There is one circumstance in Northern Ireland in which sectarian singing is a specific offence.
That is at a “regulated match” of football, rugby or GAA, where “chanting” of a “sectarian or indecent nature” is a standalone crime, as opposed to an aggravating factor in a crime, punishable by a fine of up to £1,000.
This offence was created by Stormont’s 2011 Justice Act as part of the introduction of football banning orders to Northern Ireland, copying similar laws in Britain. The law might never have made it onto the statute books had Alliance justice minister David Ford not had strong support from the Irish Football Association (IFA). Other ministers thought a law targeting stadium crowds would be antagonistic and unenforceable and that in any case it was unnecessary, as the assault and disorder that bans focused on were crimes already.
Since coming into force in 2012, football banning orders have been exceptionally rare: the first one was not handed out until 2016. However, this reflects the success of the IFA’s twin-track approach. Bans are available as the ultimate sanction and supported as a demonstration of intent. But sectarianism has mostly been tackled through grassroots efforts to make it clear such behaviour is unacceptable to clubs and crucially to other fans. Creating a culture of social disapproval among peers has done almost all of the work.
As if to prove it, Scotland passed a law in 2012 cracking down far more assertively on sectarianism in football, taking the view that this where most Scottish sectarianism is manifested.
The Offensive Behaviour at Football and Threatening Communications Act (Scotland) was repealed six years later, with Labour calling it “the worst piece of legislation in the Scottish parliament’s history”.
Attempting a criminal crackdown on sectarianism without also creating a culture of disapproval had led to a law that was antagonistic and unenforceable. Trying to criminalise chanting from the terraces was seen as especially absurd.
Scotland’s experience provides a controlled experiment in how social disapproval is the essential element to tackling sectarianism. This lesson needs to be learned by the Orange Order, following the scandal and disgrace of the past week.
The loyal orders have been transformed by social pressure over the past quarter century, although it has been through external rather than internal disapproval. During Drumcree, the Orange Order tried desperately to attract more ‘respectable’ people into the organisation, telling them their community needed them to help improve Orangeism’s nature and leadership.
What happened instead was that respectable people left - and it worked. Members of the loyal orders are acutely sensitive to their social standing and took this signal of disapproval badly. It sapped their resolve at Drumcree, then their opposition to the Parades Commission. Parading is now effectively a resolved issue, with the quiet disapproval of the unionist population playing a decisive role.
Yet acknowledging this, let alone encouraging it, is seen as problematic. The Orange Order’s attempt to widen its membership during Drumcree was in tune with the official peace process line: everyone is responsible for the faults of their community and should engage to fix them.
Disdaining those faults, considering yourself above them, and retreating to stuck-up safety is incredibly selfish.
The more serious critique is that external disapproval moderates only public behaviour. Without internal disapproval, sectarianism continues in what people believe is the privacy of the Orange hall, perhaps with even more concentrated squalor.
Contrary to what is often claimed, the executive has had an anti-sectarianism strategy since 2005, although it has gone under various titles, such as A Shared Future or Building a United Community. This all tends to focus on cross-community engagement of a type dating back to the Troubles. It has been increasingly caught up in arcane ideological wrangling over the difference between sharing, good relations and equality.
Sinn Féin proposed a distinct anti-sectarianism strategy in 2017 but the only practical policy it contained was “awareness training”.
Cutting through all this with a suggestion people be more judgmental about their peers is not beyond the bounds of government policy - it is how drink driving was made socially unacceptable, for example. However, it is undoubtedly at odds with political fashion.
For fresh thinking on tackling sectarianism, we need to pay more attention to Scotland, our parallel policy laboratory, and to the achievement of the IFA and football fans.
In the end, the Orange Order will have to figure out for itself the wisdom of following their lead.
