The transfer of English legislation to the Scottish context: Lessons from the implementation of the Football Banning Order in Scotland
| Author | Matt Hopkins,Niall Hamilton-Smith |
| DOI | 10.1177/1748895812447083 |
| Published date | 01 July 2013 |
| Date | 01 July 2013 |
| Subject Matter | Articles |
Criminology & Criminal Justice
13(3) 279 –297
© The Author(s) 2012
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DOI: 10.1177/1748895812447083
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The transfer of English
legislation to the Scottish
context: Lessons from the
implementation of the Football
Banning Order in Scotland
Niall Hamilton-Smith
University of Stirling, UK
Matt Hopkins
University of Leicester, UK
Abstract
This article compares the enactment of Football Banning Order legislation in Scotland to that in
England and Wales. Football Banning Orders evolved in England and Wales through the 1990s
into a particular form of hybrid legislation, culminating in the Football (Disorder) Act of 2000. The
legislation was not introduced into Scotland until the Police, Public Order and Criminal Justice
(Scotland) Bill in 2006. By 2010, it appeared that orders were being under-utilized in Scotland.
This raised questions as to whether there was less need for orders within the context of Scottish
football, whether the legislation was either being poorly implemented or if imposing orders was
being actively resisted. In focusing primarily on the utilization of the legislation by police on the
ground, this article questions whether the football or policing contexts are markedly different in
the two jurisdictions. We argue that one of the dominant explanations for the comparatively low
use of orders in Scotland relates not to the content or interpretation of the particular legislation
involved, but to broader differences in how criminal justice legislation is typically enacted.
Keywords
Football Banning Orders, policy implementation, sectarianism
Corresponding author:
Matt Hopkins, Department of Criminology, University of Leicester, The Friars, 154 Upper New Walk,
Leicester, LE1 7QA, UK.
Email: mh330@le.ac.uk
13310.1177/1748895812447083Hamilton-Smith and HopkinsCriminology & Criminal Justice
2012
Article
280 Criminology & Criminal Justice 13(3)
Introduction
Football Banning Orders (FBOs) are court-issued, preventative orders that impose a
number of restrictive conditions on an individual who has (a) previously been involved
in football-related disorder and (b) is likely to be involved in disorder in the future (Moss,
2009). At their simplest, FBOs aim to prevent future disorder by banning individuals
from attending specified matches for a set period of time, though they also belong to a
broader family of legislative innovations that emerged in the UK in the late 1990s (Moss,
2009; Zedner, 2009). Anti-Social Behaviour Orders (ASBOs) represent the most high
profile of such innovations, which primarily aim to prevent specific populations from
engaging in particular types of behaviours (see Squires, 2008). These preventative orders
are commonly labelled as ‘hybrid’ in that they can be issued on top of a sentence result-
ing from a criminal conviction, or they can be issued through a civil application process,
where the qualifying misbehaviour need not be established with a criminal standard of
proof but only with the lesser civil standard (e.g. on the balance of probabilities) (Moss,
2009). However, breach of such orders, even when they are issued as part of a civil pro-
cess, can result in a criminal conviction.
In their current form FBOs were introduced into England and Wales in 2000, but were
not extended to Scotland until the Police, Public Order and Criminal Justice (Scotland)
Act of 2006. As Nixon et al. (2010) note this type of policy transfer has become more
common as legislators are keen to draw upon lessons and good practice from other juris-
dictions. With the establishment of a devolved Scottish Parliament at Holyrood in 1999
– and the ceding of limited legislative and policy making powers from Westminster to
Holyrood – the variety of ways in which policy transfer can occur between England and
Scotland have increased in number and complexity. Legislation can still be effectively
imposed by Westminster in some areas, while in others legislation may be copied or
significantly adapted by Holyrood (Keating et al., 2003). Even where legislation is trans-
ferred to Scotland with similar drafting and shared objectives, the application of that
legislation in a Scottish context can lead to significant deviation or innovation. For
instance, ASBOs, a similar type of hybrid order to FBOs, were introduced across the UK
in the 1998 Crime and Disorder Act. However, in Scotland ASBOs were both resisted
and significantly subverted as practitioners steered the policy agenda away from the
imposition of punitive orders towards other interventions focusing more on the root
causes of anti-social behaviour (Nixon et al., 2010)
No previous research has examined the transfer of the FBO legislation from the
English to the Scottish context. This is somewhat surprising for two principal reasons.
First, the composition of Scottish football is different to English football. In total, 92
professional clubs operate in England and Wales. They play in four divisions (The
Premiership, Championship, League One and League Two) and in 2010–2011, 30 per
cent (n = 28) of all English teams had average attendances of over 20,000. Although, 42
clubs operate in Scotland across four divisions,1 (The Scottish Premier League (SPL),
Leagues One, Two and Three) the professional game is dominated by Rangers and Celtic,
whose average attendances are over three times that of other ‘larger’ Scottish teams.2
Second, the FBO was implemented in England and Wales to tackle the persistent prob-
lem of violence involving English hooligans abroad (Stott and Pearson, 2006), whereas
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