Where now for the Judicial Panel Protocol? (3)


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.

Independence

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’.

Confidentiality

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…

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15 Responses to Where now for the Judicial Panel Protocol? (3)

  1. TSFM says:

    Reblogged this on The Scottish Football Monitor and commented:
    Another excellent piece by Glasnost.

  2. B Murray says:

    My concern here is not the rule itself, but the total disregard McCoist and Rangers had for them, and continue to do, if anecdotal evidence holds any water. The clubs all agreed on anonymity (or confidentiality), that should have been good enough, but it didn’t suit McCoist and he went against the rule. Guilty as charged.

  3. FIFA says:

    What a wonderful world we live in

  4. Delbhoy says:

    Excellent, Mr. Gorbachev, I had to read that twice. The Seperation of Powers is
    particularly relevant. Executive, Legislative and Judicial are distinctions which
    form the basis of any first year politics course.
    Try to forget McCoist: any sanction can be too easily be perceived as martyrdom.
    Green might be dismissed with shrug, and a wink of understanding.
    But it’s surely not too much to ask of OUR footballing governing body:
    ” Have the Protocols of the JPP disintegrated to the extent that an
    Appellate Tribunal has just disappeared ?”
    Thanks again, perestroika. Lets keep our eye on the ball.

  5. Anonymous says:

    An excellent piece of writing.
    Can I make a small criticism at this point? Whilst all of the recent topics have been extremely interesting and of course very relevant to the purpose of TSFM, I feel that new blogs might be coming along rather too quickly. This means that on occasion some of the previous blogs (I feel) have not been fully discussed, dissected and analysed before moving on. I know that we can backtrack to any of the previous topics, however, I think there is a danger that the arguments raised may soon be forgotten by not only the faithful readers but also by the MSM interlopers. In other words, we might just be letting them off the hook.
    The new posts are excellent, but too many, too quickly can become a tad distracting.

    Rob

    • Thanks for the feedback, Rob. We’ve been publishing so many new posts because we’re trying to get ourselves up and running and to build a readership. The plan is to have less frequent posts, by a more varied group of contributors, in the near future. If you’re enjoying the site, please spread the word.

  6. Chris says:

    If the identities of the panel members are known to those involved in any case , then I don’t see a problem.

  7. Postscript: As the names of the members of the McCoist & Green Disciplinary Tribunals were not published yesterday, we can only assume that the SFA wants to return to the previous position of confidentiality. However, we now know that it’s possible for anyone with sufficient public profile in Scottish football to blow that confidentiality apart, as and when they choose, with relative impugnity. Hardly a satisfactory situation!

    As for the lenience (or otherwise) of the sanctions imposed on McCoist, I think we need to learn to trust our Tribunals. Only they hear all the evidence and arguments, and so only they are in a position to make an informed and just decision. Of course, trusting the Tribunals would be a lot easier if they were genuinely transparent and independent….

  8. Castofthousands says:

    Glasnoststriker

    I started reading the Protocol but found it too detailed to keep my attention. Since you have obviously taken the trouble to study this document then perhaps you could adopt this as your ‘specialist subject’, so when someone asks about disciplinary panels you would be the man to provide initial guidance. The document has obviously evolved in the environment in which it operates so its provisions lack context when read in isolation from particular cases. It would be interesting, as an exercise, to see your opinion on the McCoist case, just to see how the operation of the system stacks up against a real life scenario. We can’t help being prejudiced by our own opinions but the more insight we have then the nearer clarity we draw. You appear to be generally happy with the document which is comforting. I understand your reservations and can see that in an ideal world the system laid out probably would function well. Currently the Secretary of the SFA does not enjoy the wholehearted confidence of the footballing community and the reasons for this are manifold. In that case it is not the system that is potentially at fault but the way it is being administered. The conduct of the football administrators probably lies outside your current terms of reference. You can state this and perhaps someone else can pick up that particular baton.
    The executive/legislative/judicial split does provide a nice model. However, the nature of the industry is that it is populated by associations and clubs so the boundaries may be necessarily blurred by the nature of the beast. It is a useful concept, however, and should guide you if ever the position was achieved whereby amendments to the procedures might be suggested by bloggers. If the expertise you have gained in pursuance of this project can help discipline the blog then it is time and effort judiciously invested.
    Concerning selection of members for panels and tribunals, I first thought on the Scottish league clubs who appear to have defended integrity in the face of unfair pressure. However, they may be seen as partial. Unless they were appointed in an intelligent manner that ensured there was no conflict of interest. Perhaps club secretaries, who by their nature may have a level of impartiality bred into them would make appropriate candidates. From what little I read I see that there is a right to object against tribunal membership so this mechanism might deter/remove the possibility of partiality. There may be another grade or class of employee within football clubs who would equally be capable of performing this function. Another thought was the players union. Perhaps they could nominate candidates; ex-players with significant experience and respect.
    I appreciate the efforts you have gone to and would urge you to carry this forward by contributing on the SFM blog when appropriate to keep the discussion on track. Thank you for your contribution.

    • Thanks for the excellent post, Castofthousands. I agree with your comments on the current SFA Secretary, but I think it’s important that we get the system right. That way, the powers of each office are appropriately circumscribed and regulated regardless of the qualities of their present incumbents. However, the performances of the current Hampden hierarchy are very much on our radar – league etc. reform can only be credible if he have confidence in those who’re promoting it. Watch this space!

  9. charliedon says:

    The issue of the Appellate Tribunal been nagging away at the back of my mind for a while now. I posted this piece on Paul McConville’s blog the other day but it seems even more appropriate to this blog.
    I thought the tribunal had to reconvene to “rubber stamp” the agreement about the transfer ban between Sevco and the SFA, however unethical that might appear. But there has been no word and it seems the SFA don’t intend to reconvene the tribunal, but just to let matters lie. Now, I could see an argument for that approach (although I wouldn’t agree with it) if the SFA and Sevco had agreed that the original sanction should simply stand. But it didn’t. The PERIOD of the transfer ban was changed so the decision of the tribunal was, in effect, varied by the SFA, which therefore circumvented its own independent judicial process. It is irrelevant that only the period of the ban was altered, any change to the decision at all is a revised decision. As a result, a sanction has been imposed on Sevco which has not been decided within the SFA’s own judicial process and that process remains incomplete.
    Perhaps the SFA would like it to, but I don’t think the matter can be allowed to rest there.

  10. colin McFarlane says:

    Excellent article. I would go further. The compliance officer should be required to explain why some cases have been brought forward whilst outwardly similar cases have not. Also the JPP should be required to explain the reasons for their findings, and any precedents cited. In other words, total transparency around the disciplinary process. Personally, I would argue that such a wide ranging and ill defined offence as “bringing the game into disrepute” has no place in what is supposed to be a quasi judicial process. What do you think ?

    • Thanks Colin. You raise some interesting points. I certainly agree that the Tribunals should publish reasoned decisions in cases where there is a call for it (which they did for the ‘Whyte’ case), but I don’t think it’s necessary as a matter of course. Even the law courts don’t do that, and we should remember that the JPP members are unpaid volunteers – and that producing a written decision is a very time-consuming process. The Tribunal hearings should be open to the public though, IMO.
      Similarly, the Procurator Fiscal doesn’t publish detailed reasons for his decisions on whether or not to prosecute a particular case, so it’s hard to argue that the SFA Compliance Officer should have to.
      I suspect what’s driving your suggestions is a deep lack of trust in the system. Perhaps if a credible system can be set up, and a strong degree of confidence in it established, then that would be sufficient to address your concerns.
      The merits (or otherwise) of vague laws like the ‘disrepute’ offence, or the public order offence of “breach of the peace”, is really a topic for a separate article (or even a book!). In short, the law needs to strike a balance between being sufficiently flexible to do justice in a wide range of circumstances, and being certain in its application (thus protecting those subject to the law from arbitrary authority). Whether the ‘disrepute’ rule gets this balance right is something I’d have to give some thought to. The problem is made more acute by the lack of other protections from arbitrary authority within the system, and perhaps that lack should be addressed first.
      I do wonder whether we should introduce a ‘justification’ defence to a disrepute charge. Sometimes criticisms of the authorities are warranted, and it’s important that they should be made – so that problems can be identified and rectified. Justified criticisms, even though they may damage the reputation of the game, surely ought not to be a disciplinary offence?

  11. I’ve copied below some comments harvested from TSFM. A plea: could anyone posting a comment on a Glasnost article on another site please also repost it here? That way we can ensure that all contributions to the debate may be found in one place. If you’re aware of any other comments posted elsewhere, please let me know.
    ——————————————————
    August 30, 2012 at 18:30 The Iceman says:
    Interesting piece from Glasnost – but he tries to link two unrelated points. The first, on the lack of independence, is correct. The Compliance Officer clearly needs to be independent of the SFA and the composition of the Tribunals should also be independent – this much is clear. What he calls for is an independent process – which we clearly lack – despite the attempts to bring one in. It failed in its first serious challenge because of the in-built survival blanket for Rangers which has been systematically put in place by Rangers over decades.
    The second, on the need for naming of names, I think he picks the wrong analogy. If we assume the panellists are in fact the equivalent in the system of jurors in the legal system, then we see a perfectly valid argument for anonymity.
    As regards Ally’s outburst – then the entire argument is irrelevant. McCoist knew the agreement was to keep the panellists anonymous. His club could have challenged that decision through the proper channels, and his decision to force the issue caused fear, distress, threats and lies to be put upon a panel member and his club. That reaction of itself should justify anonymity.
    Glasnost’s bizarre argument that anonymity is giving in to bullying is, in fact, false. The correct analogy is of having anonymous jurors whose protected identity allows them to adjudicate on the facts without fear or favour.
    So – Ally’s outburst, and the subsequent venal acts, proved Ally’s wrongness; and Glasnost -living up to his name in seeking openness – whilst admirable in sentiment, seems to me to be fundamentally at odds with the realities of having to make decisions about angry Bears with a penchant for intimidation. Without confidentiality, fear and self-protection may alter the decision-making process and render it subject to undue pressure.
    ——————————————————————-
    August 30, 2012 at 21:36 Castofthousands says:
    Fair comment, Iceman. Glasnost may be being a litttle bit utopian in his outlook. The general thrust concerning the judicial panel was well measured, however. It is one of the pillars of the game that help prop up fair play. Todays judgement concerning Ally McCoist does appear rather weak, but can we really be all that surprised given all that has gone before? In the absence of strong leadership, the governance of Scottish football is likely to spiral out of control. Whilst I would like to remain independently-minded, it is difficult to suppress an anti-Rangers feeling. Not against the fans, but against a system that appears to work so hard to treat them favourably. The one place they aren’t being given an easy ride is on the football fields of the Third Division clubs. Whilst I would always wish that the best team wins, I can’t help but wish that the players of these clubs make up for the deficit in their governing structure by taking revenge, in a fairly played manner, on the football field. Sorry Rangers, but this is really becoming the most embarrassing possible chapter in your history.
    ——————————————————————-
    August 30, 2012 at 20:49 rab says:
    Excellent timing by Glasnost to highlight some fundamental flaws in the SFA’s disciplinary process on the very day that they confirm themselves to be outdated, out of touch, and out of their minds. Another example of appeasement to the perpetrator set against the loss of confidence in the victims that future incidents may now occur due to a lacklustre approach to punishment and determent.
    The disciplinary process must be removed completely from the SFA’s influence, the procurator football analogy was superb, and simplifies the argument into an easily understood anomaly.
    Hampden is a rubbish stadium, the SFA are beyond contempt and ridicule and are unfit for purpose, and the articles of association are outdated and conflicting.
    Can we do walking away?
    Everything needs be rebuilt from brand new materials, its far too late for a few amendments and token retirements. The rottenness is the only thing holding the whole cesspit together.
    ——————————————————-

    • Iceman – there are significant differences between a jury and an SFA Tribunal. Jury trials are controlled by a judge, who directs the jury in matters of law, whereas the SFA Tribunal itself decides on any relevant legal issues. And juries are made up of ordinary members of the public – not judges, QCs and the ‘great and the good’ of the footballing world. For those reasons, I maintain that a panel of judges is a closer analogy than a jury. Perhaps something like an Employment Tribunal, which has a legally-qualified Chair plus lay members with relevant experience (e.g. trade union reps) is the closest analogy. The names of all the members of an Employment Tribunal are published in its decision.

      In any event, jury trials are virtually always held in public – so anyone can go along and see who the jury members are, and can listen to the evidence and the arguments that they’re presented with. So, despite the legal prohibition on publishing the names of jury members, even jury trials are significantly more open and transparent than the Judicial Panel system.

      You’re entitled to disagree with my argument against confidentiality, but calling it bizarre is going a bit too far. The guiding thought is that, like the regular justice system, proceedings should be conducted in the public gaze rather than behind closed doors. A system of which formally recognises that its decisions can only be made ‘without fear or favour’ if made in private hearings, by nameless Tribunals, already concedes too much to those who might seek to threaten and intimidate. We, as a society, should face down such people – rather than implicitly accepting their conduct and changing the way that we administer our system of justice to allow for it.

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