Where is the dividing line between free speech and offensive behaviour?

It is a question that was never satisfactorily answered by the architects of the 2012 Offensive Behaviour at Football and Threatening Communications (Scotland) Act. Is it time to revisit this legislation?

Few disagree with the sentiment that anti-sectarian bigotry is an evil that must be tackled. Or that the particular chemistry generated by the fusion of sectarianism and football produces unsavoury scenes that damage our national image when they are beamed around the world.

Against the backdrop of an upsurge in football-related incidents in the 2010 to 2011 season, including the nail bomb sent to Celtic manager Neil Lennon, it is hardly surprising politicians started insisting "something must be done". The result was a piece of legislation which, as the Scottish Government's Community Safety Minister Roseanna Cunningham admitted, was a "short sharp bill".

As The Herald warned two years ago: "Laws made in haste are regretted at leisure and unworkable legislation drags the justice system into disrepute." Scottish Government ministers regard the 2012 act as flagship legislation. Yet the publication this month of the first annual statistics for the new legislation indicated 330 charges have so far yielded only 87 convictions, despite the existence of FoCUS, a new dedicated police unit.

In most cases "religiously aggravated abuse" was directed at either police officers or no specific individual, raising the question of how such behaviour – usually the singing of certain songs or the shouting of slogans – can be deemed likely to provoke public disorder. Many of the incidents prosecuted under the new law could have been pursued under existing legislation.

As The Herald reports today, the pressure group Fans Against Criminalisation claims some fans are so fearful of being dragged through the courts, facing match bans and disciplinary action from employers, that they are quitting their clubs. There also seems to be confusion about which songs and slogans are permitted under the act and which are outlawed. Recent cases suggest this confusion is shared by the courts. In the past week a Rangers fan was cleared of breaching the new law, despite hurling anti-Catholic abuse at a Dundee United player, after the sheriff described the legislation as confusing. Meanwhile, a Celtic fan acquitted of chanting songs in favour of the IRA has been told he will face a fresh prosecution following an appeal.

The Herald argued for a sunset clause, obliging MSPs to revisit the legislation at a later date. Such a review is now necessary. This law seems to be dangerously dependent on context and subjective judgment and risks criminalising football fans for little more than high spirits. Scottish football does not have its troubles to seek and it would be regrettable if this well-meaning legislation proved to be one more nail in its coffin.

As the police maintained two years ago, ultimately Scotland cannot arrest its way out of sectarianism. Instead it is necessary to challenge the mindset that feeds unacceptable behaviour. It is a mindset rooted in the poverty and violence of Northern Ireland, imported to the west of Scotland by 19th-century migrants but which has become deeply rooted in Scottish culture.

Instead of knee-jerk legislation, a better route to reconciliation lies in painstaking community-based initiatives by bodies such as Sense Over Sectarianism, Place for Hope, the Scottish Book Trust and the Conforti Institute, which recently received some of the £3 million anti-sectarianism grants from the Scottish Government.