By the end of this week, the Offensive Behaviour at Football and Threatening Communications Act (Scotland) 2012 will have been in force for one year:
One year on, I don’t think we are any closer to fully understanding how to apply this legislation properly. It was a hastily written piece of work, popularly referred to in the media as the ‘anti-bigotry law’, or the ‘anti-sectarian law’.
It hinges on a definition of ‘offensive’ which seems to imply that certain forms of behaviour at football matches are illegal if they cause a certain type of response in others. It has largely been about singing certain songs, or versions of these songs, that provoke an angry reaction because of their inflammatory, racist or sectarian content.
When trying to decide whether a piece of behaviour is offensive, an obvious question to ask is, ‘offensive to whom?’ and the most likely answer is, ‘to any individual belonging to a religious, social or cultural group that feels annoyed, angered, upset or intimidated by that behaviour’.
But relying on a shared emotional response as the criterion by which we judge certain displays of behaviour as offensive is tricky. It not only renders our definition too subjective, it also puts too much weight on a bundle of loosely structured emotions whose inherent volatility ought to mark them out as unreliable markers of definitional consistency in the first place.
The problem is exacerbated by the recognition that the types of emotional response in question are typically learned – but in an entirely damaging sense through involuntary exposure to a negative form of breeding from a young age and into adult life. It is from that perspective that much of what is regarded as offensive tends to be judged by the man in the street.
I think there is a general consensus among many people that the Act was introduced as a desperate measure to deal with an ugly spike in activity within the context of an embarrassing and shameful socio-cultural problem in Scotland. This ugly spike was still too raw in the public consciousness when the Bill was originally shaped, and that was a mistake.
It produced a situation in which the immediate response in some quarters to almost any form of behaviour, even loosely perceived to have a connection with a certain type of religious outlook or ethnicity, has been one of anger and outrage. The upshot is that too many different forms of behaviour have been popularly tarred with the same brush through a distortion in our understanding of what ought to count as offensive.
And from time to time it would appear that even those in positions of authority on match days have done little to prevent the view that what counts as offensive hinges on the misconception that if certain types of behaviour cause upset or anger, simply because they contain references to a particular race, religion or a political agenda, then they must be illegal.
In fairness, the Act itself does appear to recognise that being offensive isn’t simply about individuals feeling upset or angered that the group they belong to has been challenged, parodied or criticised; the key seems to be that the challenge must be made in a form that expresses or arouses hatred and is likely to lead to public disorder.
But surely expressing or arousing hatred cannot be sufficient either, when it is so easy for one group of individuals to feel hatred towards another, just because they are there and making a noise about everything that is important to them? It is all too subjective.
Clearly, there has to be more to it than that. I think it must also come down to whether belonging to a particular group has been challenged or criticised in a way that is contrary to that group’s integrity, or contrary to historical fact.
This would never constitute a definition in its own right, of course, but it would help sharpen up our understanding of what is permissible and what isn’t in a more objective context, provided we can be historically accurate in our assessment!
And whilst this would legally permit certain forms of behaviour to continue, and certain types of song to be sung at football matches, the appropriateness of doing so must nonetheless be assessed against the wishes and expectations of the club they represent – that should always be a key consideration.
It is fairly obvious to me that not every song or action that arouses anger, hatred or annoyance in ill-informed minds is in fact offensive. It is too easy to blame the wrong people here. Not everyone will think the same way about this, but perhaps it is the irrational response that ought to be criminalised in these cases, rather than the initial behaviour.