Of Brexit, Red Tape and Light At The End Of The Eurotunnel

A pragmatic approach to the Brexit debate is to ask whether withdrawal from the European Union would solve enough root causes of Britain's problems to make up for the inevitable disruption.

But we are yet to see that level of analysis, and I doubt we ever will.  

That, and the fact that opportunists like Boris Johnson are able to swing their booms from one side of the debate to the other in the hope of catching any old puff of political wind, tells me the UK's membership of the EU is just a political issue, unconnected to anything 'real'.

One thing that is clear, however, is that cutting the ties with Brussels will not automatically cut the UK's source of red tape: Britain is expert at producing its own. You only need to look at the NHS, the social welfare 'system', the Home Office or education to see how much of a mess the UK is capable of making on its own turf; and its approach to implementing EU law is similarly self-defeating...

Generally speaking, you might say that 'an Englishman's red tape is a Frenchman's business plan'. The English common law principle is that 'the law follows commerce' and we should be able to get on with something until the law forbids or restricts it; while civil law dictates that an activity is not lawful until the state says so. Another difference, somewhat surprising in light of the first, is that the common law system is based on literal interpretation; while civil law is interpreted on the basis of its purpose - the spirit rather than just the letter - and this is how EU law is interpreted by the European Court of Justice.

While the EU's civil law countries rely on EU regulation to tell them more or less how to act, the UK has not coped with this distinction very well. Firstly, the UK's attitude to EU membership means that it misses opportunities to influence the favourable development of EU law in the first place - the UK always seems to be on the back foot. Then, once EU laws are passed, the UK suffers from a policy of 'gold-plating' directives by simply copying them word-for-word into its own national laws which are interpreted literally under common law principles rather than reflecting the purposive interpretation that civil law member states adopt. So the UK creates several rods for its own back.

While it is said that the English courts do (or should) adopt a purposive approach when interpreting national legislation in areas covered by EU law, in practice this opportunity is not widely embraced either by officials or the legal and regulatory community. Once any awkward or confusing EU requirements are transposed into national law, everyone in the UK seems doomed to take them literally.

The result is a system that pushes the burden of resolving any EU regulatory awkwardness or confusion off the public sector's plate and onto the private sector (and, ultimately, the consumer or citizen). A recent case in point include the UK's approach to implementing the Payment Accounts Directive. There are others too numerous to mention.

I do have a little sympathy with the UK's approach to the EU legislative process. It is outnumbered by civil law countries who may not appreciate or respect the more reactive common law approach.  It is also tempting to avoid the expense in time and resources required to continually debate with EC officials whether UK regulation reflects the purpose of EU directives, rather than the letter. But this doesn't bother Italy, Germany, France or the other countries higher on the league table of those failing to implement European laws.

Maybe you could say this failure to navigate the EU legislative process is a reason to leave the EU, but it seems pretty feeble for the UK to lose the benefits of membership due to a political problem of its own making. At any rate, if UK ministers and officials would only take full advantage of the opportunity to resolve any problems in the formation of EU laws in Brussels and take a purposive approach to enacting them nationally, they would surely reduce any adverse impact on the wider UK community from laws that might be unduly restrictive.

Meanwhile, ironically, the EU authorities are beginning to take a more common law wait-and-see approach to regulation, having realised that regulation won't catalyse cross-border markets that don't already exist. Contrast the futile approach to consumer credit with the more cautious approach to regulating crowdfunding and virtual currencies/distributed ledger technology.  

In other words, the UK seems keen to leave when there may be light at the end of the Eurotunnel.

Distributed Ledger Technology: Cutting Through The Hype

A busy start to 2016 has meant the blogging has suffered, but I have at least co-written an article with Susan McLean of Morrison & Foerster that cuts through the hype around blockchain and other distributed ledger technology (DLT). 

The article includes updates on a range of DLT initiatives across numerous business sectors; various policy and regulatory responses; as well as some thoughts on the challenges involved in implementing DLTs.

You won't be able to put it down! ;-)

Of Royalty Problems and Distributed Ledgers

January has been a whirlwind of meetings and discussion around the idea of using 'blockchains' and other distributed ledger technology to help track and collect royalties on creative works, starting with music and the Digital DNA Genome Project. The potential is certainly there for a new ledger-based environment for creative works. But whether distributed ledger technology will address the root causes lurking beneath the biggest problems that the creative industry faces is another question. Here are some observations relating to problems in the music sector, which I know from other conversations and reports resonate in other creative industry sectors...

The current processes for producing and distributing music are clearly broken.  A trawl through the comments below this 'story' on how much YouTube pays in royalties to artists gives you some insight into the problems faced even by those who work really hard at tracking and claiming what they are owed. Responding to a Wall Street Journal report on claims that Spotify fails to properly account for royalties, musician and critic David Lowery wrote to the Attorney General of New York State demanding action. Civil litigation has followed, seeking $150m in unpaid royalties. 

But the more you dig into the royalty problems, the more you realise they are just a symptom, not the cause, of the music sector's woes. One has to be careful about apportioning blame among the multitude of different types of participant involved in the overall process for creating, distributing and performing musical works. What some see as misconduct can easily be attributed to poor systems and record-keeping and a failure to address the root causes of those failures. But, again, go easy on the blame: it's a huge and daunting task to figure out all the processes involved in such a diffuse sector and then how to improve and control each of them so you know when things are going awry and how to respond.

Ultimately, however, one can't help feeling that listeners are not getting access to the sort of range and quality of music that a more efficient sector could deliver.

So, where to start?

The high level problem statement is that the ability to efficiently monetise music has simply not kept pace with the ability to generate and consume it. Why? Well, let's say that the back-office processes have not kept up with the front of house processes. How so? Back office staff at record labels and collection agencies, artist's agents - and even the artists themselves - manually reconcile paper contracts and bank statements to figure out who is owed what; and royalties are often still paid by cheques, even for tiny amounts. At the other end of the process, consumers can stream music and watch video clips on their smartphones. The distribution processes in the middle are also far from operationally efficient. They don't properly track and account for what is made available to consumers at the front end, and don't interface efficiently with the back office.

Why? 

Well, this is where the sector seems to have stopped analysing the situation, which is what we humans tend to do in such situations. We leap to conclusions and solutions. "It's in the interest of the big labels to do nothing about it," has been the most popular refrain, although "Google and Spotify don't care" seems to the latest chart-topper. Current 'solutions' range from sending in the auditors, to filing law suits, to preferring to stage live gigs and concerts as the way to make money. From a technology standpoint, we have the Codec idea from Benji Rogers - not to mention the distributed ledger initiatives that we'll come to.

But these are really just solutions in search of the root cause to the sector's actual problems, spawned more by a sense of helplessness and frustration than any pure insight.

To identify the solutions that will give the most bang for the buck there is a lot more work to be done in understanding all the processes; defining the key problems more precisely, measuring which cause the most pain, then analysing the range of root causes of those problems; before then figuring out which improvements are worthwhile implementing. Finally, all that work will be lost unless there are controls in place to know when the processes are starting to fail again.

Any new system for monetising music efficiently must be “customer-centric” and not merely ‘consumer-centric’ or ‘artist-centric’. It has to cater for the entire set of end-to-end business processes and treat all industry participants fairly. We have to recognise that each participant may be a supplier in one step of the overall process, yet the customer of another step; and which hat they are wearing when they complain. One could argue, for example, that artists are perhaps most upset not in their role as suppliers of music, but in their role as customers in process steps related to distribution, consumption and payment.

To become sustainable, 'the system' must evolve in a customer-centric fashion at each step, otherwise the participant in the role of the ‘customer’ will not buy in to the solution for that step. Equally, however, no one can afford to get caught up in anger and blame. The whole sector needs to move along the change curve to accepting that the system is broken and participate positively in the work required to fix it.

So it's simply too early to say what role, if any, distributed ledgers have to play in solving the creative industry's problems. It's not about imposing a solution, but rather fostering agreement on root causes of the problems and the necessary improvements and controls to be implemented.

That's not to say work should not continue on the use of ledgers in relation to music and other works. It is exciting to see the work on releasing music into ledgers by Ujo Music and MyCelia; Audiocoin; Aurovine; Revelator; Colu; and OCL (One Click Licence); as well as the work of the Kendra Initiative on the wider development of a distributed marketplace; and collaborative forums like the Digital DNA Genome Project mentioned earlier. I just don't think we should saddle these initiatives with the responsibility for solving the current woes of the creative industry - the two can co-exist quite peacefully.

Isle of Man Goes Crypto-Crazy

I'm indebted to my colleagues in the Isle of Man for pointing me to the IoM's recent Designated Businesses (Registration and Oversight Act 2015, which imposes various registration and anti-money laundering requirements on distributed ledger technology. Do we have a poster-child for how regulation of new technology can go way too far?

The IoM compliance obligations are aimed at: 

"the business of issuing, transmitting, transferring, providing safe custody or storage of, administering, managing, lending, buying, selling, exchanging or otherwise trading or intermediating convertible virtual currencies, including crypto-currencies or similar concepts where the concept is accepted by persons as a means of payment for goods or services, a unit of account, a store of value or a commodity;"

This seems likely to be counter-productive, to say the least, given that the 'currency' aspect of distributed ledgers is often merely there to reward the 'miner' or processor of transactions or events that occur on the ledger, regardless of whether those events are themselves financial in nature - financial services being merely one of many different potential applications.

So, should every business on the IoM that uses, or might wish to use, distributed ledgers register with the authorities and introduce AML controls on everyone it deals with, just in case? Maybe so...

Two specific points to make:

1. ‘convertible virtual currencies’ are defined more broadly than one would expect:

“including crypto-currencies or similar concepts [neither term being defined, except by what follows…] where the concept is accepted by persons as a means of payment for goods or services, a unit of account, a store of value or a commodity”, 

Most definitions of a ‘currency’ require all these criteria to be met, not just any one of them. Imagine what would happen to the US Dollar, for example, if suddenly it was not accepted as meeting just one of the above criteria...  Indeed, for this reason many people disagree that Bitcoin - the most widely used form of 'crypto-currency' - is still nothing more than a commodity.

In addition, none of the typical exemptions under payment services regulations seem to be imported here. To take but one relevant example: consumer loyalty/rewards programmes are typically exempt on the basis that the rewards are only accepted as a means of payment within a 'limited network'. Do the local authorities really want every business participating in a loyalty scheme on the Isle of Man to register and apply AML controls just because the scheme involves distributed ledger technology? Maybe so...

2.  Similarly, the list of activities that trigger the relevant compliance obligations would seem to cover a vast array of potential services and their providers/users - recognising that these are distributed ledgers to which all computers running the protocol have the same access. Again, just think of consumer loyalty programmes as you go through the list:

the business of issuing, transmitting, transferring, providing safe custody or storage of, administering, managing, lending, buying, selling, exchanging or otherwise trading or intermediating...

Even payment services regulation, for instance, exempts technology services that support transactions without the service provider handling funds. And the whole point of the ledger is that no intermediary is actually handling funds - its all happening peer-to-peer amongst machines - indeed perhaps everyone's device is handling the funds. Furthermore, there will be instances where access to a distributed ledger is just one element of a wider system - as in the car-rental example, or tracking shipping containers - and it may not be clear to everyone that a distributed ledger is involved if it's just to share the location or state of a vehicle or container.

Still, the Isle of Man's approach might at least be useful in demonstrating how regulation in this area can go too far...

Better Services For SMEs: Follow The Data

I was at a 'parliamentary roundtable' on Tuesday on the perennial topic of small business banking reform. A more official report will be forthcoming, but I thought I'd record a few thoughts in the meantime (on a Chatham House basis). 

It still seems to surprise some people that small businesses represent 95% of the UK's 5.4m businesses - 75% of which are sole traders - and that they account for 60% of private employment, most new jobs and about half the UK's turnover. So-called 'Big Business' is just the tip of the iceberg, since only they have the marketing and lobbying resources to be seen above the waves. As a result small businesses have long been a blind spot for the UK government - until very recently - and the impact has gone way beyond poor access to funding. It includes slow payment of invoices, the absence of customer protection when dealing with big business and lack of alternatives to litigation to resolve disputes.

What's changed?

A combination of financial crisis, better technology and access to data has exposed more of the problems surrounding SMEs - and made it possible to start doing something about them. And it's clear that legislators are prepared to act when they are faced with such data. The EU Late Payments Directive aimed to eliminate slow payments. The UK has created the British Business Bank to improve access to finance, as well as a mandatory process for banks to refer declined loan applications to alternative finance providers and improved access to SME credit data to make it easier for new lenders to independently assess SME creditworthiness. The crowdfunding boom has also been encouraged by the UK government, and has produced many new forms of non-bank finance for SMEs, including equity for start-ups, debentures for long term project funding, more flexible invoice trading and peer-to-peer loans for commercial property and working capital.  Last week, the FCA launched a discussion paper on broadening its consumer protection regime to include more SMEs.

Yet most of these initiatives are still to fully take effect; and listening to Tuesday's session on the latest issues made it clear there is a long way to go before the financial system allocates the right resources to the invisible majority of the private sector.

A key thread running through most areas of complaint seems to be a lack of transparency - ready access to data. This seems to be both a root cause of a lot of problems as well as the reason so many proposed solutions end up making little impact. But the huge numbers and diversity of SMEs presents the kind of complexity that only data scientists can help us resolve if we are to address the whole iceberg, rather than just the tip. That's surely one job for the newly launched Alan Turing Data Institute, for example, although readers will know of my fear that it seems more aligned with institutions than the poor old sole trader, let alone the consumer. So maybe SMEs need their own 'Chief Data Scientist' to champion their plight?

The latest specific concerns discussed were as follows:

• despite much regulatory activity, few bank reforms have actually taken effect - and many are being watered down - with the result that the banking picture is worse, if anything, than it was in 2008. Recent fines and scandals reveal little change in culture from that described in the report of the Parliamentary Commission on Banking Standards and most recently in the damning report into the failure of HBOS. In addition, banking is more concentrated (despite a few new entrants); less diverse in terms of ownership structure, competition, regional coverage and financial model; and still only about £200bn or 3% of bank assets are focused on SMEs and GDP producing activities. The trouble is we've known this for some time, but aside from the BBB's activity on access to funding, we still seem unclear on what can be done for SMEs at a regional or local level;

• the recent findings and remedies proposed by the Competition and Markets Authority into business current accounts are widely considered to be weak and unlikely to be effective - try searching the word "data" in the report to see how often there was too little available. The report still feels like the tip of an iceberg rather than a complete picture of the market and its problems;

• austerity imperatives seem to be the main driver for off-loading RBS into private shareholder ownership - the bank pleading to be left to its own devices (not what it suddenly announced to the Chancellor in 2008!) - and trying to kill-off any further discussion of using its systems as a platform for a network of smaller regionally-focused banks (as in Germany);

• bank lobbying has become more powerful - and will become even more so with the merger of their various mouthpieces - we need much more transparency on banks' access to government and the revolving door between the City and Whitehall/Westminster - we should have learned long ago that the interests of large banking groups are not aligned with SMEs (or consumers);

• SMEs lack an effective means of resolving disputes with banks, as the Financial Ombudsman Service has limited jurisdiction; banks refuse to release internal reports related to credit decisions and calling in loans; while the FCA is said to be hiding behind its confidentiality obligations; and banks have too much legal fire power for SMEs to take them on in court - hence moves to take matters into their own hands. The FCA has clearly woken up to this, but it's recent discussion paper shows there's a huge gap to close.

• the financial infrastructure for SMEs appears not to be geographically diverse - it doesn't yet mirror the Chancellor's "Northern Powerhouse" policy, for instance - despite calls for bank transparency on the geographical accessibility, a US-style "Community Reinvestment Act" and clear reporting on lending to SMEs by individual banks (rather than the Bank of England's summary reporting). There's a sense that we should see some kind of financial devolution to match political devolution, albeit one that still enables local finance to leverage national resources and economies of scale. Technology should help here, as we are tending to use the internet and mobile apps quite locally, despite their global potential;

• Some believe that SMEs need to take more responsibility for actively managing their finances, including seeking out alternatives and switching; while others believe that financial welfare should be like a utility - somehow pumped to everyone like water or gas, I assume - indeed regional alternative energy companies were touted as possible platforms for expanding access to regional financial services. My own view is that humans are unlikely to become more financially capable, so financial and other services supplied in complex scenarios need to be made simpler and more accessible - we should be relying less on advertising and more on hard data and personalised apps in such instances.

• Meanwhile, SME are said to lack a genuine, high profile champion whose role it is to ensure that the financial system generally is properly supportive of them. This may seem a little unfair to the Business Bank, various trade bodies and government departments, but it's also hard for any one of these bodies to oversee the whole fragmented picture. As I suggested above, however, I wonder whether a 'data champion' could be helpful to the various stakeholder in identifying and resolving problems, rather than a single being expected to act as a small business finance tsar. 

 In other words, we should follow the data, not the money...