WHEN it comes to football and criminal justice, I have a small and modest proposal. Either we should apply the Offensive Behaviour Act (OBA) consistently, and have Celtic board member and Tory peer Lord Livingston investigated for offensiveness. Or we should scrap the policy; because although it’s allegedly there to address undeniable problems in our culture, it is counter-productive, farcical and ultimately damaging.

The OBA claims to tackle the culture of violent religious bigotry that surrounds Scottish football. While I might quibble that Scotland’s “sectarianism on both sides” narrative tends to forget racism towards Irish immigrants in Scottish history, there’s an irrefutable moral principle that nobody quibbles with: religious discrimination by any section of society is unacceptable.

Where it takes a violent or aggressively racist form, it should be punished.

However, the police already have powers to deal with these problems without the OBA. Which poses the question, why legislate specifically around football?

The answer is undoubtedly that SNP politicians want to be seen doing “something”: hence the explicit powers to deal with the “offensive” forms of political expression around football games. But who decides what is politically offensive?

The Act claims to “only criminalise behaviour likely to lead to public disorder which expresses or incites hatred, is threatening or is otherwise offensive to a reasonable person”. But as CommonSpace recently reported, under these terms, fans have been fined £2,500 simply for singing a song with a swear word in it.

So again – who is this “reasonable person” who can decide what counts as “offensive”?

On the ground, the answer is usually “let the police decide”. Jeanette Findlay, of Fans against Criminalisation tells me it’s not bad policing which is necessarily the problem – “Although there are plenty of examples of that.”

She adds: “It’s really that the Act gives the police power to decide what is offensive and they give evidence in court to that effect.” Indeed, combined with a centralised police force and the legacy of Met-style policing from Sir Stephen House, Scotland is at the eye of a perfect storm. “It’s the Act that gives the police the power to become the problem.”

And she’s right. As endless studies have shown, the police have institutionalised certain ideas of what counts as “offensive” and what doesn’t. “Offensive” behaviour tends to be committed by poor and vulnerable people who violate rich people’s social norms; by contrast, dominant group behaviour is rarely seen as “offensive”. “Worryingly, the majority of those arrested under the OBA are between the ages of 16 and 25.” Jeanette says, “Just as we predicted.” The Bullingdon Club don’t have to see the inside of a jail cell; young football fans see it plenty.

In rushing through the legislation, the Scottish Government failed to account for the potential that these new powers might be abused. The result is that powerful men such as John Mason MSP are warning mostly young, mostly working-class fans to avoid wearing Yes badges to a football game, in case they cause offence and get themselves arrested. “We should all know by now that expressing political views is no longer acceptable at football matches,” Mason announced, chillingly. And then our politicians have the audacity to complain about apathy.

Zeyn Mohammed, a young Celtic fan, told me about his experience of OBA. “This Act almost gives the police carte blanche to intimidate, harass and gather intelligence,” he says. “I know of many people who’ve been awoken at 6am with police vans outside their door, to be arrested and charged based on something a police officer found offensive a few months prior.

“It’s not only the initial arrest, but the resultant trials which take months, sometimes years. It’s the days off work, the worry of losing your job, sometimes for something as little as using a swear word.”

HUMAN rights groups and supporters’ organisations have raised understandable questions about how this law works in practice. Some believe it may contravene European human rights directives. But whatever the legality of OBA, it’s the absurdity and hypocrisy that really stands out to me. Most SNP supporters I know think the act is a joke, too. Offence is always relative to the observer. The “reasonable observer” outlined in the Act essentially means a middle-class person: a judge, a politician or a senior policeman, perhaps.

OBA uses legalistic jargon to codify a complacent, stuffy and judgmental moral order.

The Scottish Government’s main defence of OBA is that it’s popular with the public, even though some of the data is scientifically questionable. But much of the Act’s popularity stems from the deceptive idea that police are powerless against bigotry and violence without it. That’s simply misinformation. Police action and criminal justice isn’t the only way to tackle bigotry. It’s certainly the most expensive way and arguably it’s the least effective way.

But even if we were to accept the ridiculous notion that “only tough love” can sort out our society, the reality is that the police already have power to arrest truly dangerous people under existing laws. OBA is basically a charter for harassing harmless lads with anti-fascist flags: many of them are simply good citizens who happen to give a damn about human rights.

Some people say politics should be kept out of sport. But does anyone really mean that? I thought it was bloody brilliant when George Osborne was booed at the Paralympics.

I don’t think people should be arrested for it: I’m glad Osborne was offended. Tommie Smith and John Carlos raising their fists in the black power salute in 1968, Cassius Clay becoming Muhammad Ali, the sporting boycott of Apartheid South Africa; where would sporting history be without politics? If you accept the “good” protests, you take the “bad” too. That’s the price of free expression.

Celtic FC’s board made the hypocrisy of “keeping politics out of sport” abundantly clear this week. First, they booted out proposals to pay their cleaners and caterers the living wage. Then, they re-elected Tory peer Lord Livingston to the board, after fans protested over his role in cutting tax credits. In both cases, the same rationale: sport is business, not politics. In the name of such exalted sentiments, the men who inherited Brother Walfrid’s legacy are telling us to leave our politics at the turnstile, and let the sporting businesspeople manage the sporting business.

Celtic fans – football fans generally – are mostly working-class people who spend huge proportions of their income buying football strips and tickets to keep the club running.

Many of these fans rely on tax credits to heat the house, never mind to buy the kids a new strip this Christmas. But apparently Lord Livingston hasn’t offended anyone. His day-to-day political behaviour is his own affair. Politics is politics, and sport is business.

Is it fair that Lord Livingston walks free, and strolls onto the board of one of Scotland’s biggest institutions, while working-class fans face the wrath of the police for daring to wave a Palestine flag?

Not in my Scotland. Call me mad, but politics, good and bad, is part of sport. Even the most authoritarian dictatorships haven’t been able to stop that. Scotland won’t either, and we shouldn’t try.