Separate as these entities may be, and presiding over completely different professions, some of their duties are very similar within their respective realms, and what's happening to them both in 2005 poses almost identical questions with regard to their common responsibility to govern fairly, and the comparable systems that each has in place for enforcing discipline.
In Holborn, the Bar Council is reeling from recommendations arising as a result of a disciplinary case that went to the Court of Appeal. The case prompts calls for widespread change to the way it handles disciplinary action, based on failings of law arising from conflicts of interest in the way it assembles panels for hearings.
Read more here <-----
Meanwhile, over in Soho square, the Football Association are being forced to consider the recommendations of a comprehensive report compiled by Lord Burns. The report highlights widespread problems with the basic mechanism of the FA's disciplinary process and the way in which hearings are carried out. It calls for changes to the way in which hearings are constructed, and warns of ongoing conflicts of interest if the facility for discipline is not changed to one that is free from interference by the FA board. The recommendations being made by Lord Burns to the FA, almost completely mirror the problems identified with the Bar Council disciplinary system.
Read the full 2005 Burns Report here <-----
"all the regulation and enforcement functions of The FA, ranging from on-field
discipline through to agents’ activities and clubs’ financial reporting obligations should
be carried out by a Regulation and Compliance Unit. To strengthen the Unit and to
demonstrate its independence from conflicts of interest it is proposed that it should
be semi-autonomous and operate at arms-length, although subject to (published)
policy direction by the Board. It should publicly report its activities to the FA Board,
the FA Council and to stakeholders at large, in a way similar to many of the
independent regulatory organisations created by the government over the past two
decades or so. Within the unit there should be clear separation between the
functions associated with “decisions to charge” and the convening of “judicial”
commissions to hear cases and appeals"
Lord Burns, from the 2005 Burns Report to the Football Association.
In 2012, I'm bringing both of these events and organisations together in this article, because the failings which existed in their structures and systems for discipline in 2005, were very similar indeed. As striking as the similarities in the failings of the two systems were back then however, it's the distinct difference in the way the two bodies reacted to those calls to reform that raises questions with relevance to the way in which they operate, and the efficacy with which they perform today.
This difference in approach can best be illustrated by looking briefly at how the Bar Council began in 2005, to adapt to the findings that set it at odds with fair process.
The Bar Council set out on a path that fundamentally changed its structure, breaking down the main parts of its fabric and ring-fencing the necessary sections required to provide fairness and independent operation, including the departments within the organisation charged with the implementation of disciplinary rules and regulations.
In January 2006, the Bar Standards Board (BSB) was created.
Outline here <-------
The BSB is the regulatory arm of the Bar Council, and whilst it's not a separate legal entity, it is free to operate without the main council's input and carries out its duties without interference from it.
The full Constitution of the BSB here <----
"A. The Bar Council is an approved regulator for the purposes of the Legal Services Act
2007.
B. The Bar Council has established the Bar Standards Board (“the BSB”) to exercise the
regulatory functions of the Bar Council.
C. The Bar Council wishes to have in place arrangements which observe and respect the
principle of regulatory independence (as defined in rule 1 of the Internal Governance
Rules 2009), i.e. the principle that structures or persons with representative functions
must not exert, or be permitted to exert, undue influence or control over the performance
of regulatory functions, or any person(s) discharging those functions.
D. The Bar Council intends that it should at all times act in a way which is compatible with
the principle of regulatory independence and which it considers is most appropriate for
the purpose of meeting that principle.
E. Accordingly, and under paragraph 1(h) of the Constitution of the Bar Council, the Bar
Council makes the following Constitution for the BSB. "
From the BSB Constitution.
In 2007, the Legal Services Act was passed, which as well as other things, facilitated some of the changes being made at the Bar Council with regard to the separation of systems, and independence of control.
Also in 2007, the Bar Council created the Bar Quality Advisory Panel (BQAP). The role of the panel is non-regulatory, and seeks to promote excellence through education of the members of the Bar.
Outline of the BQAP here <--------
To fully appreciate however, the gulf in attitude toward urgent need for change between the FA and the Bar Council, you have to bear in mind whilst examining the constituent parts of the new Bar Council, and the swiftness with which they addressed failings, that the FA parked the Burns Report in 2005, and assembles its panels today in much the same way as it did back when the report was published. You need to compare the Bar Council's determination to create and uphold a fiercely independent system, with the FA's contrasting attitude in their ongoing practice of setting themselves up as judge, jury and executioner. It's about how each reacted once the flaws were identified to them.
The FA panel in the Suarez case, for example, was a three man one. Each of the representatives had direct or indirect links with the Football Association, or with a party connected to the case.
The lead QC, Paul Goulding, was appointed from the same Blackstone chambers that the FA used to defend Wayne Rooney against a charge of unsporting behaviour whilst on England duty. The first 'lay' representative, Brian Jones, is the FA regional chairman for Sheffield and Hallamshire. The other, Denis Smith, being a friend and self-proclaimed contributor to the career of one of the key protagonists behind the original accusation - Alex Ferguson, the Manchester United manager. Smith currently works for Stoke City's academy.
There is no credible way that you can call these people 'independent' or avoid the question of whether a conflict of interest was an influencing factor. The legal benchmark has been set within the Bar Council case: it is a violation of human rights for a regulatory body to act as prosecution, judge and jury in disciplinary matters. This has long been known by the UK Government, which has been lobbying the FA to reform for a period of years.
Fast-forward now to Autumn 2011, and the halls of these two regulatory bodies once again echo with discussions built around the same subject matter. This time it's 'Burden of proof'.
In Holborn, at the Bar Council, by now completely transformed in the way it addresses discipline, a disagreement has broken out between barristers and the relatively new BSB which centres around the BSB's plan to reduce the required level of proof in Bar disciplinary hearings to the civil standard of the 'Balance of Probabilities'. Barristers are offering fierce opposition to any reduction in the level from the current Criminal standard of 'Beyond Reasonable Doubt', and the proposed review by the Bar is called ridiculous by its members.
Outline of the dispute here <-----
Over in Soho square meanwhile, the same old FA is under severe criticism itself from some quarters, including but not limited to the manager of Liverpool Football Club, one Mr Kenneth Dalglish. The concerns are over the lack of fairness offered by the hearing that found Luis Suarez guilty on charges originating during the game against Manchester United. Troubling supporters of the club most is the way in which panels are assembled and the methods by which the verdict was arrived at. Liverpool supporters are up in arms about many factors of the case and hearing, but one of the issues which keeps coming up is the level of the burden of proof employed, and the fact that the FA requirement in condemning Suarez was the lower civil standard.
The arguments about Burden of Proof between the Rumpoles and the BSB rumbles on to this day, and it remains to be seen whether the Bar will cede to the objections of its members. However one thing made certain by the fierce opposition the barristers display to the lowering of the standards of proof in disciplinary matters, is the fact that for professionals employed in the business of upholding legal principles of fairness, and preoccupied with the mechanics of trial through fair process, the idea of subjecting their personal and professional reputations and their livelihoods to the same lower level of proof currently stipulated by the FA is both feared and deemed unacceptable.
And there, for the moment lies the limit to any common ground which may once have existed between the FA and the Bar Council in the way they handle discipline. Whilst the barristers' argument developed last year, the events that would ultimately lead to Luis Suarez being brought up on FA charges, were taking place on a football field in the North West.
The resulting hearing was a high-stakes, one-time exercise.
In the balance went a man's personal and professional reputation while a whole world watched.
With such a charge, and the resulting interest, never before had the problems the FA chose to ignore back in 2005 been applied to such an important, contested case. This wasn't about a three game suspension. Even the resulting eight game ban wasn't the most important issue in a hearing where the public's perception of an individual was what was primarily at stake. The principles of the process deemed so unfit for purpose by Burns seven years earlier were now being applied to a charge based on alleged racist comments and insults - an act deemed as criminal by the laws of this country, and not ordinarily a crime tried by a system that relies on the lower burden of proof to convict.
Never the less, the FA verdict was 'guilty'. The media descended, raised damning voices and printed angry lines to varying degrees to millions world wide. All of the headlines and commentaries were governed by differing levels of enlightenment with regard to the case. Some of the earlier headlines could have been based on at best, the briefest of consideration for the released reasons.
But it's safe to say that all of the articles written, every cry of disdain by the organisations and proponents of the fight against racism, every word of the pundits and the players that offered their views - were based on a 115 page report compiled by the FA, and based on the output of an FA system that has been known to be unfit for purpose since 2005. A system deemed unfair in that long-parked report by Lord Burns, on the strength of the basic failings of its mechanisms to adhere to fundamental principles of reasonable, good governance and independent judgement. Principles intrinsic to the way in which justice is carried out in this country and vital to the way in which reputations are protected.
In the final days of 2011, whilst the barristers and the Bar Council continued to debate a path of evolving, self-improving reform, the FA finished off a process that had tried a man for an alleged illegal act, using a system declared back in 2005 as being unfit for the purpose of handing down three game bans for straight red cards. In doing so, it subjected Luis Suarez and his reputation - not as a footballer, but as a man, to an ordeal and to a process that through its shortcomings, ignored rights afforded to him by a carefully evolved legal system. A system formed over time in this country to ensure the best possible level of the upholding of the law, and to provide the greatest possible chance that only the guilty should be declared as such.
In a society where judgement is naturally not limited to custodial process but also dealt via the way in which news is reported to an interested public. That dereliction and disregard for a man's constitutional and human rights was incorrect and improper.
The potential dangers associated with subjecting a man or a woman to a process capable of making or breaking their personal and professional reputation and fortunes, while unacceptable faults existed as to the fairness and independent integrity of the system, was why in 2005 the Bar Council undertook immediate and uncompromising action to reform.
And it's why in 2005, when the Burns report was published and the same concerns were levelled at the FA, their failure to act, their careless attitude to the business of providing fair disciplinary hearings, showed a disregard on their part to observe the duty they hold to the people that watch football, manage football and play football in England
It was a failure on the part of the Football Association in terms of its responsibility to respect the people they govern, and a drastic oversight in their duty to be just.
As a football supporter, I'd like to see some assurance from the FA in 2012 that the advice they ignored in 2005 will be revisited.
In the midst of ongoing and distinct pressure from the Department for Culture, Media and Sport, I want to know that reform will be far-reaching and sensible enough, so that although it won't bring Suarez back for the eight games he'll have missed, it will provide a new, fair disciplinary system. One that, should a player or employee of any football club be accused of a serious offence in the future, they'll receive an appropriately fair hearing, and be subject to a verdict reached by a process and a panel worthy of a power that's capable of destroying a reputation and throwing its subject to the waiting, baying hoardes.
Details of the DCMS call for reform here <------
As a supporter of football, I find myself unable to come to terms with a hearing and a governing body that produces a verdict in such a watered-down, weakened form, that it is accompanied by statements from both the FA and the original complainant in which they state that they do not think the accused is guilty. But a process that is none-the-less capable of resulting in a series of events which generates an environment that allows a football club, it's player and manager to be vilified in public.
It's a breakdown in the FA's own systems which has allowed this to happen without appropriate proof. Good, clear regulation is not possible in the absence of a strong, unquestionable process for discipline. And that breakdown was caused by failures in the mechanics of structures and systems that the Football Association knew about way back in 2005.
(Lee)
