As Ally McCoist today defends himself against a charge of ‘bringing the game into disrepute’, for challenging the independence of the Disciplinary Tribunal and the ‘anonymity’ of its members, we ask: to what extent is he right?
This article concludes our series on the Judicial Panel Protocol (JPP). The first article set out the background to last year’s introduction of the JPP and explained how its judicial process works; the second argued that certain reforms to the disciplinary system are necessary in the wake of the Rangers judicial review case. This article asks whether:
- the JPP system is sufficiently independent of the SFA; and
- the identities of Tribunal members should be kept confidential.
It is, by necessity, rather long – but please stick with it. We think that it has some important things to say.
As explained in the first article, the key feature of the Judicial Panel system is its independence from the SFA. Following sustained criticism of the previous system, under which disciplinary decisions were made (and sanctions imposed) by an SFA Committee, its credibility was in serious question. The JPP was intended to restore confidence in the SFA’s disciplinary system by putting those decisions in the hands of an independent “Judicial Panel”. This is made up of senior members of the legal profession, together with respected figures in UK football (around 100 individuals in total).
The reforms introduced by the JPP were a huge step in the right direction. The Judicial Panel’s independence, like that of any (quasi-)judicial system, is crucial to its credibility. To explain why that is so, we need to take a short diversion via legal theory. The doctrine of ‘separation of powers’ requires that the three types of state power (executive, legislative and judicial) are exercised by different sets of individuals, and regulated by a system of checks and balances, to prevent arbitrary rule and to protect key freedoms. Although in the UK (unlike, say, the US) there is substantial overlap between the executive and judicial branches (e.g. all members of the UK Government are also members of Parliament), judicial independence is the one feature that no free society can do without.
What does all this constitutional law have to do with Scottish football, I hear you cry! Well, the Scottish football is like a mini state: it involves executive (administrative), legislative (rule-making) and judicial (disciplinary) functions. And, prior to the JPP, all three functions were effectively exercised by the same body – the SFA. Its position as the maker, administrator and enforcer of the laws of the game calls to mind the character of Judge Dredd. The old system concentrated too many aspects of power over the game into too few hands. Independence of judicial decision-making from the SFA executive, in particular, was badly needed.
So to what extent does the JPP system achieve that independence? We think that it does so to a far greater extent than the old system, but not nearly enough. Ensuring that the Tribunals are chaired by respected members of the legal profession was perhaps the single most important reform to make. But there remains a serious lack of independence in the JPP system. This centres on the roles of the SFA’s Compliance Officer (Vincent Lunny) and the SFA Secretary (Stewart Regan) in the process of bringing a case in front of a Tribunal.
The Compliance Officer’s task is to monitor what goes on in Scottish football, assess whether anyone has broken any rules, and – if so – to initiate the disclipinary process. What happens if the Compliance Officer reviews a given event and decides that the conduct of the club, player or official in question doesn’t breach any rules? Well, that is the end of the matter. Neither the SFA executive nor the Judicial Panel can do anything about that decision. And, given that some SFA rules are very vague (e.g. ‘bringing the game into disrepute), the Compliance Officer wields a great deal of power. If the system is to be independent of the SFA, it the Compliance Officer must be independent of it. Yet, as things stand today, Vincent Lunny is an employee of the SFA.
The lack of independence associated with the SFA Secretary’s role is even more flagrant. Firstly, he can veto any decision of the Compliance Officer to mount a disciplinary case. Secondly, even if he allows a case to go ahead, he has the power to select (from the 100-strong Judicial Panel) the 3 individuals who will hear the case. The SFA claims that this takes place on a ‘cab rank’ basis (i.e. the Tribunal is formed of next 3 people in line), but no such rule is to be found in the JPP. On the contrary, it states that:
“Tribunals shall be appointed by the Secretary or his nominee from the Judicial Panel…The Secretary or his nominee may take such steps in respect of the appointment of Tribunals as he considers, in his sole discretion, to be appropriate.” (sections 7.2.1-2)
This applies equally to the Appellate Tribunals as it does to the first-instance Disciplinary Tribunals. So, in theory at least, the SFA Secretary gets two bites of the cherry. He may appoint to a Disciplinary Tribunal the individuals who he thinks are most likely to return the result that he desires. If they don’t, and there is an appeal, he also gets to choose the make-up of the Appellate Tribunal that will hear the appeal. And that’s only if he hasn’t blocked the case from happening in the first place. That is not to impugne Stewart Regan himself, but rather system that allows him (and his successors) such great power.
If something like the JPP were applicable in the Scottish criminal justice, decisions on whether or not to bring a prosecution would be made by an official in the Scottish Executive – rather than the independent Procurator Fiscal. And if a prosecution were to be brought, it would then go to Alex Salmond (as First Minister) to decide whether or not it should go ahead. If he doesn’t block the prosection, Alex Salmond would then pick the members of the Court/jury that will hear the case – from a list of individuals approved by him (and his colleagues on the Scottish Executive). Those individuals would then decide whether you are guilty of an offence and, if so, what sentence you should serve. Living under such a system of ‘justice’ would be intolerable.
Of course, the analogy only goes so far: the JPP is not a criminal justice system, and it can’t send anyone to jail. But the Tribunals do have the power to impose serious punishments on individuals and businesses which, as is abundantly clear from the Rangers crisis, can seriously affect the lives of hundreds of thousands (if not millions) of people.
Once a disciplinary case does get before a Tribunal, you might think that the influence of the SFA would end at that point. And, in theory at least, it does. However, the bizarre episode of the Rangers judicial review case further undermines the Judicial Panel’s independence from the SFA. The Court of Session ordered “reduction” of the Appellate Tribunal’s decision to uphold the 12-month registration embargo – Scots law jargon for quashing the decision and sending the case back to the Appellate Tribunal to impose a lawful sanction. But the Appellate Tribunal, as far as we can tell, was never reconvened – despite the SFA stating that this was a necessary precondition of any deal to transfer Rangers FC plc’s membership of the SFA to Sevco Scotland Ltd.
Why did the Appellate Tribunal not reconvene? In theory, it should’ve done so itself – on its own initiative. It is, after all, supposed to be independent of the SFA. The resignations of Lord Carloway (its Chair) and Craig Graham (Spartans chairman) from the Appellate Tribunal no doubt didn’t help, but that didn’t prevent the remaining Tribunal member from reconvening it – and then co-opting new members. Even after Charles Green accepted a 12-month embargo, as a condition of gaining Rangers FC plc’s SFA membership, the SFA itself explicitly stated that the Appellate Tribunal would need to reconvene – in order to approve that agreement. As far as we can tell, that never happened.
The reality appears to be that the Appellate Tribunal did not perform its task of reconsidering the case, or approving that agreement, because the SFA did not reconvene it. And that very fact demonstrates the strong dependence of the Tribunals on the SFA executive – the very opposite of the (crucially important) independence that the Judicial Panel was supposed to embody.
So how is this genuine independence from the SFA to be achieved? I’d argue that the criminal justice system provides the solution. The process of policing Scottish football and deciding whether or not to bring charges should be undertaken by a new body that is separate from (though probably funded by) the SFA. So Vincent Lunny would no longer be the SFA’s Compliance Officer – he would be the “Procurator Football”. The SFA Secretary’s power to veto charges must be removed, as must his power to select which members of the Judicial Panel are to sit on any given Tribunal. Nor should the Procurator Football choose who sits on the Tribunals: we’d argue that it should be an administrative function of the Judicial Panel itself.
The reasons why the JPP is structured in the way that it is are unclear. Despite the fact that it represents a great improvement over the system it replaced, more work must be done if we Scottish football is to have a genuinely independent – and therefore credible – system of footballing ‘justice’.
Ally McCoist is today defending himself, in front of a Disciplinary Tribunal, against a charge of ‘bringing the game into disrepute’. McCoist is alleged to have damaged the reputation of Scottish football by calling for the membership of the Disciplinary Tribunal which imposed a 12-month registration embargo on Rangers (for its conduct during the Whyte era) to be published.
This article will not express a view on the appropriateness (or otherwise) of McCoist’s actions – that’s the Disciplinary Tribunal’s job, once it’s appraised of all the evidence and arguments. However, we do condemn the actions of the tiny minority of Rangers fans that appear to have followed from it, especially in the light of Turnbull Hutton’s revelation earlier this week of a credible plot to torch Stark’s Park (in response to Raith Rovers director Eric Drysdale’s role on the original Disciplinary Tribunal).
Instead, we’ll argue that the principle underlying McCoist’s demand is correct: that the membership of the Tribunals should be published. This point tends to be framed in terms of “anonymity”, but that word is very misleading in this context. The JPP does not, as some have suggested, institute a nefarious system of anonymous justice – with shadowy figures passing judgment on unsuspecting victims from behind a dark screen. Rather, any club, player or official that is charged with wrongdoing is entitled to be informed (in advance of the hearing) of the membership of the Tribunal, and has the right to object to any of those members on any of a number of specified grounds.
What is at stake, then, is whether the general public (i.e. the fans) should know who the Tribunal members are (as in a Court case) or whether only the parties to the dispute should know (as in arbitration, mediation, and other forms of alternative dispute resultion). In short: this is about confidentiality, not anonymity.
The principal reason in favour of publication relies, again, on a parallel with the criminal justice system. It’s a core principle that justice must not only be done – it must also be seen to be done. Transparency in a judicial system fosters public confidence in that system. The Tribunals have the power to impose serious punishments, and should therefore be subject to a similar requirement of transparency. But we also see this as part of a wider agenda of reconnecting the game with the fans – why should they not know?
The fact that, once their names are published, Tribunal members may be subject to threats or abuse (or worse) is highly regrettable. However, we’d argue strongly that this cannot be a justification for keeping the identities confidential. Those who put themselves forward for judicial office must be sufficiently robust to face down any such challenges – protected, as necessary, by the police. The alternative, which effectively amounts to legitimating mob rule, is unthinkable.
The main concern about publication is: why did the clubs, unanimously, vote for confidentiality? The answer to that is unclear but, if there is strong evidence that individuals with the requisite skills and experience to sit on the panel could only be persuaded to do so on condition of confidentiality, then that might possibly justify it. Absent that evidence, there appears to be a strong case for the make-up of Tribunals to be published. And that, of course, is what happened with the membership of Lord Carloway’s Appellate Tribunal in the Rangers case (with the agreement of the individuals concerned).
Will the names of the Disciplinary Tribunal members in the McCoist (and Charles Green) cases be published, or will the SFA seek to re-establish the confidentiality of the system? We’ll find out soon enough…