This article originally appeared on VICE Sports UK.
Celtic and Rangers faced each other on New Year's Eve in a match that came with all the usual trimmings: unsavoury chanting, increased police presence, flying tackles, boos punctuated by phlegmy insults and, of course, sectarianism.
But that final point can be difficult to define. The Scottish government have tried, introducing the Offensive Behaviour at Football Act (OFBA) in 2012 to combat sectarianism. Five years later, it is deemed one of the most controversial pieces of legalisation passed by the devolved government at Holyrood. Steps are now being taken to scrap it.
The OFBA was designed to criminalise offensive and threatening conduct, including sectarian behaviour, related to football. But it soon came under fire from clubs, fans and politicians, with Conservative Member of the Scottish Parliament (MSP) Murdo Fraser among its harshest critics. "This is bad law," Fraser has declared. "It has united football fans, commentators, lawyers and the judiciary in opposition – it is unworkable and creates tensions between fans and police." Meanwhile, Labour MSP James Kelly believes the act has "damaged trust between football fans and the police without doing anything to combat sectarianism and intolerance".
Justice Secretary Michael Mathieson urged MSPs to stick with the law, but nonetheless a vote in November saw opposition parties unite in favour of repealing the OFBA by the narrowest of majorities, 64 votes to 63. This wasn't a binding vote, but it was a significant defeat for the Scottish National Party (SNP), who introduced and championed the bill. In fact, it was an outcome that transcended football.
The SNP are very much the party in power in Scotland right now. Though they lost their majority at last year's Holyrood election, the party still hold nearly half the seats in a parliament formed by a system intended to prevent a single party from dominating. Defeats, other than the one that saw them lose the 2014 independence referendum, have been rare since they first came to power in 2007.
This was one, however; certainly not a heavy loss, but a loss nonetheless. Football has inadvertently brought the kind of opposition to the SNP that Holyrood has struggled to muster in recent times. It could be argued that its fans have in fact become the first effective opposition to the SNP in years, particularly with Scottish Labour floundering badly in the Jeremy Corbyn-led, post-independence referendum age.
"I don't think it's cost [the SNP] much in the way of votes," says Alex Massie, Scotland editor of The Spectator, who has written extensively about the OFBA and what he sees as its fundamental flaws. "What it has done is confirm some of the SNP's opponents in their judgment of the [party] as a sort of controlling, illiberal, centralising kind of government which doesn't actually have much time or respect for civil liberties or the individual. But people who are inclined to think that of the SNP thought that before the Offensive Behaviour at Football Act came in. This has just hardened their opposition to the SNP and united some of those opponents."
It might have been opportunistic political point-scoring, but the Tories, Labour, Liberal Democrats and Greens have all come together on this issue in a way they have done on little else. The symbolism of this defeat for the SNP is arguably more significant than the defeat itself. It sets a precedent.
Though opposition to the OFBA has now reached Holyrood, the movement that pushed it there has been very much fan-led. Admittedly, some perspective is needed: football supporters aren't about to bring down the government, for all their protesting and rhetoric. Nevertheless, the pushback the SNP have received from this demographic – a sizeable one given that more than one million fans pushed through the turnstiles at Scottish Premiership grounds in 2016 – is certainly worth noting in the wider sense.
As for the bill itself, its future has never been less certain. Part of the problem is the way it is defined. Nobody denies that sectarianism is an important issue that Scottish society must address, with the greatest manifestation of the problem found in the country's football grounds. But what constitutes sectarianism? And is public understanding of that definition sufficiently clear?
"Government ministers constantly say, 'but look, it's actually quite popular,' and that's probably true," says Massie. "But that's just based on them asking, 'do you think sectarianism is a bad thing?' People obviously think that it is. 'Well, here's a government bill that is designed to tackle sectarianism – do you support it?' 'Oh yeah, of course I do!' So you see, the game is rigged in that sense."
Indeed, some studies put public opinion in favour of the bill, although Fans Against Criminalisation (FAC) – a group whose pressure has been instrumental in the repealing of the OFBA – cite different figures altogether.
"We think that following the public consultation which demonstrated that over 71% of respondents support the bill to repeal the OBA, and after Parliament voted to support a motion to that effect, it is now time for the SNP to commit to no longer opposing this [repeal] bill," says Paul Quigley of FAC.
"There's absolutely no evidence to suggest it has reduced sectarianism, which is hardly surprising," adds Massie. "If you are a sectarian bigot that's because of the way you think and a government bill isn't going to change your mind. It's a bad piece of legalisation and people now accept that. My objection to it has always been the illiberalism of it restricting freedom of speech; that to me the most serious aspect of it."
Between 2014 and 2015 (the last available figures) 48% of those taken to court under the OFBA were found not guilty. So, while the bill might have allowed police more freedom to make arrests for what they deem to be offensive behaviour at a football match, this doesn't quite line up with what the courts rule to be against the law. In that respect, there's a critical disconnect between the two.
Brought in after a so-called 'shame game' between Celtic and Rangers, during which 34 arrests were made, the OFBA is now viewed as a knee-jerk reaction by then First Minister Alex Salmond and the SNP government. Sectarianism is indeed something that should be challenged, but a sledgehammer approach to a complex issue has not produced results.
FAC argue that "all laws should apply universally, and to create a law which only applies to one group within society is by definition discriminatory. We also believe that attempts to outlaw something as subjective as offensiveness poses a serious danger to freedom of expression."
That is the crux of the conversation for many. "It got to the point where we were almost going to have a list of forbidden songs at football matches… I mean come on," says Massie. "You could sing these in a pub when there was no football on and it would be perfectly fine, but do so on the way to a football match and suddenly it becomes a criminal offence. There's an inconsistency and an illogicality to the whole thing."
So what happens if the OFBA is scrapped – would another piece of legalisation replace it? "We don't believe that replacing bad legislation is the answer, but that simply getting rid of it is," says Quigley.
Scottish football itself hopes it will be able to self-govern, with the Scottish Professional Football League (SPFL) introducing new regulations on 1 January 2017 that saw responsibility for the conduct and punishment of fans handed over to clubs. Only if those clubs can't provide evidence that steps have been taken, which they are now duty-bound to do, will the SPFL intervene.
All the while the SNP are considering their next move on the future of OFBA. It might be some way down the list of priorities right now, with Brexit and the all-consuming dumpster fire that has followed it understandably the current focus for First Minister Nicola Sturgeon. Nonetheless, the SNP have a fire of their own making to put out, too.