Battle for Number 10: The Field Turns Red

Sky News has hosted the closest thing that this election campaign will have to a head to head debate involving Theresa May, the Prime Minister and Jeremy Corbyn, MP. Each took turns to face questions from a live audience guided by Faisal Islam, after which they were interviewed by Jeremy Paxman. Going in May had a lot to lose, and Corbyn a lot to prove.

This is because for Labour to win this election two things need to happen. Firstly, they have to continue differentiating themselves on important but non-traditional issues from the Tories (think Brexit) to win back floating voters. Secondly, Corbyn has to stop being an excuse undecided voters can use to say that they would vote Labour but can’t see him as a leader. This debate alone did not fully achieve either, but did allow Corbyn and Labour to gain ground on both.

  1. Foreign Policy

Jeremy Corbyn has been depicted as weak on foreign policy.  But the very first question of this TV debate allowed him to challenge this image directly. Unlike traditional media portrayals, Corbyn’s response was unhesitating and direct. In criticising the present government’s foreign policy he differentiated the Labour approach. In following this up with examples of what he would focus on, he demonstrated that he does have an understanding of geopolitics. Corbyn’s list, which included cutting off funding, stopping the sale of arms, supporting various peace processes more firmly by once more convening the Geneva talks, and combating IS’ propaganda, shows an individual who would tackle the challenges the UK faces on the world stage head on. Another audience member was more blunt: would Mr. Corbyn be prepared to use a nuclear deterrent? This question was loaded, considering Corbyn’s historic opposition to nuclear weapons. He opened strong, declaring that he wants to live in a world without nuclear weapons. He waffled the middle. But he closed strong too: “I will write the appropriate letter [of last resort]” authorising nuclear weapons. Paxman ended up looking fairly rabid in trying to shift him on this.

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Jeremy Paxman had his core topics: renewing trident with Corbyn and May’s history of u-turns.
  1. Corbyn Crushes…

From holding his ground when questioned to links with IRA, to arguing that he is an effective leader (which resulted in more applause) Corbyn demonstrated how effective idealism can be in politics. In firing questions back as part of his answer (“Are you happy that so many of our children are going to school with super-sized classes?”) he risked a lot. But he won a lot. Part of May’s difficulties in this campaign have flowed from a consistent failure to look approachable. Corbyn may have sounded aggressive and single-minded in pursuing his ideals but at least he went beyond campaign catch phrases in answering the audience and showed what he truly believes in.

  1. …May Mumbles

There was no point at which May became passionate about what she was selling. Even though May (in perhaps the best move of her campaign yet) refused to debate Corbyn head on, the two were close enough that it became clear that Corbyn is selling a vision whilst May is pursuing an agenda. And the first applause during May’s Q&A with the audience was the result not of an answer by the PM, but by the emotional question raised by an audience member expressing his fear that he would not be able to leave his home to his children because of the “dementia tax”.

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Too often May sounded like she was pleading with the audience
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At times scolding the audience, Corbyn’s performance showed iron.

 

 

 

 

 

  1. Brexit

Both a leaver and a remainer had a crack against Jeremy Corbyn’s Brexit stance. If the leavers are unhappy with Labour’s failure to provide an absolute number on the cap, the remainers are equally unhappy due to the failure of Labour to differentiate itself from the Tory platitudes. Corbyn did well to state that with him there would “be a deal”. This has now become the principal distinction between the two parties on this stance.

For Theresa May, Joy’s question was not at all joyous. In Joy’s local area Conservative leaflets promised £350 million a week extra for the NHS. This has now disappeared as a realistic option. The Prime Minister’s answer was a rehearsed fall back to needing a seasoned hand on the rudder in these times and had nothing to do with addressing the lie.

  1. Public Services Funding

Funding for police, schools, and the NHS were all issues on which May is weak and came away looking weak. Sure, she knew her figures. But this made her attempts to dodge other questions even more embarrassing. For example, in answering the question on school funding,  her assertion that the Tories would continue to put record funding into the sector simply failed to stand against Faisal’s correction that this still did not translate into a real term increase.

And once the media bias has been removed, it became clear that Corbyn’s policies are extremely popular. The biggest approval applause of the night belonged to the Labour leader outlining his vision of more funding for schools and the NHS. Costing concerns did not appear to be on many people’s minds, except of course, the editors of the Sun (here and here).

 

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When the answer in your head is “Yes” but you can’t possibly say it.
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Corbyn as he was most of the night; jovial, self-assured, and engaging.

 

 

 

 

 

 

 The Tories under Theresa May have always seemed the stronger choice. But this election campaign has shone a light on the challenges besieging the Tories and the longer it continues the weaker they become. The 8th of June can’t come quickly enough for the Tories because this was the first glimmer of a Labour win as Corybn manages to finally fight the negative spin that has been surrounding him as a leader and politician.

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Cultural Quotient: Cooking up the Future

What is it?

Cultural differences result in practical differences of political and commercial practice. For example, contrast the views of political elites in China and American. China’s political elite focus on strategy.  The process of foreign policy for China is one which is measured in decades. This is informed by their world view of ‘exceptionalism’: China is unique and is playing the long game against the world. American foreign policy focuses on short to mid-term benefits. This is a direct result of the short term election cycles demanding accountability. Politicians want to show that they can deliver on their promises.  The result? America wants detailed plans with lots of check points; China wants to look at the final outcome.

Bluntly, these differences mean that if you walk into a meeting room in Italy and England and give the same presentation you would be singularly unsuccessful. As an Italian, I recognise that many Italians – based on their education which focuses on theory – prefer understanding concepts and applying themselves rather than the more British approach of bullet pointing the solution.

Of course, politics and business represent two snapshots where cultural differences impact on outcomes. It can extend into almost every sphere. America applied it to the military. The US Army ran a program named a “Human Terrain System” (HTS). In 2005, McFate and Jackson identified deficiencies in the command echelons of the US army in understanding its field of operations (Afghanistan and Iraq). Consequently, the Army introduced HTS which embedded anthropologists with units in order to give them a better understanding of ethnic groups in the region. Highly controversial, the impact is unclear; a benevolent interpretation however fits HTS into a world which increasingly pursues understanding.

How does it work?

Ang, Van Dyne & Livermore (three prominent academics in the field) break CQ down into four parts. The first is the CQ-Drive. This is the a person’s interest in making effective links in culturally diverse settings. Secondly, CQ-Knowledge seeks to identify how much a person actually knows about different cultures. Thirdly, CQ-Strategy quantifies an individual’s ability to analyse their multi-cultural experiences. Finally, CQ-Actions is the ability of an individual to put their learning and reflection on multi-cultural differences into practice.

This is quite technical, so let’s render this more simply: cultural intelligence is a bit like cooking. View the Drive as the reason for cooking. The Knowledge is the recipe. The Strategy is the picking of the recipe. Action is the ability to actually cook.

This analogy is useful because it underlines something very obvious: CQ is part-intuitive and part-learned. You can gain a reason to cook and you can certainly learn recipes, but the gut feeling of which is the right recipe to use or the ability to judge whether this particular fish requires a little more garlic to bring out the flavour is something you either have or don’t have.

Either way, it is vital to be able to use CQ because it allows you to take the best every culture has to offer. The point is that rather than being fault lines which separate team members you can use them to build the unit to cover each other’s faults.

Why now?

A basic answer would point to globalisation. Dr. Henry Kissinger, speaking to The Economist, defined the present as the first time in history we have a global international system. Every part of the world can affect every other part of the world by its actions. There are ever more reasons pushing individuals from different countries and cultures together. And there is a consequence ever greater need to be able to work effectively in this environment.

But if you accept the “basic answer”, you haven’t been paying attention. This is because the mere ‘push’ of people together is unlikely to provide enough CQ-Drive. Often, enforced proximity may result in further entrenchment of one’s own views against a perceived “encroachment”. In fact it is precisely the sense of haplessness and inevitable arrival of the ‘other’ that has provided a swell of nationalism across the Western world.

The critical difference is that some people have no choice but to work with individuals from foreign cultures. These individuals compete against one another, and in this fight-to-survive world, CQ provides a form of Darwinian edge – and thus snowballing its effectiveness.

If this conclusion is correct, it suggests that as more industries have no choice but to work cross-culturally the importance of CQ will continue to grow. Capitalist economics will allow no other approach because understanding the individual sitting across from you in a negotiation is an edge that cannot be ignored.

State of the (European) Union 2016: What a British audience needs to know

Just over 24 hours ago, President of the European Union Commission Jean-Claude Juncker made his second State of the Union speech. The text can be found here. For a country that has recently voted to leave the bloc, these ramblings may seem thoroughly unimportant. In fact, there are three reasons why it is worth paying closer attention to. The speech outlined the policies that the EU will take in the coming year; it permits one to draw conclusions on the overall health of the Union; and it highlighted how the media continues to misrepresent the news. But first, what is the speech?

Question: what lasts an hour, spans three languages and has its own hashtag?

Top marks if the answer you gave was Juncker’s State of the Union speech. Properly, the speech was introduced by the Lisbon Treaty (2009). It is designed to be a yearly speech made by the President of the European Commission to the Members of the European Parliament. Essentially, it is the EU telling the Member States what it is thinking, thereby increasing transparency by permitting anyone to foresee where the EU will head in its next legislative cycle.

It should be remembered however, that this newly-constituted ritual goes beyond a mere speech. It acts as the staging ground for the (often forgotten) State of the Union debate, in which the European Parliament debate the principle policies of the coming year.

A Year An Hour

The advice often given to public speakers – your speech should be shorter than the attention span of your audience – seems to have been taken to heart by Juncker, who gave the State of the Union speech in little less than an hour. The President of the Commission addressed many of the major themes facing the EU, such as populism, Brexit and the refugee crisis. However, below are five key policies which British readers should be aware of:

  1. Foreign ministry

Despite much talk of the ‘European army’ (see below), the creation of a post for an “EU foreign minister” piques my interest most and thus takes the top spot. It marks a shrewd move by Juncker to increase intergovernmental relations. Leaders of European Union nations already meet through the European Council and Ministers routinely attend the Council of Ministers. But such a post would require the constant collaboration of Foreign Ministers, deepening links between States.

It also represents a move towards one thing that all the States can agree on with regard to the refugee crisis: better management at the EU’s border is necessary. For this reason, calls to beef up Frontex were met with positive noise from the hall.

  1. European army

The development of the European army agenda comes in at second place because of its shock factor. In this speech, Juncker proposed a joint headquarters and a joint procurement policy, coming far short therefore of an army to use willy-nilly, as many headlines would have you believe. Pooling procurement cuts costs to individual Member States allowing them to maintain their military capabilities for a fraction of the cost. This is one benefit. A second benefit, would be the increase in efficiency of the missions that the EU is undertaking under the Common Security and Defence Policy it has. These missions include countering piracy off Somalia, training the armies of Somlia, Mali, and the Central Africa Republic and targeting migrant-traffickers in the Mediterranean.

The UK – always seeking to cosy up to America – has just as consistently made noises about how such a force would undermine NATO. Even where there is no evidence that this would be the case. Now that the UK has bowed (or fallen) out of the room where such discussions are held expect to see things progress much more rapidly.

  1. Infrastructure investment

If the EU holds true to the vision outlined by Juncker, the next ten years will be a period of reinvestment into areas around Europe. “Today, we propose to double the duration of the [European Investment Fund and double its financial capacity” trumpeted Juncker. Furthermore, ears flicked up when it was proposed “to equip every European village and every city with free wireless internet access around the main centers of public life by 2020”.

Of course, the UK is likely to miss out if the calculations of the British government are anything to go by with regarding to Wales, which will be £245 million per annum worse off. But this is important because it means an increase in productivity on the continent with which the British Isles must contend.

  1. Solidarity core

Modeled on Americorps, Juncker proposed a “Solidarity corps“, with the aim of bringing together young people from across the EU to tackle topical problems across the globe. Some 100,000 young Europeans are hoped to take part by 2020. Sure, it might take a while to rival its American progenitor: which has seen almost 1 million members donate more than 1.2 billion hours since 1994. But it marks exactly the kind of move towards interaction with the young voters and citizens of tomorrows the EU must do. It comes in as fourth because although a great opportunity for tomorrow’s pre-University students, it is unclear whether it will be open to non-EU citizens (e.g. a Brit).

  1. No “à la carte” menu choice for negotiations

Directly relevant to all countries seeking to negotiate a break from the EU (i.e. only the UK), Juncker made crystal clear that one could not choose “à la carte” which parts to keep and which to leave in a break up with the EU. No freedom of movement means no free access to markets. One wonders whether the EU could be any clearer than this. One rather suspects not. This is a vital point for those in Britain interested in the negotiations – but it comes last because it was already crystal clear.

Fit to serve?

There may be some concerns about the fitness of the two American candidates for President, but there are far greater concerns on this side of the Atlantic regarding the health of the Union which holds together 28 (soon to be 27) nations in the European Union. Did the speech reassure or reek of desperation?

Juncker did not shy away from identifying difficulties. He freely admitted that the EU is facing “splits out there and often fragmentation exists”. Indeed, for many he went further and did not hesitate to point to examples where this fragmentation leads to violence, in no uncertain terms referencing the murder of a Polish man in Harlow: “Europeans can never accept Polish workers being beaten up, harassed or even murdered in the streets of Essex.” In this speech, Juncker accepts the difficult of squaring the circle: listening to the voice of the people, even when that voice appears to be nationalistic to the point of xenophobia.

Of course, such statements gave far right MEPs the chance to go starry eyed at the prospect of the EU’s collapse: Marine Le Pen, leader of France’s National Front party, described the speech as a “funeral for the European Union” and was cheered by her UK counter-parts, UKIP.

Le Pen (and UKIP MEPs) were wrong to interpret these comments as a sign of weakness. Quite the contrary. It is a sign that, at last, the institutions of the European Union are awaking to the importance of listening to the population they seek to represent. Much like when you or I suspect that there is something wrong with a loose tooth, squaring up to heading to the dentist is braver than trying to struggle on, Juncker’s admissions should be seen as an attempt to square up to the rising populism amongst EU countries. Despite the 8 million jobs created since 2013, 140 trade agreements and the success of COP21, Juncker is aware of the mood of Europeans. Donald Tusk, President of the European Council is certainly aware of the importance of treating Brexit as a symptom of the rise of populism.

Media, media, when will you learn?

At best, the speech represented a far-ranging vision of the year to come, clearly and steadily keeping an eye on approaching dangers. At worst, it was provocative and thin on details. However, it is disappointing to read of the BBC’s (we won’t touch the Express or the Daily Mail) title: “Brexit: Juncker fails to impress Europe’s media“.

For many Britons, they won’t do much more than read the title or the article. So they won’t know that this is an unfair comment. Although referencing Sueddeutsche Zeitung’s negative coverage, the BBC’s article goes on to reference the positive coverage of Der Spiegel, Le Monde and Rezecspospolita. Going further, Tim King writing for Politico, a leading media outlet focusing on the EU, gave a mostly positive review.

Why does this matter? Because the British public will continue to be misinformed and under prepared for the realities of life in the 21st century, when its media continues to portray the picture the public wants to hear of the EU. We just have to hope that the the British press will turn elsewhere, allowing the EU institutions to get on with their job rather than face tiresome trite tirades.

Facts over fiction. It seems that Juncker learned his lesson from his 2015 speech but the British media has not.

Why a bad workman can blame their tools

There have certainly been mistakes made by the Remain campaign, which makes them “bad workmen”. But the tools they had – the referendum – were dodgy too. Criticisms of the EU Referendum are valid, and the word “democracy” cannot be used as a blanket decision ever made by a majority.

On Thursday 23rd June, the United Kingdom voted to leave the European Union 51.9% to 48.1%. A key debate following this outcome is whether or not this referendum result should be respected. To many, this appears the backlash of those on the losing side of the referendum. This appears to be a dangerous line of reasoning because it challenges the democratic voice of a people.

However, there was little about this referendum that was democratic. Labelling it as such – and thereby affording it the shield of majority voice – is dangerous.

In Ancient Athens, there was “direct” plebiscite democracy. Every (admittedly only male) citizen would gather to vote on every decision. On Thursday we saw the flaws of reliance on direct democracy: people can be fooled. Within hours of the vote for Brexit, Farage admitted that the £350 million figure was difficult to actually pin down and that any money the UK did find would not necessarily go to the NHS. Even after video evidence of him pledging the money emerged. Hannan admitted that there would be no “radical decline” in immigration because a free trade deal (which requires free movement of peoples) is necessary. And let’s remember that Hannan was part of the Campaign Committee of the official Vote Leave campaign, which, famously, used this picture on the side of their campaign bus.

Of course, there are intellectual arguments for leaving the EU. But these do not appeal to the average working British person who has more practical concerns – or been told to fear Schrodinger’s immigrant; the immigrant who both lazes at home taking all their benefits and steals their jobs.

Today we supposedly live in a representative democracy. The electorate chooses who makes decisions on their behalf, because the volume and technicality of decisions require prolonged consideration. This is something that cannot always be achieved through the mess of political campaigns.

Take the example of the economic arguments surrounding membership. Voters cited the falling share of world GDP held by the European Union as an indicator of its irrelevance. In the 1980s, Europe was 30% of the world economy. Today, it makes up 18% of world GDP. Yet the context is that China in the 1980s only made up 2% of world trade. Now it makes up 17%. It isn’t the EU which is diminishing. It is simply that the developing countries are catching up by industrialising their own economies. Evidence is the fact that the G7 in 1974 were made up of Canada, France, Germany, Italy, Japan, the US and the UK. In 2034 there will be no EU countries: only Brazil, China, India, Japan, Us, Russia and South Korea. The EU as a whole however will remain the largest economy even in then.

Let’s go even deeper: the UK’s membership of the EU gives it a huge boost thanks to financial services “passporting”. Passporting means that a firm authorised in any one area of the European Economic Area (EEA) can provide services in all of them. The cost of losing the passport is that (for example) investment banks must conform to other regulations in the target country in which they want to invest. Any double burden (i.e. having to meet two sets of regulations – those at home and those abroad) is always more expensive to the firm.

The EU referendum was an experiment of democracy in the 21st century. It did not work: many believed that they could vote on impulse and reject the advice of experts: this has only led to regret.

Donald Trump: An International Problem

If you are American you should be ashamed. Successful politicians have long been said to stand for whatever other people will fall for. But the American people seem to be falling for a lot.

A Dark Past

It is difficult to see what makes Trump particular adept at politics. For a man who is interested in money only insofar as it helps him to “keep track” of the “game”, he seems to has tarred himself with a series of dubious brushes. There are three vital parts to his character that I want to deconstruct.

1. Morality

Trump’s involvement with ACN is something that has been buried. Here is a link to his role in the company’s promotional video. But it should have been one of the first flags that warned as to the frightening lack of morality that the man exhibits.

ACN is a telecommunications company. It conducts sales through independent business owners (IBOs). But the company has been mired in multiple scandals. Take Trump’s promotion of the ACN video phone. At the same time as he was promoting it, the lack of compatibility with other phones meant that the company had had to slash orders. It was a flop. This was never brought up in Trump’s promotional video. It seems difficult to square with his reputation as a straight talker.

In general, this brings one to doubt his business ability. Attention should be drawn to the fact that Trump would be richer today if he had retired 30 years ago and simply invested his money.

2. Discriminatory

Trump’s ambition to build a wall across the South of the US is one that belongs to the 2nd century before the Christian era, in China, not an enlightened 21st century democracy.  Firstly, the Chinese built it in an effort to stop invasion. Mexicans today are not invading America – they are crossing for socio-political reasons. Secondly, Trump’s blanket statements that the individuals coming from Mexico are “bringing crime. They’re rapists” fails to capture the diversity of problems that are pushing Mexicans into America. This effectively stops solutions from being adopted.

It is representative of someone who fails to see the bigger picture.

3. Religious

Following recent comments about the way in which he would deal with Muslims (i.e. banning them from the USA), outrage has flooded traditional and new media. It is a point of historical note that there is a deep irony in Trump’s comments. Muslims dragged to the America were forced to convert in Christianity during the 18th and 18th century; but now that they could freely enter they are deterred. It seems completely at odds with the vaunted principles of the American constitutionalism.

Trump is just wrong. Most pertinent to this article is his erroneous understanding of the Muslim demographic in the USA.  Trump’s Muslim fetish seems to blind him to the real situation. For example, only 20% of all Muslim’s in the world live in the Middle East/North Africa area. By far the majority therefore, live in other areas. 62% of all Muslims live in the Asia Pacific region. Only around 1%  of American adults are Muslim.

Why should this matter?

Of course, at first glance, the opening of this article might see to be distinctly unfair – that every American is tarred with the same brush as the Trump supporter. But this criticism, fails to appreciate the way in which politics is linked to society. As an Italian, I felt an acute shame at both the actions and the re-election of Mr. Silvio Berlusconi. The reason I felt this shame was not that I had supported him and he was now betraying my trust.  No, my shame resulted from the fact that I was part of a society that was so broken that it would turn to a grand-standing figure as its saviour. I felt I had a duty to correct this. And I know feel the same duty to write this article.

Amusement is the wrong reaction. Firstly, it hides an awful truth. These individuals are much closer to power than they appear to be. No one now needs reminding of Berlusconi’s reign. And the latest polling shows that Trump is leading the Republican nomination race. The odds on his winning the presidential race seem scarily high, when compared to others. The approach taken by the UK, to ask to ban Donald Trump from their territory  is incredibly popular. It is not legally impossible to ban someone from the UK. Whilst there are problems with this approach, it certainly takes ‘Trumpania’ seriously. And there is much to commend a more serious reaction.

Personally, I cannot decided whether Trump is merely blissfully ignorant or wilfully misleading. What I do see, however, is that the amusement which is derived from his antics this side of the Atlantic is dangerous, much like I found the amusement in British newspapers regarding Berlusconi as dangerous. Governments should be willing to crack down on political grandstanding because cult figures can have all too dangerous consequences.

Elaboration would require a thorough historical analysis. But it is indubitable that all those who have risen to power on the back of speeches of hatred have been retrospectively condemned. McCarthyism, in its original narrow sense, referred to the practice of spreading a campaign of fear against communists  in America. Look how that turned out. And this is not the first analogy drawn between the treatment of the ‘other’ then, and now. Haynes Johnson compared the abuses “suffered by aliens thrown into high security U.S. prisons in the wake of 9/11” (J. Haynes, The Age of Anxiety: McCarthyism to Terrorism. [2005] Harcourt. p. 471.ISBN 0-15-101062-5) to the period in which McCarthy held dominance. Let us not forget that Mr.Jospeh McCarthy was backed by popular support: a Gallup poll found that 50% of Americans favoured McCarhty’s approach.

I am just as worried by an America where it is Donald Trump’s hand which is in the nuclear cookie jar, as I am by a terrorist militant death cult which is targeting the countries in which I live.

Thickening the Blanket of Consumer Protection: Consumer Protection Act 2015

From October 2015, the Consumer Protection Act will be in force. What follows is a brief overview of English law on consumer rights, under the common law, and under the new legislation.

Existing protection

Lord Atkin, in the immortal case of Donoghue v Stevenson [1932], created the modern law of product liability. In formulating the ‘narrow rule’, his Lordship stated that: “[a] manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer‘s life or property, owes a duty to the consumer to take that reasonable care”. This was a sea change in the orthodoxy (and as is often forgotten for such an important case the majority was 3 -2). Lord Abinger, in Winterbottom v Wright (1942) had previously summarised the view of liability by saying that “[u]nless we confine the operation of [contracts’ to the parties who entered into them, the most absurd and outrageous consequences…would ensue.” What Lord Atkin fundamentally understands – and which underlies the wider rule in Donoghue, known as the ‘neighbourhood principle’ – is that in the 20th (and now 21st) century commercial landscape, there is little room for individual engagement, and much less for individual negotiation of terms, in contracts. Though this has largely been cut down (in Caparo Industries plc. v Dickman [1990]), it remains true that consumer rights must come from different areas of the law – whether tort or legislation, in those areas where the individual cannot contract with the producer.

Whilst this may at first seem like a contractual problem (if C [the consumer] cannot exercise their English law given right to freedom of contract with P [the producer] then it is contract law which should deal with the problem) it is at heart a tortious problem too. The law of torts acts, not least, as a gap filler for where contract law does not stretch. Despite not suffering from a limitation period (as most statutory remedies do) there are two problems with common law product liability. Firstly, and notwithstanding doctrines such as res ipsa loquitur – which make short work of the proof element of negligence (seminal case: Grant v Australian Knitting Mills [1936]) but which are highly restrictive doctrines – negligence can be difficult to show. Secondly, the extent of liability is limited to personal injury, damage to property, and consequential damage to property. In other words, pure economic loss cannot be recovered. The courts have been strict on this, no matter the inventiveness of the claim. A good example is the complex structure theory of Murphy v Brentwood District Council [1991]. Complex structure theory seeks to argue that one part of a product or thing can damage another. In Murphy, the idea was that “ancillary equipment” added to the house (central heating system) could damage the house itself. This was rejected by, what was then, the House of Lords.
Section 14(2) of the Sale of Goods Act 1979 created an implied term in any contract of sale of goods, that the “goods supplied under the contract are of satisfactory quality”. This addressed the scope of liability (the second problem highlighted above). It also provided for strict liability for any breaches of that term (addressing the first problem of proof). The Consumer Protection Act 1987 compounded strict liability as the status quo by extending it to cases where any damage is done by a dangerous product to a consumer. The 1987 Consumer Protect Act was a result of a European wide initiative. The EEC Directive 85/374 sought to harmonise the national laws of consumer protection for a single market. It is a technical piece of legislation which defines everything required for liability. On the other hand, for contractual terms which are unfair the specialist and layman alike must turn to the Unfair Contract Terms Act 1977.

In light of the above considerations the following are seven things to note about the Consumer Protection Act 2015:

1. Application of the Act

To all contracts for the transfer of goods, as long as consumers are acting outside of the course of business. This is a wide term. Consumers acting outside the course of business can engage even where there is a regulated hire, a hire-purchase, or a conditional, sale contract.

2. Implied Terms

Previous case law on implied terms will remain valid. However, a new implied term has been created by statute. Where a model has been examined by the consumer, the contract will hold a term which states that the goods delivered must match the model shown.

3. The emerging ‘role of the dealer’

A consumer will have (from the 1st October 2015) the right to reject a product which does not conform to the sale contract. This rights extends thirty days from the delivery of the good. It goes hand in hand with the consumer’s right to refund which also extends thirty days – but from delivery or installation (the later of the two). It has been argued that this provision will cause difficulty because the definition of ‘trader’ is broad. Looking to the language of the act (a trader is also “another person acting in the trader’s name or on the trader’s behalf”) it seems that the breadth is something that the Act is looking to achieve. It has further been argued that this exposes a finance provider to a risk, which they cannot regulate. For example, where they provide for a good for a dealer, but through the dealer’s fault this good is rejected they lose the sale. The financers must refund the customer and they themselves do not have a statutory clause permitting returning the good to their own supplier. They will be defenceless short of any contractual arrangements they made with their supplier. However, when taken in the broader commercial context this does not seem like an undue burden. Dealers will be vetted more thoroughly by finance suppliers, to ensure competence. This seems like a clear initiative being taken to increase business-to-business trust, not a way of leaving some members of the community without legal defence.

It should be noted that the 2015 Act also contained a “final right to reject”, which arises after one unsuccessful repair or replacement. This seems incredibly draconian. Considering the costs which a supplier, financer, and dealer incur in providing a consumer with a good, and further considering the one chance nature of this rule it seems one-sided. Especially because the trader’s right to make deductions for use of goods when they are rejected does not apply in these circumstances. It is submitted that what might instead happen is that, in that situation, the merchant will offer some kind of incentive for the consumer to remain with that good. This last minute dealing might not be entirely desirable.

4. Pre-contractual information as an implied term

Under the Consumer Rights Act 2015, much of what was contained under the Consumer Contract Regulations 2013 will become statutory. This will take the form of an implied term (and as usual, the breach will trigger damages). This may even extend to installation. As has already been pointed out, it will be critical that any literature given to sales agents is accurate, lest in their haste to get a sale they provide information which is then used to obtain a refund.

5. Unfair Terms

The Competition and Markets Authority (CMA) which deals with unfair terms has published new guidance in light of the 2015 Act. Since schedule 2 of that Act replaces the Unfair Terms in Consumer Contracts Regulations 1999, the CMA has issued guidance on what it understand that schedule to mean.

There are three levels of guidance for firms: short guidance, intermediate guidance, and detailed guidance. Particularly helpful is the last, which also includes an annex which discusses which historic examples of past unfair terms may still be relevant.

Without going into the technical details, it is worth drawing attention to the fairness and transparency tests of Part 2 of the Consumer Rights Act 2015.

6. Digital Expansion

Under the new regime, digital content has been covered. Namely, implied terms definitively stretch to the provision of digital content, and corrupted devices can be recovered as long as the consumer can show that there was not “reasonable skill and care”. This is a welcome nod to technological developments of the 21st century.

7.  Competition Law

Part 3 of the Act touches on breaches of competition law. The Act deals primarily with rights, as seen through the increase jurisdiction of the Competition Appeals Tribunal (CAT) and the addition of opt-out (from pure opt-in) collective actions.

To a significant extent, this can be regarded as the manifestation of the importance of ADR. The European Directive on Alternative Dispute Resolution requires that all contractual disputes between consumers and business must be able to go through ADR.

 

Summary

It is important to understand that the Consumer Rights Act 2015 is part of a wider wave of EU and UK consumer protection. The 2015 Act brings together previously disjointed laws on consumer protection. This is of critical importance in the consumer world. Consumers are for the most part non-specialists. The point of offering them protection is only valid if it is easy to access and understand. The point has been made that the Act is not crystal clear on the nature and extent of some obligations. It is important to remember that the aim of consumer legislation is to provide for clear rights and remedies for the consumer (and not necessarily the corresponding duties of the business community). To see whether this is the case, we must await litigation.

Cambridge And Access: A Difficult Story

My first foray into the media surrounding Oxbridge myths; find it over at Huffington Post.

Only after gaining the inside perspective of a student at Cambridge, do I feel competent enough to address what is a clear imbalance in the media regarding Oxbridge admissions and traditions. What I feel is particularly damning is the fact that many of these pieces, which seem to aid diversity in the student body, damage it, as I have argued in my piece linked above.