Is “fit for purpose” fit for purpose?

Channel 4 News’s Michael Crick issued an impassioned cri de coeur on Twitter last night:

I had to agree with him:

This led to an interesting discussion on Twitter, which got me thinking more about this increasingly ubiquitous expression.

“Fit for purpose” is a phrase that frequently gets bandied about in business circles, particularly in relation to technology contracts. Disgruntled buyers will protest that the software wasn’t “fit for purpose”, or that the hosted service they are using isn’t “fit for purpose”. And, as was pointed out in the discussion on Twitter, politicians are also fond of the phrase – ever since John Reid declared in 2006 that the Home Office wasn’t “fit for purpose”.

John Reid may have pushed the phrase out to a wider audience, but the explosion in popularity of “fit for purpose” had started some years before this, as this Google Ngram shows:

Google Ngram of 'fit for purpose'

As I said in my reply to Michael Crick, though, I’m not sure that people who use the phrase always have a clear understanding of what it means. Certainly it usually gets used in situations far removed from its original context in sale of goods law, in particular (today) s.14 Sale of Goods Act 1979.

The Sale of Goods Act describes two different ways in which goods can be “fit for purpose”. The first is as part of what it means for goods to be of “satisfactory quality”. This includes:

fitness for all the purposes for which goods of the kind in question are commonly supplied. (s.14(2B))

The second (and what is normally meant by “fitness for purpose” in the context of the sale of goods) is in s.14(3), which applies where the buyer makes known to the seller “any particular purpose for which the goods are being bought”. In that case:

there is an implied term that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied.

So those are two fairly narrow and specific meanings. And before anyone runs away with the idea that these are just two statutory underlinings of a more general concept, s.14(1) slams the door firmly shut on this, at least as regards the sale of goods:

Except as provided by this section and section 15 below and subject to any other enactment, there is no implied term about the quality or fitness for any particular purpose of goods supplied under a contract of sale.

So the use of the phrase “fit for purpose” to describe services or software, let alone government departments, is some way removed from that original meaning – though, to be fair, it can also be seen that the wider use isn’t wholly at odds with the legal meaning.

But why is this a problem? Why shouldn’t people, in a business or technological context, use a phrase that has meaning for those in the discussion, even if it annoys legalistic pedants? There’s no reason at all why they shouldn’t – provided the pitfalls are recognised. In particular:

  1. “Fit for purpose” is often used in a rather imprecise sense and, like a lot of business jargon, may often be a symptom of imprecise thinking – which may come back to bite people later on.
  2. People who say “fit for purpose” often think they are talking in “legal” terms, which can cause confusion when the legal position turns out not to support them as they’d expected.

The biggest problem comes when the buyer ends up dissatisfied with what they’ve got out of an IT contract, and protests that the software or service wasn’t “fit for purpose” – only for the seller to point out that they’ve complied with what the contract actually said they’d do, even if this turns out not to be what the buyer wanted; perhaps because the buyer thought they’d be able to rely on some general principle of “it has to be ‘fit for purpose'”.

In any event, whether lawyers (or Michael Crick) like it or not, “fit for purpose” is here to stay. How should commercial lawyers handle this phrase? The best thing is to find out what our client’s “purpose” is, what “fitness” for that purpose looks like, and then put that into the contract – rather than the vague phrase itself.

Though I hope we can be forgiven for occasionally wanting to let off steam on Twitter about it, too. 😉 

Privacy Impact Assessments and SMEs [wonkish]

ICOI attended an SCL meeting last week discussing the ICO’s current consultation on Privacy Impact Assessments (submissions for which close tomorrow).

The SCL is preparing its own response to this consultation, but as I’m not involved in that process, and as the discussion led to my forming some fairly strong views on how the current draft guidance applies to SMEs, I’m submitting my own response (in a personal capacity) to the consultation.

Basically I think that the current proposal will completely alienate SMEs (not to mention many larger companies), who will see no relevance to what comes across as a highly complex and bureaucratic process – for all its claims to “flexibility”. However, at its heart, the concept of a Privacy Impact Assessment (PIA) is one that could be useful to SMEs, if the guidance were constructed in a simpler, more “bottom-up” way.

My draft answers are after the fold. Suggestions for improvement are welcomed…

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Cyclometric testing for lawyers

World Brompton Championships 2008 - photo by Tim Branch

Photo by Tim Branch.

Great piece in today’s FT by Lucy Kellaway arguing that how you ride a bike shows what you’re really like at work. As she puts it:

I’ve always fancied that as a group, cyclists make relatively good employees. All of us are vaguely fit [some of us more vaguely than others]. We have the wherewithal to be reliable and punctual. When the trains stop running as a result of a little wind – as they did in London last Monday – we still get to work on time [speak for yourself, Lucy – I worked from home]. We are risk-takers and ever so slightly rebellious, which works quite well – especially in a job like journalism.

But as Ms Kellaway goes on to point out, cyclists aren’t a unitary group at all: fast or slow, with or without helmets, jumping red lights or respecting the rules of the road, and so on. Or (to add one of my personal bugbears) weaving in and out of traffic, passing buses on the inside, and so on.

So I can see what Ms Kellaway means when she says that watching people ride a bike will tell you far more about their aptitude as employees than any amount of psychometric testing: the black-clad, headphone-wearing banker with no lights, the pedestrian-scattering baby-pink Brompton rider, and so on (“it is the red light that is the richest point for data gathering”). The bike test weeds out non-team players and those men who are incapable of allowing themselves ever to be bested by a woman.

Kellaway also pre-empts my own objection when I saw the title of her piece:

Some cyclists may protest that they are aggressive in the saddle only to become pussycats at their desks, but I don’t agree: on a bike you are close to death and so become a more intense version of your true self.

This pulled me up, because I tend to think I am rather different on a bike than at my desk. I like to think I work in a calm, professional, collaborative way; by contrast, on a bike I become rather more aggressive and sweary (as a certain driver who pulled out from a side road in front of me this morning could testify, had she even noticed my existence).

But then I thought about it a little more, and I think this is a fair description of how I cycle: assertively, but not recklessly. I follow the rules of the road pretty faithfully: stopping at red lights, not riding on the pavement (my absolute, number one personal bugbear), and so on. I prefer to take and hold the lane in slow traffic rather than weaving around queuing vehicles – it’s safer, and to my mind more assertive, even if fractionally slower. My mantra (often muttered under my breath at some taxi driver who seems to doubt my right to exist) is “it’s a road vehicle” – which implies both rights and responsibilities. And yes, if you cross me then I’m likely to respond pretty firmly, but without losing control.

Perhaps those are not such bad traits for a lawyer – and if Kellaway is right that cyclists are “risk-takers and ever so slightly rebellious”, perhaps that’s not always bad for a lawyer, either. Or perhaps I just fit into the “red-light refuseniks” category:

When there is a big group of bikes together at a light, it takes a particular sort of cyclist to break the consensus and ride off, but once he has done that, others follow, leaving just one or two behind. I would hire these red-light refuseniks at once – but only for jobs in audit or compliance.

Ouch.