberately ignoring.
After Jack McConnell’s well-meaning anti-sectarianism effort the incoming SNP government decided it wasn’t a priority.
The SNP position, intimated in many private briefings, was that droning on about sectarianism was “running Scotland down.”
Journalists were called out on their lack of patriotism.
One of the many ironies of this situation is that in “doing something about the problem” the SNP government are ignoring the real issue in Scotland.
Of course there is a problem in Scotland of anti-Catholic hatred, but it cannot be understood without also factoring in anti-Irish racism.
They are intertwined because of the history of large scale Irish immigration in Scotland at the height of the British Empire when Ireland was very much a colonial possession of the London Imperium.
Occupational parity was achieved by Catholics of Irish descent in Glasgow in 2001, in New York the same social progress was reached in 1901.
With large scale job discrimination finally over what is left in Scotland is the attitudinal discrimination arising out of those generations of the Irish being at the back of the bus.
One aspect of this is there remains little acknowledgement of the contribution of the Irish to the building of modern Scotland.
In the Scotland of many cultures somehow Paddy doesn’t fit in with the national narrative propagated by Salmond’s Blairite new SNP.
Some legal types believe that this new law may well be tested at the European Court of Human Rights and within that arena it will founder.
Scotland continues to have an issue around being comfortable with the Irish and Irishness among them, just as the De Valera generation in Ireland were not comfortable about sharing a space with people of British heritage.
My native City is full of young men who could be the next Jason Campbell driven to violence by acting on an ethnic hatred that has gestated there since the days of the empire.
This is not so much Scotland’s secret shame rather it is Caledonia’s inconvenient truth.
Throats are cut and statistics shredded.
The official denial means that the central issue has yet to be tackled.
Scotland has a new law, but it will not defuse the tribal time bomb on the Clyde.
This bad law will make more hard cases.