Can Strict Liability deal with Scottish football's sectarianism?

Scotland's sectarianism problem isn't going to improve if society continues to drag its heels over tackling it, according to an academic.

Picture: TSPL
Picture: TSPL
Picture: TSPL

Dr Duncan Morrow, in an update to a 2015 study on the subject, slammed footballing authorities especially for a reluctance to take on the continuing issue.

The researcher noted that his original reported had fallen short of saying Strict Liability for football clubs was the key answer, football clubs have refused to tackle the matter with any great urgency.

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Dr Morrow also said that the governing bodies, the SPFL and the SFA, had gone in circles on the issue, considering the use of pyrotechnics and flares of greater concern.

But just what is Strict Liability? We look at what the policy is, how likely it is to happen, and what the potential impact of it is.

What is Strict Liability?

Someone, or an entity, is in legal terms, liable for damage or loss caused by their actions or omissions of actions.

Crucially, in law, there is no burden on authorities to prove that there was intent, only that there was fault.

In footballing terms, this system holds football clubs not just responsible for the behaviour of their players and officials, but their fans too.

Versions of strict liability rules are already in place in England, where the FA has fined a number of clubs for the behaviour of their supporters.

UEFA has strict liability rules in place for the policing of matches played in the Champions League and Europa League.

Both sides of the Old Firm have fallen foul of this rule in the past, with Rangers being fined on a number of occasions for sectarian singing.

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Celtic have also been fined just over £16,000 as recently as last month for the behaviour of their fans in a match against Manchester City.

Don’t we have a special law to deal with sectarianism at football?

Well, we do – but no-one knows for how much longer.

We are now almost 6 years to the day removed from the infamous Old Firm ‘shame game’ which saw clashes between club officials and players.

The debacle was behind the SNP Government’s decision to hold a summit on the future of the game.

Out of that came the potentially ill-fated Offensive Behaviour at Football and Threatening Communications (Scotland) Act of 2012.

That criminalised a number of offences specific to football matches and mainly relating to sectarian behaviour.

It has been controversial since its inception, resulting in fans and politicians claiming that football supporters are being unfairly targeted and criminalised.

Other criticisms focus on the need for the legislation, and whether such offences at football would already be covered by existing crimes such as breach of the peace.

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While there are noisy opponents to the law (there is currently a bill at Holyrood to replace the Act) – polling has shown widespread public support, with a YouGov survey finding 80% of Scots surveyed back the specific legislation.

The Political Will

That doesn’t mean that politicians are finished legislating on how to tackle the corrosive problem of sectarianism in football.

The SNP’s James Dornan, representing Glasgow Cathcart, is preparing his own bill that would require the game’s governing bodies to sign up clubs for a system of strict liability.

Dornan, in the consultation of his bill, says that the need for this new legislation is twofold.

Firstly, he believes, “It is clear that there continues to be a problem and further tools are needed to tackle this (regardless of whether the 2012 Act is repealed or not); and (secondly) it is clear that Scottish football clubs are not going to introduce a form of strict liability voluntarily.”

It is important to note that Dornan considers his bill essential even if moves by opposition parties to “kill the bill” and repeal the 2012 Act are successful.

Dornan also notes with regret that he would much rather clubs and the governing bodies would be left to come to this conclusion themselves, but reasons that past experience renders that a forlorn hope.

How likely is it?

This question is tied in with another: how likely are the clubs to accept it?

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The authorities don’t seem too keen to rule anything in or out at this stage but there seems little will there for strict liability.

Responding to Dr Morrow’s report, the SPFL and SFA said: “This season both the SFA and SPFL have updated and tightened rules and guidelines on Unacceptable Conduct to help ensure our stadiums are safe and friendly environments where all fans can enjoy their football.

“We will monitor the success of those changes and we continue to work with the Scottish Government on further actions and future improvements in this area.”

Club 1872, the umbrella group for Rangers Supporters organisations, said in a statement they are against Dornan’s bill, after 92% of their members expressed opposition in a poll.

At a meeting of all 42 SPFL clubs early last year, it was clear that there remained widespread opposition among clubs for being held responsible for their fans behaviour.

Mike Mulraney, Alloa chairman and SPFL board member, said that opposition to the scheme was near unanimous and that strict liability was ‘proven to fail’.

Scottish football bosses have also raised concerns about world governing body FIFA, which takes a dim view of governments interfering in footballing associations.

In that event, should Dornan’s bill pass, it would likely still require the SFA to in some way voluntarily sign up to the proposals, as an approach forcing them to comply could land Scotland in hot water with FIFA.

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Like everything in Scottish football, there’s so much more to this issue than one academic report, one ill-tempered match, one hurried law, and one consultation.

It remains to be seen whether clubs can finally get on board with strict liability, or whether they will continue to be criticised for dragging their heels on sectarianism.