I received in my inbox the other day an email from the Department of Business informing me about their newly published Call for Evidence on Terms and Conditions and Consumer Protection fining powers. Sad man that I am, I look forward to reading this consultation and replying to it – there are probably not many who would say that. For once, the Call for Evidence is not specifically directed a the travel industry, and we are not even mentioned amongst the list of consultees.
Whilst I have yet to read the detail, I have already looked at the introductory comments by the Minister of State for Skills, Nick Boles. He tells us how he finds most Ts & Cs “very long, in small print and full of impenetrable jargon and legalise”. Despite the fact, that the word should be legalese, I think I understand where he is coming from. He then goes on to say of the consultation at the end of his introductory remarks, “I promise it’s not 50+ pages!” No, Minister, you are right, it is only 45 pages!!
It is however difficult not to accept the core point that terms and conditions are increasingly long and complex to follow – if anyone can ever be bothered, and frequently in a 6 or 7 point size which is difficult for us oldies to be able to read without much swearing and the use of bright lights and magnifying glasses.
When I came into the industry, it was always the proud boast of Harry Chandler, one of the industry’s legends that the brochures of the Travel Club of Upminster (for younger readers, they were one of the pioneers of package holidays, and Harry Chandler was influential in many of the industry’s developments – like the formation of ABTA, of the Federation of Tour Operators, the invention of bonding, and many others) did not feature any booking conditions at all. Harry’s argument was that his customers all became his “friends” and did not need a set of rules that enabled him to deal with their holidays. It is difficult to imagine any business trying to do that now, any claimant (or defendant lawyer) understanding that principle, and any judge believing that it was even possible.
The first set of booking conditions I wrote just about fitted on a single side of A4 in our brochures – although I admit that was in 6 point typing, so was, to say the least, challenging to read. We used to apply the same principles to our contractual conditions with our hoteliers, and they had to fit on a single A4 sheet. These were more of a challenge though, as they were also around 6 point, and written in English, so it was sometimes difficult to convince a court in Spain or Greece that we could reasonably be expected to rely on them against our accommodation suppliers, who simply couldn’t read them.
Nowadays, most tour operators’ conditions are 3 or 4 times that length, and you have to start asking what has changed. For tour operators, obviously the biggest difference has been the implementation of the Package Travel Regulations, with all its specific requirements as to what needs to be included in booking conditions. The other big factor is the amount of litigation that has hit our industry (and many others) over the past 20 years. Claims management companies and many lawyers make their livings out of what they can recover from businesses – and terms and conditions are at least an attempt to spell out what contractual exclusions, and indeed commitments and obligations may exist and on which both the business and the customer can rely.
So, let’s look at each of the complaints made by the Minister, and see how far they are true, and if so, what could be done about them.
Booking conditions are very long. I agree, and have explained my views on the reasons. The best way to attack this would be to reduce the obligations on businesses, so they wouldn’t need to hedge them so much in their conditions. However, in a consumerist world, that is unlikely to happen – and in practice, almost every new piece of consumer protection legislation imposes new obligations on businesses to add to their booking conditions. The latest examples of these are the Alternative Dispute Resolution (ADR) regulations, which oblige us to put in place alternatives to court, and tell the consumer what those alternatives are. Government needs to recognise that if it requires more information to be given to consumers, that this will inevitably increase the length of the terms and conditions. This is a classic case of not shooting the messenger.
Booking conditions are in small print. Again, I wouldn’t disagree with this, and online, there isn’t any great need to make the typeface any smaller. However, in a brochure, the booking conditions are not a marketing tool, and don’t actually result in the sale of any holidays, so the marketeers inevitably want to minimise the amount of space given over to them. The answer is the same as dealing with the length. Reduce and simplify obligations, so the required wording reduces, and then the point size can increase.
Booking conditions are full of impenetrable jargon and legalese. I can accept some validity in this complaint, and I was pleased when, many years ago, I got our booking conditions agreed by the Campaign for Plain English. More can be done to simplify wording. However, when drafted by lawyers, the temptation is to use words and phrases that other lawyers understand, and clearly know the meaning of. It all comes back to the original point that if we could reduce the number of messages we have to give consumers, then we could shorten the booking conditions and simplify the language. But in the meantime, let’s at least try to write terms and conditions in plain English.
It also concerns me that the government’s answer to concerns about the length of terms and conditions is that it wants to grant enforcers power to impose fines on businesses to “encourage swifter compliance and deter future breaches”. I don’t want to be an apologist for dodgy business practices, but is levying fines going to do anything in this area?
I plan to respond to the consultation in due course, saying that if government puts its own house in order first, by simplifying legislative requirements and obligations – heaven knows, maybe they could come up with a simple code of good business behaviour, and say that all a business has to do is confirm that it complies with that code, and we can get down to a single page, or maybe even less. The cynic in me says that it is much easier for governments to point the finger of blame, rather than accept any responsibility themselves for fixing the problem.
So, in the meantime, don’t expect much difference in the length and style of booking conditions.