Will the ‘Gunning Principles’ apply to Football clubs’ consultations?

This is Blog No 85

The passage of the Football Governance Bill seems likely to be accompanied by an interesting debate about the nature of the proposed ‘fan consultation’.

Earlier this year, I welcomed the Bill as originally introduced by the Sunak Government.

My Blog 63 presented an analysis and raised a key question:

       “What’s happened here probably is that in the legitimate desire to respond to public anxiety about the  

         cherished game, they have committed to consultation without maybe fully recognising the true rigour of

         what they are proposing. Reading between the lines, I fear that too many have assumed that

         consultation is merely sitting down with ‘representative’ groups of supporters and having a dialogue.

         Best practice and legally-defendable consultation goes well beyond this, and (per the Gunning

         principles) include the need to begin when issues are at a formative stage, to provide sufficient

         information as to allow intelligent consideration with sufficient time to do so. I have no doubt that football

         supporters will be delighted if clubs and their owners are to be obliged to consult properly in this way. But

         is this quite what Ministers intend? And is it what the football authorities and the clubs think

         they’ve signed up to?”

Well, it now seems that Ministers may not have intended the rigorous, legally-enforceable form of consultation after all.

Having raised the issue with DCMS, Kevin Rye and I have just received a response from the Ministerial support team. It includes the following:

       “As you have mentioned in your letter, the concept of ‘consultation’ has, in the context of public

        consultation, enforceable set legal standards with the need for the Gunning Principles to be upheld in all

        cases. The demands of public consultation will not, however, apply where the requirement to consult

        applies in this bill, given the clubs are not public bodies and they are only expected to consult with a

        representative group of fans, rather than the wider general public. We hope that this assuages your

        concerns as to the expectations that will be placed on clubs.”

Whilst it is perfectly true that 95% of judicial challenges to consultations have been against public bodies, the suggestion that the Gunning Principles do not apply to anyone else will raise many eyebrows. After all, Thames Water is not a public body. Neither is EDF, or East Midlands Rail. Yet, when consulting the public – as they do quite regularly, they would be expected to observe the basic rules of consultation – currently best embodied in the Gunning Principles. They are all ‘regulated’ organisations. Football clubs will be no different.

The DCMS also seems to be excluding the Gunning Principles because ‘they are only expected to consult with a representative group of fans, rather than the wider general public.’  I know of no legal basis for such an assertion. Indeed would it not be absurd to offer key stakeholders or other targeted groups less protection than if the exercise was aimed at the general public at large.

Let’s remember that the four Gunning Principles have often been criticised as being little more than a ‘statement of the bleeding obvious’. Paraphrasing them, they merely require the ‘consultor’ (1) to consult before making up its mind (i.e. at the ‘formative’ stage), (2) to provide sufficient information to enable ‘intelligent consideration’ (3) to provide enough time and opportunity for 'consultees' to respond and (4) to conscientiously consider what they say. Now which of these protections would Ministers wish to deny football fans?

I fully concede that the Government is nervous about regulating powerful club owners and interfering with the playground of mega-money and mega-egos. The Second Reading debate in the Lords revealed a surprising amount of opposition. Lords Moynihan and Maude were among those who predicted that regulation would hobble the Premier League and damage its status as the richest and most-watched football competition in the world. Their main objections are to the powers to regulate the industry’s finances.

But there is plenty of concern also for the engagement/consultation provisions. Understandably, the Bill does not define the word ‘fan’, but in the world of intercontinental supporters networks, this can be something of puzzle. Clubs will need to engage with those who are ‘representative’ though no-one yet knows who will qualify, and who decides. The Government probably hopes it can postpone such issues for the moment and trust a sensitive Football Regulator to sort things out.

The primary legislation will, however, set the tone … and the expectations. With its Commons majority, Labour will get the Bill through, and will claim credit for addressing a problem that matters to many communities. There is a lead-time before a Regulator gets fully up to speed, but fans may expect to exert more influence within weeks of Royal Assent. They won’t worry about legislative semantics – they will just expect to be consulted. Why should we palm them off with unenforceable, watered-down forms of the process?

It need not be so. With a little guidance and training in best practice, resourceful clubs and their supporters can, I believe, evolve a constructive and mutually-beneficial relationship based on regular dialogue. Kevin Rye – a pioneer in this area with Think Fan Engagement and I propose to hold a seminar/workshop in the New year (provisional date – late February/early March) to outline what may be necessary. If you are interested in joining us, email consultationguruuk@gmail.com or kevin@fanengagement.net  for further details.

Rhion H Jones LL.B

See Rhion's Speeches etc - click here

For More like this - free of charge:   now click here