Public Law

The controversy surrounding the refereeing performance of Dougie McDonald at the recent Dundee United v Celtic match rages on. For the uninitiated:-

  1. Referee awards a penalty kick.
  2. Referee runs over to consult his referee assistant (official formerly known as “linesman”).
  3. Referee overturns penalty decision.

Its not so easy to sum up the more recent developments. In essence, referee McDonald has admitted that after the match he didn’t provide his superiors with an accurate account of what happened between steps 2 and 3.

An SFA disciplinary hearing handed down a warning to Mr McDonald. Stewart Regan, the newly appointed Chief Executive of the SFA issued a remarkable response, in which he called into question the makeup of the disciplinary committee hearing the case.  He told the SFA:-

“Where I think there is an issue is whether a Referee Committee consisting largely of former referees was the correct avenue for a disciplinary case against a current referee.” (click here for full interview)

Mr Regan appears to question whether its right for referees to discipline their own. Another question is: How does this look?

Self regulation in the professions is commonplace and members of professions tend to be well represented on disciplinary tribunals (the General Medical Council and General Dental Council to name two).

But when it comes to professions we’re stepping onto ECHR territory – Article 6 demands a “fair hearing…by an independent and impartial tribunal”. The Strasbourg cases consistently stress the importance of the tribunal appearing to be independent and impartial. (Findlay v United Kingdom (1997) 24 EHRR 221). The fact that a tribunal consists of members of the profession it regulates can lead to claims that it lacks the appearance of independence and is partial. 

However in the UK the courts have regularly held that where self regulation creates the potential for prejudice, access to a court from the tribunal will protect against any breach of Article 6. 

“Fairness” is the word of the moment, and the SFA’s new chief executive has raised an interesting point on what makes a hearing fair. 

Perhaps we can leave the question of whether or not Article 6 applies to hearings of the SFA’s Referee Committee for another day (but if refereeing was a full time job in Scotland the answer would almost certainly be yes). 

Which leads us onto another question: “Does Scottish football need full time referees?”

Paul Marshall

Partner at Brodies LLP
Paul leads Brodies’ Corporate Crime and Investigations team. He has more than a decade of experience conducting and managing internal investigations for clients who suspect that something has gone wrong within their business. He advises and support clients facing investigation by the police and specialist regulators
Paul Marshall